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 § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-11 and 21 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites the limitation “wherein for each of the MTWs, a smallest dimension of the MTW is at least 10% as large as a largest dimension of the MTW. Applicant does not have support for this limitation. The instant specification does not discuss a ratio of dimensions for the MTW. Further, the drawings do not show support for the limitation as the drawings are not discussed as being drawn to scale and thus do not show the specified “at least 10%” range.
Claims 2-11 and 21 are also rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, since these claims depend from the claims rejected above and do not remedy the aforementioned deficiencies.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-3, 5-11, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Wallen et al. (US-20040191476-A1) (previously cited) in view of Goihman et al. (US-20190071200-A1) (previously cited) and Mir (US-20210039855-A1) (previously cited).
Regarding claim 1, Wallen teaches a laminate suitable for incorporation in a moisture controlled fresh produce container (Wallen, Abstract and Par. 0001). Wallen teaches the laminate comprises a first film layer (inner layer) that is heat-sealable, and a second film layer (outer layer) laminated to the first film layer (Wallen, Par. 0011-0012, 0023-0025, and 0033-0038).
Wallen is silent regarding the first film layer having a water vapor transport rate that is no greater than 3 g-mil/100in2-day @ 100°F and 90% relative humidity, the first film layer being configured to serve as a gas and moisture barrier. Wallen is silent regarding the second film layer having a water vapor transport rate that is greater than 10 g-mil/1002-day @ 100°F and 90% relative humidity.
Goihman teaches a laminate for a fresh produce container, wherein the laminate comprises a first film (second layer) configured to serve as a gas and moisture barrier (see “has a WVTR which is less than the WVTR of the first layer”) having a water vapor transmission rate (WVTR) of 10-100 g/m2-day @ 23°C (73°F) and 50% relative humidity with a thickness of 0.53-5 µm and a second film (first layer) having a WVTR of 30 to 200 g/m2-day @ 23°C (73°F) and 50% relative humidity with a thickness of 5-30 µm (Goihman, Abstract, Par. 0001, 0003, 0028-0031, and 0036-0037). This results in a first film WVTR of ~0.013 to 1.27 g/100in2-day per mil, which lies within the claimed range of no greater than 3 g-mil/100in2-day, and therefore satisfies the claimed range, see MPEP 2131.03. This further results in a second film WVTR of ~ 0.38 to 15.22 g/1002-day per mil, which overlaps the claimed range of greater than 10 g-mil/1002-day and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I. Although Goihman measures WVTR with a method that is different from the claimed method (i.e., measured at 73°F and 50% RH instead of 100°F and 90% RH, one of ordinary skill in the art would readily understand that differences between the two different methods would yield minor and obvious differences, and that if Goihman’s laminate was also measured with the claimed method, it would still yield a WVTR that renders obvious the claimed WVTR (see MPEP 2143 and MPEP 2144.05, I).
Wallen and Goihman are analogous art as they both teach laminates for fresh produce comprising first and second film layers. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have created the first and second film layers of Wallen to have water vapor transport rates within the claimed ranges. This would allow for control of the amount of water vapor in the container, preventing microbial decay (Goihman, Par. 0003).
Modified Wallen is silent regarding at least on moisture transport window (MTW), each of said MTWs being a region of the laminate film that includes the second film layer but does not include the first film layer, said at least one MTW being present in the laminate film before the laminate film is incorporated in the moisture controlled fresh produce container, said at least one MTW being configured to impart a limited, controlled water vapor transport rate to the laminate film; wherein for each of the MTWs, a smallest dimension of the MTW is at least 10% as large as a largest dimension of the MTW.
Mir teaches a container for fresh produce formed of a laminate comprising a first inner film and a second outer film (Mir, Abstract, Par. 0018-0019, 0038, 0063). Mir teaches a moisture vapor window (precision cuts 150), said window being a region of the laminate that includes the second outer film but does not include the first inner film (Mir, Par. 0071-0073). Mir teaches the moisture vapor window (precision cuts) are cut into the laminate itself and thus is present before the laminate is incorporated in the moisture controlled fresh produce container (Mir, Par. 0021, 0079, Figs 1C, 1E, 3, and 5). Mir teaches the moisture vapor window (precision cuts) are used to allow some water vapor out of the container, and thus satisfies the limitation of being configured to impart a limited, controlled water vapor transport rate to the laminate (Mir, Par. 0021-0022). Mir teaches the precision cuts can be channels, and have a smallest dimension (i.e. width) of 0.25 mm or more and a largest dimension (i.e. length) or 15 mm or less (Mir, Abstract, Par. 0085, and 0134). This results in embodiments wherein the smallest dimension is at least 10% of a largest dimension, for example if the smallest dimension is 0.5 mm and the largest dimension is 4 mm, and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I. Furthermore and/or alternatively, Mir teaches the shape, length, and width of the MTWs (PCs) can be changed to achieve different affects such as how much pressure is required to vent out excess steam (Mir, Par. 0021 and 0079-0080). Mir thus teaches the length and width, and thus the ratio of the smallest dimension to the largest dimension is a results effective variable. Therefore, it would have been obvious to one of ordinary skill in the art through routine optimization to arrive at the claimed ratio, see MPEP 2144.05, II.
