DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant’s election without traverse of Group 1, claims 1-2, 4-6, 9, 13-18, 21, 38-41 in the reply filed on 11/11/2025 is acknowledged. Further, Applicant’s election without traverse of species ii – container body includes polymethylpentene (PMP) and polyester (claim 1) – is acknowledged.
Claims 22 and 30 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
New claims 42-44 are added.
Claims 1-2, 4-6, 9, 13-18, 21, 38-39, 41-44 are being examined on the merits in the present action.
Claim Objections
Claim 2 is objected to because of the following informalities: claim 2 recites at line 3 “the L* of the side wall of the container body is least 90”. It appears applicant may have intended to recite “the L* of the side wall of the container body is at least 90”. Appropriate correction is required.
Claim 38 is objected to because of the following informalities: claim 38 recites at line 4 “the L* of the side wall of the container body is least 90…”. It appears applicant may have intended to recite “the L* of the side wall of the container body is at least 90…”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claims 1-2, 4-6, 9, 13-18, 21, 38-39 and 41-44 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Regarding claim 1, the term “L*” in claim 1 renders the claim indefinite, because the claim does not define the method by which the L* value is measured. It is generally noted that L* value (lightness value) can vary depending on the measurement conditions, i.e., angle, instrument type, light source, among others. The specification does not provide a standard for measuring and ascertaining the L* value, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. For purpose of examination, the examiner considers any L* value taught by the prior are that otherwise reads on the claimed L* value as meeting the claimed limitations. Claims 32 and 43 contain the same issue with the term of “L*”. Claims 2, 4-6, 9, 13-18, 21, 38-39, and 44 are rejected due to their dependency of clam 1 and claim 43, directly and indirectly. Appropriate clarification and correction are required.
Regarding claim 4, claim 4 recites the limitation "the b* of the side wall of the container body and the neck portion of the container body is greater than 1.0 and less than 3.0". There is insufficient antecedent basis for this limitation in the claim. Claim 4 depends from claim 1 which in turns recites L* of the side wall of the container body and the neck portion of the container body. It appears applicant may have intended to refer to the L* of claim 1, and such interpretation is applied for purpose of examination. Appropriate clarification and correction are required.
Regarding claim 5, the term “a light transmission … as described in Test 3” in claim 5 renders the claim indefinite, as it is not clear what is the so-called Test 3 requires. For purpose of examination, the examiner considers any light transmission taught by the prior are that otherwise reads on the claimed light transmission as meeting the claimed limitations. Appropriate clarification and correction are required.
Regarding claim 38, the claim recites the limitation "the b* of the side wall of the container body and the neck portion of the container body is greater than 1.0 and less than 3.0". There is insufficient antecedent basis for this limitation in the claim. Claim 38 depends from claim 1 which in turns recites L* of the side wall of the container body and the neck portion of the container body. It appears applicant may have intended to refer to the L* of claim 1, and such interpretation is applied for purpose of examination.
Further the term “a light transmission … as described in Test 3” in claim 38 renders the claim indefinite, as it is not clear what is the so-called Test 3 requires. For purpose of examination, the examiner considers any light transmission taught by the prior are that otherwise reads on the claimed light transmission as meeting the claimed limitations. Appropriate clarification and correction are required.
Regarding independent claim 42, the claim recites the limitation "the b* of the side wall of the container body and the neck portion of the container body is greater than 1.0". There is insufficient antecedent basis for this limitation in the claim. It is not clear or understood what is intended to be measured and claimed as the b* value. For purpose of examination, the examiner considers prior art reference otherwise teach a container having L* value and other material limitation that reads on the claimed invention as meeting the claimed limitations. Appropriate clarification and correction are required.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-2, 4-6, 9, 13-18, 21, 38-39 and 41-44 are rejected under 35 U.S.C. 103 as being unpatentable over WO2019/133713 to Wieloch et al. ("Wieloch") in view of Vernon et al. (US 8,575,296; “Vernon”).
