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
Claims 1 and 2 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 and a rim on a side 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.
Claim 2 recites, “between 1 and 50% by weight of MFC microfibrillated cellulose.” It appears that this should recite, “between 1 and 50% by weight of 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 3-6 and 9 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 4 recites 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 3, 5 and 9 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 label or some other structure previously recited as part of the capsule.
Claim 6 is rejected based on their dependence to a rejected claim.
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 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over 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 that also comprises fibrillated cellulose, 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”). Further regarding the pulp comprising MFC microfibrillated cellulose, it is noted that Chen teaches using materials such as cellulose pulp + NFC nanofibrillated cellulose (see page 14, Table 4 and page 15, Table 9; see page 15, claim 48).
While the embodiment of figure 6-7 does not specifically discuss using MFC microfibrillated cellulose as part of the molded cellulose pulp body, Chen further teaches at paragraph 33, that MFC microfibrillated cellulose can also be used as part of the pump due to its excellent mechanical properties and high gas barrier properties. 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 teaches that such materials for the capsule help to provide a more environmentally friendly, sustainable and cost effective functional material that can provide for air and moisture impermeable coffee capsules (see paragraph 25).
To therefore modify the capsules as taught by Chen to also include MFC microfibrillated cellulose as part of the capsule body would have been obvious to one having ordinary skill in the art, as an obvious matter of design based on known forms of fibrillated cellulose that can equally be used for providing the desired mechanical and barrier properties to the capsule.
Regarding claim 2, Chen teaches in figure 5 that the cellulose pulp can comprise 50% fibrillated cellulose (see “Mixture structure” 50% BG / 50% NFC). At paragraph 42, Chen suggests using, for example, fibrillated cellulose to pulp at a ratio 1:100 or 1:1 and therefore teaches fibrillated cellulose at 10% and 50%. At paragraph 57, 58, 67 and 68, Chen teaches using MFC and/or NFC thus teaching and suggesting that either microfibrillated and/or nanofibrillated cellulose are equally available to be part of the molded cellulose pulp body.
To therefore modify the embodiment of figure 5 that uses a mixture of 50% BG and 50% NFC and to use 50% microfibrillated cellulose (MFC) or another amount of MFC such as 10% as part of the molded cellulose body would have been obvious to one having ordinary skill in the art as a matter of engineering and/or design, and for the purpose of achieving the requisite mechanical and gas barrier properties to the pulp body.
Regarding claims 3-4, Chen teaches that the capsule can have an oxygen transmission rate of no higher than 5 or 1 cc/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 oxygen transmission rate for protecting the contents from oxygen.
Regarding claims 5-6, 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.
Regarding claim 7, 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 label and/or 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).
Further regarding the limitation of, “a sealing label and/or sealing coating” the claim also does not provide any specificity as to what the sealing label and/or sealing coating is sealing or sealing against such that any additional layer could be construed as a sealing label and/or sealing coating. The polymer layer as disclosed at paragraph 6 can also be construed as a sealing label and/or sealing coating.
Regarding claim 8, Chen teaches that the coating can comprise NFC and/or hairy fiber and that the hairy fiber comprises fibrillated fibers of a micron size, which therefore reads on 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. To therefore specifically use MFC microfibrillated cellulose as part of the sealing label and/or sealing coating, would have been obvious to one having ordinary skill in the art for achieving the desired mechanical and gas barrier properties.
Regarding claim 9, Chen discloses that the capsule body is fully biodegradable (see paragraph 54).
Regarding claim 10, 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 capsule having a molded cellulose pulp body having the structure as recited in claim 1, the structure as implied by claims 10 taught by Chen. Nonetheless, Chen also 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 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over Heydel (WO 2023041333) in view of Chen (US 20190062998) and Kuiper (US 20230166895).
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).
Claim 1 differs from Heydel in specifically reciting that said pulp comprises MFC microfibrillated cellulose.
Chen teaches beverage producing capsules (see figure 6) that can be moulded from cellulose pulp material (see paragraph 6, “the base layer comprises pulp fiber”; see paragraph 10, 12, see paragraph 71, “injection molding”; see paragraph 72, “nanocellulose”; “molded into a desired shape”) and can also be optionally impregnated or mixed with a polymer such as PLA (see paragraph 71). Chen teaches that such materials for the capsule help to provide a more environmentally friendly, sustainable and cost effective functional material that can provide for air and moisture impermeable coffee capsules (see paragraph 25).
