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 .
Notice of Transfer
The present application has been transferred to Examiner Atul P. Khare.
Response to Amendment
The amendment filed on 15 July 2026 is acknowledged.
Election/Restrictions
The election with traverse of Group I, claims 20-32 in the reply filed on 15 July 2026 is acknowledged. The traversal is on the ground(s) that the PET material added to the independent claims by amendment defines over the prior art and therefore constitutes a special technical feature among the identified invention groups (Rem. 9-10). It is noted, however, that use of PET in the manner claimed is believed to have been known at the time of the invention as set forth in greater detail under prior art rejections below. The requirement is still deemed proper and is therefore made final, leaving claims 33-36 and 38 withdrawn at this time from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking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.
Claim Objections
Claims 20-24 and 26-32 are objected to because of the following informalities:
At line 2 of claim 20, “comprising the steps” should be changed, for example either to “comprising steps of” or “comprising”.
This same change should also be made at lines 1-2 of each of claims 27-28.
After the comma ending the claim 20 shredding step, “and” should be added.
At lines 2-3 of the claim 20 step of incorporating, a term such as “said” or “the” should be added between “after” and “incorporation”.
At line 3 of the claim 20 step of incorporating, “new” should be added prior to “dairy”.
At line 4 of the second claim 27 wherein clause, “a” prior to “preform” should be changed to “the”.
In the 6th to last line of claim 27, “wherein” should be added prior to “in a final phase”.
Also in the 6th to last line of claim 27, “will be pushed to a preform mouth” should be changed to “is pushed to a mouth of the preform”.
After the comma ending the 4th to last line of claim 27-28, “and” should be added.
The comma after “wherein” in the 3rd to last line of claim 27 should be deleted.
The semi-colon in the 2nd to last line of claim 27-28 should be changed to a comma, after which the term “and” should be added.
Terms such as “of the preform” should be added to the end of claim 30.
Absent persuasive argument contesting these issues, appropriate correction by amendment is required.
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.
Claims 23, 26-28, 31, and 32 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention. In particular:
It is unclear how to construe the claim 23 recitation of no recyclate originating from a non-food application being “processed in the dairy bottle”, in particular whether the dairy bottle being referenced corresponds to one of the used dairy bottles or the new dairy bottle of claim 20, and also exactly what the recited processing entails and/or whether the claim intends merely to convey for example that the dairy bottle recyclate does not comprise recyclate originating from non-food applications (in which case a fully supported amendment should be made to this effect).
The claim 26 reference back to “the preforms” (plural) lacks antecedent basis due to only a single preform being recited previously in claim 20.
Since antecedent basis is not clearly conveyed, it is unclear whether the claim 26 line 3 recitation of “dairy bottle recyclate” in fact refers strictly to that first recited in claim 20 or may be construed as distinct at least in part therefrom.
Since antecedent basis is not clearly conveyed, it is unclear whether the claim 27-28 line 3 recitation of “a preform” in fact corresponds to that of claim 20 or may be construed as distinct therefrom.
The claim 27 recitation of first material being injected to provide an inner and outer side of a preform “during the consecutive injection” is confusing in that the claim previously states that the first material is “completely” injected “in a main phase” which takes prior to the consecutive phase. It is unclear how additional first material could be injected in the consecutive phase if a complete injection thereof has already taken place previously.
It is unclear how to construe the claim 27-28 recitation of “an area at a level of an injection opening”. This language is confusing.
As with indefiniteness issue (d), it is unclear to what extent the claim 27 reference to “a preform” at line 2 of the second wherein clause thereof coincides with that recited previously in this claim and that of claim 20.
Further to indefiniteness issue (g), it is unclear at line 3 of the second wherein clause of claim 27 whether injecting the second material “to provide a middle layer” in fact corresponds to injecting the second material “to form the middle layer” first recited in claim 20 (in other words to what extend the claim 27 middle layer coincides with that of claim 20).
It is unclear in the first claim 28 wherein clause exactly what the “inner and outer side” and “middle layer” are of. If these correspond to the claim 20 preform, then a fully supported amendment should be made to this effect.
It is unclear how to construe the claim 28 use of the terms “as appropriate” in the third wherein clause thereof, as no basis is established for determining exactly what constitutes “appropriate” in this regard.
The claim 28 recitation of second material being “further pushed” into a front portion of the injection mold lacks antecedent basis due to no pushing being recited previously.
