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 .
Response to Amendment
Those objections and rejections that are not repeated in this Office Action have been withdrawn.
Claims 1-14, 16, 18 and 19 are currently pending and rejected
Claim Rejections - 35 USC § 103
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 1-6, 8-10, 12, 14 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Grefenstein (AT 522884) in view of Fogtmann (WO 2021151842) and Knoerzer (US 20080160327).
Regarding claim 1, Grefenstein teaches a multi-layer flexible packaging material (see paragraph 1 and 2) comprising the following layers from the outer surface to the inner surface: a paper layer with a grammage of from 40 to 120 g/m2 (see paragraph 27, which teaches paper layer with a grammage of 100 g/m2; figures 1-2, item 2), a barrier layer comprising a material selected from the group consisting of metallized material, aluminum oxide, silicon oxide and mixtures thereof with a thickness that is within the claimed range of 20 to 300 nm (see figure 2, item 6; paragraph 38, 50; see paragraph 37: metallization for example with aluminum; AlOx aluminum oxide), and a polymeric layer (figure 2, item 4), the polymeric layer comprises at least one plastic polymer (see paragraph 36, “substrate layer 4 made primarily of polyethylene or primarily of polypropylene”; see paragraph 41).
Claim 1 differs from Grefenstein in specifically reciting that the polymeric layer has a grammage of from 1.0 to 15.0 g/m2.
Fogtmann teaches a paper based packaging material (see the abstract) where there is a paper layer with a grammage above 50 g/m2 (see page 2, line 25; figure 1, item 4; page 16, lines 20-21), a metallized barrier layer (page 16, lines 21-23: metallization 4b), an inner layer (figure 1, item 6) and a plastic polymer layer (7) positioned between the barrier layer (4b) and the food contact layer (6) (see page 16, lines 30-32). This layer (7) has a basis weight of 1-10 g/m2 (see page 7, line 31 to page 8, line 1; page 17, lines 13-14) and is taught to be a plastic such as HDPE which can also provide additional barrier properties to the packaging material (see page 7, line 13-16).
To therefore modify Grefenstein who already teaches a plastic polymer layer, and to use a basis weight of 10 g/m2, for example, would have been obvious to one having ordinary skill in the art, because Fogtmann teaches that such basis weights for plastic, polymer layers has been a known and conventional basis weight, while still providing additional functionality such as to provide additional barrier properties to the packaging material.
Further regarding the limitation of, “from the outer surface to the inner surface” it is noted that since the claim is directed to the packaging material, whether one positioned the paper layer or the polymeric layer as the outer and inner surface respectively would have been obvious in light of how the package was intended to be made from the packaging material
Nonetheless, to further expedite prosecution, it is further noted that Knoerzer teaches a paper based bag (see the abstract: “the bio-based film can include paper”; figure 5a, item 502 which is a bio-based film) which also comprises a barrier layer (see figure 5a, item 516a and paragraph 43: metallized barrier/adhesion improving film layer); and a plastic polymer layer (see figure 5a, item 518a and paragraph 41 “PLA” which is polylactic acid) and an inner most sealing layer (see figure 5a, item 519) which is heated to provide the seal (see paragraph 28), thus suggesting a heat seal on the inner surface of the material. Grefenstein also teaches a sealing layer positioned after the polymeric layer (see figure 2, item 7 and paragraph 53).
Therefore, in view of Knoerzer, it would have been obvious to one having ordinary skill in the art to have positioned Grefenstein’s polymer layer toward the inner surface and the paper layer toward the outer surface based on conventional expedients for similar configurations of multi-layer packaging materials used for making flexible packages.
Regarding claim 2, Grefenstein teaches the barrier layer is metallized aluminum (see paragraph 37, “metallization, for example with aluminum”)
Regarding claims 3 and 4 Grefenstein teaches that the polymeric layer (4) can be a polyethylene and therefore comprises a polyolefin (see paragraph 36, “substrate layer 4 made primarily of polyethylene or primarily of polypropylene”; see paragraph 41).
