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 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, 5-18, 24, 26, and 27 are rejected under 35 U.S.C. 103 as obvious over US Pub. No. 2016/0176168 to Zhao, in view of USPN 4,493,870 to Vrouenraets.
Regarding claims 1-3, 5-18, 24, 26, and 27, Zhao teaches breathable multilayer films including a monolithic core layer comprising at least one highly breathable polymer and a first skin layer comprising a highly breathable polymer on one side of the monolithic core layer and a second skin layer on the other side of the monolithic core layer (Zhao, Abstract, paragraphs 0047-0054). Note that Zhao teaches that the term “highly breathable polymer” at paragraph 0023 is substantially similar or identical to Applicants’ recitation of the term in Applicants’ specification at paragraph 0035. Zhao teaches that the monolithic core layer may comprise at least one highly breathable polymer (Id., Abstract). Zhao teaches that the highly breathable polymers include any thermoplastic polymer having a MVTR of at least 800 g/m2/day when formed into a film, and may comprise copolyester thermoplastic elastomer such as ARNITEL, polyether block amide copolymer, or thermoplastic urethane elastomer (Id., paragraph 0023). Zhao teaches that the first-skin-layer and the second-skin-layer each comprise a highly breathable polymer, wherein both the first and second skin layers are less hygroscopic and less tacky than the core layer (Id., paragraph 0052). Zhao teaches that the first-skin-layer and second-skin-layer may comprise at least one of a thermoplastic polyurethane or a copolyester thermoplastic elastomer such as ARNITEL (Id., paragraph 0054). Zhao teaches that the skin layers may comprise the same or different highly breathable polymer from the core layer (Id.).
Regarding the core-layer composition comprising a blend of highly breathable polymers, Zhao teaches that the monolithic core layer may comprise at least one highly breathable polymer (Zhao, Abstract), including at least one of a thermoplastic urethane, a polyether block amide copolymer, or a copolyester thermoplastic elastomer (Id., paragraph 0049). It is reasonable for one of ordinary skill in the art to expect that “at least one” includes multiple in the form of a blend. Therefore, it would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to make the breathable multilayer film of Zhao, wherein the core layer comprises a blend of highly breathable polymers, motivated by the desire of forming a conventional breathable multilayer film based on the totality of the teachings of Zhao.
Regarding the first-skin-layer composition consisting of a first polymer blend formed from a first plurality of first-skin-layer high breathable polymers, as set forth above, Zhao teaches that the first-skin-layer and second-skin-layer may comprise at least one highly breathable polymer including a copolyester thermoplastic elastomer such as ARNITEL (Zhao, paragraphs 0036-0038). Zhao recites that the skin layer may further comprise a non-breathable material (Id., paragraph 0059). Additionally, Example 1 recites samples, such as samples A and B, only made from ARNITEL, and the predictably resulting properties. Therefore, it is reasonable for one of ordinary skill in the art to expect that the skin layers may optionally comprise a filler and a non-breathable material, based on the desired properties of the skin layers, as established by at least Example 1 and Table 1. Zhao teaches that the process for forming a breathable multilayer film comprises forming a core-layer polymer melt, forming a first-skin-layer polymer melt and co-extruding the core-layer polymer melt and the first-skin-layer polymer melt to form a monolithic core layer and a first skin layer (Id., paragraph 0078).
Although Zhao teaches the same copolyester thermoplastic elastomer such as ARNITEL in the core layer and the skin layers as taught by Applicants’ specification, Zhao does not appear to specifically teach the claimed water absorption percentages of the layers and the claimed relationship. However, as set forth above, Zhao teaches that the skin layers and the core layers comprise highly breathable polymers, and that the skin layers may comprise the same or different highly breathable polymer from the core layer. Zhao teaches that both the first and second skin layers are less hygroscopic and less tacky than the core layer (Zhao, paragraph 0052). Note that as previously made of Record, the ARNITEL polymers comprise at least water absorption percentages of 0.75% and 33%. Zhao teaches laminates comprising the breathable multilayer film for use in protective apparel or industrial uses (Id., paragraphs 0072-0074).
Applicants’ specification at paragraph 0063 similarly recites that the skin layers are less tacky, wherein film layers made from a higher water absorption resin is more tacky than a film layer made from a lower water absorption resin. Additionally, Applicants’ specification at paragraph 0023 recites that the polymer of at least the skin layer may be selected as having a somewhat less hygroscopic nature and lesser tackiness than the hygroscopic polymer composition of the core layer, and paragraph 0060 recites that the composition forming the ‘B’ (i.e. core) layer may be more hygroscopic than the composition forming the ‘A’ (i.e. skin) layer, as the ‘A’ layers are much less hygroscopic having a water absorption significantly less than that of the ‘B’ layer. Therefore, Applicants’ specification establishes that water absorption properties are inherently lower with lower hygroscopicity and lesser tackiness.
