DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Status
Applicant’s response filed on 10/01/2025 has been considered by the Examiner. Currently, claims 1-3 and 5-24 are pending, claim 4 is canceled, claims 15-23 are drawn to a non-elected embodiment, and claims 1 and 24 have been amended. A complete action on the merits of claims 1-3, 5-14, and 24 follows below.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Claims 1-3, 5, and 24 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Francis (4,756,311) in view of Trinh (2004/0244412), and in further view of Curie (Patent No. 4,687,688).
Regarding claim 1, Francis teaches a thermotherapeutic pad ([Abstract] Microwavable instant and/or cold pack gel package including an envelope fabricated from a laminate, for example, of films of synthetic resins and an aqueous gel in said envelope) comprising:
a pouch formed from at least one laminate sheet (Fig. 1) comprising: the at least one laminate sheet including a nylon layer and an inner polyethylene layer, wherein the nylon layer is disposed outside the inner layer, and wherein the inner polyethylene layer is to contain and surround the content of the pouch and wherein the intermediate nylon layer is isolated from the content of the pouch by the inner polyethylene layer (inner film 18 of polyethylene layer and an outer layer or film 20 either of nylon or nylon sclair ; Col. 2 lines 67-68 and Col. 3 lines 1-2 The envelope 10 contains a liquid or paste or gel which has a low freezing point and a high boiling point and is preferably a gel. Based on the disclosure and Fig. 2 inner layer film 18 surrounds the gel and nylon layer 20 is isolated from the gel by polyethylene layer 18 ), and
the pouch being permanently sealed closed, wherein the inner polyethylene layer is to allow the pouch to be permanently heat sealed closed (Fig. 1 plastic envelope 10 is sealed at both ends 12 , 14 or down the back conventional procedures e.g. heat sealing, dielectric treating, etc.; Col. 2 lines 59-61) and
a thermotherapeutic composition pre-loaded into the pouch and contained and surrounded by the inner polyethylene layer of the at least one laminate sheet, the thermotherapeutic composition for providing (gel 22, Fig. 1 contained and surrounded by polyethylene layer 18), when the pouch is applied against a body part, hot therapy when the therapeutic composition is cooled (envelope 10 is a thermal gel pack capable of various uses, such as to warm the hands or to warm or cool an injured or painful part of the body; Col 1 lines 26-29).
Francis teaches resisting cracking and reducing leakage of the thermotherapeutic composition from the pouch (Col. 5 lines 3-10 the laminated plastic bags maintained their integrity without rupture or formation of pin holes).
With respect to the functional limitation “the intermediate nylon layer is to resist cracking due to cooling of the therapeutic pad, and wherein said crack resistance enables the therapeutic pad to be exposed to temperatures suitable for cold therapy and to reduce leakage of the thermotherapeutic composition from the pouch,” it is the Examiner's position that the resistance to cracking due to cooling is a property of the nylon material of the thermotherapeutic pad. It is noted that Applicant in paragraph [0031] of the Specification indicates, “Nylon material can provide certain advantages over vinyl material. For example, nylon material can be more crack resistant than vinyl material, which allows for the thermotherapeutic pad to be exposed to cooler temperatures, including temperatures suitable for cold therapy. Nylon is also better suited for use in microwave ovens.” Accordingly the functional limitation of “resist to cracking” is a property of nylon with respect to a vinyl material and Francis provides for a nylon layer. Essentially, a showing in the art of material which read on the compositions instantly recited and administered based on the broadest reasonable interpretation of the instant specification will be considered to read on those compositions administered in the instant claims. If the composition is physically the same, it must have the same properties. Therefore, the functional limitation of resistance to cracking due cooling and reducing leakage limitations are considered to have been met since Francis teaches a nylon laminate layer in the thermotherapeutic pouch. Applicants are respectfully directed to MPEP 2111.01 and 2112.
Francis does not teach an outer polyester layer comprising fabric. However, Trinh teaches a thermal therapy device comprising an outer cover made from normally woven and/or non-woven polyester [0027]. Therefore, it would have been obvious to one of ordinary skill in the art to provide for a polyester outer cover comprising a polyester fabric for the device of Francis since it is flexible, easy to wash [0027], and can be used on a body part [0028].
