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 .
Response to Amendment
The amendment filed 07 October 2025 has been entered. Claims 1-6, 8, 10-14, 17-20 and 22-23 are currently pending in the application. Claims 13-14, 17-20 and 22-23 are withdrawn. The rejections of record from the office action dated 21 July 2025 not repeated herein have been withdrawn.
Claim Objections
Claim 10 is objected to because of the following informalities: Claim 10 depends from claim 9, which is cancelled. It appears it should depend from claim 1. Appropriate correction is required.
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.
Claims 1-6, 8 and 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over Yamamoto et al. (US 2018/0273231 A1) in view of Weaver et al. (US 5372864 A).
Regarding claim 1-6, 8 and 10-12, Yamamoto discloses a single layer container comprising polyester resin, polyamide resin at 0.5 to 15 parts by mass of the composition and a blue colorant at 0.1 to 100 ppm (i.e. a single-layer container comprising a polyester resin (X), a polyamide resin (Y), a blue colorant (A), overlapping wherein the content of the polyamide resin (Y) is from 0.05 to 7.0 mass%, and overlapping the content of the blue colorant (A) is from 1 to 40 ppm)([0011], [0032]-[0034], [0163]-[0172], [0138]). Yamamoto discloses that the polyamide resin may contain a complex containing a transition metal, wherein the transition metal may be cobalt, iron, manganese or nickel (i.e. further comprising an oxidation accelerator (C), wherein the oxidation accelerator (C) is a compound containing a transition metal; wherein the transition metal is selected from cobalt, iron, manganese and nickel)([0028], [0131]-[0133]).
Yamamoto does not disclose a red colorant.
Weaver discloses combining a red colorant with a blue colorant in polyester to provide a desirable hue to polyesters (abstract). It would have been obvious to one of skill in the art to add red colorant to the container of Yamamoto to provide the advantage of a desirable hue.
Modified Yamamoto discloses that preferably the amounts of blue and red colorant are 1-7 ppm blue colorant and 0.5-3 ppm red colorant (i.e. overlapping a mass ratio of blue colorant to red colorant of 40/60 to 60/40) (Weaver, C10/L3-10). Alternatively, it is the examiner’s position that it would have been obvious to one of ordinary skill in the art to adjust the ratio to within the claimed range depending on the desired color and hue of the container.
Regarding claim 2, Yamamoto discloses that the polyester resin comprises a constituent derived from a dicarboxylic acid and a constituent derived from a diol, 50 mol% or more of the constituent unit derived from dicarboxylic acid being a constituent unit derived from terephthalic acid and 50 mol% or more of the constituent unit derived from a diol being a constituent unit derived from ethylene glycol (i.e. overlapping 80 mol% or more of the constituent unit derived from dicarboxylic acid being a constituent unit derived from terephthalic acid and 80 mol% or more of the constituent unit derived from a diol being a constituent unit derived from ethylene glycol)([0016], [0166]-[0169]).
Regarding claim 3, Yamamoto discloses that the polyester may comprise sulfopthalic acid or metal salt of sulfophthalic acid (i.e. wherein the polyester comprises a constituent unit derived from sulfophthalic acids and metal sulfophthalates)([0057]-[0062]).
Regarding claim 4, Yamamoto discloses that the polyamide resin comprises a constituent derived from a diamine and a constituent derived from a dicarboxylic acid, 50 mol% or more of the constituent unit derived from diamine being a constituent unit derived from xylylene diamine and 50 mol% or more of the constituent unit derived from a dicarboxylic acid being a constituent unit derived from adipic acid (i.e. overlapping 80 mol% or more of the constituent unit derived from diamine being a constituent unit derived from xylylene diamine and 80 mol% or more of the constituent unit derived from a dicarboxylic acid being a constituent unit derived from adipic acid)([0017], [0166]-[0169]).
Regarding claims 5, 6 and 8, Modified Yamamoto discloses that the blue colorant may be an anthraquinone and the red colorant may be an anthraquinone (i.e. wherein the blue colorant is a dye; is an anthraquinone based dye; wherein the red colorant is anthraquinone based dye)(Weaver, abstract).
