DETAILED ACTION
Double Patenting
The rejections made on the grounds of double patenting in the previous Office Action are withdrawn in view of Applicant’s amendments, filed July 1, 2026.
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.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Hirano (JP 2001146291 A), as evidenced by Umekawa (JP 2005029680 A), and, optionally, further in view of Nakao (WO 2014103920 A1) and/or Umekawa, the text of all of which are cited herein according to English language translations.
Regarding claim 11, Hirano teaches a food packaging material comprising an ethylene-vinyl alcohol copolymer that has been at least partially acetalized (i.e. the material is “an acetalization product of an ethylene/vinyl alcohol copolymer”) (Abstract; par. 6, 7). The material further comprises holes (i.e. the product is a “porous object”) having diameters of several hundred microns or less (par. 10).
The teachings Hirano may be considered to differ from the current invention in that he does not teach that the pores in his product have a median pore diameter in the recited range. However, as noted above, Hirano does teach that the material should have hole diameters of “several hundred µm or less” (par. 10). Therefore, it would have been obvious to one of ordinary skill in the art to configure Hirano’s product such that all of the pores have a diameter of “several hundred µm or less”, thereby also configuring the material to necessarily have a median pore diameter of “several hundred µm or less” because Hirano explicitly teaches such pore sizes to be appropriate. The median pore diameter range rendered obvious by Hirano encompasses and renders obvious the recited median pore diameter range. See MPEP 2144.05.
Nakao also teaches a food packaging material with holes and discloses that it is preferable for the holes to have an average diameter in the range of 30 to 800 µm in order to maintain freshness and suppress mold formation (par. 28). Nakao teaches using hole forming methods, such as laser cutting, that have high reproducibility and no distortion, and that it is possible to highly control the diameter and positions of the holes, thereby producing packaging materials that maintain freshness and satisfy defined selection criteria (par. 45, 66, 68). As shown in Figure 2 and discussed by Nakao, the holes (14) have little or no variation in size or shape from one hole to the next (Fig. 2, par. 104).
Nakao also considers a comparative example that has holes with an average diameter of 600 µm that vary in diameter by 25 µm to have holes with diameters that “could not be controlled”, concludes that it is impossible to obtain a package that can withstand commercial production with the comparative example (and its irregular holes), and teaches that food stored in the comparative example material wilted faster and had no sweetness, as compared to the food stored in a material with controlled holes (Fig. 2, par. 91, 92, 104-106). Therefore, it would have been obvious to one of ordinary skill in the art to configure the holes (i.e. pores) in Hirano’s product to have an average diameter in the range of 30 to 800 µm, wherein the diameters vary as little as possible, including configuring the holes that, for example, have an average size of 600 µm to vary in diameter by less than 25 µm, including considerably less, thereby configuring the median pore diameter in such a product to be within the range of 30 to 800 µm (i.e. and very close to 600 µm for a product having an average pore size of 600 µm) because such a pore size range is consistent with Hirano’s teachings, and in order to create a packaging material that is able to withstand commercial production and that can better maintain freshness and flavor than a packaging with variable hole sizes, and because Nakao teaches that such a hole size range, including with very minimal or no pore size variation, is appropriate, useful, and preferred for making food packing materials that can be commercially produced and used to maintain freshness and flavor of stored foods.
The teachings of Hirano further differ from the current invention in that he does not teach a level of haze that is demonstrated by his packaging product. However, Hirano does teach that his material should have excellent transparency (Abstract). As demonstrated by Umekawa, who makes clear that haze should be minimized for materials to have good transparency (par. 18), those of ordinary skill in Hirano and Umekawa’s art understand that a material’s transparency increases as the level of haze decreases. Therefore, it would have been obvious to one of ordinary skill in the art to configure Hirano’s packaging material, which is an acetalization product of an ethylene/vinyl alcohol copolymer, to have as excellent of transparency as possible, including by configuring the material to have as low a haze as possible, because Hirano teaches that the material should have excellent transparency.
Umekawa further teaches that materials suitable for packaging applications are preferably transparent and, accordingly, should have a haze of 10 % or less (par. 18). Therefore, it would have been obvious to one of ordinary skill in the art to configure Hirano’s packaging material, which is an acetalization product of an ethylene/vinyl alcohol copolymer, to have a haze of less than 10 % in order to make the material transparent and suitable for packaging applications, as disclosed by Umekawa. The instantly claimed haze range is encompassed and rendered obvious by that of Umekawa. See MPEP 2144.05.
Claims 16 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Hirano and, optionally, Nakao and/or Umekawa, as applied to claim 11 above, and further in view of Arai (US Pat. No. 6,410,673) and/or Konishi (US PG Pub. No. 2009/0105365).
