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 .
DETAILED ACTION
Response to Election
1. Applicant’s election of claims 1-18 in the reply filed on March 5, 2026, is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.03(a)).
Claims 31-32 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on March 5, 2026.
The requirement is deemed proper and is therefore made FINAL.
Information Disclosure Statement
2. The references disclosed within the information disclosure statement (IDS) submitted on February 26, 2025, has been considered and initialed by the Examiner.
Claim Rejections – 35 USC 112
3. 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.
4. Claims 7 and 17 are rejected under 35 U.S.C. 112(b), as being indefinite for failing to particularly point out and distinctly claim the subject matter which applicant regards as the invention.
In claim 7, the phrase, “with preference, the first tie-layer and/or the second tie-layer comprise maleic anhydride grafted polyethylene” is indefinite. The phrase with preference is a relative term which renders the claim indefinite. It is unclear whether the first tie-layer and/or the second tie-layer comprise maleic anhydride grafted polyethylene is required by the claim or not.
In claim 17, the phrase, “with preference, the high-density polyethylene has a density of at least 0.940 g/cm3” is indefinite. The phrase with preference is a relative term which renders the claim indefinite. It is unclear whether the first film comparing a high-density polyethylene having a density of at least 0.940 g/cm3 is required by the claim or not.
Claim Rejections – 35 USC § 103
5. 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 may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
6. Claims 1-6, 8-18 are rejected under 35 U.S.C. 103 as being unpatentable over Sandkuehler et al. (U.S. 2022/0072832).
Sandkuehler discloses laminates comprising a uniaxially oriented first multilayer film comprising ethylene-based polymer; a biaxially oriented second multilayer film adhered to the uniaxially oriented first multilayer film and comprising an ethylene-based polymer (abstract). Sandkuehler discloses a uniaxially oriented first multilayer film comprising ethylene-based that is oriented in the machine direction and a biaxially oriented second multilayer film adhered to the uniaxially oriented first multilayer film and comprising an ethylene-based polymer having a density from 0.900 to 0.962 g/cm3
(HDPE) (claim 1 of Sandkuehler). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Sandkuehler does not appear to explicitly teach the sealing initiation temperature of the second film, however substantially identical materials treated in a substantially identical manner are expected to have substantially identical properties. In the present case the laminate is carried out using material and process conditions which are substantially identical to those disclosed by applicants. Therefore the laminate discussed above would be expected to meet the claimed sealing initiation temperature, as in claim 1. In claim 1, the phrases, “as determined by the method described in the description and the second film” and “as determined according to ISO 1183-1:2012 at 23°C” introduces a process limitation to the product claim.
For purposes of examination, product-by-process claims are not limited to the manipulation of the recited steps, only the structure implied by the steps. See MPEP 2113. In the present case, the recited steps imply a structure having a first film comprising machine-direction oriented polyethylene film and a second biaxially oriented polyethylene film. The reference suggests such a product because Sandkuehler discloses laminates comprising a uniaxially oriented first multilayer film comprising ethylene-based polymer; a biaxially oriented second multilayer film adhered to the uniaxially oriented first multilayer film and comprising an ethylene-based polymer (abstract). Sandkuehler discloses a uniaxially oriented first multilayer film comprising ethylene-based that is oriented in the machine direction and a biaxially oriented second multilayer film adhered to the uniaxially oriented first multilayer film and comprising an ethylene-based polymer having a density from 0.900 to 0.962 g/cm3 (HDPE) (claim 1 of Sandkuehler).
Concerning claim 2, Sandkuehler discloses wherein the uniaxially oriented first multilayer film comprises: at least one outer layer having a high density polyethylene comprising a density of at least 0.950 g/cc (claim 6 of Sandkuehler). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Concerning claim 3, Sandkuehler discloses a uniaxially oriented first multilayer film comprises at least 20% by weight HDPE. The high density polyethylene of the uniaxially oriented first multilayer film may have a density of at least 0.950 g/cc (paragraph 25). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Concerning claim 4, Sandkuehler discloses a laminate comprising: a uniaxially oriented first multilayer film comprising ethylene-based polymer having a density from 0.930 to 0.970 g/cm.sup.3 (claim 1 of Sandkuehler). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Concerning claim 5, Sandkuehler discloses a uniaxially oriented first multilayer film comprising at least one outer layer having a high density polyethylene comprising a density of at least 0.950 g/cc and at least one intermediate layer disposed between the at least one inner layer and the at least one outer layer, the intermediate layer comprising an ethylene based polymer having a density greater than 0.930 g/cc (paragraph 27).
