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 Rejections - 35 USC § 103
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.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 14-28 and 35 are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent Application Publication No. US 2015/0159002 (hereinafter “Dheur”), in view of United States Patent Application Publication No. US 2015/0368412 (hereinafter “Cermelli”), and further in view of United States Patent Application Publication No. US 2018/0298524 (hereinafter “Llop”).Regarding claim 14 Dheur generally teaches a polyethylene composition including polymer (A) and polymer (B), where the resulting polyethylene composition comprises: a density of 952 to 961 kg/m3, a melt flow index MI2 of 0.1-0.5 g/10 min, a melt elastic modulus G' (G''=3000) of 1200-1600 Pa (abstract and paragraph [0020]), which overlaps/falls within the claimed ranges. Dheur teaches an embodiment where the ethylene polymer composition comprises a Mz of 1093 kDa and a G'(G''=3000) of 1401 Pa, which corresponds to a Mz/G' (G''=3000) of 780 Da/Pa, a density of 957.7 kg/m3, a melt flow index MI2 of 0.25 g/10 min, and a melt elastic modulus G' (G''=3000) of 1401 Pa (Example 2 in Table 2), which all fall within the claimed ranges. Dheur does not explicitly teach the ethylene polymer composition is a film oriented in at least the machine direction. Cermelli teaches a film comprising a polyethylene composition having a density of 948-956 kg/m3, a melt storage modulus G' (G''=3000) of 1400-1800 Pa, and a value of Mz/G' (G''=3000) of at least 900 Da/Pa, which falls within the claimed range (abstract). Cermelli teaches the ratio of Mz/G' (G''=3000) is a good measure of the suitability of a polyethylene composition for film applications, and in particular its suitability for producing thin films with good mechanical properties. In particular a high Mz value, leading to a large Mz/G(G″=3000) ratio, is desirable to achieve a good balance of tear strength and impact resistance, at the same time as providing a composition which has good properties for use in the film blowing process in terms of extrudability and melt strength as well as yield strength (paragraph [0008]). Therefore, it would have been obvious to a person having ordinary skill in the art at the time of the invention to modify the ratio of Mz/G' (G''=3000) (being disclosed in a single embodiment as 780 Da/Pa) of Dheur with the ratio of Mz/G' (G''=3000) (of at least 900 Da/Pa) as disclosed by Cermelli to enable the ethylene polymer composition of Dheur to be useful in a film application, where the film exhibits good mechanical properties, such as a good balance of tear strength and impact resistance, and at the same time as providing a composition which has good properties for use in the film blowing process in terms of extrudability and melt strength as well as yield strength. The combination of Dheur and Cermelli does not explicitly teach the film is oriented in at least the machine direction. Llop teaches a polyethylene tape (film) exhibiting an increase in its Young’s modulus when stretched and oriented in the machine direction, where the Young’s modulus continues to increase as the stretch ratio goes from 1:4 to 1:7 (abstract, paragraph [0028], and “Inv. Resin 1 Film” from Table 3). Therefore, it would have been obvious to a person having ordinary skill in the art at the time of the invention to modify the film from the combination of Dheur and Cermelli with the machine direction orientation via the stretching disclosed by Llop to tailor the Young’s modulus of the film to a desired level.Regarding claim 15 In addition, Llop teaches the tape is oriented in the machine direction by stretching (paragraph [0028]), which corresponds to monoaxial orientation in the machine direction.Regarding claims 16-18 In addition, Dheur teaches an embodiment where the polyethylene composition may include only polymer (A) and polymer (B) (paragraph [0029]), which corresponds to the polyethylene composition comprises 100 wt% (is the only) polymer component in the film from the combination of Dheur and Cermelli.Regarding claims 19 and 35 In addition, Llop teaches the tape may be machine direction oriented at a predetermined stretch ratio of at least 1:6 or 1:8 (paragraph [0028]).Regarding claims 20 and 21 In addition, Dheur teaches an embodiment where the ethylene polymer composition comprises a density of 957.7 kg/m3 (Example 2 in Table 2), which falls within the claimed ranges.Regarding claims 22 and 23 In addition, Dheur teaches the polyethylene composition has a melt index MI2 of 0.1-0.5 g/10 min (paragraph [0020]), which overlaps the claimed ranges.Regarding claims 24 and 25 In addition, Dheur teaches the polyethylene composition has a melt storage modulus G' (G''=3000) of 1200-1600 Pa (abstract), which overlaps the claimed ranges.Regarding claim 26 In addition, Cermelli teaches the polyethylene composition has a value of Mz/G' (G''=3000) of at least 900 Da/Pa, which overlaps the claimed range (abstract).Regarding claims 27 and 28 Regarding the melt storage modulus of the polyethylene composition, although the prior art does not explicitly disclose the polyethylene composition has a melt storage modulus G'(G"=500) of: 60-200 Pa; or 80-180 Pa, the claimed properties are deemed to naturally flow from the structure in the prior art since the combination of Dheur, Cermelli and Llop teaches an invention with an identical and/or substantially identical structure and/or chemical composition as the claimed invention. See MPEP §2112.
