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
Claim Objections
Claims 1-3, 8-9, 13-14, and 20 are objected to because of the following informalities: The abbreviations for NPG, TMCD, MPDiol, CHDM, DMT, TPA, DEG, Tg, and HDT should be spelled out the first time they appear in the claims along with the abbreviation in parentheses. 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 4, 6-7, 9-10, 12-13, 15, and 17 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 4, 6-7, 9-10, 12-13, and 15 refer to the compositions or properties of a polyester without indicating whether the limitations are required for the polyester in the opaque layer, the polyester in the transparent layer, or both, given that the claims allow the polyesters in the two layers to have different compositions.
Claim 17 is indefinite as it is not clear what limitations are required for an article to be recyclable in a PET recycle stream. It is the examiner’s position that the relevant limitations will depend on local recycling operators and that the relevant limitations are likely to evolve over time, since current recycling operations span from forming blocks of commingled plastics to recovering reuseable monomers.
Claim 19 recites the limitation "the view stripe" in line 2. There is insufficient antecedent basis for this limitation in the claim.
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 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1-3, 5-12, 14-17, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Treece and Seymour (WO 2020/231778 A1, published 19 Nov. 2020, hereinafter Treece) in view of Dreier (DE 4136766 A1, published 27 May 1993, hereinafter Dreier).
Regarding claims 1-3, 5-12, 14-17, and 20, Treece teaches a recyclable molded article from blends of 50-85 wt.% of one or more copolyesters and 15-50 wt.% recycled PET, in which the copolyester is formed from the monomers: terephthalic acid (TA), neopentyl glycol (NPG), 1,4-cyclohexanedimethanol (CHDM), ethylene glycol (EG), and/or 2,2,4,4-tetramethyl-1,3-cyclobutanediol in (TCBD) certain compositional ranges, and have low haze (Abstract). Treece teaches a copolyester formed from the monomers: 70-100 mol% TA, 0-30 mol% aromatic or aliphatic dicarboxylic acid with 20 or more carbons, 0-35 mol% TCBD, 0-50 mol% CHDM, 0-50 mol% NPG, and up to 98 mol% of ethylene glycol (paragraph 0007). Treece teaches the inherent viscosity of the copolyester is 0.50 to 0.9 dL/g as determined in 60/40 phenol/tetrachloroethane at a concentration of 0.5 g/100 mL at 25°C, the glass transition temperature (Tg) of the copolyester is 70-115°C, and the blend has a melting temperature of 225 to 255°C, and the molded blend has a haze value of 20% or less using ASTM D1003 (paragraphs 0007 and 0093). Treece teaches his blend contains 0.01 to 1 mol% of a branching agent, such as trimellitic acid, trimellitic anhydride, trimethylolpropane, pentaerythritol, and 0.01 to 25 wt.% of one or more of colorants, plasticizers, nucleating agents, UV stabilizers, impact modifiers, and fillers (paragraphs 0052-0053 and 0073). Treece teaches his composition is formed into containers and bottles (paragraph 0079) using an injection blow molding process (paragraph 0082).
As set forth in MPEP 2144.05, in the case where the claimed range “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).
Therefore, it would have been obvious to one of ordinary skill in the art to have selected relative amounts of monomers in the copolyester, amounts of branching agent, haze value, intrinsic viscosity, and glass transition and melt temperatures from the overlapping portions of the ranges taught by Treece because overlapping ranges have been held to be prima facie obviousness.
Treece does not disclose the high-pressure heat distortion temperature (HDT) of his copolyester composition. However, given that the copolyester composition of Treece has the same composition with overlapping glass transition and melt temperatures and intrinsic viscosity as the claimed invention, within the overlapping ranges, the copolyester composition of Treece would inherently have the same high-pressure HDT as the claimed invention, and therefore, would fall within the claimed range for high-pressure HDT.
Treece does not disclose a blow molded article with a transparent view panel comprising an opaque layer and a transparent layer.
Dreier teaches a multilayer container comprising a transparent layer and a layer containing color making it (nearly) opaque, in which a viewing strip is formed of transparent plastic to function as filling indicator, and Dreier teaches his bottle is blown into shape (Abstract).
Given that Treece and Dreier are drawn to blown bottles made of thermoplastic materials, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to form a multilayer bottle with opaque and transparent layers with a viewing strip as taught by Dreier using the copolyester taught by Treece. Since Treece and Dreier are both drawn to blown bottles made of thermoplastic materials, one of ordinary skill in the art would have a reasonable expectation of success in forming a multilayer bottle with opaque and transparent layers with a viewing strip as taught by Dreier using the polyester composition taught by Treece. Further, Dreier teaches (paragraph 0003):
“If the container shell is opaque or only slightly transparent, the fill level cannot be determined by simply inspecting the container visually. Cumbersome auxiliary measures, such as the insertion of a measuring rod, are required. If the container shell is sufficiently transparent, the fill level can be determined by visual inspection alone, but the liquid poured into the container is exposed to daylight. This is harmful, undesirable, or impermissible for numerous liquids. However, it is also known to provide a sight strip made of transparent plastic in a single-layer container of the described construction, which consists of colored plastic, to serve as a fill level indicator.”
