DETAILED ACTION
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 06 November 2025 has been entered.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Election/Restrictions
Claims 40 and 41 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 23 January 2025.
Claim Rejections - 35 USC § 112
Claims 22, 23, and 25-39 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The phrase "comprising at least by weight of one of more polyolefins based on the total weight of the film" on lines 1-2 of claim 22 renders the claim (as well as claims 23 and 25-33 due to their dependency on claim 22) indefinite since its meaning is unclear.
The phrase "comprising at least by weight of one of more polyolefins based on the total weight of the film" on lines 2-3 of claim 34 renders the claim (as well as claims 35-39 due to their dependency on claim 34) indefinite since its meaning is unclear.
Claim Interpretation
For the purpose of examination, the phrase "comprising at least by weight of one of more polyolefins based on the total weight of the film" is understood to mean that the packaging film of the claims comprises at least 70% by weight of one of more polyolefins based on the total weight of the film. This is how claims 22 and 34 were drafted in the 10 July 2025 response and, while the "70%" was omitted in the claims filed 07 October 2025 (that were not entered) and the claims filed 06 November 2025 (that were entered as part of an RCE), there was no indication - either by brackets or strikethrough - in either response that the applicant intended to delete the term.
While it is noted that this contradicts the limitation on line 17 of claim 22 that the film "comprises at least 90% by weight of one or more polyolefins based on the total weight of the film," it is further noted that this limitation was added in the claims filed 07 October 2025 (that were not entered) and the claims filed 06 November 2025 (that were entered as part of an RCE) without being underlined or any indication that the material was being newly added.
Claim Rejections - 35 USC § 103
Claims 22, 23, 26-31, 34, 37, and 39 are rejected under 35 U.S.C. 103 as obvious over Gautam (GB 2,246,741) in view of Oas et al. (US 4,357,288) and/or Mientus et al. (US 4,588,650).
Gautam is directed to a multilayer thermoplastic film used in packaging (1st paragraph on page 1). In the embodiment of Example 1, the film comprises an A/B/C/B/A configuration wherein the outer A layers are formed from an ethylene propylene terpolymer blended with polypropylene, intermediate adhesive layers B are anhydride-modified ethylene-propylene copolymer, and core layer C is ethylene vinyl alcohol (pages 8-9). The film has a total thickness of about 1 mil (i.e., about 25 mm), with the core making up 15% of the structure (3rd paragraph on page 9). The film has a tensile strength at break of 15,240 psi (i.e., ~1070 kg/cm2) in the longitudinal direction and 14,340 psi (i.e., ~1008 kg/cm2) in the transverse direction (1st paragraph on page 10). The ratio of these tensile strengths at break is about 1.06. The film has a free shrink of 20% in the longitudinal direction and 24% in the transverse direction at 220 oF (i.e., ~104 oC) and a free shrink of 48% in the longitudinal direction and 48% in the transverse direction at 260 oF (i.e., ~127 oC) (2nd paragraph on page 10).
Since (a) the barrier layer comprises 15% of the thickness of the structure, (b) all the layers of the film are formed from ethylenic polymers, and (c) the barrier layer is formed from only ethylene vinyl alcohol, one of ordinary skill in the art would expect resulting film to contain about 15% ethylene vinyl alcohol by weight and about 85 wt% polyolefin.
The terpolymer containing outer layers are heat sealable (6th paragraph on page 10), and the terpolymer is formed from ethylene, propylene, and a comonomer such as butylene (last paragraph on page 7). Propylene is an alpha-olefin while butylene may be an alpha-olefin (i.e., CH2=CH-C2H5) or a beta-olefin (e.g., CH3-CH=CH-CH3). Based on the teachings by Gautam of a limited number of comonomers and the limited number of configurations for butylene, one of ordinary skill in the art would have immediately envisaged a terpolymer composed of ethylene, propylene, and 1-butylene. Alternatively, in the absence of a showing of criticality, it would have been obvious to one of ordinary skill in the art to (a) use any of the explicitly cited comonomers, including butylene, and (b) use any configuration of butylene, including 1-butylene, in the ethylene propylene terpolymer.
