DETAILED 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 .
Claims Status
Claims 1-4 and 6-19 are pending. New claims 7-19 are added.
Response to Arguments/Amendments
Applicant's amendment and arguments filed with respect to present claim(s) 1-4 and 6 rejected under 35 U.S.C. 103 as being unpatentable over Collette et al. (US 5,759,653; “Collette”) in view of Merical et al. (US 2008/0185301; “Merical”) and Klein et al. (US 2016/0039955; “Klein”) have been fully considered but they are not found persuasive for at least the following reasons.
Applicant contends that (1) Collette does not teach a skin layer is of an oxygen permeable material as instantly claimed, because Collette teaches (in some embodiments) that the inner and outer layer of Collette may be virgin grade PET, and per applicant, the virgin grade PET is not considered an oxygen permeable material (see applicant’s Remark’s at page 10, last paragraph); and (2) Collette teaches (i.e., it appears that applicant takes a position that in an alternative embodiment of Collette) the inclusion of a skin layer of EVOH that is not highly permeable to oxygen (remarks, page 11, second para), and per applicant, unlike the EVOH of Collette, the oxygen permeable material as recited in instant claim 1 as amended is permeable to oxygen even in the absence of water (see applicant’s Remark’s at page 12, first paragraph).
In response to contention (1), Applicant's arguments have been carefully studied and fully considered but they are not found persuasive. It is known that virgin grade PET (taught by Collette or elsewhere) would certainly have at least some level of oxygen permeability, contrary to applicant’s assertion. Instant claim 1 does not recite any specific level of oxygen permeability for the skin layer.
In response to contention (2), Applicant's arguments have been carefully studied and fully considered but they are not found persuasive. Again, instant claim 1 does not recite or require any specific level (i.e., highly permeable) of oxygen permeability for the skin layer. Also, it is noted that the features upon which applicant relies (i.e., permeable to oxygen even in the absence of water) are not recited/required in the rejected claims. Claim 1 as amended recites “…a skin layer, wherein the skin layer is made of an oxygen permeable material”. Instant claim 1 does not recite or require permeable to oxygen even in the absence of water, contrary to applicant’s assertion. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181,26 USPQ2d 1057 (Fed. Cir. 1993).
Any rejections and/or objections, made in the previous Office Action, and not repeated in the present Office Action, are hereby withdrawn.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
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.
Claims 1-4 and 6-9 are rejected under 35 U.S.C. 112(a) as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1, as amended, recites a coextruded composite includes “…a skin layer, wherein the skin layer is made of an oxygen permeable material”. Applicant pointed to instant specification para [0028] [0056] for support of the amendment. The pointed paragraphs and the remainder of the instant specification have been carefully studied. However, it is noted that instant specification at para [0028] [0056] and the remainder of the specification merely describes the inclusion of a skin layer of “plastic material, optionally a low-density polyethylene material” (see para [0056]). The instant specification does not describe a skin layer of an oxygen permeable material.
In addition, the instant specification, while being enabling for a skin layer of “plastic material, optionally a low density polyethylene material, does not reasonably provide enablement for the inclusion of a skin layer, wherein the skin layer is made of all possible oxygen permeable material. The specification does not enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make the invention commensurate in scope with these claims. Claims 2-4 and 6-9 are rejected due to their dependency of claim 1. Appropriate correction and clarification is required.
Claims 1-4 and 6-9 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 1, as amended, recites a coextruded composite includes - in addition to a barrier layer, an oxygen scavenging layer – a skin layer. However, it is not clear what the layer order configuration of the newly recited skin layer is in relation to the barrier layer and the oxygen scavenging layer. Such indefiniteness of claim 1 is further noted, as claim 1 at the later step of “passing air into the opening”, recites that “wherein the sidewall, the neck and the base include the barrier layer and the oxygen scavenging layer coextruded with and thereby attached to the barrier layer”, of which the skin layer is not included. Claims 2-4 and 6-9 are rejected due to their dependency of claim 1. For purpose of examination, the examiner considers prior art reference that teaches a coextruded composite otherwise reads on the instantly claimed coextruded composite as meeting the claimed limitations. Appropriate correction and clarification is required.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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.
Claim(s) 1-4 and 6-8 and 10-19 are rejected under 35 U.S.C. 103 as being unpatentable over Collette et al. (US 5,759,653; “Collette”) in view of Merical et al. (US 2008/0185301; “Merical”) and Klein et al. (US 2016/0039955; “Klein”).