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Treece and Seymour (WO 2020/231778 A1, published 19 Nov. 2020, hereinafter Treece) in view of Dreier (DE 4136766 A1, published 27 May 1993, hereinafter Dreier) and evidence provided by Bata et al (“Melt shear viscosity of original and recycled PET in wide range shear rate,” 3rd Inter’l.Conf.Rheol.Mod.Mat., IOP Conf.Series: J.Physics Series 1045, Paper 012007, published 2018, hereinafter Bata) and Indorama Ventures (“Technical Datasheet RAMAPET N180,” dated 1 May 2011, hereinafter Indorama).
Regarding claim 4, Treece in view of Dreier teaches the elements of claim 1, and Treece teaches his blend composition has a melt viscosity of 10,000 poise or greater at a shear rate of 1 radian per second at 260°C (paragraph 0059), which corresponds to a melt viscosity of 1000 Pa-s or greater.
As evidenced by Indorama, the intrinsic viscosity of the PET used by Bata is 0.80 (page 1, Sales specification table).
As evidenced by Bata, the melt viscosity of PET with an intrinsic viscosity of 0.80 is independent of shear rate at a shear rate of 1 1/s (Figure 3); therefore, the viscosity values taught by Treece do correspond to zero shear rate values.
As set forth in MPEP 2144.05, in the case where the claimed range “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).
Therefore, it would have been obvious to one of ordinary skill in the art to have selected zero-shear-rate viscosity values from the overlapping portion of the range taught by Treece because overlapping ranges have been held to be prima facie obviousness.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Treece and Seymour (WO 2020/231778 A1, published 19 Nov. 2020, hereinafter Treece) in view of Dreier (DE 4136766 A1, published 27 May 1993, hereinafter Dreier) and further in view of Pecorini et al. (US Patent Application 2013/0041053 A1, published 14 Feb. 2013, hereinafter Pecorini).
Regarding claim 13, Treece in view of Dreier teaches the elements of claim 1, and Treece teaches the inclusion of recycled PET in his composition.
Treece does not disclose the inclusion of recycled monomers in forming his copolyesters.
Pecorini teaches the inclusion of recycled monomers in forming polyesters (Abstract).
Given that Treece and Pecorini are drawn to forming polyesters from various monomers, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate recycled ethylene glycol and other recycled monomers as taught by Pecorini as monomers in forming the copolyester taught by Treece in view of Dreier. Since Treece and Pecorini are both drawn to forming polyesters from various monomers, one of ordinary skill in the art would have a reasonable expectation of success in incorporating recycled ethylene glycol and other recycled monomers as taught by Pecorini as monomers in forming the copolyester as taught by Treece in view of Dreier. Further, Pecorini teaches the polyesters containing recycled monomers have physical properties and an appearance that is similar to polyesters prepared from virgin monomers (Abstract), and Pecorini teaches (paragraph 0001):
“Recycling provides a more sustainable option than land filling or incineration and considerable infrastructure is in place in many countries to collect used plastic containers and process them into a form where the plastic can be used again to make useful articles. This infrastructure is widely available for poly(ethylene terephthalate), abbreviated herein as “PET,” which is the most widely used polyester. Fibers, sheeting, containers and a variety of molded articles, therefore, are being produced from recycled PET or a mixture of recycled and virgin material. Products incorporating a high recycle content are valued by both brand owners and consumers.”
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Treece and Seymour (WO 2020/231778 A1, published 19 Nov. 2020, hereinafter Treece) in view of Dreier (DE 4136766 A1, published 27 May 1993, hereinafter Dreier) and further in view of Pedmo et al. (WO 2005/113343 A1, published 01 Dec. 2005, hereinafter Pedmo).
Regarding claim 19, Treece in view of Dreier teaches the elements of claim 1.
Treece in view of Dreier does not disclose the thickness of the view stripe.
Pedmo teaches a plastic article with opaque wall portion and a transparent portion as a view stripe (Abstract), and he teaches the width of the view stripe is not critical, but would preferably be from one eighth of an inch to one half inch wide (page 10, 2nd paragraph), which corresponds to a width of 3.2 to 12.7 mm.
As set forth in MPEP 2144.05, in the case where the claimed range “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).
Therefore, it would have been obvious to one of ordinary skill in the art to have selected view stripe width from the overlapping portion of the range taught by Pedmo because overlapping ranges have been held to be prima facie obviousness.
