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 .
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-25 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Kammauff et al (US11,603,432, effective filing date 11/18/2020.
The applied reference has a common inventor and assignee with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
Kammauff sets forth thermoformed packaging and methods of making the same. Kammauff sets forth thermoformed webs that comprise polymer films having one or more thermoformed cavities contained therein, the polymer films comprising a polymer blend of amorphous polyethylene terephthalate (APET) and a copolyester that comprises (a) dicarboxylic acid residues (e.g., dicarboxylic acid residues that comprise terephthalic acid residues and, optionally, one or more additional dicarboxylic acid residues) and (b) diol residues such as, diol residues comprising ethylene glycol residues and, optionally, one or more additional diol monomer residues—see abstract.
Regarding claim 1-3: Kammauff teaches the polymer blend of said polymer film comprises a blend of 50 wt. % to 95 wt. % of amorphous polyethylene terephthalate (APET) and 5 wt. % to 50 wt. % of a copolyester comprising (a) dicarboxylic acid residues (e.g., dicarboxylic acid residues that comprise terephthalic acid residues and, optionally, one or more additional dicarboxylic acid residues) and (b) diol residues such as, diol residues comprising ethylene glycol residues and, optionally, one or more additional diol monomer residues—see col. 2, lines 26-46 and col. 7, line 58 to col. 8, line 2.
Kammauff sets forth thermoformed webs in which said polymer films having a crystallization time of at least 2.5 minutes at an isothermal crystallization temperature of 120° C. but not more than 30 minutes at an isothermal crystallization temperature of 165° C. as measured by DSC—see col. 3, ll. 1-4; col. 15, ll. 62 to col. 16, ll. 2; and Figure 8. Kammauff sets forth during processing said polymer films has a maximum shrinkage rate of +/- 8%--see col. 4, ll. 67-41 and col. 9, ll. 65-67.
Regarding claim 4: The copolyester and the APET, in said polymer film, are miscible and the blend is homogeneous—see col. 3, ll. 5-7.
Regarding claim 5: Said polymer film comprises a core layer disposed between two outer skin layers comprising from 0.05 to 10 wt. % of inorganic particles, wherein the core and the skin layers contain said polymer blend—see col. 4, ll. 8-13 and col. 9, lines 32-40.
Regarding claim 6-7: Said polymer film has a melting point which ranges from 225 to 255 deg. C and a thickness ranging from 25 to 2000 microns—see 3, lines 14-16 and lines 21-23; col. 4, lines 50-52 and lines 60-63; and col. 9, lines 12-13.
Regarding claims 8-11: Kammauff sets forth said polymer films are formed using an extrusion process selected from co-rotating twin extrusion; counter rotating extrusion; and planetary extrusion, wherein said films can be blown films, cast films or a co-extruded film or a calendared film—see col. 3, lines 30-40.
Regarding claim 12: Said thermoformed web meet the clumping criteria set forth in Association of Plastics Recyclers (APR) PET Flake Clumping Evaluation (Document Code PET-S-08), as well as, meeting one or more criteria specified by the Association of Plastics Recyclers (APR) Critical Guidance Protocol for Clear PET Resin and Molded Articles (APR Protocol PET-CG-01)—see col. 3, lines 41-45 and col. 4, lines 6-11.
Regarding claims 12-15: Kammauff sets forth the thermoformed webs are obtained using a method which comprises heating said polymer film to a temperature where a softened polymer film is formed and forcing said softened polymer film into one or more mold cavities of a mold, wherein said heating is a temperature ranging from 70 to 150° C. which is throughout during the thermoforming process. Kammauff sets forth said thermoformed web can be formed on an unsupported machine and said polymer film has a maximum shrinkage during processing in a range of +/−5% in any direction, wherein +/- 5 is deemed to fully encompass +/- 4—see col. 4, lines 32-36. Additionally, Kammauff sets forth said thermoformed when can be formed on a supported machine and said polymer film has a maximum shrinkage during processing in the range of +/- 8%--see col. 4, lines 37-41.
