DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
Applicant’s amendment filed on 01/27/2026 is acknowledged. The previous rejection is maintained in this office action. Claims 1-20 are examined on the merits in this office action.
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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.
Claims 1 and 4-20 are rejected under 35 U.S.C. 103 as being unpatentable over Yamada et al. (US 2021/0347148 A1) in view of Avakian (US 2008/0188587 A1).
Regarding claims 1, 6-11, and 14-19, Yamada et al. discloses packaging material (see paragraph 0001) comprising a heat-sealable laminate (film) comprising gas barrier layer, i.e. functional layer, adhesive resin layer, i.e. tie layer, and heat seal layer (see paragraph 0017). The heat seal layer includes a first heat seal layer 14 (corresponding to claimed second heat seal layer) and second heat seal layer 15 (corresponding to claimed first heat seal layer) (see paragraph 0080). The first heat seal layer 14 has a thickness of 5-50 microns (see paragraph 0109). The second heat seal layer 15 is an exterior layer (See Figure 2). The heat seal layers comprises polyolefin (see paragraph 0097).
Yamada et al. does not disclose first heat seal layer (corresponding to second heat seal layer of Yamada et al.) as presently claimed.
Avakian discloses film (see paragraph 0094) comprising a blend of polyolefin nanocomposite and polyamide nanocomposite (see paragraph 0006), wherein the polyolefin nanocomposite serves as a continuous phase, i.e. matrix, with the polyamide nanocomposite serving as a discontinuous phase, i.e. polyamide is dispersed in the polyolefin (abstract). Both the polyolefin nanocomposite and the polyamide nanocomposite comprise nanoclay (see paragraph 0014). The nanoclay is exfoliated with an organic intercalate, i.e. organically modified clay (see paragraphs 0012-0013). The film comprises 60-80% polyolefin nanocomposite and 20-40% polyamide nanocomposite (Table 1), wherein the polyolefin nanocomposite comprises 0.5-50% nanoclay and the polyamide nanocomposite comprises 1-50% nanoclay (see paragraphs 0021 and 0032). Therefore, the film comprises 10-40% ((1-0.5)*20 - (1-0.01)*40) polyamide and 0.7% (60*0.005 + 40*0.01) – 50% (80*0.5 + 20*0.5) nanoclay. The polyamide includes nylon 6 (see paragraph 0029) and the polyolefin includes LLDPE, EVA, and LDPE (see paragraph 0017). The blend of polyolefin nanocomposite and polyamide nanocomposite provides better properties than using either polyolefin or polyamide alone including have improved thermal properties (see paragraph 0009).
In light of motivation for using blend of polyolefin nanocomposite and polyamide nanocomposite disclosed by Avakian as described above, it therefore would have been obvious to one of the ordinary skill in the art to use blend of polyolefin nanocomposite and polyamide nanocomposite instead of polyolefin in the first heat seal layer (i.e. second heat seal layer) of Yamada et al. in order to provide improved thermal properties, and thereby arrive at the claimed invention.
Regarding claims 4 and 5, Yamada et al. in view of Avakian disclose the film as set forth above. Yamada et al. in view of Avakian do not disclose the film provides a peel strength as presently claimed. However, given that the film of Yamada et al. in view of Avakian is identical to that presently claimed, it is inherent or obvious that the film of Yamada et al. in view of Avakian provides a peel strength as presently claimed.
Regarding claims 12 and 13, Yamada et al. in view of Avakian disclose the film as set forth above. Further, Avakian disclose that the film also comprises 1-10 wt% compatibilizer based on the amount of polyamide composite, i.e. 0.2 to 4 w% (0.2*1 – 0.4*10) (see paragraph 0038).
Regarding claim 20, Yamada et al. disclose the package is filled with its contents and then sealed (see paragraphs 0455-0456). Accordingly, Yamada et al. disclose a package structure to define an interior space, and wherein the product is disposed in the interior space.
Claims 2 and 3 are rejected under 35 U.S.C. 103 as being unpatentable over Yamada et al. (US 2021/0347148 A1) in view of Avakian (US 2008/0188587 A1) as applied to claim 1 above, further in view of Hsiao et al. (US 2003/0153659 A1 cited in IDS).
Regarding claims 2 and 3, Yamada et al. in view of Avakian disclose the film as set forth above. Yamada et al. in view of Avakian do not disclose the d-spacing of the organically modified nanoclay as presently claimed.
Hsiao et al. disclose a polyolefin-based nanocomposite comprising matrix polymer of polyolefin such as polyethylene, organically modified nanoclay having d-spacing of greater than 30 Angstroms and compatabilizer (see Abstract and paragraphs 0020, 0021, 0022). The polyolefin-based composite exhibits superior compatibility (see paragraph 0009) and superior physical and mechanical characteristics (see paragraph 0027).
In light of motivation for using organically modified nanoclay having d-spacing of greater than 30 Angstroms disclosed by Hsiao et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art to use organically modified nanoclay having d-spacing of greater than 30 Angstroms in Yamada et al. in view of Avakian in order to exhibit superior compatibility and superior physical and mechanical characteristics, and thereby arrive at the claimed invention.
Response to Arguments
Applicant's arguments filed 01/27/2026 have been fully considered but they are not persuasive because of following reasons.
