Claims 1-5, and 7-10 are currently pending with claim 6 being cancelled. Claims 1-5, and 7-10 are rejected.
The rejection over Narishima has been withdrawn in view of the present amendment and response. Narishima fails to teach a foam sheet comprising a polyolefin resin composed of a polyethylene resin and an ethylene-vinyl acetate copolymer with a mass ratio of 90:10 to 40:60.
The rejection over Matsumoto has been modified in view of the present amendment and response.
The rejection over Ishida has been withdrawn in view of the present amendment and response. Ishida discloses a crosslinked polyolefin resin foam sheet having an average cell size in the machine direction (MD), and an average cell size in the transverse direction (TD) of 150-500 microns (paragraph 24). The crosslinked polyolefin resin foam sheet also has an average cell size in the thickness direction of 10-20 microns (paragraph 25). Thus, the oblateness of MD and the oblateness of TD are greater than 5. Ishida fails to teach one oblateness of the oblateness of MD and the oblateness of TD is less than 5.
Specification
The amendments to the specification filed on 07/27/2026 have been entered because the permanent strain of the foam sheet of 15% or more is fully supported by original claim 1.
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 1-5, and 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2017171063 to Matsumoto et al. (hereinafter “Matsumoto”).
Matsumoto discloses a crosslinked polyolefin resin foam sheet comprising a linear low density polyethylene, and other polyolefin resin wherein the content of other polyolefin resin is 40% by mass or less and wherein the other polyolefin resin comprises ethylene vinyl acetate copolymer (Other polyolefin resins). The mass ratio between the polyethylene and the ethylene vinyl acetate copolymer overlaps the claimed range.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the crosslinked polyolefin foam comprising a linear low density polyethylene and an ethylene vinyl acetate copolymer with a mass ratio in the range instantly claimed, motivated by the desire to provide a foam material with excellent impact resistance and interlaminar strength as well as sufficient mechanical strength.
The crosslinked polyolefin resin foam sheet comprises an average cell diameter of MD and TD is 5 to 120 microns (Closed cells), and an average cell diameter of ZD is 5 microns or more. This would give the oblateness of MD and TD overlapping the claimed ranges.
In the case, where the claimed ranges overlap or touch the range disclosed by the prior art a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257,191 USPQ90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997).
The claim is not rendered unobvious because discovering the optimum or workable ranges involves only routine skill in the art. Difference in the oblateness of MD and the oblateness of TD will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating that the oblateness of MD and the oblateness of TD are critical or provide unexpected results.
Therefore, in the absence of unexpected results, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the oblateness of MD of 5 or greater, and the oblateness of TD of less than 5 or vice versa, motivated by the desire to a foam material with excellent impact resistance and interlaminar strength as well as sufficient mechanical strength.
This is in line with In re Aller, 105 USPQ 233 which holds discovering the optimum or workable ranges involves only routine skill in the art.
The crosslinked polyolefin resin foam sheet comprises a 25% compressive strength of 400 to 2000 kPa (25% compressive strength); a closed cell ratio of 90% or more (closed cells); a gel fraction of 35 to 70% (degree of crosslinking); an interlaminar strength of 5.0 to 5.5 MPa (table 1); and a thickness of 0.07 to 0.15 mm (thickness).
Matsumoto does not explicitly disclose the foam sheet having a permanent strain of 15% or more, wherein the permanent strain occurs as a result of compressing the foam sheet for a minute by stress of 1.2 MPa per 100 mm2.
However, the foam sheet of Matsumoto meets all structural limitations and chemistry required by the claims. The crosslinked polyolefin resin foam sheet comprises a linear low density polyethylene, and other polyolefin resin wherein the content of the other polyolefin resin is 40% by mass or less, and wherein the other polyolefin resin comprises ethylene vinyl acetate copolymer (Other polyolefin resins). The mass ratio between the polyethylene and the ethylene vinyl acetate copolymer overlaps the claimed range.
