DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
Applicant’s amendment filed on 04/15/2026 is acknowledged. In light of amendments, new grounds of rejection are set forth below. Claims 1-3, 5, 6, 8-10, 12 and 15 are examined on the merits in this office action.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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 1-3, 5, 6, 8-10, 12 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Tsuruta I et al. (US 2016/0237263 A1) in view of Tsuruta II (JP 2006124567 A) and Van Dun et al. (US 2003/0114595 A1). It is noted that the disclosures of Tsuruta II are based on a machine translation of the reference which is included in this action.
Regarding claims 1-3, 5, 6, 8-10, 12 and 15, Tsuruta I et al. disclose a polyethylene laminate (multilayer) comprising an outer layer (first polyolefin layer) comprising 0 to 50 wt% of linear low-density polyethylene (aii), an intermediate layer (second polyolefin layer) comprising 10 to 40 wt% of high density polyethylene (bii) and 60 to 90 wt% of linear low-density polyethylene (bi) and an inner layer (third polyolefin layer) comprising 0 to 50 wt% of linear low-density polyethylene (cii), wherein the intermediate layer is disposed between the outer layer and the inner layer (see Abstract). The linear low-density polyethylene (aii, bi, cii) is a copolymer of ethylene and a-olefin such as hexene, i.e. ethylene-co-1-hexene copolymer produced using a metallocene catalyst (see paragraphs 0062, 0070 and 0071). Each of the outer layer, the intermediate layer and the inner layer are monolayers.
Tsuruta I et al. do not disclose the outer layer, the intermediate layer and/or the inner layer comprising a metallocene catalyzed linear low density polyethylene resin having a long chain branching value as presently claimed.
Tsuruta II discloses a film having good molding processability and excellent mechanical strength (see Abstract). The film is prepared from a polyethylene resin composition comprising 0.1 to 99.9 wt% of a linear low density polyethylene resin (A) such as ethylene-co-1-hexene copolymer produced using metallocene catalyst and 0.1 to 99.9 wt% of polyethylenic resin (B) having density of 890 to 980 kg/m3, melt flow rate of 0.01 to 10 g/minutes and long chain branching value of 0.01 to 3/1000 carbons (see Abstract and paragraphs 0013, 0014, 0018, 0020, 0022, 0023). The polyethylenic resin is linear ethylene-a-olefin copolymer such as ethylene-co-1-hexene copolymer produced using metallocene catalyst (see paragraphs 0026, 0027, 0030). While Tsuruta II do not explicitly disclose polyethylene resin is a linear low density polyethylene resin, given that polyethylene resin is linear, and has density, melt flow rate and long chain branching value that overlaps with that presently claimed and given that polyethylene resin is produced using metallocene catalyst, the polyethylene resin reads on a metallocene catalyzed linear low density polyethylene resin having a long chain branching value as presently claimed.
In light of motivation for using 0.1 to 99.0 wt% of polyethylenic resin disclosed by Tsuruta II as described above, it therefore would have been obvious to one of the ordinary skill in the art to use 0.1 to 99.0 wt% of polyethylenic resin in each of the outer layer, the intermediate layer and the inner layer comprising the metallocene catalyzed linear low density polyethylene resin comprising ethylene-co-1-hexene copolymer (aii, bi and cii) of Tsuruta I et al. in order to provide good molding processability and excellent mechanical strength, and thereby arrive at the claimed invention.
Accordingly, the outer layer (first polyolefin layer) and the inner layer (third polyolefin layer) each comprise 0 to 50 wt% of metallocene catalyzed linear low density polyethylene resin comprising ethylene-co-1-hexene copolymer (aii, cii) and 0.1 to 99.0 wt% of metallocene catalyzed linear low density polyethylene resin comprising ethylene-co-1-hexene copolymer (aiii, ciii) having a long chain branching value as presently claimed. The intermediate layer (second polyolefin layer) comprises 10 to 40 wt% of the high density polyethylene (bii), 60 to 90 wt% of the metallocene catalyzed linear low density polyethylene resin comprising ethylene-co-1-hexene copolymer (bi) and 0.1 to 99.0 wt% of the metallocene catalyzed linear low density polyethylene resin comprising ethylene-co-1-hexene copolymer (biii) having a long chain branching value as presently claimed.
