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 .
Applicant’s preliminary amendment dated 4 September 2023 is acknowledged. Claims 1-4 as amended are pending.
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.
Claim 4 is 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.
Claim 4 is directed to an application (use) of the film. It is unclear as to whether this claim is directed to a process or to a package. To the extent this is purported to set forth a process for packaging and storing fruits and vegetables, no positive steps are set forth for such a process.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1 and 4 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by CN 101805474 A (“Ma”) as evidenced by US 2009/0062494 (“Ernst”).
A partial machine translation of CN 101805474 A is enclosed. The additional reference is used to show that certain features are inherent. See MPEP 2131.01.
As to claims 1 and 4, Ma teaches a bag film for fruit and vegetable shelves, which can be applied to storing fruits and vegetables as required by claim 4, including at controlled temperature (para. 0034). Ma teaches linear polyethylene resin (LLDPE) 40-50 parts, low density polyethylene (LLDPE) resin in 20-25 parts, and ethylene vinyl acetate resin in 16-20 parts (paras. 0010-0012), the latter of which is within the recited range for polyethylene vinyl acetate resin required by claim 1.
Ma does not state whether the polyethylenes are branched or hyperbranched. However, as acknowledged by applicant at specification, p. 5, LLDPE resin is branched, being formed from copolymerization of ethylene and other olefins that provide branching structure. Furthermore, LDPE is understood to be hyperbranched, as evidenced by Ernst, para. 0220. As such, the composition of Ma meets the recited amounts of branched and hyperbranched polyethylene.
Claim(s) 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by CN 105542291 A (“Chen”) as evidenced by US 2009/0062494 (“Ernst”) and US 2006/0155080 (“Fell”).
A partial machine translation of CN 105542291 A is enclosed. The additional references are used to show that certain features are inherent. See MPEP 2131.01.
As to claim 1, Chen teaches a polyethylene film for packaging bags (para. 0002), the film composed of 20 to 40 parts of EVA resin, which meets the recited amount of polyethylene vinyl acetate resin, 30-40 parts of LLDPE resin and 10-30 parts of MLLDPE resin, and 20-35 parts of LDPE resin (paras. 0005-0006).
While Chen does not discuss branched or hyperbranched polyethylene, as acknowledged by applicant, specification, para. 0005 LLDPE is formed from copolymerization of ethylene and other olefins, and thus has branched structure. As evidenced by Fell, para. 0004, MLLDPE (metallocene LLDPE) is also branched polyethylene. As such, the combined MLLDPE and LLDPE (40 to 70 parts total) overlap the recited amount of branched polyethylene as required by claim 1.
Furthermore, LDPE is understood to be hyperbranched, as evidenced by Ernst, para. 0220. The formula of Chen therefore meets the recited amount of hyperbranched polyethylene.
Chen exemplifies a composition having 35 parts of LDPE (hyperbranched polyethylene), 55 parts combined of LLDPE and MLLDPE, thus 55 parts of branched polyethylene, and 30 parts of EVA (paras. 0030-0031), which are within the recited ranges.
Chen does not state the film is a controlled atmosphere fresh keeping film. However, the film of Chen is for packaging, and has the recited composition, and is therefore deemed to be suitable for the intended use.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over CN 101805474 A (“Ma”) as evidenced by US 2009/0062494 (“Ernst”).
The discussion of Ma with respect to claim 1 is incorporated by reference. While not exemplified, Ma teaches 20-25 parts of LDPE, which includes 25 parts, which is in the recited range for hyperbranched polyethylene. Ma teaches 16 to 20 parts of EVA, which includes 20 parts, which is within the recited range for polyethylene vinyl acetate resin, and 40 to 50 parts of LLDPE, which includes amounts within the recited range for branched polyethylene. Given that Ma teaches that each of these are preferred amounts for providing a fruit and vegetable packaging film, the modification of the film of Ma, including using the recited amounts of the three polymers, is an obvious modification.
Claims 2 and 3 are rejected under 35 U.S.C. 103 as being unpatentable over CN 105542291 A (“Chen”) as evidenced by US 2009/0062494 (“Ernst”) and US 2006/0155080 (“Fell”).
The discussion of Chen with respect to claim 1 is incorporated by reference.
As to claims 2 and 3, while not exemplified, Chen teaches Chen teaches 20 to 35 parts of LDPE (hyperbranched polyethylene), which substantially overlaps the recited range of claim 2, and includes the amount of claim 3 (paras. 0005-0006). The same general formula includes 40 to 70 parts of LLDPE and MLLDPE (branched polyethylenes), which overlaps the recited range of claim 2, and includes the recited amount of claim 3. Chen teaches 20 to 40 parts of EVA, which includes the recited amount of 20 to 30 parts of polyethylene vinyl acetate of claim 2, and the amount of claim 3. As such, given that Chen teaches the recited amount of each of the components is suitable for forming thin films for packaging, the use of the recited amounts is an obvious modification suggested by Chen.
Conclusion
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/KREGG T BROOKS/ Primary Examiner, Art Unit 1764