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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 07/05/2024, 07/23/2024, 08/21/2024, 10/24/2025 are being considered by the examiner.
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 11, 15, 21-24 and 225 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.
Regarding claim 11, there is insufficient antecedent basis for the phrase “the compound including a cation composed of a transition metal”. Independent claim 1 recites “an oxygen-absorbing compound” in lines 6-7, however, the claim does not recite or required a compound including a cation composed of a transition metal as recited by claim 11. Claim 10 recites two options for the oxidation promoting catalyst, one of which is a compound including a cation composed of a transition metal.
It is unclear what component of claim 1 “the compound including a cation composed of a transition metal” recited by claim 11 is meant to further limit. Therefore, the claim is indefinite, and prior art is unable to be applied.
Regarding claim 15, the phrase “and comprising a layered configuration” is indefinite as it is unclear if the “layered configuration” is referring to the base material or the multilayer body. It appears that the “layered configuration” refers to the structure of the overall multilayer body. For clarity and to overcome the rejection, it is suggested that the claim be amended to recite:
“further comprising a base material layer, wherein the base material layer, the oxygen barrier layer, the oxygen-absorbing adhesive layer, and the sealant layer are stacked in this order in a layered configuration”.
Regarding claim 21, the claim recites multiple intended use limitations including “for a lid part” and “the oxygen-absorbing body being used as a lid part for a packaging container” however, it is unclear what structure is being claimed with respect to the oxygen-absorbing multilayer body. The claim does not recite any additional structural features, but rather recites intended use language stating that the oxygen-absorbing multilayer body is capable of being used as a lid. It is not clear what, if any, structural requirements are necessary for the lid, or if any oxygen-absorbing multilayer body meeting the structural features of claim 15 will be capable of performing in the manner claimed.
Regarding claim 24, the limitation “wherein the oxygen barrier layer is a layer positioned outside the oxygen-absorbing adhesive layer” is indefinite. Claim 24 ultimately depends from claim 15, which requires a layer configuration of base material layer/oxygen barrier layer/oxygen absorbing adhesive layer/sealant layer, wherein the oxygen barrier layer is already required to be positioned outside the oxygen absorbing layer. It is not clear what additional structure this limitation is requiring and how it further limits the preceding claims.
Regarding claim 25, the limitation in line 13 reciting “the oxygen-absorbing compound is the oxygen-absorbing compound according to claim 1” is indefinite. Both claim 1 and 25 are directed to an oxygen absorbing coating multilayer body. It is unclear how claim 25 can depend from claim 1 and be to different embodiments of the oxygen absorbing multilayer body. The dependency from claim 1 renders claim 25 indefinite and further clarification by the Applicant is requested.
Regarding claim 25, the limitation reciting “the oxygen barrier layer includes one or two or more selected from the group consisting of a metal foil, a resin film with an inorganic vapor deposited layer, a resin coating film or resin film composed of an oxygen barrier resin, and a barrier paper” is indefinite. It is unclear by the punctuation whether “and a barrier paper” is part of the maters within “the group consisting of” pertaining to materials used for the oxygen barrier layer, or if the “and a barrier paper” is reciting a required layer of the oxygen barrier layer in addition to at least one layer chosen from “the group consisting of a metal foil, a resin film with an inorganic vapor deposited layer, a resin coating film or resin film composed of an oxygen barrier resin”. The required structure of the claimed oxygen barrier layer is unclear.
Regarding claim 25, the limitation reciting “the barrier paper has a layered configuration including at least a base paper and an oxygen barrier resin layer, and is stacked such that the oxygen barrier resin layer is position on a side of the oxygen-absorbing coating” is indefinite. The barrier layer is said to be comprised of a barrier paper and an oxygen barrier resin layer, thus having the layer structure: barrier paper/oxygen barrier resin layer.
The previous clause recites that the oxygen barrier layer “includes one or two or more selected from the group consisting of a metal foil, a resin film with an inorganic vapor deposited layer, a resin coating film or resin film composed of an oxygen barrier resin, and a barrier paper”, and then the next clause recites two of those layers, barrier paper and oxygen barrier resin. It is not clear if the oxygen barrier resin is the same as the oxygen barrier resin listed in the prior clause or a different oxygen barrier resin. In other words, it is not clear if the layer structure is barrier paper/oxygen barrier resin/(one or more layers of oxygen barrier layer); or if the oxygen barrier resin required in the clause pertaining to the barrier paper (lines 6-8) is the same as the oxygen barrier resin recited by the clause pertaining to the oxygen barrier layer (lines 3-5).
