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 .
Status of the Claims
Claims 1-13 and 26, 28-39, and 41-43 are currently pending.
Claims 14-25, 27, and 40 have been canceled.
Response to Amendments
Applicant’s amendments filed 09/06/2026 have been entered.
Claims 26 and 39 have been amended. Claims 42 and 43 have been added.
The Section 112(a) rejections have been withdrawn in view of Applicant’s amendments.
However, new Section 112(b) rejections have been implemented in view of Applicant’s amendments.
The Section 103 rejections have been updated to reflect Applicant’s amendments and addition of new claims upon further search and consideration.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-13, 26, 28-39, and 41-43 are 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.
Regarding claims 1, 26, and 41,
The limitation combination requiring the multi-layer film to comprise “a film roll” and the multi-layer film to be “wound on the film roll” is indefinite. The preamble of the claims are drawn to a multi-layer film. Thus, in light of the requirement for said multi-layer film to comprise “a film roll” but then require the “multi-layer film” to be wound on the film roll renders the scope unclear as it is uncertain if the film roll is a positively recited element of the claimed multi-layer film or if it is a recited element outside of the claimed multi-layer film that the multi-layer film is “wound” on. For examination purposes, the film roll will not be considered to further limit the multi-layer film, but the limitations will be treated as functional limitations in which the multi-layer film undergoes the action of being wound on said film roll.
Regarding claims 2-13, 28-39, and 42-43,
These claims are rejected due to their dependency on claims 1 and 26.
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.
Claim(s) 1-13, 26, 28-39, and 42-43 are rejected under 35 U.S.C. 103 as being unpatentable over Simpson et al. (US 6,602,598 B1) in view of Pirtle et al. (US 2010/0015393 A1).
Regarding claims 1, 10-13, 26-27, 36-39, and 42-43
Simpson teaches a multi-layer stretch film that may be wound on a film roll, comprising: an outer two or skin layers (10), a next two inwardly successive subskin layers (20) of the multi-layer film, and a core layer (30) of the multi-layer film (Simpson: abstract; Fig. 2; col. 3, lin. 19-65). The claimed layer ordering would have a first inward layer on the first side of a core layer and a second inward layer on a second side of the core layer and a first outer layer on the first inward layer and a second outer layer on the second inward layer as shown in Figure 2 of Simpson below.
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The outer two layers comprise a linear low density polyethylene (LLDPE) butene resin wherein each outer or skin layer may be 1 to 10 wt% of the total film weight which would total 2 to 20 wt% for the total of both skin layers which overlaps with the claimed at least sixteen percent of the multi-layer film (Simpson: col. 4, lin. 25-65). A prima facie case of obviousness exists where the claimed ranges and prior art ranges overlap or are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I.
The two inwardly successive subskin layers comprise a first linear low density polyethylene (LDPE) which may comprise hexene comonomers (a first linear low density polyethylene hexene resin) (Simpson: col. 5, lin. 9-47). The subskin layers may comprise a combination of LDPE and LLDPE resins having a density of between 0.860 and 0.940 g/cc, which also overlaps with the claimed 0.919 g/cm3, and a melt index of from 0.2 to about 10 dg/min (g/10 min) measured at 190°C, which also overlaps with the claimed 2 g/10 min (Simpson: col. 5, lin. 9-47 and col. 7, lin. 14-23) which overlaps with the properties and composition for the post-consumer recycled (PCR) resin utilized with the LLDPE hexane subskin layers in Applicant’s specification (Applicant’s specification: pg. 22). Thus, the additional LDPE and/or LLDPE resins are structurally the same or substantially similar to the claimed “recycled resin components”. The limitation requiring the recycled resin components to be “filtered using continuous filtration” are product by process limitations. When the prior art discloses a product which reasonably appears to be either identical with or only slightly different than a product claimed in a product-by-process claim, a rejection based alternatively on either Section 102 or Section 103 is proper. See MPEP 2113. In this case, there appears to be no structural differences between the claimed recycled resin components which are filtered using continuous filtration and the LDPE and/or LLDPE resin components taught by Simpson.
The core layer may comprise a second linear low density polyethylene (LLDPE) which may be copolymerized with 1-hexene (a second linear low density polyethylene (LLDPE) hexene resin (Simpson: col. 5, lin. 50 – col. 6, lin. 1-25).
The limitation requiring the first and second inward layers comprise “between thirty six and ninety percent measured by weight pre melt” and/or “between thirty six and forty percent” is satisfied by the prior art as Simpson teaches the claimed materials in the claimed proportions and densities and would thus be expected to also result in the same final structure as one who is at least thirty six percent when measured by weight pre melt.
