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 with traverse of Group I (claims 1-10) in the reply filed on 05/26/2026 is acknowledged. The traversal is on the ground(s) that search of each of the groups would not be unduly burdensome. This is not found persuasive because the instant application is a national stage entry filed under 35 U.S.C. 371 and is therefore not subject to US restriction practice but rather subject to lack of unity practice, see MPEP 1893.03(d). It is noted that undue search burden is not a criterion in lack of unity analysis. The test is whether or not special technical features can be established. It is noted that inventions listed as Groups I and II 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 as set forth in paragraphs 6-12 of the previous Office Action.
The requirement is still deemed proper and is therefore made FINAL.
Claims 11-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 05/26/2026.
Claim Objections
Claim 9 is objected to because of the following informalities: Claim 9, line 2 recites “film thickness”, which should be “a multilayer film thickness”. Appropriate correction is required.
Claim 10 is objected to because of the following informalities: Claim 10, line 2 recites “film thickness”, which should be “a multilayer film thickness”. Appropriate correction is required.
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 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over Bender et al. (US 2009/0252902 A1) in view of Demirors et al. (US 2016/0237222 A1), taken in view of evidence by Dow (Dowlex NG2045B, 2012).
Regarding claims 1-8, Bender et al. disclose a multilayer film structure comprising a core layer (primary layer) comprising a thermoplastic polymer such as polyethylene, a functional layer (third layer) on a first side of the core layer and a heat sealable skin layer (second layer) on a second side of the core layer (see Abstract and paragraph 0013). The functional layer is a printable layer comprising thermoplastic polymer (third layer of polymer) (see paragraphs 0017-0018). The heat sealable skin layer (second layer) comprises thermoplastic polymer such as linear low density polyethylene (LLDPE) (see paragraph 0024). As evidenced by the present specification, LLDPE is a heat seal polymer (see page 11, lines 33-34 of present specification).
While Bender et al. disclose the core layer (primary layer) comprising polyethylene polymer, Bender et al. do not disclose the polyethylene is an extruded first LLDPE composition as presently claimed.
Demirors et al. disclose a resin composition (first LLDPE composition) comprising 97.5 wt% of Resin A such as Dowlex NG2045B (first LLDPE polymer) and 2.5 wt% of a masterbatch comprising Resin B and free radical generator (see paragraph 0038). As evidenced by Dow, Dowlex NG2045B is LLDPE polymer (see Overview). The resin composition has viscosity measured at angular frequency of 0.1 rad/s (h0.1) of 9,675, and a viscosity measured at angular frequency of 10 rad/s (h10) of 4,364 (see page 7, Table 2, Inventive Example 1). The viscosity is measured at 190 °C (see paragraph 0065). While Demirors et al. do not explicitly disclose viscosity is a complex viscosity, given that viscosity is measured at an angular frequency, viscosity disclosed by Demirors et al. is complex viscosity. Accordingly, the complex viscosity ratio (h0.1/h10) is 2.2. Further, Demirors et al. disclose that Mz (Mz Abs) of 350,315 and Mw (Mw Abs) of 120,129 (see page 7, Table 2, Inventive Example 1). Accordingly, Mz/Mw ratio is 2.9. Demirors et al. disclose Mw/Mn (Mw Abs/Mn Abs molecular weight distribution) is 4.1 (see page 7, Table 2, Inventive Example 1). The resin composition exhibits an increase in melt strength which is at least 20% greater than the melt strength of the polyethylene resin in the absence of the master batch (see paragraph 0026). The enhanced melt strength is desired to produce thick blown films (see paragraph 0002). The resin composition is extruded (see paragraphs 0052, 0053). That is, the resin composition reads on extruded first LLDPE composition.
The only deficiency of Demirors et al. is that Demirors et al. disclose the use of Mw Abs/Mn Abs molecular weight distribution of 4.1, while the present claims require Mw Abs/Mn Abs molecular weight distribution of 4.5.
It is apparent, however, that the instantly claimed molecular weight distribution of Mw Abs/Mn Abs and that taught by Demirors et al. are so close to each other that the fact pattern is similar to the one in In re Woodruff , 919 F.2d 1575, USPQ2d 1934 (Fed. Cir. 1990) or Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed.Cir. 1985) where despite a “slight” difference in the ranges the court held that such a difference did not “render the claims patentable” or, alternatively, that “a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough so that one skilled in the art would have expected them to have the same properties”.
