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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 5/12/26 has been entered and considered. Claims 1 – 6 and 14 – 15 are amended, claims 12 and 24 are cancelled and claims 1 – 23 and 25 – 28 are pending. The amendments to the Specification dated 5/12/26 are entered. In view of Applicant’s amendment to the claim 1, the Examiner withdraws the 35 U.S.C. 102(a)(1) rejection as being anticipated by Liu et al. (CN109955555A) (English translation provided by Applicant on 10/06/23 of claims 1, 12 – 13, 15 and 24, the rejection under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Liu et al. (CN109955555A) (English translation provided by Applicant on 10/06/23 of claims 25 – 28, the rejection under 35 U.S.C. 103 as being unpatentable over Krishnaswamy et al. (US 9,328,239) in view of (CN109955555A) (English translation provided by Applicant on 10/06/23 of claims 1, 13 – 14, 17 and 22 – 23 and the 35 U.S.C. 103 as being unpatentable over Krishnaswamy et al. (US 9,328,239) in view of Liu et al. (CN109955555A) (English translation provided by Applicant on 10/06/23 as applied above, further in view of Durie et al. US 2022/0089863) of claims 2 – 11, 16 and 18 – 21. The invention as currently claimed is not found to be patentable for reasons herein below.
Response to Arguments
Applicant's arguments filed May 12, 2026 have been fully considered but they are not persuasive.
Applicant’s arguments regarding the newly added limitation of the biodegradable heat-sealable layer, the barrier layer, and the biodegradable printed layer are adhered together with one or more adhesives that are separate from the biodegradable heat-sealable layer, the barrier layer, and the biodegradable printed layer to form the multi-layer structure with the one or more adhesives are considered to be moot in light of the newly applied secondary reference, Whitehouse (WO 2004/0765820), which addresses this limitation.
Regarding the argument regarding claim 15, the Examiner agreed in the Advisory dated 5/22/26 and indicated the claim as allowable detailed below in the section Allowable Subject Matter.
Regarding the arguments directed to claims 25 – 28, Applicant has not provided any argument/evidence that the properties would not be inherent. The Examiner has established appropriate burden in the previous Office Action and the instant Office Action establishing that the similarities in the prior art structure would inherently possess the claimed properties. The burden is upon Applicant to prove otherwise.
Regarding the arguments that the Office does not demonstrate any teachings of Krishnaswamy or Liu teach a thickness of aluminum in claim 14, the Examiner notes that claim 14 does not require aluminum but only a barrier layer (comprising aluminum and/or PHA – see claim 1) with no structure other than a thickness. Additionally, Krishnaswamy as detailed below teach a laminate between 1 to 15 layers specifically laminates of 3 layers or more (column 7, lines 30 – 40). Krishnaswamy et al. teach that the compositions of each layer can be the PLA/PHA blends as described (column 7, lines 35 – 45 and column 24, lines 1 – 3). The 3 or more layers of the described composition are equated to Applicant’s “biodegradable heat-sealable layer”, “barrier layer” and “biodegradable printed layer”. Krishnaswamy et al. teach that the laminate can have a size from 25 – 75 microns and each individual layer can have a size of about 1 – 5 microns (column 7, lines 30 – 40). Krishnaswamy et al. teaches the claimed limitations.
Applicant argues that the prior art does not teach claims 18 and 19, however, does not indicate why the rejection is not addressing these limitations or pointing out in any detail why the details of the rejection are lacking in addressing these limitations. See the rejections set forth below.
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, 13, 23 and 25 – 28 are rejected under 35 U.S.C. 103 as being unpatentable over Liu et al. (CN109955555A) (English translation provided by Applicant on 10/06/23) in view of Whitehouse (WO 2004/0765820).
Liu et al. is directed to a biodegradable high barrier liquid packaging film [0002].
