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 of Group 1, claims 1-2, 4, 7, 9, 11, 13, 16, 19, 21, 23-26, 29 and 42-43 in the reply filed on 11/11/2025 is acknowledged. Further, Applicant’s election of species i – CBC (cyclic block copolymer, claims 1, 7, 9 and not claim 11) – is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claim 11 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention species, there being no allowable generic or linking claim. The claim status of claim 11 should be marked as being withdrawn.
New claims 44-46 are added.
Claims 1-2, 4, 7, 9, 13, 16, 19, 21, 23-26, 29 and 42-46 are being examined on the merits in the present action.
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, 7, 9, 13, 16, 19, 21, 23-26, 29 and 42-43 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 “polymer YY*” in claim 1 renders the claim indefinite, because the claim does not define any material characteristics including structure and/or properties of such polymer YY. 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 polymer taught by the prior are that otherwise reads on the claimed polymer YY as meeting the claimed limitations. Claims 2, 4, 7, 9, 11, 13, 16, 19, 21, 23-26, 29 and 42-43 are rejected due to their dependency of claim 1, directly and indirectly. Appropriate clarification and correction are required.
Regarding claim 2, the term “…when dosed at 1 wt% into PET as described in Examples 1 to 4 and bottles produced as described, the transmission, measured as described in Example 4, is reduced to less than 50% of the transmission of the PET alone” in claim 2 renders the claim indefinite, as it is not clear what are the specific measurement conditions and requirements are required to define the transmission. For purpose of examination, the examiner considers any transmission taught by the prior are that otherwise reads on the claimed transmission as meeting the claimed limitations. Appropriate clarification and correction are required.
Regarding claim 26, the term “…a light transmission (LT%) at 550nm as described in Test 3 … in claim 26 renders the claim indefinite, as it is not clear what are the specific measurement conditions and requirements are required in Test 3 to define the transmission. For purpose of examination, the examiner considers any transmission taught by the prior are that otherwise reads on the claimed transmission as meeting the claimed limitations.
Further, the term "L*" in claim 26 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. Appropriate clarification and correction are required.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 4 and 29 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by JP 2017030244 to Ishii (“Ishii”).
Regarding claim 1, Ishii teaches a container body which comprises a base and a side wall extending from the base (Fig. 1, page 2, third para, container body 1),
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- wherein said container body includes polyester (page 2, fifth para, suitable polyester such as PET) and a polymer YY (page 2, fifth para, the inclusion of suitable cyclic polyolefin including cyclic olefin copolymer, cyclic olefin polymers, which is the same materials as the polymer YY as that of the instant application, see instant specification, at page 3, lines 34-35, that describes suitable polymer YY includes cyclic block copolymers, and cyclic olefin polymer), meeting the claimed limitations. See 35 U.S.C. 112(b) rejection of claim 1 made of record in this Office Action).
Regarding claim 4, Ishii is silent as to the Vicat Softening Temperature (VST) of its polymer YY measured by ASTMD1525. However, Ishii teaches its container body includes polyester (page 2, fifth para, suitable polyester such as PET) and a polymer YY (page 2, fifth para, the inclusion of suitable cyclic polyolefin including cyclic olefin copolymer, cyclic olefin polymers), which is the same materials as the polymer YY as that of the instant application (see instant specification, at page 3, lines 34-35, that describes suitable polymer YY includes cyclic block copolymers, and cyclic olefin polymer).
It is expected that such polymer YY of Ishii would possess a Vicat Softening Temperature (VST) measured by ASTMD1525 that is same or similar as instantly claimed, i.e., of at least 110 °C, because polymer YY of Ishii and the instantly claimed polymer YY 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 29, Ishii teaches a container (page 2, fourth para, Fig. 1) comprising the container body, wherein a closure is secured to the container body (page 2, fourth para, Fig. 1), and said container includes a beverage which includes at least 0.1wt% fat and/or is a milk (page 1, third para, page 4, third para, Fig. 1, include liquid content, lotion/fat).
