DETAILED ACTION
Product by Process
Please note, claims below include product by process language. The below arguments establish a rationale tending to show the claimed product is the same as what is taught by the prior art. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” Once the Examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious different between the claimed product and the prior art product. MPEP 2113.
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)(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.
Claim(s) 16-32 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Schneider et al (WO 2012049195 A1).
Claim 16, Schneider discloses at least three polymer layer arrangements each with at least one polymer layer (28 or 128), where exactly one polymer layer arrangement as a carrier structure (claim 6) is a prefabricated film, where a first side of the prefabricated film carries an outer polymer layer (24 or 124) arrangement forming an outside of the tube laminate and where a second side of the prefabricated film which is opposite to the first side carries an inner polymer layer arrangement (26 or 126) forming an inside of the tube laminate, where the outer and the inner polymer layer arrangement are polymer layer arrangements applied in the flowable state (Page 12, line 24-27), where the tube laminate does not exhibit a further prefabricated film other than the carrier structure.
Claim 17, Schneider discloses wherein the tube laminate exhibits a total thickness of between 110 µm and 350 µm (Page 8, lines 14-20), including the region boundaries.
Claim 18, Schneider discloses wherein the carrier structure exhibits a thickness of between 30 µm and 200 µm (Page 8, lines 14-20), including the region boundaries.
Claim 19, Schneider discloses wherein the carrier structure exhibits a thickness of between 30 µm and 200 µm (Page 8, lines 14-20), including the region boundaries.
Claim 20, Schneider discloses wherein the prefabricated film is a blown film or a cast film (Col 9, lines 11-16).
Claim 21, Schneider discloses wherein the prefabricated film is multilayer (28, 128; Claim 6).
Claim 22, Schneider discloses wherein the prefabricated film as a barrier layer arrangement exhibits a metallization (Page 6, lines 1-14) and/or a ceramic layer and/or a layer based on a vinyl alcohol and/or a polymer layer filled with at least partly ceramic particles.
Claim 23, Schneider discloses wherein the inner and the outer polymer layer arrangement each exhibit a thickness in the range of between 15 µm and 130 µm (Page 8, lines 14-20), including the region boundaries.
Claim 24, Schneider discloses wherein the outer polymer layer arrangement exhibits the same thickness as or a greater thickness than the inner polymer layer arrangement (FIG 2-3; Page 2, lines 11-20; Page 8, lines 14-20).
Claim 25, Schneider discloses wherein the inner and the outer polymer layer arrangement each exhibits a polymer with a melt flow index in the range between 3.0 g/10 min to 8.0 g/10 min, including the region boundaries, measured in accordance with DIN EN ISO 1133 at a test temperature of 190 C and with a test load of 2.16 kg, or are completely made from one or several polymers with a melt flow index in this range (Page 4, lines 1-9; Page 7, lines 11-15).
Claim 26, Schneider discloses wherein the melt flow index of the inner and the outer polymer layer arrangement is each greater than the melt flow index of the prefabricated film, measured in accordance with DIN EN ISO 1133 at a test temperature of 190 C and with a test load of 2.16 kg (Page 4, lines 1-9; Page 7, lines 11-15).
Claim 27, Schneider discloses wherein at least one polymer layer arrangement out of the inner and the outer polymer layer arrangement is made predominantly or at least to 90% by weight from one or several polymers based on the same monomer (Col 10, lines 16-23).
Claim 28, Schneider discloses wherein between the carrier structure and at least one polymer layer arrangement out of the inner and the outer polymer layer arrangement there is applied a primer layer (Page 11, line 23 to Page 12, line 4).
Claim 29, Schneider discloses wherein the primer layer is made from a water-based dispersion (Page 11, line 23 to Page 12, line 4).
Claim 30, Schneider discloses wherein at least one polymer layer arrangement out of the inner and the outer polymer layer arrangement provides an exposed sealable surface (Page 4, lines 1-8) and/or that the outer polymer layer arrangement provides an exposed printable surface.
Claim 31, Schneider discloses a tube body (12; FIG 1) and a tube shoulder (14; FIG 1), where the tube shoulder comprises a removal aperture for removal from the tube body of filling material packaged in the tube container, where the tube body encircling the tube longitudinal axis in a closed manner is bonded at its axial longitudinal end lying nearer to the tube shoulder with the tube shoulder and where the tube body at its axial longitudinal end lying remotely from the tube shoulder is closed off through a sealing seam (20; FIG 1).
Claim 32, Schneider discloses: - providing a polymer layer arrangement in the form of a prefabricated film as a carrier structure, - applying an outer polymer layer arrangement in the flowable state on a first side of the carrier structure and thereby forming an exposed outside of the tube laminate, and - applying an inner polymer layer arrangement in the flowable state on a second side of the carrier structure which is opposite to the first and thereby forming an exposed inside of the tube laminate (28 or 128; 24 or 124; 26 or 126; Page 12, line 24-27).
In regard to method claim above, the Schneider does not explicitly disclose the method. However, the combination does teach or disclose all of the structural limitations of the claimed invention and is therefore capable of inherently performing the method set forth in these claims. Under the principles of inherency, if a prior art device, in its normal and usual operation, would necessarily perform the method claimed, then the method claimed will be considered to be anticipated by the prior art device. See MPEP § 2112.02.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEREMY W CARROLL whose telephone number is (571)272-4988. The examiner can normally be reached M-F 8 AM - 5 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Paul Durand can be reached at (571) 272-4459. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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JEREMY W. CARROLL
Primary Examiner
Art Unit 3754
/Jeremy Carroll/Primary Examiner, Art Unit 3754