Simpson does not explicitly teach the multi-layer film has a folded edge on two opposing exterior edges.
Pirtle teaches films comprising polyolefin materials wound on a roll (Pirtle: abstract; par. 0003 and 0030). The opposing exterior edges (250) of the film are folded to reinforce the edges of the film making it less susceptible to failure due to tears, rough handling, or excessive stretching (Pirtle: par. 0006 and 0018-0019).
Simpson and Pirtle are in the corresponding field of multi-layer films composed of polyolefins that are wound on a roll for packaging application. Therefore, it would be obvious to one of ordinary skill in the art to fold two opposing exterior edges of Simpson to reinforce the film making it less susceptible to tears, rough handling, or excessive stretching as taught by Pirtle.
Regarding claim 2,
Simpson teaches the multi-layer film required by claim 1. Simpson further teaches the outer layer may comprise a copolymer of metallocene polyethylene that may be copolymerized with LLDPE and butene and thus may have mLLDPE butene resin (Simpson: col. 4, lin. 26-54). The resin compositions may have a melt index, as measured at 190°C, of from 0.2 and 10 dg/min (g/10 min), which overlaps with the claimed 2 g/10 min (Simpson: col. 4, lin. 49-54 and col. 7, lin. 14-23). A prima facie case of obviousness exists where the claimed ranges and prior art ranges overlap or are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I.
Regarding claims 3 and 32,
Simpson teaches the multi-layer film required by claims 1 and 26. Simpson further teaches the LLDPE butene resin in the outer layers may have a melt index, as measured at 190°C, of from 0.2 and 10 dg/min (g/10 min), which overlaps with the claimed 1 to 3 g/10 min (Simpson: col. 4, lin. 49-54 and col. 7, lin. 14-23). A prima facie case of obviousness exists where the claimed ranges and prior art ranges overlap or are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I.
Regarding claims 4-5 and 33,
Simpson teaches the multi-layer film required by claims 1 and 26. Simpson further teaches the LLDPE butene resin of the outer layers may have a density of from 0.915 and 0.930 g/cc, which overlaps with the claimed 0.919 g/cm3 and the claimed 0.915 to 0.925 g/cm3(Simpson: col. 4, lin. 49-54). A prima facie case of obviousness exists where the claimed ranges and prior art ranges overlap or are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I.
Regarding claims 6-7 and 34,
Simpson teaches the multi-layer film required by claims 1 and 26. Simpson further teaches the LLDPE hexene resin in the subskin layers and the core layer (the first and second linear low density polyethylene hexene resins) may have a melt index of from about 0.2 to about 10 dg/min (g/ 10 min), measured at 190°C, which overlaps with the claimed 1 g/10 min and from about 1 to 5 g/10 min (Simpson: col. 5, lin. 30-39 and col. 6, lin. 11-16 and col. 7, lin. 14-23). A prima facie case of obviousness exists where the claimed ranges and prior art ranges overlap or are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I.
Regarding claims 8-9 and 35,
Simpson teaches the multi-layer film required by claims 1 and 26. Simpson further teaches the LLDPE hexene resin in the subskin layers and the core layer (the first and second linear low density polyethylene hexene resins) may have a density of from 0.860 to 0.940 g/cc, which overlaps with the claimed 0.919 g/cm3 and 0.915 to 0.925 g/cm3 (Simpson: col. 5, lin. 30-39 and col. 6, lin. 11-16). A prima facie case of obviousness exists where the claimed ranges and prior art ranges overlap or are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I.
Regarding claims 28-31,
Simpson teaches the multi-layer film required by claim 26. Simpson further teaches that the skin, subskin, and core layers (A, B, and C layers) may be the same or different with the resin compositions being the same or different to get the desired specific film end-use (Simpson: col. 4, lin. 1-15). Thus, the first and second linear low density polyethylene (LLDPE) hexene resins may differ from each other, the LLDPE hexene resin of the core layer may differ from both the first and second linear low density LLDPE hexene resins, the first and second LLDPE hexene resins may not differ with the LLDPE hexene resin in the core layer may be different from the first and second LLDPE hexene resins for the desired end-use of the film.
Claim 41 is rejected under 35 U.S.C. 103 as being unpatentable over Simpson in view of Pirtle as evidenced by Amirta (“Propylene Polymerization Catalysts and their Influence on Propylene Production and Applications” J. Chem. Eng. Process Technol., vol. 15, Iss. 4).
