DETAILED ACTION
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 1-13 and 16-18) in the reply filed on 06/11/2026 is acknowledged.
Claims 14 and 15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 06/11/2026.
Response to Amendment
Applicant’s amendment filed on 06/11/2026 is acknowledged. In light of amendments, new grounds of rejection are set forth below. Claims 1-13 and 16-18 are examined on the merits in this office action.
Information Disclosure Statement
Information Disclosure Statement (IDS) submitted on 06/11/2026 is considered and signed IDS form is attached.
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.
Claim 8 is 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.
Claim 8 recites “EXE” and “EXX”. It is not clear what is meant or considered as “E”. Further, in equation (I) it is not clear what EXE, EXX, or XXX represent or how they are measured. Additionally, it is unclear how the amount of isolated 1-butene comonomer unit is measured, i.e. > 95 mol%, > 95 wt.%, etc. Also, it is not clear what is meant by “C6 (of (B) in wt,-%)”. Does this refer to the amount of 1-hexene monomer in the ethylene-1-hexene polymer of component (B)?
Claim Rejections - 35 USC § 103
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 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 1-4, 6-8, 10-13, 16 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Jamieson et al. (WO 2019/081611 A1) in view of Prime Polymer (Evolue SP0510, 2017, cited in IDS) and Niederuss et al. (WO 2016/135213 A1 cited in IDS), taken in view of evidence by Antensteiner et al. (WO 2023/244901 A1 cited in IDS).
Regarding claims 1, 2 and 6, Jamieson et al. disclose a multilayer film (non-oriented polyethylene-based film) comprising an outer layer A (sealing layer), a core layer B (core layer) and an outer layer C (skin layer), wherein layer A is always a sealing layer and an outermost layer (see Abstract, page 5, lines 1-5 and page 25, lines 28-29). The multilayer film is not oriented (see page 28, lines 19-21).
The layer A (sealing layer) and the layer C (skin layer) comprises a multimodal polyethylene (see page 5, lines 11-13). The layer B (core layer) comprises multimodal ethylene copolymer (see page 10, lines 22-26). Given that the multilayer film comprises each of the layer A (sealing layer), the layer B (core layer) and the layer C (skin layer) containing polyethylene and given that the multilayer is not oriented, the multilayer film is non-oriented polyethylene-based film (NOPEF).
The layer A (sealing layer) consists of 100 wt% of the multimodal polyethylene (A) (see page 24, lines 25-27). The multimodal polyethylene has a density of 910 to 935 kg/m3, MFR2 of 0.5 to 10 g/10 min (ISO 1133 at 190 °C under 2.16 kg load) and MFR21/MFR2 of 13 to 35 (MFR21 determined using ISO 1133 190 °C, 21.6 kg load) (see page 6, lines 1-3 and lines 16-20, and page 29, lines 20-26). While Jamieson et al. do not disclose density of the multimodal polyethylene measured according to ASTM D792, absent evidence of criticality regarding how density is measured, Jamieson et al. meets density of multimodal polyethylene as presently claimed. The multimodal polyethylene (A) can be a linear low density polyethylene (LLDPE) (see page 6, lines 4-5). The multimodal polyethylene (A) is prepared using a metallocene catalyst (see page 19, lines 14-15).
The multimodal polyethylene (A) consists of 30 to 70 wt% of (Ai) (i.e. claimed component A) and 30 to 70 wt% of (Aii) (i.e. claimed component B), wherein (Ai) is ethylene 1-butene copolymer and (Aii) is ethylene 1-hexene copolymer (see page 6, 28-31 and page 7, lines 9-14).
