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 .
Applicant’s Response
The response filed on 8/7/2025 has been entered.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 3-7, 11, 13, 21-27, 29 and 31-39 are rejected under 35 U.S.C. 103 as being unpatentable over USPAP 2010/0055437 to Fink in view of USPAP 2013/0172436 to Fosco and USPAP 2004/0116018 to Fenwick and (when necessary) further in view of USPAP 2003/0170453 to Foss, USPAP 2001/0053443 to Perez, and/or USPAP 2005/0136100 to Foss.
Claims 1, 13, 25, 35 and 38, Fink discloses a single polymeric component/composition monocomponent fiber comprising only a single polymeric component defined by a homogeneous polymer composition comprising at least one polymer selected from a polypropylene, polyethylene, or a blend thereof; and an additive component comprising an antimicrobial component dispersed throughout at least a portion of the homogeneous polymer composition; wherein the fiber comprises an outer surface having a first concentration (up to 70% by weight) of the antimicrobial component and a center having a second concentration of the antimicrobial heat liable component (less than 20% by weight), wherein the fiber comprises a diameter, the diameter is defined by the homogeneous polymer composition (see entire document including [0010], [0017], [0019], and [0024]-[0026]).
Fink teaches that the second concentration may be from 1% to 50% of the first concentration because Fink discloses that the fiber comprises an outer surface having a first concentration of up to 70% by weight of the antimicrobial component and a center having a second concentration of the antimicrobial heat liable component of less than 20% by weight [0024]. In the event that it is shown that Fink fails to teach the claimed first and second antimicrobial concentrations with sufficient specificity, Fink discloses that the antimicrobial concentration can be adjusted to the end product need [0019]. Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to make the fibers with any suitable first and second antimicrobial concentration, such as claimed, based on the intended use and because is within the general skill of a worker in the art to select antimicrobial concentrations on the basis of suitability and desired characteristics.
Regarding the second concentration being from 1% to 50% of the first concentration “due to migration” of the antimicrobial heat liable component towards the outer surface of the fiber, it is the examiner’s position that the article of the applied prior art is identical to or only slightly different than the claimed article. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 227 USPQ 964, 966 (Fed. Cir. 1985). The burden has been shifted to the applicant to show an unobvious difference between the claimed product and the prior art product. In re Marosi, 218 USPQ 289 (Fed. Cir. 1983). The applied prior art either anticipated or strongly suggested the claimed subject matter. Plus, Fink discloses that the inner and outer cross-sectional areas of the fiber may have different release rates [0010] and Fenwick discloses that it is known in the art to construct a fiber such that an additive migrates to the surface of the fiber so that the additive replenishes and is available on the surface of the fiber [0032]. Therefore, it would have been obvious to one having ordinary skill in the art to construct the fiber of Fink such that the antimicrobial component migrates to the surface of the fiber so that the additive replenishes and is available on the surface of the fiber.
Fink does not appear to mention the use of antimicrobials on a carrier but Fosco discloses that it is known in the antimicrobial resin art to include an antimicrobial/biocide heat liable component absorbed on a carrier comprising a porous macroreticular resin to provide sustained release of the antimicrobial and to allow the use of thermally sensitive antimicrobials with high melting point composition polymers (see entire document including [0002], [0006]-[0009] and [0074]). Fosco discloses that the use of the porous carrier allows the use of antimicrobials that have a decomposition temperature or a volatilization temperature that is lower than the polymer composition melting point [0009]. Therefore, it would have been obvious to one having ordinary skill in the art to include an antimicrobial/biocide component absorbed on a carrier comprising a porous macroreticular resin, to provide sustained release of the antimicrobial and to allow for a wider range of material combinations such as the use of thermally sensitive (low volatilization temperature) antimicrobials with high melting point composition polymers.
Fink does not appear to mention the polymeric component comprising 1.5 to 5% by weight of a silicone but Fenwick discloses that it is known in the art to include 1.5 to 5% by weight silicone to a polypropylene and/or polyethylene fiber composition to provide skin treatment benefit (see entire document including [0001], [0002], [0010], [0029]-[0032] and [0036]-[0041]). Therefore, it would have been obvious to one having ordinary skill in the art to include 0.5 to 5% by weight silicone to the fiber composition of Fink to provide skin treatment benefit.
