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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Objections
Claim 1, 3 and 4 are objected to because of the following informalities:
Claim 1 recites the limitation, “a body having a side wall bordered on either side by a base and by a rim.” In light of the specification it is clear that the claim is reciting that the side wall has a base on one side of the side wall and a rim on a side of the side wall opposite to the base. For matters of form, the claim limitation should be amended to recite, “a body having a side wall bordered on one side of the side wall by a base and bordered on another side of the side wall by a rim that is positioned opposite to the base,” or similar language.
Claims 3 and 4 recites, “MFC microfibrillated cellulose.” It appears that this limitation should recite, “the MFC microfibrillated cellulose.”
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 5, 8-12, 14 and 15 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 5, 8, 10 and 14 recite the limitation, “in particular” which makes the claim unclear as to whether the limitations following this phrase are required or not. For the purpose of examination, the limitations following, “in particular” have been construed as being optional.
Claims 9 and 11 recite the limitation, “it” on line 2 of both claims. It is not clear as to what “it” is referring to, the capsule as a whole, or the sealing coating or some other structure previously recited as part of the capsule.
Claim 12 is rejected based on its dependence to a rejected claim.
Claim 15 recites, “the sealing coating is applied to the side wall by dipping, spraying or transferring.” It is not clear as to what it means for the sealing coating to be applied by “transferring.” That is, from where is the sealing coating being transferred? Applicant’s specification does not provide further guidance in this regard.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1 and 13-16 are rejected under 35 U.S.C. 102a1 as being anticipated by Chen (US 20190062998).
Regarding claim 1, Chen discloses a capsule, intended for receiving a substance for preparing a beverage (see figure 6; paragraph 6: “coffee capsule”), comprising a body (see paragraph 6: “capsule main body (CMB)”) having a side wall bordered on either side by a base and a rim surrounding an opening (see figure 6, which shows an unsealed capsule comprising a sidewall having a base and a rim surrounding an opening in the body).
Chen discloses that the capsule body is formed from cellulose pulp, because the reference discloses that cellulose pulp is formed into the capsule body (see paragraph 96 and figure 6, disclosing using a pulp molding machine to produce the capsule; see paragraph 6: “base layer comprises pulp fiber, nanofibrillated cellulose”; see paragraph 26; see paragraph 52, “cellulose pulp”; paragraph 71, “injection molding”). It is further noted that since the claim is directed to a product and not a method of making the product, the structure implied by “molding a cellulose pulp” is the capsule body comprising cellulose pulp.
Chen discloses at paragraph 6 that the container can be formed with a base layer, a polymer layer and a coating layer that can be compression molded or injection molded (see paragraph 71) and which can also be dip coated (see paragraph 12 and 60) and therefore reads on the side wall of the body being covered with a sealing coating (see paragraph 6: “In some embodiments, the consumer product comprises a base layer, a polymer layer and/or a coating layer.”; see paragraph 60 disclosing a coating). Chen also discloses that a laminate structure, such as the layered structure shown in figure 5, can be shaped into the capsule, to make the capsule as shown in figure 6, thus disclosing that the sealing coating would necessarily have covered the side wall of the cellulose pulp capsule body.
Further regarding the limitation of, “a sealing coating,” since the claim is directed to the product and not a method of making the product, the structure implied by “a sealing coating” is a “sealing” layer. The claim does not provide any specificity as to what the coating/layer is sealing or sealing against such that any additional layer could be construed as a sealing layer. Nonetheless, in figure 5, Chen further discloses that there can be a coating layer (“laminated with 50% NFC”) that can control oxygen transmission (see the last row) and at paragraph 33, Chen discloses that the fibrillated cellulose can provide binding properties as well as improving the gas barrier properties such that Chen discloses and anticipates that the side wall is covered with a sealing coating.
Regarding claim 13, the claim does not provide specificity as to what constitutes “a label.” In view of this, Chen discloses that the container can be made using a composite of a base layer, then a polymer layer and then a coating layer (see paragraph 6; see paragraph 12, where the article comprises a polymer layer and then a dip coating). The polymer layer can be construed as a “label” which has the sealing coating applied thereto.
Regarding claim 14, Chen discloses that the body of the capsule is fully biodegradable (see paragraph 54).
Regarding claims 15-16, it is initially noted that the claims are directed to the product and not the method of making the product, such that the claim is construed to be a product by process claim, where even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process (MPEP 2113). In view of this, since Chen discloses a sealing coating applied to the side wall and further discloses a capsule having the structure as recited in claim 1, the structure as implied by claims 15 and 16 have been disclosed by Chen. Nonetheless, Chen also discloses dip coating a sealing coating (see paragraph 12 and 39; see page 17, claim 94) and also discloses a wet coffee capsule preform which is then heat pressed into a desired capsule shape, and therefore is disclosing wet molding, for example (see paragraph 37, 96).
Claims 1, 6, 7 and 13-16 are rejected under 35 U.S.C. 102a2 as being anticipated by Heydel (WO2023041333).
Regarding claim 1, Heydel discloses a capsule (see figure 6 and 7), intended for receiving a substance for preparing a beverage (page 1, lines 10-13), comprising a body having a side wall bordered by a base and a rim surrounding an opening (see figure 6 and 7) and the capsule comprising cellulose pulp and which can be a molded capsule body (see page 11, lines 32-36). It is further noted that since the claim is directed to a product and not a method of making the product, the structure implied by “molding a cellulose pulp” is the capsule body comprising cellulose pulp. Nonetheless, Heydel discloses a cellulose pulp molded capsule body (see page 11, line 32-36).