Regarding claim 1, Wieloch teaches a container body (para [0086], [0088], the PET bottle of Wieloch), wherein
- wherein said container body includes polymethylpentene (PMP) and polyester (para [0018], [0028] [0029], the container is of blend of polymethylpentene (PMP) and polyester).
Wieloch teaches embodiments of various suitable plastic articles such as containers, rigid bottle (para [0089]-[0091] [0103], containers, bottles for holding juice etc.). However, Wieloch does not specifically teach or show a container comprises a base, a side wall extending from the base and a neck portion arranged to engage a closure for the container body, as instantly claimed.
In this regard, it is noted that in the background of invention at para [0014], Wieloch references to Vernon for polyester articles/bottles known in the art. Vernon teaches bottles made of blend of polymethylpentene (PMP) and polyester (col. 2 lines 42-45, which is the same/similar as that of Wieloch) that clearly comprises a base, a side wall extending from the base and a neck portion arranged to engage a closure for the container body (Fig. 13, col. 18, lines 47-51), which configurations meeting the claimed structural limitations of claim 1.
It would have been obvious to one of ordinary skill in the art to modify Wieloch in view the teachings of Vernon, to provide a container body/bottle having a base, a side wall extending from the base and a neck portion arranged to engage a closure for the container body such as taught by Vernon, for the obvious benefit of providing container body/bottle that is suitable for holding content therein, which would have predictably arrived at a satisfactory container body having the structural configuration that is the same as instantly claimed.
Wieloch teaches as in one of its embodiments that its container body has an L* value great than 90 (para [0045], of which the entire container body that includes the side wall and neck portion of the container, and both have an L* value great than 90), which L* value range overlaps with and read on the instantly claimed ranges of instant claim 1, i.e., the side wall of the container body has an L* value of at least 90, and the neck portion has an L* value of at least 84. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05.
Regarding claim 2, Wieloch teaches as in one of its embodiments that its container body has an L* value great than 90 (para [0045]), of which it is considered the entire container body that includes the side wall and neck portion of the container, and both have an L* value great than 90.
Wieloch does not specifically teach the L* of the neck portion is at least 83 and that the difference and the ratio between the L* of the side wall and the neck portion, as instantly claimed.
However, Wieloch teaches that the L* value affects the brightness/whiteness appearance of the container, in that Wieloch teaches white container packages preferably have high L* value, greater than 85 or greater than 90 or greater than 95 (para [0076]). Wieloch teaches is L* value a result effective variable that can be adjusted by adjusting the amount of the pigments in the composition for the container (para [0129] [0130], para [0072]-[0074]).
It would have been obvious to a person of ordinary skill in the art to adjust the amount of the pigments in the composition to achieve the desired L* value through routine experimentation in order to achieve the desired the brightness/whiteness appearance of the container and to achieve the different desired brightness/whiteness appearance at the different portions of the container once produced, such as to have higher L* value at the side wall of the container body for a whiter/bringer appearance in the wall portion to meet the design needs, and to have a lower L* value at the neck portion for a darker appearance at the neck portion as desired to meet the design needs, which would have arrived at a workable L* value of the side wall of the container body and a workable L* value of the neck portion that fall within the broad ranges as instantly claimed (i.e., the L* of the side wall of the container body is at least 90; the L* of the neck portion is at least 83), of which, the calculated difference between the L* of the side wall and the neck portion would fall within the broad range as instantly claimed (i.e., is less than 12), and calculated first ratio defined as the L* of the side wall of the container body divided by the L* of the neck potion would fall within the broad range as instantly claimed (i.e., is at least 1.03 and less than 1.15). It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). MPEP 2144.05.
Regarding claim 4, See 35 U.S.C. 112(b) rejection of claim 4 made of record in this Office Action. Wieloch does not specifically teach the difference between the L* of the side wall of the container body and the neck portion of the container body is greater than 1.0 and less than 3.0, as instantly claimed.