The component (Ai) (claimed component A) has MFR2 of 1 to 50 g/min (ISO 1133 at 190 °C under 2.16 kg load), and MFR2 of (Ai) is higher than MFR2 of (Aii) (see page 7, lines 17-20 and page 29, lines 20-26). The component (Ai) has density of 925 to 950 kg/m3, and the density of (Ai) is higher than density of (Aii) (see page 9, lines 18-21). While Jamieson et al. do not disclose density of the component (Ai) measured according to ASTM D792, absent evidence of criticality regarding how density is measured, Jamieson et al. meets density of component (Ai) (i.e. claimed component A) as presently claimed. Further, the amount of a-olefin comonomer having 4 to 10 carbon atoms in the component (Ai) is 0.03 to 5.0 mol% (see page 9, lines 1-3). Therefore, the amount of 1-butene in ethylene 1-butene copolymer (Ai) is 0.03 to 5.0 mol%, and the content of ethylene is 95 to 99.97 mol%. Accordingly, the mass of 1-butene is 1.7 to 280.5 g (1.7 = 0.03 x 56.1 and 280.5 = 5 x 56.1, wherein 56.1 is molecular weight of 1-butene) and mass of ethylene is 2809 to 2670 g (2805 = 99.97 x 28.1 and 2670 = 95 x 28.1, wherein 28.1 is molecular weight of ethylene). Therefore, total mass of ethylene-1-butene copolymer is 2810.7 to 2950.5 g (2810.7 = 1.7 + 2809 and 2950.5 = 280.5 + 2670). The content of 1-butene is 0.06 to 9.5 wt% (0.06 = 1.7/2810.7 x100 and 9.5 = 280.5/2950.5 x 100) based on the ethylene-1-butene polymer.
While Jamieson et al. disclose the ethylene-1-hexene polymer component (Aii) (claimed component B), Jamieson et al. do not disclose the ethylene-1-hexene polymer component as presently claimed. Jamieson et al. do not disclose an oriented polyethylene-based film (OPEF).
Prime Polymer discloses Evolue SP0510 having MFR of 1.2 g/10 min (190 °C, 2.16 kg, ISO 1133) and a density of 904 kg/m3 (see page 1, General Properties). SP0510 has excellent mechanical properties and heat seal properties (page 2, Physical Properties). While Prime Polymer do not disclose density of Evolue SP0510 measured according to ASTM D792, absent evidence of criticality regarding how density is measured, Prime Polymer meets density of the ethylene component (B) as presently claimed. As evidenced by Antensteiner et al., Evolue SP0510 is ethylene-hexene copolymer having ethylene content of 94.1 mol% and co-monomer content (hexene) of 5.9 mol% (see paragraph 0072 and Table 1, C8). Accordingly, the mass of 1-hexene is 496.8 (496.8 = 5.9 x 84.2, wherein 84.2 is molecular weight of 1-hexene) and mass of ethylene is 2644.2 g (2644.2 = 94.1 x 28.1, wherein 28.1 is molecular weight of ethylene). Therefore, total mass of ethylene-1-hexene copolymer is 3141 g (3141 = 496.8 + 2644.2). The content of 1-hexene is 15.8 wt% (15.8 = 496.8/3141 x100) based on the ethylene-1-hexene polymer.
In light of motivation for using Evolue SP0510 disclosed by Prime Polymer as described above, it therefore would have been obvious to one of the ordinary skill in the art before the effective filing date of the claimed invention to use Evolue SP0510 of Prime Polymer as the ethylene-1-hexene polymer component in Jamieson et al. in order to provide excellent mechanical properties and heat seal properties, and thereby arrive at the claimed invention.
Accordingly, Jamieson et al. in view of Prime Polymer disclose the metallocene-catalyzed multimodal polyethylene comprising the ethylene-1-butene component (A) and the ethylene-1-hexene component (B) as presently claimed.
Jamieson et al. in view of Prime Polymer do not disclose an oriented polyethylene-based film (OPEF).
Niederuss et al. disclose a laminated film structure (multi-layered article) comprising a first film laminated to a second film (see Abstract). The first film is a machine direction oriented multilayer film (OPEF) (see page 3, lines 33-35). That is, the first film is produced according to a MDO process (machine direction orientation). The first film is polyethylene-based film (see page 3, lines 5-15 and lines 21-22). The first film improves tensile modulus and maintains the balance between optical properties and mechanical properties (see page 14, lines 28-33).The second film is a laminated structure comprising b3/b2/bi, wherein bi is a sealing layer (see page 15, line 31, page 19, lines 17-19 and page 15, lines 33-36). Accordingly, b3 reads on a skin layer and b2 reads on a core layer of the second film. Given that there is no disclosure regarding orientation of the second film, the second film is non-oriented film (NOPEF). The second film is polyethylene-based film (see page 3, lines 5-7 and 16-22). Accordingly, Niederuss et al. disclose the laminated film structure comprising the OPEF film and the NOPEF film, wherein the OPEF film and the NOPEF film are polyethylene-based films.