Heydel further discloses that there can be a sealing coating covering the side wall because as shown in figure 5, the cross-section of the capsule body (101) has a layer 320 that can be a moisture barrier coating (see page 14, lines 1-5) and therefore can be construed as a sealing coating covering the side wall of the body. Heydel also discloses that there can be an acrylic based surface coating (Figure 5, item 310) that helps bonding of subsequent layers (see page 4, lines 4-7 and 19-29) and therefore this layer can be construed as a sealing coating. Masking coating 340 can also be construed as a sealing coating because on page 16, lines 1-2, Heydel discloses that the masking coating protects the integrity of the moisture barrier coating and therefore can be construed as a sealing coating on the side wall. Heydel also teaches a top layer coating (350) that can be a sealing coating (see page 7, lines 22-25).
Further regarding the limitation of, “a sealing coating,” since the claim is directed to the product and not a method of making the product, the structure implied by “a sealing coating” is a “sealing” layer. The claim does not provide any specificity as to what the coating/layer is sealing or sealing against such that any additional layer could be construed as a sealing layer.
Regarding claims 6-7, Heydel teaches pulp moulded cellulose capsules for receiving a substance for preparing a beverage (see figures 5-7; page 11, lines 35-36) which can comprise a sealing coating layer (see figure 5, item 320) that can be a combination of cellulose materials such as nano and microcellulose together with aluminum (see page 14, lines 4-12).
Regarding claim 13, the claim does not provide specificity as to what constitutes “a label.” In view of this, Heydel discloses that the container can be made using a composite a cellulose pulp layer (see figure 5, item 200) and then a “label” such as layer 310 and then sealing coating 320 applied to the label 310. Alternatively, layer 320 can be construed as a label with layer 340 being a sealing layer applied to the label 320.
Regarding claim 14, Heydel discloses that the container body is biodegradable (see page 10, lines 20-28; page 11, lines 32-34).
Regarding claims 15-16, it is noted that the claims are directed to the product and not the method of making the product, such that the claim is construed to be a product by process claim, where even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process (MPEP 2113). In view of this, since Heydel discloses a sealing coating applied to the side wall and further discloses a capsule having the structure as recited in claim 1, the structure as implied by claims 15 and 16 have been disclosed by Heydel. Nonetheless, Heydel also discloses spraying coating a sealing coating (see page 13, lines 25-26; page 14, lines 9-12) and also discloses fibrous cellulose pulp that has been press molded with or without the application of heat (see page 11, line 32 to page 12, line 2; page 15, lines 19-20).
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.
Claims 2-3, 5 and 9-12 are rejected under 35 U.S.C. 103 as being unpatentable over Chen (US 20190062998).
Regarding claims 2-3, Chen suggests using fibrillated cellulose such as NFC (see figure 5), but the claims differ from Chen as applied to claim 1, in specifically reciting that the sealing coating comprises MFC microfibrillated cellulose (claim 2) and that the sealing coating is based on an aqueous dispersion of MFC microfibrillated cellulose (claim 3).
Regarding claim 3, it is also initially noted that the claim is directed to the product, and not the method of making the product; and the claim does not specify that the product comprising the seal coating comprises an aqueous dispersion of MFC microfibrillated cellulose, but rather, the claim recites that the sealing coating is “based” on an aqueous dispersion such that the final product does not require the sealing coating to be in an aqueous dispersion form, but rather, only requires MFC microfibrillated cellulose as the coating layer.
In this regard, and further regarding claims 2-3, Chen teaches that the coating can comprise NFC and/or hairy fiber and that the hairy fiber comprises fibrillated fibers of a micron size (i.e. microfibrillated cellulose)(see page 17, claim 94, paragraph 24, “fibrillation process;” micrometer sized). Chen further teaches that fibrillated cellulose, such as microfibrillated cellulose is advantageous for its mechanical properties and improving gas barrier properties (see paragraph 33). At paragraph 38, Chen also discloses that the NFC can have an average diameter of 100 nm but an average length of 1-1000 microns, thus also being readable on a microfibrillated cellulose. Chen further discloses coating the support (i.e. capsule body) with an aqueous dispersion of the coating (see paragraph 60 “aqueous dispersion of nanocellulose”) Therefore, Chen is teaching and suggesting that the coating, which can also comprise MFC microfibrillated cellulose can be an aqueous dispersion for dip coating the capsule body and therefore side wall so as to further achieve the desired mechanical and barrier properties.
Regarding claim 5, Chen discloses that the fibrillated cellulose, such as MFC can be derived from plant fiber such as flax (see paragraph 42), which would have been obvious to one having ordinary skill in the art is a food plant.
Regarding claims 9-10, Chen teaches that the capsule can have an oxygen transmission rate of no higher than 5 or 1 cc/m2-day-atm (see paragraph 50). Therefore, it would have been obvious to one having ordinary skill in the art to modify Chen’s capsule for achieving the requisite oxygen transmission rate for protecting the contents from oxygen.
