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 .
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-11 are rejected under 35 U.S.C. 103 as being unpatentable over Fan et al. (US-20200079060-A1) (previously cited) in view of Carespodi et al. (US-20060141241-A1) (previously cited).
Regarding claim 1, Fan teaches a multilayer package comprising a first layer comprising predominantly polyester (substrate), a second layer (cover layer) comprising predominately polyethylene polymers, and a cohesive sealant layer (seal layer) directly adhered to both the first and second layers (Fan, Abstract, Par. 0001-0002, 0005-0008, 0023-0024, and 0029-0030). Fan teaches that the cohesive sealant layer comprises 20-75 wt.% LLDPE and 25-80 wt.% compatibilizer (EVA) (Fan, Par. 0007, 0017-0018, and 0022), which overlaps the claimed range of 5-65 wt.% and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I. Fan’s EVA satisfies the limitation of a compatibilizer as it is given as an example of one by the instant claim 5. Fan teaches the cohesive sealant layer has an opening strength (peel strength) according to ASTM F88 of from 1-20 N/15mm (0.38 to 7.61 lbf/in) including from 1.5-8 N/15mm (0.57-3.04 lbf/in) (Fan, Par. 0041-0042), which lies within the claimed range of between 0.4 and 3.4 lbf/in and therefore satisfies the claimed range, see MPEP 2131.03. Although Fan measures opening strength with a method that is different from the claimed method (i.e. using a strip of 15 mm without stating the crosshead speed), one of ordinary skill in the art would readily understand that differences between the two different methods would yield minor and obvious differences as they are both measured according to ASTM F88, and that if Fan’s package was also measured with the claimed method, it would still yield an opening strength that renders obvious the claimed opening strength (see MPEP 2143).
Fan is silent regarding the cohesive sealant layer comprising between 35-65 wt.% polyester.
Carespodi teaches a packaging material comprising a peelable breakaway layer that functions by cohesive failure, wherein the peelable breakaway layer comprises a branched polyolefin such as LLDPE or EVA, and further comprises 5-40 wt.% of a filler such as a polyester (PET) (Carespodi, Abstract, Par. 0001, 0007-0010, and 0042-0046), which overlaps the claimed range of 35-65 wt.% and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Fan and Carespodi are analogous art as they both teach packaging materials comprising a peelable layer which comprises LLDPE or EVA. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have included PET in the cohesive sealant layer of Fan as taught by Carespodi. This would allow for cohesive failure of the cohesive sealant layer and an easy open packaging material (Carespodi, Par. 0009-0010 and 0047).
Regarding the limitation of the opening strength according to ASTM F88 with a crosshead speed of 10 inches per minute, using a 1-inch wide sample, Fan teaches the cohesive sealant layer has an opening strength (peel strength) according to ASTM F88 of from 1-20 N/15mm (0.38 to 7.61 lbf/in) including from 1.5-8 N/15mm (0.57-3.04 lbf/in) (Fan, Par. 0041-0042), which lies within the claimed range of between 0.4 and 3.4 lbf/in and therefore satisfies the claimed range, see MPEP 2131.03. Furthermore, modified Fan teaches a cohesive sealant layer that is identical or substantially identical to the claimed cohesive sealant layer, comprising an amount of polyester, polyethylene, and compatibilizer that renders obvious the amount of the instant claims 1-2 as stated above for claim 1 and below for claim 2, and teaches the same compatibilizer as stated above. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977), see MPEP 2112.01. Therefore, although modified Fan measures opening strength with a method that is different from the claimed method (i.e. using a strip of 15 mm without stating the crosshead speed), one of ordinary skill in the art would readily understand that differences between the two different methods would yield minor and obvious differences as they are both measured according to ASTM F88, and that if modified Fan’s package was also measured with the claimed method, it would still yield an opening strength that renders obvious the claimed opening strength (see MPEP 2112.01 & 2143).
Regarding the limitation of the bond strength of the cohesive sealant layer to the first and second layers in relation to the opening strength, as the cohesive sealant layer of modified Fan exhibits cohesive failure when opened, this results in a continuous portion of the cohesive sealant layer remaining adhered on each of the first and second layer and thus also having an opening strength that is less than the bond strength to the first and second layer (See also, Carespodi Fig. 3). Therefore, modified Fan satisfies the claimed limitation.