The crosslinked polyolefin resin foam sheet comprises an average cell diameter of MD and TD is 5 to 120 microns (Closed cells), and an average cell diameter of ZD is 5 microns or more. This would give the oblateness of MD and TD of a cell overlapping the claimed ranges.
The crosslinked polyolefin resin foam sheet exhibits a 25% compressive strength of 400 to 2000 kPa (25% compressive strength); a foaming ratio of 1.3 to 2.3 cm3/g (foaming ratio); a closed cell ratio of 90% or more (closed cells); a gel fraction of 35 to 70% (degree of crosslinking); an interlaminar strength of 5.0 to 5.5 MPa (table 1); and a thickness of 0.07 to 0.15 mm (thickness).
Therefore, the examiner takes the position that the permanent strain of 15% or more would inherently be present as like material has like property. This is in line with In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) which holds that if the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, the claimed properties or functions will be presumed to be inherent. The burden is shifted to the applicant to show unobvious differences between the claimed product and the prior art product.
As to claim 2, Matsumoto discloses that the foam sheet has a 25% compressive strength of 400 to 2000 kPa (25% compressive strength). This overlaps the claimed range.
In the case, where the claimed ranges overlap or touch the range disclosed by the prior art a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257,191 USPQ90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997).
The claim is not rendered unobvious because discovering the optimum or workable ranges involves only routine skill in the art. Difference in the 25% compressive strength will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating that the 25% compressive strength is critical or provides unexpected results.
Therefore, in the absence of unexpected results, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the 25% compressive strength in the range instantly claimed, motivated by the desire to obtain a good balance between the cushioning properties and impact absorption performance. This is in line with In re Aller, 105 USPQ 233 which holds discovering the optimum or workable ranges involves only routine skill in the art.
As to claim 3, Matsumoto discloses that a crosslinked polyolefin resin foam sheet has an interlaminar strength of 5.0 to 5.5 MPa (table 1).
As to claim 4, Matsumoto discloses that a crosslinked polyolefin resin foam sheet has a closed cell ratio of 90% or more (closed cells).
As to claim 5, Matsumoto discloses that a crosslinked polyolefin resin foam sheet has a gel fraction of 35 to 70% (degree of crosslinking).
As to claim 8, Matsumoto discloses that the foam sheet has a thickness of 0.07 to 0.15 mm (thickness).
As to claim 9, Matsumoto discloses that the foam sheet has an average cell diameter of 50 microns given the average cell diameters in the MD and the TD of 42 microns and 58 microns, respectively (table 1, example 2). This is within the claimed range. (42+58)/2 =50.
As to claim 10, Matsumoto discloses that a pressure-sensitive adhesive tape comprises the crosslinked polyolefin resin foam sheet, and a pressure-sensitive adhesive layer provided on at least one surface of the foam sheet (impact resistance).
Claims 1-5, and 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2017171063 to Matsumoto et al. (hereinafter “Matsumoto”) in view of EP 2 000 500 to Kanae et al. (hereinafter “Kanae”).
Matsumoto discloses a crosslinked polyolefin resin foam sheet comprising a linear low density polyethylene and other polyolefin resin wherein the content of other polyolefin resin is 40% by mass or less and wherein the other polyolefin resin comprises ethylene vinyl acetate copolymer (Other polyolefin resins). The mass ratio between the polyethylene and the ethylene vinyl acetate copolymer overlaps the claimed range.
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the crosslinked polyolefin foam comprising a linear low density polyethylene and an ethylene vinyl acetate copolymer with a mass ratio in the range instantly claimed, motivated by the desire to provide a foam material with excellent impact resistance and interlaminar strength as well as sufficient mechanical strength.
The crosslinked polyolefin resin foam sheet comprises an average cell diameter of MD and TD is 5 to 120 microns (Closed cells), and an average cell diameter of ZD is 5 microns or more. This would give the oblateness of MD and the oblateness of TD overlapping the claimed ranges.
