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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 December 30th, 2025, has been entered.
Claim Rejections - 35 USC § 103
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.
Claims 16-20, and 31 are rejected under 35 U.S.C. 103 as being unpatentable over Stalberg et al (US 2005/0106294 A1).
With regards to claim 16, Stalberg discloses a food casing formed as a homogenously extruded film (i.e., as best understood, a film A which is in the form of a monolayer and is monolithic) which is permeable to water vapor, wherein the film is formed of an aliphatic polyamide such as Pebax® MH 1657 and talc (i.e., an antiblocking agent in the form of magnesium silicate) (Stalberg: para. [0001]-[0002], [0044]-[0045], [0050], and [0063]; claim 1). It is noted that paragraphs [0006]-[0007] of the present specification define the phrase “highly breathable polymer” as “a polymer which is permeable to moisture vapor and substantially impermeable to liquid,” further, the present specification admits that Pebax® polymers are examples of such “highly breathable polymers” (see above discussion). The film of Stalberg is considered to be “waterproof breathable” as paragraph [0002] of the present specification defines “waterproof-breathable films” as “breathable films,” and further, the film of Stalberg is permeable to water vapor (i.e., and therefore, it is a “breathable film”) (Stalberg: claim 1). Stalberg discloses a thickness of 40 to 200 microns, which overlaps the claimed range of between 5 and 150 microns (Stalberg: para. [0056]). Stalberg further discloses a surface having a mean roughness Ra (i.e., as best understood, an arithmetical mean roughness, which is located on one of two faces) of 0.8 to 10 microns, which overlaps the claimed range of 0.1 microns (Stalberg: para. [0049]). Instances of overlapping ranges have been held sufficient to establish a prima facie case of obviousness, per MPEP 2144.05. With regards to the claimed amount of highly breathable polymer and antiblocking agent, Stalberg teaches that the amount of talc can be used to set the roughness, the ability of the casing to form rings is “set via the filler content,” the filler acts as a reinforcing agent which increases stability, and the filler gives rise to improved permeability (Stalberg: para. [0044]-[045]). Therefore, a person of ordinary skill would have found it obvious to have optimized the relative proportions of highly breathable polymer and antiblocking agent. With regards to the claimed glass of less than or equal to 20 GU, it is noted that Stalberg teaches a film which is substantially identical in composition to the claimed film (see above discussion). In particular, Stalberg teaches a film consisting of Pebax® polymers according to the present specification (i.e., the composition of Stalberg is not only substantially identical, but rather, identical to the composition of the claimed invention), and further, Stalberg teaches a roughness range entirely within the claimed range. Therefore, the film of Stalberg is expected to possess a gloss of less than 20 GU, per MPEP 2112.
With regards to claim 17, it is noted that the claimed phrase “number of peaks per unit of length RPc of at least 40” does not specify a particular unit of length, nor does the present specification define this language with respect to a specific unit of length. As best understood, this claim is rather broad, as it requires a number of peaks per unit of length RPc of at least 40, where any unit of length can be selected. Technically, the unit length could be greater than the film itself. Therefore, since the film of Stalberg has a roughness, it is submitted that there exists a number of peaks on the film of Stalberg, such that for some unit length basis, a number of peaks per unit length RPc is at least 40 (see above discussion).