Regarding claims 11-12, Chen teaches that the capsule can have a water vapor transmission rate of no higher than 10g/m2-day (see paragraph 50). Therefore, it would have been obvious to one having ordinary skill in the art to modify Chen’s capsule for achieving the requisite protection against water vapor.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Chen (US 20190062998) in view of Peng (WO 2022218772) and Land (US 20220340735).
Regarding claim 4, Chen has been relied on as discussed above with respect to claims 1-3.
Further regarding claim 4, it is also noted that the claim is directed to the product, and not the method of making the product; and the claim does not specify that the seal coating comprises an aqueous dispersion of 0.5-20wt% MFC microfibrillated cellulose when part of the product. The claim recites that the sealing coating is “based” on an aqueous dispersion comprising 0.5-20wt% MFC such that the final product does not require the sealing coating to be in an aqueous dispersion form with 0.5-20wt% MFC microfibrillated cellulose. The claim also does not specify how much of the MFC microfibrillated cellulose is present in the final coating, but rather only how much is present in an aqueous dispersion on which the coating is based.
Nonetheless, Chen teaches at paragraph 85 and 86 that a fibrillated cellulose suspension can comprise 0.5wt% of the fibrillated cellulose. Since Chen already teaches using an aqueous dispersion for the coating, it would have been obvious to one having ordinary skill in the art to have used 0.5wt% of MFC microfibrillated cellulose for the purpose of achieving the desired mechanical, water vapor and oxygen barrier properties.
In addition, however, if it could have been construed that Chen was not clear regarding the amount of MFC in the aqueous dispersion, then Peng teaches cellulose based molded fiber containers (see page 2, lines 15-16; page 2, line 24 to page 3, line 6) that can have a coating applied thereto (see page 3, lines 9-15) and which coating can be a barrier/sealing layer originating from an aqueous suspension (page 3, line 21-25) and which aqueous suspension comprises microfibrillated cellulose (page 4, lines 2-9) and which said aqueous suspension can have a solids content of 3wt% (see page 9, lines 4-8) and is therefore suggesting an aqueous dispersion comprising 3wt% microfibrillated cellulose.
Land similarly teaches an aqueous dispersion that can comprise 1wt% MFC (see paragraph 55, 59) and which dispersion can be used as a coating (paragraph 32) for paper based packaging (paragraph 15 and 19) for the purpose of enhancing gas and moisture barrier properties (see paragraph 16)
To therefore modify Chen to use 1 or 3wt% microfibrillated cellulose would therefore have been obvious to one having ordinary skill in the art for providing the coating with the requisite barrier properties.
Claims 6-8 are rejected under 35 U.S.C. 103 as being unpatentable over Chen (US 20190062998) in view of Heydel (WO 2023041333) and Schmidt (US 20170342261).
Claims 6-8 differ from Chen in specifically reciting that the sealing coating forms a metallization layer (claim 6) that is aluminum-based (claim 7) with a thickness of less than 10 microns (claim 8).
Heydel teaches pulp moulded cellulose capsules for receiving a substance for preparing a beverage (see figures 5-7; page 11, lines 35-36) which can comprise a sealing coating layer (see figure 5, item 320) that can be a combination of cellulose materials such as nano- and micro-cellulose together with aluminum, for the purpose of providing the desired moisture barrier to the capsule (see page 14, lines 4-12) and where such metallization can also provide oxygen barrier functionality (see page 6, lines 20-26). Schmidt further teaches a moldable container comprising cellulose (see paragraph 22-27 and 38) that is coated with an aluminum coating having a thickness of 0.1 or 1 micron (paragraph 90) for the purpose of providing a barrier to oxygen to prolong the life of the contents (paragraph 90, 105)
In view of these teachings, it would have been obvious to one having ordinary skill in the art to have modified Chen to include a sealing coating comprising aluminum and having a thickness such as 1 micron for the purpose of providing the requisite gas barrier properties for extending the shelf-life of the contents.
Claims 2, 3, 5 and 9-12 are rejected under 35 U.S.C. 103 as being unpatentable over Heydel (WO 2023041333) in view of Chen (US 20190062998)
Regarding claims 2-3, Heydel teaches a coating that can comprise nano- and micro-cellulose (see page 5, lines 19-24).
Further regarding claim 3, it is also noted that the claim is directed to the product, and not the method of making the product; and the claim does not specify that the seal coating comprises an aqueous dispersion of MFC microfibrillated cellulose when part of the product. The claim recites that the sealing coating is “based” on an aqueous dispersion such that the final product does not require the sealing coating to be in an aqueous dispersion form, but rather, only requires MFC microfibrillated cellulose as the coating layer.
Nonetheless, claims 2-3 differ from Heydel as applied to claim 1, in specifically reciting that the sealing coating comprises MFC microfibrillated cellulose (claim 2) and that the sealing coating is based on an aqueous dispersion of MFC microfibrillated cellulose (claim 3).
Chen discloses at paragraph 6 that the container can be formed with a base layer, a polymer layer and a coating layer and therefore reads on the side wall of the body being covered with a sealing coating (see paragraph 6: “In some embodiments, the consumer product comprises a base layer, a polymer layer and/or a coating layer.”; see paragraph 12, “dip coating”; see paragraph 60 and 71). In figure 5, Chen further discloses that there can be a coating layer that can control oxygen transmission (see the last row) and at paragraph 33, Chen discloses that the microfibrillated cellulose can provide binding properties as well as improving the gas barrier properties such that Chen discloses that the side wall is covered with a sealing coating.