Regarding claim 5, Grefenstein teaches that the polymeric layer can be oriented (see paragraph 36, “stretched substrate layer 4 made primarily of polyethylene”; paragraph 49, “substrate layer 4…is stretched uni- or bidirectionally” - which therefore reads on orienting of the polymeric layer)
Regarding claim 6, Grefenstein teaches the paper can have a grammage of 30-100 g/m2 (see paragraph 27) thus encompassing the claimed range. Fogtmann further teaches and specifically suggests flexible packaging where the paper layer can have a grammage of 50g/m2 or more (see page 2, line 25), such as 50-90 (see page 7, lines 22-30) for achieving the desired areal density (see page 3, lines 14-16), thus teaching and suggesting a grammage within the claimed range. To therefore modify Grefenstein who already encompasses the claimed range and to specifically use a grammage such as 50 g/m2 would have been obvious to one having ordinary skill in the art, as a matter of engineering and/or design, based on conventional expedients for the grammage of paper used for flexible packaging materials and for achieving the desired areal density.
Regarding claim 8, Fogtmann teaches that the polymeric layer (7), as already applied above to claim 1, can have a basis weight such as from 2-7 or 4-5 g/m2 which thus falls within the claimed range (see page 7, line 31 to page 8, line 1).
Regarding claim 9, Grefenstein teaches a laminating adhesive, (see figure 2, item 9) positioned between the barrier layer (6) and the paper layer (2). The claim does not limit the particulars of the lamination adhesive layer and claim 1 does not require the optional hydrophilic layer. Therefore layer (9) of Grefenstein can be construed as a laminating adhesive layer between the paper layer and the barrier layer. It is also noted that layer 5, which is a connecting layer can be positioned between the paper layer (2) and the barrier layer 6, as shown in figure 3, thus making it obvious to one having ordinary skill in the art to have positioned a lamination adhesive for adding additional layers to the multi-layer flexible packaging material. The claim does not limit the particular number of layers but rather only requires a particular order from “the outer surface to the inner surface.”
Regarding claim 10, Grefenstein teaches that layer 6, which is the barrier layer, can have a thickness of 50nm (see paragraph 38), which falls within the claimed range.
Regarding claim 12, since the claim is directed to a product and not the method of making the product, this claim is a product by process claim which is not limited to the particular recited steps but rather to the structure implied by the steps (MPEP 2113). In this regard, the implied structure is the metallized layer which Grefenstein teaches. Furthermore however, Grefenstein also teaches using vapor deposition such as evaporation in a vacuum (see paragraph 38, which could be construed as a physical vapor deposition).
Regarding claim 14, Grefenstein teaches an optional sealing layer (figure 2, item 7; paragraph 53) and Grefenstein further teaches the purpose of a sealing layer is to heat seal the laminate into a package (see paragraph 4), thus teaching and suggesting a heat seal on the inner surface of the material.
If it could have been construed that Grefenstein was not clear in this regard, then it is noted that Knoerzer teaches a paper based bag (see the abstract, “the bio-based film can include paper”; figure 4b, item 402b which is a bio-based film; figure 5b, item 502) which also comprises a barrier layer (see figure 5a, item 516a and paragraph 43); and a plastic polymer layer (see figure 5a, item 518a and paragraph 41 “PLA” which is polylactic acid) and an inner most sealing layer (see figure 51, item 19) which is heated to provide the seal (see paragraph 28), thus suggesting a heat seal on the inner surface of the material.
Since Grefenstein also teaches an analogous arrangement to the packaging material as that of Knoerzer and as Knoerzer teaches that the heat seal layer is the inner surface of the material it would have been obvious to one having ordinary skill in the art to have modified Grefenstein to provide an inner heat seal based on conventional arrangements of where to position the sealing layer for allowing the packaging laminate to be used as a flexible package.
Regarding claim 16, the combination as applied to claim 1 teaches the claimed structure of the paper layer, the barrier layer and the polymeric layer.
Regarding claim 16 reciting “a dry food product packaged in the multi-layer flexible packaging material,” Grefenstein also teaches that the material is used to form a bag and hold food (see paragraph 4 and 15) but claim 16 differs in specifically reciting, “a dry food product.”
Knoerzer teaches an analogous multilayer paper based packaging material, as already discussed above, which can be formed into a bag that is holding dry food products (see paragraph 5 and 58: “potato chips”; paragraph 78, “snack foods such as potato chips, corn chips, tortilla chips and the like”).
