Claims 1, 2, 4-8, and 20-32 are currently pending with claims 3, 9-19 being canceled. Claims 1, 2, 4-8, and 20-32 are rejected.
The 112, four paragraph, rejection is moot in view of the cancellation of claim 3.
The rejections over Leser in view of “HDPE Data Sheet”; and further in view of Liao have been withdrawn in view of the present amendment and response. Liao discloses a foamed material comprising HDPE and LDPE with a mixing ratio of HDPE:LDPE of 1:9 to 9:1 (paragraphs 12-19). This is different than the claimed ratio of 1:10.
The rejections over Leser in view of “HDPE Data Sheet”; and further in view of Andersson have been withdrawn in view of the present amendment and response. Andersson discloses a bottle having a wall structure 10 comprising a foam layer 11 disposed between two outer, solid layers of plastic of the same type as the plastic in the foamed layer (abstract). The foam layer includes HDPE, high melt-strength PE and LDPE with a mixing ratio of HDPE:LDPE of from 1:3 to 3:1 (paragraphs 13, 14 and 19). This range does not include the claimed ratio of 1:10.
The rejections over Euler in view of “HDPE Data Sheet”; and further in view of Andersson have been withdrawn for the same reasons discussed above.
Other rejections have been maintained.
New ground of rejection is made in view of newly discovered reference to Ohlsson et al. (US 2012/0100356).
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.
Claims 21-25 are 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.
Each of claims 21-25 is indefinite because the content of the blend of polymers is not within the range recited in parent claim 20. Appropriate correction is required.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed
before the effective filing date of the claimed invention.
Claims 20-32 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 2019/0047265 to Euler et al. (hereinafter “Euler”).
As to claims 20-25, Euler discloses a multi-layer sheet constructed in the following order: a film layer, a polymeric-lamination layer and an insulative cellular non-aromatic polymeric material (abstract, and figure 2A). The insulative cellular non-aromatic polymeric material comprises a base resin blend including LDPE, LLDPE, HDPE, ethylene-vinyl acetate copolymer, ethylene-ethyl acrylate copolymer, ethylene-acrylic acid copolymer, or mixtures of at least two of the forgoing (paragraph 47). Hence, the base resin blend includes a mixture of the HDPE and LDPE. The amount of the base resin blend of the polymeric formulation is one of the following values, about 75%, about 80%, about 90%, about 95%, about 99% by weight (paragraph 48).
As to claim 26, Euler discloses that the base resin blend includes LDPE, LLDPE, HDPE, ethylene-vinyl acetate copolymer, ethylene-ethylacrylate copolymer, ethylene-acrylic acid copolymer, or mixtures of at least two of the forgoing (paragraph 47). Therefore, the base resin does not comprise polypropylene.
As to claims 27-30, Euler discloses that the polymeric-lamination layer comprises about 85% by weight of regrind comprising ink or substantially being free of ink (paragraphs 53 and 96). The examiner equates ink to the claimed colorant.
As to claim 31, Euler discloses that the regrind is substantially free of an epoxy (paragraph 53).
As to claim 32, Euler discloses that the regrind is substantially free of an adhesive (paragraph 53).
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 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, 2, and 4 are rejected under 35 U.S.C. 103 as being unpatentable over 2013/0052385 to Leser et al. (hereinafter “Leser”) and “HDPE Data Sheet” from Dow Chemical Company, 2011, and CN 103113653 to Liao et al. (hereinafter “Liao”).
As to claim 1, Leser discloses a multi-layer sheet for forming an insulated container comprising an insulative cellular non-aromatic polymeric material layer laminated to a polymeric skin layer, and an ink layer printed on the polymeric skin layer to provide high-quality graphics (paragraph 58). The polymeric skin layer reads on the claimed polymeric-lamination layer while the ink layer reads on the claimed film layer. The insulative cellular non-aromatic polymeric material layer comprises a primary polymer comprising high melt strength polypropylene (HMS-PP) (paragraph 27); and a secondary polymer comprising low density polyethylene (LDPE), linear low density polyethylene (LLDPE), high density polyethylene (HDPE), ethylene-vinyl acetate copolymer, ethylene-ethylacrylate copolymer, ethylene-acrylic acid copolymer, or mixtures of at least two of the forgoing (paragraph 32). Hence, the secondary polymer can be a mixture of the HDPE and LDPE. This is meeting the claimed requirement.