Applicants argue that admittedly, higher heat deflection temperature may be desirable for many polymeric articles mentioned in Avakian (i.e., automobile parts). Also, it may be reasonable to suggest that a person of skill in the art may be motivated to use a material having a higher heat deflection temperature in the substrate portion (opposite the heat seal layer) of the laminate described in Yamada. The substrate of Yamada is described as benefiting from materials (i.e., HDPE) and processing (i.e., orientation) that improve heat resistance ([0127]-[0135]). It is also explicitly stated that this characteristic is desirable on the OUTSIDE (non-heat seal side) of the packaging material. However, it is not reasonable to suggest that a person of skill in the art would be motivated to use a material having a higher heat deflection temperature in the heat seal layer of the laminate described in Yamada. Heat sealing is a process by which heat and pressure are applied to packaging films that have the heat seal layers arranged face-to- face. During heat sealing, the heating elements come into contact with the substrate portion of the laminate, thus necessitating heat resistance. Contrastingly, during heat sealing the heat seal layer softens at a relatively low temperature under the application of the heat, allowing the seal to form. An "improvement of thermal properties" that includes higher heat deflection temperature would not be desirable for a heat seal layer. It would not be obvious to one of skill in the art to use the blend of polyolefin nanocomposite and polyamide nanocomposite instead of polyolefin in the heat seal layer of Yamada as there are no desirable or beneficial properties of such a combination.
As set forth above in the office action, Yamada et al. disclose heat seal layer comprising polyolefin. Avakian discloses a blend of polyolefin nanocomposite and polyamide composite provides improved thermal properties compared to polyolefin and polyamide alone. Therefore, it would have been obvious to one of the ordinary skill in the art to combine Avakian with Yamada in order to improve thermal properties. The improvement in thermal properties is a beneficial property for any layer including heat seal layer, absent evidence to the contrary.
Regarding “An improvement of thermal properties that includes higher heat deflection temperature would not be desirable for a heat seal layer”, applicants have provided no evidence (i.e. data) to support their position. Further, it is noted that “the arguments of counsel cannot take the place of evidence in the record”, In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965). It is the examiner’s position that the arguments provided by the applicant regarding “An improvement of thermal properties that includes higher heat deflection temperature would not be desirable for a heat seal layer” must be supported by a declaration or affidavit.
Applicants argue that a person of ordinary skill in the art would have no reasonable expectation of success for the combination of Yamada and Avakian as suggested in the Office Action. As noted above, the improved thermal properties of Avakian would not be desirable for a heat seal layer of a packaging material of Yamada. Further, there is no indication in Avakian that the disclosed nanocomposite blend is good or even suitable for heat seal layers. Avakian does not present any properties of the nanocomposite blend that may be suitable for heat seal layers.
As noted above, as taught by Avakian, a blend of polyolefin nanocomposite and polyamide composite provides improved thermal properties compared to polyolefin and polyamide alone recited in Yamada. Therefore, it would have been obvious to combine Avakian with Yamada. While Avakian do not disclose heat seal layer, the improved thermal properties would be applicable to any layer including heat seal layer, absent evidence to the contrary.
Applicants argue that the foregoing points notwithstanding, the disclosure of Avakian is clear that the disclosed improvement in thermal performance is comparing the blend of nanocomposites to a material of a polyolefin nanocomposite. Avakian does not disclose the same improvement comparing the nanocomposite blend to a polyolefin that does not contain nanoclays, such as the heat seal layer of Yamada.
As set forth above, Yamada disclose a heat seal layer comprising polyolefin. While Yamada do not disclose heat seal layer comprising a blend of polyolefin, polyamide and nanoclay, Avakian disclose a blend of polyolefin, polyamide and nanoclay provides improved thermal properties. Given that both Yamada and Avakian disclose layer comprising polyolefin and Avakian provides a proper motivation, Avakian is properly combined with Yamada, absent evidence to the contrary.
Applicants argue that as an additional point, Avakian indicates that the nanocomposite blend may be used in films [0094] having a thickness of 0.2 mm to 0.5 mm. In comparison, the heat seal layer of Yamada is from 5 micron to 100 micron (0.005 mm to 0.1 mm). One of ordinary skill in the art would not expect that the composition of a heat seal layer having a relatively thin characteristic could be replaced with the composition of Avakian, stated to be formed into relatively thick films.
However, Avakian disclose the film can have dimensions ranging from about 0.2 mm to about 0.5 mm (see paragraph 0094). That is, it is not required that the film has thickness of about 0.2 mm to about 0.5 mm. Further, Yamada disclose the thickness of heat seal layer is preferably 5 to 100 microns (see paragraph 0103). That is, it is not required that the heat seal layer has thickness of 5 to 100 microns.
Further, even if Avakian disclose the film having thickness of “about 0.2 mm”, given that “about” includes thicknesses slightly above and below 0.2 mm, the thickness of “about 0.2 mm” would encompass thickness of 0.1 mm disclosed by Yamada.
Applicants argue that it would not be reasonable for one of skill in the art to consider using the nanocomposite blend of Avakian instead of polyolefin in the heat seal layer of Yamada as 1) the blend is not noted to be suitable for heat seal layers, 2) the blend is not noted to have characteristics that would be desirable for heat seal layers, 3) the thickness of films noted for using the blend are several orders of magnitude different than the heat seal layers of Yamada.
Regarding 1) and 2), applicants have provided no evidence (i.e. data) to show that the blend is not suitable or desirable for heat seal layers. Regarding 3), the thickness of film used for blend in Avakian is very close to thickness of heat seal layer of Yamada as noted above.
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 KRUPA SHUKLA whose telephone number is (571)272-5384. The examiner can normally be reached M-F 7:00-3:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Callie Shosho can be reached at 571-272-1123. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KRUPA SHUKLA/Examiner, Art Unit 1787
/CALLIE E SHOSHO/Supervisory Patent Examiner, Art Unit 1787
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