DETAILED ACTION
1. 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
REQUIREMENT FOR UNITY OF INVENTION
2. As provided in 37 CFR 1.475(a), a national stage application shall relate to one invention only or to a group of inventions so linked as to form a single general inventive concept (“requirement of unity of invention”). Where a group of inventions is claimed in a national stage application, the requirement of unity of invention shall be fulfilled only when there is a technical relationship among those inventions involving one or more of the same or corresponding special technical features. The expression “special technical features” shall mean those technical features that define a contribution which each of the claimed inventions, considered as a whole, makes over the prior art.
The determination whether a group of inventions is so linked as to form a single general inventive concept shall be made without regard to whether the inventions are claimed in separate claims or as alternatives within a single claim. See 37 CFR 1.475(e).
WHEN CLAIMS ARE DIRECTED TO MULTIPLE CATEGORIES OF INVENTIONS
3. As provided in 37 CFR 1.475(b), a national stage application containing claims to different categories of invention will be considered to have unity of invention if the claims are drawn only to one of the following combinations of categories:
(1) A product and a process specially adapted for the manufacture of said product; or
(2) A product and process of use of said product; or
(3) A product, a process specially adapted for the manufacture of the said product, and a use of the said product; or
(4) A process and an apparatus or means specifically designed for carrying out the said process; or
(5) A product, a process specially adapted for the manufacture of the said product, and an apparatus or means specifically designed for carrying out the said process.
Otherwise, unity of invention might not be present. See 37 CFR 1.475(c).
4. Restriction is required under 35 U.S.C. 121 and 372.
This application contains the following inventions or groups of inventions which are not so linked as to form a single general inventive concept under PCT Rule 13.1. In accordance with 37 CFR 1.499, applicant is required, in reply to this action, to elect a single invention to which the claims must be restricted.
Group I, claims 1-13 and 16-18, drawn to a multi-layered article.
Group II, claim 14, drawn to a method for producing the multi-layered article.
Group III, claim 15, drawn to a method of use of the multi-layered article.
5. The groups of inventions listed above do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons: The technical feature of Groups I, II and III appears to be the multi-layered article. However, the technical feature of Group I cannot be a special technical feature under PCT Rule 13.2 because the technical feature is shown in the prior art. Niederuss et al. (WO 2016/135213 A1 cited in IDS) in view of Kela et al. (WO 2016/083208 A1) and Prime Polymer (Evolue SP0510, 2017), taken in view of evidence by Antensteiner et al. (WO 2023/244901 A1) and Mantere et al. (WO 2017/021389 A1) disclose a multi-layered article.
6. Niederuss et al. disclose a laminated film structure (multi-layered article) comprising a first film laminated to a second film (see Abstract). The laminated film structure (multi-layered article) is based on polyethylene only (see Abstract).
7. 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).
8. The second film is a laminated structure comprising at least one sealing layer (see page 15, line 31). The laminated structure of the second film can be b3/b2/bi, wherein bi is a sealing layer (see 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).
9. The sealing layer bi) comprises a blend of a metallocene produced linear low density polyethylene (mLLDPE) with a low density polyethylene (LDPE), wherein mLLDPE can be multimodal (see page 15, lines 33-36 and page 16, line 22). The amount of mLLDPE in the sealing layer is 50 to 95 wt% (see page 18, lines 36-38). The mLLDPE is an ethylene copolymer having a density of 940 kg/m3 or less and MFR of 0.01 to 20 g/10 min (190 °C, 2.16 kg, ISO 1133) (see page 16, lines 1-2 and lines 16-17, and page 22, lines 7-9). While Niederuss et al. do not disclose density of mLLDPE measured according to ASTM D792, absent evidence of criticality regarding how density is measured, Niederuss et al. meets density of multimodal polyethylene copolymer as presently claimed. The mLLDPE reads on the metallocene-catalyzed multimodal polyethylene copolymer (P).
