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 3-5, 7, and 11 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 3 recites the limitation "c)" twice, once in line 5 and once in line 7. There is insufficient antecedent basis for this limitation in the claim. Claim 1, from which claim 3 depends, does not previously recite a layer c). It is thus unclear as to what is being referred to as layer c). For purposes of examination, claim 3 is interpreted as instead being dependent upon claim 2 which recites a layer c).
Claims 4-5 and 11 recites the limitation "the acrylate" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 1, from which claims 4-5 depend, does not previously recite an acrylate. It is thus unclear as to what is being referred to as the acrylate. For purposes of examination, claims 4-5 are interpreted as instead reciting “the at least on acrylate comonomer”.
Claim 7 recites the limitation "the water barrier material" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 1, from which claim 7 depends, does not previously recite a water barrier material. It is thus unclear as to what is being referred to as the water barrier material. For purposes of examination, claim 7 is interpreted as instead being dependent upon claim 2 which recites a water barrier material.
Claim 7 is indefinite as the recitation of possible elements is not properly claimed in the alternative. Treatment of claims reciting alternatives is not governed by the particular format used (e.g., alternatives may be set forth as "a material selected from the group consisting of A, B, and C" or "wherein the material is A, B, or C"). See, e.g., the Supplementary Examination Guidelines for Determining Compliance with 35 U.S.C. 112 and for Treatment of Related Issues in Patent Applications ("Supplementary Guidelines"), 76 Fed. Reg. 7162, 7166 (February 9, 2011). Alternative expressions are permitted if they present no uncertainty or ambiguity with respect to the question of scope or clarity of the claims. A Markush grouping is a closed group of alternatives, i.e., the selection is made from a group "consisting of" (rather than "comprising" or "including") the alternative members. Abbott Labs., 334 F.3d at 1280, 67 USPQ2d at 1196. 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. If a claim is intended to encompass combinations or mixtures of the alternatives set forth in the Markush grouping, the claim may include qualifying language preceding the recited alternatives (such as "at least one member" selected from the group), or within the list of alternatives (such as "or mixtures thereof"). Id. at 1281. See MPEP 2173.05(h). For the purposes of examination claim 7 will be interpreted as reciting “is selected from the group consisting of polyethylene terephthalate, polyamide, and polyolefin.” Correction is required.
Claim Rejections - 35 USC § 103
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.
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 for establishing a background for determining obviousness under 35 U.S.C. 103 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Dhanabalan et al. (WO 2020074378 A1) in view of Castaneda Zuniga et al. (US 20180371130 A1). Claim 2 is further evidenced by Water Vapor Transmisison Rate (WVTR) (Water Vapor Transmisison Rate (WVTR), 2026, Flair, Pages 1-2).
Regarding claim 1, Dhanabalan teaches a laminate comprising a layer a) (second polymeric layer, 14) comprising an oxygen barrier material, wherein the oxygen barrier material has an oxygen transmission rate (OTR) of 0.1-30 cm3/m2/day at 0% RH and 23°C (Dhanabalan, Abstract, Par. 0001, 0017, 0036-0040, and Figs 1A-2), which lies within the claimed range of 0-30 and therefore satisfies the claimed range, see MPEP 2131.03. Dhanabalan teaches another layer (first polymeric layer, 12) comprising a polyolefin adjacent to the layer a), and teaches that a layer b) (acrylic tie layer) may be included between the layers and thus adjacent layer a) (Dhanabalan, Par. 0017, 0036-0040, 0062 and Figs 1A-2).
Dhanabalan is silent regarding at least the composition of layer b).
Castaneda Zuniga teaches tie layer (see adhesive function) tying layers on either side together, wherein the tie layer comprises an ethylene acrylate copolymer comprising units of hydroxyethyl acrylate (Castaneda Zuniga, Abstract, Par. 0002-0003, and 0065-0069). Hydroxyethyl acrylate satisfies the formula (I) as it is given as an example by the instant specification Page 5.