Chen further teaches that the coating can comprise NFC and/or hairy fiber and that the hairy fiber comprises fibrillated fibers of a micron size (i.e. microfibrillated cellulose)(see page 17, claim 94, paragraph 24, “fibrillation process;” micrometer sized). Chen further teaches that such fibrillated cellulose, such as microfibrillated cellulose is advantageous for its mechanical properties and improving gas barrier properties (see paragraph 33). At paragraph 38, Chen also discloses that the NFC can have an average diameter of 100 nm but an average length of 1-1000 microns, thus also being readable on a microfibrillated cellulose. Chen further discloses coating the support (i.e. capsule body) with an aqueous dispersion of the coating (see paragraph 60 “aqueous dispersion of nanocellulose”). Therefore, Chen is teaching and suggesting that the coating, which can also comprise MFC microfibrillated cellulose can be an aqueous dispersion for dip coating the capsule body and therefore side wall. Chen teaches that such materials also are desirably environmentally friendly, sustainable and cost-effective functional material (see paragraph 25)
To therefore modify Heydel and to apply a sealing coating comprising MFC microfibrillated cellulose to the side wall would have been obvious to one having ordinary skill in the art for the purpose of providing a biodegradable capsule that also provides the desired mechanical and gas barrier properties to the capsule while using environmentally friendly, sustainable and cost-effective materials.
Since Heydel already teaches that the sealing coating, such as layer 320 can be sprayed (see page 14, lines 9-11), to modify Heydel and to use an aqueous dispersion comprising MFC microfibrillated cellulose, as taught by Chen, would have been obvious to one having ordinary skill in the art, for providing a layer with the desired gas and moisture barrier properties.
Regarding claim 5, in view of Chen the combination teaches that the fibrillated cellulose, such as MFC can be derived from plant fiber such as flax (see paragraph 42), which would have been obvious to one having ordinary skill in the art is a food plant.
Regarding claims 9-10, the claims differ from Heydel in the specific oxygen transmission rate being less than 10 cc/m2-day-atm, less than 5 cc/m2-day-atm and claims 11-12 differ in specifically reciting a water vapor transmission rate of less than 60 g/m2-day and less than 10 g/m2-day.
However, Chen teaches that the capsule can have an oxygen transmission rate of no higher than 5 or 1 cc/m2-day-atm (see paragraph 50).
Regarding claims 11-12, Chen teaches that the capsule can have a water vapor transmission rate of no higher than 10g/m2-day (see paragraph 50).
Since Heydel already desires to have oxygen and moisture barrier properties, it would have been obvious to one having ordinary skill in the art to modify Heydel’s capsule to have an oxygen transmission rate of at most 5 cc/m2-day-atm and a water vapor transmission rate of less than 10 g/m2-day as taught by Chen for the purpose of achieving the requisite protection of the contents of Heydel’s capsule against oxygen and water vapor and to therefore prolong the shelf-life of the contents.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Heydel (WO 2023041333) in view of Chen (US 20190062998) and in further view of Peng (WO 2022218772) and Land (US 20220340735).
Regarding claim 4, the claim differs from Heydel in reciting that the dispersion comprises between 0.5-20% by weight of MFC microfibrillated cellulose.
Regarding claim 4, it is also noted that since the claim is directed to the product, and not the method of making the product, the claim does not specify that the MFC microfibrillated cellulose when part of the product, is in an aqueous dispersion at 0.5-20% by weight. The claim recites that the sealing coating is “based” on an aqueous dispersion such that the final product does not require the sealing coating to be in an aqueous dispersion form with 0.5-20wt% MFC microfibrillated cellulose. That is, does not specify how much of the MFC microfibrillated cellulose is present in the final coating, but rather only how much is present in an aqueous dispersion on which the coating is based.
Chen teaches at paragraph 85 and 86 that a fibrillated cellulose suspension can comprise 0.5wt% of the fibrillated cellulose. Since Chen already teaches using an aqueous dispersion for the coating, it would have been obvious to one having ordinary skill in the art to have modified the Heydel/Chen combination as applied to claims 2-3 and used 0.5wt% of MFC microfibrillated cellulose for the purpose of achieving the desired mechanical, water vapor and oxygen barrier properties.
In addition, however, Peng teaches cellulose based molded fiber containers (see page 2, lines 15-16; page 2, line 24 to page 3, line 6) that can have a coating applied thereto (see page 3, lines 9-15) and which coating can be a barrier/sealing layer originating from an aqueous suspension (page 3, line 21-25) and which aqueous suspension comprises microfibrillated cellulose (page 4, lines 2-9) and which can have a solids content of 3wt% (see page 9, lines 4-8) and is therefore suggesting an aqueous dispersion comprising 3wt% microfibrillated cellulose.
Land similarly teaches an aqueous dispersion that can comprise 1wt% MFC (see paragraph 55, 59) and which dispersion can be used as a coating (paragraph 32) for paper based packaging (paragraph 15 and 19) for the purpose of enhancing gas and/or moisture barrier properties (see paragraph 16)
To therefore modify Heydel in view of Chen and to use 1 or 3wt% microfibrillated cellulose would therefore have been obvious to one having ordinary skill in the art for providing the coating with the requisite barrier properties.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Heydel (WO 2023041333) in view of Schmidt (US 20170342261).