Claim(s) 1 and 29 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ohta et al. (US 8,236,727; “Ohta”).
Regarding claim 1, Ohta teaches a container body which comprises a base and a side wall extending from the base (col. 12, lines 12-32, Ohta teaches its oxygen-absorbing resin composition is suitable for making container/bottle for packaging tea beverage and/or dairy product/milk, that having a wall and base, meeting the claimed limitations), wherein said container body includes a polyester (col. 1, lines 56-65, the component A of Ohta that is of polyester) and a polymer YY (col. 1, lines 56-65, col. 6, lines 44-54, the component B of Ohta of which the suitable resins include cyclic olefin polymer, cyclic olefin copolymer, block copolymers of olefins, which is the same materials as the polymer YY as that of the instant application, see instant specification, page 3, lines 34-35, suitable polymer YY includes cyclic block copolymers, and cyclic olefin polymer), meeting the claimed limitations. See 35 U.S.C. 112(b) rejection of claim 1 made of record in this Office Action.
Regarding claim 29, Ohta teaches a container comprising the container body, wherein a closure is secured to the container body; and said container includes a beverage which includes at least 0.1wt% fat and/or is a milk (col. 12, lines 12-32, Ohta teaches its oxygen-absorbing resin composition is suitable for making container/bottle for packaging dairy milk product).
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) 2 is rejected under 35 U.S.C. 103 as being unpatentable over JP 2017030244 to Ishii as applied to claim 1 above.
The limitations of claim 1 are taught by Ishii as discussed above.
Regarding claim 2, Ishii teaches as in one of its embodiments that the addition of its polymer YY (page 2, fifth para, the inclusion of suitable cyclic polyolefin including cyclic olefin copolymer, cyclic olefin polymers) is such that the moisture transmission is reduced to 0.77%, of which the transmission of the comparative example is about 1.32% (page 5, second para), and is considered as meeting the claimed limitations. See 35 U.S.C. 112(b) rejection of claim 2 made of record in this Office Action.
Claim(s) 25 is rejected under 35 U.S.C. 103 as being unpatentable over Ohta as applied to claim 1 above.
The limitations of claim 1 are taught by Ohta as discussed above.
Regarding claim 25, Ohta teaches a container having container body which comprises a base and a side wall extending from the base, and suitable for various applications of packaging tea beverage and/or dairy product/milk in various shape, size and volumes, thickness, depending on the intended applications (col. 12, lines 12-32).
Absent a showing of criticality with respect to the volume/size of the container (a result effective variable), it would have been obvious to a person of ordinary skill in the art to adjust volume/size of the container through routine experimentation in order to achieve the desired properties (volume/size) of the container once produced, which would have arrived at a workable volume/size of the container that falls within the broad range as instantly claimed, i.e., of no more than 5 liters.
Also, absent a showing of criticality with respect to the sidewall thickness of the container (a result effective variable), it would have been obvious to a person of ordinary skill in the art to adjust the sidewall thickness of the container through routine experimentation in order to achieve the desired properties (flexibility, toughness, etc.) of the container once produced, which would have arrived at a workable sidewall thickness of the container that falls within the broad range as instantly claimed, i.e., at least 100 microns; and less than 500 microns of no more than 5 liters. 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.
Claim(s) 7, 9 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over JP 2017030244 to Ishii as applied to claim 1 above, in view of WO 2013/101699 to Dooley et al. (“Dooley”).
The limitations of claim 1 are taught by Ishii as discussed above.
Regarding claim 7, as discussed above in rejection to claim 1, Ishii teaches the inclusion of suitable resins such as cyclic olefin copolymer (COC) and/or cyclic olefin polymers (COP) in the resin for making its container (page 2, fifth para, the inclusion of suitable). Ishii does not specifically teach using cyclic block copolymer (CBC), as instantly claimed.
