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
Examiner’s Note
Claims 1 and 6 recite “styrene butadiene block copolymer (SBS), random copolymers (SBC)” in lines 20-21 and 17-18, respectively. Examiner notes that SBS normally stands for styrene-butadiene-styrene block copolymer and SBC normally stands for styrene-butadiene copolymer or styrene block copolymer. These latter two types of polymers are not random copolymers; these copolymers obtain their unique properties via the formation of relatively long sequences of one of the monomers followed by relatively long sequences of the other monomer. As currently written, the A2 copolymer can be any random copolymer comprising any two monomers. Applicant’s specification does not provide any clarification on this issue. This issue was not discussed in the Non-Final Rejection mailed 20 Mar. 2026, and this issue does not impact the claim rejections presented below. Clarification is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-5, 11, and 13 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 is confusing as the phrase “comprising consisting of” appears in line 3. It is not clear whether the description of the components that follow are meant to be exclusive components in the polyolefin dispersion. The rejections below assume “comprising” is meant to be the operative word, rather than “consisting of”. Clarification is required.
Claim 1, line 8, recites “(meth)acrylic acid”. Based on the amended claim 1, this phrase likely should read “acrylic acid”.
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 and 3-9 are rejected under 35 U.S.C. 103 as being unpatentable over Neubauer et al. (US Patent Application 2010/0255207 A1, published 07 Oct. 2010, hereinafter Neubauer).
Regarding claims 1 and 3-9, Neubauer teaches a dispersion comprising a polyolefin and a dispersing agent (Abstract). Neubauer teaches the polyolefin is an ethylene-vinyl acetate (EVA) copolymer (paragraph 0036) and the dispersing agent is ethylene-acrylic acid (EAA) copolymer (paragraph 0086). Neubauer teaches the amount of dispersing agent is 0 to 60 wt.% based on the amount of polyolefin (paragraph 0090). Thus, Neubauer teaches dispersions with 0 (0/(0+100) to 40 wt.% (60/(60+100)) EAA and 60 to 100 wt.% EVA. Neubauer teaches that these polyolefins are compliant with various regulations allowing for direct food contact (food safe materials) (paragraph 0141). Also, given that the two copolymers taught by Neubauer are two of the claimed copolymers of the current invention, it is the examiner’s position that these two polymers are food safe materials. Neubauer teaches the inclusion of a polyacrylate non-ionic thickener (compound B). Neubauer does not disclose the amount of polyacrylate; however, since it is taught as being a secondary component, it is the examiner’s position that one of ordinary skill in the art would use this component at an amount of less than 50 wt.% of the solid content of Neubauer’s composition, resulting in component A being at least 50 wt.% of his solid content.
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 components A1 and A2 from the overlapping portions of the ranges taught by Neubauer because overlapping ranges have been held to be prima facie obviousness.
Neubauer teaches his composition comprising polyolefin, dispersing agent, neutralizing agent and water is melt-kneaded in a multi-screw (twin-screw extruder) (paragraph 0121).
Neubauer does not disclose the temperature at which the mixing is conducted, the dispersed particle size, conducting the mixing under elevated pressure, nor conducting the mixing at a pressure higher than the vapor pressure of water at the mixing temperature.
However, although Neubauer 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 Neubauer meets the requirements of the claimed heat sealed substrate, Neubauer clearly meet the requirements of the present claims.
Neubauer does not disclose that his particles are hybrid particles containing both A1 and A2; however, the two copolymers are melt-kneaded together in water (paragraph 0120). Therefore, it is the examiner’s position that the resulting particles in the dispersion would contain both copolymers, since Neubauer does not teach that the two copolymers phase separate during the blending with water.
In light of the overlap between the claimed heat sealed substrate and that disclosed by Neubauer, it would have been obvious to one of ordinary skill in the art to use a heat sealed substrate that is both disclosed by Neubauer and is encompassed within the scope of the present claims, and thereby arrive at the claimed invention.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Neubauer et al. (US Patent Application 2010/0255207 A1, published 07 Oct. 2010, hereinafter Neubauer) in view of McKinney et al. (US Patent 4,599,392, published 08 Jul. 1986, hereinafter McKinney.
Regarding claim 2, Neubauer teaches a dispersion comprising a polyolefin and a dispersing agent (Abstract). Neubauer teaches the dispersing agent is ethylene-acrylic acid (EAA) copolymer (paragraph 0086).