Regarding claim 2, modified Fan teaches the cohesive sealant layer comprises 20-75 wt.% of polyethylene polymers (LLDPE) (Fan, Par. 0007 and 0017), which overlaps the claimed range of between 5-40 wt.% and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Regarding claim 3, modified Fan teaches the polyester of the first layer and the polyester of the cohesive sealant layer is polyethylene terephthalate (PET) (Fan, Par. 0005; Carespodi, Par. 0046).
Regarding claim 4, modified Fan teaches the cohesive sealant layer exhibits cohesive failure as stated above for claim 1 (Carespodi, Par. 0009-0010 and 0047). This results in an intra-film cohesive strength that is less than 100% of the bond strength of the cohesive sealant layer to each of the first and second layers, which overlaps the claimed range of not more than 90% and therefore establishes a prima face case of obviousness over the claimed range, see MPEP 2144.05, I.
Regarding claim 5, modified Fan teaches that the compatibilizer is ethylene vinyl acetate (Fan, Par. 0007).
Regarding claim 6, modified Fan teaches the polyester of the first layer is polyethylene terephthalate (Fan, Par. 0005) and does not state that other polyesters are used and therefore teaches the polyester is 100 wt.% PET, which lies within the range of at least 90 wt.% and therefore satisfies the claimed range, see MPEP 2131.03.
Regarding claim 7, modified Fan teaches the polyethylene polymers of the second layer comprises predominantly LLDPE (Fan, Par. 0029-0031 and 0055).
Regarding claim 8, modified Fan teaches the polyethylene polymers of the cohesive sealant layer comprise LLDPE (Fan, Par. 0007).
Regarding claims 9-11, modified Fan is silent regarding the first layer being a rigid or semi-rigid tray as required by claims 9-10, and is silent regarding the second layer being flexible as required by claim 11.
Carespodi teaches a flexible multilayer film for packaging, wherein the multilayer film is a flexible film that is used as a lidding film and sealed onto a rigid or semi-rigid tray (Carespodi, Par. 0001-0002, 0014, 0016, 0017, 0047, Fig. 1, and Fig. 3). A semi-rigid tray would have some flexibility and thus satisfy the limitation of a flexible film.
Modified Fan and Carespodi are analogous art as they both teach multilayer films for packaging that are sealed onto a substrate. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have created the multilayer package of modified Fan to have the first layer (substrate) be a rigid or semi-rigid tray, and use the second layer and cohesive sealant layer as a flexible lidding film. This would allow for a sealable container for a foodstuff (Carespodi, Par. 0002).
Claims 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over Fan et al. in view of Carespodi et al. as applied to claims 1 and 9-11 above, further in view of Caldwell et al. (US-20100270330-A1).
Regarding claim 12, modified Fan teaches all of the elements of the claimed invention as stated above for claim 1. Modified Fan is silent regarding a fluid sealed within the package.
Caldwell teaches a multilayer packaging comprising a tray and a lidding film sealed to the tray, wherein the package comprises a fluid (condiment) sealed within the package (Caldwell, Abstract, Abstract, Par. 0012-0013, and Fig. 1).
Modified Fan and Caldwell are analogous art as they both teach multilayer packaging comprising a tray and a lidding film sealed to the tray. It would have been obvious to one of ordinary skill in the art before the effective filing date to have sealed a fluid into the package of modified Fan as taught by Caldwell. This would allow for an easy open, sealed, condiment container (Fan, Abstract; Caldwell, Abstract and Par. 0012-0013).
Regarding claim 13, modified Fan teaches a fluid sealed within the package (Caldwell, Abstract and Par. 0012-0013). Modified Fan further teaches that the cohesive sealant layer exhibits cohesive failure when opened, leaving a portion of the cohesive sealant layer on the second layer and a portion on the first layer (Carespodi, Par. 0009-0010 and 0047). This results in a fluid pathway created within the cohesive sealant layer allowing for the fluid to exit the package through the fluid pathway when the package is subjected to a force greater than the opening strength.
Regarding claim 14, modified Fan teaches that the first layer and the second layer are separated by the cohesive sealant layer along a portion of a surface of the second layer (Fan, Abstract, Par. 0001-0002, 0005-0008, 0023-0024, and 0029-0030).
Modified Fan is silent regarding the first and second layers being in contact with each other along another portion of a surface of the second layer.
Caldwell teaches a PET tray with a multilayered lidding film sealed thereon, wherein the multilayer lidding film comprises an outer layer and a sealant layer or adhesive layer that seals to the PET tray (Caldwell, Abstract, Par. 0012-0016, 0072-0075, 0084, and table 1). Caldwell teaches the sealant layer or adhesive is not present at the edge of the lidding film, or at a portion at a tip of the lidding film to allow for a pull tab, which leaves a portion of the PET tray in contact with outer layer of the lidding film (Caldwell, Par. 0021, 0084-0085, 0110, and Fig. 28).
