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 § 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 12, 19-23 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.
Regarding claims 12 and 21 which recite the term "substantially-free" is unclear. The term "substantially" is often used in conjunction with another term to describe a particular characteristic of the claimed invention. It is a broad term. In re Nehrenberg, 280 F.2d 161, 126 USPQ 383 (CCPA 1960). The court held that the limitation "to substantially increase the efficiency of the compound as a copper extractant" was definite in view of the general guidelines contained in the specification. In re Mattison, 509 F.2d 563, 184 USPQ 484 (CCPA 1975). The court held that the limitation "which produces substantially equal E and H plane illumination patterns" was definite because one of ordinary skill in the art would know what was meant by "substantially equal." Andrew Corp. v. Gabriel Electronics, 847 F.2d 819, 6 USPQ2d 2010 (Fed. Cir. 1988).
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.
Claim(s) 1-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over EP3838587 see abstract, paragraphs [0018]-[0025] and claims 1, 10-12 in view of USP6258308 see col. 4 lines 34-55.
Claim 1 is directed to a breathable film, comprising: one or more layers of an extruded resin, the extruded resin including a PCR resin formed from or more raw ingredients; wherein an Elmendorf tear strength of the one or more layers in the cross direction is about three times larger than the Elmendorf tear strength of the one or more layers in the machine direction; and wherein a trapezoidal tear strength of the one or more layers in the cross direction is about 1.9 times larger than the trapezoidal tear strength of the one or more layers in the machine direction.
EP3838587 discloses a breathable multilayer stretch wrap film, particularly a polyolefin stretch film comprising at least 20 wt.% of PCR plastic waste material, a method of preparation thereof and the use of the multilayer stretch film according to the invention for stretch wrapping operations of goods. See abstract, paragraphs [0018]-[0025] and claims 1, 10-12.
EP3838587 does not disclose the claimed Elmendorf and trapezoidal tear strength.
USP6258308 discloses breathable films having improved tear properties resulting from stretching processes and techniques as shown in col. 4 lines 34-55 and Table 9. Moreover, the reference discloses a process for rendering films, film composites, and articles made therefrom less resistant to passage of water vapor by passing a filled precursor film or film composite through the nip of interdigitating grooved rollers. The films or film composites are generally formed using a precursor film of a film forming polyolefin or polyolefin blend, with a relatively high filler loading and optionally an elastomer. A process is disclosed for making diapers or other disposable items where a relatively high water vapor is coupled with a resistance to liquid strikethrough. See abstract.
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to optimize tear properties of breathable PCR-containing films of EP3838587 using the disclosure of USP6258308 since USP6258308 teaches that tear strength is affected by film composition and processing conditions and a skilled artisan would have been motivated to apply those known process steps to the film in order to improve mechanical durability while maintaining breathability.
With regard to claim 2, wherein the extruded resin comprises about 100% PCR resin, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use a PCR content at the upper end of the range taught by EP3838587 as routine optimization to maximize recycled material content while maintaining breathable film properties.
With regard to claim 3, wherein the extruded resin further comprises a total filler of about 42 wt% and a total polymer phase of about 58 wt% relative to a total weight of the film, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select filler and polymer concentrations within known breathable film ranges to obtain desired mechanical properties.
With regard to claim 4, wherein a basis weight of the one or more layers is approximately in a range of about 5 gsm to about 20 gsm, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select a bases weight within a known range based upon the intended end use and desired film performance characteristics.
With regard to claim 5, wherein the Elmendorf tear strength of the one or more layers in the cross direction is approximately in a range from about 25 g to about 250 g, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to optimize tear strength values through routine adjustment of film composition and professing conditions.
With regard to claim 6, wherein the trapezoidal tear strength of the one or more layers in the cross direction is approximately in a range from about 300 g to about 800 g, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select tear strength values resulting from routine optimization of known breathable film processing techniques.
With regard to claim 7, wherein a mocon value of the one or more layers is approximately in a range from about 1,000 g/m2/day to about 20,000 g/m2/day, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to optimize breathability within known mocon value range taught for breathable films.
With regard to claim 8, wherein the one or more layers comprise about 80% PCR resin, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select a PCR concentration within the range taught by EP3838587 as routine optimization.
With regard to claim 9, wherein the 80% PCR resin includes a total filler of about 39 wt% and a total polymer phase of about 61 wt% relative to a total weight of the film, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select filler and polymer concentrations within known breathable film ranges to obtain desired strength characteristics.
With regard to claim 10, wherein the resin further comprises an LLDPE approximately in a range from about 10 wt% to about 20 wt% relative to a total weight of the film, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to incorporate LLDPE in an amount to improve film processing and mechanical properties as taught by the prior art.
With regard to claim 11, wherein the one or more raw ingredients further comprises one or more of a polyethylene resin or a PCR compound, the polyethylene resin comprising about 72% FL 500 CaCO3, about 21.85% Dow 2036.01G LLDPE, about 6% TiO2 and about 0.15% of an anti-oxidant package, and the PCR Compound comprising about 70% FL 500 CaCO3, about 29.8% Ecowise LLDPE and about 0.2% of an anti-oxidant package, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select known film rants to obtain predictable film properties.
