DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Applicants' arguments have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn due to Applicant's amendments and/or arguments. The following rejections and/or objections are either reiterated or newly applied.
NEW REJECTIONS: NECESSITATED BY AMENDMENT
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)(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 1-4, 7-8, and 14 are rejected under 35 U.S.C. 102(a1/a2) as being anticipated by Kim (KR20090017867).
Re claims 1-4, 8, and 14, Kim discloses biodegradable biaxially stretched laminated film for packaging (page 1, lines 3-5). The film is made from two or more different thermoplastic resins including a first resin that is polylactic acid and a second resin that is an aliphatic or aliphatic-aromatic copolymerized polyester resin where the two resins are alternately laminated (page 3, lines 9-12). The film is made by melt-extruding the first resin and the second resin and then biaxially stretching them (page 6, lines 1-3). The melting temperature of the polylactic acid is 140-180 C (page 3, line 21-page 4, line 1) and the melting temperature of the aliphatic or aliphatic-aromatic copolymerized polyester resin is 180 C or lower (page 4, lines 5-6). Each of the layers is melt-extruded at a temperature higher than the melting point of the resins by + 10C (page 5, lines 3-5). That is, the polylactic acid is melt-extruded at temperatures of 150-190 C while the aliphatic or aliphatic-aromatic copolymerized polyester resin is melt-extruded at a temperature of 190 C or lower, i.e. the difference in melt-extrusion temperature between the layers can be 0 (190-190) to 50 C (190-140).
Given that Kim discloses biodegradable film made comprising alternating layers made from polylactic acid and aliphatic or aliphatic-aromatic copolymerized polyester resin identical to that presently claimed using method identical to the presently claimed, it is clear that the film would necessarily inherently possess uniformity, difference in uniformity, flexible noise complexity, and noise quality index as presently claimed.
Re claims 5 and 6, Kim discloses the average thickness of each individual layer composed of the first resin and second resin is 122 nm to 3000 nm while the biodegradable biaxially stretched laminated film has a total thickness of 9-50 microns (page 5, lines 10-12 and 19-20). Further, Kim discloses that the first resin layer has 4 or more layers while the second resin layer has 3 or more layers (page 5, lines 5-7). Therefore, the two outermost layers of first resin would have a thickness that is 0.005% (2*0.133)/50 – 67% (2*3)/9 of the total thickness. Further, given that the thickness of the first and second resin layers can be the same, the thickness ratio is 1:1.
Re claim 7, given that this claim only further limits a non-required alternative embodiment, the claim is considered met by Kim.
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.
Claims 7, 9-10 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Kim ‘952 (KR20120055952).
Kim ‘952 is relied upon above.
Re claim 7, Kim discloses second resin that is aliphatic or aliphatic-aromatic copolymerized polyester resin, however, Kim does not disclose that the content of the aliphatic component among the acid components in the aliphatic-aromatic copolymerized polyester resin is 30% by mole or more.
Kim ‘952 discloses a biodegradable multilayer film for packaging [1]. The film comprises a resin layer made from aliphatic-aromatic polyester [8] where the aliphatic component among the acid components in the aliphatic-aromatic copolymerized polyester resin is 30% by mole or more in order to achieve high biodegradability [0020].
Therefore, it would have been obvious to one of ordinary skill in the art to use aliphatic-aromatic copolymerized polyester resin in Kim that has aliphatic component among the acid components in of 30% by mole or more in order to achieve high biodegradability.
Further Re claim 9, The melting viscosity and temperatures are not explicit; however, the temperature of the polylactic acid is 140-180 C (page 3, line 21-page 4, line 1) and the melting temperature of the aliphatic or aliphatic-aromatic copolymerized polyester resin is 180 C or lower (page 4, lines 5-6). Each of the layers is melt-extruded at a temperature higher than the melting point of the resins by + 10C (page 5, lines 3-5). The melt extrusion difference is not explicit but overlapping.