Since antecedent basis is not clearly conveyed, it is unclear if or how any recitation of claim 31-32 corresponds to or further limits the method of claim 20. For example, while used and new dairy bottles are recited in claim 20, claim 31-32 only references “dairy bottles” and “new dairy bottles” in general as opposed to referring back to “the used” dairy bottles or “the” new dairy bottles.
Further, it is unclear how to construe the recitation of dairy bottles “of” and/or “from” a dairy bottle “filler”. This language is confusing.
Absent persuasive argument contesting these issues, appropriate correction by amendment is required.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 31-32 are rejected under 35 U.S.C. 112(d) as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. In particular:
As presently recited, claims 31-32 do not clearly further limit any step or component of claim 20.
Absent persuasive argument contesting these issues, appropriate correction by amendment is required.
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.
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 20, 21, 23, 24, 26, and 28-32 are rejected under 35 U.S.C. 103 as being unpatentable over Mamak et al. (US 2021/0316493) in view of Whitaker et al. (US 2020/0338789).
As to claim 20, Mamak teaches a method in which a middle layer of an injection molded preform is formed from pellets of mechanically recycled PET (see the abstract core inclusion of recycled thermoplastic, disclosed at least at [0099] and in Examples 1-7 and 9-12 as including recycled PET with mechanical recycling disclosed at least at [0037], see at least [0036] for said pellet (i.e. granule) form, and see [0109]-[0118] for injection molding), which middle layer is opaque and black, grey, or colored, with a light transmittance meeting or otherwise rendering obvious the claimed range (see the [0037], [0085], and/or Example 1-7 and 9-12 description and/or use of various colors, gray, and/or black, see the [0084] transmittance of less than or equal to 5%, see MPEP § 2131.03(II) regarding anticipation of ranges (as relevant to the disclosed transmittance), and see MPEP § 2144.05(I) regarding obviousness of encompassing ranges (as relevant to the disclosed transmittance)), said preform comprising inner and outer layers sandwiching the middle layer (abstract, fig. 2). Absent an amendment specifying some distinguishing structural or other feature, use of said preform for containing dairy is not believed to distinguish over the explicit [0054] disclosure of use for a liquid beverage or the various figure representations of a bottle otherwise suitable for and/or capable of containing dairy (see MPEP § 2111.02(II) regarding claim recitations of intended use, as relevant).
As to the claimed use of white for inner and outer preform layers, it is noted that Mamak discloses various colors for the inner and outer layers for example throughout the Example 1-7 and 9-12 embodiments (see the disclosed skin material among the tables representing these embodiments), with disclosure also being generally made of the color thereof being freely selectable as needed (see the final sentence of [0058]), and with disclosure further being made of such layers comprising one or more of numerous opacifiers known to impart a white color (see [0106] in addition to at least the first sentence of [0107]). In turn, it is believed that the claimed white color could be at-once-envisaged either by Mamak’s above general disclosure of colored skin (i.e. inner/outer) layers (due for example to the term “color” recognized explicitly at [0057] as including any color such as white) and/or by Mamak’s above disclosure of opacifiers that would produce this color (see MPEP § 2131.02(III), as relevant); alternatively, it is believed that the claimed white color could have been achieved by one of ordinary skill in the art either based on the impact this would have had for example on aesthetic design (as referenced above for example at [0058]) and/or transmittance (as referenced for example at [0083]) (see MPEP § 2144.04(I) as relevant), and/or through routine experimentation performable by one of ordinary skill in the art in accordance with MPEP § 21440.05(II) utilizing Mamak’s above disclosure as a guide.
Although some sort of shredding and/or granulation may be loosely implied by Mamak’s above-cited use of mechanical recycling, and/or may otherwise have been utilized by one or more of the companies (i.e. Evergreen Plastics, Eastman Chemical) from which Mamak sources the Example 1-7 and 9-12 materials, Mamak is not sufficiently specific in this regard such that such shredding can be fairly presumed as taking place. However, Whitaker teaches a related method also in which recycled material may be subjected to injection and/or blow molding (Whitaker title, [0007], and claims 31-32, 35, and 38), in addition to what may be characterized as a mechanical recycling process which includes one or more steps of shredding post-consumer recyclables (see at least fig. 1 and its corresponding description, including at least [0017], [0032], etc.). It would have been obvious for one of ordinary skill in the art to incorporate these teachings from Whitaker into Mamak either as providing an improvement to Mamak’s mechanical recycling which would have helped to prepare the recyclable material thereof into a more suitable condition for further processing such as by breaking up into a more manageable size via pre- and/or post-shredding, and/or as providing an art-recognized suitable, interchangeable, and/or improved technique for the mechanical recycling already disclosed by Mamak.