Kuiper also 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).
To therefore modify Heydel and to form the body as a molded body comprising microfibrillated cellulose, would have been obvious to one having ordinary skill in the art for improving the environmental friendliness, sustainability and cost effectiveness while also providing the desired barrier properties and mechanical properties to Heydel’s pulp molded body.
Regarding claim 2, in view of Chen the combination teaches in figure 5 that the cellulose pulp can comprise 50% fibrillated cellulose (see “Mixture structure” 50% BG / 50% NFC). At paragraph 42, Chen suggests using, for example, fibrillated cellulose to pulp at a ratio 1:100 or 1:1 and therefore teaches fibrillated cellulose at 10% and 50%. At paragraph 57, 58, 67 and 68, Chen teaches using MFC and/or NFC thus teaching and suggesting that either microfibrillated and/or nanofibrillated cellulose are equally available to be part of the molded cellulose pulp body.
To therefore modify the combination and to use 50% microfibrillated cellulose (MFC) or another amount of MFC such as 10% as part of the molded cellulose pulp body would have been obvious to one having ordinary skill in the art as a matter of engineering and/or design, and for the purpose of achieving the requisite mechanical and gas barrier properties to the pulp body.
Regarding claims 3-4, Heydel desires oxygen barrier properties (see for example page 5, line 31 to page 6, line 2) but claims 3-4 differ in specifically reciting an oxygen transmission rate of less than 10 cc/m2-day-atm and at most 5 cc/m2-day-atm.
Chen teaches that the capsule can have an oxygen transmission rate of no higher than 5 or 1 cc/m2-day (see paragraph 50). Therefore, it would have been obvious to one having ordinary skill in the art to modify Heydel’s capsule in view of Chen’s teachings for the known purpose of lowering the oxygen transmission rate to 1 cc/m2-day-atm capsule for protecting the contents from oxygen.
Regarding claims 5-6, Heydel desires moisture barrier properties (see for example page 14, lines 1-2) but claims 5-6 differ in specifically reciting a water vapor transmission rate less than 60 g/m2-24h and less than 10 g/m2-24h. Chen teaches that the capsule can have a water vapor transmission rate of no higher than 10g/m2-24h (see paragraph 50). Therefore, it would have been obvious to one having ordinary skill in the art to modify Heydel’s capsule to have a water vapor transmission rate such as 10g/m2-24h for achieving the requisite protection against water vapor.
Regarding claim 7, Heydel discloses that the container can be made using a composite a cellulose pulp layer (see figure 5, item 200) and comprising a “label” such as layer 310, 320 or 340. It is noted that the claim does not provide specificity as to what constitutes “a label.” 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 label and/or 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).
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 micro-cellulose for providing the desired moisture barrier properties (see page 14, lines 4-12)
Claim 8 differs from Heydel in specifically reciting that the sealing label and/or the sealing coating comprises MFC microfibrillated cellulose.
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 label and/or 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).
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, which therefore reads on 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.
To therefore modify Heydel and to specifically use MFC microfibrillated cellulose as part of the sealing label and/or sealing coating, would have been obvious to one having ordinary skill in the art for achieving the desired mechanical and gas barrier properties.
Regarding claim 9, Heydel discloses that the container body is biodegradable (see page 10, lines 20-28; page 11, lines 32-34).
Regarding claims 10, 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 the combination discloses a molded cellulose capsule comprising MFC microfibrillated cellulose as recited in claim 1, the structure as implied by claims 15 and 16 have been disclosed by Heydel in view of Chen and Kuiper. Nonetheless, in view of Chen, the combination also teaches 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).
Double Patenting
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 1-2 are provisionally rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 2-3 of copending Application No. 19099483 (reference application). This is a provisional statutory double patenting rejection since the claims directed to the same invention have not in fact been patented.
