DETAILED OFFICIAL ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Examiner Note
It is noted that all references hereinafter to Applicant’s specification (“spec”) are to the published application US 2025/0108549, unless stated otherwise. Further, any italicized text utilized hereinafter is to be interpreted as emphasis placed thereupon.
Response to Amendment
The Amendment filed 07 January 2026 in response to the Non-Final Rejection dated 24 October 2025 (hereinafter “NFOA”) has been entered. Claims 21, 26-27, 29, 37-38 and 40 have been amended. As such, claims 21-40 remain pending and under consideration on the merits.
The amendments to the claims have overcome the rejection of claims 26-27, 29, 37-38, and 40 under 35 U.S.C. 112(a) [NFOA, ¶8-11]. As such, the 112(a) rejection has been withdrawn.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 21-40 are rejected under 35 U.S.C. 103 as being unpatentable over Koerner et al. (US 2017/0259486; “Koerner”), in view of:
(i) Higareda et al. (US 2015/0298852; “Higareda”),
(ii) Dubuque (US 2019/0382152; “Dubuque”), and
(iii) Akkapeddi et al. (US 2016/0130434; “Akkapeddi”) (all references previously cited).
De Belder et al. (US 2014/0044904; “De Belder”) (previously cited) is optionally relied upon as an evidentiary reference in support of the grounds of rejection.
Regarding (independent) claims 21, 32, and 40, Koerner discloses an injection molded PET preform (18) and container (10) blow-molded therefrom, said container (10) comprising a first layer (40) defining the outer surface of the wall in the container body, a third layer (44) defining the inner surface of said wall, and a second layer (42) interposed between the first (40) and third (44) layers, i.e. exhibiting the layer arrangement 44/42/40 from the inner surface to the outer surface of the container [Abstract; Figs. 1, 3A; 0019, 0023-0024, 0028, 0036, 0042-0045, 0048-0050].
The first (40) and third (44) layers may be formed from the same material (first material), and the second layer (42) may be formed from a different material (second material) [0028, 0044-0045, 0050].
The first (40) and third (44) layers (first material) suitably consist of PET or virgin PET – free of any additives [0044-0045, 0050].
The second layer (42) (second material) suitably consists of PET or virgin PET, and at least one additive (e.g. only one additive), wherein said additive is an oxygen barrier/scavenger material (hereinafter “barrier additive”) [0030, 0044-0045, 0048-0049]. Koerner discloses that the (at least) one barrier additive is suitably, inter alia a polymer [0030, 0048-0049] – that is, Koerner reasonably discloses that second layer (42) may consist of PET or virgin PET and one barrier additive, wherein said one barrier additive is a polymer capable of decreasing the level of oxygen in the container by preventing/reducing the amount of oxygen that is able to enter the container [0048]. In other words, additives such as catalysts or metals [0030] are not required to be present in addition to said one barrier additive.
The barrier additive present in the second layer (42) defines about 0.1 wt.% to about 20.0 wt.%, such as about 0.1 wt.% to about 5 wt.% of the overall weight of the container [0031]. The barrier additive may be evenly dispersed throughout the second layer (42), randomly dispersed, biased toward an inner portion of the second layer (42), or biased toward an outer portion of the layer [0045].
The third (44), second (42), and first (40) layers of the container (10), respectively, read on the claimed inner portion, intermediate portion, and outer portion, respectively. The range of about 0.1 wt.% to about 5 wt.% of the barrier additive, present in the second layer (42), relative to the overall weight (100 wt.%) of the container encompasses, and thereby renders prima facie obvious the claimed amount of “about 0.35 wt.% of the container” (claim 40) (MPEP 2144.05(I)). The barrier additive in second layer (42) being biased toward the inner portion of the layer reads on “biased toward a center line of the container” (claims 21, 32, and 40).
In view of the totality of the foregoing, with respect to the difference(s) relative to the claimed inventions, Koerner is silent regarding (i) the barrier additive (polymer) being a PTMEG copolymer, and regarding (ii) at least one of the first (40) and third (44) layers consisting of recycled PET.
