Creative judgment of claims of the hottest chemica

2022-09-30
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On May 20, 2004, the Patent Reexamination Board of the State Intellectual Property Office made the decision of reexamination request No. 4659. This decision relates to an invention patent application with application No. 0 and the name of the invention "heat shrinkable multilayer film", which was filed on April 22nd, 1999

the Patent Office of the State Intellectual Property Office rejected the application on November 15, 2002 on the ground that claim 1  27 was not in conformity with the provision of paragraph 3, Article 22 of the patent law. The rejection decision refers to the claims submitted on September 29, 2002, in which independent claims 1 Generally, there are heat shrinkable films and stretch films with high requirements for the tensile properties of materials, 15 as follows:

"1. A heat shrinkable multilayer film, comprising at least three layers, including an outer surface layer containing polyester resin (a), an intermediate layer containing polyamide resin (B) and an inner surface layer containing sealable resin (c) ; The multilayer film has a longitudinal and transverse thermal shrinkage stress of up to 3Mpa at 50 ℃ and a hot water shrinkage of at least 20% at 90 ℃

15. a method for producing heat shrinkable multilayer films, including the following steps:... Heat treat the tubular film from the outer surface layer of the tubular film (material a has the characteristics of high transmittance, high haze, good weather resistance, etc.) with steam or warm water at 60 ℃  98 ℃; and cool the heat treated tubular film to provide a biaxial tensile film. The thermal shrinkage stress of the biaxial tensile film at 50 ℃ is at most 3Mpa in the longitudinal and transverse directions, And the shrinkage rate of hot water at 90 ℃ is at least 20%. "

the main reason for rejection is that reference document 1 (ep476836a, published on March 25th, 1992) discloses a multilayer film, including a polyester outer surface layer, a polyamide intermediate layer and an inner layer of sealing resin. Compared with the technical content disclosed in the reference document 1, the technical solution claimed in claim 1 differs only in the description of some physical properties (such as thermal shrinkage stress and hot water shrinkage), but does not reflect the technical solution to realize these properties. Because the structures of the two products are the same, they can be considered to have the same or similar performance. Only taking the difference of physical performance as the distinguishing feature does not have prominent substantive characteristics and significant progress

the petitioner is not satisfied with the rejection decision and requests a reexamination. The Patent Reexamination Board accepted the reexamination request and sent the case to the original substantive examination department for pre examination

in the pre examination opinion, the original examination department believed that this application does not belong to the situation that the claims of chemical products can be characterized by parameters specified in the patent examination guidelines. Because its structure is clear and the same as the existing technology, it adheres to the original rejection decision

after examination, the collegial panel of the Patent Reexamination Board made a reexamination request examination decision and revoked the original rejection decision. The collegial panel held that:

claim 1 of the application requires to protect a heat shrinkable multilayer film, which comprises at least three layers, including an outer surface layer containing polyester resin (a), an intermediate layer containing polyamide resin (b) and an inner surface layer containing sealable resin (c); The multilayer film has a longitudinal and transverse thermal shrinkage stress of up to 3Mpa at 50 ℃ and a hot water shrinkage of at least 20% at 90 ℃

reference document 1 discloses a biaxially stretched heat shrinkable multilayer film, which includes at least three layers, including polyester outer surface layer, polyamide intermediate layer and sealing resin inner layer. The hot water shrinkage of the multilayer film in the processing direction and transverse direction at 98 ℃ is preferably at least 20% (see column 4 of the description, abstract of the description and claims)

comparing the technical solution of claim 1 of the application with the reference document 1, the difference is:

(1) the hot water shrinkage rate of the heat shrinkable film in claim 1 is at least 20% at 90 ℃, while the hot water shrinkage rate of the heat shrinkable film in the reference document 1 is at least 20% at 98 ℃

(2) the heat shrinkable multilayer film of claim 1 has a longitudinal and transverse heat shrinkable stress of up to 3Mpa at 50 ℃, while the reference document 1 does not disclose this technical feature

from the technical solution of claim 1 of the application itself, since the reference document 1 does not disclose the above distinctive technical features, it does not teach that the heat shrinkable multilayer film has the physical property that the longitudinal and transverse heat shrinkable stress is at most 3Mpa at 50 ℃, and there is no evidence that the above distinctive feature 2 belongs to the common general knowledge of those skilled in the art. Therefore, the reference document 1 does not give the Enlightenment of the technical solution of the invention, and the technical solution of claim 1 is not obvious

although claim 1 of this application requires that the protective heat shrinkable film product is the same as the prior art in the macro layered structure, it cannot be recognized that it is also the same as the prior art in the microstructure