Specifically, regarding claim 1, copending claim 2 discloses a capsule intended for receiving a substance for preparing a beverage, said capsule comprising a body having a side wall bordered on either side by a base and by a rim surrounding an opening in said body, said capsule being characterized in that the body is formed by molding a cellulose pulp and said cellulose pulp comprising MFC microfibrillated cellulose. Therefore the copending claim discloses the same structure as that of claim 1.
Regarding claim 2, copending claim 3 discloses the cellulose pulp comprises 1-50% by weight MFC microfibrillated cellulose.
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 1-10 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-15 of copending Application No. 19099782 in view of Chen (US 20190062998) and Kuiper (US 20230166895).
Regarding claim 1, copending claim 1 teaches a capsule intended for receiving a substance for preparing a beverage, said capsule comprising a body having a side wall bordered on either side by a base and by a rim surrounding an opening in said body, said capsule being characterized in that the body is formed by molding a cellulose pulp.
Claim 1 differs from the copending claim in specifically reciting that the cellulose pulp comprises MFC microfibrillated cellulose.
Chen teaches beverage producing capsules (see figure 6) that can be moulded from cellulose pulp material (see paragraph 6, “the base layer comprises pulp fiber”; see paragraph 10, 12, see paragraph 71, “injection molding”; see paragraph 72, “nanocellulose”; “molded into a desired shape”) and can also be optionally impregnated or mixed with a polymer such as PLA (see paragraph 71). Chen teaches that such materials for the capsule help to provide a more environmentally friendly, sustainable and cost effective functional material that can provide for air and moisture impermeable coffee capsules (see paragraph 25).
Kuiper also 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). Heydel also teaches a cellulose pulp molded body for a capsule capable of producing a beverage (see figure 6-7; see figure 5, item 200,211; page 1, lines 10-13 and page 11, lines 32-36) and which body can have sealing labels covering the side wall (see figure 5, layers 310,320,340).
To therefore modify the copending claims and to form the body as a molded body comprising microfibrillated cellulose, would have been obvious to one having ordinary skill in the art for improving the environmental friendliness, sustainability and cost effectiveness while also providing the desired barrier properties and mechanical properties to Heydel’s pulp molded body.
Regarding claim 2, in view of Chen the combination teaches in figure 5 that the cellulose pulp can comprise 50% fibrillated cellulose (see “Mixture structure” 50% BG / 50% NFC). At paragraph 42, Chen suggests using, for example, fibrillated cellulose to pulp at a ratio 1:100 or 1:1 and therefore teaches fibrillated cellulose at 10% and 50%. At paragraph 57, 58, 67 and 68, Chen teaches using MFC and/or NFC thus teaching and suggesting that either microfibrillated and/or nanofibrillated cellulose are equally available to be part of the molded cellulose pulp body.
To therefore modify the combination and to use 50% microfibrillated cellulose (MFC) or another amount of MFC such as 10% as part of the molded cellulose pulp body would have been obvious to one having ordinary skill in the art as a matter of engineering and/or design, and for the purpose of achieving the requisite mechanical and gas barrier properties to the pulp body.
Regarding claims 3-6, copending claims 4-7 teach an oxygen transmission rate of at most 5 cc/m2/day and a water vapor transmission rate of less than 10 g/m2-24hr.
Regarding claims 7-8, copending claims 2-3 teach a sealing label comprising MFC microfibrillated cellulose.
Regarding claim 9, copending claim 11 teaches that the capsule is biodgradable
Regarding claim 10, 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 claim 10 has been suggested by the combination as applied to claim 1. Nonetheless, copending claim 13 teaches dry or wet molding.
This is a provisional nonstatutory double patenting rejection.
Claims 1-10 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-16 of copending Application No. 19099781 in view of Chen (US 20190062998) and Kuiper (US 20230166895).
Regarding claim 1, copending claim 1 teaches a capsule intended for receiving a substance for preparing a beverage, said capsule comprising a body having a side wall bordered on either side by a base and by a rim surrounding an opening in said body, said capsule being characterized in that the body is formed by molding a cellulose pulp.
Claim 1 differs from the copending claim in specifically reciting that the cellulose pulp comprises MFC microfibrillated cellulose.