Liu et al. teach a packaging film comprising a heat seal layer, a barrier layer and a protective layer [0009]. Liu et al. teach that the heat seal layer and protective layer can be selected from materials including polyhydroxyalkanoate (PHA) [0010]. Liu et al. teach that the heat seal layer can have a plurality of layers and the material composition between the layers of the heat seal layer may be the same or different, in certain embodiments the heat seal layers can have the same composition formed by multilayer co-extrusion casting machine [0018]. Additionally, Liu et al. teaches that the protective layer can have multiple layers (e.g. 2 – 3 layers). The Examiner equates these layers to Applicant’s “biodegradable heat-sealable layer” and “biodegradable printed layer”. Liu et al. teach a packaging film having a heat seal layer, a protective layer, an aluminum layer and the protective layer [0069]. Liu et al. teach that the packaging film can be printed with a pattern or text on the outside of the packaging film specifically on the protective layer [0054] and the printing can be provided by means of a printing press [0084]. It should be noted that the Examiner considers a printing press to result in the same final structure as the claimed processes using flexographic, gravure or digital printing method as required in claim 23. Liu et al. teach that the film can be used for packaging for a packaged article [0093] such as a stand-up pouch, a bailey bag, a Tetra Pak bag [0094]. Liu et al. teach the use of adhesives to bond the layers [0052].
Although Liu et al. teaches that the packaging film can be made of multiple layers and several of the layers can comprise PHA [0010], Liu et al. does not specifically teach that the biodegradable heat-sealable layer, the barrier layer, and the biodegradable printed layer are adhered together with one or more adhesives that are separate from the biodegradable heat-sealable layer, the barrier layer, and the biodegradable printed layer to form the multi-layer structure with the one or more adhesives.
Whitehouse is directed to PHA blends, related methods and articles (Abstract). Whitehouse teach PHA blends used to make articles for the food industry such as food storage trays, papers, wraps and can be manufactured by coextruded films, blown film, cast film etc. (page 10, lines 20 – 30). Whitehouse teach PHA blends to create a contact adhesive composition or hot melt adhesive. In some applications, a surfaced coated with a PHA blend contact adhesive composition can be contacted with a second, coated or uncoated surface to form an adhesive bond between two surfaces (page 11, lines 18 – 24).
It would have been obvious to adhere the layers of Liu et al. together with an adhesive that is also made by PHA because it would have been choosing another suitable method in the art to combine layers together from a finite number of identified, predictable solutions and possessing the benefits of biodegradable high barrier liquid packaging film as desired by Liu et al with a reasonable expectation of success. See MPEP 2143.I.(E). The burden is upon Applicant to demonstrate unexpected results.
As to claim 13, Liu et al. teach that the packaging film thickness is not particularly limited and can include thicknesses of 30 and 50 microns [0013].
As to claims 25 – 28, Liu et al. teach the claimed invention above but does not expressly teach the multilayer structure has a melting point of greater than 102 degrees C as determined by ASTM E794-06 as required by claim 25, the food pouch as a shelf-life of at least 18 months as determined by ASTM E2454 as required by claim 26, the oxygen transmission rate of less than 0.45ml/m2/24hrs as determined by ASTM D3985 as required by claim 27 and the water vapor transmission rate of less than 0.2 g/m2/24 hours as determined according to ASTM F1249. It is reasonable to presume that the above properties are inherent to Liu et al. Support for said presumption is found in that Liu et al. also teach a packaging film comprising a heat seal layer, a barrier layer and a protective layer [0009] comprising PHA layers [0010], specifically embodiments a heat seal layer, a protective layer, an aluminum layer and the protective layer [0069]. Liu et al. teach that the packaging film can be printed with a pattern or text on the outside of the packaging film specifically on the protective layer [0054]. Liu et al. teach that the film can be used for packaging for a packaged article [0093] such as a stand-up pouch, a bailey bag, a Tetra Pak bag [0094]. Liu et al. teach the use of adhesives to bond the layers [0052]. Liu et al. teach the oxygen permeability of 0.3 – 1.3 cc/m2/24 hr using GB/T 19789-2005 [0072] which is equivalent to 0.3 – 1.3 mL/m2/24 hr and the water vapor transmission is not more than 2.2 g/(m2-24hr) using GB/T 1037-88 test [0073] and therefore are expected to have the same properties of the claimed invention.
Claims 1, 13 – 14, 17 and 22 - 23 are rejected under 35 U.S.C. 103 as being unpatentable over Krishnaswamy et al. (US 9,328,239) in view of Liu et al. (CN109955555A) (English translation provided by Applicant on 10/06/23).