Regarding claims 16 and 17, the teachings of Hirano et al. differ from the current invention in that none teaches a heat of crystal fusion, ΔH, in the recited range. However, as discussed above, Hirano does teach using his product as a packaging material. Arai further teaches a copolymer material for packaging and discloses that the material should have a heat of crystal fusion of at least 30 J/g, thereby making the material useful for application as a soft transparent resin, a transparent plastomer, or elastomer, or as a substitute for a transparent soft vinyl chloride resin (col. 22, ln. 53-64; col. 33, ln. 45-col. 34, ln. 4). Therefore, it would have been obvious to one of ordinary skill in the art to configure Hirano and optionally, Nakao and/or Umekawa’s packaging material, which is an acetalization product of an ethylene/vinyl alcohol copolymer, to have a heat of crystal fusion, ΔH, of at least 30 J/g to make the material suitable for use in applications that require a soft transparent resin, transparent plastomer, or elastomer, or as a substitute for a transparent soft vinyl chloride resin.
Konishi further teaches materials for food packing and discloses that a material having a heat of crystal fusion of less than 20 J/g is susceptible to irreversible elongation and a material having a heat of crystal fusion of greater than 60 J/g tends to lack flexibility (par. 32), thereby demonstrating that the heat of crystal fusion is a result-effective variable. Therefore, it would have been obvious to one of ordinary skill in the art to select an appropriate heat of crystal fusion for Hirano’s material, including selecting to and configuring the material to have a heat of crystal fusion in the range of 20 to 60 J/g, according to the desired elongation and flexibility desired/required for its intended packaging application and in order to achieve a good balance of elongation and flexibility, as taught by Konishi.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Hirano and, optionally, Nakao and/or Umekawa, as applied to claim 11 above, and further in view of Nemoto (US PG Pub. No. 2008/0119584).
Regarding claim 18, the teachings of Hirano et al. differ from the current invention in that none discloses the storage elastic modulus of the taught packaging material. However, Nemoto teaches packaging films and discusses storage modulus, E’ (i.e. “storage elastic modulus”) at various temperatures, including temperatures achieved when food is heated, and teaches to configure the materials to have storage moduli in particular ranges in order to achieve a desired balance of resiliency, stretchability, and rigidity (Fig. 1; par. 27, 28, 32-38).
In all cases, Nemoto teaches storage elastic moduli ranges that overlap and render obvious (see MPEP 2144.05) the claimed range and that achieve a balance of the discussed properties to retain functionality, thereby allowing the films to be used in various conditions including from room temperature to heated states (par. 23-26). For example, at a temperature of 40 °C, Nemoto teaches that the packaging material should have a storage modulus of 100 MPa to 3 GPa (i.e. 3000 MPa) to achieve adequate resiliency and suitable stretchability, while avoiding excessive rigidity, thereby allowing the material to be torn when desired and wrapped around the shapes of containers (par. 32). At 60 °C, a storage modulus range of 100 to 800 MPa is preferred so that the material has a good balance of stiffness and resiliency, maintains its shape, and does not excessively soften (par. 41). Therefore, it would have been obvious to one of ordinary skill in the art to select an appropriate storage elastic modulus for Hirano’s packaging material and to confiture the material to have that storage elastic modulus according to the resiliency, stretchability, and rigidity required for a given application. It also would have been obvious to one of ordinary skill in the art to configure Hirano’s material to have an E’ of 100 MPa to 3 GPa at 40 °C and an E’ of 100 MPa to 800 MPa at 60 °C in order to allow the film to maintain the desired levels of rigidity, stretchability, and resiliency and functionalities at the disclosed temperatures, thereby allowing the material to be used even with heating. A material that demonstrates an E’ of 100 MPa to 3 GPa at 40 °C and an E’ of 100 MPa to 800 MPa at 60 °C is expected to demonstrate an E’ range at 50 °C that at least overlaps and renders obvious the claimed range because each of the E’ ranges of 40 and 60 °C also overlap and render obvious the claimed E’ range. See MPEP 2144.05.
Although Nemoto does not teach measuring storage elastic moduli, E’, at a frequency of 1 Hz, polymeric materials that demonstrate storage elastic moduli in the ranges taught by Nemoto, which were measured at 10 Hz (par. 27, 28, 32-38), are still expected to at least partially overlap and render obvious (see MPEP 2144.05) at least a portion of the claimed range because of the very large magnitude and overlap of Nemoto’s taught ranges and the claimed range.
The rejections made in view of Yamashita (US Pat. No. 4,269,713), Tanaka (US Pat. No. 4,385,094), and Baba (JP 2019-119891 A) in the previous Office Action are withdrawn in view of Applicant’s amendments, filed July 1, 2026.
Response to Arguments
Applicant’s arguments filed July 1, 2026 have been considered but are moot because they do not apply to the current rejections.
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 JULIA L RUMMEL whose telephone number is (571)272-6288. The examiner can normally be reached Monday-Thursday, 8:30 am -5:00 pm PT.
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/JULIA L. RUMMEL/
Examiner
Art Unit 1784
/HUMERA N. SHEIKH/Supervisory Patent Examiner, Art Unit 1784
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