However, Wieloch teaches that the L* value affects the brightness/whiteness appearance of the container, in that Wieloch teaches white container packages preferably have high L* value, greater than 85 or greater than 90 or greater than 95 (para [0076]). Wieloch teaches is L* value a result effective variable that can be adjusted by adjusting the amount of the pigments in the composition for the container (para [0129] [0130], para [0072]-[0074]).
It would have been obvious to a person of ordinary skill in the art to adjust the amount of the pigments in the composition to achieve the desired L* value through routine experimentation in order to achieve the desired the brightness/whiteness appearance of the container and to achieve the different desired brightness/whiteness appearance at the different portions of the container once produced, such as to have higher L* value at the side wall of the container body for a whiter/bringer appearance in the wall portion to meet the design needs, and to have a lower L* value at the neck portion for a darker appearance at the neck portion as desired to meet the design needs, which would have arrived at a workable L* value of the side wall of the container body and a workable L* value of the neck portion, of which, the calculated difference between the L* of the side wall and the neck portion would fall within the broad range as instantly claimed (i.e., is greater than 1.0 and less than 3.0). It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). MPEP 2144.05.
Regarding claim 5, Wieloch teaches wherein its container body has a light transmission (LT%) at 550 nm as described in Test 3 of less than 1.0% (para [0079]-[0080], blocks light in the 350 nm to 550nm range wavelength, and thus container body reduces transmission at 550 nm, and is considered as meeting the claimed limitations). See 35 U.S.C. 112(b) rejection of claim 5 made of record in this Office Action.
Regarding claim 6, Wieloch teaches wherein its container body includes:
- about 89% to 97% of polyester (para [0045], also see Table 2 on page 21, the calculated amount of polyester is - total resin 100% minus PMP of 0.1 to 5.0% and minus 0.1 to 5.0% of light scattering pigment - which is 89% to 97%), which range overlaps with the instantly claimed range of 88.0 to 94.0 wt% of polyester,
- about 0.1 to 5.0% of PMP (para [0045]), which range overlaps with the instantly claimed range of 3.0 to 6.0 wt% of PMP, and
- about 0.1 to 5.0% of light scattering pigment (para [0045]), which range overlaps with the instantly claimed range of 1.0 to 7.0 wt% of other ingredients.
As discussed above, Wieloch teaches its body includes about 89% to 97% of polyester and about 0.1 to 5.0% of PMP (para [0045]), as such, the calculated ratio (A) defined as the weight of polyester divided by the weight of PMP in its container body is in the range 17.8 to 19.4 (i.e., 89/5 to 97/5) which range overlaps with the instantly claimed range of 8 to 32.
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05.
Regarding claim 9, Wieloch teaches said container body includes polymethylpentene (PMP) and polyester (para [0018], [0028] [0029], the container is of blend of polymethylpentene (PMP) and polyester), and Wieloch teaches suitable polyester includes a polyethylene terephthalate (para [0051]).
Wieloch does not specifically teach Tg of the polyester and that of PMP, and the difference between the Tg as instantly claimed.
However, it is expected that the polyester that is of polyethylene terephthalate of Wieloch, and the PMP of Wieloch would possess the same and similar properties of Tg as the instantly claimed polyethylene terephthalate and PMP, and the difference between the Tg of the polyester/polyethylene terephthalate and that of PMP is at least 30 °C as instantly claimed, because the polyester (which is polyethylene terephthalate) and PMP of Wieloch and the instantly claimed the polyester and PMP are identical or substantially identical in composition. "Products of identical chemical composition cannot have mutually exclusive properties." A chemical composition and its properties are inseparable. See MPEP 2112. 01.
Regarding claim 13, Wieloch teaches wherein its container body, wherein the sum of the wt% of thermoplastic polymers in said container body is about 89% to 97% of polyester (para [0045], also see Table 2 on page 21, the calculated amount of polyester is - total resin 100% minus PMP of 0.1 to 5.0% and minus 0.1 to 5.0% of light scattering pigment - which is 89% to 97%), which range overlaps with the instantly claimed range of at least 94 wt%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05.