While Francis provides layers can be adhered to one another (claim 9) it is silent about specifically teaching and wherein the outer polyester layer is surface bonded to the intermediate nylon layer with a polyethylene adhesive.
However, Curie teaches a multi-layer bag comprising a nylon layer, a polyethylene layer and an adhesive layer between the first two layers; wherein the adhesive layer has a fraction of linear low-density polyethylene in its composition (Col. 2, lines 15-19).
It would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to provide for a polyethylene adhesive between two layers such as the outer polyester layer and the intermediate nylon layer since Curie teaches adhesive layer 16 which includes polyethylene must have good adhesion to both layers 12 and 14, and must have enough heat resistance… and still retain a good adhesion (Col. 3, lines 7-10) and could prevent the inner pouch/layer from moving to ensure uniform thermal therapy.
Regarding claim 2, Francis in view of Trinh and Curie teaches the limitations of claim 1. While in claim 1 Curie taught a polyethylene adhesive between two layers and the combination taught that it would be obvious to include the polyethylene adhesive between an outer polyester layer and intermediate nylon layer in France, Curie also specifically provides that its adhesive (16) is applied to one or more of a nylon layer 12 and a polyethylene layer 14.
Regarding claim 3, Francis in view of Trinh and Curie teaches the limitations of claim 2. While Curie does not teach an additional polyethylene adhesive and generally teaches one polyethylene adhesive, it would have been obvious to one of ordinary skill in the art to duplicate the adhesive layer taught by Curie and such that the polyethylene adhesive that adheres to the nylon layer and the polyethylene layer that is in addition to the polyethylene adhesive between the outer polyester layer and the nylon layer since Curie teaches it has good adhesion and enough heat resistance (Col. 3, lines 7-10) and could prevent the inner pouch/layer from moving and generally ensure uniform thermal therapy. Furthermore, mere duplication of the essential working parts of a device involves only routine skill in the art. St. Regis Paper Co. v. Bemis C o . , 193 USPQ 8 MPEP 2144.04 (VI-B)
Regarding claim 5, Francis in view of Trinh and Curie teaches the limitations of claim 1 as previously rejected above. Trinh teaches the outer polyester layer comprises a warp knitted polyester fabric [0027].
Regarding claim 24, Francis teaches use of a thermotherapeutic pad for cold therapy ([Abstract] Microwavable instant and/or cold pack gel package including an envelope fabricated from a laminate, for example, of films of synthetic resins and an aqueous gel in said envelope) including cooling the thermotherapeutic pad and a thermotherapeutic composition pre-loaded into a pouch of the thermotherapeutic pad (Col 1 lines 26-29), wherein the thermotherapeutic composition is contained and surrounded by an inner polyethylene layer of a laminate sheet that forms the pouch (gel 22, Fig. 1 contained and surrounded by polyethylene layer 18), the laminate sheet further including a nylon layer, wherein the nylon layer is disposed outside the inner polyethylene layer , wherein the intermediate nylon layer is isolated from the content of the pouch by the inner polyethylene layer (inner film 18 of polyethylene layer and an outer layer or film 20 either of nylon or nylon sclair ; Col. 2 lines 67-68 and Col. 3 lines 1-2 The envelope 10 contains a liquid or paste or gel which has a low freezing point and a high boiling point and is preferably a gel. Based on the disclosure and Fig. 2 inner layer film 18 surrounds the gel and nylon layer 20 is isolated from the gel by polyethylene layer 18), wherein the inner polyethylene layer permanently seals the pouch closed with a heat seal (Fig. 1 plastic envelope 10 is sealed at both ends 12, 14 or down the back conventional procedures e.g. heat sealing, dielectric treating, etc.; Col. 2 lines 59-61)
Francis teaches resisting cracking and reducing leakage of the thermotherapeutic composition from the pouch (Col. 5 lines 3-10 the laminated plastic bags maintained their integrity without rupture or formation of pin holes).
