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(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-14 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation "the other film layers" in line 9. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites “with other layers from a polyolefin-based mono material.” It is unclear which layers the “other layers” are. Is this requiring additional layers not previously introduced made of a mono material? Are the “other layers” layers other than the barrier material? It is unclear what is required by this limitation. For purposes of examination, the claim will be interpreted such that the inner and outer layers will satisfy this limitation as they at least partially include a polyolefin-based mono material. Claims 2-14 are rejected for being dependent on claim 1.
Claims 2, 3, 8 and 11 recite functionality, where the layers are intended to provide a specific attribute to the packaging film (physical durability, mechanical properties, heat interaction, preserved strength and structure, heat resistance). These limitations render the claims indefinite because it is unclear if specific structure for the packaging film is necessary to meet these functions. For purposes of examination, because a specific structure for these functions is not claimed, the claims will be met if the prior art is capable of performing the same functions as the claims. Claims 6, 7, 9 and 10 are rejected for being dependent on claims 2 or 3.
Claims 6-11 recite linear “low-density polyethylene 1-hexene copolymer” (claims 6, 7, 8, and 10), medium-density polyethylene 1-hexene copolymer” (8 and 9), and “polyethylene 1-hexene copolymer” (claim 11). These copolymer limitations are unclear because it is unclear if the limitations are meant to be a copolymer of polyethylene and hexene, typically written as “linear low-density polyethylene/1-hexene copolymer,” or if it is a blend of LLDPE and a 1-hexene copolymer. For purposes of examination, the claims will be interpreted as a copolymer of polyethylene and 1-hexene.
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 1-4, 13 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over US 2021/0308995 Nair et al.
Regarding claim 1, Nair teaches a thermoformable packaging film (paragraph 0002) for use in the packaging of food products such as meat and meat products, milk and dairy products, seafood and bakery products (paragraph 0003),
having an inner layer (C adjacent Y) facing the food product to be placed inside and an outer layer (C adjacent X) on the other side and a barrier layer B in a middle part of film layers in which it is formed (figure 4)
in case it becomes a package (paragraph 0002), comprising:
compatibilizer layers D, each positioned between the inner layer and the barrier layer, as well as the outer layer and the barrier layer, to connect the other film layers (figure 4, where “other layers” is interpreted as the inner and outer layers, see 112b above), and
the barrier layer is of ethylene vinyl alcohol material (paragraph 0055) with a thickness of 1-25 microns (paragraph 0055), with other layers C from a polyolefin-based mono material (paragraph 0025).
Please note that while “thermoformable” is not explicitly taught, the text as a whole describes a packaging film made primarily of polyethylene and similar materials, which are thermoplastics and therefore are thermoformable.
Nair does not explicitly teach that the barrier layer has a weight of at most 5% of the total packaging film. However, Nair does teach that the barrier layer is 1-25 microns (paragraph 0055), and the film as a whole is primarily polyethylene materials and is 20-400 microns thick (paragraph 0059). Therefore, the examiner is taking the position that the volume ratio of the barrier material to the entire film will approximate the weight ratio of the barrier material to the entire film. Therefore, the weight of the barrier to the total packaging film is 0.25 to 100%.
“In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists,” (MPEP 2144.05 Section I). Therefore, absent evidence of criticality, the taught range of 0.25 to 100% reads on the claimed range of at most 5%.
Regarding claim 2, Nair further teaches a functional layer C (figure 4 and paragraph 0043 teaching that C may be multilayered such that one layer C may be partially inner or outer film and partially functional layer). Please note that while Nair does not specifically disclose the functional layer as providing physical durability, given that Nair discloses the structure of the claimed packaging film, the functional layer of Nair is deemed capable of functioning as per the claimed limitations as discussed above.
Regarding claim 3, Nair further teaches a base layer A (figure 4). Please note that while Nair does not specifically disclose the base layer as improving mechanical properties and heat interaction, given that Nair discloses the structure of the claimed packaging film, the base layer of Nair is deemed capable of functioning as per the claimed limitations as discussed above.
Regarding claim 4, Nair teaches that each of the compatibilizer layers (paragraph 0088) comprises linear low-density polyethylene (paragraph 0039) grafted with maleic anhydride (paragraph 0088).
Regarding claim 13, Nair teaches that the film has a thickness of 20-400 microns (paragraph 0059). “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists,” (MPEP 2144.05 Section I). Therefore, absent evidence of criticality, the taught range of 20 to 400 microns reads on the claimed range of 60 to 300 microns.
Regarding claim 14, Nair teaches that the film has a structure obtained by a blow extrusion method in an extruder (paragraph 0062). Nair does not teach that the extruder is water-cooled. However, “water-cooled” is product by process language.
The discussion above tends to show the claimed product is the same as what is taught by the prior art. “[E]ven 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, 227 USPQ 964,966). Once the Examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to Applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product. In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983), MPEP 2113. In this case, the process of Nair appears to form the same product as that of the instant invention. Applicant may provide evidence proving an unobvious difference between the products.
Claims 5-11 are rejected under 35 U.S.C. 103 as being unpatentable over US 2021/0308995 Nair et al as applied to claims 1, 2 and 3 above, and further in view of US 5,695,840 Mueller.
Regarding claim 5, Nair teaches that each of the compatibilizer layers (paragraph 0088) comprises polyethylene copolymer (paragraph 0039) grafted with maleic anhydride (paragraph 0088). Nair does not teach a blend including LLDPE. Mueller teaches a packaging film where a LLDPE material may be blended with a variety of other PE materials (column 8, lines 27-38). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include the LLDPE and blending structure of Mueller in the product of Nair because this provides a material that has good flexibility, strength and gas impermeability (column 8, lines 27-38).
