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 .
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.
Claims 15-17 are 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. Claim 15 does not further limit the barrier laminate it further limits a packaging container. Claim 16 does not further limit the barrier laminate it further limits a lid material. Claim 17 does not further limit the barrier laminate it further limits a packaging container 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 § 102
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 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.
Claim(s) 6-7, 15-17 and 26- 33 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Furuya et al. (WO 2021/065890 A1) which figures 1-11 which disclose the following claimed invention
In re claim 6: A barrier laminate 30 comprising: a first substrate 31 ; a second substrate 33/37; and a sealant layer 35 in this order in a thickness direction, wherein one of the first substrate 31 and the second substrate 33/37 is a barrier substrate including a polypropylene resin layer 37 and an evaporated film 33, and the other of the first substrate 31 and the second substrate 33/37 is a polypropylene resin substrate, the polypropylene resin layer 37 is a layer subjected to a stretching process, the evaporated film 33 is composed of an inorganic oxide, and the polypropylene resin substrate is a substrate subjected to a stretching process (see abstract and figure 9 of Furuya et al.).
In re claim 7: the sealant layer 35 is a resin layer composed of polypropylene (see abstract and figure 9 of Furuya et al.).
In re claim 15: A packaging container comprising the barrier laminate according to claim 6 (see figures 10 and 11 of Furuya et al.).
In re claim 16: A lid material comprising the barrier laminate according to claim 6 (see Furuya et al.).
In re claim 17: A packaging container comprising: a container main body with a storage portion (laminated tube); and the lid material according to claim 16 bonded to the container main body to seal the storage portion (see Furuya et al.).
In re claim 26: when the first substrate 31 is a barrier substrate, the first substrate 31 is disposed such that the evaporated film 33 faces the sealant layer 35 and the polypropylene resin layer 37 faces the side opposite the sealant layer 35, and when the second substrate 33/37 is a barrier substrate, the second substrate 33/37 is disposed such that the evaporated film 33 faces the first substrate 31 and the polypropylene resin layer 37 faces the sealant layer 35 (see abstract and figure 9 of Furuya et al.).
In re claim 27: the first substrate 31 is a polypropylene resin substrate, and the second substrate 33/37 is a barrier substrate (see abstract and figure 9 of Furuya et al.).
In re claim 28: the barrier substrate 33/37 further includes a surface coating layer 36 between the polypropylene resin layer 37 and the evaporated film 33, and the surface coating layer 36 contains a resin material with a polar group (see abstract and figure 9 of Furuya et al.).
In re claim 29: the barrier substrate 33/37 further includes a surface resin layer 36 between the polypropylene resin layer 37 and the evaporated film 33, and the surface resin layer 36 contains a resin material with a melting point of 180°C or more (see Furuya et al.).
In re claim 30: the polypropylene resin layer 37 and the surface resin layer 36 in the barrier substrate are a coextruded stretched resin film (see Furuya et al.).
In re claim 31: a barrier coating layer 38 on the evaporated film 33 (see figure 9 of Furuya et al.).
In re claim 32:a first adhesive layer 32 between the first substrate and the second substrate, and a second adhesive layer (an adhesive layer can be incorporated in the evaporating film and in figure 6 there are 2 evaporated film) between the second substrate and the sealant layer (see figure 6 of Furuya et al.).
In re claim 33: a boiled or retort pouch (see figures 10 and 11 of Furuya et al.).
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.
Claim(s) 3-5 and 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Furuya et al. (WO 2021/065890 A1). Furuya et al. discloses the claimed invention as discussed above with the exception of the following limitations:
In re claim 4: the barrier laminate after heat treatment at 150°C for 5 minutes has a thermal shrinkage ratio (MD2) of 4.00% or less in the MD direction and a thermal shrinkage ratio (TD2) of 4.00% or less in the TD direction.
