DETAILED ACTION
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Election/Restrictions
Claims 12-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 22 May 2025.
The applicant requested rejoinder of non-elected claims in the reply filed 22 May 2025 is noted. However, in order for rejoinder to occur, the applicant is advised that the process claims should be amended during prosecution to require the limitations of the product claims.
Claim Rejections - 35 USC § 103
Claims 1-6, 8, 10, and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Kupsch (WO 2008/100720 A1) in view of Hernandez et al. (WO 2017/106075 A1).
Kupsch is directed to a coating composition for use as a heat sealable film (page 1, lines 4-9). The composition comprises 50-92 wt% propylene based plastomer and 8 to 50 wt% low density polyethylene having Mw/Mn of 5.0 to 13 (page 4, lines 15-20).
In the embodiment of Example 4, a biaxially oriented polypropylene substrate is directly extrusion coated with a composition comprising 30 wt% resin A and 70 wt% of either resin B or resin C (Figure 4 and page 13, line 29-page 14, line 11). Resin A is low density polyethylene with I2 of 2.3 g/10 min; resin B is a polypropylene plastomer copolymer having a density of 0.888 g/cm3 and a melt flow rate at 230 oC of 25 g/10 min containing 5 wt% ethylene; resin C is a polypropylene plastomer copolymer having a density of 0.876 g/cm3 and a melt flow rate at 230 oC of 25 g/10 min containing 9 wt% ethylene (Table 1).
Thus Kupsch teach all the limitations of claims 1-6, 8, 10, and 11, except that the reference is silent regarding the melting point of the propylene based plastomer.
Hernandez is directed to a laminate comprising an oriented polypropylene substrate and a heat sealable layer comprising a blend of 30-80 wt% propylene based plastomer and 20-70 wt% low density polyethylene (abstract). The melt temperature of the plastomer is 55-146 oC (paragraph 0049).
Hernandez illustrates that propylene based plastomers which are to be blended with low density polyethylene to form heat sealing layers extruded onto oriented polypropylene films suitably have a melting point of 55-146 oC. It would have been obvious to one of ordinary skill in the art to employ a propylene based plastomer having a melting point of 55-146 oC in the heat sealable layer of Kupsch since the courts have held the selection of a known material (e.g., propylene based plastomer having a melting point of 55-146 oC) based on its suitability for its intended use (e.g., heat sealing layer) supported a prima facie obviousness determination. See MPEP 2144.07.
Additionally, since the melting point for the propylene based plastomer taught by the prior art, i.e., 55-146 oC, overlaps the range recited in the claims, i.e., 80-100 oC, the courts have held that a prima facie case of obviousness exists. See MPEP 2144.05.
Regarding claim 8, since the molecular weight of propylene is about 42 g/mol and that of ethylene is about 28 g/mol, a copolymer having 5 wt% ethylene would be expected to contain about 7 mol% ethylene.
Double Patenting
Claims 1-6, 8, 10, and 11 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 16-18 of copending Application No. 18/256,498 in view of Hernandez et al. (WO 2017/106075 A1).
Claims 16-18 and 20-22 of copending Application No. 18/256,498 are directed to multilayer structures which recite all the limitations of claims 1-8, 10, and 11, except for employing polyethylene as opposed to polypropylene for the oriented film and being silent as to the melting point of the plastomer of the sealant layer.
Hernandez is directed to a heat sealed package formed from a laminate comprising an exterior surface of oriented polypropylene layer and an interior surface formed from a blend of a propylene based plastomer and low density polyethylene (abstract). The plastomer has a melting point of 55 to 146 oC (paragraph 0061). The oriented polypropylene may be biaxially oriented (paragraph 0036). The exterior surface may be formed of oriented polyethylene instead of oriented polypropylene (paragraph 0035)
It would have been obvious to one of ordinary skill in the art to employ a propylene based plastomer having a melting point of 55-146 oC in the sealant layer claimed in copending Application No. 18/256,498 since the courts have held the selection of a known material (e.g., propylene based plastomer having a melting point of 55-146 oC) based on its suitability for its intended use (e.g., sealant layer) supported a prima facie obviousness determination. See MPEP 2144.07. Additionally, since the melting point for the propylene based plastomer taught by the prior art, i.e., 55-146 oC, overlaps the range recited in the claims, i.e., 80-100 oC, the courts have held that a prima facie case of obviousness exists. See MPEP 2144.05.
Moreover, it would have been obvious to one of ordinary skill in the art to replace the oriented polyethylene film with a biaxially oriented polypropylene film since Hernandez illustrates that these are functionally equivalent films for laminates with sealant layers formed from a blend of polypropylene plastomer and low density polyethylene.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Applicant's arguments filed 04 September 2025 have been fully considered but they are not persuasive.
The applicant argues that Hernandez does not teach a propylene-based plastomer comprising units of both propylene and ethylene that has a melt flow rate of 20 to 30 g/10 minutes as now claimed. The applicant asserts that Hernandez, while generically teaching propylene based plastomers having melt flow rates of from 0.1 to 25 g/10 min, specifically states that embodiments wherein the plastomer is a copolymer of propylene and ethylene have melt flow rates of only 0.1 to 10 g/10 min.
This is not persuasive because Hernandez does not require their propylene-ethylene plastomers to have a melt flow rate of only 0.1 to 10 g/10 min. Rather, this range is taught by Hernandez as an example of the broader range of 0.1 to 25 g/10 that their plastomers may have. Since Kupsch exemplifies an embodiment employing a propylene-ethylene plastomer having a melt flow rate at 230 oC of 25 g/10 min and since Hernandez teaches propylene plastomers used for the same application as Kupsch as having melt flow rates and melting points that overlap the claimed ranges, it would have been obvious to one of ordinary skill in the art to choose a propylene-ethylene plastomer having a melt flow rate at 230 oC and melting point that satisfy the limitations of claim 1.
Conclusion
THIS ACTION IS MADE FINAL. 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 RAMSEY E ZACHARIA whose telephone number is (571)272-1518. The best time to reach the examiner is weekday afternoons, Eastern time.
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/RAMSEY ZACHARIA/Primary Examiner, Art Unit 1787