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 § 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.
Claims 1 and 5-16 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hayashi et al (US2002/0176955A1).
With regards to claim 1, Hayashi discloses a multi-layer sheet for thermoforming (i.e., a thermoformable multilayer film) comprising outer and inner layers of a high-density polyethylene (i.e., a first film comprising a first thermoformable polymer, and a second film comprising a first barrier layer, respectively, the first barrier layer comprising a barrier polymer) and an intermediate layer of a saponified ethylene vinyl-acetate/ethylene vinyl alcohol polymer (EVOH) (i.e., a first dissolvable layer forming a part of a second film) (Hayashi: para. [0008]-[0010], [0028], [0147], [0164]-[0165], and [0168]-[0169]). As Hayashi discloses its multi-layer sheet having, laminated in order, an outer HDPE layer / intermediate saponified EVOH layer / inner HDPE layer, it is clear that the outer HDPE layer (i.e., first film) has a first surface and a second surface, such that the first surface comprises an exposed surface, and the intermediate saponified EVOH layer (i.e., first dissolvable layer) is positioned between the second surface and the inner HDPE layer (i.e., between the second surface and the first barrier layer) (Hayashi: para. [0147]). Hayashi further discloses its HDPE (i.e., first thermoformable polymer) as having a density of 0.970 g/cm3, which is within the claimed range of 0.88 g/cm3 to 1.40 g/cm3, thereby anticipating the claimed range (Hayashi: para. [0164]). As best understood, the intermediate layer is “configured to dissolve in an aqueous wash to separate the first film from the barrier layer” since it is made from the same material as is used in the present specification to provide the claimed configuration (i.e., saponified ethylene vinyl-acetate/ethylene vinyl alcohol polymer) (see above discussion).
With regards to claim 5, the first barrier polymer may include an additional polyolefin such and HDPE (Hayashi: para. [0088]).
With regards to claim 6, the first barrier layer polymer comprises EVOH (see above discussion).
With regards to claim 7, the multi-layer laminate of Hayashi is formed by coextrusion (i.e., the first film is an extrusion coated film) (Hayashi: para. [0038]). In the interest of compact prosecution, it is noted that the present claim language constitutes product-by-process language. Such language does not limit the claimed product to the material performance of the recited steps, but rather, only the structure implied, per MPEP 2113. In the present case, the claims require a film having multiple layers, and Hayashi discloses such a product.
With regards to claim 8, the first film may further include an adhesive layer (i.e., rendering the first film as comprising multilayer film) (Hayashi: para. [0147]).
With regards to claim 9, the multi-layer laminate of Hayashi is formed by coextrusion (i.e., the second film is an extrusion coated film) (Hayashi: para. [0038]). In the interest of compact prosecution, it is noted that the present claim language constitutes product-by-process language. Such language does not limit the claimed product to the material performance of the recited steps, but rather, only the structure implied, per MPEP 2113. In the present case, the claims require a film having multiple layers, and Hayashi discloses such a product.
With regards to claim 10, Hayashi discloses a packaging film which is substantially identical to that of the claimed invention (see above discussion). A material’s composition and its properties are inseparable, per MPEP 2112. Therefore, the material of Hayashi is expected to possess a moisture content within the claimed range.
With regards to claim 11, Hayashi discloses a recyclable multi-layer sheet for thermoforming (i.e., a recyclable film) comprising outer and inner layers of a high-density polyethylene (i.e., a first region comprising a single polymer, and since HDPE is the only polymer present, the first region is 100% by weight of a single polymer, in addition to a third region comprising a barrier polymer) and an intermediate layer of a saponified ethylene vinyl-acetate/ethylene vinyl alcohol polymer (EVOH) (i.e., a a second region comprising a saponified ethylene-vinyl ester copolymer) (Hayashi: para. [0008]-[0010], [0028], [0147], [0164]-[0165], and [0168]-[0169]). As Hayashi discloses its multi-layer sheet having, laminated in order, an outer HDPE layer / (adhesive resin layer) / intermediate saponified EVOH layer / (adhesive resin layer) / inner HDPE layer, it is clear that the outer HDPE layer (i.e., first region) has a first surface constituting an exposed surface, and the intermediate saponified EVOH layer (i.e., second region) is connected to the first region (Hayashi: para. [0147]). As best understood, the intermediate layer is “configured to dissolve in an aqueous wash to separate the first region from the third region” since it is made from the same material as is used in the present specification to provide the claimed configuration (i.e., saponified ethylene vinyl-acetate/ethylene vinyl alcohol polymer) (see above discussion).
With regards to claim 12, the first and second regions are directly connected to each other via an intervening adhesive layer (see above discussion).
With regards to claim 13, the adhesive layer, as best understood, constitutes a primer layer (i.e., as it primes the first and second regions for connection) (see above discussion).