Krishnaswamy et al. is directed to compositions of polymer blends of polylactic
acid (PLA) and polyhydroxyalkanoate for use in articles, films and laminates (Abstract) specifically suitable for coating other layers such as paper to produce articles or containers (column 7, lines 14 – 20).
As to claim 1, Krishnaswamy et al. teach a laminate between 1 to 15 layers specifically laminates of 3 layers or more (column 7, lines 30 – 40). Krishnaswamy et al. teach that the compositions of each layer can be the PLA/PHA blends as described (column 7, lines 35 – 45 and column 24, lines 1 – 3). The 3 or more layers of the described composition are equated to Applicant’s “biodegradable heat-sealable layer”, “barrier layer” and “biodegradable printed layer”. Additional layers in the 1 – 15 layers as described in Krishnaswamy et al. could be considered Applicant’s “separate adhesive layers”. Krishnaswamy et al. teach that the layered products of the composition can be used to create food wrap and food bags among many other applications (column 24, lines 29 – 70).
Krishnaswamy et al. fail to teach that an exterior layer equated to the “biodegradable printed layer” is printed and is a pouch having at least one sidewall and a pouch closure.
Liu et al. is directed to a biodegradable high barrier liquid packaging film [0002]. Liu et al. teach a packaging film comprising a heat seal layer, a barrier layer and a protective layer [0009]. Liu et al. teach that the heat seal layer and protective layer can be selected from materials including polyhydroxyalkanoate (PHA) [0010]. Liu et al. teach that the heat seal layer can have a plurality of layers and the material composition between the layers of the heat seal layer may be the same or different, in certain embodiments the heat seal layers can have the same composition formed by multilayer co-extrusion casting machine [0018]. Additionally, Liu et al. teaches that the protective layer can have multiple layers (e.g. 2 – 3 layers). In certain embodiments, the material layers comprising the protective layer can have the same material composition made by a multi-layer coextrusion casting machine [0019]. Liu et al. teach that the packaging film can be printed with a pattern or text on the outside of the packaging film specifically on the protective layer [0054] and the printing can be provided by means of a printing press [0084]. It should be noted that the Examiner considers a printing press to result in the same final structure as the claimed processes using flexographic, gravure or digital printing method as required in claim 23. Liu et al. teach that the film can be used for packaging for a packaged article [0093] such as a stand-up pouch, a bailey bag, a Tetra Pak bag [0094].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to print using a printing press an exterior layer of packaging film in order to provide a label or identification of the product contained within. Additionally, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to create a pouch using the laminate composite having at least one sidewall and a closure in order to effectively contain a food product.
As to claims 13 – 14 and 22, Krishnaswamy et al. teach that the laminate can have a size from 25 – 75 microns and each individual layer can have a size of about 1 – 5 microns (column 7, lines 30 – 40).
As to claim 17, Krishnaswamy et al. teach that the laminate can comprises 1 to 15 layers where the layers can be made of multiple layers (column 7, lines 30 – 40). As Applicant does not establish any further structure of the sublayers and Krishnaswamy et al teach that the structure can have 1 – 15 layers, it is reasonable to equate adjacent layers on the outer surface as the sub-layers of the printed layer.
Claims 2 – 11, 16 and 18 – 21 are rejected under 35 U.S.C. 103 as being unpatentable over Krishnaswamy et al. (US 9,328,239) in view of Liu et al. (CN109955555A) (English translation provided by Applicant on 10/06/23 as applied above, further in view of Durie et al. US 2022/0089863).
Krishnaswamy et al. teach a polymer blend having polylactic
acid and a PHA copolymer comprising 3-hydroxybutyrate (3HB) and hydroxyhexanaote (3HH) having 25 – 50 weight % 3HH (column 2, lines 45 – 70) Krishnaswamy et al. teach one or more additives can be included in the composition, specifically a nucleating agent comprising cyanuric acid or boron nitride (column 4, lines 40 – 53). The percentages of PLA in the PLA/PHA blend are 50-95% by weight and for example 90/10, 85/15, 80/20, 75/25, 70/30, 65/35, 60/40, 55/45 or 50/50 (column 16, lines 18 – 30).