Regarding the limitation that film has a gloss value at 60o higher than 100, Gautam teach that the film should have high gloss (second paragraph on page 1). As such, this provides motivation to one of ordinary skill in the art to seek to maximize gloss of the film. Both Oas et al. (column 1, lines 6-13) and Mientus et al. (column 1, lines 8-15) are directed to biaxially oriented, polyolefin packaging laminates and both demonstrate that such laminates may be constructed with 60o glosses over 100 (see Table 1 in Oas et al. and column 4, line 59-column 5, line 3 of Mientus et al.). Therefore, it would have been obvious to one of ordinary skill in the art to seek to maximize 60o gloss based on the teachings of Gautam and one of ordinary skill in the art would have an expectation of success forming films with a 60o gloss over 100 based on the showings of Oas et al. and/or Mientus et al.
The limitations of claim 23 are met since all the polymers in the embodiment of Example 1 are either polyolefins or ethylene vinyl alcohol.
Regarding claim 28, the film of Example 1 in Gautam corresponds to condition (ii) since the film would be expected to have a free shrink greater than 15% at 120 oC if it has both a free shrink of 20% in the longitudinal direction and 24% in the transverse direction at ~104 oC as well as a free shrink of 48% in the longitudinal direction and 48% in the transverse direction at ~127 oC. Moreover since the film appears to be made from the same materials as the instant film and has a tensile strength at break within the range recited in claim 22, one of ordinary skill in the art would expect it to inherently have a maximum shrink tension that satisfies the limitations of claim 28.
Regarding claim 29, an intermediate adhesive layer reads on inner layer d) as it is in direct contact with an outer layer and is formed from a polyolefin.
Regarding claim 37, while Gautam do not disclose the free shrink of higher than 15% at 120 oC, the limitations of this claim are taken to be met since the film is shown to have a free shrink of more than 15% at temperatures just above and just below 120 oC.
Regarding claim 39, Gautam teaches that the multilayer film may be used to package food items that are sensitive to oxygen (2nd paragraph on page 1). One of ordinary skill in the art would immediately envisage employing the packaging film with meat, fish, poultry, cheese, fruits, or vegetables as these foods are known to be sensitive to oxygen. Alternative, it would have required no more than ordinary skill to determine suitable oxygen sensitive foods to package.
Claims 22, 23, 26-31, 34, and 39 are rejected under 35 U.S.C. 103 as obvious over Enzinger et al. (US 2009/0208717) in view of Oas et al. (US 4,357,288) and/or Mientus et al. (US 4,588,650).
Enzinger et al. is directed to a multilayer film having the structure A/B/C/D/C/B/E (paragraph 0024). Layer D comprises an ethylene vinyl alcohol copolymer; layer C is an adhesion promoter layer comprising a modified polypropylene; layer B is a structural layer comprising a partially crystalline thermoplastic polyolefin; outer layers A and E comprising partially crystalline thermoplastic polyolefins (paragraph 0025). Outer layers A and E may be a polybutylene or terpolymer consisting of ethylene, propylene, and butylene (paragraph 0055) having a sealing function (paragraph 0054). The film may be used to package fresh foods (paragraph 0218).
The embodiment of Example 7 comprises a film having layer D formed of 100% ethylene vinyl alcohol (paragraph 0127) and a layer B that is a blend of propylene homopolymer and propylene terpolymer with the resulting film drawn in both the machine and transverse directions (paragraph 0128). The film has an overall thickness of 19 mm with the core having a thickness of about 1.7 mm (paragraph 0129). The film has a tensile strength of 210 N/mm2 longitudinally and 179 N/mm2 transversely (paragraph 0131), i.e., about 2,141 and 1,825 kg/cm2. The film has a modulus of elasticity of 1,830 N/mm2 longitudinally and 1,638 N/mm2 transversely (paragraph 0132). i.e., about 18,660 and 16703 kg/cm2. The elongation at tear of the film is 84% longitudinally and 93% transversely (paragraph 0133). The shrinkage at 120 oC was 13.2% longitudinally and 14.1% transversely (paragraph 0135).
