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 .
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.
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.
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.
Claim(s) 1, 3-15, and 21-23 are rejected under 35 U.S.C. 103 as being unpatentable over DE 29521264 (hereinafter DE ‘264) in view of Decortes et al (EP 3281788; see English equivalent US 20190210337; hereinafter Decortes), as applied supra, and further in view of Share et al (US 20040074904; hereinafter Share).
As regarding claim 1, DE ‘264 discloses the claimed invention for a conduit for contaminant-resistant packaging, the conduit comprising: a body (figs. 1-6) having a first end portion and a second end portion, the body defining a lumen (inside of 2), and the second end portion defining an orifice (lowest portion of 2); and a head (3) integral with the first end portion of the body and radially spanning the lumen, the head defining two or more apertures (4, 5) in fluid communication with the orifice via the lumen.
DE ‘264 does not disclose the body and the head each including a skin material and a core material, the skin material having a first oxygen permeability, the core material having a second oxygen permeability less than the first oxygen permeability, and the skin material enveloping the core material. Decortes teaches the body and the head each including a skin material (passive layer) and a core material (active layer), the skin material having a first oxygen permeability, the core material having a second oxygen permeability less than the first oxygen permeability, and the skin material enveloping the core material ([0059], [0065], [0089], [0098] and fig. 7). Both DE ‘264 and Decortes are directed to packaging applications. It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention was made to provide the body and the head each including a skin material and a core material, the skin material having a first oxygen permeability, the core material having a second oxygen permeability less than the first oxygen permeability, and the skin material enveloping the core material as taught by Decortes in order to enhance the quality and shelf life of oxygen-sensitive products in packaging applications ([0001]).
DE ‘264 as modified does not disclose wherein the skin material directly contacts an entirety of a surface area of the core material. Share teaches wherein the skin material (76) directly contacts an entirety of a surface area of the core material (77 of fig. 1). Both DE ‘264 and Share are directed to packaging applications. It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention was made to provide wherein the skin material directly contacts an entirety of a surface area of the core material as taught by Share in order to enhance barrier uniformly and structural integrity by eliminating gaps or intervening layers that could permit oxygen ingress, delamination, or contaminant pathways.
As regarding claim 3, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention for wherein the lumen defines a center axis, and the center axis (figs. 1-6; no number) of the lumen intersects the skin material and the core material of the head.
As regarding claim 4, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention for wherein the head includes a gate location (about 8, 9 of figs. 3-4), the two or more apertures (4, 5) are disposed about the gate location, and the center axis of the lumen intersects the gate location of the head (figs. 1-3).
As regarding claim 5, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention for wherein the head (3) is disposed along first end portion of the body with the gate location (rotary sliding plate 7) of the head recessed longitudinally, along the center axis, relative to the first end portion of the body.
As regarding claim 6, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention for wherein the body and the head are each symmetric about any plane (figs. 1-6) containing the center axis of the lumen.
As regarding claim 7, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention for wherein the center axis of the lumen intersects (figs. 1-6) a center of the orifice defined by the second end portion of the body.
As regarding claim 8, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention for wherein the head has a first minimum thickness (3 and 7 of figs. 5-6) parallel to the center axis, the body has a second minimum thickness (diameter of collar 2) perpendicular to the center axis, and the first minimum thickness of the head is less than the second minimum thickness of the body (figs. 5-6).
As regarding claim 9, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention for wherein the skin material includes a first polymer, and the core material includes a second polymer different from the first polymer ([0033]-[0042]).
As regarding claim 10, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention for wherein at least one of the first polymer or the second polymer is a thermoplastic material ([0037]).
As regarding claim 11, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention except for wherein the second oxygen permeability of the core material is greater than 0 and less than about 1 cc-mm/m2-day-atm at a relative humidity of 20 percent and a temperature of 23oC. It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention was made to provide wherein the second oxygen permeability of the core material is greater than 0 and less than about 1 cc-mm/m2-day-atm at a relative humidity of 20 percent and a temperature of 23oC in order to enhance conduit performance, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
As regarding claim 12, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention for wherein the core material is hygroscopic ([0093] -[0094]).
As regarding claim 13, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention for wherein the core material includes ethylene-vinyl alcohol (EVOH) copolymer, nylon, or a combination thereof ([0093]-[0094]).
As regarding claim 14, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention for wherein the core material includes an oxygen scavenger ([0039]).
