Ex Parte Toft et al

Patent Trial and Appeal Board

May 25, 2017

13382233 (P.T.A.B. May. 25, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/382,233 01/04/2012 Nils Toft 1027651-000651 6965
21839 7590 05/30/2017
BUCHANAN, INGERSOLL & ROONEY PC
POST OFFICE BOX 1404
ALEXANDRIA, VA 22313-1404
EXAMINER
SANDERSON, LEE E
ART UNIT PAPER NUMBER
1782
NOTIFICATION DATE DELIVERY MODE
05/30/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ADIPDOCl@BIPC.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE
THE PATENT TRIAL AND APPEAL BOARD
Ex parte NILS TOFT,1
Mats Bentmar, and Mikael Berlin
Appeal 2016-000600
Application 13/382,233
Technology Center 1700
Before MARK NAGUMO, KAREN M. HASTINGS, and
JENNIFER R. GUPTA, Administrative Patent Judges.
NAGUMO, Administrative Patent Judge.
DECISION ON APPEAL
Nils Toft, Mats Bentmar, and Mikael Berlin (“Toff”) timely appeal
under 35 U.S.C. § 134(a) from the Final Rejection2 of claims 1—3, 5—13,
and 17—20.3 We have jurisdiction. 35 U.S.C. § 6. We affirm.
1 The real party in interest is identified as Tetra Laval Holdings & Finance
S.A. (Appeal Brief, filed 16 March 2015 (“Br”), 2).
2 Office Action of 17 July 2014 (“Final Rejection”; cited as “FR”).
3 Remaining copending claims 14—16 have been withdrawn from
consideration by the Examiner (FR 1, § 5a), and are not before us.
Appeal 2016-000600
Application 13/382,233
OPINION
A. Introduction4,5
The subject matter on appeal relates to a non-foil, high barrier, paper-
based packaging laminate said to be especially suitable for juice.
The ’233 Specification explains that “[a] layer of an aluminum foil in the
packaging laminate provides gas barrier properties quite superior to most
polymeric gas barrier materials.” (Spec. 2,11. 27—28.) Achieving polymeric
gas barrier materials that work as well, and that provide long term storage (at
least six months under ambient conditions), and that are cost-efficient and
mechanically robust has been elusive. {Id. at 5,11. 5—14.) Such coatings
from aqueous dispersions of polymers—so-called liquid film coated
(“LFC”) layers are attractive, but are said to be sensitive to moisture.
{Id. at 4,11. 1—19.) The Specification reveals that laminating “[tjhin
aluminum metallised layers, i.e. [,] vapour deposited layers of aluminum
metal” {id. at 8,11. 1—2) which are known to provide superior water vapor
barriers, to LCF polyvinylalcohol (“PVOH”) oxygen barrier layers, yields
oxygen barrier properties “much higher than expected and calculated[] from
the values of oxygen transmission measured on each of the layers
separately.” {Id. at 8,11. 18—20.) An alternative water vapour barrier layer
4 Application 13/382,233, High barrier packaging laminate, method for
manufacturing of the packaging laminate and packaging container,
filed 4 January 2012, as the national stage under 35 U.S.C. § 371 of
PCT/EP2010/004065, filed 6 July 2010, claiming the benefit of an
application filed in Sweden on 8 July 2009. We refer to the
“’233 Specification,” which we cite as “Spec.”
5 A hearing scheduled for 13 June 2017 was waived on 19 May 2017.
2
Appeal 2016-000600
Application 13/382,233
that may be laminated to the LFC layer is comprised of a “polyolefin-based
matrix polymer with inorganic filler particles distributed within the matrix
polymer.” {Id. at 9,11. 10-12.)
An embodiment of the invention is illustrated in Figure lc, below.
/—p¥TbFliilcT
c)
[insida] K,
Fig. fc
~ 12 2d core paper L
14fe 02 barrier layer
13 M BL (LDPE)
11 1st paper L
14a 02 BL
6 M BL iLDFE:
(Fig. lc shows a laminate of the invention}
From the outside of the container, second thermoplastic substrate 186
is bonded via second core layer of paper (paperboard) 12, which is coated on
the inner side with oxygen barrier layer 14b. That assembly is laminated via
intermediate bonding layer 13 (low density polyethylene, LDPE) to first
paper layer 11, which is coated on the inner side with gas barrier coating
layer 14a. That assembly in turn is laminated via second intermediate
polymer bonding layer 16 to water vapor barrier layer 15, which is coated on
inner thermoplastic layer 17, which in turn is ultimately in contact with juice
in the finished container. (Spec. 33,11. 9-33 (comparable layers in Fig. la);
and 34,11. 22-24 (Fig. lc).)
6 Throughout this Opinion, for clarity, labels to elements are presented in
bold font, regardless of their presentation in the original document.
3
Appeal 2016-000600
Application 13/382,233
Sole independent claim 1 reads:
A non-foil packaging laminate [10c] for packaging of liquid
food or beverage, the packaging laminate comprising
a first layer of paper, which first paper layer [11] is
situated towards an inner side of the packaging laminate
and a second layer of paper [16] situated towards an outer
side of the packaging laminate,
said first and second paper layers being laminated to each
other by a first intermediate bonding layer [13] in a
sandwich structure,
the packaging laminate further comprising
a gas barrier coating layer [14a],
coated onto an inner side of the first paper layer [11] by
liquid film coating of a liquid gas barrier composition
onto said first paper layer and subsequent drying,