Since (a) the D layer comprises ~9% (i.e., 1.7/19) of the thickness of the structure, (b) all the layers of the film are formed from ethylenic polymers (layers A and E are formed of propylene terpolymers, while layer C formed from anhydride modified polypropylene - paragraphs 0086-0090), and (c) the barrier layer is formed from only ethylene vinyl alcohol copolymer, one of ordinary skill in the art would expect resulting film to contain about 9% ethylene vinyl alcohol copolymer by weight.
It would have been obvious to one of ordinary skill in the art to select any of the disclosed polymers for use as cover layers A and/or E, including polybutylene or an ethylene propylene butylene terpolymer, since Enzinger et al. explicitly teach their use. Alternatively, in the absence of a showing of criticality, it would have been obvious to one of ordinary skill in the art to (a) use any of the explicitly cited comonomers, including butylene, and (b) use any configuration of butylene, including 1-butylene, in the ethylene propylene terpolymer.
Regarding the limitation that film has a gloss value at 60o higher than 100, Enzinger et al. teach that their film should be glossy (paragraph 0020) with a value that should be above 80 (paragraph 0032). As such, this provides motivation to one of ordinary skill in the art to seek to maximize gloss of the film. Both Oas et al. (column 1, lines 6-13) and Mientus et al. (column 1, lines 8-15) are directed to biaxially oriented, polyolefin packaging laminates and both demonstrate that such laminates may be constructed with 60o glosses over 100 (see Table 1 in Oas et al. and column 4, line 59-column 5, line 3 of Mientus et al.). Therefore, it would have been obvious to one of ordinary skill in the art to seek to maximize 60o gloss based on the teachings of Enzinger et al. and one of ordinary skill in the art would have an expectation of success forming films with a 60o gloss over 100 based on the showings of Oas et al. and/or Mientus et al.
The limitations of claim 23 are met since all the polymers in the embodiment of Example 7 are either polyolefins or ethylene vinyl alcohol.
Regarding claim 27, the limitations of this claim are met since the LD:TD ratio of elastic modulus (~1.1), elongation at tear (~0.9), and tensile strength (1.2) are all within 25% with respect to the unit (i.e., 0.75 to 1.25).
Regarding claim 28, the film of Example 7 of Enzinger et al. corresponds to condition (i) since the film has a free shrink greater than 15% at 120 oC in both directions. Since the film appears to be made from the same materials as the instant film and has a tensile strength at break within the range recited in claim 22, one of ordinary skill in the art would expect it to inherently have a maximum shrink tension that satisfies the limitations of claim 28.
Regarding claim 29, a structural layer B reads on inner layer d) as it is in direct contact with an outer layer and is formed from a polyolefin.
Regarding claim 39, Enzinger et al. teaches that their film may be used to package fresh food (paragraph 0218). One of ordinary skill in the art would immediately envisage employing the packaging film with meat, fish, poultry, fruits, or vegetables as these are fresh foods. Alternative, it would have required no more than ordinary skill to determine suitable fresh foods to package.
Claims 22, 23, 25-31, 34, 37, and 39 are rejected under 35 U.S.C. 103 as being unpatentable over Gautam (GB 2,246,741) in view of Yun et al. (US 2018/0099492) as well as Oas et al. (US 4,357,288) and/or Mientus et al. (US 4,588,650).
