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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-21, in the reply filed on 5/27/2026 is acknowledged.
Claim 22 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention.
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.
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.
Claim(s) 1, 5-12 and 17-21 are rejected under 35 U.S.C. 103 as being unpatentable over Crooks et al. (WO 2017/117498; “Crooks”, of record).
Regarding independent claim 1, Crooks teaches an ovenable moulded multi-layered fibrous product (i.e., the multi-layered packaging material 100, being configured for holding a food product while heating in a microwave oven, a conventional oven, or both, and the construct being formed from the laminate structure 100 by press-forming, paras [0015], [0018], [0023], Fig. 1), comprising:
- a first fibrous layer (the fibrous layer 102) comprising a cellulosic fibrous material (the layer 102 is of a paper product, e.g., paperboard or cardboard, formed of natural/wood fibers, paras [0019], [0016]); and
- a second fibrous layer (the fibrous composite layer 104) on top of the first fibrous layer (102) (para [0019], 104 layer is on top of layer 102), the second fibrous layer comprising a cellulosic fibrous material (the composite layer 104 is of a barrier paper such as parchment paper formed from a paper material, para [0019], [0007]);
- wherein the first and/or the second fibrous layer exhibits barrier properties substantially throughout its structure (paras [0019], [0007], i.e., the composite layer 104 is a parchment paper formed by chemically treating paper pulp so as to form a sulfurized cross-linked material throughout the paper, the treated paper having high density, heat resistance, and grease resistance, and the resulting barrier substantially blocking passage of moisture, oxygen, and oils, meeting the claimed limitations); and
Crooks further teaches the product is configured for heating food or liquid thereon (para [0015], [0018], the construct is configured for holding a food product while heating in a microwave oven, a conventional oven, or both, the material being selected to have temperature resistance for heating, meeting the claimed limitations).
Crooks does not specifically teach that the product is configured for heating food or liquid thereon to at least 100 °C.
However, Crooks teaches that its multi-layered fibrous product (i.e., the multi-layered packaging material) can be configured for holding a food product while heating in a conventional oven, which can be set at higher temperatures for heating a food product via conduction and/or convection, and that some applications have higher temperature resistance requirements, such as for food products that require a higher external temperature in order to reach a minimum internal temperature (paras [0015], [0018]). Crooks thus recognizes that the heating temperature resistance to which the product is configured is a result effective variable that is selected based on the food product and the intended heating applications (para [0018]).
It would have been obvious to a person of ordinary skill in the art to adjust the heating temperature resistance of the multi-layered fibrous product through routine experimentation so as to configure the multi-layered fibrous product to hold food or liquid at a desired workable heating temperature, in order to achieve the desired minimum heating temperature required for the intended food product and heating applications, which would have arrived at a workable minimum heating temperature resistance that falls within the broad range as instantly claimed, i.e., as at least 100 °C. It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). MPEP 2144.05.
Further, it should be noted that the recitation that the multi-layered fibrous product is “moulded” of claim 1 is considered as product-by-process limitation. It is the examiner’s position that the recited process does not result in a patentably distinctive structural difference in the resultant multi-layered fibrous product. Product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. See MPEP 2113. [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.
It should be noted that the recitation of claim 1 that the multi-layered fibrous product is “ovenable” is considered as merely an intended use. Applicant’s attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim. It is the examiner’s position that the multi-layered fibrous product of Crooks is capable of performing the intended use. In this case, Crooks teaches its multi-layered fibrous product is being configured for holding a food product while heating in a microwave oven, a conventional oven, or both (paras [0015]).
Regarding claim 5, Crooks teaches wherein the first fibrous layer forms a lowermost fibrous layer of the product in use and the second fibrous layer forms an uppermost fibrous layer of the product in use (paras [0023], [0019], Figs. 1, 4, i.e., the fibrous layer 102 forms an exterior surface S2 of the construct, and the fibrous layer composite layer 104 defines an interior-facing, food-contacting surface S1 of the construct), meeting the claimed limitations.
Regarding claim 6, Crooks teaches wherein the barrier properties include one or more of oil and grease resistance, water resistance, water vapour resistance, aroma resistance, gas resistance, and oxygen resistance (paras [0007], [0021], [0019], the barrier of Crooks blocks passage of moisture, oxygen, oils, and food grease, i.e., exhibits oil and grease resistance, water/water vapour resistance, gas resistance, and oxygen resistance), meeting the claimed limitations.