Since both Grefenstein and Knoerzer are directed to packages for holding foods, it would have been obvious to one having ordinary skill in the art to have modified Grefenstein and to package dry food product therein, as taught by Knoerzer, as an obvious matter of engineering and/or design, based on conventional foods to be packaged in paper based, flexible packaging materials which also comprise a barrier layer and a sealant layer.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over the combination, as applied to claim 1 above, and in further view of Iovine (US 4948822) or Knoerzer (US 20210347546, i.e. Knoerzer546).
Claim 13 differs from the combination, as applied to claim 1 above, in specifically reciting, wherein the plastic polymer is treated using a corona process.
However, Iovine teaches that a known expedient for providing adhesion promotion for a polyolefin layer is to use corona discharge treatment (see column 1, lines 28-38; column 6, lines 4-7). Applicant’s specification discloses using this same treatment on the plastic polymer layer. Knoerzer546 also teaches enhancing the surface energy of polyethylene films for improving adhesion (see paragraph 27).
To therefore modify Grefenstein’s polymer layer and use corona treatment or any other treatment to increase the surface energy would have been obvious to one having ordinary skill in the art for promoting adhesion to this layer.
Claims 7, 11, 18 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Grefenstein (AT 522884) in view of Fogtmann (WO 2021151842) and Knoerzer (US 20080160327) as applied to claims 1, 2, 5, 8 and 16 above, and in further view of Noishiki (WO 2021010040).
Regarding claim 11, the combination as applied to claims 1, 2, 5 and 8 teach the claimed grammage of the paper layer and the polymeric layer and the barrier layer comprising a metallized material .
Further regarding the limitation of, “a hydrophilic layer has a grammage of 1.5 to 10g/m2,” Grefenstein teaches that there can be a hydrophilic adhesive layer for boding a barrier layer to the paper layer (see paragraph 29, 30, 55; figure 1 and 2, item 9).
Claim 11 differs in specifically reciting that the hydrophilic layer “has a grammage of from 1.5 to 10.0 g/m2.
Claims 18 and 19 differ in specifically reciting that the hydrophilic layer, “with a grammage of at least 1.5 g/m2”
However, Noishiki teaches an undercoat layer positioned between a paper layer and a metallized layer (see paragraph 33 and 38 of the machine translation) and where the undercoat layer can be used for improving the adhesion between the paper layer and the metallized vapor deposited layer (see paragraph 36). Noishiki therefore teaches an adhesive layer in a similar position as Grefenstein’s hydrophilic adhesive layer. Noishiki further teaches that the undercoat layer can have a grammage of 1-10g/m2, such as 5 g/m2 (see paragraph 37 of the machine translation).
Since Grefenstein is not limiting as to the particular basis weight of the hydrophilic layer, but since both Noishiki and Grefenstein teach an adhesive layer used to help secure the paper layer with a metallized layer, it would therefore have been obvious to one having ordinary skill in the art to have modified Grefenstein and to have used Grefenstein’s hydrophilic layer at 5-10g/m2, as taught by Noishiki, for the purpose of ensuring the proper adhesion between Grefenstein’s paper layer and barrier layer.
Regarding claim 7, Grefenstein teaches that the hydrophilic layer is present and comprises starch (see figure 2, item 9 and paragraph 25 and 30).
Response to Arguments
On page 6 of the response, Applicant urges that Grefenstein fails to disclose a single, ultra-thin polymer layer applied to a paper substrate but rather teaches a multilayer polymer film attached to paper. Applicant thus urges that Grefenstein discloses a product of greater polymer mass and complexity than the present application and nothing in Grefenstein suggests that one could eliminate the thick plastic substrate and replace it with a minimal coating.
These arguments are not persuasive because they are not commensurate in scope with the claims. Claim 1 and 16 do not exclude any additional layers from being present as part of the packaging material or as part of the dry food product packaged in the multilayer flexible packaging material. It is also noted that the thickness of the multi-layer packaging is only further specified with respect to the thickness of the barrier layer, which Grefenstein teaches can be 50nm (see paragraph 38) and therefore falls within the claimed range.