Regarding claim 14, Wieloch teaches its container body includes suitable first light shielding pigment which is zinc sulphide (para [0021], suitable light shielding pigment includes zinc sulphide).
Regarding claim 15, Wieloch teaches its container body includes a first light shielding pigment which is zinc sulphide (para [0021], suitable light shielding pigment includes zinc sulphide). Wieloch teaches wherein its container body includes about 0.1 to 5.0% of suitable first light shielding pigment (para [0045]), which range overlaps with the instantly claimed range of at least 1 wt% and less than 8 wt%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05.
Regarding claim 16, Wieloch teaches its container body includes suitable light shielding pigments including zinc sulphide, and may include additional light shielding pigments (para [0021], Wieloch teaches various suitable light shielding pigments including titanium dioxide, metal oxide particles and Wieloch teaches using combination of pigments thereof as desired). Wieloch teaches wherein its container body may include further suitable pigment such as but not limited to titanium dioxide (para [0021], suitable light shielding pigment includes titanium dioxide). Wieloch does not state that its container body must include pigment of titanium dioxide and is considered meeting the claimed limitations of includes less than 2 wt% of titanium dioxide.
Wieloch teaches wherein its container body includes about 0.1 to 5.0% of suitable light shielding pigment (para [0045]), which range overlaps with the instantly claimed range of less than 8 wt%. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05.
Regarding claim 17, Wieloch teaches its container body may further include suitable (second) light shielding pigments including zinc powder (para [0072]), considered as meeting the claimed limitations, being a pigment which is a particular metal.
Regarding claim 18, Wieloch teaches the suitable amount of the second light shielding pigment is about 0.0001 part by weight to 5 parts by weight (para [0074]), which range overlaps with the instantly claimed range of less than 0.050 wt% of second light shielding pigment. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05.
Regarding claim 21, Wieloch teaches wherein its container body includes
- about 89% to 97% of polyester (para [0045], also see Table 2 on page 21, the calculated amount of polyester is - total resin 100% minus PMP of 0.1 to 5.0% and minus 0.1 to 5.0% of light scattering pigment - which is 89% to 97%), which range overlaps with the instantly claimed range of 88.0 to 93.0 wt% of polyester,
- about 0.1 to 5.0% of PMP (para [0045]), which range overlaps with the instantly claimed range of 3.0 to 7.0 wt% of PMP, and
- suitable light scattering pigment such as zinc sulphide (para [0021], suitable light shielding pigment includes zinc sulphide); Wieloch teaches the inclusion of suitable amount of light shielding pigment of zinc sulphide of about 0.1 to 5.0% of (para [0045]), which range overlaps with the instantly claimed range of 1-6 wt% zinc sulfide.
- Wieloch teaches its container body includes suitable pigments including zinc sulphide, and may include additional pigments as desired including aluminum trihydrate, considered meeting the claimed limitation of being a particulate aluminum (para [0021]), Wieloch teaches using combination of pigments thereof as desired (para [0021]). Wieloch teaches the suitable amount of the additional pigment is about 0.0001 part by weight to 5 parts by weight (para [0074]), which range overlaps with the instantly claimed range of 0.01 to 0.2wt% of particulate aluminum.
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05.
Regarding claim 38, Wieloch teaches as in one of its embodiments that its container body has an L* value great than 90 (para [0045]), of which it is considered the entire container body that includes the side wall and neck portion of the container, and both have an L* value great than 90.
Wieloch teaches wherein its container body has a light transmission (LT%) at 550 nm as described in Test 3 of less than 1.0% (para [0079]-[0080], blocks light in the 350 nm to 550nm range wavelength, and thus container body reduces transmission at 550 nm, and is considered as meeting the claimed limitations). See 35 U.S.C. 112(b) rejection of claim 38 made of record in this Office Action.
