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 .
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-19 and species c, in which the interior film is the low-voltage electron-beam sterilizable polyolefin film in the reply filed on 09/04/2025 is acknowledged. The traversal is on the ground(s) that the international searching authority did not raise a unity of invention concern so there is no reason a different result should apply here. This is not found persuasive because different offices are not bound to making the same decisions, including with respect the unity of invention. It is maintained that the packaging material of claim 15 is not special technical feature as it does not make a contribution over the prior art in view of the rejection as noted below.
The requirement is still deemed proper and is therefore made FINAL.
Claim 20 is withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 09/04/2025.
Information Disclosure Statement
The information disclosure statement(s) (IDS) submitted on 07/14/2023 and 09/22/2025 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the IDS is being considered by the examiner.
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.
Claims 4 and 18 are 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 recites the phrase "preferably" which renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
For sake of further examination the preferable group of N,N-dialkyl-hydroxylamine will be viewed as optional.
Claim 18 recites “the bulk layer” there is insufficient antecedent basis for this limitation in the claim.
For sake of further examination, claim 18 will be examined as depending form claim 17.
Claim Rejections - 35 USC § 102
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 3-4, 6 and 9 are rejected under 35 U.S.C. 102(a)(1) and/or 35 U.S.C.102(a)(2) as being anticipated by Seltzer et al. (US 4,876,300).
Regarding claims 1 and 6, Seltzer discloses a polyolefin composition comprising a polyolefin or mixture thereof and a long chain N,N-dialkyl-hydroxylamine (column 3, lines 50-55). The composition further includes a phenolic antioxidant such as 2,6-di-tert-butyl-4-methylphenol, 2-tert-butyl-4,6-dimethylphenol, 2,6-di-tert-butyl-4-n-butylphenol, 1,3,5-trimethyl-2,4,6-tris(3,5-di-tert-butyl-4-hydroxybenzyl)benzene (column 6, lines 40 through column 8, lines 10), which are exemplary sterically hindered phenolic compounds.
Seltzer teaches the composition formed into a film (column 19, lines 60-65).
Seltzer teaches that polyolefins used in the food wrapping industry are of particular interest (column 4, lines 30-35), but does not expressly teach use of the composition in laminated packaging materials for liquid food products.
However, this recitation is merely an intended use. Applicants attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.
It is the examiner’s position that the intended use recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art and further that the prior art structure is capable of performing the intended use. Given that Seltzer discloses a polyolefin composition as presently claimed, it is clear that the composition of Seltzer would be capable of performing the intended use, i.e. for use in laminated packaging materials for liquid food products, presently claimed as required in the above cited portion of the MPEP.
Regarding claim 3, Seltzer teaches the N,N-dialkylhydroxylamine having a formula T1T2NOH where T1 and T2 are C12-C18 alkyl (column 2, lines 45-50).
Regarding claim 4, Seltzer teaches where T1 and T2 are each dodecyl, tetradecyl, hexadecyl or octadecyl; or where T1 is hexadecyl and T2 is octadecyl; or where T1 is heptadecyl and T2 is octadecyl.
Regarding claim 9, Seltzer discloses the polyolefin including one or more polyolefins of polypropylene or medium, high, or linear low density polyethylene homo- and co- polymers (column 3, line 65 through column 4, line 20).
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.
Claims 2, 5, 7 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Seltzer.
Regarding claim 2, Seltzer teaches the amount of hydroxylamine ranging from especially 0.05 to about 1 wt% (500 to 10000 ppm; column 4, lines 55-60), overlapping the claimed 100 to 1000 ppm.
Regarding claim 5, Seltzer teaches the amount of phenolic stabilizer from about 0.01 to about 5 wt% (100 to 50000 ppm; column 6, lines 25-30), overlapping the claimed 10 to 500 ppm.
Regarding 7, Seltzer teaches a weight ratio of N,N-hydroxylamine to phenolic compound of from 0.01 to 100 (column 4, lines 55-60 and column 6, lines 25-30), overlapping the ratio 20:80 to 80:20.