In the same field of packaging material, Dooley teaches a resin for making packaging/container with good combinations of moisture barrier and toughness (para [0008] [0011]), of which Dooley teaches using suitable cyclic olefin polymers (COP) such as cyclic block copolymer (CBC) (para [0010] [0037] [0065]). Dooley teaches as in one of its embodiments that resin containing cyclic block copolymer (CBC) is suitable for use in blow molding process for making container or bottle (para [0011]).
It would have been obvious to one of ordinary skill in the art to modify the container body of Ishii in view the teachings of Dooley, to select and include suitable cyclic olefin polymers (COP) in the resin blend for making the container body such as cyclic block copolymer (CBC) as taught by Dooley as known suitable cyclic olefin polymers (COP) for making container with good combinations of moisture barrier and toughness as taught by Dooley (para [0008] [0011] [0037] [0065]), which would have predictably arrived at a satisfactory container body that is the same as instantly claimed. One of ordinary skill would have understood how to modify and choose suitable material for intended use. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.05.
Regarding claim 9, as discussed above in rejection to claim 1, Ishii teaches the inclusion of suitable resins such as cyclic olefin copolymer (COC) and/or cyclic olefin polymers (COP) in the resin for making its container (page 2, fifth para, the inclusion of suitable).
Ishii does not specifically teach using cyclic block copolymer (CBC) having the specific structures limitations, as instantly claimed.
In the same field of packaging material, Dooley teaches a resin for making packaging/container with good combinations of moisture barrier and toughness (para [0008] [0011]), of which Dooley teaches using suitable cyclic olefin polymers (COP) such as cyclic block copolymer (CBC) (para [0010] [0037] [0065]). Dooley teaches as in one of its embodiments that resin containing cyclic block copolymer (CBC) is suitable for use in blow molding process for making container or bottle (para [0011]).
Dooley teaches its CBC comprises vinyl aromatic monomer units (para [0039], with styrene, i.e., vinyl aromatic monomer units), wherein the hydrogenation level of each vinyl aromatic monomer unit block is greater than 90% (para [0039], fully hydrogenated); and said CBC includes a conjugated diene monomer unit (para [0039], butadiene unit) and the hydrogenation level of the conjugated diene monomer unit is greater than 95% (para [0039], fully hydrogenated), meeting the claimed limitations.
It would have been obvious to one of ordinary skill in the art to modify the container body of Ishii in view the teachings of Dooley, to select and include suitable cyclic olefin polymers (COP) in the resin blend for making the container body such as cyclic block copolymer (CBC) as taught by Dooley as known suitable cyclic olefin polymers (COP) for making container with good combinations of moisture barrier and toughness as taught by Dooley (para [0008] [0011] [0037] [0065]), which would have predictably arrived at a satisfactory container body that is the same as instantly claimed. One of ordinary skill would have understood how to modify and choose suitable material for intended use. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.05.
Regarding claim 13, Ishii teaches in its container body (Fig. 1, page 2, third para, container body 1),
- a ratio (B) defined as the weight of PET divided by the weight of polymer YY in a layer of the container body is in the range of 4 to 32 (i.e., which is the calculated ratio B, because Ishii teaches mixing 3 to 20% of polymer YY/cyclic olefin copolymer with the polyester resin, so the ratio is 80/20 to 97/3, page 3, last para, page 4, eighth para), which range overlaps with the instantly claimed range of 8 to 32.
- said container body is defined by a single layer (Fig. 1, page 2, third para, and page 4, second para); and
- said container body includes (page 3, last para)
- 97 to 80 wt% of PET (page 3, last para, polyester is the base resin, with 3% to 20% cyclic olefin copolymer), which range overlaps with the instantly claimed range of 88.0 to 94.0 wt% of PET, and
- 3 to 20% of polymer YY/cyclic olefin copolymer (page 3, last para), which range overlaps with the instantly claimed range of 3.0 to 6.0wt% of polymer YY.
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.
Ishii further teaches the inclusion of desired pigments or the like/other ingredients (page 5, sixth para). Ishii does not specifically teach the % amount as instantly claimed.