Claims 29-31 are rejected under 35 U.S.C. 103 as being unpatentable over Dheur, Cermelli and Llop as applied to claim 14 above, and further in view of United States Patent Application Publication No. US 2008/0287608 (hereinafter “Nord”).Regarding claims 29-31 The limitations of claim 14 have been set forth above. In addition, the combination of Dheur, Cermelli and Llop does not explicitly teach the polyethylene composition has a shear thinning index SHI(1,100) of: 2-15; 3-13; or 4-11. Nord teaches a polyethylene composition having a particular molecular weight distribution, including a relation between shear thinning index and melt flow rate of the composition results in a composition which not only has excellent rheological, i.e. flow, properties but also good mechanical properties such as impact strength and stiffness (paragraph [0009]). Nord teaches in the relation between shear thinning index and melt flow rate of the composition, the shear thinning index SHI(1,100) ranges from 4-12 (paragraphs [0031] and [0032]), which falls within/encompasses the claimed ranges. Therefore, it would have been obvious to a person having ordinary skill in the art at the time of the invention to modify the polyethylene composition from the combination of Dheur and Cermelli with the relation between shear thinning index and melt flow rate, including the shear thinning index SHI(1,100) ranging from 4-12, of Nord to improve flow and mechanical properties of the composition.
Claims 32-34 and 36 are rejected under 35 U.S.C. 103 as being unpatentable over Dheur, Cermelli and Llop as applied to claim 14 above, and further in view of United States Patent Application Publication No. US 2006/0177641 (hereinafter “Breese”).Regarding claims 32-34 and 36 The limitations from claim 14 have been set forth above. As previously noted, Dheur generally teaches the polyethylene composition has a density of 952 to 961 kg/m3 (abstract). In addition, the combination of Dheur, Cermelli, and Llop does not explicitly teach the film is included in a multilayer film, as recited in claims 32-34 and 36. Breese teaches a multilayer thin film (multilayer film) comprising at least one layer of a linear low density polyethylene (LLDPE) and at least one layer of a high density polyethylene (HDPE), where the multilayer thin film has high tear strength and an excellent combination of other properties (abstract). Breese teaches the HDPE has a preferable density within the range of about 0.958 g/cm3 to about 0.962 g/cm3 (paragraph [0014]). Breese teaches a preferred embodiment where the multilayer film is a three-layer film having a layered configuration of HDPE/LLDPE/HDPE (paragraph [0022]), which corresponds to all of the layers comprise polyethylene. Breese also teaches the multilayer thin film can be made by a blown film process and may be oriented in the machine direction (paragraph [0023]). Breese teaches one of the main uses of polyethylene is in film applications such as grocery sacks, institutional and consumer can liners, merchandise bags, shipping sacks, food packaging films, multi-wall bag liners, produce bags, deli wraps, stretch wraps, and shrink wraps. The key physical properties of polyethylene film include tear strength, impact strength, tensile strength, stiffness and transparency (paragraph [0003]). Breese also teaches the multilayer thin film has many uses, including a T-shirt bag (grocery bag) (an article/stand-up pouch comprising the multilayer film) (paragraph [0032]). Dheur, Cermelli, Llop and Breese are analogous inventions in the field of polyethylene articles. It would have been obvious to one skilled in the art at the time of the invention to use the polyethylene film from the combination of Dheur, Cermelli, and Llop into the HDPE layers of the multilayered structure of Breese to provide a use of the polyethylene film (from the combination of Dheur, Cermelli, and Llop) into a multilayer thin film application which exhibits high tear strength and an excellent combination of other properties (modulus, yield strength, and break strength) to meet package requirements for dart drop impact strength and tear strength (Breese – paragraph [0032]).
Response to Arguments
Applicant’s arguments, see page 5, filed 31 December 2025, with respect to the rejection of claims 19 and 34 under 35 USC §112(b) have been fully considered and are persuasive. The rejection of claims 19 and 34 under 35 USC §112(b) has been withdrawn.
