Scholle IPN Corporation

Patent Trials and Appeals Board

Feb 1, 2022

2021001540 (P.T.A.B. Feb. 1, 2022)

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. 15/635,961 06/28/2017 David Bellmore SCH171586 6114 56973 7590 02/01/2022 THE WATSON IP GROUP, PLC 3133 HIGHLAND DRIVE SUITE 200 HUDSONVILLE, MI 49426 EXAMINER PATTERSON, MARC A ART UNIT PAPER NUMBER 1782 NOTIFICATION DATE DELIVERY MODE 02/01/2022 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): JJOVANOVIC@WATSON-IP.COM docketing@watson-ip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID BELLMORE and JOEL MONROE Appeal 2021-001540 Application 15/635,961 Technology Center 1700 Before ADRIENE LEPIANE HANLON, JEFFREY B. ROBERTSON, and JANE E. INGLESE, Administrative Patent Judges. ROBERTSON, Administrative Patent Judge. DECISION ON APPEAL1 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the Examiner’s decision to reject claims 1-19.2 Appeal Br. 4-14. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 This Decision includes citations to the following documents: Specification filed June 28, 2017 (“Spec.”); Final Office Action entered September 9, 2019 (“Final Act.”); Appeal Brief filed July 14, 2020 (“Appeal Br.”); Examiner’s Answer entered October 27, 2020 (“Ans.”); and Reply Brief filed December 28, 2020 (“Reply Br.”). 2 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Scholle IPN Corporation as the real party in interest. Appeal Br. 2. Appeal 2021-001540 Application 15/635,961 2 CLAIMED SUBJECT MATTER Appellant states the invention relates to flexible packages, and in particular a film for use in forming flexible packages. Spec. ¶¶ 2, 8. Claim 1 is reproduced below, and is illustrative of the claimed subject matter (Appeal Br. 15, Claims App. (emphasis added to highlight key disputed language)): 1. A film for use in the formation of a flexible package comprising: a first layer and a second layer, the first layer having an outer surface and an inner surface, and the second layer having an outer surface and an inner surface, the inner surface of the first layer laminated to the outer surf ace of the second layer to form a two layer laminate, the first layer further comprising a base comprising polyethylene terephthalate, with at least one of the outer surface and the inner surface having a barrier layer disposed thereon; and the second layer comprising a coextrusion having a core layer comprising an ethylene vinyl alcohol with an outer upper layer comprising linear low density polyethylene and an outer lower layer comprising linear low density polyethylene. Claims 11 and 18 are also independent claims and similarly recite a second layer with an outer upper layer comprising linear low density polyethylene. Appeal Br. 16-18, Claims App. Appeal 2021-001540 Application 15/635,961 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Motoishi et al. (“Motoishi”) US 4,608,286 Aug. 26, 1986 Wuest et al. (“Wuest”) US 7,029,734 B1 Apr. 18, 2006 Hodson et al. (“Hodson”) US 2002/0187290 A1 Dec. 12, 2002 Rassouli et al. (“Rassouli”) US 2004/0067375 A1 Apr. 8, 2004 Franca et al. (“Franca”) US 2017/0088318 A1 Mar. 30, 2017 REJECTIONS3 1. Claim 1 is rejected under 35 U.S.C. § 1034 as being unpatentable over Wuest. Final Act. 4. 2. Claims 2-4 are rejected under 35 U.S.C. § 103 as being unpatentable over Wuest and Hodson. Final Act. 5. 3. Claims 5-10 are rejected under 35 U.S.C. § 103 as being unpatentable over Wuest, Hodson, and Motoishi. Final Act. 5- 6. 4. Claims 11, 12, and 14-17 are rejected under 35 U.S.C. § 103 as being unpatentable over Wuest, Hodson, and Motoishi. Final Act. 7. 3 The Examiner withdrew the rejection of claim 1 over Ichikawa et al. (US 2012/0181276 A1; published July 19, 2012) in the Answer. Ans. 8; see Final Act. 3-4. 4 The Examiner refers to the pre-AIA version of the statute, but because the Application was filed on June 28, 2017, we refer to the AIA-version of the statute. Appeal 2021-001540 Application 15/635,961 4 5. Claim 13 is rejected under 35 U.S.C. § 103 as being unpatentable over Wuest, Hodson, Motoishi, and Rassouli. Final Act. 7. 