In light of motivation for using the laminated film structure comprising the OPEF film and the NOPEF film disclosed by Niederuss et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art before the effective filing date of the claimed invention to use the OPEF film of Niederuss et al. laminated to NOPEF film of Jamieson et al. in view of Prime Polymer such that the OPEF film is laminated to layer C (skin layer) and layer A (sealing layer) remains as the outermost layer in order to improve tensile modulus and maintains the balance between optical properties and mechanical properties, and thereby arrive at the claimed invention.
Accordingly, Jamieson et al. in view of Prime Polymer and Niederuss et al. disclose the laminated film structure comprising the OPEF film and the NOPEF film. The laminated film structure reads on a multi-layered article as presently claimed.
Regarding claim 3, Jamieson et al. in view of Prime Polymer and Niederuss et al. disclose the multi-layered article as set forth above.
Jamieson et al. disclose the non-oriented polyethylene-based film (NOPEF) comprising the sealing layer, the core layer and the skin layer as noted above. Each of the sealing layer, the core layer and the skin layer consists of polyethylene-based polymers (see page 47, claims 1 and 3, page 48, claim 7 and page 24, line 32). Further, Jamieson et al. disclose that the films have thickness 300 microns or less (see page 27, lines 20-21). That is, each of the sealing layer, the core layer and the skin layer has thickness of 300 microns or less. Accordingly, the thickness of the non-oriented polyethylene-based film (NOPEF) is 900 microns or less, which overlaps with that presently claimed. Niederuss et al. disclose the oriented polyethylene-based film (OPEF) having a thickness of 10 to 27 microns (see page 15, lines 21-24). Given that Niederuss et al. disclose the laminated structure comprising the OPEF film is based on polyethylene only, the OPEF film consists of polyethylene-based polymers (see page 28, claim 1). Therefore, the thickness of the multilayered article comprising the OPEF film and the NOPEF film is greater than 10 to 900 microns or greater than 27 to 900 microns.
Further, as noted above, both the OPEF film and the NOPEF film of the laminated film structure (multi-layered article) consists of polyethylene-based polymers. Therefore, the multi-layered article consist of polyethylene-based polymers.
Regarding claim 4, Jamieson et al. in view of Prime Polymer and Niederuss et al. disclose the multi-layered article as set forth above. Further, Jamieson et al. disclose the non-oriented polyethylene-based film (NOPEF) consisting of 3 layers, i.e. the sealing layer, the core layer and the skin layer (see page 25, lines 27-30).
Regarding claim 7, Jamieson et al. in view of Prime Polymer and Niederuss et al. disclose the multi-layered article as set forth above. The multilayered article comprises the OPEF film and the NOPEF film as noted above. Given that OPEF film is laminated to NOPEF film, the multilayered article is a laminate.
Regarding claim 8, Jamieson et al. in view of Prime Polymer and Niederuss et al. disclose the metallocene-catalyzed multimodal polyethylene copolymer (P) as set forth above.
Jamieson et al. in view of Prime Polymer and Niederuss et al. do not explicitly disclose having an isolated 1-butene comonomer unit amount and an isolated 1-hexene monomer unit amount as presently claimed. However, Jamieson et al. disclose comonomer contents such as isolated 1-butene comonomer units and isolated 1-hexene comonomer units are quantified using a method (see page 31, lines 28-30, page 32, lines 1-30 and page 33, claims 1-28) substantially similar to that utilized in the present invention (see page 20, lines 11-36 and page 21, lines 1-27 of present specification). Given that Jamieson et al. and Prime polymer disclose the metallocene-catalyzed multimodal polyethylene copolymer (P) consisting of ethylene-1-butene polymer component (A) and the ethylene-1-hexene polymer component (B) including their amounts identical to that presently claimed and given that method used for quantifying isolated 1-butene comonomer units and isolated 1-hexene comonomer units is substantially similar to that utilized in the invention, Jamieson et al. in view of Prime Polymer and Niederuss et al. would necessarily meet claim 8 including equation (I) and equation (II).
Regarding claim 10, Jamieson et al. in view of Prime Polymer and Niederuss et al. disclose the metallocene-catalyzed multimodal polyethylene copolymer (P) MFR21/MFR2 of 13 to 35 (MFR21 at 190 C, 21.6 kg, ISO 1133) as noted above.