Regarding claims 16-22: Said thermoformed web, as set forth by Kammauff, can be used to obtain packaging products. Said packaging products comprise (a) said thermoformed web; (b) lidding applied to the thermoformed web, and (c) one or more products positioned in the one or more thermoformed cavities and between the lidding and the thermoformed web, wherein the thickness of said film ranges from 100 to 550 microns—see col. 4, lines 43-47, lines 50-51 and col. 4, line 63 to col. 5, line 3. Said lidding is discloses as comprising a rupturable layer and a burst resistant layer that can be removed from said rupturable layer, wherein said rupturable layer can be opened by pressure on an opposite side of the packaged product, or be a peelable layer that can be removed from the thermoformed web giving access to the one or more products contained therein, wherein said lidding comprises a polymer and/or paper—see col. 4, lines 44-47 and lines 61-62. Said products positioned within said cavities are disclosed a consumable products, as well as, medical devices or food products—see col. 4, lines 48-49, lines 5-59 and col. 9, lines 6-8. It is disclosed where said thermoformed web is used in medical device, food, and consumer product packaging, the polymer film will typically range from 200 microns or less to 1800 microns or more in thickness, wherein this is deemed to encompass the thicknesses found in claim 21.
Regarding claim 23: Said packaged products are formed by (a) positioning the one or more products in the one or more thermoformed cavities of said thermoformed web and (b) sealing said lidding to said thermoformed web which encloses one or more of said products in one or more of said thermoformed cavities, wherein said lidding is sealed to said thermoformed web at a temperature ranging from 110 to 210° C.—see col. 4, line 64 to col. 5, line 6.
Regarding claim 24: Kammauff, additionally, sets forth a method of recycling comprising (a) combining (i) polyethylene terephthalate flakes and/or pellets and (ii) flakes of said thermoformed web and/or pellets formed said flakes of said thermoformed web, thereby forming a mixture of flakes and/or pellets, and (b) crystallizing the mixture at elevated temperature to form a free-flowing crystallized mixture. This method further comprise feeding the free-flowing crystallized mixture into polymer processing equipment to form a processed polymer product, wherein said processed polymer product is an extruded polymer product or a calendared polymer product—see col. 5, lines 7-21 and col. 11, line 40 to end.
Regarding claim 25: Kammauff teaches a recycle stream which comprises (a) recycled polyethylene terephthalate flakes and/or pellets which are mixed with (b) recycled flakes and/or obtained or formed from said thermoformed web—see col. 5, lines 22-28 and col. 11, lines 59-end.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 4, 6-8, 10-15, and 25 is/are rejected under 35 U.S.C. 102(a1) as being anticipated by Peters et al (WO2020/076749, family member US 12,116,452).
Peters sets forth crystallizable shrinkable films and thermoformable sheets obtained therefrom, wherein said films comprises polyester polymer blends—see title. Peter explicitly sets forth blends made with polyesters that contain certain combinations of glycol monomers in a shrink film resin composition can produce a film with good shrink film performance and also be crystallizable such that it does not impact the recycling of the accompanying PET flake during recycling.