Fink explicitly discloses that the materials of the fiber outer layer and core can (may or may not) vary [0024]. Plus, Foss ‘453 discloses that it is known in the art to construct antimicrobial fibers as monocomponent or bicomponent form (see entire document including the abstract). Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to make the fiber in monocomponent or bicomponent form, based on the intended use.
Claims 3, 13 and 31, Fink does not appear to mention the surface area of the fiber but Foss ‘100 discloses that it is known in the antimicrobial fiber art to use antimicrobial fibers for filtration [0075]. Perez discloses that it is known in the filtration art to construct fibers with a surface area of about 0.5 to 30 m2/g (5,000 to 300,000 cm2/g) to improve filtration (see entire document including [0007]). Therefore, it would have been obvious to one having ordinary skill in the art to construct the fiber of Fink with the claimed surface area, motivated by a desire to improve filtration and/or because it is within the general skill of a worker in the art to select a known fiber surface area on the basis of its suitability and desired characteristics.
Claims 4, 11, 27 and 29, the first concentration may be between about 3.5 wt % to about 12 wt % based upon the total weight of the fiber [0024]. Plus, Fink discloses that the antimicrobial concentration can be adjusted to the end product need [0019]. Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to make the fibers with any suitable first and second antimicrobial concentration, such as claimed, based on the intended use and because is within the general skill of a worker in the art to select antimicrobial concentrations on the basis of suitability and desired characteristics.
Claims 5-7, considering that the fiber taught by the applied prior art is substantially identical to the claimed fiber in terms of structure and materials, it would inherently possess the claimed characteristics. The Patent and Trademark Office can require applicants to prove that prior art products do not necessarily or inherently possess characteristics of claimed products where claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes; burden of proof is on applicants where rejection based on inherency under 35 U.S.C. § 102 or on prima facie obviousness under 35 U.S.C. § 103, jointly or alternatively, and Patent and Trademark Office’s inability to manufacture products or to obtain and compare prior art products evidences fairness of this rejection, In re Best, Bolton, and Shaw, 195 USPQ 431 (CCPA 1977).
Claim 13, Fink discloses a nonwoven comprising the fiber [0029].
Claims 21, 31, 33 and 36, Fink does not appear to specifically mention if the fiber is made by meltblowing but absent a showing to the contrary, it is the Office’s position that the article of the applied prior art is identical to or only slightly different than the claimed article. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 227 USPQ 964, 966 (Fed. Cir. 1985). The burden has been shifted to the applicant to show an unobvious difference between the claimed product and the prior art product. In re Marosi, 218 USPQ 289 (Fed. Cir. 1983). The applied prior art either anticipated or strongly suggested the claimed subject matter. It is noted that if the applicant intends to rely on Examples in the specification or in a submitted declaration to show non-obviousness, the applicant should clearly state how the Examples of the present invention are commensurate in scope with the claims and how the Comparative Examples are commensurate in scope with the applied prior art. In addition, Perez discloses that it is known in the art to use melt-fibrillated or blown fibers (see entire document including the title and [0072]). Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to use any suitable fiber, such as a melt-fibrillated or blown fiber, because it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability and desired characteristics.
Claims 22 and 34, Fink does not appear to mention fiber length but Foss ‘100 discloses that it is known in the art to construct antimicrobial staple fibers [0046]. Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to make the fibers with a staple fiber length, because it has is within the general skill of a worker in the art to select a fiber length on the basis of its suitability and desired characteristics.
Claims 23, 25 and 26, Fink discloses that any suitable polymer fiber may be utilized and specifically mentions polypropylene and combinations of polymers [0017]. Fink does not appear to specifically mention polyethylene but Fenwick discloses that it is known in the art to construct fibers with polypropylene and/or polyethylene [0030]. Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to make the fibers of Fink from any suitable material or combination of materials, such as claimed, because it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability and desired characteristics. In re Leshin, 125 USPQ 416. "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). See MPEP 2144.06.