In light of the case law cited above and given that there is only a “slight” difference between the molecular weight distribution of Mw Abs/Mn Abs disclosed by Demirors et al. and the molecular weight distribution disclosed in the present claims, it therefore would have been obvious to one of ordinary skill in the art that the molecular weight distribution of Mw Abs/Mn Abs disclosed in the present claims is but an obvious variant of the molecular weight distribution disclosed in Demirors et al., and thereby one of ordinary skill in the art would have arrived at the claimed invention.
In light of motivation for using the resin composition disclosed by Demirors et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art to use the resin composition of Demirors et al. for preparing the polyethylene polymer of the core layer in Bender et al. in order to increase melt strength of at least 20 wt%, and thereby arrive at the claimed invention.
Regarding claims 9 and 10, Bender et al. in view of Demirors et al. disclose the multilayer film as set forth above. Bender et al. in view of Demirors et al. discloses the multilayer film comprising the extruded first LLDPE composition as noted above. Given that the multilayer film comprising the extruded first LLDPE composition comprises the first LLDPE polymer and the master batch including the second polyethylene and free radical generator identical to that utilized in the present invention, with amounts of the first LLDPE polymer, amounts of the master batch, and amounts of the second polyethylene and free radical generator in the master batch overlapping with that utilized in the present invention, within the overlapping ranges, the multilayer film necessarily inherently has a puncture force and a dart drop resistance identical to that presently claimed.
Claims 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over Williamson et al. (WO 2017/172273 A1 cited in IDS) in view of Bender et al. (US 2009/0252902 A1).
Regarding claims 1-5, Williamson et al. disclose a film comprising a polyethylene resin, wherein the film can be a monolayer film or a multilayer film (see page 37, claims 11, 14 and 15). The film (primary layer) comprises polyethylene such as a first polyethylene and a masterbatch composition comprising a second polyethylene resin and a free radical generator (see paragraph 0017). The amount of the first polyethylene is 60 to 99.9 wt% and the amount of the master batch is 0.1 to 40 wt% (see paragraph 0051). These amounts overlap with that utilized in the present invention (see page 22, Table 3, Layer 2).
The first polyethylene includes Dowlex TG 2085 B (see paragraph 0027), identical to that utilized in the present invention (see page 21, line 24 of present specification). As evidenced by the present specification, Dowlex TG 2085 B is LLDPE polymer (see page 21, lines 24-25 of present specification).
The masterbatch composition comprises the second polyethylene resin and the free radical generator (FRG) (see paragraph 0017). The second polyethylene resin can be LDPE resin such as LDPE 4016 (see paragraph 0041 and 0070), which is identical to that utilized in the present invention (see page 21, line 11 of present specification). The FRG can be Trigonox 301 (see paragraphs 0032, 0035), which is identical to that utilized in the present invention (see page 21, lines 10-11 of present specification). The amount of FRG is 5 to 1000 ppm relative to the total amount of resin (see paragraph 0031), which overlaps with that utilized in the present invention (see page 21, line 10 of present specification).
A composition comprising the first polyethylene resin and the master batch is extruded, i.e. extruded first LLDPE composition (see paragraph 0073). Given that the extruded first LLDPE composition comprises the first LLDPE polymer and the master batch including the second polyethylene and free radical generator identical to that utilized in the present invention, with amounts of the first LLDPE polymer, amounts of the master batch, and amounts of the second polyethylene and free radical generator in the master batch overlapping with that utilized in the present invention, within the overlapping ranges, the extruded first LLDPE composition necessarily inherently has a complex viscosity ratio (h0.1/h10), a ratio of Mz Abs/ Mw Abs, a molecular distribution Mw Abs/Mn Abs and a weight average molecular weight Mw Abs identical to that presently claimed.
Williamson et al. do not disclose a second layer and a third layer as presently claimed.
Bender et al. disclose a multilayer film structure comprising a core layer (primary layer) comprising a thermoplastic polymer such as polyethylene, a functional layer (third layer) on a first side of the core layer and a heat sealable skin layer (second layer) on a second side of the core layer (see Abstract and paragraph 0013). The functional layer is a printable layer comprising thermoplastic polymer (third layer of polymer) (see paragraphs 0017-0018). The heat sealable skin layer (second layer) comprises thermoplastic polymer such as linear low density polyethylene (LLDPE) (see paragraph 0024). As evidenced by the present specification, LLDPE is a heat seal polymer (see page 11, lines 33-34 of present specification). The multilayer film structure provides improved machinability, print performance and lamination performance (see Abstract and paragraph 0008).
