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 .
Claim Objections
Applicant is advised that should claims 25 and 29 be found allowable, claims 45 and 47 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 20-21, 24-25, 29, 31, 37, and 44-50 are rejected under 35 U.S.C. 103 as being unpatentable over Tiwari et al. (US 20170121082 A1) (previously cited) in view of Clare (US 20190224952 A1) (previously cited) and Ward et al. (US 20170073482 A1) (previously cited).
Regarding claim 20, Tiwari teaches a flexible package comprising a multilayer film which comprises a first skin layer (outermost layer), a core layer and a second skin layer (innermost seal layer) (Tiwari, Abstract, and Par. 0007-0010). Tiwari teaches the first skin layer comprises a HDPE having a density of 0.94 g/cc to 0.98 g/cc and a melt index of 0.5 to 1.5 g/10 min. (Tiwari, Par. 0007, 0050, and Claim 5). Tiwari teaches the core layer comprises polyethylene (Tiwari, Par. 0007 and 0064-0065). Tiwari teaches the second skin layer comprises a sealant polyethylene having a density of 0.88 to 0.92 g/cc and a melt index of 0.5 to 8 g/10 min (Tiwari, Par. 0051, 0068-0069, 0075). Tiwari teaches a fitment sealed to the second skin layer, wherein the fitment may comprise any suitable plastic such as an ethylene-alpha olefin copolymer (Tiwari, Par. 0039, 0110-0112, and Fig. 1). Tiwari’s first skin layer density and second skin layer melt index overlap the claimed ranges of 0.950-0.970 g/cm3 and 0.3 to 5 g/10 minutes respectively and therefore establish prima facie cases of obviousness over the claimed ranges, see MPEP 2144.05, I. Tiwari’s first skin layer melt index and second skin layer density lies within the claimed ranges of 0.5 to 10 g/10 minutes and 0.880 to 0.920 g/cm3 respectively and therefore satisfy the claimed ranges, see MPEP 2131.03. Tiwari teaches the first skin layer, core layer, and seal layer comprise polyethylene and may comprise additives but does not state that the additives are required (Tiwari, Par. 0062-0072), and therefore teaches embodiments wherein the multilayer film comprises 100 wt.% polyethylene, which lies within the claimed range of at least 90 wt.% and therefore satisfies the claimed range, see MPEP 2131.03.
Tiwari is silent regarding the sealant polyethylene having a molecular weight distribution Mw/Mn of 2 to 5.
Clare teaches a multilayer flexible film for packaging comprising a first skin layer (first surface layer), a core layer (intermediate layer), and a second skin layer (second surface layer/sealable layer), wherein the second skin layer comprises a sealant polyethylene (LLDPE of sLLDPE) having a molecular weight distribution Mw/Mn of 2 to 4, a density of 0.90 to 0.92 g/cc, and a melt index of 0.5 to 2 g/10 min. (Clare, Abstract, Par. 0097, 0144-0150, 0153, and 0168), which lie within the claimed ranges of 2 to 4, 0.880-0.920 g/cm3, and 0.3-5 g/10 min respectively and therefore satisfy the claimed ranges, see MPEP 2131.03.
Tiwari and Clare are analogous art as they both teach multilayer flexible films for packaging comprising a second skin layer which comprises a sealant polyethylene having a density below 0.920 g/cm3. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used the sealant polyethylene of Clare as the sealant polyethylene of Tiwari. This would allow for a good seal as well as a peelable seal (Clare, Par. 0144-0150 and 0153).
Modified Tiwari is silent regarding the fitment comprising a blend of any two or more of a linear low density polyethylene, a very low density polyethylene, or a plastomer, wherein the blend has a density of about 0920 g/cm3 of less and a melt index, I2 of about 5 g/10 minutes of greater.
