DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant’s election of Group I (claims 13-22 and 25-32) in the reply filed on 06/18/2026 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 § 818.01(a)).
Claim 23 and 24 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 06/18/2026.
Response to Amendment
Applicant’s amendment filed on 06/18/2026 is acknowledged. In light of amendments, new grounds of rejection are set forth below. Claims 13-22 and 25-32 are examined on the merits in this office action.
Claim Objections
Claim 17 is objected to because of the following informalities: Claim 17, line 3 recites “the test of the puncture resistance”, which should be “the puncture resistance”. Appropriate correction is required.
Claim 18 is objected to because of the following informalities: Claim 18, line 1 recites “The lister sealing film”, which should be “The blister sealing film”. Appropriate correction is required.
Claim 31 is objected to because of the following informalities: Claim 31, line 3 recites “be-tween”, which should be “between”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 18 and 22 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 18 recites that the blister film comprises a sealable layer that has a seal strength “compared to a test specimen comprising the first plastic”. While there is support in the present specification to recite the blister film comprises a sealable layer that has a seal strength “with respect to the first plastic comprising a test specimen”, there is no support for the recited phrase.
Claim 22 recites “the blister bottom film and the blister sealing film each comprise…… polymer chains comprise at least 70 percent by weight of identical repetitive units”. There is no support for this limitation in the specification. As support for the amendment, applicant points to previous claims 14 and 19 and page 4, lines 28-34 of the specification. However, neither these claims nor the specification discloses the cited claim limitation.
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.
Claim 18 is 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 18, lines 4-5 recites “compared to a test specimen comprising the first plastic”. The scope of the claim is confusing given that it is not clear what type of material is included or considered a test specimen. Further, it is not clear what is meant by “compared to first plastic”. Does this refer to the sealable layer having a seal strength that is higher/lower than the first plastic? Clarification is requested. For purposes of examination, a sealable layer meeting the claimed sealing temperature and seal strength is considered to meet claim 18.
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.
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.
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.
Claims 13-17, 19 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Miller et al. (US 2009/0008285 A1 cited in IDS) in view of Fuji (JP2002019003A cited in IDS). It is noted that the disclosures of Fuji are based on a machine translation (cited in IDS).
Regarding claims 13-17, Miller et al. disclose a multi-layer lidding component (blister sealing film) comprises a nonwoven layer 5, a barrier layer 7 and heat-seal layer 8 (see Figure 2a and paragraph 0033). The nonwoven layer comprises fibers or filaments made of polymers such as polypropylene (second plastic) (see paragraphs 0021, 0038, 0041). The barrier layer can be a mono-layer film made of polypropylene (first plastic) (see paragraph 0035). The first plastic and the second plastic are based on the same polymers. Given that the nonwoven layer and the barrier layer can be made of only polypropylene (first plastic and second plastic), the first plastic and the second plastic are based on 100 wt% of polypropylene. Given that both the first plastic and the second plastic are made of polypropylene, the polymer chains comprise 100 wt% of identical repetitive units.
Further, the multi-layer lidding component is used to prepare a blister package, wherein the blister package comprises a blister component and a multi-layer lidding component (see page 9, claim 1). Accordingly, the multi-layer lidding component reads on a blister sealing film.
Miller et al. do not disclose a thickness of the first plastic and/or nonwoven is selected to achieve a puncture resistance as presently claimed.
Fuji discloses a lid material comprising film made of polypropylene resin (see paragraph 0009). The film has sufficient thickness such that it maintains strength, puncture resistance and rigidity (see paragraph 0009). Specifically, the thickness of film is 10 to 100 microns in order to provide puncture resistance as well as prevent increasing cost (see paragraph 0009).
Therefore, as taught by Fuji, it would have been obvious to one of the ordinary skill in the art to use the thickness of first plastic made of polypropylene in Miller et al. such that the blister sealing film has puncture resistance including that presently claimed and prevents increasing cost, and thereby arrive at the present invention.
Further, given that the first plastic (barrier layer) of Miller et al. is made of polypropylene identical to that presently claimed and given that first plastic has puncture resistance, it would have been obvious to one of ordinary skill in the art to apply force, including steadily increasing the force, in order to determine the force required for puncture resistance.