10. While Niederuss et al. disclose the sealing layer comprising mLLDPE (metallocene-catalyzed multimodal polyethylene copolymer), Niederuss et al. do not disclose mLLDPE consists of an ethylene-1-butene polymer component (A) and an ethylene-1-hexene polymer component (B).
11. Kela et al. disclose a polymer composition comprising a multimodal polymer of ethylene having melt flow rate (MFR2) of 0.5 to 10 g/10 min (190 °C, 2.16 kg, ISO 1133), MFR21/MFR2 of 13 to 35 (MFR21 at 190 C, 21.6 kg, ISO 1133) and a density of 910 to 935 kg/m3 (ASTM D792) (see page 36, claim 1, page 37, claim 10 and pages 21, lines 1-5). The polymer composition comprises at least 80 wt% of the multimodal polymer of ethylene (see page 11, lines 20-22). The multimodal polymer of ethylene is a linear low-density polyethylene produced using a metallocene catalyst (see page 7, lines 24-25 and pages 11-12, lines 31-3). That is, the multimodal polymer of ethylene is a metallocene-catalyzed multimodal polyethylene copolymer.
12. The multimodal polymer of ethylene consists of 30 to 70 wt% of an ethylene component (A) such as ethylene-1-butene polymer and 30 to 70 wt% of an ethylene component (B) such as an ethylene-1-hexene polymer (see page 36, claim 1, pages 36-37, claim 5 and page 10, lines 20-26). The ethylene component (A) has a melt flow rate (MFR2) of 1 to 50 g/10 min and a density of 925 to 950 kg/m3 (see page 36, claim 2, page 37, claim 9 and page 21, lines 1-5). The amount of a-olefin monomer such as 1-butene in the ethylene component (A) is 0.03 to 5 mol% (see page 7, lines 1-2). That is, 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. The ethylene component (A) has higher melt flow rate (MFR2) than the ethylene component (B), and the ethylene component (A) has higher density than the ethylene component (B) (see page 8, lines 18-19 and page 9, lines 13-14).
13. The polymer composition has excellent mechanical properties, sealing properties and optical properties (see page 3, lines 15-25). The polymer composition is used for film applications (page 3, line 27).
14. In light of motivation for using the polymer composition comprising the multimodal polymer of ethylene disclosed by Kela et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art to use the multimodal polymer of ethylene of Kela et al. as the metallocene-catalyzed multimodal polyethylene copolymer in the sealing layer of Niederuss et al. in order to provide excellent mechanical properties, sealing properties and optical properties, and thereby arrive at the claimed invention.
15. Accordingly, Niederuss et al. in view of Kela et al. comprises the sealing layer comprising the metallocene-catalyzed multimodal polyethylene comprising the ethylene component (A).
16. Niederuss et al. in view of Kela et al. do not disclose the ethylene component (B) as presently claimed.
17. 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 of ASTM D792, 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.
18. 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 to use Evolue SP0510 of Prime Polymer as the ethylene component (B) of the metallocene-catalyzed multimodal polyethylene copolymer (P) in Niederuss et al. in view of Kela et al. in order to provide excellent mechanical properties and heat seal properties, and thereby arrive at the claimed invention.
19. Accordingly, Niederuss et al. in view of Kela et al. and Prime Polymer disclose the metallocene-catalyzed multimodal polyethylene comprising the ethylene component (A) and the ethylene component (B) as presently claimed.
20. Since Applicant’s inventions do not contribute a special technical feature when viewed over the prior art they do not have a single general inventive concept and so lack unity of invention. In accordance with 37 CFR 1.499, applicant is required, in reply to this action, to elect a single invention to which the claims must be restricted.
21. Applicant is advised that the reply to this requirement to be complete must include (i) an election of a species or invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention.
22. The election of an invention or species may be made with or without traverse. To preserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable on the elected invention or species.
23. Should applicant traverse on the ground that the inventions have unity of invention (37 CFR 1.475(a)), applicant must provide reasons in support thereof. Applicant may submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. Where such evidence or admission is provided by applicant, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103(a) of the other invention.