Higareda, directed to injection-molded PET preforms and containers blow-molded therefrom, e.g. bottles exhibiting volumes of greater or less than 1 L, teaches that the blow-molded containers are suitably formed from up to 100 wt.% post-consumer recycled polyethylene terephthalate (PC-PET), which exhibits an intrinsic viscosity (IV) of less than about 0.80 dL/g [0020-0023, 0033, 0056, 0058-0060, 0067-0068]. Higareda teaches that the PC-PET may be completely free of colorants, toners, slip agents, or any other additives, and is not required to be blended with virgin PET [0037-0039, 0047-0049, 0054-0058, 0081-0082]. Higareda reasonably teaches that PC-PET may be substituted wholly, or in part, for virgin PET to form blow-molded containers that are clear/colorless when it is desirable to view the contents through the walls of the container [0067-0071, 0084; Table 6]. See MPEP 2144.07 – the selection of a known material based on its suitability for its intended use has been held prima facie obvious. See MPEP 2144.06(II) – an express suggestion to substitute one equivalent component for another is not necessary to render such substitution obvious.
Dubuque, directed to preforms and containers blow-molded therefrom, teaches that it was known/recognized in the art that the first material (base layer (50)) – which defines the inner and outer surface layers of the container, said inner and outer surface layers having an oxygen barrier layer interposed therebetween – may be made from any suitable blow-molding grade of PET, e.g. having an IV of about 0.80, e.g. about 0.76 to about 0.82, including post-consumer PET [Abstract; Figs. 1-2, 5; 0018, 0022, 0026]. See MPEP 2144.07; see MPEP 2144.06(II). Dubuque also teaches, or evidences, that suitable polymeric oxygen scavengers for inclusion in the aforesaid oxygen barrier layer (which may include any suitable oxygen scavenger) include, inter alia copolyester-ethers (polyester-polyether copolymers) including (in addition to polyester segments) polyether segments formed from polytetramethylene ether glycol; the oxygen scavenger may be included in the oxygen barrier in the absence of a cobalt catalyst [0026].
Akkapeddi teaches that polyether-polyester copolymers are oxidizable copolymers which are suitably added to PET compositions (forming a single layer of a multilayer container, e.g. bottle) for the purposes of imparting oxygen scavenging capability thereto – the copolymers react irreversibly with oxygen during the scavenging thereof, and the amount of said copolymer included in the PET composition largely governs the oxygen scavenging capacity (overall amount of oxygen which can be scavenged) of the composition [0005, 0012-0013, 0015, 0023, 0025, 0033-0046, 0053-0057, 0064]. The aforesaid reaction with oxygen may be catalyzed by the presence of a transition metal catalyst in the composition, i.e. the rate at which oxygen scavenging occurs may be increased and the induction period (start of scavenging activity) for the composition may be reduced [0053-0054, 0082].
As such, Akkapeddi reasonably teaches, and one of ordinary skill in the art readily recognizes, that in the absence of the catalyst, the scavenging of oxygen by the copolymer necessarily (still) occurs, but at a slower rate or after a relatively longer induction period. In view of the foregoing, Akkapeddi reasonably teaches that the oxidizable polyether-polyester copolymer suitable for use as an oxygen scavenger included in PET compositions for blow-molding applications is, inter alia PTMEG-PET block copolymer [0013, 0041, 0044] (see MPEP 2144.07).
De Belder evidences that it was known to utilize PC-PET [0033] in any of the layers of a blow-molded, gas-barrier, multilayer container formed from an injection-molded preform [0011-0014, 0029-0031, 0033, 0036, 0063].
In view of the combined teachings of the foregoing prior art which are directly analogous to the claimed invention – wherein Koerner discloses that the barrier additive, which is suitably polymeric, can be the only barrier additive present in the second layer (42) – it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to have modified the container (10) of Koerner set forth above by (i) having utilized PTMEG-PET copolymer as the polymeric barrier additive of the second layer (42), and by (ii) having formed at least one, or both of the first (40) and third (44) layers of the container (10) from PC-PET in substitution for virgin PET (or as the “PET” disclosed by Koerner as the alternative to virgin PET). The PTMEG-PET copolymer, as taught by Akkapeddi and additionally disclosed/evidenced by Dubuque, would have been readily recognized as an oxidizable copolymer capable of, and suitable for providing oxygen scavenging capabilities to the container, and compatible with layers formed from PET-based compositions (MPEP 2144.07). The PC-PET would have been recognized as functionally equivalent to virgin PET for use in blow-molding applications, and/or as exhibiting the requisite degree of IV for blow-molding applications (blow-molding grade PET) and substantially identical to virgin PET therefor, given the absence of colorants, toner, slip agents, and other additives (MPEP 2144.07; MPEP 2144.06(II)).
