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 .
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.
Claim 17 is rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint regards as the invention.
Claim 17 recites the limitation that the non-polyethylene content of the total composition is in the range of 5-15 wt%. However, claim 17 is dependent upon claim 1, which requires that the total composition contains greater than 90% polyethylene. Thus, it appears as though claim 17 expands, rather than further limits, the scope of claim 1 with respect to the polyethylene content. That is, it is not clear how the non-polyethylene content can be 10-15 wt%, i.e., part of the claimed range in claim 17, without expanding the scope of the polyethylene range in claim 1, i.e., greater than 90 wt%.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-8, 10-13, 17-18, and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Bastion et al. (US Pub 2006/0046006) as evidenced by Marlex D350 Polyethylene Technical Data Sheet.
Regarding claims 1, 7, 12, 13 and 17, US ‘006 discloses a recyclable packaging film ([0026], [0246]) comprising an unoriented multilayer film (Table 1, Sample C; [0029]) that comprises a first layer of a cyclic olefin copolymer (90:10 Ticona-Topas 8007:Equistar NA951), a second layer of a polyethylene (CPChem D350) having a density of 0.933 g/cm3, as evidenced by Marlex D350 Polyethylene Technical Data Sheet, and a third layer of a high-density polyethylene. The packaging film further comprises a vapor deposited layer on the surface of the first layer [0011]. US ‘006 does not specifically disclose the claimed thickness ranges, i.e., first layer 5-15%, second layer 5-60%, and third layer 15-75%, or the total composition containing greater than 90 wt% polyethylene-based polymers. However, it is readily apparent that based on the amounts of the components used for the first, second, and third layers, e.g., Example C, that the thicknesses of the layers and total amount of polyethylene disclosed in US ‘006 overlaps with the presently claimed ranges. As set forth in MPEP 2144.05.I., “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976).
Regarding claim 2, Sample C of US ‘006 discloses an embodiment containing a fourth layer comprising a polyethylene.
Regarding claims 3, 4, and 22, US ‘006 discloses that the packaging film can comprise a sealing layer which can be patterned, e.g., edge or cross seal (Fig 1a, [0028], [0067], [0070]).
Regarding claims 5 and 6, US ‘006 discloses that the vapor deposited layer can be a metal or inorganic oxide ([0025], [0026]). Regarding the optical density property of claim 5, since US ‘006 uses the same materials as the present invention, it is reasonable to conclude that the optical density properties would be the same. See MPEP 2112.01, which states that a chemical composition and its properties are inseparable. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding claim 8, the cyclic olefin copolymer, i.e., 90:10 Ticona-Topas 8007:Equistar NA951, of Sample C of US ‘006 is an amorphous copolymer.
Regarding claim 10, the third layer of Sample C of US ‘006 is free from particulates.
Regarding claim 11, US ‘006 discloses that the base polymer layer can be a single or multilayer film, wherein the polymer layers can be a various non-polyethylene, including polypropylene, polyester, polystyrene, polyamide, and polyurethane [0029]. Further, samples A and F disclose embodiments wherein the first layer does not contain any polyethylene polymers. Based on this disclosure, it would have been obvious to one of ordinary skill in the art to have selected a first layer that was fee from polyethylene polymers, motivated by the desire to obtain a packaging film having desired barrier properties.
Regarding claim 18, US ‘006 does not disclose the claimed curl property of the packaging film. However, since US ‘006 uses the same materials as the present invention, it is reasonable to conclude that the packaging film would exhibit the same a curl properties as the present invention. See MPEP 2112.01, which states that a chemical composition and its properties are inseparable. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Bastion et al. (US Pub 2006/0046006) as evidenced by Topas Advanced Polymers Technical Data Sheet.
Topas Advanced Polymers Technical Data Sheet discloses the cyclic olefin copolymer used in sample C, i.e., Topas 8007, has a glass transition temperature of 78ᵒC.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Bastion et al. (US Pub 2006/0046006) in view of Niedersüss (US Pub 20108/0370202).
US ‘006 does not specifically teach that the high-density polyethylene is bimodal with regard to molecular weight. However, in a similar invention, US ‘202 discloses a recyclable packaging film comprising a multilayer film, wherein the high-density polyethylene is bimodal with regard to the molecular weight [0224]. It would have been obvious to one of skill in the art to combine the teachings of these references to include the high-density polyethylene in the recycling packaging film as a bimodal high-density polyethylene to enhance the structural characteristics and desired strength of the film.
Claims 15-16 and 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over Bastion et al. (US Pub 2006/0046006) in view of Franca et al. (US Pub 2018/0050854).
Regarding claim 15, US ‘006 does not specifically disclose that the high-density polyethylene has a melt flow rate of greater than 1 g/10 min. US ‘854, which is also directed to the recyclable packaging film art, discloses that it is known in the art to use high-density polyethylene materials having a melt flow rate greater than 1 g/10 min ([0022], Table 3). The use of such materials result in a film suitable for use in packaging film applications having desired flexibility and sealing properties.
Regarding claim 16, US ‘006 does not specifically disclose that the high-density polyethylene is nucleated. US ‘854 discloses that it is known in the art to add nucleators to the polyethylene. It would have been obvious to one of ordinary skill in the art to have added a nucleator to the high-density polyethylene of US ‘006, as taught by US ‘854, motivated by the desire to speed up and control the crystallization process.
Regarding claims 19-21, US ‘006 does not disclose incorporating an oriented polyethylene-based film to the vapor deposited layer of the packaging film. US ‘854 discloses that it is known in the art to provide an oriented polyethylene-based film onto the vapor deposited layer of the unoriented multilayer film in order to provide structural benefits to the packaging film [0083]. It would have been obvious to one of ordinary skill in the art to have provided an oriented polyethylene-based film to the vapor deposited layer of the packaging film of US ‘006, as taught by US ‘854, motivated by the desire to provide structural benefits to the packaging film.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Blaine Copenheaver whose telephone number is (571)272-1156. The examiner can normally be reached M-F 8-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Frank Vineis can be reached at (571)270-1547. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BLAINE COPENHEAVER/Primary Examiner, Art Unit 1781