Regarding claim 8, Heydel teaches pulp moulded cellulose capsules for receiving a substance for preparing a beverage (see figures 5-7; page 11, lines 35-36) which can comprise a sealing coating layer (see figure 5, item 320) that can be a combination of cellulose materials such as nano and microcellulose together with aluminum, for the purpose of providing the desired moisture barrier to the capsule (see page 14, lines 4-12).
Claim 8 differs from Heydel in specifically reciting that the sealing coating forms a metallization layer with a thickness of less than 10 microns.
Schmidt further teaches a moldable container comprising cellulose (see paragraph 22-27 and 38) that is coated with an aluminum coating having a thickness of 0.1 or 1 micron (paragraph 90) for the purpose of providing a barrier to oxygen to prolong the life of the contents (paragraph 90, 105)
In view of these teachings, it would have been obvious to one having ordinary skill in the art to have modified Heydel to include a sealing coating comprising aluminum and having a thickness such as 1 micron for the purpose of providing the requisite gas barrier properties for extending the shelf-life of the contents.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-2, 9-12 and 14-16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of copending Application No. 19099782 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because copending claim 1 teaches a capsule comprising a body having a side wall bordered on either side by a base and a rim surrounding an opening and the capsule body being formed by molding a cellulose pulp, and the side wall being covered by a sealing label. The sealing label can be construed as reading on a “sealing coating,” because the sealing label of the copending claims is covering the side wall in the same manner as the sealing coating of claim 1 of this Application.
Regarding claim 2, copending claim 2 teach that the sealing label comprises MFC microfibrillated cellulose and therefore reads on the structure of claim 2-3, which is that the sealing coating comprises MFC microfibrillated cellulose.
Regarding claims 9-12, copending claims 4-7 disclose an oxygen transmission rate of at most 5 cc/m2-day-atm and a water vapor transmission rate of less than 10 g/m2-day.
Regarding claim 14, copending claim 11 teaches that the capsule body is biodegradable.
Regarding claims 15-16, it is noted that the claims are directed to the product, and not the method of making the product such that the structure implied by claims 15 and 16 is a sealing layer and a molded cellulose pulp capsule body. In this regard, the copending claims teach a sealing layer and a molded cellulose pulp capsule body.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 3-4 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of copending Application No. 19099782 in view of Chen (US 20190062998), Peng (WO 2022218772) and Land (US 20220340735).
Claim 3 differs from the copending claims in specifically reciting that the sealing coating is based on an aqueous dispersion of MFC microfibrillated cellulose.
Claim 4 differs from the copending claims in specifically reciting that the dispersion comprises between 0.5-20% by weight of MFC microfibrillated cellulose.
Regarding claim 4, Chen teaches at paragraph 85 and 86 that a fibrillated cellulose aqueous suspension can comprise 0.5wt% of the fibrillated cellulose.
In addition, Peng teaches cellulose based molded fiber containers (see page 2, lines 15-16; page 2, line 24 to page 3, line 6) that can have a coating applied thereto (see page 3, lines 9-15) and which coating can be a barrier/sealing layer originating from an aqueous suspension (page 3, line 21-25) and which aqueous suspension comprises microfibrillated cellulose (page 4, lines 2-9) and which can have a solids content of 3wt% (see page 9, lines 4-8) and is therefore suggesting an aqueous dispersion comprising 3wt% microfibrillated cellulose.
Land similarly teaches an aqueous dispersion that can comprise 1wt% MFC (see paragraph 55, 59) and which dispersion can be used as a coating (paragraph 32) for paper based packaging (paragraph 15 and 19) for the purpose of enhancing gas and/or moisture barrier properties (see paragraph 16)
To therefore modify the copending claims and to use an aqueous dispersion comprising 0.5wt%, 1wt% or 3wt% microfibrillated cellulose would therefore have been obvious to one having ordinary skill in the art for providing the coating with the requisite barrier properties.
Claim 5 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of copending Application No. 19099782 in view of Chen (US 20190062998).
Claim 5 differs from the copending claims in specifically reciting that the MFC microfibrillated cellulose is derived from food plants.
Chen discloses that the fibrillated cellulose, such as MFC can be derived from plant fiber such as flax (see paragraph 42), which would obviously have been obvious to one having ordinary skill in the art is a food plant.
Since the copending claims already teach using MFC microfibrillated cellulose, it would have been obvious to one having ordinary skill in the art to have used food plant based MFC microfibrillated cellulose based on known and conventional forms of microfibrillated cellulose used for the purpose of making beverage capsules.
Claims 6-8 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of copending Application No. 19099782 in view of Heydel (WO 2023041333) and Schmidt (US 20170342261).
Claims 6-8 differ from the copending claims in specifically reciting that the sealing coating forms a metallization layer (claim 6) that is aluminum-based (claim 7) with a thickness of less than 10 microns (claim 8).