With respect to the functional limitation “wherein the intermediate nylon layer resists cracking due to cooling of the thermotherapeutic pad, and wherein said crack resistance enables the thermotherapeutic pad to be exposed to temperatures suitable for cold therapy and to reduce leakage of the thermotherapeutic composition from the pouch,” it is the Examiner's position that the resistance to cracking due to cooling is a property of the nylon material of the thermotherapeutic pad. It is noted that Applicant in paragraph [0031] of the Specification indicates, “Nylon material can provide certain advantages over vinyl material. For example, nylon material can be more crack resistant than vinyl material, which allows for the thermotherapeutic pad to be exposed to cooler temperatures, including temperatures suitable for cold therapy. Nylon is also better suited for use in microwave ovens.” Accordingly, the functional limitation of “resists cracking” is a property of nylon with respect to a vinyl material and Francis provides for a nylon layer. Essentially, a showing in the art of material which read on the compositions instantly recited and administered based on the broadest reasonable interpretation of the instant specification will be considered to read on those compositions administered in the instant claims. If the composition is physically the same, it must have the same properties. Therefore, the functional limitation of resistance to cracking due cooling and reducing leakage limitations are considered to have been met since Francis teaches a nylon laminate layer in the thermotherapeutic pouch. Applicants are respectfully directed to MPEP 2111.01 and 2112.
Francis does not teach an outer polyester layer wherein the outer polyester layer comprises a polyester fabric, wherein the intermediate nylon layer is disposed between the inner polyethylene layer and the outer polyester layer. However, Trinh teaches a thermal therapy device comprising an outer cover made from normally woven and/or non-woven polyester [0027]. Therefore, it would have been obvious to one of ordinary skill in the art to provide for a polyester outer cover comprising polyester fabric for the device of Francis since it is flexible, easy to wash [0027], and can be used on a body part [0028].
While Francis provides layers can be adhered to one another (claim 9) it is silent about specifically teaching and wherein the outer polyester layer is surface bonded to the intermediate nylon layer with a polyethylene adhesive.
However, Curie teaches a multi-layer bag comprising a nylon layer, a polyethylene layer and an adhesive layer between the first two layers; wherein the adhesive layer has a fraction of linear low density polyethylene in its composition (Col. 2, lines 15-19).
It would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to provide for a polyethylene adhesive between two layers such as the outer polyester layer and the intermediate nylon layer since Curie teaches adhesive layer 16 which includes polyethylene must have good adhesion to both layers 12 and 14, and must have enough heat resistance… and still retain a good adhesion (Col. 3, lines 7-10) and could prevent the inner pouch/layer from moving to ensure uniform thermal therapy.
Curie provides that its polyethylene adhesive (16) is applied to one or more of a nylon layer 12 and a polyethylene layer 14. While Curie does not teach an additional polyethylene adhesive and generally teaches one polyethylene adhesive, it would have been obvious to one of ordinary skill in the art to duplicate the adhesive layer taught by Curie and such that the polyethylene adhesive that adheres to the nylon layer and the polyethylene layer that is in addition to the polyethylene adhesive between the outer polyester layer and the nylon layer since Curie teaches it has good adhesion and enough heat resistance (Col. 3, lines 7-10) and could prevent the inner pouch/layer from moving and generally ensure uniform thermal therapy. Furthermore, mere duplication of the essential working parts of a device involves only routine skill in the art. St. Regis Paper Co. v. Bemis C o . , 193 USPQ 8 MPEP 2144.04 (VI-B).
Claim 6 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Francis (4,756,311) in view of Trinh (2004/0244412), Curie (Patent No. 4,687,688), and Ota (Pub. No. 2009/0088825).
Regarding claim 6, Francis in view of Trinh and Curie teaches the limitations of claim 5 as previously rejected above. The combination does not teach wherein the warp knitted polyester fabric has a weight of approximately 120 grams per square meter. However, Ota teaches a heating or cooling bag comprising a fibrous layer containing a woven or knit fabric of polyester material wherein the thickness of 120 grams per square meter [0065]. Francis and Trinh provide a therapeutic bag comprising a plurality of laminate layers that are within the field of invention and therefore it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to modify the warp knitted polyester fabric in the combination to achieve the claimed weight since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233 (MPEP 2144.05).
Claims 7-9 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Francis (4,756,311) in view of Trinh (2004/0244412), Curie (Patent No. 4,687,688), Ota (Pub. No. 2009/0088825), and in further view of Raman (Pub. No. 2011/0230810).
Regarding claim 7, Francis in view of Trinh, Curie and Ota teaches the limitations of claim 6 as previously rejected above. Francis is silent about specifically teaching wherein the at least one laminate sheet is heat cured. However, Raman teaches a layered membrane sandwich system wherein the layers are further enjoined by heating/curing for a sufficient length of time and temperature [0046]. Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to heat cure the at least one laminate sheet in Francis in order to achieve the desired performance characteristics as taught by Raman. In addition, Raman teaches that such conditions can easily be determined by routine optimization [0046].