Additionally, Vrouenraets teaches a flexible layered product for use in waterproof garments or tents, having a water vapor transmission rate of at least 1000 g/m2 day (Vrouenraets, Abstract). Vrouenraets teaches that the polymer film is a copolyether ester having a thickness in the range of 5 to 35 µm (Id., column 1 line 53 to column 2 line 38, column 2 lines 51-58). Vrouenraets teaches that very good results are obtained with polyether ester films produced by film blowing or flat die extrusion, the films having a water absorption not higher than 17% (Id., column 5 lines 44-49). Vrouenraets teaches various films having water absorptions such as 14%, 16%, 19%, 21%, and 25% (Id., Tables 3 and 4, Examples V and VI). Vrouenraets teaches that the water absorption of compression moulded films is far higher than that of films obtained by the film blowing process (Id., column 8 lines 40-45).
Zhao teaches that both the first and second skin layers are less hygroscopic and less tacky than the core layer. Therefore, Zhao establishes the same highly breathable polymers as set forth in Applicants’ specification, in skin and core layers having the same relationship of properties including hygroscopicity and tackiness, including an example specifically directed to differences in water absorption percentages, as those set forth in Applicants’ specification. Additionally, Vrouenraets establishes a highly breathable polymer formed into a film, suitable for use in garments having water absorption percentages within the scope of the claimed range. Based on the water absorption percentages of Vrouenaets, it would have been within the level of ordinary skill to determine such a water absorption percentage based on a blend.
It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to make the breathable multilayer film of Zhao, and adjusting and varying the water absorption percentages of the skin layers and core layer thereby resulting in the claimed relationship, as suggested by Vrouenraets, motivated by the desire of forming a conventional breathable multilayer film comprising properties, such as hygroscopicity and tackiness and water absorption percentages, known in the art as being predictably suitable for such films for use in apparel.
Regarding, the first skin layer and the second skin layer being devoid of a pore-forming filler and soft polymer as claimed, and the skin layers being monolithic, Zhao teaches that each of the skin layers are monolithic and free of pores (Zhao, paragraphs 0064, 0068). Zhao defines a “monolithic” film to comprise any film that is continuous and substantially free or free of pores (Id., paragraph 0021). Consistent with the teachings of Zhao that the skin layers are monolithic, and that monolithic means that the film is substantially free or free of pores, the skin layers are devoid of a pore-forming filler as claimed. Zhao teaches an embodiment at Fig. 2B wherein the multilayer film may be formed without a filler (see additionally Id., paragraph 0070). Additionally, Zhao does not require a soft polymer having a Tg below 0°C or a pore-forming filler in each of the layers (Id., paragraph 0050, claim 1).
Regarding the claimed ratio between moisture vapor transmission rate and basis weight, the prior art combination teaches a multilayer film having a high MVTR, such as at least about 1000 g/m2/day and a low basis weight, comprising from about 11 to about 13 gsm (Zhao, paragraphs 0065-0067), such as an exemplary MVTR of 1300 g/m2/day and a basis weight of 11.2 gsm (Id., Tables 1-4). Note that the ratio of the exemplary MVTR:basis weight is within the claimed range.
Alternatively, it would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to make the breathable multilayer film of the prior art combination, and adjusting and varying the MVTR and basis weight, such as within the claimed ratio, as suggested by Zhao, motivated by the desire of forming a conventional breathable multilayer film comprising suitable properties based on the intended application.
Regarding claims 3 and 11-14, Zhao teaches that the multilayer film has a low basis weight, comprising from about 5 to about 20 gsm (Zhao, paragraph 0067), and an overall thickness of 20 microns (Id., paragraph 0058). Zhao teaches that the core-to-skin ratio may be used to estimate the relative thickness of the core and skin layers (Id.). Zhao teaches that the core layer may have a thickness comprising about 12 microns and the aggregate of the skin layers would be estimated as comprising about 8 microns, such as the first and second skin layers comprising substantially the same thickness, estimated to each comprise about 4 microns (Id.). Zhao teaches that the multilayer film may comprise no more than about 20% by weight of the first skin layer, the second skin layer, or an aggregate of the first and the second skin layer (Id., paragraph 0061). Based on the basis weight and thickness, the multilayer film of Zhao would have a density within the claimed range. Note that in the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). The existence of overlapping or encompassing ranges shifts the burden to Applicant to show that his invention would not have been obvious. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003).
Alternatively, regarding the claimed contact angle, the prior art combination teaches a substantially similar structure and composition as claimed, including a substantially similar skin layer. Therefore, the claimed property appears to naturally flow from the structure of the prior art combination. Products of identical structure cannot have mutually exclusive properties. The burden is on Applicants to prove otherwise.
Alternatively, since the prior art combination teaches a basis weight and thickness which would result in the claimed density, it would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to make the breathable multilayer film of the prior art combination, and adjusting and varying the basis weight and thickness of the film, thereby resulting in an average density within the claimed range, motivated by the desire of forming a conventional breathable multilayer film based on the totality of the teachings of the prior art.
