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 .
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claim 10 is 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.
The preamble of claim 10 is directed to "[t]he multilayer film" implying that the claim is a dependent claim. However, there is no language in the claim identifying the claim from which it depends. As such, the claim is rendered indefinite because (in)dependent nature of the claim is unclear.
Claim Interpretation
For the purpose of examination, claim 10 is taken to be a claim that depends from claim 1, the first claim references a multilayer film.
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 1-3, 6, 7, 9, and 10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mueller (US 4,617,241) as evidenced by Shah (US 4,724,185).
Mueller is directed to multi-layer film comprising an interior layer of low density polyethylene, ethylene vinyl acetate copolymer, or a blend of ethylene vinyl acetate copolymer and a linear low density polyethylene and two surface layers comprising ethylene vinyl acetate copolymer (column 9, lines 17-42).
Embodiment Y in Mueller illustrates a film having a five layer structure of A/B/A/B/A having approximate thickness ratios of 1/1.5/1/1.5/1, wherein A is an ethylene vinyl acetate copolymer having about 3.3 to 4.1% vinyl acetate units (El Paso PE 204CS95) and B is a linear low density polyethylene having a density of about 0.920 gm/cm3 (Dowlex 2045) (column 12, lines 41-68). When subjected to an Elmendorf tear test according to ASTM D 1922-67, the transverse results for Embodiment Y is reported as 96-160 grams (Tables III and IV). One of ordinary skill in the art would immediately recognize this as being 96-160 g/25mm since g/25mm is the unit used in the Elmendorf tear test of ASTM D 1922. ASTM D 1922 is also the test used by the applicant to determine cross direction tear resistance (see paragraph 0050 on pages 11-12 of the specification).
The two outer A layers correspond to the first and second outer layers of the claims; the inner A layer (which comprises about 16.7% of the total thickness of the film) correspond to the first core of the claims; the intermediate B layers correspond to the second and third core layers of claim 9.
El Paso PE 204CS95, the ethylene vinyl acetate that layer A is composed of has a density of about 0.9232 to 0.9250 g/cc and a melt index of about 2.0±0.5 g/10 min while Dowlex 2045, the linear low density polyethylene that layer B is composed of has a melt index of about 2.55 g/10 min (see column 5, lines 34-52 of Shah).
Regarding claim 6, the ethylene vinyl acetate copolymer having about 3.3 to 4.1% vinyl acetate units reads on a polyethylene since "polyethylene" is defined in the specification as a polymer comprising a majority amount of units derived from ethylene monomer (see paragraph 0010 on page 3 of the specification).
Regarding claims 2, 7, and 10, the limitations of these claims are met since the layer of the film of Embodiment Y is composed entirely of ethylene-based polymers.
Claims 1, 3, 4, 6, and 9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Menning et al. (US 2017/0239921).
Menning is directed to a multilayer film comprising a core component including 10 to 1000 alternating layers of layer A and layer B each having a thickness of 30 to 1000 nm (paragraph 0030). Layer A and layer B each comprise a polymer such as ethylene vinyl acetate copolymer, ethylene methyl acrylate copolymer, and ethylene butyl acrylate copolymer, with layer B further comprising a particulate filler (paragraph 0030). The ethylene vinyl acetate copolymer of layers A and B has a vinyl acetate content of 7 to 40 wt% and a melt index of 0.1 to 1.0 g/10 min (paragraphs 0034, 0038, and 0063). The ethylene methyl acrylate copolymer has methyl acrylate content of 6 to 32 wt% and a melt index of 0.1 to 10.0 g/10 min (paragraphs 0040, 0044, and 0063). The ethylene butyl acrylate copolymer has a butyl acrylate content of 4 to 32 wt% and a melt index of 0.1 to 10.0 g/10 min (paragraphs 0046, 0050, and 0063). The multilayer film has two skin layers that sandwich the core component (paragraph 0089). Affinity® PF 1140G - an ethylene/octene copolymer having a density of 0.897 g/cc and a melt index of 1.6 g/10 min (Table 2) - is a suitable material for the skin layers (paragraph 0092). The multilayer film has an Elmendorf tear in the transverse direction of 2.00 to 7.00 N/25 mm (paragraph 0116) - i.e., about 204 to 714 g/25 mm.