Regarding claim 1 and 15: Said polymer blend comprises: (a) from 5 to 95 weight % of the crystallizable polyester compositions and (b) from 5 to 95 weight % of at least one amorphous polyester compositions—see [0009]. Peters sets forth films obtained from said blend have a shrinkage in the machine direction of from 5% or less, wherein it is deemed the 5% or less anticipates applicants 8% or less in claim 1—see [0091] and Tables 4-5. Regarding claim 4: Peters sets forth films of said blend are obtained from homogeneous solutions of said blend---see [0072]. Said blends comprises 5-80% of at least one crystallizable polyester comprising : (a) a dicarboxylic acid component comprising:(i) about 70 to about 100 mole% of terephthalic acid residues; (ii) about 0 to about 30 mole% of aromatic and/or aliphatic dicarboxylic acid residues having up to 20 carbon atoms; and(b) a diol component comprising: (i) about 0 to about 30 mole% of neopentyl glycol residues; (ii) about 0 to about less than 30 mole% of 1 ,4- cyclohexanedimethanol residues; (iii) residues of diethylene glycol; and wherein the remainder of the glycol component comprises: (iv) residues of ethylene glycol, and (v) optionally, 0.1 to 10 mole%, of the residues of at least one modifying glycol; and (2) 20-95% of at least one amorphous polyester comprising: (a) a dicarboxylic acid component comprising: (i) about 70 to about 100 mole% of terephthalic acid residues; (ii) about 0 to about 30 mole% of aromatic and/or aliphatic dicarboxylic acid residues having up to 20 carbon atoms; and (b) a diol component comprising: (i) about 0 to about 40 mole% of neopentyl glycol residues; (ii) about 0 to about less than 40 mole% of 1 ,4- cyclohexanedimethanol residues; (iii) residues of diethylene glycol; and wherein the remainder of the glycol component comprises: (iv) residues of ethylene glycol, and (v) optionally, 0.1 to 10 mole%, of the residues of at least one modifying glycol. It is deemed the amorphous polyester (2) is a polymer comprising APET, as set forth in claim 4—see [0020].
Regarding claim 6: Peters sets forth films obtained from said polymer blend having a melting point in the range of about 200 to about 255 ° C—see [0014] and Tables 4-5.
Regarding claim 7-8 and 10-11: Said polymer films are obtained from extruding said homogeneous polymer blends, wherein said films may comprises one or more layers—see [0144]. Peters sets forth the films have a pre-oriented thickness of about 100 to 400 microns and then oriented thickness of about 20 to about 80 microns—see [0084]; [0089]; [0094]; [00107-108]; and [0144]. Peters sets forth in the examples obtaining extruded films having at least three layers that are than cast into heat shrinkable polymer films—see [0144]. Said films can also be calendared films—see [0023].
Regarding claim 12: Peters sets forth said films meet the clumping criteria set forth by the Association for Plastic Recyclers (APR) has established a test for measuring whether a material is compatible with the current recycling process (Critical Guidance Protocol for Clear PET Articles with Labels and Closures PET-CG-02, revision or creation date April 11 , 2019). This method references a method for measuring PET clumping (PET Flake Clumping Evaluation; PET-S-08; revision date November 16, 2018)—see [0153].
Regarding claim 13-14: Peters teaches the thermoforming process of said blends comprises: forming a film or sheet from said polyester blend compositions; heating the film or sheet until it softens and positioning it over a mold; drawing the preheated film or sheet onto the heated mold surface; cooling the film or sheet; and then removing the molded article or part from the mold cavity, or optionally, heat-setting the formed film or sheet by maintaining the film or sheet in contact against the heated mold for a sufficient time period to partially crystallize the film, wherein said heat for softening is a temperature that is about 10 to about 60° C above the Tg of the polyester, wherein said polymer Tg’s are taught to be from 60 to 80 °C, wherein it is deemed at least 70-80 deg. C deemed to be encompassed by the range in claim 14.—see [0069]; [0125] and [0127].
Regarding claims 25: Peters sets forth a recycling stream comprising recycled polyethylene terephthalate) flake, having admixed therewith at least about 0.1 weight percent of the crystallizable blends—see [0029].
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-25 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5-11, 13, and 15-30 of U.S. Patent No. 11,603,432. Although the claims at issue are not identical, they are not patentably distinct from each other because they appear to comprise overlapping subject matter.
Both set forth thermoformed webs comprising a polymer film and having one or more thermoformed cavities contained therein; methods for forming such; packaged products and process of forming; methods for recycling comprising said thermoformed web and a recycle stream comprising the same.