With regards to claim 14, the multi-layer laminate of Hayashi is formed by coextrusion (i.e., the coextruded multilayer film comprises the first, second, and third regions) (Hayashi: para. [0038]). In the interest of compact prosecution, it is noted that the present claim language constitutes product-by-process language. Such language does not limit the claimed product to the material performance of the recited steps, but rather, only the structure implied, per MPEP 2113. In the present case, the claims require a film having first, second, and third regions, and Hayashi discloses such a product.
With regards to claim 15, the multi-layer laminate of Hayashi is formed by coextrusion (i.e., the coextruded multilayer film comprises second and third regions) (Hayashi: para. [0038]). In the interest of compact prosecution, it is noted that the present claim language constitutes product-by-process language. Such language does not limit the claimed product to the material performance of the recited steps, but rather, only the structure implied, per MPEP 2113. In the present case, the claims require a film having second and third regions, and Hayashi discloses such a product.
With regards to claim 16, the first region single polymer comprises HDPE (i.e., a recyclable polymer) (see above discussion).
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 2, 4, and 19 rejected under 35 U.S.C. 103 as being unpatentable over Hayashi as applied to claims 1 and 11 above.
With regards to claim 2, Hayashi discloses a multi-layer sheet as applied to claim 1 above (see above discussion). Hayashi teaches that its thermoformed material should not melt at a temperature range of 130⁰C to 200⁰C, implies that the melting point of the thermoformed is above 200⁰C (Hayashi: para. [0144]). This range overlaps the claimed range of 225⁰C to 255⁰C, thereby establishing a prima facie case of obviousness, per MPEP 2144.05. Alternatively, Hayashi expressly instructs a person of ordinary skill to select a material which can be shaped, but not melted at its prescribed temperature range. In other words, Hayashi teaches adjustment of melting point in order to achieve a desired thermoformability, and therefore, a person of ordinary skill in the art would have found melting point obvious to optimize (with a tendency towards higher values, such as those of the claimed range) (Hayashi: para. [0144]).
With regards to claim 4, Hayashi discloses first EVOH c2 at an amount of 0.05 to 100 parts by weight per 100 parts by weight of a separate material, which corresponds to a range of 0.049975% to 50% by weight (i.e., 0.05 / (100 + 0.05) = 0.049975; 100 / (100 + 100) = 0.50), which overlaps the claimed range of 1 to 75% total weight of the dissolvable layer, thereby establishing a prima facie case of obviousness (Hayashi: para. [0025]). See MPEP 2144.05
With regards to claim 19, Hayashi discloses first EVOH c2 at an amount of 0.05 to 100 parts by weight per 100 parts by weight of a separate material, which corresponds to a range of 0.049975% to 50% by weight (i.e., 0.05 / (100 + 0.05) = 0.049975; 100 / (100 + 100) = 0.50), which overlaps the claimed range of 1 to 75% total weight of the dissolvable layer, thereby establishing a prima facie case of obviousness (Hayashi: para. [0025]). See MPEP 2144.05
Claims 3, 17-18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Hayashi as applied to claims 1 and 11 above, and further in view of Boswell et al (US2011/0120902A1).
With regards to claim 3, Hayashi discloses a thermoformable multilayer film as applied to claim 1 above (see above discussion). Hayashi is not explicit as to an average density of its first barrier layer as being less than a density of its first thermoformable polymer.
Boswell is directed to a recyclable packaging material comprising, for example, ethylene vinyl alcohol copolymer (EVOH) and high-density polyethylene (HDPE), which, according to Boswell, are well-known in the art of recyclable packaging (Boswell: para. [0001], [0018], and [0103]). Boswell further teaches that selection of polymers having different densities are well-known in the art for the purpose of recycling via a flotation process (i.e., the separate densities of the different polymer materials enables denser materials to sink during froth flotation, thereby enabling separation) (Boswell: para. [0005]). Hayashi and Boswell are analogous art in that they are related to the same field of endeavor of recyclable packaging materials including EVOH and HDPE. A person of ordinary skill in the art would have found it obvious to have selected a density for the first barrier layer of Boswell (i.e., for example, EVOH) compared to its thermoformable polymer (i.e., HDPE) in order to improve the recyclability of the multi-layer film of Boswell (i.e., to permit easier separation of its EVOH and HDPE via froth flotation) (see above discussion).
With regards to claim 17, Hayashi discloses a thermoformable multilayer film as applied to claim 11 above (see above discussion). Hayashi is not explicit as to an average density of its third region as being less than a density of its first region, nor a first region having a density of from 1.23 g/cm3 to 1.38 g/cm3.