In the case, where the claimed ranges overlap or touch the range disclosed by the prior art a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257,191 USPQ90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997).
The claim is not rendered unobvious because discovering the optimum or workable ranges involves only routine skill in the art. Difference in the oblateness of MD and the oblateness of TD will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating that the oblateness of MD and the oblateness of TD are critical or provide unexpected results.
Therefore, in the absence of unexpected results, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the oblateness of MD of 5 or greater, and the oblateness of TD of less than 5 or vice versa, motivated by the desire to a foam material with excellent impact resistance and interlaminar strength as well as sufficient mechanical strength.
This is in line with In re Aller, 105 USPQ 233 which holds discovering the optimum or workable ranges involves only routine skill in the art.
Matsumoto teaches that the crosslinked polyolefin resin foam sheet comprises a 25% compressive strength of 400 to 2000 kPa (25% compressive strength); a closed cell ratio of 90% or more (closed cells); a gel fraction of 35 to 70% (degree of crosslinking); an interlaminar strength of 5.0 to 5.5 MPa (table 1); and a thickness of 0.07 to 0.15 mm (thickness).
Matsumoto does not explicitly disclose the foam sheet having a permanent strain of 15% or more, wherein the permanent strain occurs as a result of compressing the foam sheet for a minute by stress of 1.2 MPa per 100 mm2.
Kanae, however, discloses a crosslinked polyolefin foam which is excellent in flexibility, cushioning property and processability. The crosslinked polyolefin foam has a density of 0.2 g/cc or less (abstract). The crosslinked polyolefin foam has a 50% compression permanent strain recovery strain recovery of 20-35% (table 1).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the crosslinked polyolefin foam disclosed in Matsumoto having a 50% compression permanent strain recovery strain recovery of 20-35% disclosed in Kanae, motivated by the desire to provide excellent shape recovering property while maintaining great flexibility and cushioning property.
As to claim 2, Matsumoto discloses that the foam sheet has a 25% compressive strength of 400 to 2000 kPa (25% compressive strength). This overlaps the claimed range.
In the case, where the claimed ranges overlap or touch the range disclosed by the prior art a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257,191 USPQ90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997).
The claim is not rendered unobvious because discovering the optimum or workable ranges involves only routine skill in the art. Difference in the 25% compressive strength will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating that the 25% compressive strength is critical or provides unexpected results.
Therefore, in the absence of unexpected results, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the 25% compressive strength in the range instantly claimed, motivated by the desire to obtain a good balance between the cushioning properties and impact absorption performance. This is in line with In re Aller, 105 USPQ 233 which holds discovering the optimum or workable ranges involves only routine skill in the art.
As to claim 3, Matsumoto discloses that a crosslinked polyolefin resin foam sheet has an interlaminar strength of 5.0 to 5.5 MPa (table 1).
As to claim 4, Matsumoto discloses that a crosslinked polyolefin resin foam sheet has a closed cell ratio of 90% or more (closed cells).
As to claim 5, Matsumoto discloses that a crosslinked polyolefin resin foam sheet has a gel fraction of 35 to 70% (degree of crosslinking).
As to claim 8, Matsumoto discloses that the foam sheet has a thickness of 0.07 to 0.15 mm (thickness).
As to claim 9, Matsumoto discloses that the foam sheet has an average cell diameter of 50 microns given the average cell diameters in the MD and the TD of 42 microns and 58 microns, respectively (table 1, example 2). This is within the claimed range. (42+58)/2 =50.
As to claim 10, Matsumoto discloses that a pressure-sensitive adhesive tape comprises the crosslinked polyolefin resin foam sheet, and a pressure-sensitive adhesive layer provided on at least one surface of the foam sheet (impact resistance).
Response to Arguments
Applicant alleges that Matsumoto does not teach a foam sheet comprising a polyethylene resin and an ethylene vinyl acetate copolymer with a mass ratio of 90:10 to 40:60, and there is no teaching or suggestion that one oblateness of an oblateness of MD and an oblateness of TD of a cell is 5 or more, and the other of less than 5.