Concerning claim 6, Sandkuehler discloses the biaxially oriented second multilayer film can further comprise one or more additional polymers including ethylene vinyl acetate (paragraph 39).
Concerning claim 8, Sandkuehler discloses laminates comprising a uniaxially oriented first multilayer film comprising ethylene-based polymer; a biaxially oriented second multilayer film adhered to the uniaxially oriented first multilayer film and comprising an ethylene-based polymer (abstract). Sandkuehler discloses “Multilayer structure” means any structure having more than one layer. For example, the multilayer structure may have two, three, four, five or more layers (paragraph 17).
Concerning claim 9, Sandkuehler discloses the biaxially oriented second multilayer film may have a thickness from 15 to 40 µm (paragraph 36).
Concerning claim 10, Sandkuehler discloses laminates comprising a uniaxially oriented first multilayer film comprising ethylene-based polymer; a biaxially oriented second multilayer film adhered to the uniaxially oriented first multilayer film and comprising an ethylene-based polymer (abstract).
Sandkuehler does not appear to explicitly teach the sealing initiation temperature of the second film, however substantially identical materials treated in a substantially identical manner are expected to have substantially identical properties. In the present case the laminate is carried out using material and process conditions which are substantially identical to those disclosed by applicants. Therefore the laminate discussed above would be expected to meet the claimed sealing initiation temperature. In claim 10, the phrase, “as determined by the method described in the description” introduces a process limitation to the product claim. For purposes of examination, product-by-process claims are not limited to the manipulation of the recited steps, only the structure implied by the steps. See MPEP 2113. In the present case, the recited steps imply a structure having a first film comprising machine-direction oriented polyethylene film and a second biaxially oriented polyethylene film. The reference suggests such a product because Sandkuehler discloses laminates comprising a uniaxially oriented first multilayer film comprising ethylene-based polymer; a biaxially oriented second multilayer film adhered to the uniaxially oriented first multilayer film and comprising an ethylene-based polymer (abstract). Sandkuehler discloses a uniaxially oriented first multilayer film comprising ethylene-based that is oriented in the machine direction and a biaxially oriented second multilayer film adhered to the uniaxially oriented first multilayer film and comprising an ethylene-based polymer having a density from 0.900 to 0.962 g/cm3 (HDPE) (claim 1 of Sandkuehler).
Concerning claim 11, Sandkuehler discloses biaxially oriented second multilayer film may comprise a linear low density polyethylene (LLDPE). Suitable LLDPE's include Ziegler-Natta catalyzed linear low density polyethylene, single site catalyzed (including metallocene) linear low density polyethylene (mLLDPE) where the biaxially oriented second multilayer film can comprise greater than 50 weight percent LLDPE in some embodiments, greater than 60 weight percent in other embodiments, and greater than 70 weight percent in other embodiments (paragraph 38). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Concerning claim 12, Sandkuehler discloses biaxially oriented second multilayer film may comprise a linear low density polyethylene (LLDPE) (paragraph 38).
Concerning claim 13, Sandkuehler discloses LLDPE 1 is an ethylene-hexene copolymer prepared via solution polymerization process in a single reactor in the presence of a catalyst system (paragraph 75).
Concerning claim 14, Sandkuehler discloses LLDPE 1 is an ethylene-hexene copolymer prepared via solution polymerization process in a single reactor in the presence of a catalyst system (paragraph 75) having a density of 0.916 g/cm3. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Concerning claim 15, Sandkuehler discloses LLDPE 1 is an ethylene-hexene copolymer prepared via solution polymerization process in a single reactor in the presence of a catalyst system (paragraph 75 having a melt index (I2) of 1.05 g/10 minutes. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Concerning claim 16, Sandkuehler discloses the uniaxially oriented first multilayer film comprises: at least one outer layer having a high density polyethylene (claim 6 of Sandkuehler).
Concerning claim 17, Sandkuehler discloses the uniaxially oriented first multilayer film comprises: at least one outer layer having a high density polyethylene comprising a density of at least 0.950 g/cc (claim 6 of Sandkuehler).
Concerning claim 18, Sandkuehler discloses the uniaxially oriented first multilayer film comprises: at least one outer layer having a high density polyethylene comprising a melt index (I.sub.2) from 0.3 to 5 g/10 mins (claim 6 of Sandkuehler).
Conclusion
7. Claim 7 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
8. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Lawrence Ferguson whose telephone number is 571-272-1522. The examiner can normally be reached on Monday through Friday 9:00 AM – 5:30PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Frank Vineis, can be reached on 571-270-1547. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free).
/LAWRENCE D FERGUSON/Examiner, Art Unit 1781
Prosecution Insights