US’432 sets forth said polymer film comprises a polymer blend of 50 wt. % to 95 wt. % of amorphous polyethylene terephthalate (APET) and 5 wt. % to 50 wt. % of a copolyester that comprises (a) dicarboxylic acid residues comprising polyethylene terephthalate residues and (b) diol residues comprising (i) ethylene glycol residues and (ii) one or more additional diol monomer residues selected from neopentyl glycol residues, 1,4-cyclohexanedimethanol residues, or diethylene glycol residues, wherein the polymer film exhibits a shrinkage of less than 4% at temperatures up to 120° C., wherein the polymer film exhibits a crystallization time at 120° C. of at least 2.5 minutes as measured by DSC—see claim 1. This claim is deemed to overlap in scope with instant claims 1-3, wherein it is deemed the PEF in instant claim 1 is not excluded from the blend found in US’432 claim 1.
US’432 sets forth a packaged product comprising (a) the thermoformed web, (b) lidding applied to the thermoformed web, and (c) one or more products positioned in the one or more thermoformed cavities and between the lidding and the thermoformed web—see claim 21. This directly overlaps with the claimed packaged product found in claim 16.
US’432 sets forth a process for forming a packaged product comprising (a) positioning the one or more products in the one or more thermoformed cavities of the thermoformed web and (b) sealing lidding to the thermoformed web thereby enclosing the one or more products in the one or more thermoformed cavities, which directly overlaps with the process of forming a packaged product in instant claim 23—see claim 27 in US’432.
US’432 sets forth a method of recycling comprising (a) combining (i) polyethylene terephthalate flakes and/or pellets and (ii) and flakes of a thermoformed web in accordance with claim 1 and/or pellets formed from flakes of a thermoformed web in accordance with claim 1 to form a mixture and (b) crystallizing the mixture at elevated temperature to form a free-flowing crystallized mixture—see claim 28. This overlaps with instant claim 24.
US’432 sets forth a recycle stream comprising (a) recycled polyethylene terephthalate flakes and/or pellets and (b) recycled flakes of a thermoformed web in accordance with claim 1 and/or pellets formed from flakes of a thermoformed web—see claim 29. This overlaps with instant claim 25. It is deemed claims 5-11, 13 and 15-30 directly overlap in scope with instant claims 4-25.
Therefore, it is deemed that the instant claims, as written, cannot be infringed without literally infringing upon the claims of the co-pending application(s) as cited in the obviousness-type double patenting rejection(s).
Claims 1-25 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5-7, 9-10, 12, and 14-21 of U.S. Patent No. 11,891,479. Although the claims at issue are not identical, they are not patentably distinct from each other because they appear to comprise overlapping subject matter. Both set forth thermoformed webs comprising a polymer film and having one or more thermoformed cavities contained therein. Both set forth thermoformed webs comprising said polymer film and having one or more thermoformed cavities contained therein; methods for forming such; packaged products and process of forming; methods for recycling comprising said thermoformed web and a recycle stream comprising the same.
US’479 sets forth said polymer film comprises a polymer blend of 50 wt. % to 95 wt. % of amorphous polyethylene terephthalate (APET) and 5 wt. % to 50 wt. % of a copolyester that comprises (a) dicarboxylic acid residues comprising polyethylene terephthalate residues and (b) diol residues comprising (i) ethylene glycol residues and (ii) one or more additional diol monomer residues selected from neopentyl glycol residues, 1,4-cyclohexanedimethanol residues, or diethylene glycol residues, wherein the polymer film exhibits a crystallization time at 120° C. of at least 2.5 minutes as measured by DSC, wherein it is deemed said polymer film is intended to exhibit a shrinkage of less than 4%—see claims 1 and 9. This claim is deemed to overlap in scope with instant claims 1-3, wherein it is deemed the PEF in instant claim 1 is not excluded from the blend found in US’479 claim 1.