In accordance with the aforesaid modifications (i) and (ii), the container (10) of Koerner (hereinafter interchangeably “modified Koerner”) would have included all of the aforecited features/elements set forth above, wherein the first (40) or third (44) layer, or both the first and third layers, would have been formed from PC-PET (in place of virgin PET, or as the “PET” disclosed by Koerner as the alternative to virgin PET) in the absence of any additives (i.e. consisted of said PC-PET); and wherein the barrier additive (polymeric oxygen scavenger) included in the second layer (42) would have been PTMEG-PET (block) copolymer. The second layer (42) would have consisted of virgin PET or PET and the PTMEG-PET copolymer, said copolymer present in an amount of about 0.1 wt.% to about 5 wt.% relative to the overall weight of the container (MPEP 2144.05(I)), and said PTMEG-PET copolymer biased toward the inner portion of the second layer (42).
The container (10) of modified Koerner, wherein one or both of layers (40) and (44) consist of PC-PET, reads on the finished container defined by claim 21.
The container (10) of modified Koerner, wherein both layers (40) and (44) consist of PC-PET, reads on the finished container defined by claim 32, and the finished container defined by claim 40.
Regarding claims 22-25, the rejection of claim 21 above reads on each finished container defined by claims 22-25 – the range of about 0.1 wt.% to about 5 wt.% of PTMEG-PET copolymer (present in second layer (42)) relative to the overall weight of the container overlaps with/encompasses the claimed ranges, thereby rendering said ranges prima facie obvious (MPEP 2144.05(I)).
Regarding claims 26-27, the rejection of claim 21 above reads on each finished container defined by claims 26 -27 – the barrier additive present in the second layer (42) consists of the PTMEG-PET copolymer.
Regarding claim 28, the rejection of claim 21 above reads on the finished container defined by claim 28 – the PC-PET forming one or both of first (40) and third (44) layer(s) of the container of modified Koerner reads on the claimed recycled material which comprises PET.
Regarding claim 29, in view of the rejection of claim 21 above, Koerner discloses/teaches that, inter alia (i) layers (44), (42), and (40) may exhibit the same thickness; (ii) that (44) and (40) may exhibit the same thickness and (42) may exhibit a thickness which is greater than or less than that of (44) and (40); or (iii) that at least one of (44), (42), and (40) may exhibit a thickness which is greater than the thickness of one of (44), (42), and (40) [0051]. In accordance with (iii), the disclosure of Koerner implicitly encompasses, and thereby reasonably teaches and renders prima facie obvious the thickness of, inter alia the outer layer (40) being greater than the thickness of inner layer (44). Additionally, see MPEP 2144.04(IV)(A) and MPEP 2143(I)(E). The embodiment of the container of modified Koerner, wherein the outer layer (40) exhibits a layer thickness greater than that of inner layer (44), reads on the finished container defined by claim 29.
Regarding claim 30, the rejection of claim 21 above reads on the finished container defined by claim 30 – the wall of the container (10) of modified Koerner, in the body portion thereof consists of layers (40), (42), and (44), of which respectively read on the claimed inner, intermediate, and outer portions.
Regarding claim 31, in view of the rejection of claim 21 above, the disclosure of Koerner reasonably encompasses embodiments of the container (10) wherein the, inter alia second layer (42) exhibits a uniform thickness along at least a portion of the overall (axial) length of the container (10); or along at least a portion of, or the entirety of, the (axial) length of the body portion of the container [Fig. 3A; 0050]. Either of the aforesaid embodiments read on the finished container defined by claim 31.
Regarding claims 33-36, the rejection of claim 32 above (container of modified Koerner, wherein each of the first (40) and third (44) layers consist of PC-PET) reads on each finished container defined by claims 33-36 – the range of about 0.1 wt.% to about 5 wt.% of PTMEG-PET copolymer (present in second layer (42)) relative to the overall weight of the container overlaps with/encompasses the claimed ranges, thereby rendering said ranges prima facie obvious (MPEP 2144.05(I)).
Regarding claims 37-38, the rejection of claim 32 above reads on each finished container defined by claims 26-27 – the barrier additive present in the second layer (42) consists of the PTMEG-PET copolymer.
Regarding claim 39, the rejection of claim 32 above reads on the finished container defined by claim 39 – the PC-PET forming both of the first (40) and third (44) layers of the container of modified Koerner reads on the claimed recycled material which comprises PET.