Wieloch does not specifically teach the L* of the neck portion is at least 83 and less than 88, and that the difference and the ratio between the L* of the side wall and the neck portion as instantly claimed.
However, Wieloch teaches that the L* value affects the brightness/whiteness appearance of the container, in that Wieloch teaches white container packages preferably have high L* value, greater than 85 or greater than 90 or greater than 95 (para [0076]). Wieloch teaches is L* value a result effective variable that can be adjusted by adjusting the amount of the pigments in the composition for the container (para [0129] [0130], para [0072]-[0074]).
It would have been obvious to a person of ordinary skill in the art to adjust the amount of the pigments in the composition to achieve the desired L* value through routine experimentation in order to achieve the desired the brightness/whiteness appearance of the container and to achieve the different desired brightness/whiteness appearance at the different portions of the container once produced, such as to have higher L* value at the side wall of the container body for a whiter/bringer appearance in the wall portion to meet the design needs, and to have a lower L* value at the neck portion for a darker appearance at the neck portion as desired to meet the design needs, which would have arrived at a workable L* value of the side wall of the container body and a workable L* value of the neck portion that fall within the broad ranges as instantly claimed (i.e., the L* of the side wall of the container body is at least 90 and less than 98; the L* of the neck portion is at least 83 and less than 88), of which, the calculated difference between the L* of the side wall and the neck portion would fall within the broad range as instantly claimed (i.e., is greater than 1.0 and less than 3), and calculated first ratio defined as the L* of the side wall of the container body divided by the L* of the neck potion would fall within the broad range as instantly claimed (i.e., is at least 1.03 and less than 1.15). It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). MPEP 2144.05. See 35 U.S.C. 112(b) rejection of claim 38 made of record in this Office Action.
Regarding claim 39, Wieloch teaches wherein its container body includes:
- about 89% to 97% of polyester which is polyethylene terephthalate (para [0045], [0051], also see Table 2 on page 21, the calculated amount of polyester is - total resin 100% minus PMP of 0.1 to 5.0% and minus 0.1 to 5.0% of light scattering pigment - which is 89% to 97%), which range overlaps with the instantly claimed range of 88.0 to 94.0 wt% of polyester,
- about 0.1 to 5.0% of PMP (para [0045]), which range overlaps with the instantly claimed range of 3.0 to 6.0 wt% of PMP, and
- about 0.1 to 5.0% of light scattering pigment (para [0045]), which range overlaps with the instantly claimed range of 1.0 to 7.0 wt% of other ingredients.
As discussed above, Wieloch teaches its body includes about 89% to 97% of polyester and about 0.1 to 5.0% of PMP (para [0045]), as such, the calculated ratio (A) defined as the weight of polyester divided by the weight of PMP in its container body is in the range 17.8 to 19.4 (i.e., 89/5 to 97/5) which range overlaps with the instantly claimed range of 15 to 25.
In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05.
Regarding claim 41, Wieloch teaches wherein its container body includes
- about 89% to 97% of polyester (para [0045], also see Table 2 on page 21, the calculated amount of polyester is - total resin 100% minus PMP of 0.1 to 5.0% and minus 0.1 to 5.0% of light scattering pigment - which is 89% to 97%), which range overlaps with the instantly claimed range of 88.0 to 93.0 wt% of polyester,
- about 0.1 to 5.0% of PMP (para [0045]), which range overlaps with the instantly claimed range of 3.0 to 7.0 wt% of PMP, and
- suitable light scattering pigment such as zinc sulphide (para [0021], suitable light shielding pigment includes zinc sulphide); Wieloch teaches the inclusion of suitable amount of light shielding pigment of zinc sulphide of about 0.1 to 5.0% of (para [0045]), which range overlaps with the instantly claimed range of 1-6 wt% zinc sulfide.
