DETAILED ACTION
The amendment of 25 September 2025 has been entered and fully considered. Claims 1-7 are pending with claim 1 amended.
The text of those sections of Title 35 and 37, U.S. Code not included in this action can be found in a prior Office action. The text of those sections of the MPEP not included in this action can be found in a prior Office 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 .
Claim Rejections - 35 USC § 103
Claim(s) 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over Clare (US 20160229157).
Clare teaches a multilayer package formed from and outer web (A) and an inner web (B) (¶10) suitable for preparing packages of foods including liquids (abstract). The package is in the form of a pouch, which is being interpreted as reading upon the limitation bag in claim 6. The layers all include PE and PE makes up at least 95% of the polymeric material (¶20) which reads upon claim 5.
The outer web (A) includes a first layer (A.1) of HDPE (¶12) and a second layer (A.2) formed from HDPE or a lower density polyethylene (¶13), and in certain embodiments sLLDPE (¶52). Clare teaches the inner web (B) is formed from an interface layer, a core layer, and a sealant layer (¶75). The interface skin layer (B.1) is formed from predominantly LLDPE (¶14) or sLLDPE (¶80). Clare teaches a core layer (B.2) prepared from HDPE (¶16). Clare teaches a sealant layer formed from polyethylene (¶17).
There are (at least) two possible configurations where the claim limitations are met.
First, the base layer is met by B2 (see ¶16 teaching HDPE). The first layer is met by B1 (see ¶15 teaching HDPE having MFI from 0.1-10). The second layer is met by A2 (see ¶¶25, 51-52 teaching sLLDPE having a density of 0.915-0.93, a MFI from 0.1-5, R2 of 2-4). The adhesive layer is met by layer B3 (see (¶17).
Although Claire fails to teach a specific embodiment having the MFI as recited for the first or second layer, Claire does teach an overlapping range for both. Because the ranges recited overlap that of the claim it would have been obvious to a person having ordinary skill in the art to pick any portion of the range including 5. In the case where the claimed ranges “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). This configuration meets every limitation of claims 1 and 4-7.
Alternatively, the base layer is met by A1 (see ¶12 teaching HDPE). The first layer is met by A2 (see ¶15 teaching HDPE having MFI from 0.1-10). The second layer is met by B1 (see ¶¶25, 51-52 teaching sLLDPE with a density of 0.915-0.93, a MFI from 0.1-5 and R2 of 2-4 (¶52)). The adhesive layer is met by layer B3 (see (¶17).
Although Claire fails to teach a specific embodiment having the MFI as recited for the first or second layer, Claire does teach an overlapping range for both. Because the ranges recited overlap that of the claim it would have been obvious to a person having ordinary skill in the art to pick any portion of the range including 5. In the case where the claimed ranges “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). This second configuration every limitation of claims 1 and 4-7.
Regarding claim 3, in the first configuration above, Clare teaches the first layer B1 is 15-25% of the total thickness of B which is 2-3 mils (¶148), which is 0.3-0.75 mils for layer B1. Clare teaches the thickness of the second layer A2 is 0.4 mils (¶126).
Although these thicknesses do not satisfy the equation in claim 3, Clare teaches the thickness can be adjusted based on desired impact resistance and stiffness (¶127). It would have been obvious to one having ordinary skill in the art at the time the invention was made to create the invention of Claire with a smaller A2 and larger B1 such that the range of claim 3 is satisfied since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). The burden is upon the Applicant to demonstrate that the claimed is critical and has unexpected results.
Regarding claim 3, in the second configuration above, Clare teaches of the first layer A2 is 0.4 mils (¶126). Clare teaches the thickness of the second layer B1 is 15-25% of the total thickness of B which is 2-3 mils (¶148), which is 0.3-0.75 mils for layer B1.
Although these thicknesses do not satisfy the equation in claim 3, Clare teaches the thickness can be adjusted based on desired impact resistance and stiffness (¶127). It would have been obvious to one having ordinary skill in the art at the time the invention was made to create the invention of Claire with a smaller B1 and larger A2 such that the range of claim 3 is satisfied since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). The burden is upon the Applicant to demonstrate that the claimed is critical and has unexpected results.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Clare as applied to claim 1 above, and further in view of Garroff (US 2012/0053308) and Gabriel (History and Physical Chemistry of HDPE).
With respect to claim 2, Clare fails to teach the dispersity of the first resin (HDPE) is sharper than that of the second resin (sLLDPE) but instead teaches a general range for both of 2-4.
Garroff teaches generally one can optimize the properties of LLDPE by varying the PDI, notably tear strength and impact strength (¶12). Further, Gabriel, in the field of HDPE likewise teaches dispersity effects the properties of HDPE and by changing the dispersity one can effect properties such as softening points, melt strength, stiffness, and brittleness (Table 1-2).
Although Clare fails to teach the dispersity of the HDPE is shaper than that of the LLDPE, it would have been obvious to one of ordinary skill in the art at the time the invention was made to optimize dispersity of each because 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. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The burden is upon the Applicant to demonstrate that the claimed sharpness is critical and has unexpected results. In the present invention, one would have been motivated to optimize the dispersity motivated by the desire to fine tune the material properties.
Response to Amendment
Applicant's arguments filed 25 September 2025 have been fully considered but they are not persuasive. The amendment changes which layers qualify as the second resin, i.e., excluding HDPE as the second PE. However, because of the overlapping ranges taught for the MFI (MFR) the reference suggests an embodiment where each element is met.
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 FRANK J VINEIS whose telephone number is (571)270-1547. The examiner can normally be reached Monday - Thursday: 8:00 a.m. - 4:00 p.m.
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/FRANK J VINEIS/Supervisory Patent Examiner, Art Unit 1781