The metallocene-catalyzed multimodal polyethylene copolymer (P) consists of 30 to 70 wt% of the ethylene-1-butene polymer component (A) and 30 to 70 wt% of the ethylene-1-hexene polymer component (B) as noted above. The amount of 1-butene in the ethylene-1-butene polymer is 0.06 to 9.5 wt% and the amount of 1-hexene in the ethylene-1-hexene polymer is 15.8 wt% as noted above. Accordingly, the amount of 1-butene in based on the metallocene-catalyzed multimodal polyethylene copolymer (P) is 0.02 to 6.7 wt% (0.02 = 0.06 x 30/100 and 6.7 = 9.5 x 70/100) and the amount of 1-hexene based on the metallocene-catalyzed multimodal polyethylene copolymer (P) is 4.7 to 11.1 wt% (4.7 = 15.8 x 30/100 and 11.1 = 15.8 x 70/100).
Regarding claim 11, Jamieson et al. in view of Prime Polymer and Niederuss et al. disclose the metallocene-catalyzed multimodal polyethylene copolymer (P) producing using a metallocene catalyst as set forth above.
Jamieson et al. in view of Prime Polymer and Niederuss et al. do not disclose “produced in the presence of a metallocene catalyst of formula (I)”.
However, it is noted that “[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”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) . Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP 2113.
Therefore, absent evidence of criticality regarding the presently claimed process and given that Jamieson et al. in view of Prime Polymer and Niederuss et al. meets the requirements of the claimed product, Jamieson et al. in view of Prime Polymer and Niederuss et al. clearly meet the requirements of present claim.
Regarding claims 12, 13 and 16, Jamieson et al. in view of Prime Polymer and Niederuss et al. disclose the multi-layered article as set forth above.
Further, Niederuss et al. disclose the OPEF film (first film) has tensile modulus in MD (ISO 527-3) of at least 1000 MPa (see page 15, lines 1-3). Therefore, the first film (OPEF) is identical to that presently claimed (see claim 16).
Further, Jamieson et al. in view of Prime Polymer disclose the NOPEF film comprising the skin layer, the core layer and the sealing layer, wherein the sealing layer comprises the metallocene-catalyzed multimodal polyethylene copolymer (P) consisting of ethylene-1-butene polymer component (A) and the ethylene-1-hexene polymer component (B) including their amounts identical to that presently claimed. Therefore, the NOPEF film is identical to that presently claimed.
Therefore, given that the multi-layered article comprises the OPEF film and the NOPEF film identical to that presently claimed, the multi-layered article of Jamieson et al. in view of Prime Polymer and Niederuss et al. necessarily inherently has properties (Tensile Modulus in MD, Tensile Modulus in TD, Dart Drop Strength, Haze, Sealing Initiation Temperature, Protrusion) as presently claimed.
Regarding claim 17, Jamieson et al. in view of Prime Polymer and Niederuss et al. disclose the multi-layered article as set forth above. Jamieson et al. disclose the non-oriented polyethylene-based film (NOPEF) consisting of the sealing layer, the core layer and the skin layer as noted above.
Further, Jamieson et al. disclose the layer (A) (i.e. sealing layer) and the layer (C) (i.e. skin layer) can be identical (see page 24, line 32). As noted above, the layer (A) comprises 100 wt% of the multimodal metallocene-catalyzed linear low density polyethylene. Accordingly, the layer (C) comprises 100 wt% of a multimodal metallocene-catalyzed linear low density polyethylene.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Jamieson et al. (WO 2019/081611 A1) in view of Prime Polymer (Evolue SP0510, 2017, cited in IDS) and Niederuss et al. (WO 2016/135213 A1 cited in IDS) as applied to claim 1 above, further in view of Borealis (BorShape FX1001, 2012), taken in view of evidence by Antensteiner et al. (WO 2023/244901 A1 cited in IDS) and Mantere et al. (WO 2017/021389 A1 cited in IDS).
Regarding claim 5, Jamieson et al. in view of Prime Polymer and Niederuss et al. disclose the multi-layered article as set forth above. Jamieson et al. disclose the non-oriented polyethylene-based film (NOPEF) consisting of the sealing layer, the core layer and the skin layer as noted above.
