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 .
Examiner Notes
Claims 11, 13-17, and 20-22 are currently pending of which claims 14, and 17 are withdrawn. Claims 11, 13, 15-16, and 20 are currently amended. Claims 21 and 22 are newly added.
Claim Objections
Claims 11, 16, 20, and 22 are objected to because of the following informalities: claim 11 refers to the filaments as “high-aspect ratio cellulose nano-filaments” with a hyphen between both high-aspect and nano-filaments. Claims 16, 20 and 22 do not include a hyphen between “high” and “aspect.” Consistency across the claims should be used e.g., either referring to the filaments as “high-aspect ratio cellulose nano-filaments” or ““high aspect ratio cellulose nano-filaments. Appropriate correction is required.
Claim Rejections - 35 USC § 112
Claims 15 and 16 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 15 recites the limitation "the cellulose nanoparticles". There is insufficient antecedent basis for this limitation in the claim.
As claim 16 recites that “the cellulose nanoparticle” comprise high aspect ratio-nano-filaments, thus for sake of further examination, “the cellulose nanoparticles” will be viewed as referring to the high aspect ratio nano-filaments.
Claim 16 is rejected as being dependent upon indefinite claim 15.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 16 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
In view of the interpretation of claim 15 as noted above, claim 16 does not further limit the subject matter of the claims as independent claim 11 already sets for the addition of high-aspect ratio cellulose nano-filaments within one layer of the ply.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
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 11, 13, 15-16, and 20-22 are rejected under 35 U.S.C. 103 as being unpatentable over Cabell et al. (US 2017/0284025) and further in view of Hua et al. (US 2013/0017394).
Regarding claims 11 and 15-16, Cabell discloses a fibrous structure (10) comprising at least one ply, the ply comprising a first layer of a first web material (12) and a surface material of a second web material (16, 18) disposed in contacting face-to-face relationship (Fig. 1, 0166), the first and second layers do not comprise filler (0148, 0167-171) and have a basis weight of preferably 1 to 5000 g/m2, overlapping the claimed 5 to 50 g/m2. The layers having a differential density (0135, 0144). Each web material comprising softwood, hardwood, non-wood, natural non-cellulosic or mad-made fibers (0139 and 0167-0169).
Cabell teaches that the first web material may include up to 100% by weight of fibers (0138), thus teaching no intentionally added cellulose nanoparticles and that the surface material includes one or more filaments which including cellulose filaments (0171).
Cabell does not teach a suitable weight percent for the amount of cellulose filaments or that the filaments are high-aspect ratio cellulose nano-filaments.
Hua, in the analogous field of papermaking products (0003), discloses high aspect ratio cellulose nanofilaments used in the making of absorbent paper, such as tissues and towels, to increase their strength (0036, 0058, and 0069) with addition in amounts up to 10% by weight (0058-0065, Fig. 5a-10), overlapping the claimed 0.05 to 3 percent by weight in claim 11 and 0.1 to 3 percent by weight in claim 15.
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the filaments of Cabell to include nanocellulose filaments as taught by Hua, added in an amount of up to 10 wt%, to increase strength of the layer.
Alternatively, given Hua teaches addition of varying amounts of the cellulose nanofilaments affects the strength (0058-0065, fig. 5a-10) and absent a showing of unexpected results, it has been held that the discovery of the optimum value of a result effective variable in a known process is ordinarily within the skill in the art. In re Boesch and Slaney, 205 USPQ 215 (CCPA 1980).
Regarding claim 13, Cabell teaches the fibers of the first and second layers overlapping (Fig. 1-3).
Regarding claims 20-22, Cabell discloses a fibrous structure (10) comprising at least one ply, the ply comprising a first layer of a first web material (12) and a surface material of a second web material (16, 18) disposed in contacting face-to-face relationship (Fig. 1, 0166), the first and second layers do not comprise filler (0148, 0167-171) and have a basis weight of preferably 1 to 5000 g/m2, overlapping the claimed 5 to 50 g/m2. Each web material comprising softwood, hardwood, non-wood, natural non-cellulosic or mad-made fibers (0139 and 0167-0169). Cabell teaches the web materials being air-laid (0064).
Please note, claims 20 and 21 includes product by process language. The above arguments establish a rationale tending to show the claimed product is the same as what is taught by the prior art. “[E]ven 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). Once the Examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious different between the claimed product and the prior art product. In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983), MPEP 2113.
Cabell further teaches that the first web material may include up to 100% by weight of fibers (0138), thus teaching no intentionally added cellulose nanoparticles and that the surface material includes one or more filaments which including cellulose filaments (0171).
Cabell does not teach a suitable weight percent for the amount of filaments or that the filaments are high-aspect ratio cellulose nano-filaments.
Hua, in the analogous field of papermaking products (0003), discloses high aspect ratio cellulose nanofilaments used in the making of absorbent paper, such as tissues and towels, to increase their strength (0036, 0058, and 0069) with addition in amounts up to 10% by weight (0058-0065, Fig. 5a-10), overlapping the claimed 0.05 to 3 percent by weight in claim 20 and 0.1 to 3 percent by weight in claim 22.
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the filaments of Cabell to include nanocellulose filaments as taught by Hua, added in an amount of up to 10 wt%, to increase strength of the layer.
Alternatively, given Hua teaches addition of varying amounts of the cellulose nanofilaments affects the strength (0058-0065, fig. 5a-10) and absent a showing of unexpected results, it has been held that the discovery of the optimum value of a result effective variable in a known process is ordinarily within the skill in the art. In re Boesch and Slaney, 205 USPQ 215 (CCPA 1980).
Regarding the overlapping ranges discussed in claims 11, 15, 20, and 22, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Response to Arguments
Applicant’s claim amendments filed 10/05/2025 have been entered. Due to the amendments claims rejections under 35 U.S.C. 112(b) and 35 U.S.C. 112(d) have been made.
Applicant’s arguments have been fully considered but they are not persuasive.
Applicant argues that Cabell does not disclose cellulose nano-filaments and Hua does not teach non-uniform distribution of high-aspect ratio cellulose nano-filaments.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant argues that the office has disregarded/not provided sufficient patentable weight to the structure imparted by “air-laid.”
Cabell teaches that the web materials may be air-laid (0064). The structure imparted has not been ignored, it is merely obvious in view of the same disclosed process.
The declaration under 37 CFR 1.132 filed 10/05/2025 is insufficient to overcome the rejection of claims 11, 13, 15-16, and 20-22 based upon Cabell in view of Hua as set forth in the last Office action because: the arguments are not commensurate in scope with the claimed invention. For example, the affidavit argues that Hua teaches away from the present application due to the addition of a retention aid and drastic reduction in porosity. However, the claims do not exclude addition of materials such as retention aids and no porosity property is claims. The affidavit further notes that the references fail to teach an air laid product however as noted above, Cabell teaches the web materials can be air-laid (0064).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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/ALICIA J WEYDEMEYER/Primary Examiner, Art Unit 1781