Regarding claim 19, Miller et al. disclose the blister sealing film comprises the nonwoven layer 5 laminated to the barrier layer 7 (layer of the first plastic) (see Figure 2a and 0029).
Regarding claim 21, Miller et al. disclose a blister package comprising a blister component (blister bottom film) and a multi-layer lidding component (blister sealing film) (see page 9, claim 1).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Miller et al. (US 2009/0008285 A1 cited in IDS) in view of Fuji (JP2002019003A) as applied to claim 13 above, further in view of Trouilhet et al. (US 2005/0182197 A1 cited in IDS).
Regarding claim 18, Miller et al. in view of Fuji disclose the blister sealing film as set forth above. Miller et al. disclose the blister sealing film comprising a nonwoven layer 5, a barrier layer 7 and heat-seal layer 8 (see Figure 2a and paragraph 0033). Further, Miller et al. disclose that the heat seal layer can be blend of polyolefin resin comprising ethylene methyl acrylate copolymer (see page 9, claim 5).
Miller et al. do not disclose the heat seal layer as presently claimed.
Trouilhet et al. disclose a sealant composition comprising a blend of propylene polymer and ethylene methyl acrylate polymer (see Abstract and paragraphs 0021, 0025-0026). The composition provides excellent properties heat seal strength, SIT, melting temperature and hot tack (see paragraphs 0011, 0012). Further, heat seal strength values are desired to be equal or below about 10 N/15 mm in temperature range of up to 160 °C for peelable seals and provide an easy opening performance of films and packaging (see paragraphs 0072, 0074). The sealant composition can be used as a sealant layer in a lid packaging (see paragraph 0039). A specific example of the sealant film includes film 22 comprising 80 wt% polypropylene polymer and 20 wt% ethylene methyl acrylate polymer having heat seal strength of 0.5 to 9.0 N/15 mm in temperature range of 110 to 160 °C (see paragraph 0054, Table II, Comp. 22 and paragraph 0073, Table V, HSS film 22).
In light of motivation for using sealant layer disclosed by Trouilhet et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art to use sealant layer of Trouilhet et al. as the heat seal layer in Miller et al. in view of Fuji in order to provide excellent properties heat seal strength, SIT, melting temperature and hot tack as well as provide an easy opening performance, and thereby arrive at the claimed invention.
Claims 13-17, 19, 21, 25, 28, 29 and 32 are rejected under 35 U.S.C. 103 as being unpatentable over Cosentino et al. (US 2004/0132363 A1 cited in IDS) in view of Peiffer et al. (US 2002/0045039 A1).
Regarding claims 13-17, Cosentino et al. disclose a tear resistant seal structure (blister sealing film) comprising a top layer 12 is a biaxially oriented polymer film made of polyester (first plastic) and a scrim layer 20 comprising nonwoven fibrous material made of polyester (second plastic) (see Abstract, Figure 1 and paragraphs 0032, 0042). That is, the first plastic and the second plastic are based on the same polymers. Given that the top layer and the scrim layer can be made of only polyester (first plastic and second plastic), the first plastic and the second plastic are based on 100 wt% of polyester. Given that both the first plastic and the second plastic are made of polyester, the polymer chains comprise 100 wt% of identical repetitive units. Further, a blister type container is adhered to the bottom surface 17 of the scrim layer 20 (see Figure 1-2 and paragraph 0044). That is, the tear resistant seal structure is adhered to the blister type container. Therefore, the tear resistant seal structure is a blister sealing film.
Cosentino et al. do not disclose a thickness of the first plastic and/or nonwoven is selected to achieve a puncture resistance as presently claimed.
Peiffer et al. disclose a lid material comprising made of polyester (see paragraph 0003). The mechanical properties such as stiffness, puncture resistance, tear propagation resistance, etc. improve as thickness of film increases (see paragraph 0003). However, thickness increases material cost (see paragraph 0003).
Therefore, as taught by Peffier et al., it would have been obvious to one of the ordinary skill in the art to use the thickness of first plastic made of polyester in Cosentino et al. such that the tear resistant seal structure (blister sealing film) has puncture resistance including that presently claimed and prevents increasing cost, and thereby arrive at the present invention.
