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 .
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.
Election/Restrictions
Applicant’s election without traverse of Group I in the reply filed on 10 December 2025 is acknowledged.
Claims 9 and 10 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to nonelected inventions, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 10 December 2025.
Claim Rejections - 35 USC § 112(b)
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.
Claims 1-8 rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
The phrase "the performance and mechanical properties of the lamination film structure containing the predetermined amount of post-consumer recycled material are maintained at a level comparable to a lamination film structure that does not contain any amount of post-consumer recycled material" at the end of claim 1 renders the claim (as well as claims 2-8 due to their dependency from claim 1) indefinite because it is unclear which performance and mechanical properties are being referred to (one, some, all?) and how similar must this/these property/properties be to be considered as "maintained."
Claim 8 is rendered indefinite because the conditions under which the melt index is determined is not specified. For the purpose of examination, this is taken to be 190 oC and 2.16 kg (see paragraph 0033 on page 7).
Claim Rejections - 35 USC § 112(d)
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 4 and 6 are rejected under 35 U.S.C. 112(d) as being of improper dependent form for failing to further limit the subject matter of the claim upon which they depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 4 allows the concentration of post-consumer recycled material in component (b) to be 100 wt% while claim 1, from which claim 4 depends, requires component (b) to a predetermined amount of polyethylene resin that is separate from the post-consumer recycled resin.
Claim 6 allows the concentration of linear low density polyethylene in component (b) to be 0 wt% while claim 5, from which claim 6 depends, requires component (b) to include linear low density polyethylene.
Applicant may cancel the claims, amend the claims to place the claims in proper dependent form, rewrite the claims in independent form, or present a sufficient showing that the dependent claims comply with the statutory requirements.
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 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over Jeon et al. (KR 102091593) in view of Herman et al. (US 5,534,317).
Jeon is directed to a laminated film suitable for use as a container or packaging (paragraph 0004). The laminate comprises a polyethylene film with crystallinity of 80% or more laminated on both sides of a polyethylene recycled resin film layer (paragraph 0012). The polyethylene film with crystallinity of 80% or more may be imparted with high crystallinity through biaxial orientation (paragraph 0019). The recycled polyethylene may be obtained from plastic bags for shopping or films used in packaging (paragraph 0026), i.e., post-consumer recycled resin. The polyethylene of the polyethylene recycled resin film layer is preferably high density polyethylene (paragraph 0029). The recycled polyethylene has a melt index of 0.001 to 30 g/10 min (paragraph 0030). The laminated film may be obtained by any method, with a typically involving first obtaining the polyethylene recycled resin film layer followed by laminating the high crystalline polyethylene film layers on both sides (paragraphs 0035-0036). In the embodiment of Example 3, the recycled resin has a melt index of 0.044 g/10 min and is formed as a blown film (paragraph 0058).
Jeon does not teach the addition of a linear low density polyethylene resin in the polyethylene recycled resin film layer.
Herman is directed to a post-consumer high density polyethylene resin blend having minimal diminution in physical properties suitable for use in containers and the like (column 1, lines 45-51). The post-consumer high density polyethylene resin is blended with linear low density polyethylene (column 2, lines 1-6). The post-consumer resin has a density of 0.961 g/cc and a melt index of 0.75 g/10 min (Table I). The linear low density polyethylene has a density of about 0.91 to 0.93 g/cc and a melt index of less than about 2.0 g/10 min (column 2, lines 65-column 3, line 4). The linear low density polyethylene is a copolymer of ethylene and an a-olefin containing 3 to 12 carbon atoms which may be formed using Ziegler-Natta catalysts (column 3, line 56-59 and column 2, lines 45-53). In the embodiments of Runs 5-12, the blend contains 50 to 95 wt% post-consumer high density polyethylene and 2.5 to 10 wt% linear low density polyethylene (Table II).
It would have been obvious to one of ordinary skill in the art to use the post-consumer high density polyethylene resin blend of Herman as the polyethylene recycled resin film layer of Jeon since it has minimal diminution in physical properties. One of ordinary skill in the art would have a reasonable expectation of success since the blend of Herman is suitable for use in containers and the like.
Regarding claim 2, the manner in which the polyethylene film with crystallinity of 80% or more is biaxially oriented represents a product-by-process type limitation. When the prior art discloses a product which reasonably appears to be either identical with or only slightly different than a product claim in a product-by-process claim, the burden is on the applicant to present evidence from which the examiner could reasonably conclude that the claimed product differs in kind from those of the prior art. In re Brown, 459 F. 2d 531, 173 USPQ 685 (CCPA 1972); In re Fessman, 489 F. 2d 742, 180 USPQ 324 (CCPA 1974). This burden is NOT discharged solely because the product was derived from a process not known to the prior art. In re Fessman, 489 F. 2d 742, 180 USPQ 324 (CCPA 1974). Furthermore, the determination of patentability for a product-by-process claim is based on the product itself and not on the method of production. If the product in the product-by-process claim is the same 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 (Fed. Cir. 1985) and MPEP § 2113. In this case, since the polyethylene film with crystallinity of 80% or more appear to be the same as that of claim 2 (e.g., it is a polyethylene film that is biaxially oriented), the burden is on the applicant to conclusively demonstrate that the recited process limitations result in a patentably distinct product.
Regarding claim 5, the limitations of this claim are taken to be met since the amount of linear low density polyethylene contained in the blend falls within the range recited in claim 6, which depends from claim 5.
Conclusion
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Callie Shosho, can be reached on 571 272-1123. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RAMSEY ZACHARIA/Primary Examiner, Art Unit 1787