The embodiment of the examples illustrate multilayer films with cores composed of 100 or 200 alternating layers, comprising Elvax 3150 EVA and Dowlex 2247G LLDPE while the skin layers comprise Dowlex 2247G LLDPE and Elvax 3150 EVA (Table 3). Elvax 3150 EVA is a copolymer of ethylene and 15% vinyl acetate have a density of 0.94 g/cc and a melt index of 2.5 g/10 min while Dowlex 2247G LLDPE is a copolymer of ethylene and octene having a density of 0.917 g/cc and a melt index of 2.3 g/10 min (Table 2).
One of the layer A or layer B (comprising ethylene vinyl acetate and containing 100 wt% ethylene based polymer based on the total polymer weight) corresponds to the first core layer of the claims. Others of layers B and/or layer A (comprising LLDPE having a density of 0.917 g/cc) correspond to the second and third core layers of claim 9; the skin layers (comprising LLDPE having a density of 0.917 g/cc) correspond to the first and second outer layers. Since the core comprises 100 or 200 alternating layers, each or which comprises ethylene vinyl acetate copolymer, there must be a layer corresponding to the first core layer of the claims that is less than 20% of the total thickness of the multilayer film.
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 4 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Mueller (US 4,617,241).
Mueller teaches multi-layer film that satisfies all the limitations of claims 4 and 8, as set forth above, except for illustrating an embodiment wherein: the ethylene vinyl acetate contains 9-28 wt% vinyl acetate comonomer (claim 4) or the first core layer is 5 to 15% of the total thickness of the film.
Regarding claim 4, Mueller teaches that the ethylene vinyl acetate copolymer used to form the core layer may contain about 8.4 to 9.4% units derived from vinyl acetate (column 10, lines 10-25).
It would have been obvious to one of ordinary skill in the art to use an ethylene vinyl acetate copolymer having as much as about 9.4% units derived from vinyl acetate since it has been held that the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination. See MPEP 2144.07.
Regarding claim 8, the courts have held that a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985). In this case, one of ordinary skill in the art to have expected the same properties (e.g., heat shrinkability, puncture and tear resistance, elongation, elastic memory, etc.) from a multi-layer film having a core with thickness of 15% of the total thickness compared to one having a thickness of 16.7%, particularly since the film having a core that 16.7% of the total thickness is described as a "preferred" thickness ratio (see column 10, lines 2-4) as opposed to a required or necessary thickness ratio.
Claims 2 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Menning et al. (US 2017/0239921).
Menning teach all the limitations of claims 2 and 5, as outlined above, except for illustrating an embodiment wherein: the ethylene based copolymer comprises 80-100 wt% of the layer corresponding to the first core layer (claim 2) and the layer corresponding to the first core layer comprises ethylene methyl acrylate copolymer or ethylene butyl acrylate copolymer (claim 5).
However, Menning explicitly teach that layer A (which has no particles) may be formed from ethylene vinyl acetate copolymer, ethylene methyl acrylate copolymer, or ethylene butyl acrylate copolymer and does not require the layer to be a blend. Therefore, it would have been obvious to one of ordinary skill in the art to construct the layer from ethylene vinyl acetate copolymer, ethylene methyl acrylate copolymer, or ethylene butyl acrylate copolymer since it has been held that the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination. See MPEP 2144.07.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RAMSEY E ZACHARIA whose telephone number is (571)272-1518. The best time to reach the examiner is weekday afternoons, Eastern time.
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/RAMSEY ZACHARIA/Primary Examiner, Art Unit 1787