Modified Fan and Caldwell are analogous art as they both teach PET trays with a multilayer lidding film sealed thereon. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have left a portion of a surface of the second layer of modified Fan without the cohesive sealant layer. This would allow for an unsealed portion that can act as a pull tab, as well as allow for additional tolerance for cutting packages (Caldwell, Par. 0021, 0084-0085 and 0110).
This would further result in the first layer and the second layer of modified Fan to be in contact with each other along a first portion of a surface of the second layer and separated by the cohesive sealant layer along a second portion of the surface of the second layer.
Claims 15-18 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Compton et al. (US-20170225192-A1) in view of Carespodi et al. and Toni et al. (US-20200331242-A1).
Regarding claim 15, Compton teaches a multilayer structure comprising a flexible film (pouch) comprising an inner layer (bulk layer, 74) comprising polyethylene (Compton, Abstract, Par. 0004-0007, 0212, 0249, 0257-0260). Compton teaches the structure comprises a rigid or semi-rigid insert (label) comprising a layer (56) that may comprise any suitable polymeric material (Compton, Par. 0222, 0252-0257, and Fig. 8). Compton teaches a cohesive sealant layer (peelable sealant, 53) having two sides which are directly adhered to the inner layer of the flexible film on one side and direct adhered to the layer (56) of the rigid or semi-rigid insert on the other side (Compton, Par. 0252-0254, and Fig. 8). Compton teaches the cohesive sealant layer may comprise a compatibilizer (EVA) (Compton, Par. 0252-0254). Compton’s EVA satisfies the limitation of a compatibilizer as it is given as an example of one by the instant claim 5. Compton teaches the cohesive sealant layer has an opening strength of 0.5-5 lbf/in as measured by ASTM F88 (Compton, Par. 0219), which overlaps the claimed range of between 0.4 and 3.4 lbf/in and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I. Although Compton measures opening with a method that is different from the claimed method (i.e., does not specify the crosshead speed sample width), one of ordinary skill in the art would readily understand that differences between the two different methods would yield minor and obvious differences as they are both measured according to ASTM F88, and that if Compton’s package was also measured with the claimed method, it would still yield an opening strength that renders obvious the claimed opening strength (see MPEP 2143). Compton teaches the frangible seal ruptures or exhibits cohesive failure under applied pressure (Compton, Par. 0219 and 0254), which would result in a continuous portion of the cohesive sealant layer remaining adhered on each of the first and second layer and thus also having an opening strength that is less than the bond strength to the first and second layer. Therefore, Compton satisfies the claimed limitation. Compton further teaches the packaging is used for food packaging (Compton, Par. 0002 and 0229).
Compton is silent regarding the content of the compatibilizer in the cohesive sealant being from 5-65 wt.% and is silent regarding the cohesive sealant layer comprising between 25-65 wt.% polyester.
Carespodi teaches a packaging material comprising a peelable breakaway layer that functions by cohesive failure, wherein the peelable breakaway layer comprises a branched polyolefin such as EVA, and further comprises 5-40 wt.% of a filler such as a polyester (PET) (Carespodi, Abstract, Par. 0001, 0007-0010, and 0042-0046), which overlaps the claimed range of 25-65 wt.% and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Compton and Carespodi are analogous art as they both teach packaging materials comprising a peelable layer which comprises EVA. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have included PET in the cohesive sealant layer of Compton as taught by Carespodi. This would allow for cohesive failure of the cohesive sealant layer and an easy open packaging material (Carespodi, Par. 0009-0010 and 0047).
Modified Compton is silent regarding the layer of the rigid or semi-rigid insert comprising polyester.
Toni teaches a multilayer film for food packaging comprising a peelable layer comprising EVA and an adjacent layer comprising predominately a polyester (Toni, Abstract, Par. 0011-0020, and 0028-0029).
Modified Compton and Toni are analogous art as they both teach food packaging comprising a peelable layer which comprises EVA and an adjacent polymeric layer. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used polyester as the material for the layer of the rigid or semi-rigid insert of modified Compton. This would allow for an easy-open container with materials suitable for use in a food container (Compton, Abstract, and Par. 0011-0020).