Heydel teaches pulp moulded cellulose capsules for receiving a substance for preparing a beverage (see figures 5-7; page 11, lines 35-36) which can comprise a sealing coating layer (see figure 5, item 320) that can be a combination of cellulose materials such as nano- and micro-cellulose together with aluminum, for the purpose of providing the desired moisture barrier to the capsule (see page 14, lines 4-12) and oxygen barrier (see page 6, lines 20-26). Schmidt further teaches a moldable container comprising cellulose (see paragraph 22-27 and 38) that is coated with an aluminum coating having a thickness of 0.1 or 1 micron (paragraph 90) for the purpose of providing a barrier to oxygen to prolong the life of the contents (paragraph 90, 105)
In view of these teachings, it would have been obvious to one having ordinary skill in the art to have modified the copending claims to include a sealing coating comprising aluminum and having a thickness such as 1 micron for the purpose of providing the requisite gas barrier properties for extending the shelf-life of the contents.
Claim 13 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-13 of copending Application No. 19099782 in view of Heydel (WO 2023041333).
Claim 13 differs from the copending claims in specifically reciting that the side wall is covered by a label and the sealing coating being applied to said label.
It is noted however, that the claim does not provide specificity as to what constitutes “a label.” In view of this, Heydel discloses a capsule (see figure 6 and 7) intended for receiving a substance for preparing a beverage (page 1, lines 10-13) comprising a body having a side wall bordered by a base and a rim surrounding an opening (see figure 6 and 7) and the capsule comprising cellulose pulp and which can be a molded capsule body (see page 11, lines 32-36). Heydel further discloses that there can be a sealing coating 340 covering the side wall because as shown in figure 5, the cross-section of the capsule body (101) has a layer 320 that can be construed as a label (see page 14, lines 1-5) and masking coating 340 can also be construed as a sealing coating because on page 16, lines 1-2, Heydel teaches that the masking coating protects the integrity of the moisture barrier coating and therefore can be construed as a sealing coating on the side wall. Heydel also discloses a “label” such as layer 310, such that spray coating 320 can be construed as the sealing coating 320 applied to the label 310.
To therefore modify the copending claims and provide a label covering the side wall, and which label has been covered by the sealing coating, as taught by Heydel would have been obvious to one having ordinary skill in the art for providing additional bonding properties to the side wall of the capsule, as well as for providing moisture barrier properties that are then protected by the sealing coating.
Claims 1-2, 9-12 and 14-16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of copending Application No. 19099783.
Although the claims at issue are not identical, they are not patentably distinct from each other because copending claim 7 teaches a capsule comprising a body having a side wall bordered on either side by a base and a rim surrounding an opening and the capsule body being formed by molding a cellulose pulp, and the side wall being covered by a sealing label or sealing coating. The sealing label can be construed as reading on a “sealing coating,” because the sealing label of the copending claims is covering the side wall in the same manner as the sealing coating of claim 1 of this Application.
Regarding claim 2, copending claims 8 teaches that the sealing label comprises MFC microfibrillated cellulose and therefore reads on the structure of claim 2, which is that the sealing coating comprises MFC microfibrillated cellulose.
Regarding claims 9-12, copending claims 3-6 disclose an oxygen transmission rate of at most 5 cc/m2-day-atm and a water vapor transmission rate of less than 10 g/m2-day.
Regarding claim 14, copending claim 9 teaches that the capsule body is biodegradable.
Regarding claims 15-16, it is noted that the claims are directed to the product, and not the method of making the product such that the structure implied by claims 15 and 16 is a sealing layer and a molded cellulose pulp capsule body. In this regard, the copending claims teach a sealing layer and a molded cellulose pulp capsule body. It is also noted however, that copending claim 10 teaches wet molding.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 3-4 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of copending Application No. 19099783 in view of Chen (US 20190062998), Peng (WO 2022218772) and Land (US 20220340735).
Claim 3 differs from the copending claims in specifically reciting that the sealing coating is based on an aqueous dispersion of MFC microfibrillated cellulose.
Claim 4 differs from the copending claims in specifically reciting that the dispersion comprises between 0.5-20% by weight of MFC microfibrillated cellulose.
Chen teaches at paragraph 85 and 86 that a fibrillated cellulose aqueous suspension can comprise 0.5wt% of the fibrillated cellulose.
In addition, Peng teaches cellulose based molded fiber containers (see page 2, lines 15-16; page 2, line 24 to page 3, line 6) that can have a coating applied thereto (see page 3, lines 9-15) and which coating can be a barrier/sealing layer originating from an aqueous suspension (page 3, line 21-25) and which aqueous suspension comprises microfibrillated cellulose (page 4, lines 2-9) and which can have a solids content of 3wt% (see page 9, lines 4-8) and is therefore suggesting an aqueous dispersion comprising 3wt% microfibrillated cellulose.
Land similarly teaches an aqueous dispersion that can comprise 1wt% MFC (see paragraph 55, 59) and which dispersion can be used as a coating (paragraph 32) for paper based packaging (paragraph 15 and 19) for the purpose of enhancing gas and/or moisture barrier properties (see paragraph 16)
To therefore modify the copending claims and to use an aqueous dispersion comprising 0.5wt%, 1wt% or 3wt% microfibrillated cellulose would therefore have been obvious to one having ordinary skill in the art for providing the coating with the requisite barrier properties.
Claim 5 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of copending Application No. 19099783 in view of Chen (US 20190062998).
Claim 5 differs from the copending claims in specifically reciting that the MFC microfibrillated cellulose is derived from food plants.