- Wieloch teaches its container body includes suitable pigments including zinc sulphide, and may include additional pigments as desired including aluminum trihydrate, considered meeting the claimed limitation of being a particulate aluminum (para [0021]), Wieloch teaches using combination of pigments thereof as desired (para [0021]). Wieloch teaches the suitable amount of the additional pigment is about 0.0001 part by weight to 5 parts by weight (para [0074]), which range overlaps with the instantly claimed range of 0.01 to 0.2wt% of particulate aluminum. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05.
Regarding independent claim 42, Wieloch teaches a container body (para [0086], [0088], the PET bottle of Wieloch), wherein
- wherein said container body includes polymethylpentene (PMP) and polyester (para [0018], [0028] [0029], the container is of blend of polymethylpentene (PMP) and polyester).
Wieloch teaches embodiments of various suitable plastic articles such as containers, rigid bottle (para [0089]-[0091] [0103], containers, bottles for holding juice etc.). However, Wieloch does not specifically teach or show a container comprises a base, a side wall extending from the base and a neck portion arranged to engage a closure for the container body, as instantly claimed.
In this regard, it is noted that in the background of invention at para [0014], Wieloch references to Vernon for polyester articles/bottles known in the art. Vernon teaches bottles made of blend of polymethylpentene (PMP) and polyester (col. 2 lines 42-45, which is the same/similar as that of Wieloch) that clearly comprises a base, a side wall extending from the base and a neck portion arranged to engage a closure for the container body (Fig. 13, col. 18, lines 47-51), which configurations meeting the claimed structural limitations of claim 42.
It would have been obvious to one of ordinary skill in the art to modify Wieloch in view the teachings of Vernon, to provide a container body/bottle having a base, a side wall extending from the base and a neck portion arranged to engage a closure for the container body such as taught by Vernon, for the obvious benefit of providing a suitable container body/bottle that is suitable for holding content therein, which would have predictably arrived at a satisfactory container body having the structural configuration that is the same as instantly claimed.
Wieloch teaches as in one of its embodiments that its container body has an L* value great than 90 (para [0045], of which the entire container body that includes the side wall and neck portion of the container, and both have an L* value great than 90), which L* value range overlaps with and read on the instantly claimed ranges of instant claim 42, i.e., the side wall of the container body has an L* value of at least 90, and the neck portion has an L* value of at least 84. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05.
Wieloch does not specifically teach the L* of the neck portion is at least 84 and less than 88, and the difference and the ratio between the L* of the side wall and the neck portion, as instantly claimed.
However, Wieloch teaches that the L* value affects the brightness/whiteness appearance of the container, in that Wieloch teaches white container packages preferably have high L* value, greater than 85 or greater than 90 or greater than 95 (para [0076]). Wieloch teaches is L* value a result effective variable that can be adjusted by adjusting the amount of the pigments in the composition for the container (para [0129] [0130], para [0072]-[0074]).
It would have been obvious to a person of ordinary skill in the art to adjust the amount of the pigments in the composition to achieve the desired L* value through routine experimentation in order to achieve the desired the brightness/whiteness appearance of the container and to achieve the different desired brightness/whiteness appearance at the different portions of the container once produced, such as to have higher L* value at the side wall of the container body for a whiter/bringer appearance in the wall portion to meet the design needs, and to have a lower L* value at the neck portion for a darker appearance at the neck portion as desired to meet the design needs, which would have arrived at a workable L* value of the side wall of the container body and a workable L* value of the neck portion that fall within the broad ranges as instantly claimed (i.e., the L* of the side wall of the container body is at least 90 and less than 98; the L* of the neck portion is at least 83 and less than 88), of which, the calculated difference between the L* of the side wall and the neck portion would fall within the broad range as instantly claimed (i.e., is less than 12), and calculated first ratio defined as the L* of the side wall of the container body divided by the L* of the neck potion would fall within the broad range as instantly claimed (i.e., is at least 1.03 and less than 1.15). It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). MPEP 2144.05. See 35 U.S.C. 112(b) rejection of claim 42 made of record in this Office Action.