Ishii teaches the amount of the desired pigments is a result effective variable to provide desired color of the container (page 5, sixth para and seventh para).
Absent a showing of criticality with respect to the amount of the pigments/other ingredients (a result effective variable), it would have been obvious to a person of ordinary skill in the art to adjust the amount through routine experimentation in order to achieve the desired properties of the container once produced, which would have arrived at a workable amount that falls within the broad range as instantly claimed, i.e., 1.0 to 7.0 wt% of other ingredients. 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.
Claim(s) 16, 19, 21, 23-24 and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Ishii as applied to claim 1 above, further in view of WO2019/133713 to Wieloch et al. ("Wieloch").
The limitations of claim 1 are taught by Ishii as discussed above.
Regarding claim 16, Ishii teaches its container body includes (page 3, last para)
- 97 to 80 wt% of PET (page 3, last para, polyester is the base resin, with 3% to 20% cyclic olefin copolymer), which range overlaps with the instantly claimed range of 88.0 to 99.0 wt% of thermoplastic polymers. 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.
Ishii further teaches the inclusion of desired pigments or the like/other ingredients (page 5, sixth para). Ishii does not specifically teach the inclusion of zinc sulphide in the % amount as instantly claimed.
In the same field of packaging material, Wieloch teaches a polyester based resin for making packaging/container (para [0045] [0086] [0088]) that includes suitable pigments/light scattering pigments for providing the container with desired appearance (para [0019]). In particular, Wieloch teaches the inclusion of 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 1 wt% to 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.
It would have been obvious to one of ordinary skill in the art to modify the modified container body of Ishii in view the teachings of Wieloch, to select and include suitable pigments/light scattering pigment such as zinc sulphide as taught by Wieloch for providing the container with desired appearance (para [0019]), which would have predictably arrived at a satisfactory container body that is the same as instantly claimed. One of ordinary skill would have understood how to modify and choose suitable additives for intended use. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.05.
Regarding claims 19 and 21 and 26, Ishii 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. Modified Ishii does not specifically teach the inclusion of a second light shielding pigment as instantly claimed in claims 19 and 21. Modified Ishii does not specifically teach the LT% and L* as instantly claimed in claim 26.
Wieloch also teaches the inclusion of suitable pigments blend including zinc sulphide, and 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 of instant claim 19. 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 less than 0.050 wt% of instant claim 21. 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.
It would have been obvious to one of ordinary skill in the art to modify the modified container body of Ishii in view the teachings of Wieloch, to select and include suitable pigments/light scattering pigments such as zinc sulphide and zinc powder and in the suitable amount as taught by Wieloch for providing the container with desired appearance (para [0019] [0021]), which would have predictably arrived at a satisfactory container body that is the same as instantly claimed as in claims 19 and 21, and that is the same as instantly claimed in claim 26 (i.e., having the light transmission LT% and corresponding L* at the container body and neck portion meeting the claimed limitations See 35 U.S.C. 112(b) rejection of claim 26 made of record in this Office Action.). One of ordinary skill would have understood how to modify and choose suitable additives for intended use. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.05.
Regarding claims 23 and 24, Ishii teaches its container body includes (page 3, last para)
- 97 to 80 wt% of PET (page 3, last para, polyester is the base resin, with 3% to 20% cyclic olefin copolymer), which range overlaps with the instantly claimed range of 88.0 to 93.0 wt% of PET, and
- 3 to 20% of polymer YY/cyclic olefin copolymer (page 3, last para), which range overlaps with the instantly claimed range of 3.0 to 7.0wt% of polymer YY. 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.
Ishii further teaches the inclusion of desired pigments or the like/other ingredients (page 5, sixth para). But Ishii does not specifically teach the inclusion of zinc sulphide and particulate aluminum in the amount as instantly claimed.
In the same field of packaging material, Wieloch teaches a polyester based resin for making packaging/container (para [0045] [0086] [0088]) that includes suitable pigments/light scattering pigments for providing the container with desired appearance (para [0019]). In particular, Wieloch teaches the inclusion of 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 1 wt% to 6 wt% of claim 23, which range overlaps with the instantly claimed range of 2-5wt% of zinc sulphide of claim 24.