the liquid composition containing a polymer binder
dispersed or dissolved in an aqueous or solvent medium, and
a further barrier layer towards water vapour [15]
laminated and bonded to the barrier-coated inside [14]
of the first paper layer by a second intermediate
polymer bonding layer [16],
the packaging laminate further comprising
an innermost layer [17] of liquid tight, heat sealable
thermoplastic polymer material applied on an inner side of
the further barrier layer [15], and
an outermost layer [18] of liquid tight, heat sealable
thermoplastic polymer material on an opposite side of the
packaging laminate,
applied on the outer side of the second, core paper layer [12],
wherein it has an additional gas barrier coating layer [14b]
coated onto an inner side of the second paper layer [12].
(Claims App., Br. 10; indentation and paragraphing added in compliance
with 37 C.F.R. §1.75(i) (2014); emphasis, and bracketed labels to Fig. lc
added.)
4
Appeal 2016-000600
Application 13/382,233
Claim 2 depends from claim 1, and requires that “the second paper
layer is a core paperboard layer providing a final package with fold-forming
dimensional stability by virtue of its stiffness properties.” (Claims App.,
Br. 10.)
The Examiner maintains the following grounds of rejection7,8:
A. Claims 1—3, 5, 7—10, 12, 13, and 17—20 stand rejected under
35 U.S.C. § 103(a) in view of the combined teachings of
Bentmar,9 Frisk ’612,10 and Fay.* 11
Al. Claims 6 stands rejected under 35 U.S.C. § 103(a) in view of
the combined teachings of Bentmar, Frisk, and Berlin.12
A2. Claims 1—3, 5, 7, 11, 12, 17, 18, and 20 stand rejected under
35 U.S.C. § 103(a) in view of the combined teachings of
Bentmar and Frisk ’54113.
7 Examiner’s Answer mailed 31 July 2015 (“Ans.”).
8 Because this application was filed before the 16 March 2013 effective date
of the America Invents Act, we refer to the pre-AIA version of the statute.
9 Mats Bentmar and Mikael Berlin, Gas barrier packaging laminate method
for production thereof and packaging containers, U.S. Patent Application
Publication 2002/0061413 Al (2002) (issued as U.S. Patent No. 6,569,539
B2 (27 May 2003)). Bentmar and Berlin are co-inventors for the appealed
application.
10 Peter Frisk et al., Laminated packaging material for paper container, U.S.
Patent No. 6,974,612 B1 (2005).
11 Martin J. Fay and Thomas D. Allston, Characterization of vapor
deposited aluminum coatings on oriented polypropylene films, 4 Tappi
Journal 125-129 (1994).
12 Mikael Berlin et al., Method ofproducing a laminated packaging
material, U.S. Patent No. 7,033,455 B1 (2006). (Berlin and Bentmar are
listed as coinventors.)
13 Peter Frisk, Polyolefin material integrated with nanophase particles, U.S.
Patent No. 6,117,541 (2000).
5
Appeal 2016-000600
Application 13/382,233
B. Discussion
The Board’s findings of fact throughout this Opinion are supported by
a preponderance of the evidence of record.
Initially, we find that Toft focuses its arguments for patentability on
claim 1 (Br. 2—8), with a few remarks directed to claim 2 {id. at 8). Thus, all
claims, but for claim 2, stand or fall with claim 1.
37 C.F.R. § 41.37(c)(l)(iv) (2014).
The Examiner finds that Bentmar describes or suggests, particularly
with reference to Figure 1C, reproduced with annotation below,
(Bentmar Fig. 1C: paper-based laminate 10c with gas barrier layers 12,13}
the limitations of claim 1, but for “the laminate comprising a water vapor
barrier layer adhered to the inner side of the first paper layer by an
intermediate polymer bonding layer.” (FR 3, | 6.) The Examiner finds that
Frisk ’612 {id. at 3—4,17, vapor-deposited aluminum on a barrier resin) and
Frisk ’541 {id. at 8,127, nanometer-clay filled polyolefin) (hereinafter,
collectively, “Frisk”) each discloses a further water vapor barrier layer that
is adhered via a bonding layer to a paper core layer. The Examiner
concludes that it would have been obvious to incorporate such a further
6
Appeal 2016-000600
Application 13/382,233
barrier layer to improve the barrier properties of the laminate described by
Bentmar. {Id. at 4, || 8—9, and at 8,128—29 and at 30 130.)
Toft urges that the Examiner erred in relying on Bentmar because,
although Bentmar teaches that a thin layer of starch (layers 12 and 13) is
applied to each side of substrate paper layer 11 (Br. 5,11. 1—2), “none of the
embodiments include a gas barrier starch layer coated on both a side of
mandatory paper layer 11 and a side of optional paper layer 16” {id. at 5,
11. 20-22; emphasis added).
This argument is not persuasive of harmful error. A reference need
not provide a working example or specific description of a particular
limitation. E.g., In re Bode, 550 F.2d 656, 661 (CCPA 1977) (“a reference
must be evaluated for all it teaches and is not limited to its specific
embodiments.”) Moreover, in this case, two of the present inventors are
listed as inventors on Bentmar. Under these circumstances, we may assume,
reasonably, full knowledge and familiarity of Bentmar to the present
inventors.
Here, the Examiner finds that “Bentmar teaches that the
paper/paperboard core layer (/.