Dhanabalan and Castaneda Zuniga are analogous art as they both teach acrylic tie layers. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have used Castaneda Zuniga’s tie layer as the tie layer of Dhanabalan. This would allow for adhesion between the adjacent layers of Dhanabalan (Castaneda Zuniga, Par. 0002-0003).
Regarding claim 2, modified Dhanabalan teaches a layer c) (first polymeric layer, 12) adjacent to b), wherein layer c) comprises a water barrier material is a high density polyethylene (Dhanabalan, Par. 0015 and 0017), which is the same material as the instant invention per the instant specification Page 5 and therefore satisfies the limitation of a water barrier material. HDPE has a water vapor transmission rate of 0.1-0.2 g.mm/(m2 day) at 38°C and 95% RH as evidenced by Water Vapor Transmisison Rate (WVTR) (Water Vapor Transmisison Rate (WVTR), Page 1), which lies within the claimed range of 0-10 and therefore satisfies the claimed range, see MPEP 2131.03. Although Water Vapor Transmisison Rate (WVTR) measures WVTR with a method that is different from the claimed method, i.e. at 38°C and 95% RH instead of 23°C and 85% RH, one of ordinary skill in the art would readily understand that differences between the two different methods would yield minor and obvious differences, and that if Water Vapor Transmisison Rate (WVTR)’s WVTR was also measured with the claimed method, it would still yield a WVTR that renders obvious the claimed WVTR (see MPEP 2143).
Regarding claim 3, modified Dhanabalan teaches layer a) has a thickness of 1-5 µm (Dhanabalan, Par. 0014), which lies within the claimed range of 10 nm – 200 µm and therefore satisfies the claimed range, see MPEP 2131.03. Modified Dhanabalan teaches the layer b) has a thickness of 2-10 µm and the layer c) has a thickness of 10-30 µm (Dhanabalan, Par. 0017 and 0041), which overlaps the claimed ranges of 5-25 µm and 25-100 µm respectfully and therefore establishes a prima facie case of obviousness over the claimed ranges, see MPEP 2144.05, I.
Regarding claims 4-5, modified Dhanabalan teaches the acrylate comonomer is hydroxyethyl acrylate (Castaneda Zuniga, Abstract, Par. 0002-0003, and 0065-0069). Hydroxyethyl acrylate satisfies the formula (I) as it is given as an example by the instant specification Page 5.
Regarding claim 6, modified Dhanabalan teaches the barrier material is an inorganic/organic hybrid (Dhanabalan, Title, Par. 0004 and 0013).
Regarding claim 7, modified Dhanabalan teaches the water barrier material is a polyolefin (Dhanabalan, Par. 0013 and 0017).
Regarding claim 8, modified Dhanabalan teaches the amount of incorporated acrylate in the ethylene acrylate copolymer of layer b) is from 0.1-20 mol.% (Castaneda Zuniga, Par. 0072), which overlaps the claimed range of 4-12.5 mol.% and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Regarding claim 9, modified Dhanabalan teaches the laminate is a film (Dhanabalan, Abstract).
Regarding claim 10, modified Dhanabalan teaches the layer a) has an OTR of 0.1-30 cm3/m2/day at 0% RH and 23°C (Dhanabalan, Abstract, Par. 0001, 0017, 0036-0040), which would result in the overall laminate having an OTR that overlaps the claimed range of 0.1-20 and therefore establishes a prima facie case of obviousness over the claimed range, see MPEP 2144.05, I.
Regarding claim 11, modified Dhanabalan teaches the laminate comprises, in this order, layer c), layer b), layer a), layer b), layer c) (Dhanabalan, Par. 0039-0040 and Fig. 2).
Regarding claims 12-14, modified Dhanabalan teaches a packaging article that is a film (Dhanabalan, Abstract, and Par. 0012).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THOMAS J KESSLER JR whose telephone number is (571)272-3075. The examiner can normally be reached 7:30-5:30 M-Th.
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/THOMAS J KESSLER/Examiner, Art Unit 1782
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