Further, Jamieson et al. disclose that the core layer comprises multimodal ethylene copolymer or terpolymer prepared from Ziegler Natta catalyst (see page 10, lines 22-25 and page 17, lines 1-7). Given that the core layer can comprise multimodal ethylene copolymer or terpolymer as the only polyolefin component (see page 14, lines 28-30), given that additives are optional (see page 15, line 4) and given that there is no disclosure of other components in the core layer (see page 48, claim 7), the core layer consists of 100 wt% of Ziegler Natta catalyzed multimodal ethylene copolymer or terpolymer.
Jamieson et al. in view of Prime Polymer and Niederuss et al. do not disclose the core layer comprises the Ziegler Natta catalyzed multimodal ethylene copolymer or terpolymer comprises linear low density polyethylene.
Borealis disclose BorShape FX1001 having very good extrusion behavior, superior mechanical properties and high toughness at high stiffness levels (see Description). As evidenced by Niederuss et al., FX1001 is a bimodal Ziegler Natta produced terpolymer (see page 23, lines 5-7). As evidenced by Mantere et al., FX1001 is bimodal LLDPE (see page 10, lines 23-24).
In light of motivation for using BorShape FX1001 disclosed by Borealis as described above, it therefore would have been obvious to one of the ordinary skill in the art before the effective filing date of the claimed invention to use BorShape FX1001 of Borealis as the multimodal ethylene terpolymer in the core layer of Jamieson et al. in view of Prime Polymer and Niederuss et al. in order to provide good extrusion behavior, superior mechanical properties and high toughness at high stiffness levels, and thereby arrive at the claimed invention.
Claims 9 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Jamieson et al. (WO 2019/081611 A1) in view of Prime Polymer (Evolue SP0510, 2017, cited in IDS) and Niederuss et al. (WO 2016/135213 A1 cited in IDS), taken in view of evidence by Antensteiner et al. (WO 2023/244901 A1 cited in IDS) as applied to claim 1 above, further in view of Skar et al. (US 6,632,884 B1 cited in IDS).
Regarding claims 9 and 18, Jamieson et al. in view of Prime Polymer and Niederuss et al. disclose the metallocene-catalyzed multimodal polyethylene copolymer (P) as set forth above. Jamieson et al. in view of Prime Polymer and Niederuss et al. do not disclose the ethylene-1-butene polymer component (A) consisting of an ethylene polymer fraction (A-1) and an ethylene polymer fraction (A-2) as presently claimed.
Skar et al. disclose a bimodal polyethylene consisting of a lower molecular weight component having MFR2 of at least 10 g/10 min and a higher molecular weight having melt flow rate of less than 5 g/10 min, wherein the bimodal polyethylene has a melt flow rate in range of 0.1 to 5 g/10 min and a density of 905 to 960 kg/m3 (see col. 1, lines 15-16, col. 24, claim 1 and col. 10, lines 55-60). A specific example of lower molecular component includes the lower molecular weight component having MFR2 of 10 to 500 g/10 min and a density between 925 to 965 kg/m3 (see col. 11, lines 14-18). While Skar et al. do not disclose density measured according to ASTM D792 and MFR2 measured according to ISO 1133 (2.16 kg, 190 °C), absent evidence of criticality regarding how density and MFR2 is measured, Skar et al. meets density and MFR2 as presently claimed. The lower molecular weight component reads on ethylene polymer fraction (A-1). The lower molecular weight component and the higher molecular weight component both can be ethylene-1-butene copolymers (see col. 8, lines 1-4 and col. 15-16, Example 4). Accordingly, the lower molecular weight component and the higher molecular component are ethylene polymer fraction A-1 and ethylene polymer fraction A-2, respectively. The bimodal polyethylene is used for manufacturing films with a good balance between optical and mechanical properties (see Abstract).
In light of motivation for using a bimodal polyethylene consisting of lower molecular weight component and higher molecular weight component disclosed by Skar et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art to use the ethylene-1-butene polymer component (A) of Jamieson et al. in view of Prime Polymer and Niederuss et al. consisting of lower molecular weight component (ethylene polymer fraction A-1) and higher molecular weight component (ethylene polymer fraction A-2) of Skar et al. in order to provide a good balance between optical and mechanical properties, and thereby arrive at the claimed invention.
Response to Arguments
Applicant's arguments filed 06/11/2026 have been fully considered. In light of amendments, new grounds of rejections are set forth above. All arguments except as set forth below are moot in light of new grounds of rejections.
