DETAILED ACTION
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Election/Restrictions
Claims 13, 14, and 17-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 31 October 2025.
Claim Rejections - 35 USC § 103
Claims 1, 3-6, 9-12, 15, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Bevilacqua et al. (US 2011/0091695) in view of Lopez-Rubio et al. (J. App. Polym. Sci., vol 105, pp 2676-2682, 2007).
Bevilacqua is directed to a multilayer film for the production of a packaging material used to package food (paragraphs 0001-0002). In one embodiment, the film comprises a biaxially oriented layer adhesively bonded to an oriented biaxially oriented triple bubble film having the structure PP:PP:t:EVOH:t:PP:sealing layer (claim 4). Polypropylene is a preferred material for the sealing layer (paragraph 0060). The tie layer is a material on the basis of maleic acid anhydride (paragraph 0057).
In a film having the structure PP:PP:t:EVOH:t:PP:sealing layer, the first "PP" layer corresponds to the second film of the claims while PP:t:EVOH:t:PP corresponds to the first film. The sealing layer corresponds to the third film of claims 3-5.
Bevilacqua does not teach irradiating the coextruded film of the multilayer film. However, Bevilacqua does teach that the ethylene vinyl alcohol layer is designed to act as a barrier layer (paragraph 0041).
Lopez-Rubio is directed to improving the oxygen blocking activity of ethylene vinyl alcohol copolymer by providing an oxygen scavenging capacity through irradiation (abstract) with applications in packaging of foodstuff (Introduction - column 1 of page 2676). Irradiation at doses of 30 and 90 kGy are shown to provide an oxygen scavenging capacity (Conclusions - column 2 of page 2681).
It would be obvious to one of ordinary skill in the art to irradiate the coextruded film of Bevilacqua comprising an ethylene vinyl alcohol copolymer barrier layer to improve its oxygen blocking activity.
Regarding the limitation that the film is "recyclable," while this limitation appears in the preamble, the clear reliance on the term to distinguish the claimed invention from that of JPH07304966 in the reply filed 31 October 2025 transforms the preamble into a claim limitation because such reliance indicates use of the preamble to define, in part, the claimed invention (see MPEP 2111.02II). One of ordinary skill in the art would expect the film of Bevilacqua taken in view of Lopez-Rubio to be recyclable since irradiation taught by Lopez-Rubio would not be expected to crosslink the polypropylene.
Regarding the limitation that the second film is laminated to the first film, this represents a product-by-process limitation since it describes the manner in which the first and second films are joined together. When the prior art discloses a product which reasonably appears to be either identical with or only slightly different than a product claim in a product-by-process claim, the burden is on the applicant to present evidence from which the examiner could reasonably conclude that the claimed product differs in kind from those of the prior art. In re Brown, 459 F. 2d 531, 173 USPQ 685 (CCPA 1972); In re Fessman, 489 F. 2d 742, 180 USPQ 324 (CCPA 1974). This burden is NOT discharged solely because the product was derived from a process not known to the prior art. In re Fessman, 489 F. 2d 742, 180 USPQ 324 (CCPA 1974). Furthermore, the determination of patentability for a product-by-process claim is based on the product itself and not on the method of production. If the product in the product-by-process claim is the same 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, 227 USPQ 964, 966 (Fed. Cir. 1985) and MPEP § 2113. In this case, while the structure PP:PP:t:EVOH:t:PP:sealing layer is formed by coextrusion as opposed to laminating a PP layer to a PP:t:EVOH:t:PP:sealing layer structure, the resulting film appears to be the same as the film of the claim since it meets all the product limitations (e.g., an oriented polypropylene film and an ethylene vinyl alcohol layer between polypropylene films). As such, the burden is on the applicant to conclusively demonstrate that the process limitations of claim 1 result in a patentably distinct film from that of the prior art.
Regarding claim 6, the adhesive used to bond the oriented outer layer to the coextruded layers reads on a seal layer.
Regarding claims 9-11 and 16, since ethylene vinyl alcohol copolymer is significantly more expensive than polypropylene, it would have been obvious to one of ordinary skill in the art to use as little ethylene vinyl alcohol copolymer as necessary. Moreover, since both the film and the ethylene vinyl alcohol copolymer layer of Bevilacqua are used for the same purpose as in the instant application (i.e., food packaging and barrier layer, respectively), one of ordinary skill in the art would expect a film as taught by Bevilacqua designed to be as affordable as possible would intrinsically possess a content of ethylene vinyl alcohol copolymer satisfying the limitations of claims 9-11 and 16.
Regarding claim 12, since irradiating an ethylene vinyl alcohol copolymer layer intrinsically result in the generation of free radicals (see paragraph 0054 bridging pages 11 and 12 of the specification) and since the dose used by Lopez-Rubio (i.e., 30 or 90 kGy) fall within the preferred dose used in the instant invention (i.e., about 1 to 20 Mrad [equivalent to 10 to 200 kGy] according to paragraph 0052 on page 11 of the specification), one of ordinary skill in the art would expect an ethylene vinyl alcohol copolymer layer irradiated according to Lopez-Rubio to intrinsically satisfy the limitations of claim 12.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Bevilacqua et al. (US 2011/0091695) in view of Lopez-Rubio et al. (J. App. Polym. Sci., vol 105, pp 2676-2682, 2007) as applied to claim 6 in paragraph #3 above, and further in view of Christensen et al. (US 4,405,667).
Bevilacqua et al. taken in view of Lopez-Rubio et al. suggests all the limitations of claim 7, as outlined above, except for the use of a polyolefin as the adhesive layer.
Christensen is directed to a film used to form retort packaging for food (column 1, lines 5-10). The film comprises multiple layers bonded together with layers of adhesives, such as linear low density polyethylene, polypropylene, and anhydride modified polypropylene (column 3, lines 36-48).