Further, given that the first plastic of Cosentino et al. is made of polyester identical to that presently claimed and given that first plastic has puncture resistance, it would have been obvious to one of ordinary skill in the art to apply force, including steadily increasing the force, in order to determine the force required for puncture resistance.
Regarding claim 19, Cosentino et al. disclose the scrim layer (nonwoven) comprising the second plastic is laminated to the top layer 12 comprising polyester (first plastic) (see Figure 1 and paragraph 0042).
Regarding claim 21, Consentino et al. the tear resistant seal structure (blister sealing film) comprising the top layer 12 comprising a biaxially oriented polymer film made of polyester (first plastic) and the scrim layer 20 (nonwoven) made of polyester (second plastic) as set forth above. Further, a blister type container is adhered to the bottom surface 17 of the scrim layer 20 (see Figure 1-2 and paragraph 0044). That is, the tear resistant seal structure is adhered to the blister type container. Therefore, the tear resistant seal structure is a blister sealing film. The blister type container reads on a blister bottom film. The tear resistant seal structure (blister sealing film) and the blister type container (blister bottom film) together read on a blister package (see Figure 2 and paragraph 0044).
Regarding claim 25, Cosentino et al. disclose the tear resistant seal structure (blister sealing film) comprising the top layer 12 comprising a biaxially oriented polymer film made of polyester (first plastic) (see Abstract, Figure 1 and paragraphs 0032).
Regarding claims 28 and 29, Consentino et al. disclose the tear resistant seal structure (blister sealing film) comprising the top layer 12 comprising a biaxially oriented polymer film made of polyester (first plastic) as noted above. Further the top surface 14 of the top layer 12 can be coated with a polymer barrier coating made of EVOH (see Figure 1 and paragraph 0048). That is, the first plastic is composed of the biaxially oriented polymer film made of polyester (first plastic) and a film consisting of EVOH.
Regarding claim 32, Cosentino et al. disclose a tear resistant seal structure (blister sealing film) comprising a top layer 12 is a biaxially oriented polymer film made of polyester (first plastic) and a scrim layer 20 comprising nonwoven fibrous material made of polyester (second plastic) as noted above. Further, the nonwoven scrims have a basis weight (grammage) of about 5 to about 100 g/m2 (see paragraph 0042).
Claims 20 and 31 are rejected under 35 U.S.C. 103 as being unpatentable over Cosentino et al. (US 2004/0132363 A1 cited in IDS) in view of Peiffer et al. (US 2002/0045039 A1) as applied to claim 13 above, further in view of Wang et al. (CN106003747A). It is noted that the disclosures of Wang et al. are based on a machine translation of the reference which is included in this action.
Regarding claim 20, Cosentino et al. in view of Peiffer et al. disclose the tear resistant seal structure (blister sealing film) comprising the top layer 12 comprising biaxially oriented polymer film made of polyester (first plastic) and the scrim layer 20 comprising nonwoven fibrous material made of polyester (second plastic) as noted above.
Cosentino et al. in view of Peiffer et al. do not disclose the nonwoven fibrous material comprises stretched fibers.
Wang et al. disclose a nonwoven polyester fibrous film that is biaxially stretched (see Abstract). That is, the nonwoven polyester fibrous film comprises stretched polyester fibers. The nonwoven polyester fibrous film has good chemical and dimensional stability (see paragraph 0009). The nonwoven polyester fibrous film is used in packaging material (see paragraph 0025).
In light of motivation for using a nonwoven polyester fibrous film comprises stretched polyester fibers disclosed by Wang et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art before the effective filing date of the claimed invention to use nonwoven polyester fibrous material comprising stretched fibers for the scrim layer in Cosentino et al. in view of Peiffer et al. in order to provide good chemical and dimensional stability, and thereby arrive at the claimed invention.
Regarding claim 31, Cosentino et al. in view of Peiffer et al. and Wang et al. disclose the scrim layer comprising nonwoven polyester fibrous material comprising stretched fibers as noted above. Given the fibers of nonwoven polyester fibrous material are stretched and given that fibers are made of polyester (second plastic) identical to that utilized in the present invention, the fibers tear when force is applied after an additional elongation or stretching of between 20-300%.
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Cosentino et al. (US 2004/0132363 A1 cited in IDS) as applied to claim 21 above, further in view of Miller et al. (US 2009/0008285 A1 cited in IDS).