in addition, from the technical problem to be solved by the invention and the expected effect, the technical problem to be solved by the reference document 1 is to provide a biaxially stretched heat shrinkable multilayer film, which includes at least three layers, namely, the polyester outer surface layer, the polyamide intermediate layer and the sealing resin inner layer. The heat shrinkable multilayer film material has good tensile properties, heat sealing properties and transparency (see column 1  2 of the specification). It can be seen from the description of the application that the technical problem to be solved in claim 1 of the application is: on the basis of the technical solution of the reference document 1, a heat shrinkable multilayer film with a layered structure similar to that of the reference document 1 is provided, but its longitudinal and transverse heat shrinkable stress is at most 3Mpa at 50 ℃, Thus, it overcomes the defects such as packaging deformation and printing deviation that are easy to occur in the heat shrinkable multilayer film described in the reference document 1, which is the closest existing technology to the application. Therefore, it has excellent adaptability to various automatic packaging processes and good printability. It can be seen that the technical solution of claim 1 of the application is proposed to overcome the technical defects of the reference document 1 as the background technology, and has produced beneficial technical effects

to sum up, based on the content disclosed in the reference document 1, the technical solution of claim 1 is not obvious and produces beneficial technical effects, thus complying with the inventiveness provision of paragraph 3, Article 22 of the Chinese patent law

independent claim 15 is a method for producing heat shrinkable multilayer films. The reference document 1 does not disclose the method feature of combining high ratio biaxial stretching (2.5  4.0 times) and subsequent low temperature (60 ℃  98 ℃) heat treatment. At the same time, the introduction of the method feature enables the technical scheme of claim 15 to prepare a product with high thermal shrinkage and low thermal shrinkage stress (at most 3Mpa in both longitudinal and transverse directions at 50 ℃), Claim 15 possesses prominent substantive features, remarkable progress and inventiveness

case evaluation

claim 1 of this case is a claim of chemical products. When you use it, please note that some details contain physical parameters, and the difference between it and the existing technology mainly lies in this physical parameter. How to treat this physical parameter and how to judge creativity

the claims of chemical products do not exclude the use of physical and chemical parameters for qualification. The principle is that chemical products with unknown structure that can not be clearly characterized only by chemical name or structural formula or composition are allowed to be characterized by physical and chemical parameters. This is often the case for chemical products in the field of polymer materials. In the review process, it is necessary to consider whether the parameters used for characterization are common and clear in the art, and whether the products defined with this parameter can be distinguished from the existing technology

claim 1 of this application requires that type B fixture 1 is generally applicable to pipe diameter φ Although the chemical composition of the heat shrinkable multilayer film protected by plastic pipes above 630 and the heat shrinkable multilayer film of the prior art are the same, they both contain at least three layers, and the three layers include an outer surface layer containing polyester resin (a), an intermediate layer containing polyamide resin (b) and an inner surface layer containing sealable resin (c). However, the heat shrinkable multilayer film claimed in claim 1 of the application overcomes the defects such as packaging deformation, printing deviation, etc. that are easy to occur in the heat shrinkable multilayer film in the prior art. It should be said that its structure is different from the heat shrinkable multilayer film in the prior art. If its structure is only limited by the number of layers and the chemical composition of each layer, its product cannot be clearly characterized, and it is also difficult to distinguish it from the existing technology. In this case, it is more necessary to introduce physical and chemical parameters into the claims to further clearly characterize the structure of the heat shrinkable multilayer film. As claim 1 introduces the physical parameter "the longitudinal and transverse thermal shrinkage stress of the multilayer film at 50 ℃ is at most 3Mpa", this parameter is not only well known to those skilled in the art, but also those skilled in the art know that this parameter is related to the intermolecular force, molecular spacing and other microstructure factors of chemical products (although the specific relationship is not clear) Therefore, the structure of the heat shrinkable multilayer film claimed in claim 1 is clearer than that before the introduction of this parameter. As for whether the heat shrinkable multilayer film of claim 1 can be distinguished from the prior art after the introduction of this parameter, it also needs to be treated differently for different cases. In this case, although reference document 1 discloses the hot water shrinkage at 98 ℃, it does not disclose the longitudinal and transverse heat shrinkage stress at 50 ℃. It should be said that the limit of longitudinal and transverse thermal shrinkage stress at 50 ℃ puts forward higher requirements for the performance of the product, which is different from the product disclosed in reference document 1 in terms of performance, and this difference is difficult to be characterized by chemical name or structural formula or composition. Therefore, the collegiate panel judged the inventiveness of the claim based on the restrictive feature. (end)

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