24. The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must include all the limitations of an allowable product/apparatus claim for that process invention to be rejoined.
25. In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an otherwise proper restriction requirement between product/apparatus claims and process claims may be maintained. Withdrawn process claims that are not commensurate in scope with an allowable product/apparatus claim will not be rejoined. See MPEP § 821.04. Additionally, in order for rejoinder to occur, applicant is advised that the process claims should be amended during prosecution to require the limitations of the product/apparatus claims. Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01.
26. Applicant is reminded that upon the cancellation of claims to a non-elected invention, the inventorship must be amended in compliance with 37 CFR 1.48(b) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. Any amendment of inventorship must be accompanied by a request under 37 CFR 1.48(b) and by the fee required under 37 CFR 1.17(i).
During a telephone conversation with Rachel Near on 02/12/2026 a provisional election was made without traverse to prosecute the invention of Group I, claims 1-13 and 16-18. Affirmation of this election must be made by applicant in replying to this Office action. Claims 14 and 15 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention. Claims 1-13 and 16-18 are examined on the merits in this office action.
Information Disclosure Statement
Information Disclosure Statements (IDS) submitted on 10/10/2024, 11/04/2024 and 01/06/2025 are considered and signed IDS forms are attached.
Claim Objections
Claim 1 is objected to because of the following informalities: Claim 1, line 22 recites “the multimodal polyethylene copolymer (P)”, which should be “the metallocene-catalyzed multimodal polyethylene copolymer (P)”. Appropriate correction is required.
Claim 8 is objected to because of the following informalities: Claim 8, line 2 recites “the multimodal polyethylene copolymer (P)”, which should be “the metallocene-catalyzed multimodal polyethylene copolymer (P)”. Appropriate correction is required.
Claim 8 is objected to because of the following informalities: Claim 8, line 3 recites “component (A)”, which should be “the ethylene-1-butene polymer component (A)”. Appropriate correction is required.
Claim 8 is objected to because of the following informalities: Claim 8, line 7 recites “component (B)”, which should be “the ethylene-1-hexene polymer component (B)”. Appropriate correction is required.
Claim 9 is objected to because of the following informalities: Claim 9, line 2 recites “component (A)”, which should be “the ethylene-1-butene polymer component (A)”. Appropriate correction is required.
Claim 10 is objected to because of the following informalities: Claim 10, line 7 and 10 recite “the multimodal polyethylene copolymer (P)”, which should be “the metallocene-catalyzed multimodal polyethylene copolymer (P)”. Appropriate correction 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.
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.
Claims 8 and 17 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.
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 17, line 2 recites “the skin layer preferably comprises”. The scope of the claim is confusing since the use of the phrase “preferably” makes it unclear as to whether the claim actually requires the limitations following the phrase “preferably”.
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 1-8, 10-13 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Niederuss et al. (WO 2016/135213 A1 cited in IDS) in view of Kela et al. (WO 2016/083208 A1) and Prime Polymer (Evolue SP0510, 2017), taken in view of evidence by Antensteiner et al. (WO 2023/244901 A1) and Mantere et al. (WO 2017/021389 A1).
Regarding claims 1, 2, 6 and 7, Niederuss et al. disclose a laminated film structure (multi-layered article) comprising a first film laminated to a second film (see Abstract). The laminated film structure (multi-layered article) is based on polyethylene only (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 second film is a laminated structure comprising at least one sealing layer (see page 15, line 31). The laminated structure of the second film can be b3/b2/bi, wherein bi is a sealing layer (see 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).