Regarding claims 1 and 3, Collette teaches a method of manufacturing a bottle (col. 3, lines 51-67, Fig. 6, bottle 110), the bottle (110) comprising a base (113), a sidewall (117) extending from the base, and a neck extending from the sidewall, the neck leading to a dispensing opening (111), the base and the sidewall defining an interior (see annotated Fig. 6) configured to house at least one product, the neck having a first cross sectional area and the sidewall having a second cross sectional area, the first cross sectional area being smaller than the second cross sectional area (see annotated Fig. 6 below for respective references to base, sidewall, neck, cross sectional areas, col. 3, lines 51-67, the configuration of the bottle 110 of Collette meets the claimed structural limitations of the instantly claimed bottle).
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Collette teaches the process of making its container bottle includes the step of providing a stock component having a coextruded composite having a barrier layer (76) and an oxygen scavenging layer (77) (Fig. 4 above, col.7, lines 44-59, col. 5, lines 64, the multilayer laminated/coextruded perform of Collette having a barrier layer and an oxygen scavenging layer). Collette teaches the inclusion of the additional layer (i.e., inner or outer layer) (col. 6, lines 5-15), such inner or outer layer of the laminate of Collette is considered being a skin layer of oxygen permeable material meeting the claimed limitations. See 35 U.S.C. 112 (a) and 35 U.S.C. 112 (b) rejection of claim 1 made of record in this Office Action.
Collette teaches the manufacturing process of making its bottle via blow molding, of which the preform having the barrier layer (76) and the oxygen scavenging layer (77) are being blow-molded together and contiguous with each other along the sidewall, the neck and the base (col. 7, lines 21-23, and col. 7, lines 59-67, see Fig. 4). Collette teaches in its bottle, the barrier layer (76) is being disposed external relative to the oxygen scavenging layer (77) (see Fig. 4, col. 7, lines 44-47, the barrier layer 76 is the outer most layer, and is being external relative to the middle oxygen scavenging layer (77), meeting the claimed limitations), the barrier layer (76) is being made of a plastic material (col. 7, lines 44-47, the barrier layer (76) is of PET, which is a plastic material), meeting the claimed limitations.
As discussed above, Collette teaches the manufacturing process of making its bottle via blow molding (col. 7, lines 21-23).
However, Collette does not specifically teach the specific steps of inserting an apparatus into an opening in the stock component and passing air into the opening. Those steps are well known steps in blow molding process. Merical is cited in this regard.
Merical teaches the manufacturing process of making multilayer container bottle includes blow molding, co-extrusion blowing molding (para [0024]). Merical teaches the step of inserting an apparatus into an opening in the stock component (para [0027], tube is pierced at the top with an apparatus and inserting an air providing apparatus); and passing air into the opening of the stock component in order to form the bottle (para [0027], air is being injected into the opening of the tube to inflate the tube to form the bottle), which steps read on the instantly claimed method of claim 1. Also, as shown in Fig. 1 of Merical, the process taught by Merical produces a container (10) of which the outer layer (21) and the inner layer (22) of the container (10) are attached at the neck, sidewall and base of the container (Fig. 1), meeting the instantly claimed limitations of claim 1.
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It would have been obvious to one of ordinary skill in the art to modify Collette in view the teachings of Merical, to include the step of inserting an apparatus into an opening in the stock component (the preform of Collett) and to further include the step of passing air into the opening of the stock component (the preform of Collett) in order to form the blow molded bottle as taught by Merical (para [0027]), because those steps are known steps in the blow molding process for making blow-molded bottle as taught by Merical (para [0024], [0027]), which would have predictably arrived at a bottle wherein the barrier layer and the oxygen scavenging layer are being blow-molded together and contiguous with each other along the sidewall, the neck and the base as taught by Merical.
Further, it is noted that Collette teaches its oxygen scavenger layer is being made of a monolithic composition comprising a mixture includes a base polymer, an oxygen scavenger (col. 9, lines 25-35, and col. 10, lines 61-67, includes the base polymers such as polyester and/or polycarbonates, and includes suitable oxygen scavengers).
Collette does not specifically teach the inclusion of a polymeric channeling agent in the polymer composition for its oxygen scavenger layer (that includes base polymer and desiccant), of which the channeling agent having a gas transmission rate greater than the base polymer, the monolithic composition for the desiccant layer comprising interconnecting channels formed of the channeling agent, as instantly claimed in claims 1 and 3.
