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 .
DETAILED ACTION
All the references cited in the International Search Report have been considered. None is anticipatory or meet the amended claims.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Claim(s) 1-8 and 10-14 is(are) rejected under 35 U.S.C. 103(a) as being unpatentable over Nilsen et al. (US 20080269421) in view of Kela et al. (US 20170327678).
As to claims 1-8 and 10-14, Nilsen (abs., claims, examples,1, 18) discloses an extruded film layer comprising a multimodal ethylene copolymer an extruded film layer comprising a multimodal ethylene copolymer. The multimodal ethylene copolymer comprises 41-50wt% of ethylene/a-olefin copolymer A and 59-41 wt% ethylene/a-olefin (C4-10) copolymer B. The copolymer B has a MFR2 of 0.5-5 g/10 min, a density lower of 0.9-0.93 (overlapping with the range of claim 11) and 3.3-5.5 mol% of (C4-10) a-olefin (embracing comonomer species of C7-10 a-olefin. The range of.3-5.5 mol% in copolymer B does not overlap but close to the claimed range of 5.6-10 mol% of claim 1. A prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985).
Nilsen is silent on the claimed ethylene/a-olefin copolymer A.
In the same area of endeavor of producing an extruded film layer comprising a multimodal ethylene copolymer, Kela (abs., claims, examples,1,17-18, 28, 41) discloses a copolymer of ethylene/butene/hexene (0.2-0.6 mol%, overlapping with the range of claim 4) having MFR2=13-30/10 min. The copolymer shows improved hot tack properties, sealing initiation temperature, haze, and processibility.
Therefore, as to claims 1-8 and 10-14, it would have been obvious to one of ordinary skill in the art to have modified the composition disclosed by Nilsen and replaced the copolymer A with Kela’s ethylene/butene/hexene copolymer, because the resultant process would yield improved hot tack properties, sealing initiation temperature, haze, and processibility. The resultant blend would be expected to yield the total comonomer range of claim 1 because of the disclosed comonomer mol% of wt% of copolymer A and B. The resultant ratio of MFR2s of copolymer A to copolymer B would overlap with the range of claim 10. It has been found that where claimed ranges overlap ranges disclosed by the prior art, a prima facie case of obviousness exists - see MPEP 2144.05.
Nilsen is silent on the process limitation of “blown” of claim 14 and all process limitations including the catalysts of claim 12 However, claim(s) 12 and 14 is(are) product-by-process claims that are limited by and defined by the product. Determination of patentability is based on the product itself, not on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 777 F. 2d 695, 698,277 USPQ 964,966 (Fed. Cir. 1985). See MPEP § 2113.
The references are silent on the claimed MFR2 of claim 3, the density of 5, the Tm of claim 6, the sealing initiation temperature of claim 7, and the Tm difference of claim 8. Accordingly, the examiner recognizes that not all of the claimed effects or physical properties are positively stated by the references. However, the references teach a composition containing the claimed components in the claimed amounts prepared by substantially similar components. Therefore, one of ordinary skill would have a reasonable expectation that the claimed and aforementioned effects and physical properties, would necessarily flow from a composition containing all of the claimed components in the claimed amounts prepared by a substantially similar process. 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. See In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977); In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990); see also MPEP § 2112.01(I)-(II). If it is the applicant’s position that this would not be the case: (1) applicant must provide evidence to support the applicant’s position, and (2) it would be the examiner’s position that the application contains inadequate disclosure on how to obtain the claimed effects or properties with only the claimed components in the claimed amounts by the disclosed or claimed process.
Allowable Subject Matter
The following is an examiner's statement of reasons for allowance:
Claim(s) 9 is(are) objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claim(s) is(are) allowable over the closest prior art: Nilsen et al. (US 20080269421) in view of Kela et al. (US 20170327678).
Nilsen (9) discloses the Mw/Mn of the blend is 7-17, teaching away from the claimed range.
Therefore, claims 9 is(are) allowable.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance”.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHANE FANG whose telephone number is (571)270-7378. The examiner can normally be reached on Mon-Thurs. 8am-6pm. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Randy Gulakowski can be reached on 571.572.1302. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/SHANE FANG/Primary Examiner, Art Unit 1766