Regarding claim 22, Cosentino et al. disclose the blister package comprising the tear resistant seal structure (blister sealing film) and the blister type container (blister bottom film) as set forth above. Further the tear resistant seal structure (blister sealing film) comprising the top layer 12 is a biaxially oriented polymer film made of polyester (first plastic) and the scrim layer 20 (nonwoven) is made of polyester (second plastic) as set forth above. Further, a thermal bonding layer 18 is provided between the top layer and the scrim layer, wherein the thermal bonding layer comprises polyester (see Figure 1 and paragraph 0037). Given that all of the top layer 12, thermal bonding layer 18 and the scrim layer 20 can be made of only polyester, the tear resistant seal structure (blister sealing film) consists of 100 wt% of polyester as a plastic. Therefore, the polymer chains comprise 100 wt% of the identical repetitive units.
While Cosentino et al. disclose a blister type container (blister bottom film) is adhered to the bottom surface 17 of the scrim layer 20 (see Figure 1-2 and paragraph 0044), Cosentino et al. do not disclose the blister type container consists of a plastic based on the same polymers/copolymers as the blister sealing film.
Miller et al. disclose a blister package comprising a blister component (blister bottom film) and a lidding component (blister sealing film) (see page 9, claim 1). The blister component can be a barrier layer made of polyester (see paragraphs 0032, 0035).
In light of motivation for using a blister component made of polyester disclosed by Miller et al. as described above, it therefore would have been obvious to one of the ordinary skill in the art to use blister type container made of polyester in Cosentino et al. in order to provide barrier properties, and thereby arrive at the claimed invention. Accordingly, the blister type container (blister bottom film) comprises 100 wt% polyester, a plastic based on the same polymers/copolymer as the blister sealing film. Therefore, the polymer chains comprise 100 wt% of the identical repetitive units.
Claims 26 and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Nanjo (JP 2016193742A) in view of Shibata et al. (US 2011/0210034 A1). It is noted that the disclosures of Nanjo are based on a machine translation of the reference which is included in this action.
Regarding claims 26 and 27, Nanjo discloses a press-through packaging (blister sealing film) comprising a barrier layer made of polyester (first plastic) and a nonwoven layer made of polyester (second plastic) (see paragraphs 0001, 0061, 0067, 0068, 0071). That is, the first plastic and the second plastic are based on the same polymers. Given that the nonwoven layer and the barrier layer can be made of only polyester (first plastic and second plastic), the first plastic and the second plastic are based on 100 wt% of polyester. Given that both the first plastic and the second plastic are made of polyester, the polymer chains comprise 100 wt% of identical repetitive units. Given that Nanjo disclose the press-through packaging, the press-through packaging (blister sealing film) is not peelable or removable or not peelable or removable in one piece.
Nanjo do not disclose a thickness of the first plastic and/or nonwoven is selected to achieve a puncture resistance as presently claimed.
Shibata et al. disclose a polyester layer having a thickness in range of 5 to 200 microns in view of mechanical strength and toughness, the impact resistance and the puncture resistance (see paragraph 0151).
Therefore, as taught by Shibata et al., it would have been obvious to one of the ordinary skill in the art to use the thickness of barrier layer made of polyester in Nanjo such that the press-through packaging (blister sealing film) has puncture resistance including that presently claimed, and thereby arrive at the present invention.
Claim 30 is rejected under 35 U.S.C. 103 as being unpatentable over Verbouwe et al. (EP 3000592A1 ) in view of Shibata et al. (US 2011/0210034 A1).
Regarding claim 30, Verbouwe et al. disclose a gas tight-material comprising a gas barrier layer 30 made of polyester (first plastic), a protection layer 20 comprising thermoplastic material different from the gas barrier layer and a substrate 10, wherein a nonwoven fabric 60 (nonwoven layer) comprising polyester (second plastic) is arranged on the gas barrier layer 30 (see Abstract, Figure 1 and paragraphs 0043, 0044). Accordingly, Verbouwe et al. disclose the gas tight-material comprising the nonwoven fabric comprising polyester (second plastic)/ gas barrier layer comprising polyester (first plastic)/ protection layer/ substrate layer. That is, the first plastic and the second plastic are based on the same polymers. Given that the nonwoven fabric and the gas barrier layer can be made of only polyester (second plastic and first plastic), the first plastic and the second plastic are based on 100 wt% of polyester. Given that both the first plastic and the second plastic are made of polyester, the polymer chains comprise 100 wt% of identical repetitive units.