Regarding claim 8, Seltzer does not expressly teach addition of at least two N,N-dialkyl-hydroxylamine and/or at least two sterically hindered phenolic compounds. Seltzer however teaches that addition of multiple stabilizers resulting in a synergistic effect (column 19, lines 3-9). Consequently, one of ordinary skill in the art at the time of the claimed invention would have found it “obvious to try” to add at least two N,N-dialkyl-hydroxylamine and/or at least two sterically hindered phenolic compounds as the teaching represents a finite number of identified, predictable combinations. KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398 (2007).
Regarding claim 14, Seltzer teaches that the composition may include a stabilizing amount of stabilizer or mixture including phenolic antioxidant and hindered amine light stabilizers (column 5, lines 1-5). Phenolic antioxidants including phosphite-based antioxidants (column 8, lines 50-55). As these are optional, Seltzer discloses less than 100 ppm phosphite-based antioxidant and less than 10 ppm hindered amine light stabilizer. Seltzer is silent with regards to the composition including a zeolite thus it would have been to a person of ordinary skill the composition includes 0 ppm zeolite, overlapping the claimed less than 10 ppm.
Regarding the overlapping ranges discussed in claims 2, 5, 7, and 14, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Claims 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over Seltzer as applied to claim 1 above, and further in view of Hayashi et al. (US 2002/0183181).
Regarding claim 10, Seltzer discloses the limitations of claim 1 as discussed above. Seltzer does not disclose a film thickness of 10 to 40 µm.
Hayashi, in the analogous field of food packaging containers (0002), discloses a resin film having a thickness of about 10 to 50 µm (0034), overlapping the claimed thickness of 10 to 40 µm (MPEP 2144.05).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the film of Seltzer to have a thickness of 10 to 50 µm as taught by Hayashi, to ensure sufficient strength and rigidity (0034).
Regarding claim 11, Seltzer discloses the limitations of claim 1 as discussed above. Seltzer does not disclose a vapor-deposited barrier coating on at least one side of the film
Hayashi, in the analogous field of food packaging containers (0002), teaches a resin layer comprising a barrier coating (0054).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the film of Seltzer to include a barrier coating as taught by Hayashi, to provide a barrier property such as intercepting light to water/gas impermeability (0053).
Please note, claim 11 includes product by process language with regards to the recitation of “vapour-deposited”. The above arguments establish a rationale tending to show the claimed product is the same as what is taught by the prior art. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” (In re Thorpe, 227 USPQ 964,966). Once the Examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious different between the claimed product and the prior art product. In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983), MPEP 2113.
Regarding claim 12, Hayashi teaches the barrier coating includes metallized, metal oxide and inorganic oxide coatings (0054), having a thickness of 100 to 2000 angstroms (0056-0062; 10 to 200 nm), overlapping the claimed thickness form 5 to 500 nm (MPEP 2144.05).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Seltzer as applied to claim 1 above, and further in view of Ettridge et al. (US 2018/0170017).
Regarding claim 13, Seltzer discloses the limitations of claim 1 as discussed above. Seltzer does not disclose the film comprising a layer of ethylene vinyl alcohol having a thickness of 0.5 to 3 µm.
Ettridge, in the analogous field of food packaging films (0001-0002), discloses a film comprising a barrier layer of ethylene vinyl alcohol (0018), the barrier layer having a thickness of 2 to 5 µm (0048), overlapping the claimed 0.5 to 3 µm (MPEP 2144.05).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the film of Seltzer to include an EVOH coating of 2 to 5 µm, as taught by Ettridge, to provide good oxygen barrier and flex crack resistance (0048).
Claims 15-19 are rejected under 35 U.S.C. 103 as being unpatentable over Hayashi et al. (US 2002/0183181) and further in view of Seltzer et al. (US 4,876,300).