Ward teaches a material for use in flexible packaging comprising, wherein the material comprises a blend (product) of a first ethylene interpolymer and a second ethylene interpolymer (Ward, Par. 0006, 0015-0017, 0100, 0106, 0117, 0161, and 0166). Ward teaches the blend has a density of 0.890-0.935 g/cm3 and a melt index I2 of 0.4 to 12 dg/min (g/10 min) (Ward, Par. 0015, 0117, and 0125), which overlaps the claimed ranges of about 0.920 g/cm3 or less and about 5 g/10 min or greater respectively and therefore establish a prima facie case of obviousness over the claimed ranges, see MPEP 2144.05, I. Ward teaches the first ethylene interpolymer is a linear ethylene-alpha-olefin copolymer having a density of 0.855-0.955 g/cm3 (Ward, Par. 0045-0046, 0050, and 0100-0102). Ward’s density overlaps the range of LLDPE given by the instant specification Page 4 of 0.910-0.930 g/cm3. As Ward’s first ethylene interpolymer is a linear ethylene-alpha-olefin copolymer having a density that overlaps the range of LLDPE, Ward teaches embodiments where the first ethylene interpolymer is an LLDPE. Ward teaches the second ethylene interpolymer is an ethylene-alpha-olefin copolymer having a density of 0.89-0.955 g/cm3 (Ward, Par. 0045-0046, 0050, and 0100-0102). Ward’s density overlaps the range of VLDPE given by the instant specification Page 4 of 0.905-0.910 g/cm3. As Ward’s second ethylene interpolymer is an ethylene-alpha-olefin copolymer having a density that overlaps the range of VLDPE, Ward teaches embodiments where the second ethylene interpolymer is an VLDPE. Therefore, Ward teaches the material is a blend of LLDPE and VLDPE.
Modified Tiwari and Ward are analogous art as they both teach plastic materials for use in flexible packaging comprising an ethylene-alpha-olefin copolymer. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used the material of Ward as the plastic material of modified Tiwari. This would allow for improved caulkability and sealing, allowing for quicker manufacturing and the prevention of leaks (Ward, Par. 0002-0003, and 0024).
Regarding claim 21, modified Tiwari teaches the blend has a density of 0.890-0.935 g/cm3 and a melt index I2 of 0.4 to 12 dg/min (g/10 min) (Ward, Par. 0015, 0117, and 0125), which lies overlap the claimed ranges of about 0.880 to about 0.920 g/cm3 and about 5 to about 55 g/10 min respectively and therefore establish a prima facie case of obviousness over the claimed ranges, see MPEP 2144.05, I.
Regarding claim 24, modified Tiwari teaches the first skin layer comprises the HDPE (Tiwari, Par. 0062). Modified Tiwari teaches the first skin layer may comprise LDPE or additives but does not state that the LDPE or additives are required (Tiwari, Par. 0062-0063, and 0072), and therefore teaches embodiments wherein the first skin layer comprises 100 wt.% HDPE, which lies within the claimed range of 85-100 wt.% and therefore satisfies the claimed range, see MPEP 2131.03.
Regarding claims 25 and 45, modified Tiwari teaches the second skin layer comprises the sealant polyethylene and does not state that other materials are required (Clare, Par. 0144-0150, 0153, and 0168), and therefore teaches embodiments wherein the second skin layer comprises 100 wt.% of the sealant polyethylene, which lies within the claimed range of 85-100 wt.% and therefore satisfies the claimed range, see MPEP 2131.03.
Regarding claims 29 and 46-47, modified Tiwari teaches the fitment comprises hafnium or titanium in an amount of 0.01 to 1 ppm (Ward, Par. 0020 and 0103), which lies within the claimed range of at least 0.0015 ppm and therefore satisfies the claimed range, see MPEP 2131.03.