Verbouwe et al. do not disclose a thickness of the first plastic and/or nonwoven is selected to achieve a puncture resistance as presently claimed.
Shibata et al. disclose a polyester layer having a thickness in range of 5 to 200 microns in view of mechanical strength and toughness, the impact resistance and the puncture resistance (see paragraph 0151).
Therefore, as taught by Shibata et al., it would have been obvious to one of the ordinary skill in the art to use the thickness of gas barrier layer made of polyester in Verbouwe et al. such that the gas-tight material (blister sealing film) has puncture resistance including that presently claimed, and thereby arrive at the present invention.
Verbouwe et al. in view of Shibata et al. disclose the gas-tight material. Verbouwe et al. in view of Shibata et al. do not disclose the gas-tight material is a blister sealing film.
While there is no disclosure that the gas-tight material is a blister sealing film as presently claimed, applicants attention is drawn to MPEP 2111.02 which states that “if the body of a claim fully and intrinsically sets forth all the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction”. Further, MPEP 2111.02 states that statements in the preamble reciting the purpose or intended use of the claimed invention must be evaluated to determine whether the purpose or intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.
It is the examiner’s position that the preamble does not state any distinct definition of any of the claimed invention’s limitations and further that the purpose or intended use, i.e. blister sealing film, recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art gas-tight material and further that the prior art structure which is a gas-tight material identical to that set forth in the present claims is capable of performing the recited purpose or intended use.
Accordingly, Verbouwe et al. in view of Shibata et al. disclose the blister sealing film as set forth above. Further, Verbouwe et al. disclose the nonwoven fabric (nonwoven layer) has basis weight of 10 to 200 g/m2, the gas barrier layer has a basis weight of 4 to 60 g/m2, the protection layer has basis weight of 10 to 100 g/m2 and the substrate layer has basis weight of 10 to 200 g/m2 (see Abstract and paragraphs 0016, 0044). Therefore, the blister sealing film has a basis weight of 34 to 560 g/m2.
Response to Arguments
Applicant's arguments filed 06/18/2026 have been fully considered. In light of amendments, new grounds of rejections are set forth above. All arguments except as set forth below are moot in light of amendments.
Applicants argue that Miller discloses comprehensive lists of a variety of suitable polymers for the respective layers. However, Miller does not disclose a single embodiment in which it is explicitly described that the nonwoven layer and the barrier layer contain the same polymer, i.e., the same polymers/copolymers, to a substantial extent as required by claim 13. Therefore, this claim feature is not taught or suggested by Miller. To arrive at the claimed subject matter (current independent claim 13), the person skilled in the art would now have to select the same type of polymer for both layers. However, the person skilled in the art has no reason whatsoever to make such a selection based on the teachings of Miller. For example, Miller does not mention recyclability - which could be cited as a basis for such a selection - even once. Therefore, Miller cannot be said to teach or suggest the current independent claim 13, or the advantages thereof.
However, the fact remains that Miller discloses the nonwoven layer comprising polymer such as polypropylene and the barrier layer comprising polymer such as polypropylene. Therefore, it would have been obvious to one to the ordinary skills in the art to select any polymer for the nonwoven layer including polypropylene and any polymer for the barrier layer including polypropylene absent evidence to the contrary. Accordingly, the same type of polymer is selected for both layers. Further, while there are no embodiments or examples in Miller et al. that use nonwoven layer and gas barrier layer with the same polymer, “applicant must look to the whole reference for what it teaches. Applicant cannot merely rely on the examples and argue that the reference did not teach others.” In re Courtright, 377 F.2d 647, 153 USPQ 735,739 (CCPA 1967). Additionally, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Applicants argue that moreover, Miller actually teaches away from the instant claimed invention. With regard to Miller a material homogeneity and direct sealability of the blister sealing film according to the present invention differs compared to Miller, namely in the absolute necessity of foreign polymers in Miller. According to Miller paragraphs [0033] and [0058], the film described therein requires a separate heat-seal layer 8 consisting of an ethylene-methyl acrylate copolymer (EMA) or EVA. PP (propylene-based) and EMA (ethylene/acrylate-based) are chemically incompatible. Consequently, Miller's film as a whole is not materially homogeneous within the meaning of the present invention, since the EMA sealing layer interferes with single material recycling and acts as a contaminant. In contrast the present invention offers the surprising effect that, by providing the nonwoven and the first plastic layer to be made of the same material (both, for example, PE- or PP-based), sufficient seal strength can be achieved directly without the need for chemically incompatible heat-seal layers or sealants (present application paras. [0026], [0031]). This simplifies the structure, reduces weight, and, for the first time, enables true, single-material recycling of the entire blister package (together with the blister base, para. [0041]).
