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 § 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.
Claim 5 is 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 claim 5, the phrase "condensed-type" renders the claim(s) indefinite because the claim(s) include(s) elements not actually disclosed (those encompassed by "-type"), thereby rendering the scope of the claim(s) unascertainable. See MPEP § 2173.05(d). Examiner recommends reciting “condensed” instead.
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.
Claims 1-4 and 6-9 are rejected under 35 U.S.C. 103 as being unpatentable over Inoue et al. (EP 2127866 A1) in view of Muneaki et al. (Machine Translation of JP 2008062497).
Regarding claims 1-4 and 6-9, Inoue discloses a multilayer film and container/bag formed from the film comprising a first layer (second outer layer) a second layer (inner layer) and a fifth layer (first outer layer), wherein the first layer and fifth layer comprise a polypropylene homopolymer and a propylene-ethylene random copolymer and the second layer comprises propylene ethylene random copolymer that may be a block copolymer and α-olefin elastomer that may be ethylene-propylene copolymer elastomer, wherein the fifth layer may serve as a heat seal layer (i.e. a multilayer film comprising a first outer layer containing a propylene homopolymer (A) and a propylene-ethylene random copolymer (B) and serving as a heat seal layer; an inner layer containing a propylene-ethylene block copolymer (C) and an ethylene-propylene copolymer elastomer (D); and a second outer layer containing a propylene homopolymer (A) and a propylene-ethylene random copolymer (B), in this order; a packaging material comprising the multilayer film; a package obtained by making a bag from the packaging material)(abstract, [0032]-[0043], [0052], [0059], [0123])
Inoue does not disclose that at least one of the first outer layer, the inner layer and the second outer layer further contains a polyphenol compound.
Muneaki discloses incorporating a polyphenol, such as tannin, into a polyolefin layer of a multilayer article in an amount of 1 to 30 parts by weight in order to provide deodorizing properties (i.e. polyphenol compound; overlapping 1.5% to 8% by mass based on the total amount of the multilayer film)([0007]-[0008], [0040]).
Inoue and Muneaki are analogous art because they both teach about multilayer polyolefin articles. It would have been obvious to one of ordinary skill in the art to incorporate the polyphenol/tannin into any or all layers of the container of Inoue in the amounts taught by Muneaki in order to provide a container having the advantage of deodorizing properties. Further, it is noted that it would have been obvious to adjust the amount of polyphenol to achieve the desired amount of deodorizing properties vs. cost.
Regarding claim 3, the second layer comprises a mixing ratio of the propylene ethylene random copolymer and propylene ethylene elastomer determined in consideration of the mechanical strength of the film/container and interlayer adhesion and the propylene ethylene elastomer is in an amount of 30 to 60% by weight (i.e. overlapping the inner layer contains 90 to 50 parts by mass of the propylene-ethylene block copolymer (C) and 10 to 50 parts by mass of the ethylene-propylene copolymer elastomer)([0068]). Alternatively, it is the examiner’s position that it would have been obvious to adjust the amounts to within the claimed ranges in order to provide good mechanical strength and interlayer adhesion to the container. It would have been obvious to include the polyphenol compound for deodorizing function.
Regarding claim 4, the mixing ratio of the propylene homopolymer and the propylene ethylene copolymer in the fifth layer is 90:10 to 10:90 (i.e. overlapping the first outer layer and second outer layer contain 70 to 30 parts by mass of the propylene homopolymer (A) and 30 to 70 parts by mass of the propylene-ethylene random copolymer (B)) ([0114]). While there is no specific disclosure of the amounts in the first layer, it is noted that [0011] states that the relative amounts of these components affect the sealability. Therefore, depending on the desired end use it would have been obvious to adjust the amounts of these components to the claimed range in order to adjust the sealability as desired for the first layer or it would have been obvious to adjust these ranges to the same range as disclosed for the fifth layer (90:10 to 10:90) for the same reasons. It would have been obvious to include the polyphenol compound for deodorizing function.
Regarding claim 6, the thickness of the first layer may be 5-15% of the total thickness and the thickness of the fifth layer may be 5-20% of the total thickness (i.e. overlapping a total thickness of the first outer layer and the second outer layer is 25% to 42% based on a thickness of the multilayer film) ([0054], [0117]).
Regarding claim 7, the thickness of the second layer may be 30-60% the total thickness of the film and the film may have a total thickness of 100-300 µm (i.e. overlapping a thickness of 30 µm or more)([0070], [0118]).
Regarding claim 8, it is noted that the film may contain a third and fourth layers ([0030]), either of which could be considered a base layer. Alternatively, when the container is formed from two multilayer films staked on top of one another ([0128]), one of the multilayer films could be considered the base layer.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Inoue et al. (EP 2127866 A1) and Muneaki et al. (Machine Translation of JP 2008062497), as applied to claim 1 above, in view of Braig et al. (US 2010/0119830 A1).
Regarding claim 5, modified Inoue discloses all of the claim limitations as set forth above. Modified Inoue does not disclose that the tannin is a condensed-type tannin.
Braig discloses that condensed tannins have significantly improved odor inhibition ([0032]).
It would have been obvious to one of ordinary skill in the art to use a condensed tannin as disclosed by Braig as the tannin in the container of modified Inoue in order to provide significantly improved deodorizing properties.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAMES C YAGER whose telephone number is (571)270-3880. The examiner can normally be reached 9-6 EST M-F.
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, Aaron Austin can be reached at (571) 272-8935. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JAMES C YAGER/ Primary Examiner, Art Unit 1782
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