It would have been obvious to one of ordinary skill in the art to use a material taught by Christensen as the adhesive of Bevilacqua since the courts have held the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination. See MPEP 2144.07.
Claims 1, 3-7, 9-12, and 15-16 are rejected under 35 U.S.C. 103 as being unpatentable over Bevilacqua et al. (US 2011/0091695) in view of Lopez-Rubio et al. (J. App. Polym. Sci., vol 105, pp 2676-2682, 2007) and Umphlett et al. (US 2022/0111622).
Bevilacqua is directed to a multilayer film for the production of a packaging material to be subjected to a retort process and used to package food (paragraphs 0001-0002). The film may be formed by a process in which first the inner and middle layers are coextruded followed by adhesively bonding a biaxially oriented film to the coextruded film (paragraph 0026). In one embodiment, the film is a laminate of a biaxially oriented plastic film to a triple bubble film having the structure PP:PP:t:EVOH:t:PP:sealing layer (claim 4). Polypropylene is a preferred material for the sealing layer (paragraph 0060).
The coextruded film comprising the PP:PP:t:EVOH:t:PP structure reads on the first film of the claims while the biaxially oriented film reads on the second film of the claims.
Bevilacqua does not teach irradiating the coextruded film of the multilayer film. However, Bevilacqua does teach that the ethylene vinyl alcohol layer is designed to act as a barrier layer (paragraph 0041). Additionally, Bevilacqua does not teach the use of an oriented polypropylene film as the biaxially oriented plastic film laminated to the triple bubble film. However, Bevilacqua does teach that the biaxially oriented film may be polyethylene terephthalate or polyamide (paragraph 0055).
Lopez-Rubio is directed to improving the oxygen blocking activity of ethylene vinyl alcohol copolymer by providing an oxygen scavenging capacity through irradiation (abstract) with applications in packaging of foodstuff (Introduction - column 1 of page 2676). Irradiation at doses of 30 and 90 kGy are shown to provide an oxygen scavenging capacity (Conclusions - column 2 of page 2681).
It would be obvious to one of ordinary skill in the art to irradiate the coextruded film of Bevilacqua comprising an ethylene vinyl alcohol copolymer barrier layer to improve its oxygen blocking activity.
Umphlett is directed to a multilayer packaging film that can withstand a retort process (paragraph 0008). The film comprises a coextrusion laminated to an oriented film that may be oriented polyester, oriented polyamide, or oriented polypropylene (paragraph 0010).
That is, Umphlett shows that oriented polyester (polyethylene terephthalate is a polyester), oriented polyamide, and oriented polypropylene are known in the art as functionally equivalent oriented films to be laminated to a coextruded film in packaging designed to undergo retort process. Therefore, because these films were art-recognized equivalents at the time the invention was made, one of ordinary skill in the art would have found it obvious to substitute oriented polypropylene for the oriented polyethylene terephthalate or oriented polyamide taught by Bevilacqua.
Regarding the limitation that the film is "recyclable," while this limitation appears in the preamble, the clear reliance on the term to distinguish the claimed invention from that of JPH07304966 in the reply filed 31 October 2025 transforms the preamble into a claim limitation because such reliance indicates use of the preamble to define, in part, the claimed invention (see MPEP 2111.02II). One of ordinary skill in the art would expect the film of Bevilacqua taken in view of Lopez-Rubio and Umphlett to be recyclable since the irradiation taught by Lopez-Rubio would not be expected to crosslink the polypropylene.
Regarding claims 6 and 7, the additional polypropylene layer in the triple bubble film reads on a polyolefin seal layer.
Regarding claims 9-11 and 16, since ethylene vinyl alcohol copolymer is significantly more expensive than polypropylene, it would have been obvious to one of ordinary skill in the art to use as little ethylene vinyl alcohol copolymer as necessary. Moreover, since both the film and the ethylene vinyl alcohol copolymer layer of Bevilacqua are used for the same purpose as in the instant application (i.e., food packaging and barrier layer, respectively), one of ordinary skill in the art would expect a film as taught by Bevilacqua designed to be as affordable as possible would intrinsically possess a content of ethylene vinyl alcohol copolymer satisfying the limitations of claims 9-11 and 16.
Regarding claim 12, since irradiating an ethylene vinyl alcohol copolymer layer intrinsically result in the generation of free radicals (see paragraph 0054 bridging pages 11 and 12 of the specification) and since the dose used by Lopez-Rubio (i.e., 30 or 90 kGy) fall within the preferred dose used in the instant invention (i.e., about 1 to 20 Mrad [equivalent to 10 to 200 kGy] according to paragraph 0052 on page 11 of the specification), one of ordinary skill in the art would expect an ethylene vinyl alcohol copolymer layer irradiated according to Lopez-Rubio to intrinsically satisfy the limitations of claim 12.
Response to Arguments
Applicant argues that the outer layer taught by Bevilacqua as laminated to the 3B film is not an oriented polypropylene film as required by the claims. Upon reconsideration, the examiner agrees with this position and the rejection is withdrawn. However, , upon further consideration, new grounds of rejection are made in which (i) an outer layer of the biaxially oriented triple bubble layer reads on the oriented polypropylene layer of the claims (see paragraphs #3 and #4 above as well as (ii) it would be obvious to use oriented polypropylene as the oriented plastic film (see paragraph #5 above).
Since these are new grounds of rejection (even though the rejections set forth in paragraphs #3 and #4 rely on the same references), this action has not been made final.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RAMSEY E ZACHARIA whose telephone number is (571)272-1518. The best time to reach the examiner is weekday afternoons, Eastern time.
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/RAMSEY ZACHARIA/Primary Examiner, Art Unit 1787
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