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 .
DETAILED 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 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.
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.
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Ito et al. (US Patent Application 2011/0319540 A1, published 29 Dec. 2011, hereinafter Ito).
Regarding claims 1-14, Ito teaches an aqueous dispersion comprising ethylene/methacrylic acid (EMAA) copolymer (EMAA)and ethylene-vinyl acetate (EVA) copolymer (Abstract and paragraph 0058). Ito teaches the mass ratio of EMAA copolymer to EVA copolymer is 10/90 to 90/10 (paragraph 0058). Ito teaches his EMAA copolymer contains 10 mass% or more of methacrylic acid repeat unit (paragraph 0021). Ito teaches his EMAA copolymer is neutralized with ammonia (paragraph 0046). Ito teaches several additives may be added to his aqueous dispersion, including polyethylene glycol (compound B), antioxidants, ultraviolet absorbers, light stabilizers, crosslinking agents, pigments, and inorganic fillers (paragraph 0056). Ito teaches the size of the EVA copolymer particles is preferably 5 to 5000 nm (paragraph 0058), and the size of his EMAA copolymer particles in his teaching examples range from 47-194 nm (Table 1). Ito teaches his aqueous composition is used for heat sealing (paragraph 0066), and Ito teaches the film substrate is aluminum foil (paragraph 0073).
Ito does not specifically disclose the amounts of polyethylene glycol (compound B) and other additives in his aqueous dispersion. However, it is the examiner’s position that given these components are optional components, the amounts of these components in embodiments of Ito’s aqueous dispersion would overlap with the claimed amounts of 0 – 15 wt.% for an additive and 0 – 50 wt.% for compound B. Also, given Ito’s teaching that the mass ratio of EMAA copolymer to EVA copolymer is 10/90 to 90/10 (paragraph 0058) and other components being optional components, Ito teaches embodiments in which the amounts of A1 and A2 in his composition overlap with the amounts required in claims 1 and 6.
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).
Therefore, it would have been obvious to one of ordinary skill in the art to have selected relative amounts of methacrylic acid repeat unit, amounts of A1, A2, additives, and B, and average particle size from the overlapping portions of the ranges taught by Ito because overlapping ranges have been held to be prima facie obviousness.
Ito does not disclose the process limitations in claim 5 (the use of hybrid particles), claim 6 (mixing dispersion A over a specific temperature range, mixing A, B, and neutralizing agent at a specific temperature), claim 7 (mixing solid components in a twin-screw extruder), and claims 8 and 9 (mixing components under elevated pressure or a pressure higher than the vapor pressure of water at mixing temperature).
Although Ito does not disclose process as claimed, 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 Ito meets the requirements of the claimed heat-sealed substrate, Ito clearly meets the requirements of the present claims.
It is the examiner’s position that the specification of the current invention does demonstrate the criticality of the claimed process steps in claims 5-9.
Ito does not disclose that all ingredients and compounds are food safe materials. However, given that Ito teaches his coating is heat-dried at a temperature of 80-200°C to evaporate volatile materials (paragraph 0065), which would include ammonia, and the heat-sealable coating taught by Ito has the same copolymers and other components with overlapping monomer content, within the overlapping ranges, the heat-sealable coating of Ito would inherently be as food safe as the claimed invention, and therefore, would fall within the claimed food safety criteria.
In light of the overlap between the claimed heat sealed substrate and that disclosed by Ito, it would have been obvious to one of ordinary skill in the art to use a heat sealed substrate that is both disclosed by Ito and is encompassed within the scope of the present claims, and thereby arrive at the claimed invention.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Chen and Guo (US Patent Application 2018/0282488 A1, published 04 Oct. 2018) teach waterborne heat seal coating compositions comprising EAA and EMA. Chundury and Bhatia (US Patent 5,601,889, published 11 Feb. 1997) teach a RF weldable polymer composition comprising ethylene vinyl acetate and an ionomer. Clay et al. (US Patent Application 2015/0218426 A1, published 06 Aug. 2015) teach a water-based adhesive comprising ethylene vinyl acetate and ethylene-acrylic acid copolymer. Drumright et al. (US Patent Application 2016/0280951 A1, published 29 Sep. 2016) teach a water borne polyolefin dispersion comprising polyolefin and an olefin-carboxylic acid copolymer. Hayes (US Patent Application 2013/0116373 A1, published 09 May 2013) teaches an aqueous dispersion comprising a blend of an ionomer and an ethylene-acrylate ester copolymer. Kainz et al. (US Patent Application 2012/0125801 A1, published 24 May 2012) teach an aqueous dispersion comprising several polymers, a stabilizing agent, and a neutralizing agent. Lohden et al. (US Patent Application 2008/0057205 A1, published 06 Mar. 2008) teach a heat-sealing system consisting of a methacrylate copolymer and a polymer blend, which can be used on aluminum foil. Lundgard et al. (WO 2014/105464 A1, published 03 Jul. 2014) teaches a coating composition comprising an aqueous dispersion comprising a based olefin and a polymeric performance improving agent. McCann and Dumitru (US Patent 3,798,194, published 19 Mar. 1974) teach a dispersion of acidic organic polymers and alkanols. Moncia et al. (US Patent Application 2007/0292705 A1, published 20 Dec. 2007) teach an aqueous dispersion comprising a polyolefin and an ethylene-(meth)acrylic acid copolymer. Shiba et al. (US Patent Application 2003/0187128 A1, published 02 Oct. 2003) teach an aqueous dispersion for sealing comprising a polyolefin terpolymer and an ethylenic hydrocarbon. Torrison and Cunningham (US Patent Application 2017/0073540 A1, published 16 Mar. 2017) teach a coating comprising an ethylene-acrylic acid copolymer for coating metal. Zuercher et al. (US Patent Application 2012/0028016 A1, published 02 Feb. 2012) teach a multilayer structure with a layer comprising an ethylene-acrylic acid copolymer and an aluminum foil layer.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN VINCENT LAWLER whose telephone number is (571)272-9603. The examiner can normally be reached on M - F 8:00 am - 5:00 pm ET.
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/JOHN VINCENT LAWLER/Examiner, Art Unit 1787