In light of motivation for using a multilayer film structure comprising a functional layer comprising thermoplastic polymer and a heat sealable skin layer comprising heat seal polymer, wherein a core layer comprising polyethylene is disposed between the functional layer and the heat sealable skin layer disclosed by Bender et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art to use the multilayer film structure comprising core layer (primary layer) comprising a thermoplastic polymer such as polyethylene, a functional layer (third layer) on a first side of the core layer and a heat sealable skin layer (second layer) on a second side of the core layer of Bender et al. as the multilayer film of Williamson et al. such that the film comprising polyethylene of Williamson et al. is used as the core layer, in order to prepare the multilayer structure with improved machinability, print performance and lamination performance, and thereby arrive at the claimed invention.
Regarding claims 6 and 7, Williamson et al. in view of Bender et al. disclose the multilayer film as set forth above. Wiliamson et al. discloses the extruded first LLDPE composition as noted above. Given that the extruded first LLDPE composition comprises the first LLDPE polymer and the master batch including the second polyethylene and free radical generator identical to that utilized in the present invention, with amounts of the first LLDPE polymer, amounts of the master batch, and amounts of the second polyethylene and free radical generator in the master batch overlapping with that utilized in the present invention, within the overlapping ranges, the extruded first LLDPE composition necessarily inherently has a complex viscosity (h0.1) identical to that presently claimed.
Regarding claim 8, Williamson et al. in view of Bender et al. disclose the multilayer film as set forth above. Wiliamson et al. discloses the extruded first LLDPE composition as noted above. Given that the extruded first LLDPE composition comprises the first LLDPE polymer and the master batch including the second polyethylene and free radical generator identical to that utilized in the present invention, with amounts of the first LLDPE polymer, amounts of the master batch, and amounts of the second polyethylene and free radical generator in the master batch overlapping with that utilized in the present invention, within the overlapping ranges, the extruded first LLDPE composition necessarily inherently has a complex viscosity (h10) identical to that presently claimed.
Regarding claims 9 and 10, Williamson et al. in view of Bender et al. disclose the multilayer film as set forth above. Williamson et al. discloses the multilayer film comprising the extruded first LLDPE composition as noted above. Given that the multilayer film comprising the extruded first LLDPE composition comprises the first LLDPE polymer and the master batch including the second polyethylene and free radical generator identical to that utilized in the present invention, with amounts of the first LLDPE polymer, amounts of the master batch, and amounts of the second polyethylene and free radical generator in the master batch overlapping with that utilized in the present invention, within the overlapping ranges, the multilayer film necessarily inherently has a puncture force and a dart drop resistance identical to that presently claimed.
Response to Arguments
Applicant's arguments filed 05/26/2026 have been fully considered. In light of amendments, new grounds of rejections are set forth above.
Applicants argue that Demirors' inventive examples do not recite the claimed molecular weight characteristics and reveal that a lower Mw/Mn results in higher melt strength-thus discouraging an increase in molecular weight distribution to a Mw Abs/Mₙ Abs of at least 4.5 (even if Demirors' conventional GPC could be compared to Applicant's Absolute GPC). (See Demirors at Table 2). Accordingly, a person of ordinary skill in the art would not arrive at Applicant's amended claim 1 as neither Bender nor Demirors teach the limitations of amended claim 1 and no motivation exists for arriving at amended claim 1.
However, the Inventive example 1 of Demirors et al. disclose Mw/Mn (Mw Abs/Mn Abs molecular weight distribution) is 4.1, Mz of 350,315, Mw of 120,129, and therefore Mz/Mw ratio of 2.9. While Demirors et al. disclose the use of Mw Abs/Mn Abs molecular weight distribution of 4.1, while the present claims require Mw Abs/Mn Abs molecular weight distribution of 4.5, given the “slight” difference, these values are obvious variants, absent evidence to the contrary.