The examiner respectfully disagrees.
Matsumoto discloses a crosslinked polyolefin resin foam sheet comprising a linear low density polyethylene, and other polyolefin resin wherein the content of other polyolefin resin is 40% by mass or less and wherein the other polyolefin resin comprises ethylene vinyl acetate copolymer (Other polyolefin resins). The mass ratio between the polyethylene and the ethylene vinyl acetate copolymer overlaps the claimed range.
In the case, where the claimed ranges overlap or touch the range disclosed by the prior art a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257,191 USPQ90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997).
The claim is not rendered unobvious because discovering the optimum or workable ranges involves only routine skill in the art. Difference in the mass ratio between the polyethylene and the ethylene vinyl acetate copolymer will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating that the mass ratio between the polyethylene and the ethylene vinyl acetate copolymer is critical or provides unexpected results.
As previously discussed, the crosslinked polyolefin resin foam sheet of Matsumoto comprises an average cell diameter of MD and TD is 5 to 120 microns (Closed cells), and an average cell diameter of ZD is 5 microns or more. This would give the oblateness of MD and TD of a cell overlapping the claimed ranges.
In the case, where the claimed ranges overlap or touch the range disclosed by the prior art a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257,191 USPQ90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997).
The claim is not rendered unobvious because discovering the optimum or workable ranges involves only routine skill in the art. Difference in the oblateness of MD and TD of a cell will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating that the oblateness of MD of 5 or greater and the oblateness of TD of less than 5 or vice versa is critical or provides unexpected results.
Matsumoto does not explicitly disclose the foam sheet having a permanent strain of 15% or more, wherein the permanent strain occurs as a result of compressing the foam sheet for a minute by stress of 1.2 MPa per 100 mm2.
However, the foam sheet of Matsumoto meets all structural limitations and chemistry required by the claims. The crosslinked polyolefin resin foam sheet comprises a linear low density polyethylene, and other polyolefin resin wherein the content of the other polyolefin resin is 40% by mass or less, and wherein the other polyolefin resin comprises ethylene vinyl acetate copolymer (Other polyolefin resins). The mass ratio between the polyethylene and the ethylene vinyl acetate copolymer overlaps the claimed range.
The crosslinked polyolefin resin foam sheet comprises an average cell diameter of MD and TD is 5 to 120 microns (Closed cells), and an average cell diameter of ZD is 5 microns or more. This would give the oblateness of MD and the oblateness of TD overlapping the claimed ranges.
The crosslinked polyolefin resin foam sheet exhibits a 25% compressive strength of 400 to 2000 kPa (25% compressive strength); a foaming ratio of 1.3 to 2.3 cm3/g (foaming ratio); a closed cell ratio of 90% or more (closed cells); a gel fraction of 35 to 70% (degree of crosslinking); an interlaminar strength of 5.0 to 5.5 MPa (table 1); and a thickness of 0.07 to 0.15 mm (thickness).
Therefore, the examiner takes the position that the permanent strain of 15% or more would inherently be present as like material has like property. This is in line with In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) which holds that if the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, the claimed properties or functions will be presumed to be inherent. The burden is shifted to the applicant to show unobvious differences between the claimed product and the prior art product.
Alternatively, Kanae will be relied upon the disclosure of a crosslinked polyolefin foam which is excellent in flexibility, cushioning property and processability. The crosslinked polyolefin foam has a density of 0.2 g/cc or less (abstract). The crosslinked polyolefin foam has a 50% compression permanent strain recovery strain recovery of 20-35% (table 1).
As there is a motivation to combine the teachings of Kanae and Masumoto, a prima facie case of obviousness is said to exist.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Hai Vo whose telephone number is (571)272-1485. The examiner can normally be reached M-F: 9:00 am - 6:00 pm with every other Friday off.
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/Hai Vo/
Primary Examiner
Art Unit 1788
Prosecution Insights