Applicants argue that with regards to claim 8, Applicant asserts that it would fall within the common general knowledge of the skilled person that "E" refers to the ethylene content and "EXE, EXX, and XXX" all refer to specific sequences in the copolymer microstructure. This is additionally supported on page 19, line 35 to page 22, line 18 of the as-filed application, wherein the quantification using NMR spectroscopy is outlined.
However, there is no disclosure in claim 8 regarding what “E” represents. Further, while applicant points to page 19, line 35-page 22, line 18 of the present specification for quantification of EXE, EXX, and XXX, there is no disclosure on these pages of EXE, EXX, and XXX or how they relate to the NMR spectroscopy discussed. Additionally, it is still unclear how the amount of isolated 1-butene comonomer unit is measured, i.e. > 95 mol%, > 95 wt.%, etc. Also, it is still not clear what is meant by “C6 (of (B) in wt,-%)”. Does this refer to the amount of 1-hexene monomer in the ethylene-1-hexene polymer of component?
Applicants point to the data in Table 4 of the present specification to establish the criticality of the claimed metallocene catalyzed multimodal PE copolymer by noting the comparative example which has metallocene catalyzed LLDPE outside the scope of the present claims.
However, the data is not persuasive given that the data is not commensurate in scope with the scope of the present claims. Specifically, the data uses (i) specific skin layer with specific thickness that comprises specific polymers in specific amounts, while the present claims encompass any skin layer with any thickness, (ii) specific core layer with specific thickness that comprises specific polymers in specific amounts while the present claims encompass any core layer with any thickness, (iii) specific seal layer with specific thickness with specific metallocene catalyzed multimodal polyethylene having specific density, MFR2 and ratio of MFR21/MFR2 in specific amounts and specific bimodal ethylene/1-butene/1-hexane terpolymer with specific density and MFR2, while the present claims encompass seal layer with any thickness comprising broader metallocene catalyzed multimodal polyethylene with broader ranges of density, MFR2 and ratio of MFR21/MFR2 in broader amount and broader ethylene-1-butene polymer and ethylene-1-hexene polymer with broader density and MFR2 in broader amounts, and (iv) specific 5 layer oriented polyethylene film while the present claims encompass any oriented polyethylene film. Further, it is not clear from the data what amounts of 1-butene and 1-hexene are used and if the amounts are commensurate in scope with the claims.
Applicants argue that the sealing layer of Niedersuss do not meet the requirements of amended claim 1 with respect to the “consisting of” language.
It is agreed that in light of applicant’s amendment, Niedersuss no longer meets the claimed sealing layer which is why Niedersuss is no longer used as a primary reference against the claims. Niedersuss is now only used as a teaching reference to teach the claimed oriented film. Note that while Niedersuss does not disclose all the features of the present claimed invention, Niedersuss is used as teaching reference, and therefore, it is not necessary for this secondary reference to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981). Rather this reference teaches a certain concept, namely use of an oriented film on a non-oriented film, and in combination with the primary reference, discloses the presently claimed invention
Applicants argue that upon consulting Antensteiner, the skilled person would be less likely to include Evolue SP0510 as disclosed by Prime Polymer since it shows worse optical, sealing and mechanical properties than Example 1 reported therein.
However, Antensteiner is only being used as an evidence reference to establish that Evolue SP0510 is an ethylene-hexene copolymer having ethylene content of 94.1 mol% and co-monomer content (hexene) of 5.9 mol%. Nothing else from Antensteiner is being incorporated into the primary reference Jamieson. Therefore, any disclosures regarding how Evolue SP0510 functions in the articles of Antensteiner is not relevant to the present rejections. Additionally, Evolue SP0510 (component B) is used in combination with component A of Jamieson et al. It is also significant to note that Jamieson et al. already disclose an ethylene-1-hexene polymer. Prime Polymer (with evidence by Antensteiner) is only being used to teach a specific ethylene-1-hexene polymer already generically taught by Jamieson et al. There is no evidence (i.e. data) to show that Evolue SP0510 when used in Jamieson et al. would produce worse properties or would render Jamieson et al. inoperable of its intended purpose.
In light of amendments, claim objections are withdrawn.
In light of amendments, 112(b) rejection of claim 7 is withdrawn.
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 KRUPA SHUKLA whose telephone number is (571)272-5384. The examiner can normally be reached M-F 7:00-3:00 PM.
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/KRUPA SHUKLA/Examiner, Art Unit 1787
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