Chen teaches beverage producing capsules (see figure 6) that can be moulded from cellulose pulp material (see paragraph 6, “the base layer comprises pulp fiber”; see paragraph 10, 12, see paragraph 71, “injection molding”; see paragraph 72, “nanocellulose”; “molded into a desired shape”) and can also be optionally impregnated or mixed with a polymer such as PLA (see paragraph 71). Chen teaches that such materials for the capsule help to provide a more environmentally friendly, sustainable and cost effective functional material that can provide for air and moisture impermeable coffee capsules (see paragraph 25).
Kuiper also 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). Heydel also teaches a cellulose pulp molded body for a capsule capable of producing a beverage (see figure 6-7; see figure 5, item 200,211; page 1, lines 10-13 and page 11, lines 32-36) and which body can have sealing labels covering the side wall (see figure 5, layers 310,320,340).
To therefore modify the copending claims and to form the body as a molded body comprising microfibrillated cellulose, would have been obvious to one having ordinary skill in the art for improving the environmental friendliness, sustainability and cost effectiveness while also providing the desired barrier properties and mechanical properties to Heydel’s pulp molded body.
Regarding claim 2, in view of Chen the combination teaches in figure 5 that the cellulose pulp can comprise 50% fibrillated cellulose (see “Mixture structure” 50% BG / 50% NFC). At paragraph 42, Chen suggests using, for example, fibrillated cellulose to pulp at a ratio 1:100 or 1:1 and therefore teaches fibrillated cellulose at 10% and 50%. At paragraph 57, 58, 67 and 68, Chen teaches using MFC and/or NFC thus teaching and suggesting that either microfibrillated and/or nanofibrillated cellulose are equally available to be part of the molded cellulose pulp body.
To therefore modify the combination and to use 50% microfibrillated cellulose (MFC) or another amount of MFC such as 10% as part of the molded cellulose pulp body would have been obvious to one having ordinary skill in the art as a matter of engineering and/or design, and for the purpose of achieving the requisite mechanical and gas barrier properties to the pulp body.
Regarding claims 3-6, copending claims 9-12 teach an oxygen transmission rate of at most 5 cc/m2/day and a water vapor transmission rate of less than 10 g/m2-24hr.
Regarding claims 7-8, copending claim 2 teaches a sealing label comprising MFC microfibrillated cellulose.
Regarding claim 9, copending claim 14 teaches that the capsule is biodgradable
Regarding claim 10, 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 claim 10 has been suggested by the combination as applied to claim 1. Nonetheless, copending claim 16 teaches dry or wet molding.
This is a provisional nonstatutory double patenting rejection.
Claims 3-10 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-10 of copending Application No. 19099483 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because:
Copending claims disclose a capsule intended for receiving a substance for preparing a beverage, said capsule comprising a body having a side wall bordered on either side by a base and by a rim surrounding an opening in said body, said capsule being characterized in that the body is formed by molding a cellulose pulp and said cellulose pulp comprising MFC microfibrillated cellulose as already discussed above.
Regarding claims 3-6, copending claims 4-7 disclose an oxygen transmission rate of at most 5 cc/m2/day and a water vapor transmission rate of less than 10 g/m2-24hr.
Regarding claims 7-8, copending claims 8-9 disclose a sealing label comprising MFC microfibrillated cellulose.
Regarding claim 9, copending claim 10 discloses that the capsule is biodegradable
Regarding claim 10, 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 claim 10 has been suggested by the combination as applied to claim 1. Nonetheless, copending claim 1 discloses dry molding.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Hausmann (WO 2023222625) discloses packaging comprising paper layer (cellulose layer; figure 1, item 2) together with a sealing label comprising microfibrillated cellulose (see page 5, line 24 to page 6, line 8; figure 1, item 3).
Brivois (US 20210024283) discloses 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 cellulose based sealing label (see figure 4 and 5, item 13, 14; paragraph 33-35, 40, 45). Brivois teaches that the capsule body can be a biodegradable molded capsule body (see paragraph 31) and that the capsule can have an oxygen transmission rate of 1 cc/m2-day (see paragraph 35) and can have a water vapor transmission rate of 10g/m2-24hr (see paragraph 39).
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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/VIREN A THAKUR/Primary Examiner, Art Unit 1792
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