US’479 sets forth a packaged product comprising (a) the thermoformed web, (b) lidding applied to the thermoformed web, and (c) one or more products positioned in the one or more thermoformed cavities and between the lidding and the thermoformed web—see claim 16. This directly overlaps with the claimed packaged product found in claim 16.
US’479 sets forth a method of recycling comprising (a) combining (i) polyethylene terephthalate flakes and/or pellets and (ii) and flakes of a thermoformed web in accordance with claim 1 and/or pellets formed from flakes of a thermoformed web in accordance with claim 1 to form a mixture and (b) crystallizing the mixture at elevated temperature to form a free-flowing crystallized mixture—see claim 21. This overlaps with instant claim 24.
It is deemed product claims 5-7, 9-10, 12 and 14-21 in US’479 directly overlap in scope with instant claims 4-25.
Therefore, it is deemed that the instant claims, as written, cannot be infringed without literally infringing upon the claims of the co-pending application(s) as cited in the obviousness-type double patenting rejection(s).
Claim 25 with 1-3 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 5-7, 9-12, 15, and 17-20 of U.S. Patent No. 12,312,441. Although the claims at issue are not identical, they are not patentably distinct from each other because they appear to comprise overlapping subject matter.
Both set forth recycled streams comprising thermoformed webs, wherein said streams comprise thermoformed web flakes and/or pellets. Where said recycled thermoformed web comprises a polymer film comprising a polymer blend of 50 wt. % to 95 wt. % of amorphous polyethylene terephthalate (APET) and 5 wt. % to 50 wt. % of a copolyester that comprises (a) dicarboxylic acid residues comprising polyethylene terephthalate residues and (b) diol residues comprising (i) ethylene glycol residues and (ii) one or more additional diol monomer residues selected from neopentyl glycol residues, 1,4-cyclohexanedimethanol residues, or diethylene glycol residues, wherein the polymer film exhibits a crystallization time at 120° C. of at least 2.5 minutes as measured by DSC, wherein it is deemed said polymer film is intended to exhibit a shrinkage of less than 4%—see claims 1 and 9 and instant claims 25 with 1-3: wherein it is deemed the PEF in instant claim 1 is not excluded from the blend found in US’441 claim 1. It is deemed the polymer film found in claims 5-6, 9-10, 12, 14-17 overlap in scope with the instantly claimed polymer film in claims 4-12. It is deemed the mineral filler in instant claims 6 by definition [col. 9, line 41] is an inorganic particle and the instantly claimed inorganic filler by definition may be a surface modifier [0058]. Applicant's attention is drawn to MPEP 804 where it is disclosed that “the specification can always be used as a dictionary to learn the meaning of terms in a patent claim.” In re Boylan, 392 F.2d 1014, 157 USPQ 370 (CCPA 1968). Further, those portions of the specification which provide support for the patent claims may also be examined and considered when addressing the issue of whether a claim in an application defines an obvious variation of an invention claimed in the patent. In re Vogel, 422 F/2d 438,164 USPQ 619,622 (CCPA 1970).
Applicant's attention is drawn to MPEP 804 where it is disclosed that “the specification can always be used as a dictionary to learn the meaning of terms in a patent claim.” In re Boylan, 392 F.2d 1014, 157 USPQ 370 (CCPA 1968). Further, those portions of the specification which provide support for the patent claims may also be examined and considered when addressing the issue of whether a claim in an application defines an obvious variation of an invention claimed in the patent. In re Vogel, 422 F/2d 438,164 USPQ 619,622 (CCPA 1970).
Thus, is deemed that the instant claims, as written, cannot be infringed without literally infringing upon the claims of the co-pending application(s) as cited in the obviousness-type double patenting rejection(s).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SANZA L MCCLENDON whose telephone number is (571)272-1074. The examiner can normally be reached 8-5.
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/SANZA L. McCLENDON/Primary Examiner, Art Unit 1765
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