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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement filed 7/11/2024 has been fully considered. An initialed copy of said IDS is enclosed herein.
Specification
The abstract of the disclosure is objected to because it is more than one paragraph. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
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 1-8 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 crystallization temperature and total amount of melting heat of the ethylene-based copolymer (A) but does not specify the standard by which said values are determined. Differential scanning calorimetry methods are known to be dependent upon numerous variables including sample preparation and heating rate. Thus, the claimed values are indefinite unless associated with an objective methodology for determining said values.
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.
Claim(s) 1-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lang (US 4,565,742) in view of JP 6892020(herein referred to as “JP”), as evidenced by (https://catalog.ulprospector.com/datasheet.aspx?I=35388&E=18111&CULTURE=en-US&U=0&FMT=PDF-herein referred to as “datasheet”) and (https://polymers.netzsch.com/Materials/Details/10).
With regards to claim 1, Lang teaches a film laminate comprising a base film, a PVDC layer (herein understood to read on “substrate layer 2”) applied to said base film, and a sealant layer (herein understood to read on the claimed resin layer) (abstract). The film laminate may be laminated to an additional film applied to the sealant layer (see examples 9+ and col.6, lines 11-15-said additional film is understood to read on claimed “substrate layer 1”).
The sealant layer may comprise a polyethylene resin composition containing an EVA copolymer (se abstract-herein understood to read on the claimed “ethylene-based copolymer (A)”). Lang teaches said EVA may be ELVAX 3135X (see examples) which is known to have a MFR (190°C, 21.18 N load) of 0.35 g/10 min (see datasheet), and contains 12.0wt% vinyl acetate (herein understood to read on the claimed “2 to 30 mol% of constituent units derived from a monomer having a polar group as an essential accessory component”-see datasheet). Furthermore, ELVAX 3135X is taught to have a freezing point of 78C (herein understood to anticipate the claimed “crystallization temperature Tc is 25 to 90°C” since freezing point is known to refer to the maximum peak height during cooling (see page 29 of the specification which defines Tc as “the maximum peak height during cooling”). Furthermore, EVA is understood to have a heat of fusion (herein understood to be synonymous with the claimed “melting heat”) of about 75J/g (see https://polymers.netzsch.com/Materials/Details/10; furthermore, said EVA reads on one of applicant’s preferred ethylene copolymers and is understood to necessarily possess the claimed properties as the EVA of Lang is compositionally identical to applicant’s preferred copolymer).
Lang does not teach the laminate should further comprise the claimed “adhesive agent layer” between the substrate layer 2 and the resin layer. However, JP teaches an adhesive comprising a reaction product of a polyol compound and a polyisocyanate compound (abstract) may be applied between a substrate and a sealant (see “specific structure of laminate body” paragraph in translation). The adhesive improves adhesion of the resulting laminate. Thus, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to apply an adhesive layer comprising a reaction product of a polyol compound and a polyisocyanate compound between the PVDC layer and sealant layer of the laminate disclosed in Lang. The motivation for doing so would have been that JP teaches such reaction products improve adhesion between substrates and sealant layers in packaging laminates.
With regards to claim 2, Lang further teaches the polyethylene sealant resin composition may further comprise an ethylene butene copolymer (herein understood to read on the claimed “polyethylene resin (C): having a MFR (190°C, 21.18 N load) is 0.75 g/10 min, and a density is 0.919 g/cm³ (see examples).
With regards to claim 3, Lang teaches the content ratio between the ethylene-based copolymer (A) and the polyethylene resin (C) (weight ratio A : C) in the polyethylene resin composition (B) is 98-2:2-98 (see examples).
With regards to claim 4, Lang teaches all the components of the polyethylene resin composition have densities between 0.90 and 0.96. Thus, the composition is understood to necessarily have a density of 0.90 to 0.96 g/cm³. With regards to the claimed MFR, Lang does not teach the composition should have MFR (190°C, 21.18 N load) of 1 to 100 g/10 min. However, one of ordinary skill in the art at the time the invention was filed would have known that MFR is a result effective variable effecting the processability of a composition. Thus, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to have optimized the MFR of the composition in order to optimize the processability of the composition.