Regarding claims 10-11, Yamamoto discloses that the polyamide resin may contain a complex containing a transition metal, wherein the transition metal may be cobalt, iron, manganese or nickel (i.e. further comprising an oxidation accelerator (C), wherein the oxidation accelerator (C) is a compound containing a transition metal; wherein the transition metal is selected from cobalt, iron, manganese and nickel)([0028], [0131]-[0133]).
Regarding claim 12, Yamamoto discloses that the container may be hollow (i.e. hollow single layer container)([0177]).
Response to Arguments
Applicant's arguments filed 07 October 2025 have been fully considered but they are not persuasive.
Applicant argues that Yamamoto doesn’t disclose components other than the polyamide resin (Y) in the single container configuration and therefore does not disclose inclusion of the transition metal in single-layer containers.
Applicant’s argument is unpersuasive given that [0131]-[0133] clearly states that a transition metal may be added to polyamide resin (Y) to enhance oxygen absorption ability and enhance the gas barrier property. Therefore, even if there isn’t a specific single-layer embodiment disclosed with transition metal, it would have been obvious to include in order to provide enhanced oxygen absorption ability and enhanced gas barrier property.
Applicant argues that the instant invention shows unexpected results of suppressed yellowing and improved barrier properties and points to instant Examples 1-4 and 5-8.
First, it is noted that the addition of a transition metal improving barrier properties is not unexpected given that Yamamoto already recognizes this advantage (see [0131]-[0133]).
Second, it is noted that the data presented in Examples 1-4 and 5-8 are not commensurate in scope with the instant claims. Examples 1-4 and 5-8 are directed to specific polyester resins PET1101 and PET8912 at 94-97%, a polyamide resin at 3-6%, blue colorant at 2-30 ppm, red colorant at 2-30 ppm and cobalt(II)stearate at 1062 ppm. While the instant claims broadly recite polyester resin (X), polyamide resin (Y) at 0.05 to 7.0 %, blue colorant (A) at 1-40 ppm, red colorant (B), oxidation accelerator (C) and a mass ratio of A to B from 40/60 to 60/40.
Applicant argues that Weaver does not set forth a ratio of blue colorant to red colorant.
Applicant’s argument is unpersuasive given that the amounts set forth in Weaver can be used to determine the ratio. As set forth above, modified Yamamoto discloses that preferably the amounts of blue and red colorant are 1-7 ppm blue colorant and 0.5-3 ppm red colorant (i.e. overlapping a mass ratio of blue colorant to red colorant of 40/60 to 60/40) (Weaver, C10/L3-10). Alternatively, it is the examiner’s position that it would have been obvious to one of ordinary skill in the art to adjust the ratio to within the claimed range depending on the desired color and hue of the container.
Applicant argues that Weaver does not teach a polyamide.
However, note that while Weaver does not disclose all the features of the present claimed invention, Weaver is used as teaching reference, and therefore, it is not necessary for this secondary reference to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981). Rather this reference teaches a certain concept, namely combining a red colorant with a blue colorant in polyester to provide a desirable hue to polyesters (abstract)., and in combination with the primary reference, discloses the presently claimed invention.
Applicant argues that there is no rationale for addressing the problem of yellowing due to thermal history of a polyester resin containing a polyamide.
In response to applicant's argument that there is no rationale for addressing the problem of yellowing due to thermal history of a polyester resin containing a polyamide, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Applicant argues that there is no motivation to combine Weaver with Yamamoto.
Applicant’s argument is unpersuasive given that Weaver discloses combining a red colorant with a blue colorant in polyester to provide a desirable hue to polyesters (abstract). It would have been obvious to one of skill in the art to add red colorant to the container of Yamamoto to provide the advantage of a desirable hue.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 JAMES C YAGER whose telephone number is (571)270-3880. The examiner can normally be reached 9-6 EST M-F.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Aaron Austin can be reached at (571) 272-8935. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAMES C YAGER/ Primary Examiner, Art Unit 1782
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