Gautam is directed to a multilayer thermoplastic film used in packaging (1st paragraph on page 1). In the embodiment of Example 1, the film comprises an A/B/C/B/A configuration wherein the outer A layers are formed from an ethylene propylene terpolymer blended with polypropylene, intermediate adhesive layers B are anhydride-modified ethylene-propylene copolymer, and core layer C is ethylene vinyl alcohol (pages 8-9). The film has a total thickness of about 1 mil (i.e., about 25 mm), with the core making up 15% of the structure (3rd paragraph on page 9). The film has a tensile strength at break of 15,240 psi (i.e., ~1070 kg/cm2) in the longitudinal direction and 14,340 psi (i.e., ~1008 kg/cm2) in the transverse direction (1st paragraph on page 10). The ratio of these tensile strengths at break is about 1.06. The film has a free shrink of 20% in the longitudinal direction and 24% in the transverse direction at 220 oF (i.e., ~104 oC) and a free shrink of 48% in the longitudinal direction and 48% in the transverse direction at 260 oF (i.e., ~127 oC) (2nd paragraph on page 10).
Since (a) the barrier layer comprises 15% of the thickness of the structure, (b) all the layers of the film are formed from ethylenic polymers, and (c) the barrier layer is formed from only ethylene vinyl alcohol, one of ordinary skill in the art would expect resulting film to contain about 15% ethylene vinyl alcohol by weight and about 85 wt% polyolefin.
The terpolymer containing outer layers are heat sealable (6th paragraph on page 10), and the terpolymer is formed from ethylene, propylene, and a comonomer (last paragraph on page 7).
Gautam does not teach the use of an ethylene ethyl acrylate copolymer for the sealing layer or that the film has a 60o gloss value higher than 100.
Yun et al. is directed to a biaxially oriented polyolefin film used as packaging having an outer sealant layer (paragraphs 0001-0004). The sealant layer may be formed of an ethylene acrylate copolymer (paragraph 0047), such as an ethylene ethyl acrylate copolymer (paragraph 0066).
It would have been obvious to one of ordinary skill in the art to use the material of the sealant layer of Yun et al. as the sealable outer layer of Gautam since the courts have held the selection of a known material (e.g., ethylene ethyl acrylate copolymer) based on its suitability for its intended use (e.g., sealant layer of a packaging film) supported a prima facie obviousness determination. See MPEP 2144.07.
Regarding the limitation that film has a gloss value at 60o higher than 100, Gautam teach that the film should have high gloss (second paragraph on page 1). As such, this provides motivation to one of ordinary skill in the art to seek to maximize gloss of the film. Both Oas et al. (column 1, lines 6-13) and Mientus et al. (column 1, lines 8-15) are directed to biaxially oriented, polyolefin packaging laminates and both demonstrate that such laminates may be constructed with 60o glosses over 100 (see Table 1 in Oas et al. and column 4, line 59-column 5, line 3 of Mientus et al.). Therefore, it would have been obvious to one of ordinary skill in the art to seek to maximize 60o gloss based on the teachings of Gautam and one of ordinary skill in the art would have an expectation of success forming films with a 60o gloss over 100 based on the showings of Oas et al. and/or Mientus et al.
The limitations of claim 23 are met since all the polymers in the embodiment of Example 1 are either polyolefins or ethylene vinyl alcohol.
Regarding claim 28, the film of Example 1 in Gautam corresponds to condition (ii) since the film would be expected to have a free shrink greater than 15% at 120 oC if it has both a free shrink of 20% in the longitudinal direction and 24% in the transverse direction at ~104 oC as well as a free shrink of 48% in the longitudinal direction and 48% in the transverse direction at ~127 oC. Moreover since the film appears to be made from the same materials as the instant film and has a tensile strength at break within the range recited in claim 22, one of ordinary skill in the art would expect it to inherently have a maximum shrink tension that satisfies the limitations of claim 28.
Regarding claim 29, an intermediate adhesive layer reads on inner layer d) as it is in direct contact with an outer layer and is formed from a polyolefin.
