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
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over Brant et al. (WO 9722470 A1) in view of Dembowski et al. (US 20260001265 A1) and Barlow et al. (US 20180282010 A1).
Regarding claim 1, Brant teaches a packaged food product comprising a food packaging having an interior, said food packaging being established by a polyethylene laminate body including a main polyethylene film, wherein a food product is placed within the interior of the food packaging (Brant, Abstract, Pages 1, 7, and 11). Brant teaches the film is readily recyclable (Brant, Page 9).
Brant is silent regarding an ethylene vinyl alcohol layer.
Dembowski teaches including an outermost layer of EVOH (see additional outer layer) in a food packaging comprising a polyethylene layer (Dembowski, Par. 0002, 0004, 0021, 0042 and 0063-0064). Dembowski teaches the food packaging is readily recyclable (Dembowski, Abstract and Par. 0002).
Brant and Dembowski are analogous art as they both teach recyclable food packaging comprising a layer of polyethylene. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have included an EVOH layer as an outermost layer of the food packaging of Brant. This would allow for barrier properties, improved heat deflection temperature, and improved stiffness (Dembowski, Par. 0036 and 0063).
Modified Brant is silent regarding a laser date coding etched in the ethylene vinyl alcohol layer of the food packaging.
Barlow teaches using a laser to etch a date code onto a layer polymeric food packaging (Barlow, Par. 0006-0008, 0023-0025, 0058, 0063, 0077).
Modified Brant and Barlow are analogous art as they both teach polymeric food packaging. It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to have a laser date coding etched in the outermost EVOH layer of the food packaging of modified Brant. This would allow for a visible marking on the food packaging, such as an expiration date (Barlow, Par. 0023-0025).
Regarding claim 2, modified Brant teaches the EVOH layer is an outermost layer of the food packaging (Dembowski, Par. 0063-0064).
Regarding claim 3, modified Brant teaches the EVOH layer has a thickness of 4-10 µm, including a thickness of 4 µm (Dembowski, Par. 0066 and 0087). Modified Brant teaches the main polyethylene film has a thickness of 1-2mm (1000-2000 µm) (Brant, Page 18). Modified Brant does not state that other layers are required and thus teaches the thickness of the total food packaging is the combined thickness of the main polyethylene film and the EVOH layer, i.e. a thickness of 1004-2004 µm. This results in an EVOH layer that makes up a thickness of 0.2% - 0.4% of the thickness of the food packaging, which lies within the claimed range of no greater than 5% and therefore satisfies the claimed range, see MPEP 2131.03.
Alternatively, Modified Brant teaches the main polyethylene film has a thickness of 3-250 µm (Brant, Page 18). This results in a total food packaging thickness of 7-254 µm. This results in an EVOH layer that makes up a thickness of 1.57% - 57% of the thickness of the food packaging, which overlaps the claimed range of no greater than 5% and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Regarding claim 4, modified Brant teaches the main polyethylene film is formed of biaxially oriented polyethylene (Brant, Abstract).
Regarding claim 5, modified Brant teaches the food packaging comprises the main polyethylene film and the EVOH layer as stated above for claim 1 and does not state that any other layers are required. Modified Brant thus teaches the food packaging comprises only the main polyethylene film and the EVOH layer and therefore consists of the main polyethylene film and the EVOH layer.
Regarding claims 6-7, modified Brant teaches all of the elements of the claimed invention as stated above for claim 1. Modified Brant is silent regarding the food packaging further including an ink layer as required by claim 6, wherein the EVOH layer is between the ink layer and the main polyethylene film as required by claim 7.
Dembowski teaches a food packaging comprising a polyethylene layer, an outer EVOH layer (additional outer layer), and an ink layer (imprint) on an outer surface of the EVOH layer (Dembowski, Par. 0015, 0021, 0048-0050, 0063-0064, 0078, 0087, and Figs. 1-2).
Modified Brant and Dembowski are analogous art as they both teach food packaging comprising a polyethylene layer and an outer EVOH layer. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have included an ink layer on the outer surface of the EVOH layer of modified Brant. This would allow for a visible design on the food packaging (Dembowski, Par. 0048-0050). This would further result in the EVOH layer being between the ink layer and the main polyethylene film.
Regarding claim 8, modified Brant teaches the food packaging comprises the EVOH layer and the main polyethylene film as stated above for claim 1 and does not state that any additional materials are required in the layers, or that any additional layers are required. Therefore, modified Brant teaches the food packaging comprises only EVOH and polyethylene and thus is completely void of polypropylene and polyethylene terephthalate.
Response to Arguments
Applicant’s remarks and amendments filed 10 August 2026 have been fully considered.
Applicant requests withdrawal of the objections recited in the previous office action.
The objections recited in the previous office action have been withdrawn due to the present claim amendments.
Regarding arguments directed to the rejections over prior art, on pages 5-6 of the remarks, Applicant first argues that modified Brant’s food packaging isn’t readily recyclable. This is not found persuasive for the following reasons:
Brandt teaches the film is “100% recyclable” (Brandt, Page 9). Dembowski also teaches that it’s multilayer film is recyclable. The film of modified Brandt is thus 100% recyclable and satisfies the claimed limitation of being readily recyclable. Furthermore, one of ordinary skill in the art would understand that a film that is “100% recyclable” would be capable of being mechanically recycled to form another film as discussed in the instant specification. Therefore, modified Brandt satisfies the claimed readily recyclable limitation and the Applicant’s argument is unpersuasive.
Secondly, on pages 5-7 of the remarks, Applicant argues that the prior art does not teach an outermost EVOH layer that is laser coded. This is not found persuasive for the following reasons:
Dembowski teaches including an outermost layer of EVOH (see additional outer layer) in a food packaging comprising a polyethylene layer (Dembowski, Par. 0002, 0004, 0021, 0042 and 0063-0064). Dembowski specifically states that the EVOH layer is formed as an outer layer (Dembowski, Par. 0063). Brandt in view of Dembowski thus teach a multilayer package with an outer EVOH layer. Furthermore, Barlow renders obvious laser coding a date onto an outermost layer of a multilayer film as stated in the grounds of rejection above. Brandt in view of Dembowski and Barlow thus render obvious a multilayer film comprising an outer EVOH layer, wherein said outer EVOH layer is laser coded.
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). As stated above, Brandt teaches and renders obvious the claimed outer EVOH layer that is laser coded. Therefore, no knowledge gleaned only from Applicant’s disclosure was utilized in the grounds of rejection.
In view of the above, modified Brandt renders obvious the claimed EVOH layer that is laser coded and Applicant’s argument is unpersuasive.
Conclusion
THIS ACTION IS MADE FINAL. 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 THOMAS J KESSLER JR whose telephone number is (571)272-3075. The examiner can normally be reached 7:30-5:30 M-Th.
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/THOMAS J KESSLER/Examiner, Art Unit 1782