Regarding claim 31, where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977), see MPEP 2112.01. Modified Tiwari teaches the fitment comprises a blend (product) of a first ethylene interpolymer and a second ethylene interpolymer (Ward, Par. 0006, 0015-0017, 0100, 0106, 0117, 0161, and 0166). Modified Tiwari teaches the first ethylene interpolymer is a linear ethylene-alpha-olefin copolymer having a density of 0.855-0.955 g/cm3 (Ward, Par. 0045-0046, 0050, and 0100-0102). Modified Tiwari’s density overlaps the range of LLDPE given by the instant specification Page 4 of 0.910-0.930 g/cm3. As Modified Tiwari’s first ethylene interpolymer is a linear ethylene-alpha-olefin copolymer having a density that overlaps the range of LLDPE, modified Tiwari teaches embodiments where the first ethylene interpolymer is an LLDPE. Modified Tiwari teaches the second ethylene interpolymer is an ethylene-alpha-olefin copolymer having a density of 0.89-0.955 g/cm3 (Ward, Par. 0045-0046, 0050, and 0100-0102). Modified Tiwari’s density overlaps the range of VLDPE given by the instant specification Page 4 of 0.905-0.910 g/cm3. As modified Tiwari’s second ethylene interpolymer is an ethylene-alpha-olefin copolymer having a density that overlaps the range of VLDPE, modified Tiwari teaches embodiments where the second ethylene interpolymer is an VLDPE. Therefore, modified Tiwari teaches the material is a blend of LLDPE and VLDPE, which is the same as the instant invention per the instant specification Page 3. Modified Tiwari teaches the blend has a density of 0.890-0.935 g/cm3 and a melt index I2 of 0.4 to 12 dg/min (g/10 min) (Ward, Par. 0015, 0117, and 0125), which lies overlap the ranges of the instant invention per the instant specification Page 5. Modified Tiwari further teaches the fitment comprises titanium or hafnium in an amount of 0.01 to 1 ppm (Ward, Par. 0020 and 0103), which lies within the range of the instant invention as stated above for claim 6. Furthermore, the instant specification does not state that any specific modifications are made to achieve the claimed flexural secant modulus. Modified Tiwari’s fitment is thus identical or substantially identical to the instant invention, comprising the same blend, overall density, overall melt index, and metal content as the instant invention. Therefore, absent objective evidence to the contrary, the fitment of modified Tiwari would have inherently exhibited the claimed flexural secant modulus, see MPEP 2112.01.
Regarding claim 37, modified Tiwari teaches the fitment comprises a blend (product) of a first ethylene interpolymer and a second ethylene interpolymer (Ward, Par. 0006, 0015-0017, 0100, 0106, 0117, 0161, and 0166). Modified Tiwari teaches the first ethylene interpolymer is a linear ethylene-alpha-olefin copolymer having a density of 0.855-0.955 g/cm3 (Ward, Par. 0045-0046, 0050, and 0100-0102). Modified Tiwari’s density overlaps the range of LLDPE given by the instant specification Page 4 of 0.910-0.930 g/cm3. As Modified Tiwari’s first ethylene interpolymer is a linear ethylene-alpha-olefin copolymer having a density that overlaps the range of LLDPE, modified Tiwari teaches embodiments where the first ethylene interpolymer is an LLDPE. Modified Tiwari teaches the second ethylene interpolymer is an ethylene-alpha-olefin copolymer having a density of 0.89-0.955 g/cm3 (Ward, Par. 0045-0046, 0050, and 0100-0102). Modified Tiwari’s density overlaps the range of VLDPE given by the instant specification Page 4 of 0.905-0.910 g/cm3. As modified Tiwari’s second ethylene interpolymer is an ethylene-alpha-olefin copolymer having a density that overlaps the range of VLDPE, modified Tiwari teaches embodiments where the second ethylene interpolymer is an VLDPE. Therefore, modified Tiwari teaches the material is a blend of LLDPE and VLDPE.