Given that Treece and Pedmo are drawn to thermoplastic containers, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate a view stripe of the width taught by Pedmo in the container taught by Treece in view of Dreier. Since Treece and Pedmo are both drawn to thermoplastic containers, one of ordinary skill in the art would have a reasonable expectation of success in incorporating a view stripe of the width as taught by Pedmo in the container as taught by Treece in view of Dreier. Further, Pedmo teaches state that opaque portion of the container provides attractive coloring for a pleasing appearance on the store shelf, while the transparent stripe permits one to see inside the container (page 1, first two paragraphs). Therefore, one would use a view stripe with width, including that presently claimed, in order both to provide attractive coloring for a pleasing appearance and to allow one to see the contents of the container.
Claims 1-3, 5-11, 16-18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Pecorini et al. (US Patent Application 2012/0328815 A1, published 27 Dec. 2012, hereinafter Pecorini II) in view of Dreier (DE 4136766 A1, published 27 May 1993, hereinafter Dreier).
Regarding claims 1-3, 5-11, 16-18, and 20, Pecorini II teaches the production of articles from polymeric materials with a glass transition temperature of 100 to 130°C (Abstract). Pecorini II teaches a polyester formed from 70 to 100 mol% TA, 0 to 30 mol% aromatic dicarboxylic acid having up to 20 carbon atoms, 0 to 10 mol% aliphatic dicarboxylic acid having up to 16 carbon atoms, 10 to 50 mol% 2,2,4,4-tetramethyl-1,3-cyclobutanediol, and 50 to 90 mol% CHDM, and the polyester has an intrinsic viscosity of 0.45 to 1.0 dL/g in the claimed solvent mixture at a concentration of 0.5 g/100 mL (paragraphs 0013-0020). Pecorini II teaches the inclusion of ethylene glycol in his copolyester (paragraph 1216); therefore, Pecorini II teaches embodiments in which his copolyester comprises 0 to 40 mol% ethylene glycol. Pecorini II teaches his composition comprises 0.01 to 25 wt.% colorants, plasticizers, UV stabilizers, and fillers (paragraph 1231), and he teaches his composition comprises 0 to 10 mol% of a branching agent, such as trimellitic acid, trimellitic anhydride, trimethylolpropane, pentaerythritol, and trimethylolethane (paragraph 1217-1218). Pecorini II teaches his bottles have a haze value of 1% or less (paragraph 0805). Pecorini II teaches a bottle wall thickness of greater than 0.5 mm (paragraph 1187).
It is the examiner’s position that the copolyester taught by Pecorini II would be recyclable in a PET recycle stream.
As set forth in MPEP 2144.05, in the case where the claimed range “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).
Therefore, it would have been obvious to one of ordinary skill in the art to have selected relative amounts of monomers in the copolyester, amounts of branching agent, haze value, intrinsic viscosity, glass transition temperature, and bottle wall thickness from the overlapping portions of the ranges taught by Pecorini II because overlapping ranges have been held to be prima facie obviousness.
Pecorini II does not disclose the melt temperature nor the high-pressure heat distortion temperature (HDT) of his copolyester. However, given that the copolyester composition of Treece has the same composition with overlapping glass transition temperature, and intrinsic viscosity as the claimed invention, within the overlapping ranges, the copolyester composition of Pecorini II would inherently have the same melt temperature and high-pressure HDT as the claimed invention, and therefore, would fall within the claimed ranges for melt temperature and high-pressure HDT.
Pecorini II does not disclose a blow molded article with a transparent view panel comprising an opaque layer and a transparent layer.
Dreier teaches a multilayer container comprising a transparent layer and a layer containing color making it (nearly) opaque, in which a viewing strip is formed of transparent plastic to function as filling indicator, and Dreier teaches his bottle is blown into shape (Abstract).
Given that Pecorini II and Dreier are drawn to blown bottles made of thermoplastic materials, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to form a multilayer bottle with opaque and transparent layers with a viewing strip as taught by Dreier using the copolyester taught by Pecorini II. Since Pecorini II and Dreier are both drawn to blown bottles made of thermoplastic materials, one of ordinary skill in the art would have a reasonable expectation of success in forming a multilayer bottle with opaque and transparent layers with a viewing strip as taught by Dreier using the polyester composition taught by Pecorini II. Further, Dreier teaches (paragraph 0003):
“If the container shell is opaque or only slightly transparent, the fill level cannot be determined by simply inspecting the container visually. Cumbersome auxiliary measures, such as the insertion of a measuring rod, are required. If the container shell is sufficiently transparent, the fill level can be determined by visual inspection alone, but the liquid poured into the container is exposed to daylight. This is harmful, undesirable, or impermissible for numerous liquids. However, it is also known to provide a sight strip made of transparent plastic in a single-layer container of the described construction, which consists of colored plastic, to serve as a fill level indicator.”