Regarding claim 7, Crooks teaches wherein the first and/or the second fibrous layer is oil and grease resistant substantially throughout its structure (para [0019], the fibrous layer composite layer 104 is chemically treated throughout to form a sulfurized cross-linked material having grease resistance, and the amount of grease resistance depends on the grade of the parchment throughout its structure), meeting the claimed limitations.
Regarding claim 8, Crooks teaches wherein the first and/or the second fibrous layer is water-resistant and/or water vapour resistant substantially throughout its structure (paras [0007], [0019], i.e., the barrier substantially blocks passage of moisture, and the fibrous layer composite layer 104 is a high-density, chemically treated sulfurized cross-linked material throughout its structure), meeting the claimed limitations.
Regarding claim 9, Crooks does not specifically teach the inclusion of one or more inner fibrous layers between the first and the second fibrous layers, each comprising a cellulosic fibrous material.
However, Crooks teaches that the laminate structure 100 could include additional layers and/or features, and that the fibrous layer 102 can include supplemental materials (para [0022]). Crooks further teaches that the blanks can be laminated to or coated with one or more sheet-like materials, moisture barrier layer on one or both sides (para [0026]).
It would have been obvious to one of ordinary skill in the art to modify the multi-layered fibrous product of Crooks, to include one or more additional inner cellulosic fibrous layers (e.g., additional paper/paperboard layers and/or moisture barrier layer) between the first fibrous layer and the second fibrous composite layer as taught by Crooks (paras [0022], [0026]), to provide a multilayer laminate with further improved barrier properties, which would have predictably arrived at a satisfactory multi-layered fibrous product that is the same as instantly claimed.
Regarding claim 10, Crooks teaches wherein the second fibrous layer forms an uppermost fibrous layer of the product and has a higher oil and grease resistance than the fibrous layer below it (the multi-layered fibrous product composite layer 104, i.e., the parchment barrier paper, defines the interior, food-contacting surface S1 and provides oil/grease resistance to complement the fibrous layer 102, whereas the fibrous layer 102 is a paperboard/cardboard product not disclosed as having equivalent grease resistance, paras [0019], [0023], [0007]), meeting the claimed limitations.
Regarding claim 11, Crooks teaches wherein the first fibrous layer forms a lowermost fibrous layer of the product (the fibrous layer 102 forms the exterior surface S2 of the construct, paras [0023], [0019]).
Crooks does not specifically teach the first fibrous layer has a higher water-resistance and/or higher water vapour resistance than the (second) fibrous layer above it, as instantly claimed.
However, Crooks teaches the water-resistance and water vapour resistance are result effective variable and depending on the respective materials of the first fibrous layer and the second fibrous layer and the intended end applications of the multi-layered fibrous product (paras [0007], [0021], [0019]). Crooks teaches that the barrier layers/materials blocks passage of moisture, oxygen, oils, and food grease, i.e., exhibits oil and grease resistance, water/water vapour resistance, gas resistance, and oxygen resistance (paras [0007], [0021], [0019]), and provides resistance to external moisture, and protecting the exterior of the product from moisture and maintaining the structural integrity and appearance of the construct (para [0026] [0023] [0024]).
It would have been obvious to one of ordinary skill in the art to modify the multi-layered fibrous product of Crooks, to select suitable materials for each of the first fibrous layer and the second fibrous layer, respectively, such as to provide a first fibrous layer having a higher water-resistance and/or higher water vapour resistance than the (second) fibrous layer, in order to provide an improved multi-layered fibrous product having the lowermost/exterior layer of the construct with resistance to external moisture, and protecting the exterior of the product from moisture and maintaining the structural integrity and appearance of the construct as taught by Crooks (para [0026] [0023] [0024]), which would have predictably arrived at a satisfactory multi-layered fibrous product that is the same as instantly claimed.
Regarding claim 12, Crooks teaches wherein the cellulosic fibrous material of the fibrous layers of the product comprises bleached chemical wood pulp, comprising bleached softwood chemical wood pulp (the fibrous layers are paper products, e.g., paperboard/cardboard and parchment paper made from paper pulp derived from wood/softwood fibers, that are chemically modified/treated, bleached, paras [0019], [0016], considered meeting the claimed limitations).
Regarding claim 17, Crooks teaches wherein at least one of the fibrous layers comprises one or more additives selected from the group consisting of pigments, barrier agents, binders, sizes, and AKD (the substrate 102 can include supplemental materials such as coatings that can include clay coatings and colorants, i.e., pigments, and the fibrous layers include barrier agents/materials to provide barrier properties, paras [0019] [0022]), meeting the claimed limitations.