It is not clear what the required layer structure of the oxygen barrier layer is in lines of lines 3-8 of the claim.
In light of the multiple rejections of claim 25 for being indefinite described herein, the metes and bounds of the claimed invention of this embodiment are unable to be determined. The scope of the claimed invention with respect to claim 25 is unknown, as well as dependent claims 26-30, and prior art is unable to be applied.
Claims 21, 22 and 23 are also rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph based on their dependency from claim 15.
Claim Rejections - 35 USC § 102
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 2, 3, 4, 5, 6, 7, 10, 11, 15, 16, 17, 19, 20, 21, 22, 23 and 24 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sawa et al. (JP 2015009196A; cited on IDS; Machine Translation via EPO provided).
Regarding claims 1, 2, 10, 11, 15, Sawa et al. teaches an oxygen absorber and a multilayer structure utilizing said oxygen absorber ([0016-0022, 0024, 0031-0044, 0047-0053]). An embodiment of the multilayer structure comprises a four layer structure including a polyethylene layer (sealant layer), an oxygen absorbing layer (oxygen absorbing adhesive), a gas barrier layer (oxygen barrier layer) and a PET layer (base layer) ([0050-0053]).
The oxygen absorbing layer (oxygen absorbing adhesive) is formed from an N-hydroxyimide group bound to an aliphatic ring having an aliphatic unsaturated bond (i.e. one or two or more unsaturated five member rings), such as norbornene, as a preferable oxygen absorber (oxygen absorbing compound) with a methyl group at the third position, which corresponds to the electron-donating group 1 of the instant claims ([0031-0041]). The aliphatic ring having an aliphatic unsaturated bond, such as norbornene, consists of an unsaturated five membered ring and a functional group having an active hydrogen ([0031-0041]). The oxygen absorbing layer (oxygen absorbing adhesive) further comprises a transition metal catalyst (oxidation promoting catalyst) that further enhances oxygen absorption, and includes complex salts of transition metals ([0042]).
It is noted that lines 14 through 20 of claim 1 recites a first embodiment in lines 14 through 16 where there is one unsaturated five membered ring, and an embodiment in lines 17-20 where there are two or more unsaturated five membered rings. The above rejection pertains to the embodiment described by clines 14-16 where one five-membered ring is present.
Additionally, lines 14-16 recite two options, option one where the five membered ring or organic group 1 has a functional group having active hydrogen, and option two where a group in which active hydrogen of the functional group having active hydrogen is replaced with a monovalent organic group 2. The above rejection addresses option one.
Regarding claims 3 through 7, Sawa et al. teaches all the limitations of claim 1 above. Claims 3 through 7 further limit the second embodiment described in lines 17-20 of claim 1. The rejection of claim 1 above addresses the first embodiment described by lines 14-16 of claim 1, therefore, the limitations recited by claims 3 through 7 are not further limiting embodiment 1.
Regarding claim 16, the limitation reciting “plant-derived polyolefin based resin” in line 2 is directed to a method of using and does/do not determine the patentability of the product, unless the method produces a structural feature of the product. The method of making and/or using the product is not germane to the issue of patentability of the product itself, unless Applicant presents evidence from which the Examiner could reasonably conclude that the claimed product differs in kind from those of the prior art. See MPEP § 2113. Furthermore, Sawa et al. teaches all the structural features of claim 1 as stated in the rejection above, including a polyethylene layer (sealant layer), wherein polyethylene is a polyolefin. Therefore, there is no structural difference between the structure of the polyethylene layer (sealant layer) of Sawa et al. and that of the claims, and thus the polyethylene layer (sealant layer) of Sawa et al. is capable of performing in the manner claimed.