However, there is nothing in the present claims that requires that the blister sealing film is “single material recycling” or homogeneous. The present claims only require that the first plastic and second plastic are based at least 70 percent by weight on the same polymers/copolymers. In light of the open language “comprising”, the present claims are open to the presence of additional layers made of any material.
Additionally, “obviousness under 103 is not negated because the motivation to arrive at the claimed invention as disclosed by the prior art does not agree with appellant’s motivation”, In re Dillon, 16 USPQ2d 1897 (Fed. Cir. 1990), In re Tomlinson, 150 USPQ 623 (CCPA 1966).
Applicants argue that Fuji does not supply the aforesaid missing teaching to Miller to achieve or render obvious claim 13.
However, note that while Fuji do not disclose all the features of the present claimed invention, Fuji is used as teaching reference, and therefore, it is not necessary for this secondary reference to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981). Rather this reference teaches a certain concept, namely varying thickness of polypropylene film for puncture resistance, and in combination with the primary reference, discloses the presently claimed invention.
Applicants argue that Trouilhet does not supply the missing teachings to Miller to achieve or render obvious claim 13.
However, note that while Trouilhet do not disclose all the features of the present claimed invention, Trouilhet is used as teaching reference, and therefore, it is not necessary for this secondary reference to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981). Rather this reference teaches a certain concept, namely a specific heat seal layer, and in combination with the primary reference, discloses the presently claimed invention.
Applicants argue that here are differences between Consentino and the present claims and the rejection of claim 22 as obvious from Consentino in view of Miller, claim 22 depends on claim 13. The deficiencies of Consentino and Miller vis-à-vis claim 13 are discussed above. In the rejection the Examiner acknowledges Consentino fails to teach a blister-type container consisting of a plastic based on the polymer/copolymers as the blister sealing film (Office Action at page 15). Applicant agrees. However, the Examiner refers to Miller for this missing teaching. The deficiencies of Miller are discussed above. Accordingly, no combination of Consentino and Miller reasonably could bc said to achieve or render obvious claim 13 or claim 22, which depends thereon.
However, applicant does not specifically argue what these differences are or how Consentino does not meet the claims. Further, as set forth above, Miller et al. does not have any deficiencies. Miller et al. disclose a blister package comprising a blister component (blister bottom film) and a lidding component (blister sealing film), wherein the blister component can be a barrier layer made of polyester. (see paragraphs 0032, 0035). Therefore, it therefore would have been obvious to one of the ordinary skill in the art to use blister type container made of polyester in Cosentino et al. in order to provide barrier properties, and thereby arrive at the claimed invention. Accordingly, the blister type container (blister bottom film) comprises 100 wt% polyester, a plastic based on the same polymers/copolymer as the blister sealing film.
Further, the examiner is only using Miller et al. to teach using a blister container made from specific type of material, i.e. polyester, in Consentino which already discloses a blister package comprising a tear resistant seal structure (blister sealing film) and a blister type container (blister bottom film). The examiner is not using blister component (blister bottom film) of Miller in Consentino in order to obtain a blister package. The examiner is not using a multi-layer lidding component comprising heat seal layer (blister sealing film) of Miller in Consentino.
In light of amendments, claim objections except as set forth above are withdrawn.
In light of amendments, 112(b) paragraph rejections are withdrawn.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KRUPA SHUKLA whose telephone number is (571)272-5384. The examiner can normally be reached M-F 7:00-3:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Callie Shosho can be reached at 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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/KRUPA SHUKLA/Examiner, Art Unit 1787
