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 .
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 1-2 and 4-9 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 of U.S. Patent No. 11752747 B2 in view of Lee et al. (WO 2013180710 A1).
The instant claim 1 equates to the reference claims 1-2, except that the reference claims 1-2 do not claim that the olefin resin (d1) contained in the heat seal resin layer (D) is a propylene resin, wherein the propylene resin has a melt flow rate of 0.5 to 20 g/10 min at 230 °C.
Lee teaches a multilayer sealant film comprising a heat seal layer which comprises an olefin resin that is a propylene resin and a thermoplastic elastomer, wherein the propylene resin has a melt flow rate of 7 g/10 min at 230 °C, and the thermoplastic elastomer is present in an amount of 3-15 wt.% (Lee, Abstract, Par. 0001, 0016-0018, 0033, and Claim 1), which lies within the claimed ranges of 0.5 to 20 g/10 min and 0-80 wt.% respectively and therefore satisfies the claimed ranges, see MPEP 2131.03.
The reference patent and Lee are analogous art as they both teach multilayer sealant films comprising sealant layer which comprises an olefin resin and a thermoplastic elastomer. 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 the heat seal layer of Lee as the heat seal layer of the reference patent. This would allow for an easy tear seal with excellent hermetic seal properties (Lee, Abstract).
The instant claim 2 equates to the reference claims 2-3.
The instant claim 4 equates to the reference claims 2 and 4.
The instant claim 5 equates to the reference claims 2 and 5.
The instant claim 6 equates to the reference claims 2 and 6.
The instant claim 7 equates to the reference claims 2 and 7.
The instant claim 8 equates to the reference claims 2 and 8.
The instant claim 9 equates to the reference claims 2 and 9.
Claim 10 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2 and 9-10 of U.S. Patent No. 11752747 B2 in view of Lee et al. (WO 2013180710 A1) as applied to claims 1 and 9 above, further in view of Carespodi (US 4784885 A).
The instant claim 10 equates to the reference claims 1-2 and 9-10, except that the reference claims 1-2 and 10 do not claim that the opening is mainly composed of a propylene resin.
Carespodi teaches a container comprising an opening mainly composed of a propylene and multilayer sealant film heat sealed at the opening of the container, wherein the multilayer sealant film comprising a heat seal layer which comprises an olefin resin that is polypropylene and a thermoplastic elastomer (Carespodi, Abstract, Col. 1 Lines 44-52 and Col. 2 Line 40 – Col. 3 line 12).
The reference Patent and Carespodi are analogous art as they both teach containers comprising a heat seal laminate heat sealed to the opening of the container wherein the laminate comprising a heat seal layer which comprises a polyolefin and a thermoplastic elastomer. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have utilized polypropylene as the material for the container at the opening of the reference patent. This would allow for a strong seal which is cleanly peelable at the heat seal interface under hand pressure (Carespodi, Abstract).
Response to Arguments
Applicant’s remarks and amendments filed 07 November 2025 have been fully considered.
On pages 5-6, Applicant first argues that Patent ‘747 is not statutory double patenting as the reference patent does not teach a propylene resin. This is found moot.
The statutory double patenting rejections have been withdrawn due to the present claim amendments.
Secondly, on pages 7-8 of the remarks, Applicant argues that neither the reference patent ‘747 of Carespodi teach a propylene resin with the required melt flow rate. This is found moot.
The nonstatutory double patenting rejections in view of the reference patent and Carespodi have been withdrawn due to the present claim amendments. However, new nonstatutory double patent rejections have been made above to claim 1 in view of the reference patent and newly cited Lee.
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