Given that Demirors et al. provides a proper motivation (increase in melt strength) for using a resin composition (e.g. Inventive Example 1), it would have been obvious to one of the ordinary skill in the art to use resin composition of Demirors et al. in Bender et al. Regarding “a lower Mw/Mn results in higher melt strength”, applicants have provided no evidence (i.e. data) to show difference in melt strength between molecular distribution of 4.5 and 4.1 and/or to show criticality of molecular distribution of 4.5 over 4.1. Further, given the “slight” difference between 4.5 and 4.1, the melt strength of resin composition would not be affected, absent evidence to the contrary.
Applicants argue that it also cannot be followed that Williamson in view of Bender inherently teaches the limitations of amended claim 1 under a highly questionable inherent-obvious theory. See, e.g., In re Spormann, 363 F.2d 444 (CCPA 1966) ("That which may be inherent is not necessarily known; obviousness cannot be predicated on what is unknown."). While Williamson discloses a long list of polyethylenes, including LLDPEs, such as DOWLEX™ resins of "TG 2085B" as well as a range of free radical generators, including TRIGONOX 301, Willamson broadly discloses a genus of polyethylenes having a density of 0.900 to 0.970 g/cc and melt index 0.01 to 30 g/10 min. Williamson's examples use a variety of polyolefins, not TG 2085B, and a variety of free radical generators at different wt.% for modification. Williamson does not teach or suggest a specific reason for a species-like selection to necessarily arrive at the LLDPE composition as claimed (i.e., LLDPE composition having (1) a complex viscosity ratio (no.1 /n₁₀) of at least 1.7, for complex viscosity measured at 190°C and an angular frequency of 0.1 rad/s and at 10 rad/s; and (2) a ratio Mz Abs/ Mw Abs from 2.9 to 4.0; and (3) a molecular weight distribution Mw Abs/Mₙ Abs of at least 4.5; and (4) a weight average molecular weight Mw Abs of at least 90,000 Da). See PersonalWeb Tech., LLC V. Apple, Inc., 917 F.3d 1376, 1382 (Fed. Cir. 2019) ("[T]he mere fact that a certain thing may result from a given set of circumstances is not sufficient"). That is, there is nothing in Williamson suggesting a selection of TG 2085B in combination with a concentration of free radical generator where the resulting composition has a ratio Mz Abs/ Mw Abs from 2.9 to 4.0; and a molecular weight distribution Mw Abs/Mₙ Abs of at least 4.5; and a weight average molecular weight Mw Abs of at least 90,000 Da. In fact, Williamson discourages increasing the molecular weight and related molecular weight distribution as disrupting its polyethylene's processability and causing melt fracture. (See, e.g., Williamson at [0002]). Bender does not cure these deficiencies of Williamson.
While Williamson disclose an extruded first LLDPE composition, Williamson do not disclose the extruded first LLDPE composition having properties as presently claimed. However, Williamson disclose a composition comprising the first polyethylene resin and the master batch is extruded, i.e. extruded first LLDPE composition (see paragraph 0073). Given that the extruded first LLDPE composition comprises the first LLDPE polymer and the master batch including the second polyethylene and free radical generator identical to that utilized in the present invention, with amounts of the first LLDPE polymer, amounts of the master batch, and amounts of the second polyethylene and free radical generator in the master batch overlapping with that utilized in the present invention, within the overlapping ranges, the extruded first LLDPE composition necessarily inherently has a complex viscosity ratio (h0.1/h10), a ratio of Mz Abs/ Mw Abs, a molecular distribution Mw Abs/Mn Abs and a weight average molecular weight Mw Abs identical to that presently claimed, absent evidence to the contrary.