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Pecorini et al. (US Patent Application 2012/0328815 A1, published 27 Dec. 2012, hereinafter Pecorini II) in view of Dreier (DE 4136766 A1, published 27 May 1993, hereinafter Dreier) and further in view of Pecorini et al. (US Patent Application 2013/0041053 A1, published 14 Feb. 2013, hereinafter Pecorini).
Regarding claim 13, Pecorini II in view of Dreier teaches the elements of claim 1.
Pecorini II does not disclose the inclusion of recycled monomers in forming his copolyesters.
Pecorini teaches the inclusion of recycled monomers in forming polyesters (Abstract).
Given that Pecorini II and Pecorini are drawn to forming polyesters from various monomers, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate recycled ethylene glycol and other recycled monomers as taught by Pecorini as monomers in forming the copolyester taught by Pecorini II in view of Dreier. Since Pecorini II and Pecorini are both drawn to forming polyesters from various monomers, one of ordinary skill in the art would have a reasonable expectation of success in incorporating recycled ethylene glycol and other recycled monomers as taught by Pecorini as monomers in forming the copolyester as taught by Pecorini II in view of Dreier. Further, Pecorini teaches the polyesters containing recycled monomers have physical properties and an appearance that is similar to polyesters prepared from virgin monomers (Abstract), and Pecorini teaches (paragraph 0001):
“Recycling provides a more sustainable option than land filling or incineration and considerable infrastructure is in place in many countries to collect used plastic containers and process them into a form where the plastic can be used again to make useful articles. This infrastructure is widely available for poly(ethylene terephthalate), abbreviated herein as “PET,” which is the most widely used polyester. Fibers, sheeting, containers and a variety of molded articles, therefore, are being produced from recycled PET or a mixture of recycled and virgin material. Products incorporating a high recycle content are valued by both brand owners and consumers.”
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Pecorini et al. (US Patent Application 2012/0328815 A1, published 27 Dec. 2012, hereinafter Pecorini II) in view of Dreier (DE 4136766 A1, published 27 May 1993, hereinafter Dreier) and further in view of Pedmo et al. (WO 2005/113343 A1, published 01 Dec. 2005, hereinafter Pedmo).
Regarding claim 19, Pecorini II in view of Dreier teaches the elements of claim 1.
Pecorini II in view of Dreier does not disclose the thickness of the view stripe.
Pedmo teaches a plastic article with opaque wall portion and a transparent portion as a view stripe (Abstract), and he teaches the width of the view stripe is not critical, but would preferably be from one eighth of an inch to one half inch wide (page 10, 2nd paragraph), which corresponds to a width of 3.2 to 12.7 mm.
As set forth in MPEP 2144.05, in the case where the claimed range “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).
Therefore, it would have been obvious to one of ordinary skill in the art to have selected view stripe width from the overlapping portion of the range taught by Pedmo because overlapping ranges have been held to be prima facie obviousness.
Given that Pecorini II and Pedmo are drawn to thermoplastic containers, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate a view stripe of the width taught by Pedmo in the container taught by Pecorini II in view of Dreier. Since Pecorini II and Pedmo are both drawn to thermoplastic containers, one of ordinary skill in the art would have a reasonable expectation of success in incorporating a view stripe of the width as taught by Pedmo in the container as taught by Pecorini II in view of Dreier. Further, Pedmo teaches state that opaque portion of the container provides attractive coloring for a pleasing appearance on the store shelf, while the transparent stripe permits one to see inside the container (page 1, first two paragraphs). Therefore, one would use a view stripe with width, including that presently claimed, in order both to provide attractive coloring for a pleasing appearance and to allow one to see the contents of the container.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Whinfield and Dickson (US Patent 2,465,319, published 22 Mar. 1949) teaches the homopolymer, polyethylene terephthalate (PET), which meets the composition limitations of claims 1, 2, and 20. Mika and Fitch (WO 2021/236322 A1, published 25 Nov. 2021) teaches an extrusion blow molded container formed from a polyolefin copolymer with a viewing window. Shih et al. (WO 2011/043938 A1, published 14 Apr. 2011) teaches a copolyester with the claimed composition. Hofmann et al. (WO 2020/231689 A1, published 19 Nov. 2020) teaches blends of copolyesters having recycled content with the claimed composition.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN VINCENT LAWLER whose telephone number is (571)272-9603. The examiner can normally be reached on M - F 8:00 am - 5:00 pm ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Callie Shosho can be reached on 571-272-1123. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOHN VINCENT LAWLER/Primary Examiner, Art Unit 1787
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