Klein teaches a container and method of making the container (para [0009], [0015], [0052], [0055] [0079], [0090], see Fig. 6, container 61), of which the container comprising a base; and a sidewall extending from the base, and that the sidewall and the base has a barrier layer (60) and a liner layer/oxygen scavenger layer (70) attached to the barrier layer (para [0090]) (see Fig. 6, para [0053] [0087] [0090] [0091]). Klein also teaches its liner layer/oxygen scavenger layer (70) being made of a monolithic composition comprising a mixture of a base polymer (25), an active agent that is oxygen scavenger/oxygen absorber (30) (para [0087]), and a polymeric channeling agent (35) having a gas transmission rate greater than the base polymer (para [0025], [0034], [0087], the monolithic composition includes the base polymer 25, active agent 30 that is of oxygen scavenger/oxygen absorber having a gas transmission rate at least twice greater than the base polymer). Klein also teaches at para [0035] that suitable polymeric channeling agent materials include ethylene vinyl acetate (EVA), meeting the claimed material limitations of instant claim 1 and instant claim 3 for the polymeric channeling agent. Klein teaches the monolithic composition comprising interconnecting channels formed of the channeling agent (para 0087).
Klein teaches the inclusion of a polymeric channeling agent (35) to the mixture of the base polymer and the oxygen scavenger provides a polymer composition suitable for use as packaging material that is substantially lower extractable (para [0006] [0113]). Klein teaches that the channeling agent does not migrate into the packaged product (para [0004]). Klein teaches its composition is suitable for applications in co-molding process and vacuum molding, etc. (para [0088], [0094] [0095]).
It would have been obvious to one of ordinary skill in the art to modify the modified Collette in view the teachings of Klein, to include the channeling agent taught by Klein in the monolithic polymer composition for forming the oxygen scavenger layer of the multilayer bottle of Collette (that includes the base polymer and the oxygen scavenger of Collette), motivated by the desire to provide an improved monolithic polymer composition for making an improved oxygen scavenger layer of the bottle of Collette that is substantially lower extractable as taught by Klein (para [0006], i.e., which monolithic polymer composition includes base polymer and oxygen scavenger and the channeling agent of ethylene vinyl acetate (EVA), and that polymeric channeling agent having a gas transmission rate greater than the base polymer, and that comprising interconnecting channels formed of the channeling agent as taught by Klein, para [0006] [0025][0026]), which would have predictably arrived at a satisfactory monolithic polymer composition for the oxygen scavenger layer that is the same as instantly claimed.
Regarding claim 2 and 7-8, Collette teaches the dimensions and wall/layers thickness, i.e., the thickness of barrier layer and/or oxygen scavenging layer and/or skin layer, are not critical and can be selected depending on the intended applications (col. 7, lines 55-57).
In the same field of manufacturing process of making multilayer container bottle includes blow molding (para [0024]), Merical teaches a bottle having the barrier layer (21) that has a thickness of about 20 to 50 mils to provide required rigidity and durability to meet commercial performance requirements (para 0035]), which range overlaps with the instantly claimed range of 20 to 40 mils. Merical teaches the bottle having the oxygen scavenging layer that has a thickness of about 10 to 25 mils to provide required rigidity and durability to meet commercial performance requirements (para 0035]), which range overlaps with the instantly claimed range of 20 to 40 mils. In the case where the claimed ranges “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). MPEP 2144.05.
It would have been obvious to a person of ordinary skill in the art at the time of the invention to modify Collette in view the teachings of Merical, to provide the barrier layer and the oxygen scavenging layer and the skin layer with suitable thickness as taught by Merical (para 0035]) (which thickness ranges overlap with instantly claimed thickness ranges, respectively, as discussed above), to provide desired rigidity and durability to meet commercial performance requirements as taught by Merical.
Regarding claim 4, as discussed above in rejection to claim 1, modified Collette teaches a bottle having an oxygen scavenger layer of a monolithic polymer composition includes the channeling agent (taught by Klein). Klein teaches the suitable amount of the channeling agent is about 2% to 10% by weight with respect to total weight of the monolithic composition (col. 11, lines 1-2, and see claim 65 of Klein), which range overlaps with the instantly claimed range of 2 to 15% by weight with respect to total weight of the monolithic composition. In the case where the claimed ranges “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). MPEP 2144.05.