Response to Arguments
Applicant’s arguments presented on pp. 6-9 of the Remarks filed 07 January 2026, directed to the rejection of the claims under 35 U.S.C. 103 previously set forth in the NFOA and maintained hereinabove, have been fully considered but not found persuasive.
Applicant asserts (1) that Koerner [id., 0045] does not explicitly disclose, teach, or suggest a barrier layer which is biased toward a center line of the container, and/or (2) appears to be asserting that Koerner does not disclose, teach, or suggest the claimed oxygen barrier being biased toward a center line of the container, and thereby the prima facie case of obviousness established in the grounds of rejection is merely conclusory.
Regarding (1), it is noted that the grounds of rejection are not based upon a disclosure in Koerner of the intermediate layer itself being biased towards the center line, as the claimed inventions do not recite/require a barrier layer which is biased in said manner – see ¶12 above and Koerner [0045]. Rather, the claimed inventions require the oxygen barrier – which defines in-part the intermediate portion along with PET – being biased toward a center line. That is, the claimed inventions require that the oxygen barrier itself, i.e. a PTMEG-PET copolymer additive, be biased toward the centerline – the claimed inventions do not recite/require the intermediate portion to be biased. As such, it appears Applicant has misconstrued the grounds of rejection, and/or intentionally or unintentionally misinterpreted or conflated the claimed terms “intermediate portion” and “oxygen barrier” in view of the spec and as they relate to one another.
Regarding (2), the Examiner respectfully disagrees. It is first noted, in relation to the claimed oxygen barrier bias toward the center line of the container, that Applicant’s spec refers to the “center line of the container” three times in total [0032]. The center line of the container is not explicitly defined. Thus, the broadest reasonable interpretation of the center line of the container, as claimed and in view of the spec, encompasses/is the theoretical line extending vertically/axially from [a] bottom to [a] top/mouth of the container and which is equidistant from outer surfaces of the container wall which are located respectively 180° from each another in the circumferential direction.
Thereafter the aforesaid disclosure of the center line, the spec indicates that said bias is in relation to the midline (ML), i.e. a theoretical line which is equidistant from the inner surface (44a) of inner portion (44) and the outer surface (40a) of outer portion (40) of the wall thickness of the container [Figs. 5-6; 0062], wherein intermediate portion (42) (inclusive of oxygen barrier dispersed or concentrated therein [0054, 0057]) may be positioned closer to inner surface (44a), i.e. within second portion (arrow 66) [Fig. 6; 0062]; or equidistant between (44a) and (40a) [0062]; or closer to the outer surface (40a) [Fig. 6; 0062], i.e. within first portion (arrow 64).
As such, it is understood that “biased toward the center line of the container” as claimed is, or may be, represented by intermediate portion (42) being positioned closer to inner surface (44a) with respect to the midline (ML), i.e. within second portion (arrow 66) [Figs. 6; 0062].
In view of the foregoing, Koerner explicitly discloses that the inner portion of layer (42) may comprise more of the additive (oxygen barrier) than an outer portion of layer (42) [Koerner, 0045] – see ¶12-13 above, see [NFOA, ¶20-21]. That is, Koerner discloses that the concentration (i.e. amount, e.g. “more of”) of the additive within an inner portion of layer (42) is higher than that within an outer portion of layer (42), of which is readily and reasonably interpreted – in accordance with the convention of the terms “inner” and “outer” utilized in Koerner – as being concentrated (within layer (42)) toward the inner surface of the container (i.e. toward the surface of inner layer (44), equivalent to Applicant’s designation (44a)). Therefore, Koerner discloses/teaches that the oxygen barrier may be concentrated, i.e. biased toward the center line of the container, as claimed and in view of Applicant’s specification. It is respectfully noted that “biased toward”, as claimed, is not so limiting so as to exclude the presence of lesser amounts of the oxygen barrier (additive) in other areas/sections of the intermediate layer.
For the reasons above, it is clear that Koerner is not silent regarding the relative positioning of the oxygen barrier (additive) included in the intermediate layer (42), and was not relied upon for a disclosure or teaching of the intermediate layer (42) itself being biased relative to the center line of the container. Therefore, it is maintained that the established prima facie case of obviousness is not merely conclusory, and Applicant’s arguments have not been found persuasive.
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 Michael C. Romanowski whose telephone number is (571)270-1387. The Examiner can normally be reached M-F, 09:30-17:30.
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If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s supervisor, Aaron Austin can be reached at (571) 272-8935. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MICHAEL C. ROMANOWSKI/Primary Examiner, Art Unit 1782
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