Regarding claim 44, modified Tiwari teaches the blend has a melt index I2 of 0.4 to 12 dg/min (g/10 min) (Ward, Par. 0015, 0117, and 0125), which overlaps the claimed range of about 7 g/10 min or greater and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Regarding claim 48, modified Tiwari teaches the core layer comprises a linear polyethylene having a density of 0.912-0.93 g/cc and a melt index of 0.5-10 g/10 min (Tiwari, Par. 0064-0065), which lies within the claimed ranges of about from 0.910 to about 0.940 g/cm3 and 0.5-10 g/10 min respectively and therefore satisfies the claimed ranges, see MPEP 2131.03.
Regarding claim 49, modified Tiwari teaches the second skin layer exhibits a density of 0.88 to 0.92 g/cc (Tiwari, Par. 0051, 0068-0069, 0075), which overlaps the claimed range of 0.905 to 0.917 g/cm3, and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Regarding claim 50, modified Tiwari teaches the fitment comprises a blend (product) of a first ethylene interpolymer and a second ethylene interpolymer (Ward, Par. 0006, 0015-0017, 0100, 0106, 0117, 0161, and 0166). Modified Tiwari teaches the first ethylene interpolymer is a linear ethylene-alpha-olefin copolymer having a density of 0.855-0.955 g/cm3 (Ward, Par. 0045-0046, 0050, and 0100-0102). Modified Tiwari’s density overlaps the range of LLDPE given by the instant specification Page 4 of 0.910-0.930 g/cm3. As Modified Tiwari’s first ethylene interpolymer is a linear ethylene-alpha-olefin copolymer having a density that overlaps the range of LLDPE, modified Tiwari teaches embodiments where the first ethylene interpolymer is an LLDPE. Modified Tiwari teaches the second ethylene interpolymer is an ethylene-alpha-olefin copolymer having a density of 0.89-0.955 g/cm3 (Ward, Par. 0045-0046, 0050, and 0100-0102). Modified Tiwari’s density overlaps the range of LLDPE given by the instant specification Page 4 of 0.910-0.930 g/cm3. As modified Tiwari’s second ethylene interpolymer is an ethylene-alpha-olefin copolymer having a density that overlaps the range of LLDPE, modified Tiwari teaches embodiments where the second ethylene interpolymer is an LLDPE. Therefore, modified Tiwari teaches the material is a blend of a first LLDPE and a second LLDPE.
Response to Arguments
Applicant’s remarks and amendments filed 26 January 2026 have been fully considered.
Applicant requests withdrawal of the rejection under 35 USC § 112 set forth in the previous office action.
The rejection under 35 USC § 112 set forth in the previous office action has been withdrawn due to the present claim amendments.
Regarding arguments directed to the grounds of rejection over prior art, on pages 6-9 of the remarks, Applicant argues that Ward discloses a broad range of densities and thus does not render obvious the claimed blend of LLDPE’s, VLDPE’s, and/or plastomers. This is not found persuasive for the following reasons:
Ward teaches a blend (product) of a first ethylene interpolymer and a second ethylene interpolymer (Ward, Par. 0006, 0015-0017, 0100, 0106, 0117, 0161, and 0166). Ward teaches the first ethylene interpolymer is a linear ethylene-alpha-olefin copolymer having a density of 0.855-0.955 g/cm3 (Ward, Par. 0045-0046, 0050, and 0100-0102). Ward’s density overlaps the range of LLDPE given by the instant specification Page 4 of 0.910-0.930 g/cm3. As Ward’s first ethylene interpolymer is a linear ethylene-alpha-olefin copolymer having a density that overlaps the range of LLDPE, Ward teaches embodiments where the first ethylene interpolymer is an LLDPE. Ward teaches the second ethylene interpolymer is an ethylene-alpha-olefin copolymer having a density of 0.89-0.955 g/cm3 (Ward, Par. 0045-0046, 0050, and 0100-0102). Ward’s density overlaps the range of VLDPE given by the instant specification Page 4 of 0.905-0.910 g/cm3, or of LLDPE given by the instant specification Page 4 of 0.910-0.930 g/cm3. As Ward’s second ethylene interpolymer is an ethylene-alpha-olefin copolymer having a density that overlaps the range of VLDPE or LLDPE, Ward teaches embodiments where the second ethylene interpolymer is a VLDPE or LLDPE. Therefore, Ward teaches the material is a blend of LLDPE and VLDPE. While Ward’s ranges only overlap the claimed ranges, 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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), see MPEP 2144.05, I.