Regarding claim 6, Nair teaches the base layer A (figure 4) may comprise LLDPE and ethylene copolymers (paragraph 0024), but does not teach an LLDPE/1-hexene copolymer. Mueller teaches a packaging film, including an ethylene/alpha-olefin copolymer (column 8, lines 27-38). Mueller further teaches that the ethylene/alpha-olefin copolymers may be PE copolymerized with 1-hexene (column 6, lines 43-67). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to copolymerize the LLDPE of Nair with the 1-hexene of Mueller to create an LLDPE/1-hexene copolymer because this provides a material that has good flexibility, strength and gas impermeability (Mueller column 8, lines 27-38).
Regarding claim 7, Nair teaches the base layer A (figure 4) may comprise LLDPE and ethylene copolymers (paragraph 0024), but does not teach an LLDPE/1-hexene copolymer or a blend with LDPE. Mueller teaches a packaging film, including an ethylene/alpha-olefin copolymer (column 8, lines 27-38) and PE blends with LDPE (column 8, lines 27-38). Mueller further teaches that the ethylene/alpha-olefin copolymers may be PE copolymerized with 1-hexene (column 6, lines 43-67). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to copolymerize the LLDPE of Nair with the 1-hexene of Mueller to create an LLDPE/1-hexene copolymer, and to further include a blend with the LLDPE/1-hexene copolymer and the LDPE because this provides a material that has good flexibility, strength and gas impermeability (Mueller column 8, lines 27-38).
Regarding claim 8, Nair teaches that the functional layer C comprises an inner functional layer facing the inner layer and an outer functional layer facing the outer layer (paragraph 0043, where layer C may include three sub-layers such that sublayers a) outer layer, b) outer functional layer, and c) inner functional layer, may comprise, in that order, layer C). Nair does teach that layer C may be formed of MDPE, LLDPE, and/or ethylene copolymers (paragraph 0024) but does not teach PE/1-hexene copolymers for the functional layers.
Mueller teaches a packaging film, including an ethylene/alpha-olefin copolymer (column 8, lines 27-38). Mueller further teaches that the ethylene/alpha-olefin copolymers may be PE copolymerized with 1-hexene (column 6, lines 43-67). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to copolymerize the MDPE or LLDPE of Nair with the 1-hexene of Mueller to create an MDPE/1-hexene copolymer or an LLDPE/1-hexene copolymer as outer, and inner functional layers, respectively, because these provides a material that has good flexibility, strength and gas impermeability (Mueller column 8, lines 27-38).
Please note that while Nair in view of Mueller does not specifically disclose that the outer functional layer preserves the physical strength and structural properties of the packaging film when interacting with heat, given that Nair in view of Mueller discloses the structure of the claimed packaging film, the outer functional layer of Nair is deemed capable of functioning as per the claimed limitations as discussed above.
Regarding claims 9 and 10, Mueller further PE blends with LDPE (column 8, lines 27-38). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to blend the PE/1-hexene copolymers of the inner and outer functional layers with LDPE as taught by Mueller because this provides a material that has good flexibility, strength and gas impermeability (Mueller column 8, lines 27-38).
Regarding claim 11, Nair teaches that outer layer C comprises ethylene copolymers and LDPE in combination (paragraph 0025). Nair does not teach that the ethylene copolymer is ethylene/1-hexene. Mueller teaches a packaging film, including an ethylene/alpha-olefin copolymer (column 8, lines 27-38). Mueller further teaches that the ethylene/alpha-olefin copolymers may be PE copolymerized with 1-hexene (column 6, lines 43-67). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to use the ethylene/1-hexene copolymer of Mueller as the ethylene copolymer in Nair because this provides a material that has good flexibility, strength and gas impermeability (Mueller column 8, lines 27-38).
Please note that Nair in view of Mueller does not specifically disclose the outer layer as providing heat resistance, given that Nair in view of Mueller discloses the structure of the claimed packaging film, the outer layer of Nair is deemed capable of functioning as per the claimed limitations as discussed above.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over US 2021/0308995 Nair et al as applied to claim 1 above, and further in view of US 5,695,840 Mueller and US 6,282,869 Bullock et al.
Regarding claim 12, Nair teaches the inner layer C comprising ethylene copolymers and LLDPE (paragraph 0025). Mueller teaches a packaging film, including an ethylene/alpha-olefin copolymer (column 8, lines 27-38). Mueller further teaches that the ethylene/alpha-olefin copolymers may be PE copolymerized with 1-octene (column 6, lines 43-67). It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include the 1-octene copolymer of Mueller as the ethylene copolymer of Nair because this provides a material that has good flexibility, strength and gas impermeability (Mueller column 8, lines 27-38).
Neither Nair nor Mueller teaches a plastomer. Bullock teaches a flexible film laminate including ethylene/alpha-olefin copolymers, where the copolymer may be an ethylene/1-octene copolymer (column 9, lines 30-37). Bullock further teaches that the ethylene/alpha-olefin copolymer may be a plastomer (column 8, lines 44-48).
The only difference between the claim and the prior art is the combination of the elements in a single reference. One of ordinary skill in the art before the effective filing date of the invention could have combined the elements using known methods and there is no evidence that the plastomer of the claim performs differently when combined with the other elements than it does separably nor is there any evidence that the combination would produce any unexpected results. (MPEP 2141, Part III KSR A. Combining Prior Art Elements According to Known Methods To Yield Predictable Results).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Megha M Gaitonde whose telephone number is (571)270-3598. The examiner can normally be reached Monday-Friday 8:30 am to 5 pm.
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/MEGHA M GAITONDE/Primary Examiner, Art Unit 1781