Ex Parte Breed et al

Patent Trials and Appeals Board

Mar 22, 2019

14278543 - (D) (P.T.A.B. Mar. 22, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/278,543 05/15/2014
14268 7590 03/26/2019
The Dow Chemical Company/Cantor Colburn LLP
20 Church Street
22nd Floor
Hartford, CT 06103-3207
Dana Breed
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
74720-US-NP
(DC130005US)
2814
EXAMINER
SHAH,SAMIR
ART UNIT PAPER NUMBER
1787
NOTIFICATION DATE DELIVERY MODE
03/26/2019 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):
ffuimpc@dow.com
usptopatentmail@CantorColbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANA BREED, JOHN W. GARNETT IV,
MARK HEARD, SCOTT J. COLLICK,
GREGORY M. BUNKER, and MARK A. KERSTEN
Appeal2018-004491
Application 14/278,543
Technology Center 1700
Before TERRY J. OWENS, CATHERINE Q. TIMM, and
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
Appeal2018-004491
Application 14/278,543
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
final decision rejecting claims 1--4, 7-10, and 14--19. 3 We have jurisdiction
under 35 U.S.C. § 6(b). We REVERSE.
The subject matter on appeal relates to a barrier film useful for
minimizing the transmission of oxygen and water vapor through the film to
products that are contained in packaging made from such film. Spec. ,r 2.
Independent claims 1 and 14, reproduced below from the Claims Appendix
of the Appeal Brief with emphasis to highlight the disputed limitations, are
illustrative of the claims on appeal.
1. A recyclable barrier film comprising:
a first layer comprising high density polyethylene,
a barrier layer comprising a polymer other than
polyethylene; where the polymer is operative to reduce the
oxygen transmission rate through the barrier film relative to the
oxygen transmission rate through the first layer; where the
barrier layer is present in the barrier film in an amount of less
than 5 weight percent, based on the total weight of the barrier
film; and
1 In this Decision, we refer to the Specification filed May 15, 2014
("Spec."), the Final Office Action dated June 7, 2017 ("Final Act."), the
Appeal Brief filed October 4, 2017 ("Appeal Br."), the Examiner's Answer
dated January 25, 2018 ("Ans."), and the Reply Brief filed March 26, 2018
("Reply Br.").
2 Appellants are the Applicants, Dow Global Technologies LLC and Rohm
and Haas Chemicals LLC, which, according to the Appeal Brief, are the real
parties in interest. Appeal Br. 2.
3 Claims 11-13 are withdrawn from consideration by the Examiner as
directed to a non-elected invention. Non-Final Office Action dated
July 17, 2015, 2.
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Appeal2018-004491
Application 14/278,543
a sealant layer that contacts the barrier layer;
where the first layer and the sealant layer do not contain
any reactive species that react with a food product; and where
the first layer and the sealant layer are opposing outer layers of
the recyclable barrier film.
Appeal Br. 14 (Claims App.) (emphasis added).
14. A recyclable barrier film comprising:
a first layer comprising high density polyethylene,
a barrier layer comprising a polymer other than
polyethylene; where the polymer is operative to reduce the
oxygen transmission rate through the barrier film relative to the
oxygen transmission rate through the first layer; where the
barrier layer is present in the barrier film in an amount of less
than 5 weight percent, based on the total weight of the barrier
film; and
a second layer that contacts the barrier layer; where the
second layer contacts the barrier layer at a surface that is
opposed to a surface that contacts the first layer; where the first
layer and the second layer are free of reactive species that
contain nitrogen.
Id. at 15 (Claims App.) (emphasis added).
DISCUSSION
The Examiner maintains the rejection of claims 1-3, 7, 9, 10, 14--16,
and 18 under 35 U.S.C. § 103 over Siegel et al. (US 2006/0246242 Al,
published November 2, 2006) ("Siegel"). Final Act. 2. The Examiner also
maintains the rejection of claims 4 and 17 under 35 U.S.C. 103 over Siegel
in view of Illsley et al. (US 2010/0189944 Al, published July 29, 2010)
("Illsley"), and the rejection of claims 8 and 19 under 35 U.S.C. § 103 over
Siegel in view of Chang et al. (US 2013/0310782 Al, published
November 21, 2013) ("Chang"). Id. at 4.
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Appeal2018-004491