Applicants argue that in addition to no natural result flowing from Williamson in view of Bender, Williamson's teaching of countless polyethylenes that can be mixed with a variety of peroxides to form a modified composition is a genus-type disclosure of a modified polyethylene for melt strength properties that cannot render a claim of a species-type LLDPE composition obvious. MPEP § 2144.08 (citing In re Baird, 16 F.3d 380, 382 (Fed. Cir. 1994) ("The fact that a claimed species or subgenus is encompassed by a prior art genus is not sufficient by itself to establish a prima facie case of obviousness."). In Mylan Pharms. Inc. V. Merck Sharp & Dohme Corp., a prior art patent revealed a class of 957 predicted salts that may result from 33 compounds and 8 preferred acids. 50 F.4th 147, 154 (Fed. Cir. 2022). The Federal Circuit upheld the Board's finding that the prior art did not render a claim to a specific salt compound invalid because the teaching of a class of salts was a genus-type disclosure. Id. As in the combination of 33 compounds and 8 preferred acids in Mylan Phams. Inc., Williamson lists a broad class of polyethylenes of 0.900 to 0.970 g/cc and melt index 0.01 to 30 g/10 min in combination with a broad class of free radical generators to make a near infinite number of modified compositions. This genus disclosure to produce a modified polyethylene having an incredibly broad range of properties, without disclosure of the resulting molecular weight properties, cannot be said to teach a LLDPE composition having (1) a complex viscosity ratio (no.1 /n10) of at least 1.7, for complex viscosity measured at 190°C and an angular frequency of 0.1 rad/s and at 10 rad/s; and (2) a ratio Mz Abs/ Mw Abs from 2.9 to 4.0; and (3) a molecular weight distribution Mw Abs/Mₙ Abs of at least 4.5; and (4) a weight average molecular weight Mw Abs of at least 90,000 Da. Bender does not cure these deficiencies of Williamson, and no reason exists for modification such that a prima facie case of obviousness has therefore not been established on this basis as well. See also Atofina v. Great Lakes Chemical Corp., 441 F.3d 991, 999 (Fed. Cir. 2006) (finding that a prior art disclosure of a temperature range of 100 to 500°C did not invalidate a narrower temperature range of 330 to 450°C where the art did not teach a reason for a narrower temperature range).
However, that “..the [prior art] patent discloses a multitude of effective combinations does not render any particular formulation less obvious.….”; See, e.g., Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) See also In re Corkill, 771 F.2d 1496, 1500 (Fed. Cir. 1985) (affirming obviousness rejection of claims in light of prior art teaching that “hydrated zeolites will work” in detergent formulations, even though “the inventors selected the zeolites of the claims from among ‘thousands’ of compounds”).
The fact remains that the extruded first LLDPE composition comprises the first LLDPE polymer and the master batch including the second polyethylene and free radical generator identical to that utilized in the present invention, with amounts of the first LLDPE polymer, amounts of the master batch, and amounts of the second polyethylene and free radical generator in the master batch overlapping with that utilized in the present invention, therefor within the overlapping ranges, the extruded first LLDPE composition necessarily inherently has a complex viscosity ratio (h0.1/h10), a ratio of Mz Abs/ Mw Abs, a molecular distribution Mw Abs/Mn Abs and a weight average molecular weight Mw Abs identical to that presently claimed, absent evidence to the contrary. As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Further, note that while Bender do not disclose all the features of the present claimed invention, Bender 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 a second layer, and in combination with the primary reference, discloses the presently claimed invention.
Applicants argue that furthermore, there is no reasonable expectation of success in arriving at claim 1’s first LLDPE composition from a reading of Williamson. Williamson's teaching of countless polyethylenes that can be mixed with a variety of peroxides to form a modified composition is a genus disclosure of a modified polyolefin for melt strength properties that does not espouse a finite number of predictable solutions. See also Takeda Chem. Indus., Ltd. v. Alphapharm Pty., Ltd., 492 F.3d 1350 (Fed. Cir. 2007) (holding that there was no finite number of predictable solutions and no reasonable expectation of success, where countless compounds were identified). A person of ordinary skill in the art, when reading Williamson, encounters an abundance of possible selections or variables without any specific teachings as to why to create an LLDPE composition having the properties as recited in amended claim 1. Indeed, Williamson discourages increasing molecular weight and is completely silent on any specific molecular weight distribution properties. (See, e.g., Williamson at [0002]). Bender does not cure these deficiencies of Williamson, and SO a prima facie case of obviousness has not been established for this reason as well.
However, the fact remains that a person of ordinary skill in the art can choose any polyethylene resin including Dowlex TG2085 B, which is identical to that utilized in the present invention, absent evidence to the contrary. As evidenced by the present specification, Dowlex TG 2085 B is LLDPE polymer (see page 21, lines 24-25 of present specification). As noted above, given that the extruded first LLDPE composition comprises the first LLDPE polymer and the master batch including the second polyethylene and free radical generator identical to that utilized in the present invention, with amounts of the first LLDPE polymer, amounts of the master batch, and amounts of the second polyethylene and free radical generator in the master batch overlapping with that utilized in the present invention, within the overlapping ranges, the extruded first LLDPE composition necessarily inherently has a complex viscosity ratio (h0.1/h10), a ratio of Mz Abs/ Mw Abs, a molecular distribution Mw Abs/Mn Abs and a weight average molecular weight Mw Abs identical to that presently claimed.
