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 § 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 1-10, 13 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over US 2021/0308995 Nair et al in view of US 5,695,840 Mueller and US 6,282,869 Bullock 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), the packaging film comprising:
an inner layer (C adjacent Y), wherein the inner layer faces the food product (figure 4),
outer layer (C adjacent X) (figure 4), and
a single barrier layer B, wherein the barrier layer is in between the inner layer and the outer layer (figure 4, please note that additional barrier layers have not been excluded), and the barrier layer is of ethylene vinyl alcohol material (paragraph 0055) with a thickness of 1-25 microns (paragraph 0055), and further comprising:
a first compatibilizer layer D, connecting the inner layer and the barrier layer (figure 4, where direct contact is not claimed), and
a second compatibilizer layer D connecting the outer layer and the barrier layer (figure 4, where direct contact is not claimed).
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%.
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).
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).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include the plastomer feature of Bullock in the ethylene copolymer of Nair because these bulk materials are inexpensive and increase the abuse-resistance, toughness, modulus, etc., of a multilayer film (column 8, lines 38-44).
Regarding claim 2, Nair further teaches at least one 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).
Regarding claim 3, Nair further teaches at least one base layer A (figure 4).
Regarding claim 4, Nair teaches that the first and second compatibilizer layers (paragraph 0088) each comprises linear low-density polyethylene (paragraph 0039) grafted with maleic anhydride (paragraph 0088).
Regarding claim 5, Nair teaches that the first and second compatibilizer layers (paragraph 0088) each 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 at least one 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).
Regarding claims 9 and 10, Mueller further teaches 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 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.
Response to Arguments
Applicant's arguments filed June 4, 2026, have been fully considered but they are not persuasive.
Applicant argues that Examiner’s logic regarding the barrier layer being 5 wt% of the film is incorrect. However, Applicant has not explained why this is wrong. Applicant further states that Nair does not explicitly disclose “at most 5%.” However, again, this is not an explanation for why Applicant believes Examiner’s logic is flawed. The 5% limitation is discussed in the rejection regarding the layer thicknesses, and Applicant does not explain why Examiner is wrong. Applicant is asked to elaborate.
Applicant argues that the prior art does not recognize the recyclability of the film. However, the prior art need not have the same reason as Applicant to arrive at a product that reads on the claim.
Applicant argues that the prior art does not teach a single barrier layer. However, “single” requires one. “Single” does not exclude the presence of additional layers. In other words, the prior art teaches the single layer, and also teaches additional layers in other locations.
Applicant argues that Examiner has not articulated a reasoning for combining the references. This has been clarified above. The discussion above now clearly states a reason for modifying Nair with Mueller and a reason for modifying Nair and Mueller with Bullock.
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.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Frank Vineis can be reached at 571-270-1547. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MEGHA M GAITONDE/Primary Examiner, Art Unit 1781
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