Applicant's arguments filed 31 December 2025 have been fully considered but they are not persuasive. In response to applicant's arguments that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Throughout the entirety of the Office action, the examiner does not include knowledge gleaned only from the applicant's disclosure. The applicant argued Dheur relates to blow molding, which is not a film which is oriented in at least the machine direction, as required by the claim. The examiner respectfully disagrees. First, Dheur teaches (in paragraph [0001]) the present invention relates to novel ethylene polymer compositions and to articles made therefrom, particularly articles made by blow molding. Therefore, while Dheur teaches blow molding being used to form articles, it is clearly recited as a preferred means of forming such an article. Dheur uses the term “particularly” throughout the disclosure to highlight preferred embodiments. See at least paragraphs [0014], [0022], [0028], [0030], etc. It has been well established that the use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain. A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill the art, including nonpreferred embodiments. See MPEP § 2123. Second, Dheur has not been relied upon to meet the film which is oriented in at least the machine direction, as required by the claim. The applicant argued Cermelli is used to fill the deficiencies of Dheur with regards to a film oriented in at least the machine direction. The examiner respectfully disagrees and contends that Cermelli’s modification of Dheur relates to a Mz/G' (G''=3000) ratio (being at least 900 Da/Pa) being disclosed as being a good measure of the suitability of a polyethylene composition for film applications, and in particular its suitability for producing thin films with good mechanical properties. Therefore, the combination of Dheur and Cermelli results in a polyethylene composition being suitable for film applications, as measured by the Mz/G' (G''=3000) ratio disclosed by Cermelli. The examiner relies on the teachings of Llop to modify the polyethylene film from the combination of Dheur and Cermelli to form a film oriented in at least the machine direction. Stretching a film in a machine direction to impart improved properties to said film is not new and would have been well within the scope of ordinary skill. The applicant argued if one skilled in the art were to start with Example 2 from Dheur and seek to modify it by increasing Mz/G’ (G”=3000) to 900 Da/Pa, it is (a) not obvious how this would be done, and (b) what the consequences of this would be. The examiner respectfully disagrees and contends that the singular embodiment (Example 2) from Dheur having a Mz/G’ (G”=3000) of 780 Da/Pa only discloses one example (other than comparative examples C3-C5) with a recorded Mz value. Therefore, Dheur is completely silent as to any kind of acceptable range for Mz. Furthermore, Cermelli explicitly teaches what would happen if a film has a Mz/G’ (G”=3000) ratio high enough (of at least 900 Da/Pa). See paragraph [0008] from Cermelli. Therefore, in order to make the PE composition from Dheur suitable in a film application, the modification of Mz/G’ (G”=3000) being at least 900 Da/Pa would have been obvious to a person having ordinary skill in the art. The applicant stated Mz and G’(G”=3000) are isolated values and there is no guarantee that a higher Mz or lower G’(G”=3000) would result in a PE composition that still meets the other requirements of the claim. For example, Cermelli teaches the examples have a MI5 values of 3 or less. Therefore, because MI2 values would be less than MI5 values, an increase in Mz would likely reach an MI2 value of less than 0.1 g/10 min, which is contrary to the claim. The examiner respectfully disagrees and contends this portion of the remarks provided by the applicant is conclusory in nature and fails to provide objective information. It is well-settled that unsupported arguments are not a substitute for objective evidence. In re Pearson, 181 USPQ 641 (CCPA 1974). The applicant argued a resin from Llop has a density of 0.950, which is considerably lower than what is present in the claims, and Llop does not teach an Mz or G’(G”=3000) values. However, when considering the density, the applicant only points to a single embodiment, where the consideration of Llop is made as a whole. In other words, Llop broadly teaches a PE composition having a density being greater than 0.945 g/cc, with no indication that a single embodiment of 0.950 g/cc would be considered an upper limit for the broader disclosure. Furthermore, it appears the applicant is requiring the examiner to have each reference teach each feature of the claim in order for the prior art reference to be considered a valid reference in the Office action, which is not proper. Nevertheless, modifying the combination of Dheur and Cermelli with Llop’s teachings of improving the Young’s modulus and tensile energy of a PE film by stretching the film to impart machine direction orientation requires nothing more than routine skill to a person having ordinary skill in the art. The teaching, suggestion, and motivation for such a modification relies on what is taught in the prior art references; therefore, improper hindsight reasoning is not present in the rejection currently of record.
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 BRIAN HANDVILLE whose telephone number is (571)272-5074. The examiner can normally be reached Monday through Thursday, from 9 am to 4 pm.
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/BRIAN HANDVILLE/Primary Examiner, Art Unit 1783