Krishnaswamy et al. in view of Liu et al. teach the inclusion of an nucleating agent but fail to teach a percentage of nucleating agent present relative to the layer, specifically, about 0.1 to about 5 weight % as required by claims 2, 7 and 16.
Durie et al. teach a preform for a biodegradable container (Abstract) comprising a poly(hydroxyalkanoate) copolymer such as poly-3-hydroxybutyrate-co-3-hydroxyhexanoate (P3HB-co-P3HHx) [0010]. Durie et al. teach that the preform also typically includes from about 0.1 to about 10 weight percent of at least one nucleating agent and from about 0.005 to about 3 weight percent of at least one melt strength enhancer [0008]. The nucleating agent can comprise boron nitride among other nucleating agents [0015].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use about 0.1 to about 10 weight percent nucleating agent as suggested by Durie et al. in order to make a biodegradable container having an appropriate amount of nucleating agent to predictably create a biodegradable container with increased biodegradability and/or composability [0038]. MPEP 2143
As to claims 3 – 5, 8 – 10 and 18 – 20, Krishnaswamy et al. teach the PHA can be a copolymer (containing two or more different monomer units) in which the different monomers are randomly distributed in the polymer chain. Examples of PHA copolymers include poly 3-hydroxybutyrate-co-3-hydroxypropionate (PHB3HP), poly 3-hydroxybutyrate-co-4-hydroxybutyrate (P3HB4HB), poly 3-hydroxybutyrate-co-4-hydroxyvalerate (PHB4HV), poly 3-hydroxybutyrate-co-3-hydroxyvalerate (PHB3HV), poly 3-hydroxybutyrate-co-3-hydroxyhexanoate (PHB3HH) and poly 3-hydroxybutyrate-co-5-hydroxyvalerate (PHB5HV) (column 10, lines 28 – 40). Krishnaswamy et al. teach that by selecting the monomer types and controlling the ratios of the monomer units in a given PHA copolymer a wide range of materials properties can be achieved. Although examples of PHA copolymers having two different monomer units have been provided, the PHA can have more than two different monomer units (e.g., three different monomer units, four different monomer units, five different monomer units, six different monomer units) An example of a PHA having 4 different monomer units would be PHB-co-3HH-co-3HO-co-3HD or PHB-co-3-HO-co-3HD-co-3HDd (these types of PHA copolymers are hereinafter referred to as PHB3HX). Typically where the PHB3HX has 3 or more monomer units the 3HB monomer is at least 70% by weight of the total monomers, preferably 85% by weight of the total monomers, most preferably greater than 90% by weight of the total monomers for example 92%, 93%, 94%, 95%, 96% by weight of the copolymer and the HX comprises one or more monomers selected from 3HH, 3HO, 3HD, 3HDd (column 10, lines 40 – 60). It would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the amount of monomer units to include the claimed range. One would have been motivated to provide 75-99.9 mole percent 3-hydroxybutyrate, 0.1 – 25 mole percent 3-hydroxyhexanoate and 0.1 to 25 mole percent of 3-hydroxvalerate, 3-hydroxyoctanoate, 3-hydroxydeconoate to have a tailored polymer with the desired material properties. It has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. See MPEP 2144.05(II).
As to claim 6, 11 and 21, Krishnaswamy et al. teach the PHA has a molecular weight of 100,000 to 600,000 (column 8, lines 20 – 29).
Allowable Subject Matter
Claim 15 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Liu et teach that the packaging film can additionally comprise a layer comprising PA5X and PA410 [0047], however, Liu et al. does not teach any nylon layers and the prior art as a whole does not suggest the inclusion of nylon. It should be noted that nylon is not biodegradable thus one would not be motivated to add a biaxially oriented nylon specifically to a biodegradable high barrier liquid packaging film [0002] taught by Liu et al.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER A BOYD whose telephone number is (571)272-7783. The examiner can normally be reached M-F 8 am - 5 pm with alternating Fridays off.
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/JENNIFER A BOYD/Supervisory Patent Examiner, Art Unit 1786
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