Claim 24, Fink does not appear to mention a fiber diameter but Perez discloses that it is known in the filter art to use fibers with a diameter of 0.01 to 10 microns ([0006] to [0007]). Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to use a fiber with any suitable diameter, such as claimed, because it is within the general skill of a worker in the art to select fiber diameter on the basis of its suitability and desired characteristics.
Claim 25, Fink discloses a fiber comprising: a bicomponent fiber including (a) a sheath comprising a first polymer that may be polypropylene, and (b) a core comprising a second polymer that may be polypropylene; an antimicrobial component dispersed throughout at least a portion of the first polymer; wherein the bicomponent fiber comprises a surface having a first concentration of the antimicrobial component and a center having a second concentration of the antimicrobial component, wherein the second concentration is from 1% to 50% of the first concentration (see entire document including column 2, lines 24-49, the paragraph bridging columns 3 and 4, column 4, lines 28-59, and column 8, lines 25-52). (see entire document including [0010], [0017], [0019], and [0024]-[0026]). Fink explicitly discloses that the core may have antimicrobial agent in an amount of “less than 20% by weight” [0024] with no mention of a lower limit. Therefore, Fink discloses that the amount may be zero. Further, Fink discloses that the fibers may be coated or immersed within a solution containing the antimicrobial agent [0019] which would necessarily result in antimicrobial agent being present only on the outer layer surface and not in the core. Further still, Fink discloses that the core contains a lower amount of antimicrobial agent “to maintain fiber integrity” [0024]. Therefore, it would have been obvious to one having ordinary skill in the art to include no antimicrobial agent in the core to provide a fiber with maximum fiber integrity.
Claims 32 and 35, the fiber taught by the applied prior art consists of the single polymeric homogeneous composition and the antimicrobial heat liable component adsorbed on the carrier (see entire documents).
Claim 37, Fink does not appear to mention the use of crimped fibers, or discloses specific fiber lengths, but Fenwick discloses that it is known in the art to construct fibers as continuous or discontinuous [0023] and that the fibers may be formed with crimp [0045]. Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to make the fibers with any suitable length and shape, such as claimed, because it is within the general skill of a worker in the art to select fiber characteristics on the basis of suitability and desired characteristics.
Claim 39, Fink does not appear to mention a weight ratio between the sheath and the core but Foss ‘453 discloses that it is known in the art to construct antimicrobial fibers in bicomponent form wherein the sheath and core may each comprise 20-80% by weight of the fiber [0211]. Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to vary the weight ratio between the sheath and the core, because it is within the general skill of a worker in the art to vary the weight ratio on the basis of suitability and desired characteristics for the intended use.
Response to Arguments
Applicant's arguments filed 8/7/2025 have been fully considered but they are not persuasive.
The applicant asserts that the applied prior art fails to teach or suggest a second antimicrobial concentration of from 1 to 50% of the first concentration “due to migration of the antimicrobial heat liable component towards the outer surface of the fiber.” The examiner respectfully disagrees. Fink discloses a single polymeric component/composition monocomponent fiber comprising only a single polymeric component defined by a homogeneous polymer composition comprising at least one polymer selected from a polypropylene, polyethylene, or a blend thereof; and an additive component comprising an antimicrobial component dispersed throughout at least a portion of the homogeneous polymer composition; wherein the fiber comprises an outer surface having a first concentration (up to 70% by weight) of the antimicrobial component and a center having a second concentration of the antimicrobial heat liable component (less than 20% by weight), wherein the fiber comprises a diameter, the diameter is defined by the homogeneous polymer composition (see entire document including [0010], [0017], [0019], and [0024]-[0026]).
Fink teaches that the second concentration may be from 1% to 50% of the first concentration because Fink discloses that the fiber comprises an outer surface having a first concentration of up to 70% by weight of the antimicrobial component and a center having a second concentration of the antimicrobial heat liable component of less than 20% by weight [0024]. In the event that it is shown that Fink fails to teach the claimed first and second antimicrobial concentrations with sufficient specificity, Fink discloses that the antimicrobial concentration can be adjusted to the end product need [0019]. Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to make the fibers with any suitable first and second antimicrobial concentration, such as the claimed concentrations, based on the intended use and because is within the general skill of a worker in the art to select antimicrobial concentrations on the basis of suitability and desired characteristics.