It would have been obvious to one of ordinary skill in the art to modify Collette in view the teachings of Klein, to include the suitable amount of channeling agent in the monolithic polymer composition taught by Klein for the oxygen scavenger layer of the multilayer bottle of oxygen scavenger layer, which would have predictably arrived at a satisfactory monolithic polymer composition that is the same as instantly claimed.
Regarding claim 6, Collette teaches the dimensions and wall thickness are not critical and can be select depending on the intended applications (col. 7, lines 55-57).
In the same field of manufacturing process of making multilayer container bottle includes blow molding, co-extrusion blowing molding (para [0024]), Merical teaches as in one its embodiment a multilayer bottle has a total wall thickness of about 45 mils to provide required rigidity and durability to meet commercial performance requirements (para [0035]), which range overlaps with the instantly claimed range of 10 to 80 mils. In the case where the claimed ranges “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). MPEP 2144.05.
It would have been obvious to a person of ordinary skill in the art to modify Collette in view the teachings of Merical, to provide the bottle with suitable total wall thickness as taught by Merical (para 0035]) (which thickness range overlaps with instantly claimed thickness range, as discussed above), to provide desired rigidity and durability to meet commercial performance requirements as taught by Merical.
Regarding claims 10 and 12, Collette teaches a method of manufacturing a bottle (col. 3, lines 51-67, Fig. 6, bottle 110), the bottle (110) comprising a base (113), a sidewall (117) extending from the base, and a neck extending from the sidewall, the neck leading to a dispensing opening (111), the base and the sidewall defining an interior (see annotated Fig. 6) configured to house at least one product, the neck having a first cross sectional area and the sidewall having a second cross sectional area, the first cross sectional area being smaller than the second cross sectional area (see annotated Fig. 6 below for respective references to base, sidewall, neck, cross sectional areas, col. 3, lines 51-67, the configuration of the bottle 110 of Collette meets the claimed structural limitations of the instantly claimed bottle).
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Collette teaches the process of making its container bottle includes the step of providing a stock component having a coextruded composite (col. 4, lines 5-30). Collette teaches as in one of its embodiments that the coextruded composite includes an inner/barrier layer and further includes an oxygen scavenging layer (col. 4, lines 5-10), and in such embodiment, the composite does not include further layers bounded to the oxygen scavenging layer, and thus, reads on the instantly claimed limitations that the oxygen scavenging layer being unbounded by any other layer on a side that is not facing the barrier layer. Collette teaches the manufacturing process of making its bottle via blow molding, of which the preform having the barrier layer and the oxygen scavenging layer are being blow-molded together and contiguous with each other along the sidewall, the neck and the base (col. 4, lines 5-30, col. 7, lines 21-23, and col. 7, lines 59-67). Collette teaches in its bottle, the barrier layer is being disposed external relative to the oxygen scavenging layer (col. 4, lines 5-30) meeting the claimed limitations). Collette teaches as in one of its embodiments the barrier layer is being made of a plastic material (col. 7, lines 44-47, the barrier layer (76) is of PET, which is a plastic material), meeting the claimed limitations.
As discussed above, Collette teaches the manufacturing process of making its bottle via blow molding (col. 7, lines 21-23).
However, Collette does not specifically teach the specific steps of inserting an apparatus into an opening in the stock component and passing air into the opening. Those steps are well known steps in blow molding process. Merical is cited in this regard.
Merical teaches the manufacturing process of making multilayer container bottle includes blow molding, co-extrusion blowing molding (para [0024]). Merical teaches the step of inserting an apparatus into an opening in the stock component (para [0027], tube is pierced at the top with an apparatus and inserting an air providing apparatus); and passing air into the opening of the stock component in order to form the bottle (para [0027], air is being injected into the opening of the tube to inflate the tube to form the bottle), which steps read on the instantly claimed method of claim 10. Also, as shown in Fig. 1 of Merical, the process taught by Merical produces a container (10) of which the outer layer (21) and the inner layer (22) of the container (10) are attached at the neck, sidewall and base of the container (Fig. 1), meeting the instantly claimed limitations of claim 10.