Wieloch also teaches the inclusion of suitable pigments blend including zinc sulphide, and may include additional pigments as desired including aluminum trihydrate (para [0021]), considered meeting the claimed limitation of being a particulate aluminum. 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 of claim 23, and which range overlaps with the instantly claimed range of 0.01 to 0.10wt% of particulate aluminum of claim 24. 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.
It would have been obvious to one of ordinary skill in the art to modify the modified container body of Ishii in view the teachings of Wieloch, to select and include suitable pigments/light scattering pigments such as zinc sulphide and aluminum trihydrate and in the suitable amount as taught by Wieloch for providing the container with desired appearance (para [0019]), which would have predictably arrived at a satisfactory container body that is the same as instantly claimed, in claims 23-24. One of ordinary skill would have understood how to modify and choose suitable additives for intended use. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.05.
Claim(s) 42 is rejected under 35 U.S.C. 103 as being unpatentable over JP 2017030244 to Ishii (“Ishii”) as applied to claim 1 above, in view of WO 2013/101699 to Dooley et al. (“Dooley”).
Regarding claim 42, Ishii teaches a container body which comprises a base and a side wall extending from the base (Fig. 1, page 2, third para, container body 1),
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- wherein said container body includes PET (page 2, fifth para, suitable polyester such as PET) and a polymer YY (page 2, fifth para, the inclusion of suitable cyclic olefin copolymer);
- a ratio (B) defined as the weight of PET divided by the weight of polymer YY in a layer of the container body is in the range of 4 to 32 (i.e., which is the calculated ratio B, because Ishii teaches mixing 3 to 20% of polymer YY/cyclic olefin copolymer with the polyester resin, so the ratio is 80/20 to 97/3, page 3, last para, page 4, eighth para), which range overlaps with the instantly claimed range of 15 to 25.
- said container body is defined by a single layer (Fig. 1, page 2, third para, and page 4, second para); and
- said container body includes (page 3, last para)
- 97 to 80 wt% of PET (page 3, last para, polyester is the base resin, with 3% to 20% cyclic olefin copolymer), which range overlaps with the instantly claimed range of 88.0 to 94.0 wt% of PET, and
- 3 to 20% of polymer YY/cyclic olefin copolymer (page 3, last para), which range overlaps with the instantly claimed range of 3.0 to 6.0wt% of polymer YY.
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.
Ishii further teaches the inclusion of desired pigments or the like/other ingredients (page 5, sixth para). Ishii does not specifically teach the % amount as instantly claimed.
Ishii teaches the amount of the desired pigments is a result effective variable to provide desired color of the container (page 5, sixth para and seventh para).
Absent a showing of criticality with respect to the amount of the pigments/other ingredients (a result effective variable), it would have been obvious to a person of ordinary skill in the art to adjust the amount through routine experimentation in order to achieve the desired properties of the container once produced, which would have arrived at a workable amount that falls within the broad range as instantly claimed, i.e., 1.0 to 7.0 wt% of other ingredients. 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.
As discussed above, Ishii teaches the inclusion of suitable resins such as cyclic olefin copolymer (COC) and/or cyclic olefin polymers (COP) in the resin for making its container (page 2, fifth para, the inclusion of suitable). Ishii does not specifically teach using cyclic block copolymer (CBC), as instantly claimed.
In the same field of packaging material, Dooley teaches a resin for making packaging/container with good combinations of moisture barrier and toughness (para [0008] [0011]), of which Dooley teaches using suitable cyclic olefin polymers (COP) such as cyclic block copolymer (CBC) (para [0010] [0037] [0065]). Dooley teaches as in one of its embodiments that resin containing cyclic block copolymer (CBC) is suitable for use in blow molding process for making container or bottle (para [0011]).