That is, the polylactic acid is melt-extruded at temperatures of 150-190 C while the aliphatic or aliphatic-aromatic copolymerized polyester resin is melt-extruded at a temperature of 190 C or lower, i.e. the difference in melt-extrusion temperature between the layers can be 0 (190-190) to 50 C (190-140) (overlaps applicant’s less than 30 degrees C of claim 9).
In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In reWertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In reWoodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). See MPEP 2144.05.
It would have been obvious to one of ordinary skill in the art at the time the invention was made to have selected from the overlapping portion of the ranges of melt recitiations claimed for improving biodegradability taught by the reference because overlapping ranges have been held to establish prima facie obviousness. MPEP 2144.05.
Re claim 10, given that Kim discloses biodegradable film made comprising alternating layers made from polylactic acid and aliphatic or aliphatic-aromatic copolymerized polyester resin identical to that presently claimed using method identical to the presently claimed, it is clear that the film would necessarily inherently possess melt viscosity as presently claimed.
Claims 1 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Kim (KR20090017867) in view of Miura (JPH1017756).
Kim is relied upon above.
Kim does not explicitly disclose the melt viscosity of the polylactic acid or aliphatic copolymerized polyester resin.
Further Re claim 1, from above it is calculated that the difference in melt viscosity at 200 C between the polylactic acid and aliphatic polyester is 2,000-100,000. Although Miura discloses the difference in melt viscosity at 200 C while the present claim requires the difference at 210 C, given the broad range claimed as well as the broad range disclosed by Miura, it is the examiner’s position that the difference in melt viscosity disclosed by Miura would overlap the claimed difference in melt viscosity at 210 C, absent evidence to the contrary.
Re claim 10, Miura disclose the use of polylactic acid having melt viscosity of 1,000-400,000 poise at 200 C where if the melt viscosity is less than 1,000 poise, the mechanical strength of the resulting biodegradable polyester composition will be insufficient while if the melt viscosity exceeds 400,000 poise, the fluidity of the resulting biodegradable polyester composition when heated and melted will be poor, resulting in reduced molding workability [13-14]. Miura also discloses the use of aliphatic polyester having melt viscosity of 3,000-300,000 poise at 200 C where if the melt viscosity is less than 3,000 poise, the mechanical strength of the resulting biodegradable polyester composition will be insufficient while if the melt viscosity exceeds 300,000 poise, the fluidity of the resulting biodegradable polyester composition when heated and melted will be poor, resulting in reduced molding workability.
Therefore, it would have been obvious to one of ordinary skill in the art to use polylactic acid having melt viscosity of 1000-400,000 poise at 200 C and aliphatic polyester having melt viscosity of 3,000-300,000 poise at 200 C in Kim, including where the melt viscosity of the polylactic acid is greater than that of the aliphatic polyester, in order to produce resins layers with good mechanical strength and molding workability.
References of Interest
The remaining references listed on form(s) 892 and/or 1449 have been reviewed by the examiner and are considered to be cumulative to or less material than the prior art references relied upon in the rejection above.
Lee et al. (US 2013/0295355) discloses multilayered biodegradable film comprising a first resin layer made from polylactic acid and a second resin layer made from aliphatic or aliphatic-aromatic polyester-based resin.
Itoh et al. (US 2008/0041810 discloses a two layer structure of coextruded polybutylene succinate and polylactic acid.
Response to Applicant’s Arguments
Applicant’s arguments are moot in view of the new ground of rejection above. The argument regarding the melt viscosity and equation 5 melt extrusion temperatures are not found convincing as (A) there is no objective test results submitted in the 01/13/2026 declaration; (B) the argument is not commensurate in scope with claim 1; and (C) further note, applicant while relying upon examples and comparative examples, must look to the whole reference for what it teaches. Applicant cannot merely rely on the examples and argue that the reference did not teach others.” In re Courtright, 377 F.2d 647, 153 USPQ 735,739 (CCPA 1967). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
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 TAMRA L. DICUS whose telephone number is (571)272-2022. The examiner can normally be reached M-F 8:00 am 4:00 pm.
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/TAMRA L. DICUS/Primary Examiner, Art Unit 1787
TAMRA L. DICUS
Primary Examiner
Art Unit 1787