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 with traverse of group I in the reply filed on 24 August 20226 is acknowledged. The traversal is on the ground(s) that there would not be an undue search burden. This is not found persuasive because the different groups of invention are directed towards different categories of invention (i.e., product, system, and method). These would require different searches with different text string in different CPC classifications. Therefore, there would be an undue search burden and Applicant’s argument is unpersuasive.
The requirement is still deemed proper and is therefore made FINAL.
Claims 12-21 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
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.
Claims 1-11 are rejected under 35 U.S.C. 103 as being unpatentable over Goetsch (US 11584574 B1) in view of Chandak et al. (US 20170247580 A1).
Regarding claim 1, Goestch teaches a polyethylene cold seal film comprising a main body layer (102b) constituted by a polyethylene film, a cold seal adhesive (114) externally exposed on one side of the main body layer, and a cold seal release layer (110) externally exposed on an opposing side of the main body layer (Goestch, Abstract, Col. 1 Lines 33-48, Col. 3 Line 45 – Col. 4 Line 21, Col. 5 Lines 7-36 and Fig. 1A). Goestch teaches the film is readily recyclable (Goestch, Abstract). Goestch does not teach that the film must comprise any polypropylene and thus teaches the film is void of any polypropylene polymers. Goestch teaches the film is used in food packaging (Goestch, Col. 3 Lines 59-67).
Goestch is silent regarding the cold seal release layer being constituted by a polyethylene film.
Chandak teaches a multilayer material for food packaging comprising a base layer, an outer adhesive layer and an outer release layer wherein the release layer comprises a polyethylene film (Chandak, Abstract, Par. 0002, 0073-0075, and 0084).
Goestch and Chandak are analogous art as they both teach multilayer materials for food packaging comprising an outer adhesive layer and an outer release layer. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used the release layer of Chandak as the release layer of Goestch as it is an art recognized equivalent for the intended purpose of being a release film, see MPEP 2144.06 & 2144.07. Further, this would allow for a release layer with poor adhesion to the adhesive surface (Chandak, Par. 0073).
Regarding claim 2, modified Goestch teaches the main body layer has a thickness of 60-120 gauge (Goestch, Col. 4 Lines 8-21), which lies within the claimed range of 60-200 gauge and therefore satisfies the claimed range, see MPEP 2131.03.
Regarding claim 3, modified Goestch teaches a thickness of the cold seal release layer is 0.05-6.0 mils (5-600 gauge) (Chandak, Par. 0073), which overlaps the claimed range of 60-130 gauge and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Regarding claim 4, modified Goestch teaches the main body layer is formed from oriented polyethylene (Goestch, Col. 4 Lines 8-21).
Regarding claim 5, modified Goestch teaches the cold seal release layer is formed of polyethylene (Chandak, Par. 0073-0075). Regarding the limitation of the PE being case of blown, this is considered a product by process limitation. Even 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) (See MPEP 2113). The PE structure of the prior art discloses a product which reasonably appears to be either identical or substantially identical to the claimed product-by-process PE structure subjected to the process steps of being cast or blown, and therefore absent any objective evidence showing to the contrary, the addition of the process limitations of claim 5 does not provide a patentable distinction over the prior art.
Regarding claims 6-7, modified Goestch teaches a tie layer (106) positioned between the main body layer and the cold seal release layer, a barrier layer (112) between the main body layer and the tie layer, and an ink layer (104) positioned between the tie layer and the cold seal release layer (Goestch, Abstract, Col. 3 Line 58 – Col. 4 Line 21, Col. 5 Lines 37-43, and Fig. 1A).
Regarding claim 8, modified Goestch teaches the barrier comprises aluminum or aluminum oxide (Goestch, Col. 5 Lines 37-43).
Regarding claim 9, modified Goestch does not teach any polypropylene required in the film and thus satisfies the limitation of being completely void of polypropylene.
Regarding claim 10, modified Goestch teaches a roll of film formed from the cold seal film (Goestch, Claims 11-14).
Regarding claim 11, modified Goestch teaches a package formed from the cold seal film that envelops a food product (Goestch, Col. 3 Lines 59-67).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THOMAS J KESSLER JR whose telephone number is (571)272-3075. The examiner can normally be reached 7:30-5:30 M-Th.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Aaron Austin can be reached at 571-272-8935. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/THOMAS J KESSLER/Examiner, Art Unit 1782
