DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/6/2026 has been entered.
Claim Rejections - 35 USC § 102
Claim(s) 1, 6-7, and 19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Yuno et al. (JP 2020-011415).
Note: citations refer to the machine translation of JP ‘415 provided with this Office Action.
Regarding claims 1 and 6-7:
Yuno discloses a laminate (film) for packaging material that is recyclable [abstract; 0001; 0006]. The laminate comprises a sealant layer 3 (cap and seal layer) on each outer surface of a reinforcement layer 2 (core layer) [abstract; 0006; 0010-0012; 0015; 0019]. The core layer comprises biaxially oriented polyamide [0020]. The sealant layers comprise polyethylene and a compatibilizer to improve recyclability [0013; 0018]. Example compatibilizers include maleic anhydride-modified polyethylene having densities of 0.870 g/cc and 0.912 g/cc [0040-0041]. Yuno teaches forming the laminate via “an inflation method” (i.e., blown film) [0037]. Furthermore, it is noted the claimed limitation of a “blown” film is a product-by-process limitation. Given that Yuno’s laminate comprises the same materials as presently claimed, the examiner submits the laminate is broadly “flexible” as presently claimed.
Yuno teaches a variety of packaging bags can be formed from the laminate [0039]. The recitation in the present claims that the film is “for bag-in-box flexible packaging” is merely an intended use. Applicant's attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.
The examiner takes the position that the intended use recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art, and further that the prior art structure is capable of performing the intended use. Given that Yuno discloses a film as presently claimed, it is clear this film would be capable of performing the presently claimed intended use as required in the above cited portion of the MPEP.
Regarding claim 19:
Yuno teaches forming a package by sealing two films together via the sealant layer [0039].
Claim Rejections - 35 USC § 103
Claim(s) 2-3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yuno et al. (JP 2020-011415) in view of Parkinson et al. (WO 2016/109023).
Regarding claim 2:
Yuno discloses a laminate comprising two sealant layers, wherein one layer is a cap layer, as previously explained. Each sealant layer comprises one or more layers of the same or different compositions [0015].
Yuno is silent with regard to a three-layer film as presently claimed.
Such constructions were known in the art to have utility. For example, Parkinson discloses recyclable packaging comprising a) at least one polyolefin layer, b) at least one tie layer, and c) at least one polar layer (abstract; 1:7-2:13). Suitable polar layers include polyamide (10:1-5). An embodiment includes a cap layer comprising layers of polyethylene on either side of a layer of polyethylene and compatibilizer (11:13+; Fig. 4C).
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to use a sealant layer comprising known layers, including a three-layer film comprising layers of polyethylene on either side of a layer of polyethylene and compatibilizer, to provide the properties (e.g., sealing, moisture barrier, etc.) known in the art.
Regarding claim 3:
Yuno teaches the use of 5-20% by mass of compatibilizer in the sealant layer [0013]. Additionally, Yuno teaches that when the laminate is melted down to a recycled resin composition, the amount of compatibilizer present is 4-20% by mass, which would be the mass percentage of the compatibilizer relative to the film [0035]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to vary the amount of compatibilizer, including over amounts within the claimed range, to provide a film according to the prior art teachings having the recyclable properties desired for a given end use.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yuno et al. (JP 2020-011415).
Regarding claim 5:
Yuno teaches the reinforcing (core) layer has a thickness of 5-20% of the laminate [0021]. An example thickness is 120 µm [0042]. Combining these teachings provide a range of reinforcing layer thicknesses of 6-24 µm or 0.24-0.94 mil. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to vary the thickness of the core layer, including over values within the claimed range, to provide a film according to the prior art teachings having dimensions and other properties (e.g., mechanical, gas barrier, etc.) desired for a given end use.
Claim(s) 8 and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yuno et al. (JP 2020-011415) in view of Jackson (US 2020/0361692).
Regarding claim 8:
Yuno discloses a laminate comprising two sealant layers, wherein one layer is a cap layer, as previously explained. Each sealant layer comprises one or more layers of the same or different compositions [0015].
Yuno is silent with regard to a five-layer film as presently claimed.
Such constructions were known in the art to have utility. For example, Jackson discloses flexible bags [abstract; 0002]. Figure 10 discloses a general structure of a film used to form the bag, comprising A) a sealant layer, B) an oxygen transmission rate (OTR)-reducing barrier layer, and C) a flex-crack resistance (FCR)-improving layer [0024; 0033-0034]. The reference teaches an FCR-improving layer (cap layer) having a five-layer construction comprising polyethylene/tie layer/EVOH/tie layer/polyethylene, which provides a desirable oxygen barrier properties during flex-cracking and at varying levels of humidity [0116-0122].
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to use a five-layer construction of polyethylene and EVOH to provide improved properties as taught by Jackson.
Regarding claim 12:
See the rejection of claim 5.
Rejections continue on the next page.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yuno et al. (JP 2020-011415) in view of Jackson (US 2020/0361692) as applied to claims 8 and 12 above, and further in view of Kim et al. (US 2004/0106719).
Regarding claim 9:
Yuno in view of Jackson suggest a laminate comprising a layer of EVOH as previously explained.
The references are silent with regard to the molar amounts of ethylene.
One skilled in the art recognized different molar amounts of the constituents of the copolymer
affects the properties of the polymer. For example, Kim teaches using EVOH containing 10-50 mol% of ethylene to provide suitable processing properties and suitable barrier properties [0039]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to ethylene content of the EVOH, including over amounts falling within the claimed range, to adjust the properties as desired for a given end use.
Claim(s) 10, 13, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yuno et al. (JP 2020-011415) in view of Jackson (US 2020/0361692) as applied to claims 8 and 12 above, and further in view of Parkinson et al. (WO 2016/109023).
Regarding claim 10:
Yuno in view of Jackson suggest a laminate as previously explained.
The references are silent with regard to a three-layer film as presently claimed.
Such constructions were known in the art to have utility. For example, Parkinson discloses recyclable packaging comprising a) at least one polyolefin layer, b) at least one tie layer, and c) at least one polar layer (abstract; 1:7-2:13). Suitable polar layers include polyamide (10:1-5). An embodiment includes a cap layer comprising layers of polyethylene on either side of a layer of polyethylene and compatibilizer (11:13+; Fig. 4C).
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to use a sealant layer comprising known layers, including a three-layer film comprising layers of polyethylene on either side of a layer of polyethylene and compatibilizer, to provide the properties (e.g., sealing, moisture barrier, etc.) known in the art.
Regarding claim 13:
See the rejection of claim 3.
Regarding claim 20:
See the rejection of claim 19.
Response to Arguments
Applicant's arguments filed 1/6/2026 have been fully considered but they are not persuasive.
Applicant’s amendments to the specification overcome previous objections. Additionally, Applicant’s amendments overcome previous rejections under 35 USC 112.
Applicant’s amendments to claim 1 overcome previous rejections based on Berbert (WO 2020/131105). The reference discloses its outer film comprises polyamide, and so teaches away from the claimed film comprising layers of polyethylene on either side of the core layer.
Applicant argues Parkinson, which is still used in some rejections above, fails to disclose a core layer comprising a biaxially oriented polyamide or a bag-in-box configuration (p8).
Although Parkinson does not disclose all the features of the present claimed invention, it 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 a cap layer comprising a five-layered cap layer, and in combination with the primary reference, discloses the presently claimed invention. The features are disclosed by newly cited Yuno as explained above.
Conclusion
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/JOHN D FREEMAN/Primary Examiner, Art Unit 1787
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