Regarding claim 18, Crooks does not specifically teach that the product has a dry grammage in the range of 5 to 900 g/m².
However, Crooks teaches that the fibrous layer can be formed from paperboard or corrugated cardboard, and that paperboard can be of a caliper such that it is heavier and more rigid than ordinary paper (para [0026]). Crooks recognizes that the grammage/caliper of the product is a result effective variable and is affected based on the desired rigidity and stacking strength of the construct (paras [0026], [0018]).
Absent a showing of criticality with respect to the recited dry grammage (a result effective variable), it would have been obvious to a person of ordinary skill in the art to adjust the dry grammage of the multi-layered fibrous product through routine experimentation in order to achieve the desired properties (i.e., rigidity, strength, and stacking properties) of the multi-layered fibrous product, which would have arrived at a workable dry grammage that falls within the broad range as instantly claimed, i.e., in the range of 5 to 900 g/m². It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). MPEP 2144.05.
Regarding claim 19, Crooks teaches the first and/or the second fibrous layer being a paper/paperboard layer of a selected caliper (para [0026]). Crooks does not specifically teach that the first and/or the second fibrous layer having a dry grammage in the range of 20 to 150 g/m², as instantly claimed.
However, Crooks teaches that the fibrous layer can be formed from paperboard or corrugated cardboard, and that paperboard can be of a caliper such that it is heavier and more rigid than ordinary paper (para [0026]). Crooks recognizes that the grammage/caliper of the product is a result effective variable and is affected based on the desired rigidity and stacking strength of the construct (paras [0026], [0018]).
Absent a showing of criticality with respect to the recited dry grammage (a result effective variable), it would have been obvious to a person of ordinary skill in the art to adjust the dry grammage of either the first or the second fibrous layer of the multi-layered fibrous product through routine experimentation in order to achieve the desired properties (i.e., rigidity, strength, and stacking properties) of the multi-layered fibrous product, which would have arrived at a workable dry grammage that falls within the broad range as instantly claimed, i.e., in the range of 20 to 150 g/m². It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). MPEP 2144.05.
Regarding claim 20, Crooks teaches its multi-layered fibrous product is a three-dimensional moulded multi-layered fibrous product, obtained by using a mould comprising at least one three-dimensional, non-planar mould surface, wherein said product exhibits a three-dimensional shape conforming to the shape of said three-dimensional, non-planar mould surface (the construct 110 is formed from the laminate structure 100 by press-forming, e.g., with a pressing block and cavity, such that at least one wall 114 is formed to define an interior 112 of the construct, paras [0023], [0015], Fig. 4).
It should be noted that the recitation of “the product has been obtained by a foam-forming or a water-forming method in a mould” of claim 20 is considered as product-by-process limitation. It is the examiner’s position that the recited process does not result in a patentably distinctive structural difference in the resultant its multi-layered fibrous product Product-by-process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. See MPEP 2113. [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.
Regarding claim 21, Crooks teaches wherein the product is an ovenable or micro-ovenable food or liquid packaging, container or tray (the construct can be a container, package, tray, plate, bowl, or other construct for holding a food product while heating in a microwave oven, a conventional oven, or both, paras [0015], [0005], [0018]), meeting the claimed limitations.
Claim(s) 2-4 are rejected under 35 U.S.C. 103 as being unpatentable over Crooks as applied to claim 1 above, in view of Middleton et al. (US 2006/0049190; “Middleton”).
The limitations of claim 1 are taught by Crooks as discussed above.
Regarding claims 2-3, Crooks teaches the ovenable moulded multi-layered fibrous product, that the parchment composite layer 104 defines the interior-facing, food-contacting surface S1 of the construct (paras [0019], [0023], Fig. 4). Crooks does not specifically teach that the product further comprises a specific non-fibrous release layer on top of the second fibrous layer and forming an uppermost layer of the product in use, the non-fibrous release layer being configured to be in direct contact with the food or liquid and to facilitate releasing of the food or liquid from the product after being heated thereon.
Middleton teaches a construct for heating food products in a microwave oven (construct 112), comprising a cellulose or paper support layer (support layer 120) having a non-fibrous release layer thereon (a release material or coating 118 providing a non-stick surface 116), the non-fibrous release layer being configured to contact the food and to facilitate release of the food from the construct (paras [0067]-[0073], Fig. 13, Fig. 14). Middleton also teaches its non-fibrous release layer comprises a silicone composition (para [0068]), meeting the claimed material limitations of instant claim 3.