Application 14/278,543
Appellants' arguments focus on independent claims 1 and 14 (Appeal
Br. 5-10), and thus, we will do the same in our discussion below.
Claim 1
The dispositive issue before us on appeal regarding claim 1 is whether
Appellants have identified reversible error in the Examiner's finding that
Siegel teaches a barrier film comprising a first layer, a barrier layer, and a
sealant layer, where the first layer and sealant layers are opposing outer
layers of the recyclable barrier film, and do not contain "any reactive species
that react with a food product." We answer this question in the affirmative
and, therefore, do not sustain the Examiner's obviousness rejection of
claims 1--4 and 7-10.
The Examiner finds that Siegel discloses a food packaging film that
includes a first contact layer comprising HDPE (a first layer) (Siegel ,r 138),
a second sealant layer (id. at ,r 13 7), and a barrier layer comprising
polyvinylidene chloride (id. ,r,r 139, 141) positioned between the first and
second layers. Final Act. 2. The Examiner finds that because Siegel teaches
that additives in the first HDPE layer are optional (Siegel ,r 163), and teaches
that the sealant layer "may" comprise a myoglobin blooming agent (id. ,r
137), it is clear that Siegel's first HDPE layer and sealant layer do not
contain "any reactive species that react with a food product." Final Act. 3.
Appellants argue that Siegel teaches that the food contact layer, which
is necessarily an outer layer of its food packaging film, must include a
myoglobin blooming agent, which is a food-reactive species. Appeal Br. 8.
Appellants' argument is persuasive of reversible error. Siegel teaches
"[i]t is essential that the food packaging film of the present invention has a
food contact layer." Siegel ,r 135 (emphasis added). According to Siegel,
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Appeal2018-004491
Application 14/278,543
the food contact layer is "the portion of a packaging material that contacts a
package meat product." Siegel teaches that the "food contact layer of the
packaging film comprises a myoglobin blooming agent." Id. ,r 122. Siegel
further teaches that a myoglobin blooming agent reacts with a meat product
after contact to promote or maintain a desirable color. Id. Thus, at least one
of Siegel's outermost layers contains a myoglobin blooming agent-"a
reactive species that reacts with a food product." Accordingly, we do not
sustain the§ 103 rejection of claims 1--4 and 7-10.
Claim 14
Claim 14 recites a recyclable barrier film that comprises the same
layered arrangement as claim 1-a first layer, a barrier layer, and a second
layer that contacts the barrier layer at a surface that is opposed to a surface
that contacts the first layer. Appeal Br. 15 (Claims App.). Claim 14 also
recites "the first layer and the second layer are free of reactive species that
contain nitrogen." Id.
The dispositive issue before us on appeal regarding claim 14 is
whether Appellants have identified reversible error in the Examiner's
finding that Siegel teaches a barrier film comprising a first layer, a barrier
layer, and a second layer that contacts the barrier layer at a surface that is
opposed to a surface that contacts the first layer, "where the first layer and
the second layer are free of reactive species that contain nitrogen." We
answer this question in the affirmative and, therefore, do not sustain the
Examiner's obviousness rejection of claims 14--19.
As with claim 1, Siegel teaches claim 14' s layered arrangement, and
further teaches that its first contact surface must include a myoglobin
blooming agent. Siegel ,r,r 122, 135, 137, 139. On this record, the Examiner
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Application 14/278,543
has not pointed to sufficient factual evidence in Siegel that its myoglobin
blooming agent does not contain nitrogen. See Final Act. 2-3; Ans. 3---6.
Accordingly, we do not sustain the§ 103 rejection of claims 14--19.
DECISION
The rejection of claims 1-3, 7, 9, 10, 14--16, and 18 under 35 U.S.C.
§ 103 over Siegel is reversed.
The rejection of claims 4 and 17 under 35 U.S.C. 103 over Siegel in
view of Illsley is reversed.
The rejection of claims 8 and 19 under 35 U.S.C. § 103 over Siegel in
view of Chang is reversed.
REVERSED
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