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It would have been obvious to one of ordinary skill in the art to modify Collette in view the teachings of Merical, to include the step of inserting an apparatus into an opening in the stock component (the preform of Collett) and to further include the step of passing air into the opening of the stock component (the preform of Collett) in order to form the blow molded bottle as taught by Merical (para [0027]), because those steps are known steps in the blow molding process for making blow-molded bottle as taught by Merical (para [0024], [0027]), which would have predictably arrived at a bottle wherein the barrier layer and the oxygen scavenging layer are being blow-molded together and contiguous with each other along the sidewall, the neck and the base as taught by Merical.
Further, it is noted that Collette teaches its oxygen scavenger layer is being made of a monolithic composition comprising a mixture includes a base polymer, an oxygen scavenger (col. 9, lines 25-35, and col. 10, lines 61-67, includes the base polymers such as polyester and/or polycarbonates, and includes suitable oxygen scavengers).
Collette does not specifically teach the inclusion of a polymeric channeling agent in the polymer composition for its oxygen scavenger layer (that includes base polymer and desiccant), of which the channeling agent having a gas transmission rate greater than the base polymer, the monolithic composition for the desiccant layer comprising interconnecting channels formed of the channeling agent, as instantly claimed in claims 10 and 12.
Klein teaches a container and method of making the container (para [0009], [0015], [0052], [0055] [0079], [0090], see Fig. 6, container 61), of which the container comprising a base; and a sidewall extending from the base, and that the sidewall and the base has a barrier layer (60) and a liner layer/oxygen scavenger layer (70) attached to the barrier layer (para [0090]) (see Fig. 6, para [0053] [0087] [0090] [0091]). Klein also teaches its liner layer/oxygen scavenger layer (70) being made of a monolithic composition comprising a mixture of a base polymer (25), an active agent that is oxygen scavenger/oxygen absorber (30) (para [0087]), and a polymeric channeling agent (35) having a gas transmission rate greater than the base polymer (para [0025], [0034], [0087], the monolithic composition includes the base polymer 25, active agent 30 that is of oxygen scavenger/oxygen absorber having a gas transmission rate at least twice greater than the base polymer). Klein also teaches at para [0035] that suitable polymeric channeling agent materials include ethylene vinyl acetate (EVA), meeting the claimed material limitations of instant claim 10 and instant claim 12 for the polymeric channeling agent. Klein teaches the monolithic composition comprising interconnecting channels formed of the channeling agent (para 0087).
Klein teaches the inclusion of a polymeric channeling agent (35) to the mixture of the base polymer and the oxygen scavenger provides a polymer composition suitable for use as packaging material that is substantially lower extractable (para [0006] [0113]). Klein teaches that the channeling agent does not migrate into the packaged product (para [0004]). Klein teaches its composition is suitable for applications in co-molding process and vacuum molding, etc. (para [0088], [0094] [0095]).
It would have been obvious to one of ordinary skill in the art to modify the modified Collette in view the teachings of Klein, to include the channeling agent taught by Klein in the monolithic polymer composition for forming the oxygen scavenger layer of the multilayer bottle of Collette (that includes the base polymer and the oxygen scavenger of Collette), motivated by the desire to provide an improved monolithic polymer composition for making an improved oxygen scavenger layer of the bottle of Collette that is substantially lower extractable as taught by Klein (para [0006], i.e., which monolithic polymer composition includes base polymer and oxygen scavenger and the channeling agent of ethylene vinyl acetate (EVA), and that polymeric channeling agent having a gas transmission rate greater than the base polymer, and that comprising interconnecting channels formed of the channeling agent as taught by Klein, para [0006] [0025][0026]), which would have predictably arrived at a satisfactory monolithic polymer composition for the oxygen scavenger layer that is the same as instantly claimed.
Regarding claim 11, Collette teaches the dimensions and wall/layers thickness, i.e., the thickness of barrier layer and/or oxygen scavenging layer and/or skin layer, are not critical and can be selected depending on the intended applications (col. 7, lines 55-57).
In the same field of manufacturing process of making multilayer container bottle includes blow molding (para [0024]), Merical teaches a bottle having the barrier layer (21) that has a thickness of about 20 to 50 mils to provide required rigidity and durability to meet commercial performance requirements (para 0035]), which range overlaps with the instantly claimed range of 20 to 40 mils. Merical teaches the bottle having the oxygen scavenging layer that has a thickness of about 10 to 25 mils to provide required rigidity and durability to meet commercial performance requirements (para 0035]), which range overlaps with the instantly claimed range of 20 to 40 mils. In the case where the claimed ranges “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). MPEP 2144.05.