As regarding claim 15, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention for wherein the skin material includes polyethylene terephthalate (PET), polypropylene, high-density polyethylene, low-density polyethylene, or a combination thereof ([0056]-[0057]).
As regarding claim 21, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention for wherein the skin material forms an outermost layer of the conduit and consists of polyethylene terephthalate (PET) (Share – [0044]).
As regarding claim 22, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention for wherein the core material consists of ethylene-vinyl alcohol (EVOH – Decortes: [0162]; Share: [0044]) copolymer.
As regarding claim 23, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention for wherein the skin material consists of polypropylene (Decortes – [0067]).
Claim(s) 24-26 are rejected under 35 U.S.C. 103 as being unpatentable over DE 29521264 (hereinafter DE ‘264) in view of Decortes et al (EP 3281788; see English equivalent US 20190210337; hereinafter Decortes) and Share et al (US 20040074904; hereinafter Share), as applied supra, and further in view of Jaroschek et al (US 5443378; hereinafter Jaroschek).
As regarding claim 24, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention except for wherein the conduit is formed by a co-injection process including injecting the skin material and the core material at the gate location. It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention was made to provide wherein the conduit is formed by a co-injection process including injecting the skin material and the core material at the gate location in order to enable formation of a continuous skin layer around the core material in a single molding operation, improve barrier integrity, material distribution, manufacturing efficiency, and protection of the lower-permeability core material from exposure or contamination, since it was known in the art as shown in Jaroschek (abstract).
Also, regarding limitations recited in claim 24, which are directed to method of making said conduit (e.g. “formed by a co-injection process including injecting the skin material and the core material at the gate location”), it is noted that said limitations are not given patentable weight in the product claims. Even though a product-by-process is defined by the process steps by which the product is made, determination of patentability is based on the product itself and does not depend on its method of production. In re Thorpe, 777 F.2d 695, 227 USPQ 964 (Fed. Cir. 1985). As the court stated in Thorpe, 777 F.2d at 697, 227 USPQ at 966 (The patentability of a product does not depend on its method of production. In re Pilkington, 411 F.2d 1345, 1348, 162 USPQ 145, 147 (CCPA 1969). If the product in a product-by-process claim is the same or obvious as the product of the prior art, the claim is unpatentable even though the prior art product was made by a different process.). See MPEP 2113 and 2114. Therefore, since the briquette as recited in claims 1 and 6-7 is the same as the briquette disclosed by modified Stephens, as set forth above, the claim is unpatentable even though the briquette of modified Stephens was made by a different process. In re Marosi, 710 F2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983).
As regarding claim 25, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention for wherein the two or more apertures (4, 5) are spaced radially outward from the gate location (about 8, 9 of figs. 3-4).
As regarding claim 26, DE ‘264 as modified discloses all of limitation as set forth above. DE ‘264 as modified discloses the claimed invention for wherein the two or more apertures (4, 5) are defined at least partially by a plurality of trusses (in between 4, 5) coupled to the gate location (about 8, 9 of figs. 3-4) and extending radially outward from the gate location symmetrically about the center axis to facilitate symmetric flow of the skin material and the core material (figs. 3-4).
Also, regarding limitations recited in claim 26, which are directed to method of making said conduit (e.g. “in a molten form, away from the gate location during the co-injection process”), it is noted that said limitations are not given patentable weight in the product claims. Even though a product-by-process is defined by the process steps by which the product is made, determination of patentability is based on the product itself and does not depend on its method of production. In re Thorpe, 777 F.2d 695, 227 USPQ 964 (Fed. Cir. 1985). As the court stated in Thorpe, 777 F.2d at 697, 227 USPQ at 966 (The patentability of a product does not depend on its method of production. In re Pilkington, 411 F.2d 1345, 1348, 162 USPQ 145, 147 (CCPA 1969). If the product in a product-by-process claim is the same or obvious as the product of the prior art, the claim is unpatentable even though the prior art product was made by a different process.). See MPEP 2113 and 2114. Therefore, since the briquette as recited in claims 1 and 6-7 is the same as the briquette disclosed by modified Stephens, as set forth above, the claim is unpatentable even though the briquette of modified Stephens was made by a different process. In re Marosi, 710 F2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983).
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 DUNG H BUI whose telephone number is (571)270-7077. The examiner can normally be reached Monday-Friday 8:00 - 4:30 ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Benjamin L. Lebron can be reached at (571) 272-0475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/DUNG H BUI/ Primary Examiner, Art Unit 1773
Prosecution Insights