The sealing layer bi) comprises a blend of a metallocene produced linear low density polyethylene (mLLDPE) with a low density polyethylene (LDPE), wherein mLLDPE can be multimodal (see page 15, lines 33-36 and page 16, line 22). The amount of mLLDPE in the sealing layer is 50 to 95 wt% (see page 18, lines 36-38). The mLLDPE is an ethylene copolymer having a density of 940 kg/m3 or less and MFR of 0.01 to 20 g/10 min (190 °C, 2.16 kg, ISO 1133) (see page 16, lines 1-2 and lines 16-17, and page 22, lines 7-9). While Niederuss et al. do not disclose density of mLLDPE measured according to ASTM D792, absent evidence of criticality regarding how density is measured, Niederuss et al. meets density of multimodal polyethylene copolymer as presently claimed. The mLLDPE reads on the metallocene-catalyzed multimodal polyethylene copolymer (P).
While Niederuss et al. disclose the sealing layer comprising mLLDPE (metallocene-catalyzed multimodal polyethylene copolymer), Niederuss et al. do not disclose mLLDPE consists of an ethylene-1-butene polymer component (A) and an ethylene-1-hexene polymer component (B).
Kela et al. disclose a polymer composition comprising a multimodal polymer of ethylene having melt flow rate (MFR2) of 0.5 to 10 g/10 min (190 °C, 2.16 kg, ISO 1133), MFR21/MFR2 of 13 to 35 (MFR21 at 190 C, 21.6 kg, ISO 1133) and a density of 910 to 935 kg/m3 (ASTM D792) (see page 36, claim 1, page 37, claim 10 and pages 21, lines 1-5). The polymer composition comprises at least 80 wt% of the multimodal polymer of ethylene (see page 11, lines 20-22). The multimodal polymer of ethylene is a linear low-density polyethylene produced using a metallocene catalyst (see page 7, lines 24-25 and pages 11-12, lines 31-3). That is, the multimodal polymer of ethylene is a metallocene-catalyzed multimodal polyethylene copolymer.
The multimodal polymer of ethylene consists of 30 to 70 wt% of an ethylene component (A) such as ethylene-1-butene polymer and 30 to 70 wt% of an ethylene component (B) such as an ethylene-1-hexene polymer (see page 36, claim 1, pages 36-37, claim 5 and page 10, lines 20-26). The ethylene component (A) has a melt flow rate (MFR2) of 1 to 50 g/10 min and a density of 925 to 950 kg/m3 (see page 36, claim 2, page 37, claim 9 and page 21, lines 1-5). The amount of a-olefin monomer such as 1-butene in the ethylene component (A) is 0.03 to 5 mol% (see page 7, lines 1-2). That is, 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. The ethylene component (A) has higher melt flow rate (MFR2) than the ethylene component (B), and the ethylene component (A) has higher density than the ethylene component (B) (see page 8, lines 18-19 and page 9, lines 13-14).
The polymer composition has excellent mechanical properties, sealing properties and optical properties (see page 3, lines 15-25). The polymer composition is used for film applications (page 3, line 27).
In light of motivation for using the polymer composition comprising the multimodal polymer of ethylene disclosed by Kela et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art to use the multimodal polymer of ethylene of Kela et al. as the metallocene-catalyzed multimodal polyethylene copolymer in the sealing layer of Niederuss et al. in order to provide excellent mechanical properties, sealing properties and optical properties, and thereby arrive at the claimed invention.
Accordingly, Niederuss et al. in view of Kela et al. comprises the sealing layer comprising the metallocene-catalyzed multimodal polyethylene comprising the ethylene component (A).
Niederuss et al. in view of Kela et al. do not disclose the ethylene component (B) as presently claimed.
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 to use Evolue SP0510 of Prime Polymer as the ethylene component (B) of the metallocene-catalyzed multimodal polyethylene copolymer (P) in Niederuss et al. in view of Kela et al. in order to provide excellent mechanical properties and heat seal properties, and thereby arrive at the claimed invention.
Accordingly, Niederuss et al. in view of Kela et al. and Prime Polymer disclose the metallocene-catalyzed multimodal polyethylene comprising the ethylene component (A) and the ethylene component (B) as presently claimed.