It would have been obvious to one of ordinary skill in the art to modify the ovenable moulded multi-layered fibrous product of Crooks in view the teachings of Middleton, to provide a non-fibrous release layer/coating that comprises a silicone composition, on top of the food-contacting fibrous composite layer, forming the uppermost layer in use, as taught by Middleton (para [0067]-[0073]), to provide a non-stick, food-contacting surface that facilitates release of the heated food product from the product, which would have predictably arrived at a satisfactory ovenable moulded multi-layered fibrous product that is the same as instantly claimed, in claims 2-3.
Regarding claim 4, modified Crooks teaches an ovenable moulded multi-layered fibrous product including a non-fibrous release layer (taught by Middleton). Modified Crooks does not specifically teach that the dry grammage of the non-fibrous release layer.
Absent a showing of criticality with respect to the recited dry grammage of the release layer (a result effective variable), it would have been obvious to a person of ordinary skill in the art to adjust the dry grammage of the release coating layer through routine experimentation in order to achieve the desired release/non-stick performance of the coating layer, which would have arrived at a workable grammage that falls within the broad range as instantly claimed, i.e., 0.5 to 2.5 g/m². It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). MPEP 2144.05.
Claim(s) 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over Crooks as applied to claims 1 and 9 above, in view of Backfolk et al. (WO2021/038504; “Backfolk”).
The limitations of claim 1 and claim 9 are taught by Crooks as discussed above.
Regarding claims 13-14, Crooks does not specifically teach using the specific cellulosic fibres comprising softwood chemical wood pulp having the Schopper-Riegler number as instantly claimed.
Backfolk teaches a multilayer molded laminate suitable for food packaging applications that is of micro fibrillated cellulose (MFC) having enhanced printability (page 3, lines 13-30). Backfolk teaches suitable cellulose fiber material includes wood pulp, softwoods pulp (page 8, lines 6-10), and includes those pulp having the Schopper-Riegler number of 50 (page 10, lines 10-20), meeting the claimed limitations of claims 13-14. In the case where the claimed ranges “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). MPEP 2144.05.
It would have been obvious to one of ordinary skill in the art to modify the ovenable moulded multi-layered fibrous product of Crooks in view the teachings of Backfolk, to select suitable cellulose fiber material for the first and/or the second fibrous layer such as those pulp having the Schopper-Riegler number of 50 as taught by Backfolk (page 10, lines 10-20), to provide multi-layered fibrous product with improved printability as taught by Backfolk, which would have predictably arrived at a satisfactory ovenable moulded multi-layered fibrous product that is the same as instantly claimed, in claims 13-14. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.05.
Regarding claims 15-16, Crooks does not specifically teach that the density of the first and the second fibrous layer in the manner as instantly claimed.
Backfolk teaches a multilayer molded laminate suitable for food packaging applications that is of micro fibrillated cellulose (MFC) having enhanced printability (page 3, lines 13-30). Backfolk teaches suitable cellulose fiber material includes wood pulp, softwoods pulp (page 8, lines 6-10), and that the density of the fibrous layers made thereof are result effective variable and various depending on the intended end applications, and that suitable density is in the range of 350 to 1500 kg/m³ (page 12, lines 13-15), which range overlaps with the instantly claimed range of 300 to 1 000 kg/m³ of claim 15, and overlaps with the instantly claimed range of less than 500 kg/m³ of claim 16. In the case where the claimed ranges “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). MPEP 2144.05.
It would have been obvious to one of ordinary skill in the art to modify the ovenable moulded multi-layered fibrous product of Crooks in view the teachings of Backfolk, to select suitable cellulose fiber material for the first and/or the second fibrous layer such as those making fibrous layers with desired density is in the range of 350 to 1500 kg/m³ as taught by Backfolk (page 12, lines 13-15), to provide multi-layered fibrous product with improved printability as taught by Backfolk, which would have predictably arrived at a satisfactory ovenable moulded multi-layered fibrous product that is the same as instantly claimed, in claims 15-16. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.05.
Conclusion
The following prior art made of record and not relied upon are considered pertinent to applicant's disclosure. Hart et al. (US 2016/0333529) that teaches a method of wood pulping having a significantly increased yield and for making paperboard having an enhanced stiffness at a lower basis weight that is more economical than conventional single-ply and multiply paperboards (para [0016] [0018]). Neagu et al. (US 2020/0039713) that teaches a foam-formed low density cellulose fibre material and bulk sheets or moulded articles comprising such material (para [0001]).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to YAN LAN whose telephone number is (571)270-3687. The examiner can normally be reached Monday - Friday 7AM-4PM.
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/YAN LAN/Primary Examiner, Art Unit 1782
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