Regarding claims 15 and 19, Hayashi discloses a package for liquid and food products (0002) the package comprising a pair of laminated films comprising and first outermost and second innermost liquid-tight heat sealable layer (5) (Fig. 5a, b and 0028-0029) and an interior film (6) arranged between the outermost and second innermost layers (Fig. 5b). Hayashi teaches that film layers may comprise a polyolefin (0032 and 0039), however does not teach the interior layer comprising a polyolefin composition comprising the film of claim 1.
Seltzer, in the analogous field of stabilized polyolefin compositions, discloses a polyolefin composition comprising a polyolefin or mixture thereof and a long chain N,N-dialkyl-hydroxylamine (column 3, lines 50-55). The composition further includes a phenolic antioxidant such as 2,6-di-tert-butyl-4-methylphenol, 2-tert-butyl-4,6-dimethylphenol, 2,6-di-tert-butyl-4-n-butylphenol, 1,3,5-trimethyl-2,4,6-tris(3,5-di-tert-butyl-4-hydroxybenzyl)benzene (column 6, lines 40 through column 8, lines 10), which are exemplary sterically hindered phenolic compounds.
Seltzer teaches the composition formed into a film (column 19, lines 60-65).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the interior layer of Hayashi to include the compositional blend as taught by Seltzer, providing a film composition which may be processed at elevated temperatures and which is resistant to extraction of the stabilizer (column 2, lines 30-35).
Regarding claim 16, Hayashi discloses a package for liquid and food products (0002) the package comprising a pair of laminated films comprising and first outermost and second innermost liquid-tight heat sealable layer (5) (Fig. 5a, b and 0028-0029) and an interior film (6) arranged between the outermost and second innermost layers (Fig. 5b). Hayashi further teaches the film comprising a barrier coating (0054). Hayashi teaches that the film layers may comprise a polyolefin (0032 and 0039), however does not teach the interior layer comprising a polyolefin composition comprising the film of claim 1.
Seltzer, in the analogous field of stabilized polyolefin compositions, discloses a polyolefin composition comprising a polyolefin or mixture thereof and a long chain N,N-dialkyl-hydroxylamine (column 3, lines 50-55). The composition further includes a phenolic antioxidant such as 2,6-di-tert-butyl-4-methylphenol, 2-tert-butyl-4,6-dimethylphenol, 2,6-di-tert-butyl-4-n-butylphenol, 1,3,5-trimethyl-2,4,6-tris(3,5-di-tert-butyl-4-hydroxybenzyl)benzene (column 6, lines 40 through column 8, lines 10), which are exemplary sterically hindered phenolic compounds.
Seltzer teaches the composition formed into a film (column 19, lines 60-65).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the interior layer of Hayashi to include the compositional blend as taught by Seltzer, providing a film composition which may be processed at elevated temperatures and which is resistant to extraction of the stabilizer (column 2, lines 30-35).
Please note, claim 16 includes product by process language with regards to the recitation of “vapour-deposited”. The above arguments establish a rationale tending to show the claimed product is the same as what is taught by the prior art. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” (In re Thorpe, 227 USPQ 964,966). Once the Examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious different between the claimed product and the prior art product. In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983), MPEP 2113.
Regarding claim 17, Hayashi teaches that in some cases the laminate film are used under severe physical and chemical conditions and have severe requirements for the packages, such as strength resisting deformation, drop-and-impact strength, pinhole resistance, heat resistance, sealing performance, quality maintenance performance, workability, hygienic compatibility and the like thus employing other materials to meet those conditions (0063). Including use of paper or nitrocellulose (0063 and 0064).
Hayashi does not expressly teach arranging the material between the first outermost liquid-tight, heat sealable polyolefin layer and the interior film, one of ordinary skill in the art at the time of the claimed invention would have found it “obvious to try” arranging the material between the layers as claimed as the teaching represents a finite number of identified, predictable combinations. KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398 (2007).
Regarding claim 18, Hayashi teaches use of adhesives to bond the layers together (0069).
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALICIA WEYDEMEYER whose telephone number is (571)270-1727. The examiner can normally be reached M-Th 9-4.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Frank Vineis can be reached at 571-270-1547. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALICIA J WEYDEMEYER/Primary Examiner, Art Unit 1781