Chen discloses that the fibrillated cellulose, such as MFC can be derived from plant fiber such as flax (see paragraph 42), which would obviously have been obvious to one having ordinary skill in the art is a food plant.
Since the copending claims already teach using MFC microfibrillated cellulose, it would have been obvious to one having ordinary skill in the art to have used food plant based MFC microfibrillated cellulose based on known and conventional forms of microfibrillated cellulose used for the purpose of making beverage capsules.
Claims 6-8 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of copending Application No. 19099783 in view of Heydel (WO 2023041333) and Schmidt (US 20170342261).
Claims 6-8 differ from the copending claims in specifically reciting that the sealing coating forms a metallization layer (claim 6) that is aluminum-based (claim 7) with a thickness of less than 10 microns (claim 8).
Heydel teaches pulp moulded cellulose capsules for receiving a substance for preparing a beverage (see figures 5-7; page 11, lines 35-36) which can comprise a sealing coating layer (see figure 5, item 320) that can be a combination of cellulose materials such as nano and microcellulose together with aluminum, for the purpose of providing the desired moisture barrier to the capsule (see page 14, lines 4-12) and oxygen barrier (see page 6, lines 20-26). Schmidt further teaches a moldable container comprising cellulose (see paragraph 22-27 and 38) that is coated with an aluminum coating having a thickness of 0.1 or 1 micron (paragraph 90) for the purpose of providing a barrier to oxygen to prolong the life of the contents (paragraph 90, 105)
In view of these teachings, it would have been obvious to one having ordinary skill in the art to have modified the copending claims to include a sealing coating comprising aluminum and having a thickness such as 1 micron for the purpose of providing the requisite gas barrier properties for extending the shelf-life of the contents.
Claim 13 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of copending Application No. 19099783 in view of Heydel (WO 2023041333).
Claim 13 differs from the copending claims in specifically reciting that the side wall is covered by a label and the sealing coating being applied to said label.
It is noted however, that the claim does not provide specificity as to what constitutes “a label.” In view of this, Heydel discloses a capsule (see figure 6 and 7) intended for receiving a substance for preparing a beverage (page 1, lines 10-13) comrpisign a body having a side wall bordered by a base and a rim surrounding an opening (see figure 6 and 7) and the capsule comprising cellulose pulp and which can be a molded capsule body (see page 11, lines 32-36). Heydel further discloses that there can be a sealing coating 340 covering the side wall because as shown in figure 5, the cross-section of the capsule body (101) has a layer 320 that can be construed as a label (see page 14, lines 1-5) and masking coating 340 can also be construed as a sealing coating because on page 16, lines 1-2, Heydel teaches that the masking coating protects the integrity of the moisture barrier coating and therefore can be construed as a sealing coating on the side wall. Heydel also discloses a “label” such as layer 310, such that spray coating 320 can be construed as the sealing coating 320 applied to the label 310.
To therefore modify the copending claims and provide a label covering the side wall, and which label has been covered by the sealing coating, as taught by Heydel would have been obvious to one having ordinary skill in the art for providing additional bonding properties to the side wall of the capsule, as well as for providing moisture barrier properties that are then protected by the sealing coating.
Claims 1-2, 9-12 and 14-16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of copending Application No. 19099483.
Although the claims at issue are not identical, they are not patentably distinct from each other because copending claim 8 teaches a capsule comprising a body having a side wall bordered on either side by a base and a rim surrounding an opening and the capsule body being formed by molding a cellulose pulp, and the side wall being covered by a sealing label or sealing coating. The sealing label can be construed as reading on a “sealing coating,” because the sealing label of the copending claims is covering the side wall in the same manner as the sealing coating of claim 1 of this Application.
Regarding claim 2, copending claim 9 teaches that the sealing label comprises MFC microfibrillated cellulose and therefore reads on the structure of claim 2, which is that the sealing coating comprises MFC microfibrillated cellulose.
Regarding claims 9-12, copending claims 4-7 disclose an oxygen transmission rate of at most 5 cc/m2-day-atm and a water vapor transmission rate of less than 10 g/m2-day.
Regarding claim 14, copending claim 10 teaches that the capsule body is biodegradable.
Regarding claims 15-16, it is noted that the claims are directed to the product, and not the method of making the product such that the structure implied by claims 15 and 16 is a sealing layer and a molded cellulose pulp capsule body. In this regard, the copending claims teach a sealing layer and a molded cellulose pulp capsule body.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 3-4 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of copending Application No. 19099483 in view of Chen (US 20190062998), Peng (WO 2022218772) and Land (US 20220340735).
Claim 3 differs from the copending claims in specifically reciting that the sealing coating is based on an aqueous dispersion of MFC microfibrillated cellulose.
Claim 4 differs from the copending claims in specifically reciting that the dispersion comprises between 0.5-20% by weight of MFC microfibrillated cellulose.
Chen teaches at paragraph 85 and 86 that a fibrillated cellulose aqueous suspension can comprise 0.5wt% of the fibrillated cellulose.
In addition, Peng teaches cellulose based molded fiber containers (see page 2, lines 15-16; page 2, line 24 to page 3, line 6) that can have a coating applied thereto (see page 3, lines 9-15) and which coating can be a barrier/sealing layer originating from an aqueous suspension (page 3, line 21-25) and which aqueous suspension comprises microfibrillated cellulose (page 4, lines 2-9) and which can have a solids content of 3wt% (see page 9, lines 4-8) and is therefore suggesting an aqueous dispersion comprising 3wt% microfibrillated cellulose.