It would have been obvious to a person of ordinary skill in the art at the time of the invention to modify Collette in view the teachings of Merical, to provide the barrier layer and the oxygen scavenging layer and the skin layer with suitable thickness as taught by Merical (para 0035]) (which thickness ranges overlap with instantly claimed thickness ranges, respectively, as discussed above), to provide desired rigidity and durability to meet commercial performance requirements as taught by Merical.
Regarding claim 13, as discussed above in rejection to claim 10, modified Collette teaches a bottle having an oxygen scavenger layer of a monolithic polymer composition includes the channeling agent (taught by Klein). Klein teaches the suitable amount of the channeling agent is about 2% to 10% by weight with respect to total weight of the monolithic composition (col. 11, lines 1-2, and see claim 65 of Klein), which range overlaps with the instantly claimed range of 2 to 15% by weight with respect to total weight of the monolithic composition. In the case where the claimed ranges “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). MPEP 2144.05.
It would have been obvious to one of ordinary skill in the art to modify Collette in view the teachings of Klein, to include the suitable amount of channeling agent in the monolithic polymer composition taught by Klein for the oxygen scavenger layer of the multilayer bottle of oxygen scavenger layer, which would have predictably arrived at a satisfactory monolithic polymer composition that is the same as instantly claimed.
Regarding claim 14, Collette teaches the dimensions and wall thickness are not critical and can be select depending on the intended applications (col. 7, lines 55-57).
In the same field of manufacturing process of making multilayer container bottle includes blow molding, co-extrusion blowing molding (para [0024]), Merical teaches as in one its embodiment a multilayer bottle has a total wall thickness of about 45 mils to provide required rigidity and durability to meet commercial performance requirements (para [0035]), which range overlaps with the instantly claimed range of 10 to 80 mils. In the case where the claimed ranges “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). MPEP 2144.05.
It would have been obvious to a person of ordinary skill in the art to modify Collette in view the teachings of Merical, to provide the bottle with suitable total wall thickness as taught by Merical (para 0035]) (which thickness range overlaps with instantly claimed thickness range, as discussed above), to provide desired rigidity and durability to meet commercial performance requirements as taught by Merical.
Regarding claims 15 and 17, Collette teaches a method of manufacturing a bottle (col. 3, lines 51-67, Fig. 6, bottle 110), the bottle (110) comprising a base (113), a sidewall (117) extending from the base, and a neck extending from the sidewall, the neck leading to a dispensing opening (111), the base and the sidewall defining an interior (see annotated Fig. 6) configured to house at least one product, the neck having a first cross sectional area and the sidewall having a second cross sectional area, the first cross sectional area being smaller than the second cross sectional area (see annotated Fig. 6 below for respective references to base, sidewall, neck, cross sectional areas, col. 3, lines 51-67, the configuration of the bottle 110 of Collette meets the claimed structural limitations of the instantly claimed bottle).
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Collette teaches the process of making its container bottle includes the step of providing a stock component having a coextruded composite having a barrier layer (76) and an oxygen scavenging layer (77) (Fig. 4 above, col.7, lines 44-59, col. 5, lines 64, the multilayer laminated/coextruded perform of Collette having a barrier layer and an oxygen scavenging layer).
Collette teaches the manufacturing process of making its bottle via blow molding, of which the preform having the barrier layer (76) and the oxygen scavenging layer (77) are being blow-molded together and contiguous with each other along the sidewall, the neck and the base (col. 7, lines 21-23, and col. 7, lines 59-67, see Fig. 4). Collette teaches in its bottle, the barrier layer (76) is being disposed external relative to the oxygen scavenging layer (77) (see Fig. 4, col. 7, lines 44-47, the barrier layer 76 is the outer most layer, and is being external relative to the middle oxygen scavenging layer (77), meeting the claimed limitations), the barrier layer (76) is being made of a plastic material (col. 7, lines 44-47, the barrier layer (76) is of PET, which is a plastic material), meeting the claimed limitations.
Collette teaches product filling the bottle as desired (Fig. 1, the filling bottle step).
It would have been obvious to one of ordinary skill in the art to modify Collette, to select and fill the bottle with any desired products, including solids, pills and/or powder, to meet the intended end applications. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.05.
As discussed above, Collette teaches the manufacturing process of making its bottle via blow molding (col. 7, lines 21-23).