It would have been obvious to one of ordinary skill in the art to modify the container body of Ishii in view the teachings of Dooley, to select and include suitable cyclic olefin polymers (COP) in the resin blend for making the container body such as cyclic block copolymer (CBC) as taught by Dooley as known suitable cyclic olefin polymers (COP) for making container with good combinations of moisture barrier and toughness as taught by Dooley (para [0008] [0011] [0037] [0065]), which would have predictably arrived at a satisfactory container body that is the same as instantly claimed. One of ordinary skill would have understood how to modify and choose suitable material for intended use. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.05.
Claim(s) 44-45 are rejected under 35 U.S.C. 103 as being unpatentable over JP 2017030244 to Ishii (“Ishii”) in view of WO 2013/101699 to Dooley et al. (“Dooley”).
Regarding independent claim 44, Ishii teaches a container body which comprises a base and a side wall extending from the base (Fig. 1, page 2, third para, container body 1),
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- wherein said container body includes PET (page 2, fifth para, suitable polyester such as PET) and a polymer YY (page 2, fifth para, the inclusion of suitable cyclic olefin copolymer);
- a ratio (B) defined as the weight of PET divided by the weight of polymer YY in a layer of the container body is in the range of 4 to 32 (i.e., which is the calculated ratio B, because Ishii teaches mixing 3 to 20% of polymer YY/cyclic olefin copolymer with the polyester resin, so the ratio is 80/20 to 97/3, page 3, last para, page 4, eighth para), which range overlaps with the instantly claimed range of 15 to 25.
- said container body is defined by a single layer (Fig. 1, page 2, third para, and page 4, second para); and
- said container body includes (page 3, last para)
- 97 to 80 wt% of PET (page 3, last para, polyester is the base resin, with 3% to 20% cyclic olefin copolymer), which range overlaps with the instantly claimed range of 88.0 to 94.0 wt% of PET, and
- 3 to 20% of polymer YY/cyclic olefin copolymer (page 3, last para), which range overlaps with the instantly claimed range of 3.0 to 6.0wt% of polymer YY.
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.
Ishii further teaches the inclusion of desired pigments or the like/other ingredients (page 5, sixth para). Ishii does not specifically teach the % amount as instantly claimed.
Ishii teaches the amount of the desired pigments is a result effective variable to provide desired color of the container (page 5, sixth para and seventh para).
Absent a showing of criticality with respect to the amount of the pigments/other ingredients (a result effective variable), it would have been obvious to a person of ordinary skill in the art to adjust the amount through routine experimentation in order to achieve the desired properties of the container once produced, which would have arrived at a workable amount that falls within the broad range as instantly claimed, i.e., 1.0 to 7.0 wt% of other ingredients. 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.
As discussed above, Ishii teaches the inclusion of suitable resins such as cyclic olefin copolymer (COC) and/or cyclic olefin polymers (COP) in the resin for making its container (page 2, fifth para, the inclusion of suitable). Ishii does not specifically teach using cyclic block copolymer (CBC), as instantly claimed.
In the same field of packaging material, Dooley teaches a resin for making packaging/container with good combinations of moisture barrier and toughness (para [0008] [0011]), of which Dooley teaches using suitable cyclic olefin polymers (COP) such as cyclic block copolymer (CBC) (para [0010] [0037] [0065]). Dooley teaches as in one of its embodiments that resin containing cyclic block copolymer (CBC) is suitable for use in blow molding process for making container or bottle (para [0011]).
It would have been obvious to one of ordinary skill in the art to modify the container body of Ishii in view the teachings of Dooley, to select and include suitable cyclic olefin polymers (COP) in the resin blend for making the container body such as cyclic block copolymer (CBC) as taught by Dooley as known suitable cyclic olefin polymers (COP) for making container with good combinations of moisture barrier and toughness as taught by Dooley (para [0008] [0011] [0037] [0065]), which would have predictably arrived at a satisfactory container body that is the same as instantly claimed. One of ordinary skill would have understood how to modify and choose suitable material for intended use. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.05.