Applicant points to MPEP 2144.05, III (D) to show that the broad range would not render obvious the range of LLDPE or VLDPE. However, MPEP 2144.05, III (D) states that “One factor that may weigh against maintaining an obviousness rejection based on optimization of a variable disclosed in a range in the prior art is where an applicant establishes that the prior art disclosure of the variable is within a range that is so broad in light of the dissimilar characteristics of the members of the range as to not invite optimization by one of skill in the art. Genetics Inst., LLC v. Novartis Vaccines & Diagnostics, Inc., 655 F.3d 1291, 1306, 99 USPQ2d 1713, 1725 (Fed. Cir. 2011).” MPEP 2144.05, III (D) thus does not state that broad ranges cannot render obvious a claim, just that a broad range may weigh against obviousness based on optimization. It is the examiner’s position that the range of the prior art is not so broad as to not render obvious the range of either LLDPE or VLDPE. Furthermore, the current grounds of rejection rely upon the prior art overlapping an thus rendering obvious a range of density, and does not rely upon routine optimization. MPEP 2144.05, III (D) specifically states that a broad range may weight against maintaining an obviousness rejection based on optimization.
For the reasons stated above, Ward renders obvious the interpolymers of the blend being an LLDPE or a VLDPE and Applicant’s argument is unpersuasive.
Secondly, on pages 8-9 of the remarks, Applicant argues that Ward’s examples do not teach a blend with both the claimed density and the claimed melt index. This is not found persuasive for the following reason:
Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971), see MPEP 2123. Ward teaches the blend has a density of 0.890-0.935 g/cm3 and a melt index I2 of 0.4 to 12 dg/min (g/10 min) (Ward, Par. 0015, 0117, and 0125), which overlaps the claimed ranges of about 0.920 g/cm3 or less and about 5 g/10 min or greater respectively and therefore establish a prima facie case of obviousness over the claimed ranges, see MPEP 2144.05, I. While Ward may teach examples that do not lie within the claimed ranges, these specific examples do not teach away from the broad disclosure of Ward that teaches density and melt index ranges for the blend that render obvious the claimed ranges as stated above. Therefore, Ward renders obvious the claimed density and melt index and Applicant’s argument is unpersuasive.
Thirdly, on page 9 of the remarks, Applicant argues that one of ordinary skill in the art would not utilize the blend of Ward for the fitment of Tiwari. This is not found persuasive for the following reasons:
Tiwari teaches packaging material comprising a fitment, wherein the fitment may comprise any suitable plastic such as an ethylene-alpha olefin copolymer (Tiwari, Par. 0039, 0110-0112, and Fig. 1). Meanwhile, Ward teaches a material for use in packaging materials comprising an ethylene-alpha olefin copolymer as stated above (Ward, Par. 0006, 0015-0017, 0100, 0106, 0117, 0161, and 0166). Both Tiwari and Ward thus teach the use of ethylene-alpha olefin copolymers for packaging materials. Ward further provides motivation for using Ward’ specific product such as allowing for improved caulkability and sealing, allowing for quicker manufacturing and the prevention of leaks (Ward, Par. 0002-0003, and 0024). One of ordinary skill in the art would thus have been motivated to use the packaging material of Ward as the fitment material of Tiwari. Therefore, Tiwari in view of Ward render obvious the claimed fitment material and Applicant’s argument is unpersuasive.
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 THOMAS J KESSLER JR whose telephone number is (571)272-3075. The examiner can normally be reached 7:30-5:30 M-Th.
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/THOMAS J KESSLER/Examiner, Art Unit 1782