Regarding the limitation of the opening strength according to ASTM F88 with a crosshead speed of 10 inches per minute, using a 1-inch wide sample, modified Compton teaches the cohesive sealant layer has an opening strength of 0.5-5 lbf/in as measured by ASTM F88 (Compton, Par. 0219), which overlaps the claimed range of between 0.4 and 3.4 lbf/in and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I. Furthermore, modified Compton teaches a cohesive sealant layer that is identical or substantially identical to the claimed cohesive sealant layer, comprising an amount of polyester, polyethylene, and compatibilizer that renders obvious the amount of the instant claims as stated above, and teaches the same compatibilizer as stated above. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977), see MPEP 2112.01. Therefore, although modified Compton measures opening with a method that is different from the claimed method (i.e., does not specify the crosshead speed sample width), one of ordinary skill in the art would readily understand that differences between the two different methods would yield minor and obvious differences as they are both measured according to ASTM F88, and that if modified Compton’s package was also measured with the claimed method, it would still yield an opening strength that renders obvious the claimed opening strength (see MPEP 2112.01 & 2143).
Regarding claim 16, modified Compton teaches that the rigid or semi-rigid insert is a multilayer structure further comprising a layer (permanent sealant, 51) comprising predominately polyethylene polymers (Compton, Par. 0252-0253 and Fig. 8).
Regarding claim 17, modified Compton teaches the flexible film forms a pouch having a tip and the rigid or semi-rigid insert is positioned proximal the tip (Compton, Par. 0252 and Fig. 8).
Regarding claim 18, modified Compton teaches the layer comprising predominately polyethylene polymers of the rigid or semi-rigid insert is directly adhered to a portion of the inner layer of the flexible film (Compton, Par. 0252 and Fig. 8).
Regarding claim 20, modified Compton teaches the cohesive sealant layer has an opening strength of 0.5-5 lbf/in (Compton, Par. 0219), which overlaps the claimed range of less than 2.0 lbf/in and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Response to Arguments
Applicant’s remarks and amendments filed 25 February 2026 have been fully considered.
Applicant request withdrawal of the objections and rejections under 35 USC § 112 set forth in the previous office action.
The objections and rejections under 35 USC § 112 set forth in the previous office action have been withdrawn due to the present claim amendments.
Regarding Applicant’s arguments directed to the rejections over prior art, on pages 8-9 of the remarks, Applicant first argues that Fan teaches away from including additional materials such as the filler PET of Carespodi. This is not found persuasive for the following reasons:
Applicant states that Fan teaches a specific composition for a seal layer and thus one of ordinary skill in the art would not include additional materials. However, Fan does not state that additional materials cannot be included in the seal layer. In fact, Fan specifically teaches that additives, such as fillers, can be included in the seal layer (Fan, Par. 0040). No were in Fan does it teach that additional materials cannot be utilized or that PET cannot be added to the seal layer.
Applicant states that including the PET of Carespodi would increase the sealing temperature to a value not suitable for Carespodi. However, Applicant does not provide any objective evidence that including the PET of Carespodi would increase the sealing temperature above the amount of Fan of 80-150°C (Fan, Par. 0007). Applicant states that PET has a melt temperature above that range, such as around 260°C, but does not provide evidence that the seal temperature of the seal layer of modified Fan, including the PET, would result in a seal layer that seals at that temperature range.
Therefore, Fan does not teach away from including additional materials, such as the filler PET of Carespodi and Applicant’s argument is unpersuasive.
Secondly, on pages 10-12 of the remarks, Applicant argues that Carespodi teaches a broad amount of suitable filler and it would not have been obvious to one of ordinary skill in the art to have selected PET from the fillers without improper hindsight. This is not found persuasive for the following reasons.
Carespodi teaches suitable fillers for the layer, including PET (Carespodi, Par. 0046). While Carespodi teaches other possible materials for the filler, it is the examiner’s position that the amount of filler options is not so large as to not have been obvious to one of ordinary skill in the art to select PET from the list. It is further noted that when the species is clearly named, the species claim is anticipated no matter how many other species are additionally named. See Ex parte A, 17 USPQ2d 1716 (Bd. Pat. App. & Inter. 1990), see MPEP 2131.02, II.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). As stated above, Carespodi specifically teaches PET and therefore no knowledge gleaned only from Applicant’s disclosure was utilized in selecting PET.
In view of the above, Carespodi specifically teaches PET and Applicant’s argument is unpersuasive.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THOMAS J KESSLER JR whose telephone number is (571)272-3075. The examiner can normally be reached 7:30-5:30 M-Th.
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/THOMAS J KESSLER/Examiner, Art Unit 1782
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