Regarding claim 17, the limitation reciting “plant-derived polyester based resin” in line 2 is directed to a method of using and does/do not determine the patentability of the product, unless the method produces a structural feature of the product. The method of making and/or using the product is not germane to the issue of patentability of the product itself, unless Applicant presents evidence from which the Examiner could reasonably conclude that the claimed product differs in kind from those of the prior art. See MPEP § 2113. Furthermore, Sawa et al. teaches all the structural features of claim 1 as stated in the rejection above, including a PET layer (base layer), wherein PET is a polyester. Therefore, there is no structural difference between the structure of the PET layer (base layer) of Sawa et al. and that of the claims, and thus the PET layer (base layer) of Sawa et al. is capable of performing in the manner claimed.
Regarding claim 19, Sawa et al. teaches all the limitations of claim 1 above, and further teaches that the multilayer structure utilizing comprising the oxygen absorbing layer (oxygen absorbing adhesive) can be used as a packaging material ([0047-0053]).
Regarding claim 20, Sawa et al. teaches all the limitations of claim 1 above, and further teaches that the multilayer structure utilizing comprising the oxygen absorbing layer (oxygen absorbing adhesive) can be heat sealed together to form a bag-shaped container (pouch) ([0047-0049]).
Regarding claims 21, 22, 23 and 24, Sawa et al. teaches all the limitations of claim 1 above, and further teaches that the multilayer structure utilizing comprising the oxygen absorbing layer (oxygen absorbing adhesive) can be used as a packaging material, such as a lid ([0047-0053]).
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.
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.
Claims 8 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Sawa et al. (JP 2015009196A; cited on IDS; Machine Translation via EPO provided).
Regarding claims 8 and 9, Sawa et al. teaches all the limitations of claim 1 above, however, the reference does not explicitly recite the compounds for the oxygen absorbing compound of the oxygen absorbing layer (oxygen absorbing adhesive) listed in claims 8 and 9. Sawa et al. does teach that the oxygen absorbing layer (oxygen absorbing adhesive) is formed from an N-hydroxyimide group bound to an aliphatic ring having an aliphatic unsaturated bond (i.e. one or two or more unsaturated five member rings) ([0031-0041]), therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the N-hydroxyimide group bound to an aliphatic ring having an aliphatic unsaturated bond taught by Sawa et al. to be any of the compounds recited in claims 8 or 9 depending upon the specific properties desired for the resultant package, as one of ordinary skill in the art would be motivated to try multiple different N-hydroxyimide group bound to an aliphatic ring having an aliphatic unsaturated bond to achieve the desired properties and features of the resultant packaging.
Claims 12, 13 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Sawa et al. (JP 2015009196A; cited on IDS; Machine Translation via EPO provided) in view of Nakanishi et al. (US 2021/0260856).
Regarding claims 12, 13 and 14, Sawa et al. teaches all the limitations of claim 1 above, however, while the reference teaches that various compounds can be added to the oxygen absorbing layer (oxygen absorbing adhesive), the reference does not expressly teach that the oxygen absorbing layer (oxygen absorbing adhesive) comprises a modify that contains an isocyanate based compound like those recited by claim 13 and/or a hydroxyl group containing compound like those recited by claim 14.
Nakanishi et al. teaches a laminate and stand up pouch comprising a protection layer, barrier layer and heat sealing layer which improves bag falling resistance, with low oxygen permeability and excellent in oxygen barrier properties ([0011-0013, 0026]).
Nakanishi et al. teaches an adhesive layer when laminating two types of layers together, wherein a two component urethane based adhesive, a polyester urethane based adhesive, a polyether urethane based adhesive, an acrylic adhesive, a polyester based adhesive, a polyamide based adhesive, or an epoxy based adhesive are used ([0087-0090]). Nakanishi et al. teaches that the two component urethane based adhesive is preferred, which is composed polyester polyol (hydroxyl-group containing compound) and a polyfunctional polyisocyanate (isocyanate-based compound) such as diphenylmethane diisocyanate, hexamethylene diisocyanate, toluene diisocyanate or isophorone diisocyanate are used.
As both Sawa et al. and Nakanishi et al. are directed to packaging films, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the oxygen absorbing layer (oxygen absorbing adhesive) of Sawa et al. to include the resin taught by Nakanishi et al. of the two component urethane adhesive resin composed polyester polyol (hydroxyl-group containing compound) and a polyfunctional polyisocyanate as Nakanishi et al. teaches that the two component urethane based adhesive has excellent adhesive force which does not easily decrease due to the urethane bonding ([0087-0090]). Such a modification would enhance the adhesive properties of the oxygen absorbing layer (oxygen absorbing adhesive), thus increasing the strength of the overall packaging.