Regarding claim 8, Francis in view of Trinh, Curie, Ota, and Raman teaches the limitations of claim 7 as previously rejected above. Francis teaches wherein the at least one laminate sheet has a thickness of approximately 2.5 thousands of an inch (an inner film 18 of polyethylene having a thickness of two mils and an outer layer or film 20 of nylon about the same thickness). Francis two thousands of an inch reads on the claimed approximately 2.5 thousands of an inch and therefore reads on the claimed invention.
Regarding claim 9, Francis in view of Trinh, Curie, Ota, and Raman teaches the limitations of claim 8 as previously rejected above. Francis teaches wherein the pouch is permanently sealed closed by one or more heat bonded seams (Col. 2 lines 63 heat sealing or dielectric treating).
Claims 10-11 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Francis (4,756,311) in view of Trinh (2004/0244412), Curie (Patent No. 4,687,688), Ota (Pub. No. 2009/0088825), Raman (Pub. No. 2011/0230810), and in further view of Barone (Patent No. 6024761).
Regarding claim 10, Francis in view of Trinh, Curie, Ota, and Raman teaches the limitations of claim 9 as previously rejected above. While the combination provides for all the claimed layers and material where the perimeter of the sheets are permanently sealed together, it is silent about specifically teaching first and second laminate sheets comprising the claimed layers and material.
However, Barone teaches a thermotherapeutic pad within the same field of invention generally comprising a first and second laminate sheet wherein the first and second laminate sheet each having an outer polyester layer (first and second elastic members 36 and 39 may each be selected from natural or synthetic rubber, or any number of polymeric materials… Suitable materials include, but are not limited to polyesters; Col. 9 lines 5-12), intermediate nylon layer (carrier layers 37, and 40 are preferably formed from, but not limited to nylon; Col. 9 lines 15-20) and inner polyethylene layer (it is preferred that base material 70 and/or cover material 72 be made of thermoplastic materials… Such materials include, but are not limited to, polyethylene; Col. 19 lines 6-15). Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the combination to include the first and second laminates since the device provides good conformity to a user’s body [Abstract].
Regarding claim 11, Francis in view of Trinh, Curie, Ota, Raman, and Barone teaches the limitations of claim 10 as previously rejected above. Francis teaches gel material capable of being heated and cooled (envelope 10 is a thermal gel pack capable of various uses, such as to warm the hands or to warm or cool an injured or painful part of the body; Col 1 lines 26-29).
Claims 12-14 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Francis (4,756,311) in view of Trinh (2004/0244412), Curie (Patent No. 4,687,688), and in further view of Fortney (Patent No. 5,111,810).
Regarding claims 12 and 13, the combination teaches the limitations of claim 1 as previously rejected above. The combination does not teach at least one strap having a fixed end affixed to a portion of the pouch, and at least one buckle being fixed to another portion of the pouch, the at least one strap anchored by the at least one buckle. However, Fortney teaches straps 11 attached to an outer sheet 20 and buckles 12 which can secure a holder containing thermal compress; wherein the free hand pulls on the ends 14 of the straps 11 to secure the holder 10 to the arm. Alternatively, hook-and-loop fastening means (VELCRO) permanently attached to elastic straps can be employed, as well as strap-and-buckle fastening means other than that shown in FIG. 1 (Col. 3, lines 58-68). Other embodiments in Fortney also teach a fastener at a free end opposite the fixed end (Fig. 7B). Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the device of Francis to provide for at least one strap affixed to a portion of the pouch, the at least one strap having a fastener at the free end, and to further provide at least one buckle for the purpose of providing adjustable fastening means that are sufficiently long to secure said holder to an affected body part (Claim 1 (2)) as taught by Fortney.