With regards to claim 18, it is noted that the claimed phrase “number of peaks per unit of length RPc of at least 40” does not specify a particular unit of length, nor does the present specification define this language respect to a specific unit of length. As best understood, this claim is rather broad, as it requires a number of peaks per unit of length RPc of at least 40, where any unit of length can be selected. Technically, the unit length could be greater than the film itself. Therefore, since the film of Stalberg has a roughness, it is submitted that there exists a number of peaks on the film of Stalberg, such that for some unit length basis, a number of peaks per unit length RPc is at least 40 (see above discussion). Stalberg further discloses a surface having a mean roughness Ra (i.e., as best understood, an arithmetical mean roughness, which is located on one of two faces) of 0.8 to 10 microns, which overlaps the claimed range of 0.1 microns (see above discussion). Instances of overlapping ranges have been held sufficient to establish a prima facie case of obviousness, per MPEP 2144.05. With regards to the limitation that both faces of the claimed film exhibit such roughness properties, Stalberg is not explicit as to whether only one or both of its surfaces have the claimed roughness properties. However, Stalberg teaches that its surface roughness provides a desired feel and appearance, and further, the roughness is naturally created by filler which exhibits improved stability and gas and water vapor permeability (Stalberg: para. [0005], [0011], and [0070]). Therefore, a person of ordinary skill in the art would have found it obvious to have formed the film of Stalberg such that both of its surfaces possess its roughness properties, in order to ensure that both sides of the film of Stalberg have the requisite feel and appearance, and further to provide improved stability and vapor permeability (Stalberg: para. [0005], [0011], and [0070]).
With regards to claim 19, it is noted that the claim is directed to properties of the claimed highly breathable polymer (i.e., as best understood, the claim recites properties which are intrinsic to the claimed highly breathable polymer). The present specification admits that Pebax® polymers possess the properties of the claimed invention. Stalberg, as best understood, discloses forming its film from a Pebax® polymer. It has been held that a composition and its properties are inseparable, per MPEP 2112. In the present case, since the Pebax® polymer of Stalberg is substantially identical (or even, in this case, identical) to the polymer disclosed in the present specification which is admitted to have the claimed properties, the Pebax® polymer of Stalberg must necessarily meet the claimed moisture vapor transmission rate according to standard ASTM E96B when set to a thickness of 15 microns (see above discussion). In the interest of compact prosecution, it is noted that the present claim does not positively recite a thickness of 15 microns.
With regards to claim 20, the Pebax® polymer of Stalberg is a nylon polyethylene glycol block copolymer (i.e., a copolymer having polyamide and polyether blocks) (Stalberg: para. [0034]).
With regards to claim 31, teaches a film which is substantially identical in composition to the claimed film (see above discussion). In particular, Stalberg teaches a film consisting of Pebax® polymers and antiblocking agents according to the present specification, and further, Stalberg teaches a roughness range entirely within the claimed range. Therefore, the film of Stalberg is expected to possess a gloss of less than 15 GU, per MPEP 2112.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Stalberg et al as applied to claim 20 above, and in further view of Malet et al (US 2005/0165210 A1).
With regards to claim 21, Stalberg is teaches to a film comprising a highly breathable polymer in the form of a coploymer having polyamide and polyether blocks as applied to claim 20 above (see above discussion). However, Stalberg is silent as to the selection of polyamide 11, specifically, and further, Stalberg does not appear to disclose blocks having a molar mass in the range of from 500 to 3000 g/mol.
Malet is directed to transparent copolymers having polyamide blocks and polyether blocks useful for the manufacturing of “many articles” (i.e., as best understood, Malet is broadly directed to the development and use of such polymers regardless of application) (Malet: para. [0002]). The transparent copolymers of Malet include polyether blocks having a molar mass ranging from 200 to 4000 g/mol and polyamide blocks having a molar mass ranging from 500 to 10000 g/mol, the polyamide blocks including polyamide 11 (Malet: para. [0012] and [0040]-[0041]). Malet teaches that its selected molar mass ranges overcome known issues in the art of polyamide/polyether block copolymers, such as insufficient transparency and reduced mechanical properties (Malet: para. [0002]-[0006]). To this end, as best understood from Malet as a whole, polymers containing polyamide 11 blocks are exemplary and exhibit the requisite molar mass (Malet: para. [0041]). Stalberg and Malet are analogous art in that they are related to the same field of endeavor of polymer films formed of highly breathable polymers, wherein the highly breathable polymers include polyamide and polyether blocks (see above discussion). A person of ordinary skill in the art would have found it obvious to have selected polyamide 11 for the polyamide of Stalberg, and to have selected from the molecular weight ranges of Malet for the polymer of Stalberg, in order to provide improved transparency and mechanical properties (see above discussion). The ranges disclosed in Malet overlap the claimed ranges (i.e., molar masses within a range extending from 500 to 3000 g/mol), thereby establishing a prima facie case of obviousness, per MPEP 2144.05.