Regarding claim 41,
Simpson teaches a multi-layer stretch film, comprising: an outer two or skin layers (10), a next two inwardly successive subskin layers (20) of the multi-layer film, and a core layer (30) of the multi-layer film (Simpson: abstract; Fig. 2; col. 3, lin. 19-65). The claimed layer ordering would have a first inward layer on the first side of a core layer and a second inward layer on a second side of the core layer and a first outer layer on the first inward layer and a second outer layer on the second inward layer as shown in Figure 2 of Simpson below.
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The outer two layers comprise a linear low density polyethylene (LLDPE) butene resin wherein each outer or skin layer may be 1 to 10 wt% of the total film weight which would total 2 to 20 wt% for the total of both skin layers which overlaps with the claimed at least sixteen percent of the multi-layer film (Simpson: col. 4, lin. 25-65). A prima facie case of obviousness exists where the claimed ranges and prior art ranges overlap or are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I.
The two inwardly successive subskin layers comprise a first linear low density polyethylene (LDPE) which may comprise hexene comonomers (a first linear low density polyethylene hexene resin) (Simpson: col. 5, lin. 9-47). The subskin layers may comprise a combination of LDPE and LLDPE resins having a density of between 0.860 and 0.940 g/cc, which also overlaps with the claimed 0.919 g/cm3, and a melt index of from 0.2 to about 10 dg/min (g/10 min) measured at 190°C, which also overlaps with the claimed 2 g/10 min (Simpson: col. 5, lin. 9-47 and col. 7, lin. 14-23) which overlaps with the properties and composition for the post-consumer recycled (PCR) resin utilized with the LLDPE hexane subskin layers in Applicant’s specification (Applicant’s specification: pg. 22). Thus, the additional LDPE and/or LLDPE resins are structurally the same or substantially similar to the claimed “recycled resin components”. The limitation requiring the recycled resin components to be “filtered using continuous filtration” are product by process limitations. When the prior art discloses a product which reasonably appears to be either identical with or only slightly different than a product claimed in a product-by-process claim, a rejection based alternatively on either Section 102 or Section 103 is proper. See MPEP 2113. In this case, there appears to be no structural differences between the claimed recycled resin components which are filtered using continuous filtration and the LDPE and/or LLDPE resin components taught by Simpson.
The core layer may comprise a propylene homopolymer (Simpson: claim 1). Simpson is silent towards the propylene homopolymer being metallocene catalyzed, but teaches using metallocene to catalyze various other polyolefin components (Simpson: col. 4-10). Metallocene is a known standard in the art and a common catalyst for forming polyethylene and polypropylene.
Amirta teaches it is known in the art that metallocene catalysts for forming propylene since the 1970s to provide enhanced control over the polymerization process by allowing greater precision in controlling the polymers molecular structure and properties including molecular weight distribution and other properties such as clarity, stiffness, and chemical resistance (Amirta: pg. 1; col. 2).
Therefore, it would be obvious to use metallocene catalysis to form the propylene homopolymer in Simpson to provide improve precision and properties as evidenced by Amirta.
Simpson does not explicitly teach the multi-layer film has a folded edge on two opposing exterior edges.
Pirtle teaches films comprising polyolefin materials wound on a roll (Pirtle: abstract; par. 0003 and 0030). The opposing exterior edges (250) of the film are folded to reinforce the edges of the film making it less susceptible to failure due to tears, rough handling, or excessive stretching (Pirtle: par. 0006 and 0018-0019).
Simpson and Pirtle are in the corresponding field of multi-layer films composed of polyolefins that are wound on a roll for packaging application. Therefore, it would be obvious to one of ordinary skill in the art to fold two opposing exterior edges of Simpson to reinforce the film making it less susceptible to tears, rough handling, or excessive stretching as taught by Pirtle.
Response to Arguments
Applicant’s arguments filed 09/06/2026 have been fully considered but they are not found persuasive.
Applicant appears to argue that the preamble doesn’t limit the body of the claim as Applicant did not assert the preamble limits said body of the claim and cites MPEP 2111.02. Applicant then states that as such, there is no indefinite relationship between the film roll and that there is no ambiguity with the multi-layer film preamble and the claim body as asserted in the Section 112(b) rejection.
The argument is not found persuasive as the preamble is taken into consideration when determining the metes and bounds of the claim. Further, the cited MPEP, namely 2111.02 I does state the preamble should be considered in light of the entire application to determine structural aspects of the claim and does not state only when “asserted by Applicant. The other section, 2111.02 II, involves intended use limitations in the preamble, which is not an issue present in the current preamble of the claim and is not relevant to the situation. As explained in the Section 112(b) above, the combination of the preamble, which does limit the originally filed claimed body to be drawn to a “multi-layer film” and thus claiming the “film roll” to both be part of the claimed multi-layer film while simultaneously residing outside of the claimed multi-layer film so that the multi-layer film can be wrapped around said roll does render the claims indefinite due to the contradiction. Thus, the Section 112(b) analysis still is considered proper and maintained.