Regarding claim 14, Francis teaches a thermotherapeutic pad ([Abstract] Microwavable instant and/or cold pack gel package including an envelope fabricated from a laminate, for example, of films of synthetic resins and an aqueous gel in said envelope) comprising:
a pouch formed from at least one laminate sheet (Fig. 1) comprising: the at least one laminate sheet including a nylon layer and an inner polyethylene layer, wherein the nylon layer is disposed outside the inner layer, and wherein the inner polyethylene layer is to contain and surround the content of the pouch and wherein the intermediate nylon layer is isolated from the content of the pouch by the inner polyethylene layer (inner film 18 of polyethylene layer and an outer layer or film 20 either of nylon or nylon sclair ; Col. 2 lines 67-68 and Col. 3 lines 1-2 The envelope 10 contains a liquid or paste or gel which has a low freezing point and a high boiling point and is preferably a gel. Based on the disclosure and Fig. 2 inner layer film 18 surrounds the gel and nylon layer 20 is isolated from the gel by polyethylene layer 18 ), and
the pouch being permanently sealed closed by one or more heat bonded seams that bond the inner polyethylene layer to the inner polyethylene layer (plastic envelope 10 is sealed at both ends 12 , 14 or down the back conventional procedures e.g. heat sealing, dielectric treating, etc.) and
a thermotherapeutic composition pre-loaded into the pouch and contained and surrounded by the inner polyethylene layer of the at least one laminate sheet, the thermotherapeutic composition for providing (gel 22, Fig. 1 contained and surrounded by polyethylene layer 18), when the pouch is applied against a body part, hot therapy when the therapeutic composition is cooled (envelope 10 is a thermal gel pack capable of various uses, such as to warm the hands or to warm or cool an injured or painful part of the body; Col 1 lines 26-29).
Francis teaches resisting cracking and reducing leakage of the thermotherapeutic composition from the pouch (Col. 5 lines 3-10 the laminated plastic bags maintained their integrity without rupture or formation of pin holes).
With respect to the functional limitation “the intermediate nylon layer is to resist cracking due to cooling of the therapeutic pad, and wherein said crack resistance enables the thermotherapeutic pad to be exposed to temperatures suitable for cold therapy and to reduce leakage of the thermotherapeutic composition from the pouch,” it is the Examiner's position that the resistance to cracking due to cooling is a property of the nylon material of the thermotherapeutic pad. It is noted that Applicant in paragraph [0031] of the Specification indicates, “Nylon material can provide certain advantages over vinyl material. For example, nylon material can be more crack resistant than vinyl material, which allows for the thermotherapeutic pad to be exposed to cooler temperatures, including temperatures suitable for cold therapy. Nylon is also better suited for use in microwave ovens.” Accordingly, the functional limitation of “resist to cracking” is a property of nylon with respect to a vinyl material and Francis provides for a nylon layer. Essentially, a showing in the art of material which read on the compositions instantly recited and administered based on the broadest reasonable interpretation of the instant specification will be considered to read on those compositions administered in the instant claims. If the composition is physically the same, it must have the same properties. Therefore, the functional limitation of resistance to cracking due cooling and reducing leakage limitations are considered to have been met since Francis teaches a nylon laminate layer in the thermotherapeutic pouch. Applicants are respectfully directed to MPEP 2111.01 and 2112.
Francis does not teach an outer polyester layer. However, Trinh teaches a thermal therapy device comprising an outer cover made from normally woven and/or non-woven polyester [0027]. Therefore, it would have been obvious to one of ordinary skill in the art to provide for a polyester outer cover for the device of Francis since it is flexible, easy to wash, can be used on a body part, and be water impermeable.
Francis provides adhering the intermediate nylon layer and the inner polyethylene layer via heat bonded seams but is silent about specifically teaching a first adhesive and a second adhesive to bond the outer polyester layer to the intermediate layer.
However, Curie teaches a multi-layer bag comprising a nylon layer, a polyethylene layer and an adhesive layer between the first two layers; wherein the adhesive layer has a fraction of linear low density polyethylene in its composition (Col. 2, lines 15-19).
It would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to provide for an adhesive between the nylon layer and polyethylene layer since Curie teaches adhesive layer 16 must have good adhesion to both layers 12 and 14, and must have enough heat resistance…and still retain a good adhesion (Col. 3, lines 7-10) and could prevent the inner pouch/layer from moving to ensure uniform thermal therapy.