Neubauer does not disclose the content of acrylic acid in his ethylene-acrylic acid copolymer; however, Neubauer teaches his ethylene-acrylic acid copolymers are those described by McKinney.
McKinney teaches ethylene-acrylic acid copolymers with 0.1 to 35 wt.% of acrylic acid (col 3, lines 38-45).
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 amount of acrylic acid in the copolymer from the overlapping portion of the range taught by McKinney because overlapping ranges have been held to be prima facie obviousness.
Given that Neubauer and McKinney are drawn to ethylene-acrylic acid copolymers for use in adhesive compositions, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use an ethylene-acrylic acid copolymer with the acrylic acid content as taught by McKinney as the ethylene-acrylic acid copolymer in the dispersion taught by Neubauer. Since Neubauer and McKinney are both drawn to ethylene-acrylic acid copolymers for use in adhesive compositions, one of ordinary skill in the art would have a reasonable expectation of success in using an ethylene-acrylic acid copolymer with the acrylic acid content taught by McKinney as the ethylene-acrylic acid copolymer in the dispersion taught by Neubauer. Further, McKinney teaches his ethylene-acrylic acid copolymers combine toughness, flexibility and chemical resistance with outstanding transparency, increased heat seal strength, and improved hot tack strength (col. 3, lines 54-57).
Claims 11-14 are rejected under 35 U.S.C. 103 as being unpatentable over Neubauer et al. (US Patent Application 2010/0255207 A1, published 07 Oct. 2010, hereinafter Neubauer) in view of Nakabayashi et al. (US Patent 4,828,920, published 09 May 1989, hereinafter Nakabayashi) and further in view of Torrison and Cunningham (US Patent Application 2017/0073540 A1, published 16 Mar. 2017, hereinafter Torrison).
Regarding claims 11-14, Neubauer teaches the elements of claims 1 and 6, and Neubauer teaches his coating has excellent adhesion to metal and glass (paragraph 0112) and his aqueous dispersion is coated onto metal and heat sealed (paragraphs 0004-0113).
Neubauer does not specifically disclose an aluminum or an aluminum foil substrate.
Nakabayashi teaches a heat adherable resin composition comprising ethylene-vinyl acetate copolymer and a unsaturated carboxylic acid copolymer for heat sealing aluminum foil (Abstract).
Given that Neubauer and Nakabayashi are drawn to blends of an ethylene-acrylic acid copolymer and an ethylene-vinyl acetate copolymer for heat sealing to metal, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use an aluminum foil and a modified ethylene-vinyl acetate copolymer as taught by Nakabayashi as the metal substrate and EVA copolymer in the heat sealed article taught by Neubauer. Since Neubauer and McKinney are both drawn to blends of an ethylene-acrylic acid copolymer and an ethylene-acrylic acid copolymers for heat sealing to metal, one of ordinary skill in the art would have a reasonable expectation of success in using an aluminum foil as and modified EVA copolymer by Nakabayashi as the metal substrate and the EVA copolymer in the heat sealed article taught by Neubauer. Further, Nakabayashi teaches heat adherable resin compositions and aluminum foil are useful in heat sealing glass containers for food and so on (col. 1, lines 10-31), and aluminum sheet produced by the use of the resin composition of this invention shows an excellent heat sealability even when the food strains around the mouth of the container, and a rate of occurrence of incompletely sealed products is very low (col. 6, lines 49-53). Additionally, Torrison teaches a coating for metals, in which the coating comprises an ethylene-acrylic acid copolymer, and Torrison teaches his EAA coating adheres strongly to aluminum but it also strongly adheres to itself, and these properties are well-known and are the reasons that one of EAA coating’s primary uses in industry is as a heat-seal coating (Abstract and paragraph 0051).
Allowable Subject Matter
Claim 10 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Neubauer, McKinney, Nakabayashi, and Torrison do not disclose the inclusion of polyvinylpyrrolidone nor polyethylene glycol in their compositions.
Response to Arguments
Applicant's arguments filed 18 Jun. 2026 have been fully considered. Applicant’s amendments have necessitated new grounds of rejection, which are presented above.
Applicant amended claims 1-2, 6, and 10.
Applicant argues that Ito does not teach a copolymer of ethylene and acrylic acid.
However, as presented above, Neubauer teaches the claimed aqueous polyolefin dispersion comprising an ethylene-acrylic acid copolymer.
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 extension fee 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 date of this final action.
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. 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, Callie Shosho, can be reached at 571-272-1123. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOHN VINCENT LAWLER/
Primary Examiner, Art Unit 1787
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