Further on page 6 of the response, Applicant urges that a person of ordinary skill, starting from Grefenstein would not be motivated to strip away Grefenstein’s plastic film down to an extremely thin layer because doing so would be expected to undermine the high barrier purpose of Grefenstein’s packaging.
These arguments are not persuasive because the rejection is relying on Grefenstein’s teachings of layer 4 as the polymeric layer and Grefenstein does not provide any specificity with respect to the particular grammage of this layer. In view of this, one having ordinary skill in the art would have been motivated to look to prior art teachings for grammages for similar types of polymeric layers; and in this regard, Fogtmann teaches a polymer layer (7) which can be a polyethylene layer such as HDPE which has barrier properties (see page 7, lines 13-16) and Grefenstein teaches that layer 4 can be an HDPE layer (see paragraph 65 of the machine translation)(similar to Grefenstein). In view of these similarities, it would have been obvious to one having ordinary skill in the art to have modified Grefenstein and to have used a grammage of 1-10g/m2 for Grefenstein’s polymer layer 4, because Fogtmann teaches that such a basis weight for an HDPE layer can be useful for providing additional barrier properties to the packaging material.
On pages 6-7 of the response, regarding Fogtmann, Applicant urges that the reference is directed to butter packaging, as opposed to the claims which are directed to product packaging for dry goods, such that a person skilled in the art would not assume that a butter wrapper’s plastic structure would suffice for dry goods.
This argument is not persuasive. It is initially noted that claim 1 is only directed to the packaging material. Additionally however, the rejection is not relying on the specific plastic structure of Fogtmann but rather, is relying on what Fogtmann is further suggesting: which is that a package that already comprises a vapor deposited metallized layer can further benefit from an HDPE layer having a grammage of 1-5g/m2 because Fogtmann teaches that this polymer layer and grammage can be beneficial for providing additional barrier properties to the package. As such, obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007).
Further on page 7 of the response, Applicant urges that Fogtmann teaches the use of at least two polymer layers, which is in contrast to present application that uses a single layer, such that eliminating Fogtmann’s contact layer, which Fogtmann avoids. Applicant therefore urges that applying Fogtmann’s teachings to Grefenstein would add layers to the laminate and not remove them and that the Office Action’s use of Fogtmann’s 1-10g/.m2 tie layer misinterprets Fogtmann because there is no teaching in Fogtmann that a single thin layer could do the job of both the tie layer and the heat sealable contact layer, or that such a construction would be suitable for high-barrier dry goods packaging.
These arguments are not persuasive. Applicant’s arguments urge that the present application uses a single layer; however this argument is not commensurate in scope with the claims. Furthermore, Fogtmann is clearly teaching a tie layer having a grammage of 1-10g/m2 and which tie layer can be HDPE while also having barrier properties. In view of this, and as Grefenstein already teaches a polymeric HDPE layer positioned interior to the barrier layer, it would have been obvious to one having ordinary skill in the art to have modified Grefenstein in view of Fogtmann teaching that an HDPE layer of 1-10g/m2 can also have barrier properties and to have used a similar grammage for Grefenstein’s HDPE layer for also providing additional barrier properties.
On page 8 of the response, Applicant urges that one looking at Grefenstein would not be motivated to include Fogtmann’s extrusion method because it would require significant process changes and may not be compatible with Grefenstein’s specific materials. Therefore, Applicant urges that the rejection relies on hindsight.
These arguments are not persuasive because the rejection is not relying on using Fogtmann’s extrusion method. The rejection is relying on known grammages for an HDPE layer positioned interior to a paper layer and interior to a metallized barrier layer. In view of this, one having ordinary skill in the art would have had a reasonable expectation of success in providing Grefenstein’s polymer layer (4) with a grammage of 1-10g/m2 because Grefenstein does not provide any specificity with respect to a particular grammage of this layer and because Fogtmann teaching of the known grammages for HDPE layers and which can further provide barrier properties. Therefore, the rejection is not relying on hindsight but rather is relying on the teachings from the references themselves.
Further on page 9 of the response, Applicant urges that the combination of Grefenstein with Fogtmann and Knoerzer do not supply the motivation to use a 1-15g/m2 polyolefin layer on paper.
These arguments are not persuasive for the reasons already presented above.