Modified Wallen and Mir are analogous art as they both teach containers for fresh produce formed of a laminate comprising first and second film layers. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have formed a moisture vapor window in the laminate of modified Wallen, such that the window is a region of the laminate that includes the second film layer but does not include the first film layer. This would allow for a pressure activated steam venting mechanism (Mir, Par. 0071-0073).
Regarding claim 2, modified Wallen teaches the first film layer is a layer of heat-sealable polyethylene terephthalate (PET film) (Wallen, Par. 0034-0037, and Claim 8).
Regarding claim 3, modified Wallen teaches the second film layer is a layer of polyamide (nylon) (Wallen, Par. 0034-0037).
Regarding claim 5, modified Wallen teaches the laminate comprises a plurality of microperforations suitable for establishing a modified gaseous atmosphere within the fresh produce container (Wallen, Abstract, Par. 0001, 0003, 0013, and 0030).
Regarding claim 6, modified Wallen teaches a fresh produce container comprising: an interior surrounded by container walls, at least one of the container walls being at least partially formed by the laminated film according to claim 1 (Wallen, Abstract, Par. 0001, and 0022 – see “packaging”).
Regarding claim 7, modified Wallen teaches a container (package) formed from the laminate and thus teaches all of the container walls comprise the laminate film (Wallen, Abstract, Par. 0001, and 0022)
Regarding claim 8, modified Wallen teaches all of the elements of the claimed invention as stated above for claim 6. Modified Wallen is silent regarding the laminate film being a lidding film applied to an underlying rigid or semi-rigid container.
Mir teaches a container for fresh produce formed of a laminate, wherein the laminate is a lidding film applied to an underlying rigid container (tray) (Mir, Abstract, Par. 0018-0019, 0038-0039, 0063).
Modified Wallen and Mir are analogous art as they both teach containers for fresh produce. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have formed the container of modified Wallen to be a lidding film applied to an underlying rigid container. This would allow for a container for food products that is gas permeable (Mir, Par. 0038-0039; Wallen, Par. 0011).
Regarding claims 9-10, modified Wallen teaches attachment of the laminate film so as to form the container is by heat-sealing of the first film layer (Wallen, Par. 0022-0023, 0033-0034, and 0051). Furthermore, the heat-sealing of the first film layer would result in seams where the first film layer is heat-sealed, and thus the heat-sealing induces heat-sealing together of seam regions of the first film layer as required by claim 10.
Regarding claim 11, modified Wallen teaches the fresh produce container of claims 8-9 as stated above. Modified Wallen teaches the laminate film is a lidding film applied to an underlying rigid tray, and heat-sealing includes heat-sealing of attachment regions of the first film layer to an upper rip of the underlying rigid tray (Mir, Abstract, Par. 0038-0039).
Regarding claim 21, modified Wallen teaches the size and amount of the MTW’s affect the MTW’s ability to vent out excess pressure when heated (Mir, Par. 0021, 0079 and Figs. 1C, 1E, 3, and 5), and thus teaches that an area of the MTW’s, and an aggregate area of all of the MTW’s are result effective variables. Therefore, it would have been obvious to one of ordinary skill in the art, through routine optimization, to vary the size and amount of the MTW’s, and thus the individual and aggregate areas of the MTW’s, to within the claimed ranges with a reasonable expectation of achieving adequate breathability properties, see MPEP 2144.05.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Wallen et al. in view of Goihman et al. and Mir as applied to claim 1 above, further in view of Sankey et al. (US 20060165958 A1) (previously cited).
Regarding claim 4, modified Wallen teaches all of the elements of the claimed invention as stated above for claim 1. Modified Wallen further teaches a variety of different materials may be used for the second film layer including polyamide (nylon) (Wallen, Par. 0034-0037).
Modified Wallen is silent regarding the second film layer being a cellulose of polylactic acid layer of film.
Sankey teaches a laminate for fresh produce containers, wherein the laminate comprises a first layer, and a second layer that is water vapor permeable, wherein the second layer may be formed of polyamide or cellulose (Sankey, Abstract, Par. 0041, 0045-0047, 0054, 0076).
Modified Wallen and Sankey are analogous art as they both teach laminates for fresh produce containers. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used cellulose as the material for the second film layer of modified Wallen. This would allow for a moisture permeable layer (Sankey, Par. 004, and 0045-0047).
Response to Arguments
Applicant’s remarks and amendments filed 27 March 2026 have been fully considered.
Applicant argues that the instant drawings show support for the claim 1 amendment regarding the smallest and largest dimension of the MTW’s. This is not found persuasive for the following reasons:
The instant specification does not mention any ratio of the smallest and largest dimensions of the MTW. Furthermore, the instant specification does not state that the drawings are to scale. When the reference does not disclose that the drawings are to scale and is silent as to dimensions, arguments based on measurement of the drawing features are of little value. See Hockerson-Halberstadt, Inc. v. Avia Group Int’l, 222 F.3d 951, 956, 55 USPQ2d 1487, 1491 (Fed. Cir. 2000), see MPEP 2125. It is thus unclear if the exact ratio of the largest and smallest dimensions of the drawings are the exact ratio of the actual invention, and thus the drawings do not show support for any ratio of the largest and smallest dimensions.