6. Claims 18 and 19 are rejected under 35 U.S.C. § 103 as being unpatentable over Wuest and Franca. Final Act. 8. OPINION We confine our discussion to claim 1, which is representative of the arguments made by Appellant with respect to the rejections on appeal. Rejection 1 The Examiner’s Rejection In rejecting claim 1 as unpatentable over Wuest, the Examiner found, inter alia, that Wuest discloses a film with a first inner layer (corresponding to the recited second layer) that includes low density polyethylene (LDPE) or linear low density polyethylene (LLDPE), and that Wuest discloses an example of a coextruded film that is made up of layers including an outer layer of LDPE, tie layer, a core layer of ethylene vinyl alcohol (EVOH), tie layer, and a lower layer of LLDPE. Final Act. 4, citing Wuest, col. 4, ll. 15- 32, col. 7, ll. 4-10. The Examiner found Wuest fails to disclose an outer upper layer including LLDPE. Final Act. 4. The Examiner determined it would have been obvious to have provided for an outer upper layer comprising LLDPE, because Wuest discloses either LDPE or LLDPE may be used in the first inner layer. Id. Appeal 2021-001540 Application 15/635,961 5 Appellant’s Arguments Appellant argues the Examiner has not provided sufficient explanation or reasoning to reject the claims. Appeal Br. 4-7. Appellant argues that Wuest does not disclose a coextrusion having a core layer including ethylene vinyl alcohol with an outer upper layer including LLDPE as recited in claim 1. Id. at 11. Appellant contends Wuest disclose LLDPE only for inner sealant layer 116. Id. at 11-12. Discussion We are persuaded by Appellant’s arguments that the Examiner reversibly erred in rejecting claim 1 as obvious over Wuest. Claim 1 recites a second layer having the arrangement LLDPE/EVOH/LLDPE.5 Wuest discloses a packaging film including “an inner sealant layer of LLDPE film,” where the LLDPE inner sealant layer “comprises a surface layer of a five-layer coextruded film having the following structure: LDPE/tie/EVOH/tie/LLDPE.” Wuest, col. 7, ll. 4-10 (emphasis added); see also col. 5, l. 66-col. 6, l. 4. Thus, Wuest considers only the LLDPE layer of the exemplified five-layer coextruded film to be the inner sealant layer. Although Wuest discloses both LLDPE and LDPE are known alternatives for the olefin polymers that make up the inner sealant layer (Wuest, col. 4, ll. 15-27), Wuest does not disclose the LDPE layer of the exemplified five-layer coextruded film as an inner sealant layer. As best 5 Claim 1 does not recite the presence of tie layers in the second layer, but by the presence of the open-ended transitional phrase “comprising,” claim 1 does not prohibit the presence of tie layers, as further evidenced by the recitations of tie layers in the second layer in claim 2. Appeal 2021-001540 Application 15/635,961 6 understood, because Wuest discloses the five-layer coextruded film is laminated to a metalized biaxially oriented polyethylene terephthalate layer (mOPET) (corresponding to an oxygen barrier layer 114) and the LLDPE layer (corresponding to inner sealant layer 116) “comprises a surface layer of a five-layer coextruded film,” the LDPE layer corresponds to “one or more intermediate layers between the oxygen barrier layer 114 and inner sealant layer 116” disclosed in Wuest rather than inner sealant layer 116. Wuest, col. 4, l. 58-col. 5, l. 8, col. 5, ll. 51-53; col. 7, ll. 4-17. In this regard, Wuest does not disclose alternatives to LDPE in the exemplified five-layer coextruded film. See Wuest, col. 7, ll. 59-64 (describing “[s]uitable LDPE’s for use with the present invention”). In addition, although Wuest discloses LDPE may be used as outer layer 112, Wuest does not disclose LLDPE as an alternative to LDPE in this layer. Id. at col. 5, ll. 9-44. As a result, the Examiner’s rationale that it would have been obvious to have used LLDPE instead of LDPE is not sufficiently supported. Therefore, the Examiner’s reasoning is not based on sufficient rational underpinnings. Accordingly, we reverse the Examiner’s rejection of claim 1. Rejections 2-6 Rejections 2-6 (addressing claims 2-19) all rely on Wuest as the primary reference, and suffer from the same deficiency as discussed above for claim 1 in Rejection 1. In this regard, as discussed above, independent claims 11 and 18 also recite a second layer having an outer upper layer Appeal 2021-001540 Application 15/635,961 7 comprising linear low density polyethylene. The additional art cited in Rejections 2-6 do not cure this deficiency. Accordingly, we reverse Rejections 2-6 for similar reasons as discussed above for Rejection 1. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1 103 Wuest 1 2-4 103 Wuest, Hodson 2-4 5-10 103 Wuest, Hodson, Motoishi 5-10 11, 12, 14-17 103 Wuest, Hodson, Motoishi 11, 12, 14-17 13 103 Wuest, Hodson, Motoishi, Rassouli 13 18, 19 103 Wuest, Franca 18, 19 Overall Outcome 1-19 REVERSED