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 .
This is the first Office action on the merits of the claims.
The Patent Office has transferred this application to a different examiner. Please direct any reply to the examiner now identified on the cover page.
All citations to the Manual of Patent Examining Procedure (MPEP) refer to Revision 01.2024, which was released in November 2024.
Status of the Claims
In the Reply filed 18 June 2026, Applicant amended claim 1. Additionally, Applicant cancelled claims 2-5 and 15-17. Claim 21 was previously cancelled by Applicant. Claims 1, 6-14, and 18-20 are pending.
Restriction/Election
The examiner acknowledges Applicant’s election with traverse of Group I. Reply at page 11.
Applicant’s argument is not persuasive because claim 1, as amended, does not recite a special technical feature, as evidenced by the rejection under 35 U.S.C. 103 set forth later in this Office action. Hence, there is no special technical feature that is common among Groups I-III. Unity of invention is lacking a posteriori.
Alternatively, although claim 1 remains directed to “[a] preservative and/or antimicrobial composition” (preamble), it no longer defines that composition. Rather, the body of the claim now merely concerns intended uses, specifically, the “active substrate” and the “solvent-based coating.” Applicant is referred to lines 6-9 of claim 1. It is unclear whether claim 1 even continues to recite a technical feature relating to the “[a] preservative and/or antimicrobial composition,” itself, let alone a special technical feature. Consequently, unity of invention is now lacking a priori.
The restriction requirement is made FINAL.
Pursuant to 37 CFR 1.142(b), the claims directed to non-elected Group II (claims 18-19) and non-elected Group III (claim 20) are withdrawn from consideration.
Claims 1 and 6-14 are considered below.
Claim Objections
Claims 1 and 6-14 are objected to because of the following informalities:
Regarding claims 1 and 6-8, the following word is misspelled: dessicant. Applicant is advised that the correct spelling is desiccant.
Regarding part (i) of claim 6, the recitation concerning the nano-silver, calcium hypochlorite, sodium chloride, citric acid, and calcium chloride is non-compliant. 37 CFR 1.75(i) (“Where a claim sets forth a plurality of elements or steps, each element or step of the claim should be separated by a line indentation”).
Regarding claim 9, the word “and” is missing between LLDPE and TPS.
Appropriate corrections are required.
Claim Rejections - 35 U.S.C. 112(b)
The following is a quotation of 35 U.S.C. 112(b):
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.
Claims 1 and 6-14 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter that the inventor regards as the invention.
Regarding claim 1, this claim is rejected as prolix. MPEP § 2173.05(m) (“Claims are rejected as prolix when they contain long recitations that the metes and bounds of the claimed subject matter cannot be determined.”). The body of the claim, as recently amended, concerns intended uses, relating to the formation of an active substrate or solvent-based coating, which are not considered limiting. See lines 6-9. It is unclear what the constituents of the “preservative and/or antimicrobial composition” (preamble) are. Applicant is strongly encouraged to remove the intended-use language from the claim and focus it on the compositional profile of the preservative and/or antimicrobial composition. In the interest of compact prosecution, the examiner assumes that the claimed composition comprises: calcium chloride, sodium chloride, citric acid, calcium hypochlorite, silver nanoparticles, and polyethylene. This interpretation is supported by page 27 of the specification, as originally filed.
In further regard to claim 1, the following phrase is unclear: “one or more dessicants, carriers, comprising polyethylenes and process aids, comprising one or more zeolites, silica, stearates, comprising calcium stearate or a combination thereof.” Does it require the following combination of three: a dessicant, a carrier, and a process aid? Alternatively, is the presence of only one of those three sufficient? Is the process aid a class of carrier? Furthermore, it is important to recognize that “[a]lthough the term ‘Markush claim’ is used throughout the MPEP, any claim that recites alternatively usable members, regardless of format, should be treated as a Markush claim.” MPEP § 2117(I). Claim 1 improperly recites the transitional phrase <comprising> in connection with the Markush group of process aids and within the group of processing aids, itself (calcium stearate). MPEP § 2173.05(h)(I) (“If a Markush grouping requires a material selected from an open list of alternatives (e.g., selected from the group ‘comprising’ or ‘consisting essentially of’ the recited alternatives), the claim should generally be rejected under 35 U.S.C. 112(b) as indefinite because it is unclear what other alternatives are intended to be encompassed by the claim.”).
Regarding claim 6, the myriad concentration ranges recited in part (i) are prolix and must be consolidated. MPEP § 2173.05(m).
In further regard to claim 6, the following phrase in part (i) is unclear: “one or more dessicants, carriers, comprising polyethylenes and process aids, comprising one or more zeolites, silica, stearates, comprising calcium stearate or a combination thereof.” Applicant is referred above to the §112(b) rejection of claim 1, which recites the same phrase.