Leser does not explicitly disclose (i) the HDPE resin having a 2% secant flexural modulus of at least 200,000 psi as measured by ASTM 790B, molded and tested in accordance with ASTM D4976, and (ii) the foam layer comprising the HDPE and the LDPE with a ratio 1:10.
The Dow data sheet, however, shows that the DMDA-8007 HDPE resin is designed to offer excellent modulus and low warpage, acceptable stiffness and good moldability. The HDPE resin is suitable for the manufacture of various end products including crates, cases, trays, or tote bins.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the HDPE disclosed in Leser having a 2% secant flexural modulus of at least 200,000 psi shown in the Down data sheet motivated by the desire to provide a multi-layer sheet having excellent modulus, low warpage, acceptable stiffness and good moldability.
Liao, however, discloses a foamed material comprising HDPE and LDPE with a mixing ratio of HDPE:LDPE of 1:9 to 9:1 (paragraphs 12-19). The lower limit 0.11 (1:9) of the range is close to the claimed value of 0.1.
In the case, where the claimed ranges overlap or touch the range disclosed by the prior art a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257,191 USPQ90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997).
The claim is not rendered unobvious because discovering the optimum or workable ranges involves only routine skill in the art. Difference in the mixing ratio of HDPE:LDPE will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating that the mixing ratio is critical or provides unexpected results.
Therefore, in the absence of unexpected results, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use HDPE and LDPE in the insulative cellular non-aromatic polymeric material of Leser with a mixing ratio of HDPE:LDPE in a range disclosed in Liao, motivated by the desire to obtain uniform foaming properties. This is in line with In re Aller, 105 USPQ 233 which holds discovering the optimum or workable ranges involves only routine skill in the art.
As to claim 2, Leser discloses that the insulative cellular non-aromatic polymeric material is extruded as strip, forming two distinct layers within the extruded strip: a foam core, and a non-foamed skin layer (paragraph 141). The polymeric skin layer and the insulative cellular non-aromatic polymeric material layer are integrally formed and comprised of a single composition material (paragraph 141). The insulative cellular non-aromatic polymeric material layer comprises a primary polymer of HMS-PP and a secondary polymer of a blend of HDPE and LDPE (paragraphs 27 and 32). And so does the polymeric skin layer.
As to claim 4, Leser discloses that the insulative cellular non-aromatic polymeric material is extruded as strip, forming two distinct layers within the extruded strip: a foam core, and a non-foamed skin layer (paragraph 141). The polymeric skin layer and the insulative cellular non-aromatic polymeric material layer are thus integrally formed and comprised of a single composition material (paragraph 141). The insulative cellular non-aromatic polymeric material layer comprises a colorant and compound regrind (paragraph 40). And so does the polymeric material layer.
Response to Arguments
Applicant alleges that the claim is not rendered obvious in view of the disclosures of Leser, the “HDPE Data Sheet” and Liao because Liao fails to teach the HDPE:LDPE ratio of 1:10.
The Examiner respectfully disagrees.
Liao discloses a foamed material comprising HDPE and LDPE with a mixing ratio of HDPE:LDPE of 1:9 to 9:1 (paragraphs 12-19). The lower limit 0.11 (1:9) of the range is close to the claimed value of 0.1.
In the case, where the claimed ranges overlap or touch the range disclosed by the prior art a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257,191 USPQ90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997).
The claim is not rendered unobvious because discovering the optimum or workable ranges involves only routine skill in the art. Difference in the mixing ratio of HDPE:LDPE will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating that the mixing ratio is critical or provides unexpected results.