Applicants argue that Willamson is resin and performance centric. Williamson is directed to modifying an incredibly broad class of polyethylene resins by reacting them with a masterbatch comprising a free radical generator, with the express purpose of increasing melt strength and/or low-shear viscosity of the polyethylene. (See, e.g., Williamson at [0002]-[0004]). The technical problem addressed is broad to any form of polyethylene resin with a wide breadth of free radical generators and not specific to films. The processability limitations caused by insufficient melt strength, particularly in extrusion-dominated applications such as films, extrusion coating, pipe, and blow molding. Williamson's disclosure is agnostic as to film layer placement, layer function, or multilayer design considerations. Williamson's examples and experiments do not center around a specific polyethylene-let alone LLDPE. (Id. at [0066]-[0085]). Williamson does not provide guidance on the selection of a specific LLDPE or peroxide or film structure, and there is nothing in Williamson on how the LLDPE could contribute to a multilayer structure's "improved machinability, print performance and lamination performance." (See Office Action at para. 46). By contrast, Bender is directed to multilayer heat-sealable films optimized for print performance, lamination performance, and machinability on packaging equipment, through layer arrangement, functional polymer selection, and slip system control. (See, e.g., Bender [0002]- [0009]). Bender's technical problem is surface interaction and converting performance, particularly avoiding slip migration that degrades printing and lamination through polypropylene or HDPE rich core layers, where Bender does not mention or seek performance related to melt strength in a polymer. (See id. at [0012]-[0016]). Indeed, introducing a higher-melt-strength, higher low-shear-viscosity LLDPE into Bender's core layer as opposed to polypropylene or HDPE rich core layer would not "improve machinability, print performance, and lamination performance" as alleged by the Office, but would decrease such performance or other performance mentioned by Williamson, including barrier performance. (See id). Williamson's modification of melt strength is, if anything, detrimental to Bender's impetus of machinability, print performance, and lamination performance, and the Office's allegations are conclusory on this point. Accordingly, Applicant respectfully submits that the Office is relying on hindsight in selecting a specific LLDPE and peroxide from Williamson's disclosure and combining it with Bender's film against Bender's teachings. A prima facie case has not been established on this basis as well.
As set forth in the office action, Williamson disclose a film comprising extruded first LLDPE composition. Williamson do not disclose a multilayer structure. Bender discloses a multilayer structure that provides improved machinability, print performance and lamination performance. Therefore, it would have been obvious to one of the ordinary skill in the art to use the multilayer film structure comprising core layer (primary layer) comprising a thermoplastic polymer such as polyethylene, a functional layer (third layer) on a first side of the core layer and a heat sealable skin layer (second layer) on a second side of the core layer of Bender et al. as the multilayer film of Williamson et al. such that the film comprising polyethylene of Williamson et al. is used as the core layer, in order to prepare the multilayer structure with improved machinability, print performance and lamination performance, and thereby arrive at the claimed invention.
Regarding “introducing a higher-melt-strength, higher low-shear-viscosity LLDPE into Bender's core layer as opposed to polypropylene or HDPE rich core layer would not "improve machinability, print performance, and lamination performance", it is noted that the examiner is not modifying the core layer of Bender. Instead, the examiner is using polyethylene (extruded first polyethylene composition) of Williamson as a core layer and a functional layer and a heat sealable layer of Bender as third and second layer respectively to prepare the multilayer structure. It is examiner’s position that such multilayer structure of Williamson in view of Bender would improve machinability, print performance, and lamination performance, absent evidence to the contrary.
Regarding “decrease such performance or other performance mentioned by Williamson, including barrier performance”, applicants have provided no evidence (i.e. data) to show that multilayer structure of Williamson in view of Bender would deteriorate barrier performance.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Callie Shosho can be reached at 571-272-1123. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KRUPA SHUKLA/Examiner, Art Unit 1787
/CALLIE E SHOSHO/Supervisory Patent Examiner, Art Unit 1787
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