However, Collette does not specifically teach the specific steps of inserting an apparatus into an opening in the stock component and passing air into the opening. Those steps are well known steps in blow molding process. Merical is cited in this regard.
Merical teaches the manufacturing process of making multilayer container bottle includes blow molding, co-extrusion blowing molding (para [0024]). Merical teaches the step of inserting an apparatus into an opening in the stock component (para [0027], tube is pierced at the top with an apparatus and inserting an air providing apparatus); and passing air into the opening of the stock component in order to form the bottle (para [0027], air is being injected into the opening of the tube to inflate the tube to form the bottle), which steps read on the instantly claimed method of claim 1. Also, as shown in Fig. 1 of Merical, the process taught by Merical produces a container (10) of which the outer layer (21) and the inner layer (22) of the container (10) are attached at the neck, sidewall and base of the container (Fig. 1), meeting the instantly claimed limitations of claim 15.
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It would have been obvious to one of ordinary skill in the art to modify Collette in view the teachings of Merical, to include the step of inserting an apparatus into an opening in the stock component (the preform of Collett) and to further include the step of passing air into the opening of the stock component (the preform of Collett) in order to form the blow molded bottle as taught by Merical (para [0027]), because those steps are known steps in the blow molding process for making blow-molded bottle as taught by Merical (para [0024], [0027]), which would have predictably arrived at a bottle wherein the barrier layer and the oxygen scavenging layer are being blow-molded together and contiguous with each other along the sidewall, the neck and the base as taught by Merical.
Further, it is noted that Collette teaches its oxygen scavenger layer is being made of a monolithic composition comprising a mixture includes a base polymer, an oxygen scavenger (col. 9, lines 25-35, and col. 10, lines 61-67, includes the base polymers such as polyester and/or polycarbonates, and includes suitable oxygen scavengers).
Collette does not specifically teach the inclusion of a polymeric channeling agent in the polymer composition for its oxygen scavenger layer (that includes base polymer and desiccant), of which the channeling agent having a gas transmission rate greater than the base polymer, the monolithic composition for the desiccant layer comprising interconnecting channels formed of the channeling agent, as instantly claimed in claims 15 and 17.
Klein teaches a container and method of making the container (para [0009], [0015], [0052], [0055] [0079], [0090], see Fig. 6, container 61), of which the container comprising a base; and a sidewall extending from the base, and that the sidewall and the base has a barrier layer (60) and a liner layer/oxygen scavenger layer (70) attached to the barrier layer (para [0090]) (see Fig. 6, para [0053] [0087] [0090] [0091]). Klein also teaches its liner layer/oxygen scavenger layer (70) being made of a monolithic composition comprising a mixture of a base polymer (25), an active agent that is oxygen scavenger/oxygen absorber (30) (para [0087]), and a polymeric channeling agent (35) having a gas transmission rate greater than the base polymer (para [0025], [0034], [0087], the monolithic composition includes the base polymer 25, active agent 30 that is of oxygen scavenger/oxygen absorber having a gas transmission rate at least twice greater than the base polymer). Klein also teaches at para [0035] that suitable polymeric channeling agent materials include ethylene vinyl acetate (EVA), meeting the claimed material limitations of instant claim 15 and instant claim 17 for the polymeric channeling agent. Klein teaches the monolithic composition comprising interconnecting channels formed of the channeling agent (para 0087).
Klein teaches the inclusion of a polymeric channeling agent (35) to the mixture of the base polymer and the oxygen scavenger provides a polymer composition suitable for use as packaging material that is substantially lower extractable (para [0006] [0113]). Klein teaches that the channeling agent does not migrate into the packaged product (para [0004]). Klein teaches its composition is suitable for applications in co-molding process and vacuum molding, etc. (para [0088], [0094] [0095]).
It would have been obvious to one of ordinary skill in the art to modify the modified Collette in view the teachings of Klein, to include the channeling agent taught by Klein in the monolithic polymer composition for forming the oxygen scavenger layer of the multilayer bottle of Collette (that includes the base polymer and the oxygen scavenger of Collette), motivated by the desire to provide an improved monolithic polymer composition for making an improved oxygen scavenger layer of the bottle of Collette that is substantially lower extractable as taught by Klein (para [0006], i.e., which monolithic polymer composition includes base polymer and oxygen scavenger and the channeling agent of ethylene vinyl acetate (EVA), and that polymeric channeling agent having a gas transmission rate greater than the base polymer, and that comprising interconnecting channels formed of the channeling agent as taught by Klein, para [0006] [0025][0026]), which would have predictably arrived at a satisfactory monolithic polymer composition for the oxygen scavenger layer that is the same as instantly claimed.
