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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on June 16, 2023 and January 13, 2025 has been considered by the examiner.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
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Claims 1-4 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4 of copending Application No. 18/268,064 in view of U.S. Pre-Grant Publication 2019/0322076, hereinafter He.
Regarding claims 1 and 2, Application No. 18/268,064 teaches an aluminum pouch film for a secondary battery, the film comprising: an aluminum film layer; an outer resin layer laminated on one surface of the aluminum film layer; and an inner resin layer laminated on the other surface of the aluminum film layer, wherein the inner resin layer includes a polyolefin resin and an ethylene vinyl alcohol copolymer (copending claim 1). The inner resin layer comprises 29% by weight to 90% by weight of the polyolefin resin, 5% by weight to 70% by weight of the ethylene vinyl alcohol copolymer (EVOH) (copending claim 2).
However, Application No. 18/268,064 does not teach the inner resin layer including a maleic anhydride polypropylene resin.
He teaches packaging material for a power storage device that has a heat-resistant resin layer 2 serving as an outer layer, a heat fusible resin layer 3 serving as an inner layer, and a metal foil layer 4 disposed between the two layers (Abstract: line 8-12). These resin layers are laminated on either side of the metal foil layer 4 [0063]. The heat fusible resin layer 3 can include polyethylene, ethyl vinyl acetate copolymer resin and maleic anhydride modified polypropylene [0116].
Therefore, it would be obvious to the ordinarily skilled artist before the effective filing date of the claimed invention to use a maleic anhydride polypropylene resin because it ‘plays a role of imparting excellent chemical resistance also against a highly corrosive electrolyte used in a lithium-ion secondary battery and the like and also imparting a heat-sealing property to the packaging material’ [0115].
Regarding claim 3, Application No. 18/268,064 teaches the film of claim 1, wherein the polyolefin is polyethylene (PE), polypropylene (PP) or a copolymer thereof (copending claim 3).
Regarding claim 4, Application No. 18/268,064 teaches the film of claim 1, wherein the ethylene vinyl alcohol copolymer (EVOH) is a copolymer represented by the following Chemical Formula 1:
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193
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Wherein, x and y are molar ratios of the vinyl alcohol structural unit and the ethylene structural unit, and x may be 0.3 to 0.7, y may be 0.3 to 0.7, and x+y is 1 (copending claim 4).
This is a provisional nonstatutory double patenting rejection.
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 1-4 and 6-7 are rejected under 35 U.S.C. 103 as being unpatentable over Pre-Grant Publication 2019/0023954, hereinafter Kouka, and in further view of Non Patent Literature: Yeo, Jong Ho, et. al., Rheological, Morphological, Mechanical, and Barrier Properties of PP/EVOH Blends. Advances in Polymer Technology. 2001., hereinafter Yeo.
Regarding claims 1-4 and 6-7, Kouka teaches a packaging material for a battery case having a structure of outer layer/adhesive for outer layer/aluminum foil layer/adhesive for inner layer/inner layer [0097] (instant claim 1 and 7). The outer layer is a polyamide (nylon) resin ([0071] and [0098]) (instant claim 6) and the inner layer is non-stretched polypropylene film [0102] (instant claim 3).
However, Kouka teaches a polyolefin (polypropylene) but fails to teach the inner resin layer that includes a blend of polyolefin, ethylene vinyl alcohol copolymer, and maleic anhydride propylene.
Yeo teaches a film for packaging that contains a blend of polypropylene and ethylene vinyl alcohol copolymer with maleic anhydride grafted polypropylene as a compatibilizer (Abstract: L12-14) (instant claim 1). The weight ratio of polypropylene to ethylene vinyl alcohol copolymer blend was fixed at 85/15, whereas the concentration of the compatibilizer was 0, 2, 4, 7, and 10 parts per hundred resin (Experimental, Blend Preparation: L1-4). This demonstrates an overlap in ranges taught. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a Prima facie case of obviousness exists (MPEP 2144.05) (instant claim 2). The ethylene vinyl alcohol used in this blend contained 44% moles of ethylene (instant y in Forumula 1) (Experimental, Materials: L7-8). This demonstrates an overlap in ranges taught. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a Prima facie case of obviousness exists (MPEP 2144.05) (instant claim 4).
Therefore, it would have been obvious to the ordinarily skilled artist before the effective filing date of the claimed invention to use the polypropylene, ethylene vinyl alcohol copolymer, and maleic anhydride propylene film blend of Yeo in the aluminum pouch of Kouka because polyolefins on their own ‘exhibit poor barrier properties to oxygen and many organic solvents’ (Yeo: Introduction: P2 L5-6). These barrier properties are improved when ‘producing ethylene vinyl alcohol copolymer platelets with a larger area within the blends through biaxial oriented film process’ (Yeo: Conclusions: conclusion 3). The addition of maleic anhydride grafted polypropylene as a compatibilizer also further improved these barrier properties, with the 4 parts per hundred resin maleic anhydride being the blend to cause the largest decrease in oxygen permeability (Yeo: Conclusions: conclusion 1 and 4).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Kouka and Yeo as applied to claim 1 above, and further in view of Non Patent Literature: Chen, Ming-An, et. al., Improvement of Shear Strength of Aluminum-Polypropylene Lap Joints by Grafting Maleic Anhydride onto Polypropylene. International Journal of Adhesion and Adhesives. 2006, hereinafter Chen.
Regarding claim 5, Kouka teaches a packaging material for a battery case having a structure of outer layer/adhesive for outer layer/aluminum foil layer/adhesive for inner layer/inner layer (Kouka, [0097]). The outer layer is a polyamide (nylon) resin (Kouka, [0071] and [0098]) and the inner layer a blend of polypropylene and ethylene vinyl alcohol copolymer with maleic anhydride grafted polypropylene (instant formula 2) as a compatibilizer (Yeo, Abstract: L12-14).
However, Houka and Yeo fail to teach a maleic anhydride polypropylene copolymer with 30 mol% to 70 mol% of each polymer.
Chen teaches the effect of the amount of maleic anhydride-grafted polypropylene in polypropylene on aluminum sheets (Abstract: L1-2). These metal/polymer composites can be used in products within the electronics, automotive, and aerospace industries (Introduction: L1-5). Chen teaches that maleic anhydride is ‘one of the most commonly used polar monomers for polyolefin functionalization’ and is specifically used ‘as a compatibilizing agent in the composites of polypropylene’ (Introduction: P6 L10-15). Introducing maleic anhydride polypropylene allows ‘polar groups to chemically interact with the aluminum surface, resulting in better interfacial adhesive strength’ (Results and Discussions 3.4: P2 L1-3). Therefore, mole percents of each polymer in the maleic anhydride polypropylene copolymer are an art recognized result effective variable.
Therefore, it would have been obvious to someone of the ordinary skill in the art before the effective filing date of the claimed invention to have optimized the mole percent of each polymer in the maleic anhydride polypropylene copolymer to improve mechanical strength (Conclusion 2: L1-3) as taught by Chen. In optimizing these mole percents, one would arrive at the claimed relationship, barring evidence to criticality or unexpected results
Conclusion
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/M.K.H./Examiner, Art Unit 1724
/MIRIAM STAGG/Supervisory Patent Examiner, Art Unit 1724