With regard to claim 12, wherein the one or more layers further comprises a plurality of layers, each of the plurality of layers being formed substantially from a PCR resin, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to employ a multilayer film structure using PCR layers in view of the multilayer film of EP3838587
With regard to claim 13, discloses a method of making a breathable film, the method comprising: combining one or more raw ingredients to make a resin, the raw ingredients including a PCR compound composed of an amount of approximately about 80% PCR resin to about 100% PCR resin by weight; passing the resin into an extruder to extrude a precursor film therefrom; and stretching the precursor film through a CDI unit to stretch the precursor film in the CD direction and form the breathable film, wherein an Elmendorf tear strength of the breathable film in the cross direction is about three times larger than the Elmendorf tear strength of the one or more layers in the machine direction; and wherein a trapezoidal tear strength of the breathable film in the cross direction is about 1.9 times larger than the trapezoidal tear strength of the one or more layers in the machine direction.
EP3838587 discloses combining polymer compositions including PCR material, extruding a film , and forming breathable multilayer films. See paragraphs [0040]-[[0044]. USP6258308 discloses stretching precursor breathable films to improve breathability and tear strength. See col. 4 lines 18-55. Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include the known stretching techniques taught by USP6258308
With regard to claim 14, wherein combining one or more raw ingredients further comprises compounding the one or more raw ingredients to make the resin, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to extrusion because compounding is a conventional and well-known film techniques.
With regard to claim 15, wherein the one or more raw ingredients further comprises one or more of a polyethylene resin or a PCR compound, the polyethylene resin comprising about 72% FL 500 CaCO3, about 21.85% Dow 2036.01G LLDPE, about 6% TiO2 and about 0.15% of an anti-oxidant package, and the PCR Compound comprising about 70% FL 500 CaCO3, about 29.8% Ecowise LLDPE and about 0.2% of an anti-oxidant package, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to employ known breathable film structures to obtain predicable processing and performance characteristics.
With regard to claim 16, , further comprising adjusting a line speed of the extruder to change a basis weight of the breathable film, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to adjust line speed as a routine process variable for controlling film thickness and bases weight.
With regard to claim 17, , wherein the resin further comprises an LLDPE approximately in a range from about 10 wt% to about 20 wt% relative to a total weight of the film, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select an LLDPE concentration that provides a desired balance of processability and mechanical properties.
With regard to claim 18, , wherein the LLDPE is EM 3518 or Ecowise, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select an commercially available LLDPE resin having suitable properties for breathable film production.
With regard to claim 19 discloses a breathable film, comprising: at least one layer composed of post-consumer recycled (PCR) materials in an amount of approximately about 80% PCR resin to about 100% PCR resin by weight to the at least one layer, wherein the breathable film has a cross direction tensile strength that is decreased not more than 20% as compared to a cross direction tensile strength of a breathable film made with virgin resin that is substantially free from PCR materials under the same process conditions.
EP3838587 discloses breathable films containing approximately about 80% PCR resin to about 100% PCR resin by weight to the at least one layer. See claims 10-12 and paragraphs [0018]-[0025]. USP6258308 discloses breathable films having improved tensile and tear properties through processing conditions.
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to optimize the tensile properties of the PCR films of EP3838587 using the known film processing steps taught by USP6258308.
With regard to claim 20, wherein the breathable film has a machine direction tensile strength that is decreased not more than 20% as compared to a machine direction tensile strength of a breathable film made with virgin resin that is substantially free from PCR materials under the same process conditions, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to select PCR contain breathable film and processing conditions that maintain good machine direction tensile strength since EP3838587 shows multilayer films containing at least 20wt% PCR material.
In conclusion, in view of the above, there appears to be no significant difference between the reference(s) and that which is claimed by applicant(s). Any differences not specifically mentioned appear to be conventional. Consequently, the claimed invention cannot be deemed as unobvious and accordingly is unpatentable.
Allowable Subject Matter over the Art of Record
With regard to claims 21-23*, note the following:
With regard to claim 21, the claimed comparative performance relation has not been shown by the prior art of record. The prior art of record, including EP3838587 and USP6258308 fails to anticipate or render obvious a breathable film having a machine direction Elmendorf tear strength that is at least three times greater than that of a corresponding breathable film produced under the same process conditions as recited in claim 22. The prior art further fails to teach breathable film having a cross direction trapezoidal tear strength that is about 1.5 to about 2.5 times greater than that of a correspond virgin resin breathable film produced under the same process conditions as recited in claim 23.
*Note also the 112 rejection of claims 21-23 above.
Information Disclosure Statement
Note that any future and/or present information disclosure statements must comply with 37 CFR § 1.98(b), which requires a list of the publications to include: the author (if any), title, relevant pages of the publication, date and place of publication to be submitted for consideration by the Office.
Improper Claim Dependency
Prior to allowance, any dependent claims should be rechecked for proper dependency if independent claims are cancelled.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TERRESSA M BOYKIN whose telephone number is (571)272-1069. The examiner can normally be reached M-F 7-5:30.
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/Terressa Boykin/ Primary Examiner, Art Unit 1765
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