The claimed use of used plastic dairy bottles, or at least plastic bottles, is believed to result from Mamak’s above-cited sourcing of material in particular from Evergreen Plastics; as similarly stated above with respect to the claimed formation of new dairy bottles in particular, absent an amendment specifying some distinguishing structural or other feature, use of used plastic dairy bottles in particular is not believed to distinguish over the sourced plastic bottles which Evergreen Plastics, for example, would have utilized, regardless of whether or not such plastic bottles in fact contained any dairy. In the alternative that it is ultimately determined that the claimed use of recycled plastic dairy bottles in fact distinguishes over Mamak in this regard, then Whitaker is recognized also for providing an explicit disclosure of plastic milk containers (and other plastic bottles otherwise suitable for containing dairy) being one of a wide range of post-consumer articles suitable for recycling (Whitaker [0008], etc.). It would have been obvious for one of ordinary skill in the art to incorporate these teachings from Whitaker into Mamak as providing motivation to utilize dairy containers (i.e. bottles), or at least plastic bottles otherwise suitable for containing dairy, among a wide range of post-consumer articles likewise suitable for recycling, either as a suitable alternative post-consumer material for those explicitly mentioned by Mamak for example at [0003] (which are also mentioned by Whitaker at [0015], etc.), or in addition to the post-consumer material which is utilized by Mamak as provided either explicitly, or implicitly through Mamak’s sourcing via Evergreen Plastics.
Mamak further teaches the claim 21 use of colored dairy bottle recyclate (see at least the above citations), and Makak alone or in combination with Whitaker is believed to teach or render obvious the claim 24 use and formation of milk bottles (again absent an amendment specifying some distinguishing structural or other feature). Mamak further teaches the claim 26 blowing (see at least the abstract), the claim 29 coloring (abstract, etc.), a thickness ratio meeting that of claim 30 ([0096], etc.), and is believed to provide the claim 31-32 filler as best understood at this time in view of 35 U.S.C. § 112 issues set forth above (see at least the above citations in addition to the remainder of Mamak as relevant). Mamak additionally teaches the claim 28 parallel injection molding of a preform within a mold by injecting a first polyester material and a second opaque colored material respectively corresponding to inner/outer/skin and middle/core materials as set forth for example at least at [0110]-[0113], with use of predetermined amounts believed to be met for example by the above selection of a given ratio of core/skin materials in the resulting article, with both materials pushing into a front portion of the injection mold (which may be presently construed either as the point at which the material enters the mold or as a region thereof along the length of the preform), and using an opaque colored plastic, whereby the claimed preliminary and final phases can be defined arbitrarily during the co-injection process.
While Mamak does not specify the claim 23 sourcing strictly from food applications, it is noted that Whitaker as set forth above, and/or under [0008]-[0009] discloses food articles being a potential source of recyclable material, with it being stated also at [0009] that certain non-food articles may contain toxic or undesired materials such as radioactive, hazardous, or sewage waste, etc. Selection of recyclate originating strictly from food applications, as claimed, is not believed to distinguish over Whitaker in this regard, in particular since one of ordinary skill in the art would have found it obvious in view of Whitaker’s teachings above to utilize only such articles so as to preclude such radioactive, hazardous, or sewage wastes from negatively impacting the resulting article ability to be utilized for containing a liquid beverage, which in turn might have additionally helped to simplify the recycling process be eliminating additional cleaning that might otherwise be necessary. See also MPEP § 2144.05(II) regarding routine optimization as relevant in this regard.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Mamak in view of Whitaker as applied above, or in the alternative over this combination of references and further in view of Lepage (US 2007/0063394, made of record via IDS).