Regarding independent claim 43, Wieloch teaches a container body (para [0086], [0088], the PET bottle of Wieloch), wherein
- wherein said container body includes polymethylpentene (PMP) and polyester (para [0018], [0028] [0029], the container is of blend of polymethylpentene (PMP) and polyester).
Wieloch teaches embodiments of various suitable plastic articles such as containers, rigid bottle (para [0089]-[0091] [0103], containers, bottles for holding juice etc.). However, Wieloch does not specifically teach or show a container comprises a base, a side wall extending from the base and a neck portion arranged to engage a closure for the container body, as instantly claimed.
In this regard, it is noted that in the background of invention at para [0014], Wieloch references to Vernon for polyester articles/bottles known in the art. Vernon teaches bottles made of blend of polymethylpentene (PMP) and polyester (col. 2 lines 42-45, which is the same/similar as that of Wieloch) that clearly comprises a base, a side wall extending from the base and a neck portion arranged to engage a closure for the container body (Fig. 13, col. 18, lines 47-51), which configurations meeting the claimed structural limitations of claim 42.
It would have been obvious to one of ordinary skill in the art to modify Wieloch in view the teachings of Vernon, to provide a container body/bottle having a base, a side wall extending from the base and a neck portion arranged to engage a closure for the container body such as taught by Vernon, for the obvious benefit of providing a suitable container body/bottle that is suitable for holding content therein, which would have predictably arrived at a satisfactory container body having the structural configuration that is the same as instantly claimed.
Wieloch teaches as in one of its embodiments that its container body has an L* value great than 90 (para [0045], of which the entire container body that includes the side wall and neck portion of the container, and both have an L* value great than 90), which L* value range overlaps with and read on the instantly claimed ranges of instant claim 42, i.e., the side wall of the container body has an L* value of at least 90, and the neck portion has an L* value of at least 84. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05.
Wieloch does not specifically teach the L* of the neck portion is at least 84 and less than 88, and the difference and the ratio between the L* of the side wall and the neck portion, as instantly claimed.
However, Wieloch teaches that the L* value affects the brightness/whiteness appearance of the container, in that Wieloch teaches white container packages preferably have high L* value, greater than 85 or greater than 90 or greater than 95 (para [0076]). Wieloch teaches is L* value a result effective variable that can be adjusted by adjusting the amount of the pigments in the composition for the container (para [0129] [0130], para [0072]-[0074]).
It would have been obvious to a person of ordinary skill in the art to adjust the amount of the pigments in the composition to achieve the desired L* value through routine experimentation in order to achieve the desired the brightness/whiteness appearance of the container and to achieve the different desired brightness/whiteness appearance at the different portions of the container once produced, such as to have higher L* value at the side wall of the container body for a whiter/bringer appearance in the wall portion to meet the design needs, and to have a lower L* value at the neck portion for a darker appearance at the neck portion as desired to meet the design needs, which would have arrived at a workable L* value of the side wall of the container body and a workable L* value of the neck portion that fall within the broad ranges as instantly claimed (i.e., the L* of the side wall of the container body is at least 90 and less than 98; the L* of the neck portion is at least 83 and less than 88), of which, the calculated difference between the L* of the side wall and the neck portion would fall within the broad range as instantly claimed (i.e., is less than 12), and calculated first ratio defined as the L* of the side wall of the container body divided by the L* of the neck potion would fall within the broad range as instantly claimed (i.e., is at least 1.03 and less than 1.15). It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). MPEP 2144.05. See 35 U.S.C. 112(b) rejection of claim 42 made of record in this Office Action.