In further regard to claim 6, the phrases in part (iii) concerning the following four components are unclear: (1) solvent-based urethane with a greater part of an ester blend, (2) solvents, (3) additive/wax, and (4) binder/nitrocellulose. Their respective metes and bounds cannot be determined to a reasonable degree of certainty, especially given the multitude of transitional phrases and alternatives. Furthermore, the groupings of alternatives do not comply with Markush practice. Applicant is referred to MPEP § 2117(I) and MPEP § 2173.05(h)(I), both of which are applied and quoted above.
In further regard to claim 6, the ratio recited at the end of the claim is unitless, which renders the claim indefinite. For example, is it a weight-by-weight (w/w) ratio? A weight-per-volume (w/v) ratio?
Regarding claim 7, the myriad concentration ranges recited in part (i) are prolix and must be consolidated. MPEP § 2173.05(m).
In further regard to claim 7, the following phrase in part (i) is unclear: “one or more dessicants, carriers, comprising polyethylenes and process aids, comprising one or more zeolites, silica, stearates, comprising calcium stearate or a combination thereof.” Applicant is referred above to the §112(b) rejection of claim 1, which recites the same phrase.
In further regard to claim 7, the ratio recited at the end of the claim is unitless, which renders the claim indefinite. For example, is it a weight-by-weight (w/w) ratio? A weight-per-volume (w/v) ratio?
Regarding claim 8, the myriad concentration ranges recited in part (i) are prolix and must be consolidated. MPEP § 2173.05(m).
In further regard to claim 8, the following phrase in part (i) is unclear: “one or more dessicants, carriers, comprising polyethylenes and process aids, comprising one or more zeolites, silica, stearates, comprising calcium stearate or a combination thereof.” Applicant is referred above to the §112(b) rejection of claim 1, which recites the same phrase.
In further regard to claim 8, the phrases in part (iii) concerning the following four components are unclear: (1) solvent-based urethane with a greater part of an ester blend, (2) solvents, (3) additive/wax, and (4) binder/nitrocellulose. Their respective metes and bounds cannot be determined to a reasonable degree of certainty, especially given the multitude of transitional phrases and alternatives. Furthermore, the groupings of alternatives do not comply with Markush practice. Applicant is referred to MPEP § 2117(I) and MPEP § 2173.05(h)(I), both of which are applied and quoted above.
In further regard to claim 8, the ratio near the end of the claim is unitless, which renders the claim indefinite. For example, is it a weight-by-weight (w/w) ratio? A weight-per-volume (w/v) ratio?
Regarding claims 13-14, it is unclear whether (and if so how) the phrases recited in these claims further limit the active substrate (claim 13) or the preservative and/or antimicrobial composition (claim 14). These phrases appear to be directed to methods and, therefore, are inconsistent with the statutory category of the claims. 35 U.S.C. 101.
Claim Rejections - 35 U.S.C. 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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103(a) are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 7, and 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over Ide (US 5,711,211) in view of Carbone (“Silver nanoparticles in polymeric matrices for fresh food packaging.” Journal of King Saud University-Science 28.4 (2016): 273-279).
Ide is directed to a chlorine generator for preservation of fruits and vegetables.
Example 1 of Ide (column 5) is reproduced in part on the next page:
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Ide discloses that, alternatively, the polyethylene (first layer) can be impregnated with the foregoing chlorine-generating composition. Column 4, lines 23-28 (“In an alternate structure, either the second layer (16) or, preferably, the first layer (18) is impregnated with a composition containing the hypochlorite material, or the hypochlorite material together with additional adjunct components such as sodium chloride, citric acid and/or calcium chloride.”); see also column 6 at claim 14.
Ide is silent as to whether the chlorine-generating composition can further comprise silver. It follows that Ide does not satisfy claim 1 of the present application, which requires: “nano-silver (Nano-Ag).” As explained below, Carbone compensates for this deficiency.
Carbone is directed to silver nanoparticles (AgNPs) in polymeric matrices for fresh food packaging.
Carbone teaches: “AgNPs based antimicrobial packaging is a promising form of active food packaging which plays an important role in extending shelf-life of foods and reducing the risk of pathogens.” Page 274 at Section 2.
Carbone teaches: “Among the non-degradable polymers polyethylene (PE), polyvinyl chloride (PVC) and ethylene vinyl alcohol (EVOH) are the most largely used to host AgNPs for food packaging.” (Emphasis added) Page 275 at Section 2.1.