Regarding claim 10, the prior art combination teaches that the multilayer film may have a high MVTR, such as at least about 750 g/m2/day as determined by ASTM E96D (Zhao, paragraph 0065).
Regarding claims 17 and 18, Zhao teaches laminating the breathable multilayer film to a fibrous layer with an adhesive (Zhao, paragraphs 0072, 0073).
Claims 1-3, 5-18, 24, 26, and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Zhao in view of Vrouenraets, as evidenced by US Pub. No. 2003/0044601 to Phillips.
Regarding claims 1-3, 5-18, 24, 26, and 27, as set forth above, the prior art combination does not require a soft polymer having a Tg below 0°C or a pore-forming filler in each of the layers (Zhao, paragraph 0050, claim 1). Alternatively, the prior art combination does not require the core layer to comprise a non-breathable material (see Id., claim 1). Additionally, the prior art combination teaches that the non-breathable materials may comprise a thermoplastic resin such as polyethylene, polypropylene, polyester, polyamide, polyvinyl chloride and others (Id., paragraph 0025). As evidenced by at least Phillips, polyamides and polyesters have a dry glass transition temperature of equal to or greater than 42°C (Phillips, paragraph 0033).
It would have been obvious to one of ordinary skill before the effective filing date of the claimed invention to make the breathable multilayer film of the prior art combination, wherein the non-breathable materials of the skin layers comprise a polyamide or a polyester, as suggested by Zhao, which inherently comprise a Tg above 0°C, as evidenced by Phillips, motivated by the desire of forming a conventional breathable multilayer film based on the totality of the teachings of Zhao.
Response to Arguments
Applicants’ arguments filed March 17, 2026, have been fully considered but they are not persuasive. Applicants argue that the prior art fails to teach or suggest the claimed first skin layer being devoid of a soft polymer having a Tg below 0ºC, which is a distinguishing feature and thereby exhibits the particularly remarkable technical effects including improved compatibility with polyolefin nonwoven materials, and heat-sealed seams maintaining acceptable barrier properties when exposed to moisture during ETO sterilization and field use. Additionally, the advantage of the breathable multilayer film is that the film is permeable to water vapor, prevents liquid penetration, and generally provides bonding compatibility with non-polar substances.
Regarding Applicants’ arguments, Examiner respectfully disagrees. Claim 1 recites the first skin layer to be devoid of a soft polymer having a Tg below 0ºC. Applicants’ specification recites at paragraph 0036 that examples of soft polymers include polyolefins, polyolefin copolymer, and copolymers of one or more olefins and one or more alkyl(meth) acrylate. Therefore, the claim requires the absence of a soft polymer having a Tg below 0ºC, such as polyolefins, polyolefin copolymer, and copolymers of one or more olefins and one or more alkyl(meth) acrylate. Additionally, the claim requires the presence of a highly breathable polymer in the first skin layer. Applicants’ specification recites at paragraph 0035 examples of highly breathable polymers including polyether block amide copolymers, polyester block amide copolymers, copolyester thermoplastic elastomer, or thermoplastic urethane elastomers. Therefore, the claim requires the presence of a highly breathable polymer as described at paragraph 0035 of Applicants’ specification.
As set forth above, Zhao teaches a first skin layer comprising a highly breathable polymer. Zhao teaches that the term “highly breathable polymer” at paragraph 0023 is substantially similar or identical to Applicants’ recitation of the term in Applicants’ specification at paragraph 0035. Zhao teaches that the highly breathable polymers include any thermoplastic polymer having a MVTR of at least 800 g/m2/day when formed into a film, and may comprise copolyester thermoplastic elastomer such as ARNITEL, polyether block amide copolymer, or thermoplastic urethane elastomer. Zhao neither recites the required presence of a soft polymer as claimed, nor the presence of an exemplary soft polymer such as polyolefins, polyolefin copolymer, and copolymers of one or more olefins and one or more alkyl(meth) acrylate. Therefore, since the claim requires the absence of a soft polymer but the presence of a highly breathable polymer, and since the prior art similarly requires the presence of a highly breathable polymer and does not positively recite the presence of a soft polymer as claimed or described in Applicants’ specification, the prior art renders obvious the claimed first skin layer being devoid of a soft polymer.
Additionally, as set forth above, the prior art teaches a substantially similar film which can be bonded to a nonwoven. The prior art teaches that the breathable multilayer film acts as a barrier to liquids, bacteria, viruses, and particulate matter, but allow water vapor to pass through it (Zhao, paragraph 0064). Therefore, since the prior art teaches a substantially similar structure and composition as claimed, including similar properties argued by Applicants, the advantages suggested by Applicants would appear to be similarly present in the invention of the prior art. Applicants have not provided evidence to the contrary.
Conclusion
Applicants’ amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicants are 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 PETER Y CHOI whose telephone number is (571)272-6730. The examiner can normally be reached M-F 9:00 AM - 3:00 PM.
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/PETER Y CHOI/Primary Examiner, Art Unit 1786
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