Regarding claim 45, modified Ishii teaches a container body includes cyclic block copolymer (CBC) (as taught by Dooley).
Dooley teaches its CBC comprises vinyl aromatic monomer units (para [0039], with styrene, i.e., vinyl aromatic monomer units), wherein the hydrogenation level of each vinyl aromatic monomer unit block is greater than 90% (para [0039], fully hydrogenated); and said CBC includes a conjugated diene monomer unit (para [0039], butadiene unit) and the hydrogenation level of the conjugated diene monomer unit is greater than 95% (para [0039], fully hydrogenated), meeting the claimed limitations.
Dooley teaches a resin for making packaging/container with good combinations of moisture barrier and toughness (para [0008] [0011]), of which Dooley teaches using suitable cyclic olefin polymers (COP) such as cyclic block copolymer (CBC) (para [0010] [0037] [0065]). Dooley teaches as in one of its embodiments that resin containing cyclic block copolymer (CBC) is suitable for use in blow molding process for making container or bottle (para [0011]).
It would have been obvious to one of ordinary skill in the art to modify the container body of Ishii in view the teachings of Dooley, to select and include suitable cyclic olefin polymers (COP) in the resin blend for making the container body such as cyclic block copolymer (CBC) as taught by Dooley as known suitable cyclic olefin polymers (COP) for making container with good combinations of moisture barrier and toughness as taught by Dooley (para [0008] [0011] [0037] [0065]), which would have predictably arrived at a satisfactory container body that is the same as instantly claimed. One of ordinary skill would have understood how to modify and choose suitable material for intended use. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.05.
Claim(s) 43 and 46 are rejected under 35 U.S.C. 103 as being unpatentable over Ishii in view of Dooley as applied to claims 1, 42 and 44-45 above, further in view of WO2019/133713 to Wieloch et al. ("Wieloch").
The limitations of claims 1, 42 44-45 are taught by Ishii in view of Dooley as discussed above.
Regarding claims 43 and 46, modified Ishii teaches its container body includes a closure is secured to the container body (page 2, fourth para, Fig. 1), and said container includes a beverage which includes at least 0.1wt% fat and/or is a milk (page 1, third para, page 4, third para, Fig. 1, include liquid content, lotion/fat). Ishii teaches a container body includes (page 3, last para) 97 to 80 wt% of PET (page 3, last para, polyester is the base resin, with 3% to 20% cyclic olefin copolymer), which range overlaps with the instantly claimed range of 88.0 to 93.0 wt% of PET, and
- 3 to 20% of polymer YY/cyclic olefin copolymer (page 3, last para), which range overlaps with the instantly claimed range of 4.0 to 7.0wt% of polymer YY. 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.
Ishii further teaches the inclusion of desired pigments or the like/other ingredients (page 5, sixth para). But Ishii does not specifically teach the inclusion of 2-5wt% zinc sulphide and 0.01 to 0.10wt% of particulate aluminum as instantly claimed.
In the same field of packaging material, Wieloch teaches a polyester based resin for making packaging/container (para [0045] [0086] [0088]) that includes suitable pigments/light scattering pigments for providing the container with desired appearance (para [0019]). In particular, Wieloch teaches the inclusion of 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 2 wt% to 5 wt%.
Wieloch also teaches the inclusion of suitable pigments blend including zinc sulphide, and may include additional pigments as desired including aluminum trihydrate (para [0021]), considered meeting the claimed limitation of being a particulate aluminum. 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 0.1 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.
It would have been obvious to one of ordinary skill in the art to modify the modified container body of Ishii in view the teachings of Wieloch, to select and include suitable pigments/light scattering pigments such as zinc sulphide and aluminum trihydrate and in the suitable amount as taught by Wieloch for providing the container with desired appearance (para [0019]), which would have predictably arrived at a satisfactory container body that is the same as instantly claimed. One of ordinary skill would have understood how to modify and choose suitable additives for intended use. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.05.
Conclusion
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/YAN LAN/Primary Examiner, Art Unit 1782