Regarding claim 37, while Gautam do not disclose the free shrink of higher than 15% at 120 oC, the limitations of this claim are taken to be met since the film is shown to have a free shrink of more than 15% at temperatures just above and just below 120 oC.
Regarding claim 39, Gautam teaches that the multilayer film may be used to package food items that are sensitive to oxygen (2nd paragraph on page 1). One of ordinary skill in the art would immediately envisage employing the packaging film with meat, fish, poultry, cheese, fruits, or vegetables as these foods are known to be sensitive to oxygen. Alternative, it would have required no more than ordinary skill to determine suitable oxygen sensitive foods to package.
Claims 22, 23, 25-31, 34, and 39 are rejected under 35 U.S.C. 103 as being unpatentable over Enzinger et al. (US 2009/0208717) in view of Yun et al. (US 2018/0099492) as well as Oas et al. (US 4,357,288) and/or Mientus et al. (US 4,588,650).
Enzinger et al. is directed to a multilayer film having the structure A/B/C/D/C/B/E (paragraph 0024). Layer D comprises an ethylene vinyl alcohol copolymer; layer C is an adhesion promoter layer comprising a modified polypropylene; layer B is a structural layer comprising a partially crystalline thermoplastic polyolefin; outer layers A and E comprising partially crystalline thermoplastic polyolefins (paragraph 0025). Outer layers A and E may be having a sealing function (paragraph 0054). The film may be used to package fresh foods (paragraph 0218).
The embodiment of Example 7 comprises a film having layer D formed of 100% ethylene vinyl alcohol (paragraph 0127) and a layer B that is a blend of propylene homopolymer and propylene terpolymer with the resulting film drawn in both the machine and transverse directions (paragraph 0128). The film has an overall thickness of 19 mm with the core having a thickness of about 1.7 mm (paragraph 0129). The film has a tensile strength of 210 N/mm2 longitudinally and 179 N/mm2 transversely (paragraph 0131), i.e., about 2,141 and 1,825 kg/cm2. The film has a modulus of elasticity of 1,830 N/mm2 longitudinally and 1,638 N/mm2 transversely (paragraph 0132). i.e., about 18,660 and 16703 kg/cm2. The elongation at tear of the film is 84% longitudinally and 93% transversely (paragraph 0133). The shrinkage at 120 oC was 13.2% longitudinally and 14.1% transversely (paragraph 0135).
Since (a) the D layer comprises ~9% (i.e., 1.7/19) of the thickness of the structure, (b) all the layers of the film are formed from ethylenic polymers (layers A and E are formed of propylene terpolymers, while layer C formed from anhydride modified polypropylene - paragraphs 0086-0090), and (c) the barrier layer is formed from only ethylene vinyl alcohol copolymer, one of ordinary skill in the art would expect resulting film to contain about 9% ethylene vinyl alcohol copolymer by weight.
It would have been obvious to one of ordinary skill in the art to select any of the disclosed polymers for use as cover layers A and/or E, including polybutylene or an ethylene propylene butylene terpolymer, since Enzinger et al. explicitly teach their use. Alternatively, in the absence of a showing of criticality, it would have been obvious to one of ordinary skill in the art to (a) use any of the explicitly cited comonomers, including butylene, and (b) use any configuration of butylene, including 1-butylene, in the ethylene propylene terpolymer.
Enzinger et al. do not teach the use of an ethylene (meth)acrylate copolymer as the sealing layer or that the film has a 60o gloss value higher than 100.
Yun et al. is directed to a biaxially oriented polyolefin film used as packaging having an outer sealant layer (paragraphs 0001-0004). The sealant layer may be formed of an ethylene acrylate copolymer (paragraph 0047), such as an ethylene ethyl acrylate copolymer (paragraph 0066).
It would have been obvious to one of ordinary skill in the art to use the material of the sealant layer of Yun et al. as the sealable outer layer of Enzinger et al. since the courts have held the selection of a known material (e.g., ethylene ethyl acrylate copolymer) based on its suitability for its intended use (e.g., sealant layer of a packaging film) supported a prima facie obviousness determination. See MPEP 2144.07.
