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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on April 16, 2026 has been entered.
Response to Amendment
Applicant’s amendment to the claims filed April 16, 2026 has been entered. Claim 24 is currently amended. Claims 1-23, 30, and 35-43 have been canceled. Claim 53 is new.
Claim Objections
Claim 53 is objected to because of the following informalities: at line 3, “bod” should be - - box - -. Appropriate correction is required.
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.
Claims 24-27, 29, 32-34 and 48-53 are rejected under 35 U.S.C. 103 as being unpatentable over Cancio et al. (US 2005/0248051) alone or further in view of Vignola et al. (US 2012/0217682).
Regarding claims 24-27, 29, 32-34 and 48-53, Cancio et al. teach a microporous breathable film (paragraphs [0010] and [0035]) comprising a polyolefin, such as LLDPE, PP and LDPE, (paragraphs [0032], [0036], [0038] and [0059]) and an inorganic filler, such as calcium carbonate, dispersed in the polyolefin in amounts ranging from about 40% to 60% by weight (paragraph [0038]; Examples I and II) produced by a process comprising the steps of extruding a composition comprising a polyolefin and an inorganic filler to form a molten web (paragraphs [0010], [0035], [0038]; Examples I and II), casting a molten web against a surface of a chill roll using an air knife and/or a vacuum box to form a quenched film (paragraph [0031] – air knife or vacuum box; paragraphs [0031], [0032], [0036], [0038]; Figures 1 and 3 with air knife (23)/(33) and vacuum box (34)), and stretching the quenched film to form a microporous breathable film, wherein the stretching comprises cross-directional intermeshing gear stretching (paragraphs [0013], [0031], [0032], [0048]-[0051], [0060; Example II) and machine direction stretching (paragraphs [0008], [0012], [0013], [0031], [0032], [0052], [0055], [0057], [0060]).
Cancio et al. teach the stretched film can have a preferable basis weight/thickness ranging from 6 to 50 gsm (paragraph [0037], which overlaps the claimed range. Additionally, Cancio et al. exemplify a basis weight of 13.9 gsm and an elongation at break/strain at peak machine direction of 142% (Table 7 IV-E). Further, Tables 4 and 5 provide examples at 45 gsm and 37 gsm with corresponding elongations at break/strain at peak machine of 296% and 218%. These provide evidence and a suggestion that when thinning down to lower values within the disclosed range of Cancio (e.g. a basis weight of less than 10 gsm), corresponding values for strain at peak machine direction would still be reasonably expected to be within the claimed range from materials and methods set forth by Cancio et al.
Further, as to the strain at peak machine direction value being at least about 125% and a dart impact strength being greater than about 90 grams for a film having a basis weight of less than about 10 gsm, Cancio et al. teach and suggest the same claimed and disclosed process steps and employ the same claimed and disclosed materials in the same claimed and disclosed amounts. Cancio et al. disclose basis weights that overlap the claimed range and the reference utilizes each of the referred to process steps. The instant specification appears to attribute the asserted improvement to the physical properties, such as strain at peak machine direction and dart impact, to the casting limitation set forth in claim 53 (paragraph [0027] of the published application). This is presumably in comparison to what is described as conventional embossing methods (Table 2) or blown film methods (Table 8). As Cancio et al. teach the disclosed casting process, as well as the other disclosed and claimed product by process limitations, the evidence of record supports the conclusion that the same claimed properties would be realized by the practice of the method of Cancio et al. (e.g. strain at peak machine direction and dart impact strength). It is also noted that Cancio et al. also do not require embossing of the film (paragraphs [0012], [0031], [0032] and [0039]). As such, it follows from a technical and rational basis that the same claimed effects and physical properties would be realized/rendered prima facie obvious in the microporous breathable film of Cancio et al.
As set forth above, Cancio et al. is understood to render the claims prima facie obvious. Alternatively, Vignola et al. teach an analogous process and product for producing cast polyolefin films wherein the physical properties of the polyolefin films, such as dart impact strength and elongation properties, can be substantially improved with the addition of an interpolymer in an amount ranging from 0.1% to 25% (e.g. 2%, 5%, 10%) to the polyolefin (Abstract; paragraphs [0004], [0020], [0079], [0094], [0098], [0099], [0116], [0127], [0207] – tailor the results; Tables associated with Examples 10, 15 and 16 showing the amount of improvement relative to a base case that utilizes polyethylene alone).
Therefore it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have combined the teaching of Cancio et al. and Vignola et al. and to have added an interpolymer to the polyolefin/polyethylene of Cancio et al., as suggested by Vignola et al., for the purpose, as suggested by Vignola et al., of improving the mechanical/physical properties of the film of Cancio et al., including dart impact strength to values within or which overlap the claimed range (e.g. for suitable applications, to differentiate the product, to facilitate further reductions in basis weight). In combination, the dart impact strength of Cancio et al. is further improved and is then even more clearly understood to be within the claimed range.
Claim 28 is rejected under 35 U.S.C. 103 as being unpatentable over Cancio et al. (US 2005/0248051) alone or further in view of Vignola et al. (US 2012/0217682), as applied to claims 24-27, 29, 32-34 and 48-53 above, and further in view of Topolkaraev et al. (US 2013/0210621).
As to claim 28, the rejection as set forth above teaches the film of claim 24. Cancio et al. further teach the polyolefin is a polyethylene, such as LLDPE (paragraphs [0032], [0036], [0038], [0059]). Cancio et al. do not teach the polyolefin is metallocene catalyzed. However, Topolkaraev et al. teach an analogous method and product wherein the polyolefin is preferably formed with a metallocene catalyst (paragraphs [0037]-[0043]).
Therefore it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have combined the teaching of Cancio et al. and Topolkaraev et al. and to have formed the LLDPE of Cancio et al. with a metallocene catalyst, as suggested by Topolkaraev et al., for the purpose, as suggested by Topolkaraev et al. of producing a polymer having well-controlled properties (e.g. distribution, controlled branching, polydispersity, isotacticity).
Claim 31 is rejected under 35 U.S.C. 103 as being unpatentable over Cancio et al. (US 2005/0248051) alone or further in view of Vignola et al. (US 2012/0217682), as applied to claims 24-27, 29, 32-34 and 48-53 above, and further in view of Wright et al. (US 2008/0233375).
As to claim 31, Cancio et al. teach the inorganic filler can be calcium carbonate, but do not disclose the particle size of the material. However, Wright et al. teach an analogous method wherein they exemplify calcium carbonate having a particle size of 2 or 3 microns (Table 2).
Therefore it would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have combined the teaching of Cancio et al. and Wright et al. and to have employed calcium carbonate having the particle size disclosed by Wright et al. as the calcium carbonate in the film of Cancio et al., for the purpose, as suggested by the references, of utilizing a form/particle size of calcium carbonate known in the art suitable for forming a desired size/amount of voiding/cavitating and that was known to be suitably and effectively processed.
Response to Arguments
Applicant’s arguments filed April 16, 2026 have been fully considered, but are moot in view of the new grounds of rejection set forth above. The current rejection generally tracks with the rejections based on Cancio et al. that begin in the prosecution history of the parent application (15/206,072) in the January 4, 2021 Office Action. After several rounds of prosecution, rejections based upon the Cancio et al. as a primary reference were no longer made in the November 23, 2022 Office Action or any subsequent Office Actions.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jeff Wollschlager whose telephone number is (571)272-8937. The examiner can normally be reached M-F 7:00-3:30.
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, Christina Johnson can be reached at 571-272-1176. 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.
/JEFFREY M WOLLSCHLAGER/Primary Examiner, Art Unit 1742
Prosecution Insights