Wieloch also teaches wherein its container body includes
- about 89% to 97% of polyester (para [0045], also see Table 2 on page 21, the calculated amount of polyester is - total resin 100% minus PMP of 0.1 to 5.0% and minus 0.1 to 5.0% of light scattering pigment - which is 89% to 97%), which range overlaps with the instantly claimed range of 88.0 to 94.0 wt% of polyester,
- about 0.1 to 5.0% of PMP (para [0045]), which range overlaps with the instantly claimed range of 3.0 to 6.0 wt% of PMP, and
- about 0.1 to 5.0% of suitable pigment additives (para [0045]), which range overlaps with the instantly claimed range of 1.0 to 7.0 wt% of other ingredients.
Wieloch teaches its container body may include suitable light scattering pigment (para [0021]); Wieloch teaches the inclusion of suitable amount of light shielding pigment of about 0.1 to 5.0% of (para [0045]), which range overlaps with the instantly claimed range of 1-8 wt% of a first light scattering pigment.
Wieloch teaches its container body may further include suitable (second) light shielding pigments including zinc powder (para [0072]), considered as meeting the claimed limitations, being a pigment which is a particular metal. Wieloch teaches the suitable amount of the second light shielding pigment is about 0.0001 part by weight to 5 parts by weight (para [0074]), which range overlaps with the instantly claimed range of 0.001 to 1.0 wt% of second light shielding pigment. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05.
Wieloch does not specifically teach the difference between the L* of the side wall and the neck portion, as instantly claimed.
However, Wieloch teaches that the L* value affects the brightness/whiteness appearance of the container, in that Wieloch teaches white container packages preferably have high L* value, greater than 85 or greater than 90 or greater than 95 (para [0076]). Wieloch teaches is L* value a result effective variable that can be adjusted by adjusting the amount of the pigments in the composition for the container (para [0129] [0130], para [0072]-[0074]).
It would have been obvious to a person of ordinary skill in the art to adjust the amount of the pigments in the composition to achieve the desired L* value through routine experimentation in order to achieve the desired the brightness/whiteness appearance of the container and to achieve the different desired brightness/whiteness appearance at the different portions of the container once produced, such as to have higher L* value at the side wall of the container body for a whiter/bringer appearance in the wall portion to meet the design needs, and to have a lower L* value at the neck portion for a darker appearance at the neck portion as desired to meet the design needs, which would have arrived at a workable L* value of the side wall of the container body and a workable L* value of the neck portion that fall within the broad ranges as instantly claimed (i.e., the L* of the side wall of the container body is at least 90; the L* of the neck portion is at least 84), of which, the calculated difference between the L* of the side wall and the neck portion would fall within the broad range as instantly claimed (i.e., is less than 9). It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). MPEP 2144.05.
Regarding claim 44, Wieloch teaches wherein its container body includes
- about 89% to 97% of polyester of polyethylene terephthalate (para [0045], [0051] also see Table 2 on page 21, the calculated amount of polyester is - total resin 100% minus PMP of 0.1 to 5.0% and minus 0.1 to 5.0% of light scattering pigment - which is 89% to 97%), which range overlaps with the instantly claimed range of 88.0 to 93.0 wt% of PET, and
- suitable light scattering pigment such as zinc sulphide (para [0021], suitable light shielding pigment includes zinc sulphide); Wieloch teaches the inclusion of suitable amount of light shielding pigment of zinc sulphide of about 0.1 to 5.0% of (para [0045]), which range overlaps with the instantly claimed range of 1-6 wt% zinc sulfide.
- Wieloch teaches its container body includes suitable pigments including zinc sulfide, and may include additional pigments as desired including aluminum trihydrate, considered meeting the claimed limitation of being a particulate aluminum (para [0021]), Wieloch teaches using combination of pigments thereof as desired (para [0021]). Wieloch teaches the suitable amount of the additional pigment is about 0.0001 part by weight to 5 parts by weight (para [0074]), which range overlaps with the instantly claimed range of 0.01 to 0.2 wt% of particulate aluminum. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05.
Conclusion
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/YAN LAN/Primary Examiner, Art Unit 1782