Accordingly, the total concentration of the metallocene catalyzed linear low density polyethylene resin comprising ethylene-co-1-hexene copolymer (aiii, biii, ciii) having a long chain branching value as presently claimed in the multilayer film is at least 0.3 wt% (0.3 = 0.1 + 0.1 + 0.1). Further, it would have been obvious to one of ordinary skill in the art to control the amount of metallocene catalyzed linear low density polyethylene resin with the long chain branching in each of the outer layer, intermediate layer, and inner layer of the multilayer film of Tsuruta I in view of Tsuruta II in order to produce a multilayer film with an amount of metallocene catalyzed linear low density polyethylene resin with the long chain branching, including that presently claimed, that has desired processability and mechanical strength.
Tsuruta I et al. in view of Tsuruta II do not disclose the outer layer (first polyolefin layer) and the inner layer (third inner layer) comprising Ziegler-Natta catalyzed resin (ai, ci) as presently claimed.
Van Dun et al. disclose an interpolymer composition comprising a blend of about 10 to about 100 wt% of substantially linear ethylene-a-olefin polymer having a long chain branching value of about 0.01 to about 3/1000 carbons such as ethylene-co-1-hexene copolymer prepared using catalysts based on constrained geometry metal complexes which are metallocene catalysts and about 0 to about 90 wt% of heterogenous polymer such as ethylene-co-1-butene copolymer prepared by Ziegler Natta catalyst (see Abstract and paragraphs 0010, 0047, 00187, 0191, 0223). A film prepared from the interpolymer composition has good processing characteristics and good impact strength, puncture and stretchability properties (see Abstract and paragraph 0021).
In light of motivation for using 0 to about 90 wt% of heterogenous polymer such as ethylene-co-1-butene copolymer prepared by Ziegler Natta catalyst in combination with metallocene catalyzed linear low density polyethylene resin comprising a poly(ethylene-co-1-hexene) copolymer resin having a long chain branching value of about 0.01 to about 3/1000 carbons disclosed by Van Dun et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art to use 0 to about 90 wt% of heterogenous polymer (ai and ci) such as ethylene-co-1-butene copolymer prepared by Ziegler Natta catalyst in each of the outer layer and the inner layer (first polyolefin layer and third polyolefin layer) of Tsuruta I et al. in view of Tsuruta II in order to provide good processing characteristics and good impact strength, puncture and stretchability properties to the outer layer and the inner layer, and thereby arrive at the claimed invention.
Tsuruta I et al. in view of Tsuruta II and Van Dun et al. do not disclose the multilayer is “a blown film”.
However, it is noted that “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as 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, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) . Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP 2113.
Therefore, absent evidence of criticality regarding the presently claimed process and given that Tsuruta I et al. in view of Tsuruta II and Van Dun et al. meets the requirements of the claimed product, Tsuruta I et al. in view of Tsuruta II and Van Dun et al. clearly meet the requirements of present claims.
Response to Arguments
Applicant's arguments filed 04/15/2026 have been fully considered. In light of amendments, new grounds of rejections are set forth above.
Applicants argue that the Examiner relies on Tsuruta II to supply the missing long-chain-branching feature, but that reliance is misplaced. As characterized in the Office Action, Tsuruta II discloses a polyethylene resin having extremely broad ranges of concentration (0.1 to 99.9 wt% of polyethylenic resin B), density (890 to 980 kg/m³), and long-chain-branching values (e.g., 0.01 to 3 long-chain branches per 1,000 carbons), and states generally that such resins may be used in films. However, Tsuruta II provides no teaching or suggestion to select a metallocene-catalyzed ethylene-hexene LLDPE having a narrowly constrained low-LCB value of 0.001/1000 to less than 0.1/1000 carbons, let alone to incorporate that resin as a minority tuning component within a three-resin blend that also includes two other distinct ethylene polymers defined by catalyst type and comonomer identity. The sheer breadth of Tsuruta II's disclosed ranges provides no directional guidance toward the claimed solution and cannot supply the specific compositional architecture, weight percent balance, or downward-constrained LCB regime now required by amended claim 1 without impermissible hindsight. Moreover, the Examiner's analysis relies on an arithmetic summation of isolated minimum endpoints across unrelated layers (e.g., 0.1 wt% from each of the outer, intermediate, and inner layers) to reach a putative total concentration. The cited references provide no teaching or suggestion that a person of ordinary skill in the art would select those minima simultaneously, much less coordinate them across layers in the manner recited by amended claim 1. Such endpoint stacking, absent a teaching to co-select and distribute those amounts, cannot support a conclusion of obviousness and instead reflects impermissible hindsight reconstruction.