Regarding the second concentration being from 1% to 50% of the first concentration “due to migration” of the antimicrobial heat liable component towards the outer surface of the fiber, it is the examiner’s position that the article of the applied prior art is identical to or only slightly different than the claimed article. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 227 USPQ 964, 966 (Fed. Cir. 1985). The burden has been shifted to the applicant to show an unobvious difference between the claimed product and the prior art product. In re Marosi, 218 USPQ 289 (Fed. Cir. 1983). The applied prior art either anticipated or strongly suggested the claimed subject matter. Plus, Fink discloses that the inner and outer cross-sectional areas of the fiber may have different release rates [0010] and Fenwick discloses that it is known in the art to construct a fiber such that an additive migrates to the surface of the fiber so that the additive replenishes and is available on the surface of the fiber [0032]. Therefore, it would have been obvious to one having ordinary skill in the art to construct the fiber of Fink such that the antimicrobial component migrates to the surface of the fiber so that the additive replenishes and is available on the surface of the fiber.
The applicant also asserts that Fink discloses a fiber with an inner layer and an outer layer, wherein the inner and outer layers have different concentrations of an antimicrobial agent, and therefore Fink is silent regarding a non-multicomponent (monocomponent) fiber. Applicant’s argument is not persuasive because none of the claims are drawn to a non-multicomponent (monocomponent) fiber wherein the amount of antimicrobial agent is the same throughout the fiber. On the contrary, the applicant claims a “single polymeric” fiber (claims 1 and 35) or a “monocomponent” fiber (claim 13) with an outer (surface) layer and an inner (center) layer wherein the inner and outer layers have different concentrations of an antimicrobial agent.
The applicant also asserts that Fink fails to teach or suggest a fiber comprising a single polymeric component defined by a homogeneous polymer composition. The examiner respectfully disagrees. Fink teaches that the invention is an antimicrobial fiber comprising an inner layer and an outer layer wherein the inner layer and outer layer have different concentrations, or different release rates, of at least one antimicrobial agent or the inner and outer layer comprise different antimicrobial agents [0010]. Fink fails to require the inner and outer layer be different polymers. On the contrary, Fink discloses a list of polymers that may be used to make the (inner and outer layer) fiber ([0017] and [0018]). Fink even discloses that the antimicrobial may be contained in “a (single) resin” [0019] and that the fiber may be spun from a single polymeric component (e.g. polypropylene) and then coated or treated with an antimicrobial agent [0023]. Although Fink discloses that in some embodiments of the invention “It is also envisioned that the (inner and outer layer) fiber materials can also be varied” [0024], Fink does not teach or suggest that this is an invention requirement. Fink clearly teaches that the fiber material(s) of the inner and outer layers may or may not be different.
The applicant also asserts that Fink is silent regarding a core that is devoid of an antimicrobial agent. The examiner respectfully disagrees. Fink requires that the antimicrobial agent concentration of the core be less than that of the sheath but Fink does not require the core have any antimicrobial agent. Fink explicitly discloses that the core may have antimicrobial agent in an amount of “less than 20% by weight” [0024] with no mention of a range lower limit. Therefore, Fink discloses that the amount may be zero. Further, Fink discloses that the fibers may be coated or immersed within a solution containing the antimicrobial agent ([0019] and [0024]) which necessarily results in antimicrobial agent being present only on the outer layer surface and not in the core. Further still, Fink discloses that the core contains a lower amount of antimicrobial agent “to maintain fiber integrity” [0024]. Therefore, it would have been obvious to one having ordinary skill in the art to exclude antimicrobial agent from the core to provide a fiber with maximum fiber integrity.
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 ANDREW T PIZIALI whose telephone number is (571)272-1541. The examiner can normally be reached on Monday-Thursday 7am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Marla McConnell can be reached on 571-270-7692. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW T PIZIALI/Primary Examiner, Art Unit 1789
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