Regarding claim 3, Niederuss et al. disclose the laminated film structure (multi-layered article) is based on polyethylene only (see Abstract). That is, the multi-layered article consists of polyethylene-based polymers. Further, as noted above, both the first film (OPEF) and the second film (NOPEF) of the laminated film structure (multi-layered article) consists of polyethylene-based polymers.
Further, Niederuss et al. disclose the first film (OPEF) having a thickness of 10 to 27 microns and the second film (NOPEF) having a thickness of 10 to 250 microns (see page 15, lines 21-24 and page 19, lines 30-31). Therefore, the thickness of the multilayered article comprising the first film and the second film is 20 to 277 microns (20 = 10 + 10 and 277 = 250 + 27). As noted above, the second film (NOPEF) is the laminated structure comprising layers b3/b2/bi, wherein b3 is skin layer, b2 is core layer and bi is sealing layer. The layers b3, b2 and bi may all be of equal thickness (see page 19, line 33). Therefore, each of b3 (skin layer), b2 (core layer) and bi (sealing layer) can have thickness of 3.3 to 83.3 microns (3.3 =10/3 and 83.3 = 250/3).
Regarding claim 4, Niederuss et al. disclose the second film (NOPEF) consisting layers b3/b2/bi, wherein b3 is skin layer, b2 is core layer and bi is sealing layer (see page 19, lines 17-19).
Regarding claim 5, Niederuss et al. disclose the second film (NOPEF) consisting of layers b3/b2/bi, wherein b3 is skin layer, b2 is core layer and bi is sealing layer (see page 19, lines 17-19). The b2 layer (core layer) comprises 100 wt% of FX1001 which is a bimodal Ziegler Natta produced terpolymer (see page 24, line 28 and page 23, lines 5-7). As evidenced by Mantere et al., FX1001 is bimodal LLDPE (see page 10, lines 23-24).
Regarding claim 8, Niederuss et al. in view of Kela et al. and Prime polymer disclose the metallocene-catalyzed multimodal polyethylene copolymer (P) as set forth above.
Niederuss et al. in view of Kela et al. and Prime polymer do not explicitly disclose having an isolated 1-butene comonomer unit amount and an isolated 1-hexene monomer unit amount as presently claimed. However, Kela 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 23, lines 5-30, page 24, lines 1-30 and page 25, claims 1-4) identical to that utilized in the present invention (see page 20, lines 11-36 and page 21, lines 1-27 of present specification). Given that Niederuss et al. in view of Kela 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 similar to that utilized in the invention, Niederuss et al. in view of Kela et al. and Prime polymer would necessarily meet claim 8 including equation (I) and equation (II).
Regarding claim 10, Niederuss et al. in view of Kela et al. and Prime Polymer 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, Niederuss et al. in view of Kela et al. and Prime polymer disclose the metallocene-catalyzed multimodal polyethylene copolymer (P) producing using a metallocene catalyst as set forth above.
Niederuss et al. in view of Kela et al. and Prime polymer 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 Niederuss et al. in view of Kela et al. and Prime polymer meets the requirements of the claimed product, Niederuss et al. in view of Kela et al. and Prime polymer clearly meet the requirements of present claim.
Regarding claims 12, 13 and 16, Niederuss et al. in view of Kela et al. and Prime Polymer disclose the multi-layered article as set forth above.
Further, Niederuss et al. disclose the first film (OPEF) 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, Niederuss et al. in view of Kela et al. and Prime Polymer disclose the second film (NOPEF) 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 second film (NOPEF) is identical to that presently claimed.
Therefore, given that the multi-layered article comprises the first film (OPEF) and the second film (NOPEF) identical to that presently claimed, the multi-layered article necessarily inherently has properties (Tensile Modulus in MD, Tensile Modulus in TD, Dart Drop Strength, Haze, Sealing Initiation Temperature, Protrusion) as presently claimed.