Carbone teaches that “works showed that nano-packaging obtained with LDPE [low density polyethylene] and AgNPs was able to maintain the sensory, physicochemical and physiological qualities of barberry and strawberry fruits at a higher level compared with normal packaging realized with polyethylene bags.” (Emphasis added) Page 275 at Section 2.1.
Before the effective filing date of the claimed invention, the foregoing teachings of Carbone would have motivated a person having ordinary skill in the art to add AgNPs to the chlorine-generating composition disclosed in Ide, in an effort to improve its ability to preserve fruits and vegetables. Therefore, claims 1, 7, and 12-14 are prima facie obvious. MPEP § 2144.06(I) (“‘It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.’”), quoting In re Kerkhoven, 626 F.2d 846, 850 (CCPA 1980).
Claims 6 and 8-11 are rejected under 35 U.S.C. 103 as being unpatentable over Ide in view of Carbone, as applied above to claims 1, 7 and 12-14, and further in view of Arcurio (US 6,723,820 B1) and Bollard (US 2013/0324653 A1).
Ide and Carbone are silent regarding solvent-based coatings and, consequently, do not satisfy claims 6 and 8-11. As explained below, the following two references compensate for this deficiency: Arcurio and Bollard.
Arcurio is directed to solvent-based poly(urethane/urea) resins suitable for formulating flexographic and gravure laminating printing ink and coating compositions. Abstract.
Arcurio teaches: “In the field of food packaging, bags or containers made of laminated film materials are used for the reasons that they are sanitary and their contents do not come in direct contact with the ink and to provide a satisfactory appearance as high grade printed products.” Column 1, lines 23-28.
In Example 9 (columns 14-15), Arcurio teaches various polyurethane-nitrocellulose ink/coating compositions that are similar to those recited in the claims of the present application. See also column 10, lines 6-22 (describing systems prepared by blending the poly(urethane/urea) resin in nitrocellulose bases). Applicant is additionally referred to column 7 (lines 1-5) and column 9 (lines 13-38) of Arcurio, which contain relevant teachings concerning ethanol and waxes.
Arcurio teaches: “Although any polymeric substrate may be printed with this method, preferred polymeric substrates include a sheet of polyethylene, polypropylene, polyethylene terephthalate, cellulose acetate, cellulose acetate butyrate, polycarbonate, polyamide, PVDC coated polyethylene terephthalate, PVDC coated polypropylene, metallized polyethylene terephthalate, or metallized polypropylene. Particularly preferred film substrates used for lamination are oriented polypropylene and treated polyester films.” (Emphasis added) Column 10, lines 31-39.
Arcurio teaches: “An additional embodiment of the present invention further comprises the step of subjecting the printed laminate to retort conditions to form a retorted laminate, wherein the ink image remains substantially unchanged and wherein the retorted laminate is free of delamination defects. In this embodiment, the printed laminate can be, at least in part, as a packaging material for contents (e.g., such as foods, medicinals and the like) which are processed in situ at elevated temperatures by retorting. As used herein the term ‘retort’ is intended to include operations and conditions in which laminates, or packaged contents, are heated under prescribed conditions such as boiling in water; heating in an autoclave, or an oven, or a microwave and with Infrared radiation; or the like. A typical retorting operation commonly used in the food packaging industry involves heating in water at 180° F. (about 82° C.) for 45 minutes.” (Emphasis added) Column 10, lines 52-67.
Bollard teaches that clays and organoclays, such as those sold under the trademark Bentone®, are used widely as viscosity modifiers in non-aqueous organic solvent (NAD) ink compositions. Para. [0157]. Organoclays generally contain bentonite, hectorite or attapulgite clays or combinations thereof, in an amount that is from at or about 0.5 wt % to at or about 5 wt % based on the weight of the ink composition. Para. [0181]; see also para. [0157].
Before the effective filing date of the claimed invention, a person having ordinary skill in the art would have been motivated to include the chlorine-generating composition of Ide (as modified above by Carbone) in the laminating compositions of Arcurio, as part of an effort to formulate a coating that is compatible with polyethylene and especially suitable for preserving packaged fruits and vegetables. Bollard establishes that it was well known in the art to include Bentone® (created by chemically reacting natural bentonite with quaternary ammonium salts) in such laminating compositions with predictable results. Therefore, claims 6 and 8-11 are prima facie obvious.
Conclusion
Claims 1 and 6-14 are rejected.
Claims 1 and 6-14 are also objected to.
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PETER ANTHOPOLOS whose telephone number is 571-270-5989. The examiner can normally be reached on Monday – Friday (9:00 am – 5:00 pm). If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Bethany P. Barham, can be reached on Monday – Friday (9:00 am – 5:00 pm) at 571-272-6175. The fax number for the organization where this application or proceeding is assigned is 571-273-8300.
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/P.A./
19 September 2026
/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
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