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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-6, in the reply filed on 2/17/2026 is acknowledged.
Claims 7-8 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 2/17/2026.
Claim Rejections - 35 USC § 112
Claims 3 and 6 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.
Claims 3 and 6 each recite a polymer that is “a main component.” The claims are indefinite because it is not clear what is required for a component to be a “main” one. In particular, it’s not clear if it is determined by weight, volume, etc. or if the component must be in the majority, plurality, etc.
Claim Rejections - 35 USC § 103
Claim(s) 1 and 3-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tai et al. (US 2002/0037379).
Regarding claims 1 and 4:
Tai discloses co-injected stretch blow molded container comprising (A) a layer of thermoplastic polyester and (B) a layer of ethylene-vinyl alcohol copolymer (EVOH) [abstract; 0002; 0010-0020]. The container is stretched monoaxially [0126].
The EVOH has an ethylene content of 25-48 mol% [0012-0015; 0089]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Using differential scanning calorimetry (DSC), the EVOH has a single peak for crystal fusion (i.e., contains a single ethylene unit content) to provide improved transparency and delamination resistance [0012-0015; 0114]. (See [0023] of the present specification for further description of “A single ethylene unit content”.)
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to use an EVOH having a single ethylene unit content within the presently claimed range to provide a container having suitable transparency and delamination resistance as taught by the reference, and thereby arrive at the claimed invention.
Regarding claim 3:
Tai teaches the layer comprises EVOH with small amounts of non-resin components (i.e., EVOH is a main component) [0107-0112; 0193].
Regarding claim 5:
Tai teaches a polyester layer (A) is provided on each surface of the EVOH layer (B) [0012; 0195]. Additionally, five-layered containers comprising PES/EVOH/PES/EVOH/PES are provided [0120]. The ester groups at the surface of the interface form strong adhesive bonds [0139]. In view of this strong bonding, the additional polyester layer is considered to be the presently claimed further adhesive layer.
Regarding claim 6:
Tai’s containers do not require a layer of polyamide as a main component.
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tai et al. (US 2002/0037379) in view of Furukawa et al. (US 2010/0055482).
Regarding claim 2:
Tai discloses co-injected stretch blow molded container as previously explained.
Tai is silent with regard to the stretching ratio.
Stretching ratios within the claimed range were known to utility in the art. For example, Furukawa discloses a multilayer structure comprising EVOH [abstract; 0001; 0007]. The multilayer structure is uniaxially stretched, preferably in a ratio of 5 times or more to provide improved physical properties [0071-0074]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to vary the stretching ratio, including over values falling within the claimed range, to provide improved physical properties as desired for a given end use.
Claim(s) 1 and 3-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Senoo (JP 2016-007754).
Note: citations refer to the machine translation of JP ‘754 filed by Applicant on 8/2/2024.
Regarding claim 1:
Senoo discloses a multilayer structure comprising a cycloolefin-based resin layer (γ), an acid-modified olefin-based elastomer layer (β), and at least one surface of a saponified ethylene-vinyl ester copolymer (EVOH) layer (α) [abstract; 0001; 0010]. The structure is uniaxially stretched [0130].
Senoo teaches the EVOH has an ethylene content of 20-60 mol, preferably 25-38 mol% to provide the desired gas barrier and melt moldability properties [0046]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Although Senoo teaches a mixture of two EVOHs with different ethylene contents may be used, this is not required [0049]. In examples, a single EVOH is used [0136].
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to use an EVOH having a single ethylene unit content within the presently claimed range to provide a container having suitable gas barrier and melt moldability as taught by the reference, and thereby arrive at the claimed invention.
Regarding claim 3:
Senoo teaches the layer (α) comprises 50-99% by weight EVOH (i.e., a main component) [0059].
Regarding claim 4:
Senoo teaches the acid-modified olefin-based elastomer is thermoplastic [0093]. Cyclic olefins are additionally intrinsically thermoplastic. Furthermore, layers of additional thermoplastics can be used [0118-0119].
Regarding claim 5:
Senoo teaches the acid-modified olefin-based elastomer layer (β) is an adhesive layer [0093]. Additional adhesive layers can be used [0120-0123].
Regarding claim 6:
Senoo’s structures do not require a layer of polyamide as a main component.
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Senoo (JP 2016-007754) in view of Furukawa et al. (US 2010/0055482).
Regarding claim 2:
Senoo discloses a multilayer structure as previously explained.
Senoo teaches the is silent with regard to the stretching ratio.
Stretching ratios within the claimed range were known to utility in the art. For example, Furukawa discloses a multilayer structure comprising EVOH [abstract; 0001; 0007]. The multilayer structure is uniaxially stretched, preferably in a ratio of 5 times or more to provide improved physical properties [0071-0074]. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Before the effective filing date of the claimed invention, it would have been obvious to one of ordinary skill in the art to vary the stretching ratio, including over values falling within the claimed range, to provide improved physical properties as desired for a given end use.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN D FREEMAN whose telephone number is (571)270-3469. The examiner can normally be reached Monday-Friday 11-8PM EST.
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/JOHN D FREEMAN/Primary Examiner, Art Unit 1787
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