Claims 9 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Niederuss et al. (WO 2016/135213 A1 cited in IDS) in view of Kela et al. (WO 2016/083208 A1) and Prime Polymer (Evolue SP0510, 2017), taken in view of evidence by Antensteiner et al. (WO 2023/244901 A1) and Mantere et al. (WO 2017/021389 A1) as applied to claim 1 above, further in view of Skar et al. (US 6,632,884 B1).
Regarding claims 9 and 18, Niederuss et al. in view of Kela et al. and Prime polymer disclose the metallocene-catalyzed multimodal polyethylene copolymer (P) as set forth above. Niederuss et al. in view of Kela et al. and Prime polymer 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 Niederuss et al. in view of Kela et al. and Prime polymer 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.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Niederuss et al. (WO 2016/135213 A1 cited in IDS) in view of Kela et al. (WO 2016/083208 A1) and Prime Polymer (Evolue SP0510, 2017), taken in view of evidence by Antensteiner et al. (WO 2023/244901 A1) and Mantere et al. (WO 2017/021389 A1) as applied to claim 1 above, further in view of Nummila-Pakarinen et al. (US 2009/0156749 A1).
Regarding claim 17, Niederuss et al. in view of Kela et al. and Prime polymer disclose the multi-layered article as set forth above. The second film (NOPEF) consists layers b3/b2/bi, wherein b3 is skin layer, b2 is core layer and bi is sealing layer as set forth above.
Further, Niederuss et al. disclose that the skin layer b3 comprises LDPE resin having MFR2 of 0.1 to 20 g/10 min (190 °C, 2.16 kg, ISO 1133) and a density of 905 to 940 kg/m3 (see page 19, lines 20-21 and page 18, lines 14-19). While Niederuss et al. do not disclose density of LDPE measured according to ASTM D792, absent evidence of criticality regarding how density is measured, Niederuss et al. meets density of LDPE as presently claimed.
Niederuss et al. in view of Kela et al. and Prime polymer do not disclose the skin layer comprises LDPE in combination with a multimodal metallocene-catalyzed linear low density polyethylene as presently claimed.
Nummila-Pakarinen et al. disclose a blend comprising 10 to 35 wt% of LDPE and 65 to 90 wt% of a multimodal metallocene-catalyzed linear low density polyethylene (see paragraph 0035 and 0028). The LDPE has MFR2 of 2.5 to 10 g/10 min (190 °C, 2.16 kg, ISO 1133) and a density of 910 to 930 kg/m3 (see paragraphs 0014 and 0053). While Nummila-Pakarinen et al. do not disclose density of LDPE measured according to ASTM D792, absent evidence of criticality regarding how density is measured, Nummila-Pakarinen et al. meets density of LDPE as presently claimed. The blend has good optical properties, good sealing properties and good abrasion resistance as well as have a low neck-in and excellent processability at high line speeds (see paragraph 0004).
In light of motivation for using a blend comprising LDPE and multimodal metallocene-catalyzed linear low density polyethylene disclosed by Nummila-Pakarinen et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art to use the blend comprising LDPE and multimodal metallocene-catalyzed linear low density polyethylene of Nummila-Pakarinen et al. instead of LDPE in the layer b3, i.e. skin layer of the second film (NOPEF) in Niederuss et al. in view of Kela et al. and Prime polymer in order to provide good optical properties, good sealing properties and good abrasion resistance as well as a low neck-in and excellent processability at high line speeds, and thereby arrive at the claimed invention.
Citation of Relevant Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Garg et al. (EP 3856517 B1) disclose a polyethylene film for heat sealing comprising a polyethylene having a density of 900 to 910 kg/m3 and a melt flow rate of 0.50 to 2.50 g/10 min (see paragraphs 0016 and 0023). The polyethylene has a-olefin comprising 4-10 carbon atoms in amount of 15 to 20 wt% with regard to the total weight of the polyethylene (see paragraphs 0025 and 0026).
Conclusion
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/KRUPA SHUKLA/Examiner, Art Unit 1787