Applicant further argues that because the Examiner interpreted the film roll, as part of the Section 112(b), to not be part of the claimed “multilayer film” which is consistent with the cited explanation in the specification and thus it confirms that it is not unclear.
The argument is not found persuasive as just because the interpretation taken in the Section 112(b) rejection aligns with what was said in the specification does not mean the claim itself is not indefinite. The specification is not read into the claims; the claims are interpreted in light of the specification. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). See MPEP 2145 VI.
Applicant argues that no motivation was provided to combine Pirtle and Simpson to arise at the claimed folded edge structure. Applicant further asserts that the reason listed in par. 0083 of the specification provides an advantage for this modification. Thus, it appears Applicant is asserting the combination does not recognize the same problem to be solved or that the folded edge of the prior art combination does not fold the edge for the same reason.
The argument is not found persuasive as proper motivation was provided and there is no requirement that the prior art motivation must be the same or align with the reasons listed in Applicant’s specification. Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Wiseman, 596 F.2d 1019, 201 USPQ 658 (CCPA 1979). See MPEP 2145 II. That is, Simpson and Pirtle are in the corresponding field of multi-layer films composed of polyolefins that are wound on a roll for packaging application. The motivation to combine was provided as well, it would be obvious to one of ordinary skill in the art to fold two opposing exterior edges of Simpson to reinforce the film making it less susceptible to tears, rough handling, or excessive stretching as taught by Pirtle.
Applicant argues that the claim requiring at least one of the next two inwardly successive layers comprise one or more recycled resin components and that the recycled resin components are “filtered using continuous filtration” are process limitations that imply additional structure. Applicant argues that it is inherent to the nature of recycled resins that they have high amounts of contamination (citing par. 0206 in the specification).
The argument is not found persuasive as the claims do not require any specific properties or contamination levels nor has Applicant provided evidence that Simpson would have this level of contamination. Simpson in view of Pirtle teaches the resin compositions mixtures (i.e. LLDPE hexene resin with LDPE added in with the disclosed density ranges and melt index properties) and structural characteristics (i.e. the folded edge) that are required by the claims. Thus, there appears to be no structural difference, the fact the resins in the specification are recycled or made by a different process is not given weight as the resulting structure appears to be the same. The claims do not preclude or require any levels of contamination or any specific compositions for the recycled resin or the PCR recycled resins or the folded edge, the limitations are broadly claimed with no special definition in the specification. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). See MPEP 2145 VI. Additionally, the final structure is what is given patentable weight in a product claim, there has been no evidence that Simpson has the alleged contaminates. Also, par. 0206 of the specification states that the contamination results in holes being present in the film, but such holes are not shown or described to be present in Simpson and there has been no evidence presented to prove that Simpson would have the holes that indicate high levels of contamination. Thus, there appears to be no difference in the final structure. Arguments presented by applicant cannot take the place of evidence in the record. See In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984); In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965). See MPEP 2145 I.
Applicant argues that the resin of Simpson and Pirtle is not the same structurally as the claimed PCR resin filtered using continuous filtration due to the presence of high contamination levels in PCR.
The argument is not found persuasive for the reasons listed above in addition to “PCR” not being required in claim 1. That is, the properties of the resin and the structure, such as density overlap with the claimed properties in the claim. The holes that are explained to be formed due to high contamination do not appear in the disclosure of Simpson and Pirtle and Applicant has not provided evidence that the alleged contamination or structural differences exist. Arguments presented by applicant cannot take the place of evidence in the record. See In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984); In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965). See MPEP 2145 I.
Applicant further argues that the folded edge of Pirtle is folded by a different method and has a different core polypropylene layer than that required by claim 41 and thus can’t be used as prior art.
The argument is not found persuasive as Pirtle was not utilized to teach the mHPP core layer but folding the edges as explained above. A secondary reference is not required to teach all aspects of the primary or other secondary references utilized to teach a claim. Simpson and Amitra are utilized to teach the mHPP aspect of the claimed.
Applicant arguments appear to repeat this argument for Amitra, that Amitra does not have all the other claimed aspects other than metallocene catalyst for HPP.
The argument is not found persuasive for the reasons listed above regarding Pirtle in point 61.
Applicant argues against newly added claims 42 and 43 are in condition for allowance.
The argument is not found persuasive, please see the updated rejection 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.
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/TRAVIS M FIGG/Primary Examiner, Art Unit 1783
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