Therefore, in the absence of unexpected results, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use HDPE and LDPE in the insulative cellular non-aromatic polymeric material of Leser with a mixing ratio of HDPE:LDPE in a range disclosed in Liao, motivated by the desire to obtain uniform foaming properties. This is in line with In re Aller, 105 USPQ 233 which holds discovering the optimum or workable ranges involves only routine skill in the art.
Accordingly, the rejection over Leser in view of “HDPE Data Sheet” and Liao has been maintained.
Claims 1, 2, and 4-8 are rejected under 35 U.S.C. 103 as being unpatentable over Euler in view of “HDPE Data Sheet” from Dow Chemical Company, 2011 and Liao.
As to claim 1, Euler discloses a multi-layer sheet constructed in the following order: a film layer, a polymeric-lamination layer and an insulative cellular non-aromatic polymeric material (abstract, and figure 2A). The insulative cellular non-aromatic polymeric material comprises LDPE, LLDPE, HDPE, ethylene-vinyl acetate copolymer, ethylene-ethylacrylate copolymer, ethylene-acrylic acid copolymer, or mixtures of at least two of the forgoing (paragraph 47). Hence, the insulative cellular non-aromatic polymeric material can include a mixture of the HDPE and LDPE. This is meeting the claimed requirement.
Euler does not explicitly disclose (i) the HDPE resin having a 2% secant flexural modulus of at least 200,000 psi as measured by ASTM 790B, molded and tested in accordance with ASTM D4976, and (ii) the foam layer comprising the HDPE and the LDPE with a ratio 1:10.
The Dow data sheet, however, shows that the DMDA-8007 HDPE resin is designed to offer excellent modulus and low warpage, acceptable stiffness and good moldability. The HDPE resin is suitable for the manufacture of various end products including crates, cases, trays, or tote bins.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the HDPE disclosed in Euler having a 2% secant flexural modulus of at least 200,000 psi shown in the Down data sheet motivated by the desire to provide a multi-layer sheet having excellent modulus, low warpage, acceptable stiffness and good moldability.
Liao, however, discloses a foamed material comprising HDPE and LDPE with a mixing ratio of HDPE:LDPE of 1:9 to 9:1 (paragraphs 12-19). The lower limit 0.11 (1:9) of the range is close to the claimed value of 0.1.
In the case, where the claimed ranges overlap or touch the range disclosed by the prior art a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257,191 USPQ90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997).
The claim is not rendered unobvious because discovering the optimum or workable ranges involves only routine skill in the art. Difference in the mixing ratio of HDPE:LDPE will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating that the mixing ratio is critical or provides unexpected results.
Therefore, in the absence of unexpected results, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use HDPE and LDPE in the insulative cellular non-aromatic polymeric material of Euler with a mixing ratio of HDPE:LDPE in a range disclosed in Liao, motivated by the desire to obtain uniform foaming properties. This is in line with In re Aller, 105 USPQ 233 which holds discovering the optimum or workable ranges involves only routine skill in the art.
As to claim 2, Euler discloses that the polymeric-lamination layer comprises polyethylene or polypropylene (paragraph 91).
As to claims 4-6, Euler discloses that the polymeric-lamination layer comprises about 85% by weight of regrind comprising ink or substantially being free of ink (paragraphs 53 and 96).
As to claim 7, Euler discloses that the regrind is substantially free of an epoxy (paragraph 53).
As to claim 8, Euler discloses that the regrind is substantially free of an adhesive (paragraph 53).
Response to Arguments
Applicant alleges that the claim is not rendered obvious in view of the disclosures of Euler, the “HDPE Data Sheet” and Liao because Liao fails to teach the HDPE:LDPE ratio of 1:10.
The Examiner respectfully disagrees.
Liao discloses a foamed material comprising HDPE and LDPE with a mixing ratio of HDPE:LDPE of 1:9 to 9:1 (paragraphs 12-19). The lower limit 0.11 (1:9) of the range is close to the claimed value of 0.1.