The claim 22 range is believed to be obvious over Mamak’s above-cited [0084] teaching of less than or equal to 5% total luminous transmittance (see MPEP § 2144.05(I) regarding obviousness of encompassing ranges). Alternatively in the event that it is ultimately determined that the claimed transmittance is small enough to be considered beyond what could be fairly construed as obvious in this regard, then it is noted that Mamak further provides motivation to reach such transmittance through routine experimentation performable in accordance with MPEP § 2144.05(II) utilizing opacifiers as disclosed for example at [0107]-[0108], including for example to achieve a desired aesthetic effect (see MPEP § 2144.04(I), in addition to Mamak’s disclosure as a whole regarding unique visual effects in this regard), to achieve the 0% (or less than 0%) transmittance otherwise disclosed for the article as a whole, and/or otherwise to protect and/or conceal the contents of the resulting article. In the further alternative that it is ultimately determined that the claimed transmittance is still far lower than what could have been achieved by one of ordinary skill in the art in this regard utilizing Mamak’s disclosure alone, then Lepage is recognized for similarly disclosing use of the [0059] recycled material for injection and/or blow molding into bottles which are in particular suitable for storing milk (abstract), and likewise utilizing PET material comprising the same or similar opacifier(s) utilized by Mamak as set forth under the rejection of claim 20 above (see Lepage at [0093] and in the Example embodiments for PET in addition to at least the abstract for titanium dioxide filler/opacifier), whereby a light transmission falling into the claimed range is believed to be disclosed (see at least [0026] and [0145]) or would otherwise have been achievable via routine experimentation performable in accordance with MPEP § 2144.05(II) utilizing Lepage’s [0028] disclosure with respect to filler nature and concentration in addition to wall/layer thickness. It would have been obvious for one of ordinary skill in the art to incorporate these teachings from Lepage into modified Mamak as providing a potential improvement to Mamak’s core layer and/or furtherance of Mamak’s [0083] provision of article transmittance of as low as 0% or less, whereby an even lower transmittance may be provided by use either of the opacifier(s) already disclosed thereby or by an alternative and/or additional opacifier/filler as disclosed by Lepage, thereby potentially improving or increasing industrial applicability of Mamak’s resulting article for storing and shielding light-sensitive contents such as milk and other dairy.
Claim 27 is rejected under 35 U.S.C. 103 as being unpatentable over Mamak in view of Whitaker as applied above, and further in view of either Dierickx et al. (WO 2013/000044), Nahill et al. (US 8,118,581), or Maruyama et al. (US 6,344,249).
Mamak teaches co-injection of parallel streams as set forth under the rejection of claim 27 above, the entirety of which is incorporated herein as relevant. Mamak differs from claim 27 by way of the above co-injection as opposed to the claimed injection of second/core/middle layer material in a consecutive injection separate at least in part from injection of first/inner/outer/skin layer material. However, consecutive injection is otherwise known for example in Dierickx (figs. 2-3), Nahill (figs. 7A-D), and Maruyama (figs. 8-10). It would have been obvious for one of ordinary skill in the art to incorporate these teachings from either Dierickx, Nahill, or Maruyama into modified Mamak as providing an art-recognized interchangeable injection molding technique suitable for manufacturing the 3-layer preform thereof, and/or as otherwise providing motivation to select a different sequence of injecting the different inner/outer/skin and middle/core materials capable again of forming the same or similar resulting preform structure (see also MPEP § 2144.04(IV)(C) regarding obvious rearrangement of prior art process steps in this regard, as relevant).
Related Prior Art
See at least the abstract and figures of the additional prior art hereby made of record, which additional prior art is considered pertinent to Applicant’s disclosure and may be relied upon in subsequent rejections against claimed subject matter. Note, for example:
US 5,040,963, EP 0655306, EP 0887170, and US 6,548,133, each recognized for the depicted injection molding technique thereof and the disclosed use of recycled PET such as for a middle layer of the preform thereof;
US 5,712,009, recognized for the disclosed use of post-consumer resin containing primarily plastic used for packaging milk;
US 6,117,506, recognized for disclosure of using recycled material, in addition to provision of white inner and outer layers for providing a bright, clean appearance to a resulting article, with a middle/intermediate layer provided for blocking light so as to protect the contents thereof from degradation by light.
The manner in which such prior art might apply to the claimed and/or disclosed invention should be considered prior to a formal response being filed to this Office action.
Interview Request
Applicant’s Representative is encouraged to contact the Examiner directly should there be any questions or outstanding issues arising from the instant Office action, particularly if it is believed that a discussion will help to advance prosecution.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Atul P. Khare whose telephone number is (571)270-7608. The examiner can normally be reached Monday-Friday 9am-6pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Christina A. Johnson can be reached at (571) 272-1176. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Atul P. Khare/Primary Examiner, Art Unit 1742
Prosecution Insights