With regards to claim 5, Lang teaches the ethylene-based copolymer comprises 88 mol% ethylene and 12 mol% vinyl acetate (see examples-herein understood to read on the claimed “containing 80 to 98 mol% of constituent units derived from ethylene as a main component and 2 to 20 mol% of constituent units derived from a monomer having a polar group as an essential accessory component”).
With regards to claim 6, Lang teaches the substrate may be PVDC. Said polymer is known to have an oxygen permeability of less than 1,300 mL/m²-day-MPa at 20°C and 65% RH.
With regards to claim 7, the courts have held that the method of making a product does not patentably distinguish a claimed product from a product disclosed in the prior art unless the method of making a product is shown to result in a materially different product. In the present application, no such showing has been made.
With regards to claim 8, Lang teaches the laminate may be used to make a packaging material (see abstract).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-8 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of copending Application No. 18/704630 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because copending Application No. 18/704630 claims “A laminate comprising at least four layers which are, respectively, a substrate layer 1(α), a resin layer (β), an adhesive agent layer (γ) and a substrate layer
2(δ), wherein the substrate layer 1(α), the resin layer (β), the adhesive agent layer (y) and the substrate layer 2(δ) are laminated adjacent to one another, and the resin layer (B) and the adhesive agent layer (y) satisfy, respectively, the following characteristics:
resin layer (ß): comprising a polyethylene resin composition (B) containing an ethylene-based copolymer (A) having the following characteristics (a-1) to (a-4):
(a-1) MFR (190°C, 21.18 N load) is 0.1 to 100 g/10 min,
(a-2) a total amount of melting heat is 30 to 120 J/g in DSC,
(a-3) a crystallization temperature Tc is 25 to 90°C, and
(a-4) containing 70 to 98 mol% of constituent units derived from ethylene as a main component, and 2 to 30 mol% of constituent units other than ethylene as an essential accessory component, and
adhesive agent layer (γ): comprising a reaction product of a polyol compound and a polyisocyanate compound.” (claim 1) The “constituent units other than ethylene” is understood to be a genus (comprising polar and non-polar substituents) which reads on the claimed “constituent units derived from a monomer having a polar group” of the pending claims.
With regards to claim 2, copending Application No. 18/704630 further claims “the polyethylene resin composition (B) comprises a polyethylene resin (C) having the following characteristics (c-1) to (c-
(c-1) MFR (190°C, 21.18 N load) is 0.1 to 100 g/10 min, and
(c-2) a density is 0.91 to 0.97 g/cm³.” (claim 2)
With regards to claim 3, copending Application No. 18/704630 further claims the “content ratio between the ethylene-based copolymer (A) and the polyethylene resin (C) (weight ratio A : C) in
the polyethylene resin composition (B) is 98 to 2 : 2 to 98.”
With regards to claim 4, copending Application No. 18/704630 further claims “the polyethylene resin composition (B) further satisfies the following characteristics (b-1) and (b-2):
(b-1) MFR (190°C, 21.18 N load) is 1 to 100 g/10 min, and
(b-2) a density is 0.88 to 0.94 g/cm³.” (claim 3)
With regards to claim 6, copending Application No. 18/704630 further claims the “ oxygen permeability of the substrate layer 1(α) is 1,300 mL/m² day MPa or less at 20°C and 65% RH.” (claim 8).
With regards to claim 7, copending Application No. 18/704630 further claims “ the laminate is formed by an extrusion coating method.” (claim 9).
With regards to claim 8, copending Application No. 18/704630 further claims a “packaging material obtained using the laminate” (claim 10).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KEVIN R KRUER whose telephone number is (571)272-1510. The examiner can normally be reached M-F 8am-5pm.
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KEVIN R. KRUER
Examiner
Art Unit 1787
/KEVIN R KRUER/Primary Examiner, Art Unit 1787