Claims 16, 17 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Sawa et al. (JP 2015009196A; cited on IDS; Machine Translation via EPO provided) in view of Saito et al. (JP 2020040321; cited on IDS; Machine Translation via EPO provided) .
Regarding claim 16, Sawa et al. teaches all the limitations of claim 1 above, however, the reference does not expressly teach that the polyethylene layer (sealant layer) is a plant derived polyolefin resin. Should the Applicant disagree with the interpretation of “plant based” being a product by process limitation in the rejections under 35 U.S.C. 102 above, the secondary reference to Saito et al. is used to teach this limitation.
Saito et al. teaches an oxygen absorbing laminate and packaging material, wherein the laminate is made from biomass raw material and exhibits excellent oxygen gas absorption properties, excellent lamination strength, prevents mold growth and quality deterioration ([0001, 0009-0010, 0012-0013]). Saito et al. teaches that the packaging laminate is made of biomass derived materials and has a layer structure which includes a base layer, an oxygen absorbing adhesive layer and a sealant layer, wherein using biomass derived materials significantly reduces the amount of fossil fuels compared to conventional materials, thus reducing the environmental burden ([0016, 0027- 0028]). Well known plant derived raw materials and resins used for the layers of the packaging material including polyethylene and PET, ([0031, 0034-0035]). Saito et al. teaches that for the sealant layer, the plant derived raw materials is preferably polyethylene based ([0097-0096]).
Both Sawa et al. and Saito et al. teach oxygen absorbing laminates and packaging made from the same, comprising a sealant layer of polyethylene, therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to modify the polyethylene sealant layer of Sawa et al. to be a plant derived polyethylene such as the sealant layer taught by Saito et al., as Saito et al. teaches that using biomass derived materials significantly reduces the amount of fossil fuels compared to conventional materials, thus reducing the environmental burden ([0016, 0027- 0028]).
Regarding claim 17, Sawa et al. teaches all the limitations of claim 1 above, however, the reference does not expressly teach that the PET layer (base layer) is a plant derived polyester resin. Should the Applicant disagree with the interpretation of “plant based” being a product by process limitation in the rejections under 35 U.S.C. 102 above, the secondary reference to Saito et al. is used to teach this limitation.
Saito et al. teaches an oxygen absorbing laminate and packaging material, wherein the laminate is made from biomass raw material and exhibits excellent oxygen gas absorption properties, excellent lamination strength, prevents mold growth and quality deterioration ([0001, 0009-0010, 0012-0013]). Saito et al. teaches that the packaging laminate is made of biomass derived materials and has a layer structure which includes a base layer, an oxygen absorbing adhesive layer and a sealant layer, wherein using biomass derived materials significantly reduces the amount of fossil fuels compared to conventional materials, thus reducing the environmental burden ([0016, 0027- 0028]). Well known plant derived raw materials and resins used for the layers of the packaging material including polyethylene and PET, ([0031, 0034-0035]). For the base layer, Saito et al. teaches a plant derived resin of PET ([0041-0048]).
Both Sawa et al. and Saito et al. teach oxygen absorbing laminates and packaging made from the same, comprising a base layer of PET, therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to modify the PET base layer of Sawa et al. to be a plant derived PET such as the base layer taught by Saito et al., as Saito et al. teaches that using biomass derived materials significantly reduces the amount of fossil fuels compared to conventional materials, thus reducing the environmental burden ([0016, 0027- 0028]).
Regarding claim 18, Sawa et al. in view of Saito et al. teaches all the limitations of claim 16 above. Saito et al. further teaches that well known plant derived raw materials and resins used for the layers of the packaging material including polyethylene and PET, wherein in an example the biomass derived carbon content in PET used in the invention is 20% ([0031, 0034-0035, 0039]).
Both Sawa et al. and Saito et al. teach oxygen absorbing laminates and packaging made from the same as described above, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the biomass content/ratio to be 20% as taught by Saito et al. to utilize the aforementioned benefits of plant derived products.
Conclusion
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LAURA POWERS
Examiner
Art Unit 1785
/LAURA C POWERS/Primary Examiner, Art Unit 1785
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