Furthermore, even if the drawings were said to be to scale, Applicant would only have support for the exact ratios used in the drawings, and not for the broad range of at least 10%. As an example, Applicant’s range includes a ratio where the largest and smallest dimension are the same, i.e., a square, and yet the drawings do not show any square MTW’s where the smallest dimension is 100% as large as the largest dimension.
Therefore, Applicant does not have support for the claimed amendment and Applicant’s argument is unpersuasive.
Regarding arguments directed to the rejections over prior art, on pages 8-12 of the remarks, Applicant argues that Goihman states the low WVTR layer of Goihman is not configured to serve as a gas and moisture barrier. This is not found persuasive for the following reasons:
Goihman specifically states that the second layer (equivalent to the claimed first film) has a low water vapor transmission rate, including a WVTR of 10-100 g/m2-day @ 23°C (73°F) and 50% relative humidity with a thickness of 0.53-5 µm (Goihman, Par. 0036-0037). This results in a WVTR of ~0.013 to 1.27 g/100in2-day per mil, which lies within the claimed range of no greater than 3 g-mil/100in2-day. As Goihman has a low WVTR, including a WVTR that lies within the claimed range, Goihman would inherently act as a barrier to gas and moisture to at least some extent, satisfying the claimed limitation.
Regarding Applicant’s argument that Goihman teaches the second layer does not affect the WVTR of the laminate, it is noted that a layer of material, such as Goihman’s second layer, with a WVTR that is lower than the first layer, and that has a WVTR that is the same as the claimed invention, would inherently block some amount of moisture and gas. Therefore, Goihman’s second layer would inherently act as a barrier to gas and moisture to at least some extent, satisfying the claimed limitation.
In view of the above, the second layer of Goihman (equivalent to the claimed first film) satisfies the limitation of being configured to serve as a gas and moisture barrier, satisfying the claimed limitation and Applicant’s argument is unpersuasive.
Secondly, on page 12 of the remarks, Applicant argues that the MTW’s of modified Wallen would not be configured to impart a limited, controlled water vapor transport rate to the laminate film. This is not found persuasive for the following reasons:
As stated above, Goihman teaches the second layer (equivalent to the claimed first film layer) has a lower WVTR than the first layer (equivalent to the claimed second film layer). Furthermore, the combination of modified Wallen with Mir imparts the precision cuts of Mir (equivalent to the claimed MTW’s) into the first layer, such that at location of the MTW’s the first film layer is not present and the second film layer is present. An area with less low WVTR material, such the area of the MTW’s, would inherently allow some (i.e. limited) amount more moisture than the areas with the low WVTR material. The MTW’s thus satisfy the limitation of being configured to impart a limited, controlled WVTR to the laminated film. Therefore, Applicant’s argument is unpersuasive.
Thirdly, on pages 12-14 of the remarks, Applicant argues that Mir does not teach the ratio of the smallest dimension of the MTW to the largest dimension. This is not found persuasive for the following reasons:
To note, claim 1 has been rejected under 35 USC § 112(a) as the initial disclosure does not have support for the limitation of the dimensions of the MTW.
Mir teaches the precision cuts can be channels, and have a smallest dimension (i.e. width) of 0.25 mm or more and a largest dimension (i.e. length) or 15 mm or less (Mir, Abstract, Par. 0085, and 0134). This results in embodiments wherein the smallest dimension is at least 10% of a largest dimension, for example if the smallest dimension is 0.5 mm and the largest dimension is 4 mm, and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Furthermore and/or alternatively, Mir teaches the shape, length, and width of the MTWs (PCs) can be changed to achieve different affects such as how much pressure is required to vent out excess steam (Mir, Par. 0021 and 0079-0080). Mir thus teaches the length and width, and thus the ratio of the smallest dimension to the largest dimension, is a results effective variable. Therefore, it would have been obvious to one of ordinary skill in the art through routine optimization to arrive at the claimed ratio, see MPEP 2144.05, II. Regarding Applicant’s argument that one would not arrive at the claimed range through routine optimization, it is noted that Mir teaches the shape, length, and width of the PC’s can be varied depending on when the PC’s open due to pressure, such as having longer PC’s for opening under less pressure, and thus shorter PC’s for opening under more pressure (Mir, Par. 0021 and 0079-0080). Therefore, one of ordinary skill in the art would vary the length and width to optimize the opening of the PCs depending on the application, arriving at the claimed range, see MPEP 2144.05, II.
For the reasons stated above, Mir renders obvious the claimed dimension ratio and Applicant’s argument is unpersuasive.
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 THOMAS J KESSLER JR whose telephone number is (571)272-3075. The examiner can normally be reached 7:30-5:30 M-Th.
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/THOMAS J KESSLER/Examiner, Art Unit 1782
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