Land similarly teaches an aqueous dispersion that can comprise 1wt% MFC (see paragraph 55, 59) and which dispersion can be used as a coating (paragraph 32) for paper based packaging (paragraph 15 and 19) for the purpose of enhancing gas and/or moisture barrier properties (see paragraph 16)
To therefore modify the copending claims and to use an aqueous dispersion comprising 0.5wt%, 1wt% or 3wt% microfibrillated cellulose would therefore have been obvious to one having ordinary skill in the art for providing the coating with the requisite barrier properties.
Claim 5 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of copending Application No. 19099483 in view of Chen (US 20190062998).
Claim 5 differs from the copending claims in specifically reciting that the MFC microfibrillated cellulose is derived from food plants.
Chen discloses that the fibrillated cellulose, such as MFC can be derived from plant fiber such as flax (see paragraph 42), which would obviously have been obvious to one having ordinary skill in the art is a food plant.
Since the copending claims already teach using MFC microfibrillated cellulose, it would have been obvious to one having ordinary skill in the art to have used food plant based MFC microfibrillated cellulose based on known and conventional forms of microfibrillated cellulose used for the purpose of making beverage capsules.
Claims 6-8 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of copending Application No. 19099483 in view of Heydel (WO 2023041333) and Schmidt (US 20170342261).
Claims 6-8 differ from the copending claims in specifically reciting that the sealing coating forms a metallization layer (claim 6) that is aluminum-based (claim 7) with a thickness of less than 10 microns (claim 8).
Heydel teaches pulp moulded cellulose capsules for receiving a substance for preparing a beverage (see figures 5-7; page 11, lines 35-36) which can comprise a sealing coating layer (see figure 5, item 320) that can be a combination of cellulose materials such as nano and microcellulose together with aluminum, for the purpose of providing the desired moisture barrier to the capsule (see page 14, lines 4-12) and oxygen barrier (see page 6, lines 20-26). Schmidt further teaches a moldable container comprising cellulose (see paragraph 22-27 and 38) that is coated with an aluminum coating having a thickness of 0.1 or 1 micron (paragraph 90) for the purpose of providing a barrier to oxygen to prolong the life of the contents (paragraph 90, 105)
In view of these teachings, it would have been obvious to one having ordinary skill in the art to have modified the copending claims to include a sealing coating comprising aluminum and having a thickness such as 1 micron for the purpose of providing the requisite gas barrier properties for extending the shelf-life of the contents.
Claim 13 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of copending Application No. 19099483 in view of Heydel (WO 2023041333).
Claim 13 differs from the copending claims in specifically reciting that the side wall is covered by a label and the sealing coating being applied to said label.
It is noted however, that the claim does not provide specificity as to what constitutes “a label.” In view of this, Heydel discloses a capsule (see figure 6 and 7) intended for receiving a substance for preparing a beverage (page 1, lines 10-13) comrpisign a body having a side wall bordered by a base and a rim surrounding an opening (see figure 6 and 7) and the capsule comprising cellulose pulp and which can be a molded capsule body (see page 11, lines 32-36). Heydel further discloses that there can be a sealing coating 340 covering the side wall because as shown in figure 5, the cross-section of the capsule body (101) has a layer 320 that can be construed as a label (see page 14, lines 1-5) and masking coating 340 can also be construed as a sealing coating because on page 16, lines 1-2, Heydel teaches that the masking coating protects the integrity of the moisture barrier coating and therefore can be construed as a sealing coating on the side wall. Heydel also discloses a “label” such as layer 310, such that spray coating 320 can be construed as the sealing coating 320 applied to the label 310.
To therefore modify the copending claims and provide a label covering the side wall, and which label has been covered by the sealing coating, as taught by Heydel would have been obvious to one having ordinary skill in the art for providing additional bonding properties to the side wall of the capsule, as well as for providing moisture barrier properties that are then protected by the sealing coating.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Kuiper (US 20230166895) teaches capsules usable for producing beverages (see figure 8) and which capsules can comprise a cellulose pulp body (see paragraph 28; see paragraph 78, “moulded pulp material”; see paragraph 143 which discloses moulded pulp material comprising natural fibers as well as PLA; see paragraph 59-62, where natural fibers include cellulose fibers such as fibrillated cellulose for reinforcement). Kuiper teaches that the matrix used to make the coffee capsule can comprise microfibrillated cellulose (see paragraph 99-101). Kuiper teaches that such materials can be useful for providing a fully sustainable capsule with improved recycling possibilities (see para graph 2-4).
Brivois (US 20210024283) teaches a capsule capable of receiving a substance for preparing a beverage (see figure 1a and 1b, item 1), said capsule comprising a capsule body having a side wall (figure 1a and 1b, item 3) bordered on either side by a base (figure 1a, item 2, 2a) and by a rim surrounding an opening in said body (see figure 1b, item 4, 4a). The capsule has a moulded body (see paragraph 18, 31) and the side wall of the body is covered by a sealing label that can comprise cellulose (see figure 4 and 5, item 13, 14; paragraph 33-35, 40, 45).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VIREN THAKUR whose telephone number is (571)272-6694. The examiner can normally be reached M-F: 10:30-7:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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