Claims 29-30 are rejected under 35 U.S.C. 103 as being unpatentable over Stalberg et al as applied to claim 16 above, and in further view of Merkel (US 2007/0151447 A1).
With regards to claim 29, Stalberg teaches a monolayer monolithic waterproof-breathable as applied to claim 16 above which may be applied in the form of a casing (i.e., a laminated product) (see above discussion). However, Stalberg does not appear to disclose the inclusion of a porous support layer consisting of a fibrous material.
Merkel is directed to a gas separation membrane comprising a microporous polymeric support layer formed of a nonwoven (i.e., a porous support layer consisting of a fibrous material), the membrane being in the form of multiple layers which include copolymers of polyethers and plyamides (Merkel: para. [0031], [0130], and [0138]-[0140]; Figs. 3 and 4). Merkel teaches that its membrane is designed for humidity control, which is important in many fields, such as the storage and transport of perishable items, including consumer goods and pharmaceuticals (Merkel: para. [0012] and [0018]). Merkel teaches that its film results in providing mechanical strength while enabling a suitable water vapor flux (Merkel: para. [0028]-[0029], [0037], [0049], and [0106]). Stalberg and Merkel are analogous art in that they are related to the same field of endeavor of membranes having high water vapor transmission rates for use in the storage and transport of perishable items (see above discussion). A person of ordinary skill in the art would have found it obvious to have incorporated the porous support layer of Merkel into the laminate of Stalberg, in order to provide mechanical strength while enabling a suitable water vapor flux (Merkel: para. [0028]-[0029], [0037], [0049], and [0106]).
With regards to claim 30, it is noted that the phrase “in the textile, construction and health fields” is rather broad. The phrase only says that the formed article is “in the… fields,” and the phrase does not require the claimed article to be a textile, a construction article, or a health article. As best understood, any layer of material is capable of being used within the recited fields in some way. In the interest of compact prosecution, it is noted that the article of Stalberg and Merkel includes a nonwoven fabric layer (i.e., it is in the textile field), and it is used to make (i.e., construct) a food casing (i.e., an article which protects food, and therefore, can improve human health) (see above discussion).
Response to Arguments
Applicant's arguments have been fully considered but they are not found persuasive.
Applicant’s amendment including the transitional phrase “consisting of” is noted. Applicant argues that fillers regarded by Stalberg as essential are excluded. Applicant notes that Stalberg lists fillers which do not appear in the list of additives required by present claim 16. This argument is not found persuasive as Stalberg lists talc (i.e., hydrated magnesium silicate) as one of its fillers. Present claim 16 lists magnesium silicate as an antiblocking agent. Stalberg further teaches that the amount of added filer controls the moldability (i.e., ring formation), stability, and permeability of the formed casing, and therefore, a person of ordinary skill in the art would have found it obvious to have optimized the amount of talc with respect to Stalberg. As Stalberg teaches a casing (i.e., film) consisting of PEBAX® polymers (i.e., a highly breathable polymer according to the present specification) and talc (i.e., one of the claimed antiblocking agents), Stalberg meets the claims as amended.
Applicant argues that the claimed film achieves the recited roughness and gloss without fillers, and further, that a person of ordinary skill would not be motivated to remove the fillers of Stalberg. These arguments are not found persuasive as the filler of Stalberg may be, for example, talc, which meets the present claims (i.e., no motivation to remove filler is required). Further, the present claims do not recite the claimed roughness and gloss to be achievable by the claimed highly breathable polymer alone (i.e., the claims do not preclude achieving the claimed roughness and gloss values via the addition of other materials).
Conclusion
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/E.W./
Examiner, Art Unit 1783
/MARIA V EWALD/Supervisory Patent Examiner, Art Unit 1783