In the case, where the claimed ranges overlap or touch the range disclosed by the prior art a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257,191 USPQ90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997).
The claim is not rendered unobvious because discovering the optimum or workable ranges involves only routine skill in the art. Difference in the mixing ratio of HDPE:LDPE will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating that the mixing ratio is critical or provides unexpected results.
Therefore, in the absence of unexpected results, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use HDPE and LDPE in the insulative cellular non-aromatic polymeric material of Euler with a mixing ratio of HDPE:LDPE in a range disclosed in Liao, motivated by the desire to obtain uniform foaming properties. This is in line with In re Aller, 105 USPQ 233 which holds discovering the optimum or workable ranges involves only routine skill in the art.
Accordingly, the rejection over Euler in view of “HDPE Data Sheet” and Liao has been maintained.
Claims 1, 2, and 4-8 are rejected under 35 U.S.C. 103 as being unpatentable over Euler in view of “HDPE Data Sheet” from Dow Chemical Company, 2011 and US 2012/0100356 to Ohlsson et al. (hereinafter “Ohlsson”).
As to claim 1, Euler discloses a multi-layer sheet constructed in the following order: a film layer, a polymeric-lamination layer and an insulative cellular non-aromatic polymeric material (abstract, and figure 2A). The insulative cellular non-aromatic polymeric material comprises LDPE, LLDPE, HDPE, ethylene-vinyl acetate copolymer, ethylene-ethylacrylate copolymer, ethylene-acrylic acid copolymer, or mixtures of at least two of the forgoing (paragraph 47). Hence, the insulative cellular non-aromatic polymeric material can include a mixture of the HDPE and LDPE. This meets the claimed requirement.
Euler does not explicitly disclose (i) the HDPE resin having a 2% secant flexural modulus of at least 200,000 psi as measured by ASTM 790B, molded and tested in accordance with ASTM D4976, and (ii) the foam layer comprising the HDPE and the LDPE with a ratio 1:10.
The Dow data sheet, however, shows that the DMDA-8007 HDPE resin is designed to offer excellent modulus and low warpage, acceptable stiffness and good moldability. The HDPE resin is suitable for the manufacture of various end products including crates, cases, trays, or tote bins.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the HDPE disclosed in Euler having a 2% secant flexural modulus of at least 200,000 psi shown in the Down data sheet motivated by the desire to provide a multi-layer sheet having excellent modulus, low warpage, acceptable stiffness and good moldability.
Ohlsson, however, discloses a multilayer blown film with improved strength and toughness comprising a core layer, an intermediate layer on each side of the core layer, and two skin layers, each provided on the intermediate layer (paragraph 19). The core layer comprises HDPE and LDPE with a mixing ratio of HDPE:LDPE of 1:10 to 10:1 (paragraph 19).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use HDPE and LDPE in the insulative cellular non-aromatic polymeric material of Euler with a mixing ratio of HDPE:LDPE in a range disclosed in Ohlsson, motivated by the desire to obtain improved strength and toughness.
As to claim 2, Euler discloses that the polymeric-lamination layer comprises polyethylene or polypropylene (paragraph 91).
As to claims 4-6, Euler discloses that the polymeric-lamination layer comprises about 85% by weight of regrind comprising ink or substantially being free of ink (paragraphs 53 and 96).
As to claim 7, Euler discloses that the regrind is substantially free of an epoxy (paragraph 53).
As to claim 8, Euler discloses that the regrind is substantially free of an adhesive (paragraph 53).
Response to Arguments
The claim is not rendered obvious in view of the disclosures of Euler and the “HDPE Data Sheet”. However, new combination of Euler, the “HDPE Data Sheet” and
Ohlsson suggests the claimed invention.
Conclusion
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 Hai Vo whose telephone number is (571)272-1485. The examiner can normally be reached M-F: 9:00 am - 6:00 pm with every other Friday off.
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, Alicia Chevalier can be reached at 571-272-1490. 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.
/Hai Vo/
Primary Examiner
Art Unit 1788
Prosecution Insights