Further on pages 9-10 of the response, Applicant urges that Grefenstein, Fogtmann and Knoerzer each solve a different problem such that there is no single problem or motivation unifying the references that would point to the claimed invention’s solution.
These arguments are not persuasive because the references themselves provide motivation for modifying Grefenstein, as presented above.
Further on page 10 of the response, Applicant urges that Grefenstein’s laminate presumably owes its high oxygen barrier to a dedicated barrier layer supported by a thick film; while Fogtmann’s tie layers do not provide robust oxygen barrier because butter wraps rely n the foil or thick paper for that feature, such that a skilled person would be concerned that removing Grefenstein’s barrier film and replacing it with a Fogtmann-style 5-10g/m2 polymer coating might render the package inadequate for snacks or confectionery.
This argument is not persuasive because the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). In this instance, the rejection does not rely on removing any of Grefenstein’s layer but rather relies on Fogtmann to teach and suggest known types of grammage for an HDPE layer that can be useful for providing additional barrier properties.
Further on page 10 of the response, Applicant urges that the invention achieves a technical advancement of maintaining product protection for dry foods with drastically reduced plastic content, which would not have bene expected by extrapolating from the prior art.
These arguments are not persuasive because the prior art provides motivation for arriving at the claimed grammage of the polymeric layer, such that Grefenstein together with Fogtmann teaches and suggests the packaging material structure as recited in claim 1. Knoerzer has been relied on to teach the known orientation for a multilayer structure such as Grefenstein’s such that it would have been obvious to have positioned Grefenstein’s multilayer structure with the polymeric layer facing an interior of a package with the paper layer facing external to the package. The fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
On page 11 of the response, Applicant urges that Iovine and Knoerzer546 do not teach, suggest or disclose a multi-layer flexible packaging material configured to form a product package having an outer surface and an inner surface with a paper layer grammage of 40-120g/m2 and a polymeric layer with a grammage of 1-15g/m2.
These arguments are not persuasive because the references have not been relied on for these limitations, but rather, have been relied on to teach that corona discharge can further improve the adhesion of a polymeric layer such that it would have been obvious to one having ordinary skill in the art to have modified Grefenstein’s polymer layer and corona treated the layer for the same purpose of promoting adhesion.
Conclusion
The prior art already made of record and not relied upon is considered pertinent to applicant's disclosure.
Knoerzer (US 20220250819, i.e. Knoerzer819) (available as of the provisional application filing date) teaches a multilayer packaging material used to form a bag (see figure 2), which material comprises an outer paper layer (see figure 1, item 102; paragraph 19, “layer 102 may comprise a bio-based polymer or a paper layer), a metallized barrier layer (see figure 1, item 104 and paragraph 22) with a lamination adhesive (figure 1, item 108 and paragraph 29) positioned between the paper layer 102 and the barrier layer 104 for the purpose of providing the requisite adhesion between these two layer (see paragraph 29).
Harlin (US 20110223401) discloses a paper layer (12, 22; paragraph 39-40) that has a polymeric coating thereon (14, 24; paragraph 49) which coating can comprise starch and pigments (paragraph 43-44), a metallized barrier layer (16,26; paragraph 24-30), and a polymeric layer on the metallized barrier (28; paragraph 39: “coating layer applied onto the thin barrier layer; paragraph 51), which polymeric layer can comprise a plastic polymer (see paragraph 43, biodegradable polyesters, polyamides, polylactic acid).
Akao (US 4784906) discloses a multilayer flexible packaging material comprising an outer paper layer (figure 8, item 5; column 8, lines 1-2,10-13), an adhesive lamination layer (figure 8, item 8), a light blocking barrier layer (figure 8, item 2; figure 10, item 5) and a plastic polymer layer (see figure 9, item 1, which is a light-absorptive, light-shielding thermoplastic resin layer.
Cham (WO 2014071377) discloses a multilayer flexible packaging material (see figure 1; paragraph 21) which comprises a paper layer (112; paragraph 36) a filler layer 114 comprising starch (paragraph 8 and 36) a metallized barrier layer (figure 1, item 118 and paragraph 36) and a polymeric plastic layer (120; paragraph 38).
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VIREN THAKUR whose telephone number is (571)272-6694. The examiner can normally be reached M-F: 10:30-7:00pm.
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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