Tsuruta II disclose a metallocene catalyzed linear ethylene-a-olefin copolymer such as ethylene-co-1-hexene copolymer (claimed linear low density polyethylene resin) having a branching value, density and melt-flow that overlap with that presently claimed in each of the outer layer, the intermediate layer and the inner layer in amount of 0.1 to 99.0 wt% in each of these layers in order to provide good molding processability and excellent mechanical strength. Given that Tsuruta II provides proper motivation, it would have been obvious to combine Tsuruta II with Tsuruta I.
While Tsuruta II disclose broad amount of 0.1 to 99.0 wt%, the fact remains that the amount overlaps with that presently claimed. As set forth in MPEP 2144.05, in the case where the claimed range “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). It would have been obvious to one of ordinary skill in the art to choose amounts, including that presently claimed, absent evidence to the contrary. Similarly, while the long chain branching value disclosed by Tsuruta II may be broader than that claimed, the fact remains that the value overlaps with that presently claimed. It would have been obvious to one of ordinary skill in the art to choose long chain branching value, including that presently claimed, absent evidence to the contrary.
Based on Tsuruta II, the total concentration of the metallocene catalyzed linear low density polyethylene resin comprising ethylene-co-1-hexene copolymer (aiii, biii, ciii) having a long chain branching value as presently claimed in the multilayer film is at least 0.3 wt% (0.3 = 0.1 + 0.1 + 0.1). It would have been obvious to one of ordinary skill in the art to choose amount of metallocene catalyzed linear low density polyethylene resin, including 0.1 wt.% in each layer, absent evidence to the contrary. Further, it would have been obvious to one of ordinary skill in the art to control the amount of metallocene catalyzed linear low density polyethylene resin with the long chain branching in each of the outer layer, intermediate layer, and inner layer of the multilayer film of Tsuruta I in view of Tsuruta Il in order to produce a multilayer film with an amount of metallocene catalyzed linear low density polyethylene resin with the long chain branching, including that presently claimed, that has desired processability and mechanical strength.
In response to applicant's argument 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).
Applicants argue that the addition of Van Dun would also fail to render the subject matter of claim 1 obvious. Van Dun further underscores the non-obviousness of the claimed invention rather than remedying the deficiencies of Tsuruta I and Tsuruta II. Van Dun is expressly directed to cast stretch films, not blown films, and teaches binary interpolymer compositions designed to address rheological behavior in cast film processing. (Van Dun at Abstract.) Van Dun neither discloses nor suggests a blown multilayer film, nor a layer comprising a three-component polyethylene blend in which two metallocene LLDPEs are deliberately distinguished and used in combination with a Ziegler-Natta LLDPE. Accordingly, even if Tsuruta I, Tsuruta II, and Van Dun were combined, the cited references still fail to teach or suggest the amended claim requirement that the first outer layer of a blown multilayer film be formed from the specific ternary polyethylene composition recited, with the claimed weight percent ranges and low-LCB constraints. The Examiner's rejection therefore relies on hindsight reconstruction rather than any articulated teaching or motivation in the prior art.
However, note that while Van Dun do not disclose all the features of the present claimed invention, Van Dun is used as teaching reference, and therefore, it is not necessary for this secondary reference to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981). Rather this reference teaches a certain concept, namely Ziegler Natta catalyzed ethylene-co-1-butene copolymer, and in combination with the primary reference, discloses the presently claimed invention.
Further, Van Dun is only used as teaching reference in order to teach Ziegler Natta catalyzed ethylene-co-1-butene copolymer. It is noted that the "test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference... Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art", In re Keller, 642 F.2d 413,208 USPQ 871,881 (CCPA 1981) and that "combining the teachings of references does not involve an ability to combine their specific structures", In re Nievelt, 482 F.2d 965, 179 USP 224, 226 (CCPA).
In response to applicant's argument 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).
In light of amendments, 112(b) paragraph rejections are withdrawn.
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 KRUPA SHUKLA whose telephone number is (571)272-5384. The examiner can normally be reached M-F 7:00-3:00 PM.
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/KRUPA SHUKLA/Examiner, Art Unit 1787
/CALLIE E SHOSHO/Supervisory Patent Examiner, Art Unit 1787
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