Regarding claim 16, Collette teaches the dimensions and wall/layers thickness, i.e., the thickness of barrier layer and/or oxygen scavenging layer and/or skin layer, are not critical and can be selected depending on the intended applications (col. 7, lines 55-57).
In the same field of manufacturing process of making multilayer container bottle includes blow molding (para [0024]), Merical teaches a bottle having the barrier layer (21) that has a thickness of about 20 to 50 mils to provide required rigidity and durability to meet commercial performance requirements (para 0035]), which range overlaps with the instantly claimed range of 20 to 40 mils. Merical teaches the bottle having the oxygen scavenging layer that has a thickness of about 10 to 25 mils to provide required rigidity and durability to meet commercial performance requirements (para 0035]), which range overlaps with the instantly claimed range of 20 to 40 mils. In the case where the claimed ranges “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). MPEP 2144.05.
It would have been obvious to a person of ordinary skill in the art at the time of the invention to modify Collette in view the teachings of Merical, to provide the barrier layer and the oxygen scavenging layer and the skin layer with suitable thickness as taught by Merical (para 0035]) (which thickness ranges overlap with instantly claimed thickness ranges, respectively, as discussed above), to provide desired rigidity and durability to meet commercial performance requirements as taught by Merical.
Regarding claim 18, as discussed above in rejection to claim 15, modified Collette teaches a bottle having an oxygen scavenger layer of a monolithic polymer composition includes the channeling agent (taught by Klein). Klein teaches the suitable amount of the channeling agent is about 2% to 10% by weight with respect to total weight of the monolithic composition (col. 11, lines 1-2, and see claim 65 of Klein), which range overlaps with the instantly claimed range of 2 to 15% by weight with respect to total weight of the monolithic composition. In the case where the claimed ranges “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). MPEP 2144.05.
It would have been obvious to one of ordinary skill in the art to modify Collette in view the teachings of Klein, to include the suitable amount of channeling agent in the monolithic polymer composition taught by Klein for the oxygen scavenger layer of the multilayer bottle of oxygen scavenger layer, which would have predictably arrived at a satisfactory monolithic polymer composition that is the same as instantly claimed.
Regarding claim 19, Collette teaches the dimensions and wall thickness are not critical and can be select depending on the intended applications (col. 7, lines 55-57).
In the same field of manufacturing process of making multilayer container bottle includes blow molding, co-extrusion blowing molding (para [0024]), Merical teaches as in one its embodiment a multilayer bottle has a total wall thickness of about 45 mils to provide required rigidity and durability to meet commercial performance requirements (para [0035]), which range overlaps with the instantly claimed range of 10 to 80 mils. In the case where the claimed ranges “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). MPEP 2144.05.
It would have been obvious to a person of ordinary skill in the art to modify Collette in view the teachings of Merical, to provide the bottle with suitable total wall thickness as taught by Merical (para 0035]) (which thickness range overlaps with instantly claimed thickness range, as discussed above), to provide desired rigidity and durability to meet commercial performance requirements as taught by Merical.
Claim(s) 9 is rejected under 35 U.S.C. 103 as being unpatentable over Collette in view of Merical and Klein as applied to claim 1 above, further in view of Speer et al. (US 5,350,622; “Speer”).
Regarding claim 9, Collette teaches the inclusion of a skin layer, but Collette does not specifically teach the skin layer is of low-density polyethylene.
Speer teaches a multilayer film structure suitable for making container (col.4, lines 1-15) that includes a barrier layer and an oxygen scavenging layer and skin/surface layer of suitable material such as low-density polyethylene (col. 7, lines 29-45, col. 13, lines 45-50).
It would have been obvious to a person of ordinary skill in the art to modify the modified Collette in view the teachings of Speer, to select and include suitable material for the skin/surface layer, such as low-density polyethylene as taught by Speer as being suitable for skin/surface layer of multilayer film structure suitable for making container (col.4, lines 1-15), which would have predictably arrived at a satisfactory stock composite that is the same as instantly claimed. One of ordinary skill would have understood how to modify and choose suitable material for intended use. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.05.
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.
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/YAN LAN/ Primary Examiner, Art Unit 1782