Regarding the limitation that film has a gloss value at 60o higher than 100, Enzinger et al. teach that their film should be glossy (paragraph 0020) with a value that should be above 80 (paragraph 0032). As such, this provides motivation to one of ordinary skill in the art to seek to maximize gloss of the film. Both Oas et al. (column 1, lines 6-13) and Mientus et al. (column 1, lines 8-15) are directed to biaxially oriented, polyolefin packaging laminates and both demonstrate that such laminates may be constructed with 60o glosses over 100 (see Table 1 in Oas et al. and column 4, line 59-column 5, line 3 of Mientus et al.). Therefore, it would have been obvious to one of ordinary skill in the art to seek to maximize 60o gloss based on the teachings of Enzinger et al. and one of ordinary skill in the art would have an expectation of success forming films with a 60o gloss over 100 based on the showings of Oas et al. and/or Mientus et al.
The limitations of claim 23 are met since all the polymers in the embodiment of Example 7 are either polyolefins or ethylene vinyl alcohol.
Regarding claim 27, the limitations of this claim are met since the LD:TD ratio of elastic modulus (~1.1), elongation at tear (~0.9), and tensile strength (1.2) are all within 25% with respect to the unit (i.e., 0.75 to 1.25).
Regarding claim 28, the film of Example 7 of Enzinger et al. corresponds to condition (i) since the film has a free shrink greater than 15% at 120 oC in both directions. Since the film appears to be made from the same materials as the instant film and has a tensile strength at break within the range recited in claim 22, one of ordinary skill in the art would expect it to inherently have a maximum shrink tension that satisfies the limitations of claim 28.
Regarding claim 29, a structural layer B reads on inner layer d) as it is in direct contact with an outer layer and is formed from a polyolefin.
Regarding claim 39, Enzinger et al. teaches that their film may be used to package fresh food (paragraph 0218). One of ordinary skill in the art would immediately envisage employing the packaging film with meat, fish, poultry, fruits, or vegetables as these are fresh foods. Alternative, it would have required no more than ordinary skill to determine suitable fresh foods to package.
Claims 32, 33, 35, 36, and 38 are rejected under 35 U.S.C. 103 as being unpatentable over Enzinger et al. (US 2009/0208717) in view of Mumpower et al. (US 2004/0016208) as well as Oas et al. (US 4,357,288) and/or Mientus et al. (US 4,588,650) and optionally Yun et al. (US 2018/0099492).
Enzinger et al. taken in view of Oas et al. and/or Mientus et al., alone or in combination with Yun et al., suggest all the limitations of claims 32, 33, 35, 36, and 38, as outlined above, except for the structure of the package.
Mumpower et al. is directed to a packaging film used in packaging fresh meat (paragraphs 0001-0002). Mumpower et al. illustrate a package formed by sealing a multilayer film having a barrier layer to a support member (paragraph 0026). The support member may be rigid or semi-rigid (paragraph 0133) and formed from polyethylene terephthalate, polypropylene, or polyethylene (paragraph 0135).
It would have been obvious to one of ordinary skill in the art to employ the film of Enzinger et al. in a packaging design as shown by Mumpower et al. since the design is known to be suitable for packaging fresh food.
Regarding claim 32, the support member - which may be formed from polyethylene or polypropylene - corresponds to the second film.
Regarding claims 35 and 38, employing the film of Enzinger et al. in a package configured as shown in Mumpower et al. would result in the sealing layer to be facing the product (Figure 1).
Response to Arguments
Applicant’s arguments with respect to claims 22, 23, and 25-39 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RAMSEY E ZACHARIA whose telephone number is (571)272-1518. The best time to reach the examiner is weekday afternoons, Eastern time.
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/RAMSEY ZACHARIA/Primary Examiner, Art Unit 1787