Boswell is directed to a recyclable packaging material comprising, for example, ethylene vinyl alcohol copolymer (EVOH) and high-density polyethylene (HDPE), which, according to Boswell, are well-known in the art of recyclable packaging (Boswell: para. [0001], [0018], and [0103]). Boswell further teaches that selection of polymers having different densities are well-known in the art for the purpose of recycling via a flotation process (i.e., the separate densities of the different polymer materials enables denser materials to sink during froth flotation, thereby enabling separation) (Boswell: para. [0005]). Hayashi and Boswell are analogous art in that they are related to the same field of endeavor of recyclable packaging materials including EVOH and HDPE. A person of ordinary skill in the art would have found it obvious to have selected a density for the third region of Boswell less than that of the first region in order to improve the recyclability of the multi-layer film of Boswell (i.e., to permit easier separation of its EVOH and HDPE via froth flotation) (see above discussion). Furthermore, in view of the foregoing, a person of ordinary skill in the art would have found it obvious to have optimized the density of the polymer of the first region, in order to achieve a packaging material which is capable of separation via froth flotation (see above discussion).
With regards to claim 18, a person of ordinary skill in the art would have found it obvious to have selected a density for the third region of Boswell less than that of its first region in order to improve the recyclability of the multi-layer film of Boswell (i.e., to permit easier separation of its EVOH and HDPE via froth flotation) (see above discussion). Furthermore, in view of the foregoing, a person of ordinary skill in the art would have found it obvious to have optimized the density of the polymer of the first region, in order to achieve a packaging material which is capable of separation via froth flotation (see above discussion).
With regards to claim 20, a person of ordinary skill in the art would have found it obvious to have included a pigment in the third region, in order to ensure that the final product has an appropriate color (Boswell: para. [0100]).
Response to Arguments
Applicant’s arguments/amendment with respect to the objection of claim 1 have been fully considered and they are found persuasive. Claim 1 now contains superscripts as appropriate. Therefore, the objection to claim 1 has been withdrawn.
The remainder of Applicant’s arguments have been fully considered but they are not found persuasive.
On pages 5-9, Applicant summarizes the present rejection and the present claims, and then concludes that Hayashi does not disclose any layer that is configured to dissolve, and any layer used to separate adjacent layers, or any structure in which a dissolvable layer or region is positioned between a thermoformable film and a barrier layer. Applicant’s arguments are not found persuasive as the intermediate layer (i.e., dissolvable layer) of Hayashi is made of saponified EVOH, which is the same material as the present specification used to form the dissolvable layer of the claimed invention. Applicant appears to argue that Hayashi does not disclose its saponified EVOH as dissolvable in the claimed manner, but this argument is not found persuasive as the material for the intermediate layer of Hayashi is the same as that of the dissolvable layer of the claimed invention (and therefore, it is expected to function in the same manner). Paragraph [0080] of Applicant’s specification (PGPub) admits that a 100% saponified ethylene-vinyl ester copolymer layer is dissolvable. Moreover, Applicant’s arguments are not found persuasive as they are not commensurate with the meaning of the term “dissolvable”, as paragraph [0080] of Applicant’s PGPub describes dissolution is potentially including granulation without complete dissolution. Technically, grinding the saponified EVOH layer of Hayashi, then mixing the ground material into water, constitutes the function “configured to dissolve in an aqueous wash to separate the first film from the first barrier layer” according to the present specification. Essentially any material is capable of being broken into pieces and placed in water. Applicant continues, arguing that Hayashi’s multilayered structured fuel containers need to remain durable and permanently bonded, and that Hayashi’s barrier layer cannot simultaneously be a barrier layer or a region and a dissolvable layer or region. The Examiner disagrees. Hayashi discloses its saponified EVOH layer as a gas barrier layer, as opposed to a water barrier layer. Therefore, Hayashi’s intermediate layer may be dissolvable by water, yet a barrier to gas or fuel products. Barrier effects and dissolution are not mutually exclusive properties. Furthermore, Applicant’s claim language does not preclude using higher temperatures, or acidic or caustic environments, or grinding the material first, before it is placed in an aqueous environment. The intermediate layer of Hayashi is still dissolvable under these circumstances, though, since the present specificity admits saponified EVOH as having the claimed dissolution properties, the saponified EVOH must have the claimed dissolvability – to do so otherwise would contradict the present specification. Applicant continues further, arguing that Hayashi states increased saponification reduces water solubility. However, a material with reduced solubility is still soluble. Moreover, the present specification still admits that 100% saponified EVOH possesses the requisite solubility, and further, dissolution may include, for example, mechanical granulation followed by mixing with water.
On page 9, Applicant argues that there is no articulated reasoning with a rational underpinning as to why a person of ordinary skill would modify Hayashi’s structure to achieve the claimed dissolvability. This argument is not found persuasive as Hayashi discloses 100% saponified EVOH, which is the material used by the present specification to achieve the claimed dissolvable layer, and therefore, the structure of Hayashi must have the claimed dissolvability.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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/E.W./
Examiner, Art Unit 1783
/MARIA V EWALD/Supervisory Patent Examiner, Art Unit 1783
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