The combination is silent about specifically teaching a second adhesive that bonds the outer polyester layer to the intermediate nylon layer. Curie teaches a polyethylene adhesive that adheres two layers and further provides the adhesive comprises a polyethylene adhesive
Therefore, it would have been obvious to one of ordinary skill in the art before the filing date of the claimed invention to duplicate the adhesive layer taught by Curie and add the additional polyethylene adhesive that bonds the other layers (e.g. outer polyester layer to the intermediate nylon layers) since Curie teaches it has good adhesion and enough heat resistance (Col. 3, lines 7-10) and could prevent the inner pouch/layer from moving and generally ensure uniform thermal therapy.
The combination is silent about specifically teaching at least one strap having a fixed end affixed to a portion of the pouch, and at least one buckle being fixed to another portion of the pouch, the at least one strap anchored by the at least one buckle. However, Fortney teaches straps 11 attached to an outer sheet 20 and buckles 12 which can secure a holder containing thermal compress; wherein the free hand pulls on the ends 14 of the straps 11 to secure the holder 10 to the arm. Alternatively, hook-and-loop fastening means (VELCRO) permanently attached to elastic straps can be employed, as well as strap-and-buckle fastening means other than that shown in FIG. 1 (Col. 3, lines 58-68). Other embodiments in Fortney also teach a fastener at a free end opposite the fixed end (Fig. 7B). Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the device to provide for at least one strap affixed to a portion of the pouch, the at least one strap having a fastener at the free end, and to further provide at least one buckle for the purpose of providing adjustable fastening means that are sufficiently long to secure said holder to an affected body part (Claim 1 (2)) as taught by Fortney.
Response to Arguments
Applicant's arguments filed 10/01/2025 have been fully considered but they are not persuasive.
Applicant recites on page 9 of the remarks, “The POSITA would not be motivated to adhere an outer polyester layer of fabric to an intermediate nylon layer…No citation is provided for the assertion that a person of ordinary skill in the art would be motivated to prevent the inner pouch layer from moving. Trinh never suggests that the cooling pack might shift inside the outer cover; Trinh never implies that this would be an undesirable feature.”
The Examiner respectfully disagrees. The claim requires a polyethylene adhesive to bond the outer polyester with the intermediate nylon layer. The Examiner applies the Trinh reference to teach an outer polyester layer is in the form of a fabric. The Examiner applies the Curie reference to teach it would be obvious to adhere a polyethylene adhesive to a nylon layer and a polyethylene layer. While the Examiner acknowledges that Curie doesn’t specifically mention preventing the inner pouch from moving, it does teach that the adhesive provides for good adhesion between the two layers and Francis does provide that layers can be adhered to one another (claim 9). Therefore, one of ordinary skill in the art would apply Curie since the adhesive of Curie provides for good adhesion between the layers.
Applicant recites on page 10 of the remarks “The Examiner’s assertion that it is the fabric nature of the outer cover that improves washability is plainly erroneous because it is quoted without the necessary context…the improved washability Trinh’s cooling pack arises from the ability to simply take off the fabric outer cover and throw it in the wash, leaving the inner cooling pack clean and untouched…Trinh also praises a removable outer layer as highly preferable…Trinh dismisses an impermeable outer cover as merely permissible.”
The Examiner respectfully disagrees. Trinh lists several advantages of having an outer polyester fabric layer such as flexibility, easy to wash, and can be used on a body part. The Examiner acknowledges that Trinh in [0027] specifically recites it prefers an embodiment with outer cover and an inner pack compared to an impermeable outer cover that eliminates the need for an inner pack. The Examiner also previously recited the outer cover material is such that it can be used against a body part. Trinh recites the outer cover is typically a fabric and can be made of woven, knitted , crocheted , fabric of natural and or synthetic fibers such as polyester. Tring with respect to the outer cover recites “The material that contacts the body also preferably slows the cooling of the body part to avoid damage by overcooling, e.g., frostbite. The material should allow heat to flow from the injured body part. Preferably, the material does not allow heat to flow through it at a rate that will result in frostbite. The desired effect is cooling without freezing and the cooling is preferably at a rate that produces no more pain than can be withstood by the use.” [0028] Therefore, it would be obvious to provide for a polyester fabric outer layer since the material can be used against a body part during thermal therapy and provide protection against frostbite.
Conclusion
THIS ACTION IS MADE FINAL. 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 YASAMIN EKRAMI whose telephone number is (571)272-9803. The examiner can normally be reached 9:00-5:00.
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/Y.E/Examiner, Art Unit 3794
/KAITLYN E SMITH/Primary Examiner, Art Unit 3794