Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 12/17/2025 has been entered.
Claims 1-19 are pending in the application. Claims 9-16 have been withdrawn from consideration as being directed to a non-elected invention. Claims 1-8, and 17-19 are rejected.
The rejection over Leser in view of “HDPE Data Sheet” have been maintained.
The rejection over Euler in view of “HDPE Data Sheet” have been maintained.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 3 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. The limitation that the insulation cellular non-aromatic polymeric material comprises a low density polyethylene was already included in parent claim. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 1-4 are rejected under 35 U.S.C. 103 as being unpatentable over 2013/0052385 to Leser et al. (hereinafter “Leser”) in view of US 2002/0122905 to Andersson et al. (hereinafter “Andersson”) and “HDPE Data Sheet” from Dow Chemical Company, 2011.
As to claims 1 and 3, 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 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.
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.
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.
Claims 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Leser in view of “HDPE Data Sheet” from Dow Chemical Company, 2011 as applied to claim 1 above, further in view of CN 103113653 to Liao et al. (hereinafter “Liao”).
Leser does not explicitly disclose the foam layer wherein the HDPE and the LDPE are present in the blend at a ratio between 1:10 to 1:1.
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) is close to that 0.1 (1:10) of the claimed range.
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.
Claims 17 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Leser in view of “HDPE Data Sheet” from Dow Chemical Company, 2011 as applied to claim 1 above, further in view of US 2002/0122905 to Andersson et al. (hereinafter “Andersson”).
Leser does not explicitly disclose the insulative cellular non-aromatic polymeric material comprising a HDPE, a LDPE with a mixing ratio of HDPE:LDPE in a range of from 1:10 to 1:1.
Andersson, however, 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 encompasses the claimed range.
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 Andersson, motivated by the desire to obtain high mechanical strength and rigidity at very low material consumption. 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.
Response to Arguments
Applicant alleges that Leser does not disclose an insulative cellular non-aromatic polymeric material comprising a blend of HDPE and LDPE.
The Examiner respectfully disagrees.
Leser discloses that the insulative cellular non-aromatic polymeric material layer comprises a primary polymer comprising HMS-PP (paragraph 27); and a secondary polymer comprising LDPE, LLDPE, 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 include a mixture of the HDPE and the LDPE. This is meeting the claimed requirement.
Accordingly, the rejection over Leser in view of “HDPE Data Sheet” has been maintained.
Claims 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over US 2019/0047265 to Euler et al. (hereinafter “Euler”) in view of “HDPE Data Sheet” from Dow Chemical Company, 2011.
As to claims 1 and 3, 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 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.
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.
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).
Claims 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Euler in view of “HDPE Data Sheet” from Dow Chemical Company, 2011 as applied to claim 1 above, further in view of Liao.
Euler does not explicitly disclose the insulative cellular non-aromatic polymeric material comprising a HDPE, a LDPE with a mixing ratio of HDPE:LDPE in a range of 1:10 to 1:1.
Liao, however, discloses a foamed material comprising HDPE and LDPE with a mixing ratio of HDPE:LDPE of 1:9 to 9:1 or 0.11 to 9 (paragraphs 12-19). The lower limit 0.11 (1:9) is close to that 0.1 (1:10) of the claimed range.
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.
Claims 17 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Euler in view of “HDPE Data Sheet” from Dow Chemical Company, 2011 as applied to claim 1 above, further in view of Andersson.
Euler does not explicitly disclose the insulative cellular non-aromatic polymeric material comprising a HDPE, a LDPE with a mixing ratio of HDPE:LDPE in a range of 1:10 to 1:1.
Andersson, however, 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 and LDPE with a mixing ratio of HDPE:LDPE of 1:3 to 3:1 (paragraphs 13, 14 and 19). This encompasses the claimed range.
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 of HDPE:LDPE 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 Andersson, motivated by the desire to obtain high mechanical strength and rigidity at very low material consumption. 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.
Response to Arguments
Applicant alleges that Euler does not disclose an insulative cellular non-aromatic polymeric material comprising a blend of HDPE and LDPE.
The Examiner respectfully disagrees.
Euler discloses that 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. Accordingly, the rejection over Euler in view of “HDPE Data Sheet” has been maintained.
Conclusion
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.
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/Hai Vo/
Primary Examiner
Art Unit 1788