Furuya et al. discloses the general conditions of the claimed invention except for the express disclosure of a thermal shrinkage ratio (MD2) of 4.00% or less in the MD direction and a thermal shrinkage ratio (TD2) of 4.00% or less in the TD direction. It would have been obvious to one having ordinary skill in the art at the time the invention was effectively filed to include a thermal shrinkage ratio (MD2) of 4.00% or less in the MD direction and a thermal shrinkage ratio (TD2) of 4.00% or less in the TD direction, since the prior art uses the same materials which have the same inherent properties and since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
The determination of patentability in a product-by-process claim is based on the product itself, even though the claim may be limited and defined by the process. That is, the product in such a claim is unpatentable if it is the same as or obvious from the product of the prior art, even if the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985). A product-by-process limitation adds no patentable distinction to the claim, and is unpatentable if the claimed product is the same as a product of the prior art. (Same cite as above).
In re claim 5: a ratio (MD2/TD2) of the thermal shrinkage ratio (MD2) to the thermal shrinkage ratio (TD2) of the barrier laminate after heat treatment at 150°C for 5 minutes is 0.30 or more and 3.00 or less.
Furuya et al. discloses the general conditions of the claimed invention except for the express disclosure of a ratio of 0.30 or more and 3.00 or less. It would have been obvious to one having ordinary skill in the art at the time the invention was effectively filed to include a ratio of 0.30 or more and 3.00 or less, since the prior art uses the same materials which have the same inherent properties and since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
The determination of patentability in a product-by-process claim is based on the product itself, even though the claim may be limited and defined by the process. That is, the product in such a claim is unpatentable if it is the same as or obvious from the product of the prior art, even if the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985). A product-by-process limitation adds no patentable distinction to the claim, and is unpatentable if the claimed product is the same as a product of the prior art. (Same cite as above).
In re claim 25: the barrier laminate after heat treatment at 120°C for 15 minutes has a thermal shrinkage ratio (MD1) of 2.00% or less in an MD direction and a thermal shrinkage ratio (TD1) of 2.00% or less in a TD direction.
Furuya et al. discloses the general conditions of the claimed invention except for the express disclosure of a thermal shrinkage ratio (MD2) of 2.00% or less in the MD direction and a thermal shrinkage ratio (TD2) of 2.00% or less in the TD direction. It would have been obvious to one having ordinary skill in the art at the time the invention was effectively filed to include a thermal shrinkage ratio (MD2) of 2.00% or less in the MD direction and a thermal shrinkage ratio (TD2) of 2.00% or less in the TD direction, since the prior art uses the same materials which have the same inherent properties and since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
The determination of patentability in a product-by-process claim is based on the product itself, even though the claim may be limited and defined by the process. That is, the product in such a claim is unpatentable if it is the same as or obvious from the product of the prior art, even if the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985). A product-by-process limitation adds no patentable distinction to the claim, and is unpatentable if the claimed product is the same as a product of the prior art. (Same cite as above).
In re claim 3: a ratio (MD 1 /TD 1) of the thermal shrinkage ratio (MD 1) to the thermal shrinkage ratio (TD 1) of the barrier laminate after heat treatment at 120°C for 15 minutes is 0.30 or more and 3.00 or less.
Furuya et al. discloses the general conditions of the claimed invention except for the express disclosure of a ratio of 0.30 or more and 3.00 or less. It would have been obvious to one having ordinary skill in the art at the time the invention was effectively filed to include a ratio of 0.30 or more and 3.00 or less, since the prior art uses the same materials which have the same inherent properties and since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
The determination of patentability in a product-by-process claim is based on the product itself, even though the claim may be limited and defined by the process. That is, the product in such a claim is unpatentable if it is the same as or obvious from the product of the prior art, even if the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985). A product-by-process limitation adds no patentable distinction to the claim, and is unpatentable if the claimed product is the same as a product of the prior art. (Same cite as above).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See the PTO-892 for prior art the teaches and suggests structural limitations of the claimed and disclosed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERNESTO A GRANO whose telephone number is (571)270-3927. The examiner can normally be reached M-F 7:00-3:30 EST.
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/ERNESTO A GRANO/ Primary Examiner, Art Unit 3735