DETAILED ACTION
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of t/e previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 8/18/2025 has been entered.
Status of Application
The Examiner acknowledges receipt of the amendments filed on 8/8/2025 wherein claim 1 has been amended and claims 6 and 8 have been cancelled.
Claims 1, 3, 4, 7, 9-12 and 15 are presented for examination on the merits. The following rejections are made.
Allowable Subject Matter
Claims 13, 14 and 16 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Applicants’ Arguments
Applicant’s amendments/arguments filed 8/8/2025 mitigate the rejection of claims 6-12 made by the Examiner under 35 USC 112(d). This rejection is withdrawn.
Applicant’s amendment filed 8/8/2025 cancelling claims 6 and 8 renders moot the rejection of claims 6 and 8 made by the Examiner under 35 USC 103(a) Tomioka et al. (US 6383646) in view of Tan (CN 1521145).
Applicant’s arguments filed 8/8/2025 regarding the rejection of claims 1, 3, 4, 6-12 and 15 made by the Examiner under 35 USC 103(a) Tomioka et al. (US 6383646) in view of Tan (CN 1521145) have been fully considered but they are not found persuasive and is MAINTAINED for the reasons of record in the office action mailed on 4/18/2024.
In regards to the 103(a) rejection, Applicant asserts the following:
A) The claimed invention has surprisingly found that by varying the thickness of the top layer of the antimicrobial glaze impacts the antimicrobial properties and that modifying the layer thicknesses and ZnO content distribution results in better antimicrobial properties while maintaining surface quality.
In response to A, as observed in the previous action, Tomioka describes a sanitary ceramic products comprising a first glaze layer (base glaze layer) comprising:
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and a second glaze layer (top glaze layer) comprising:
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(see column 4) wherein the first glaze layer (base glaze layer) has a thickness from about 0.1 mm (100 microns) to 1.0 mm (1000 microns) (see column 4, lines 30-35)) and the second glaze layer (top glaze layer) has a thickness from about 0.1 mm (100 microns) to 1.0 mm (1000 microns) (see column 4, lines 30-35). The only shortcoming of Tomioka is that the reference does not teach the second glaze layer as comprising between 15-25 wt% ZnO. However, Tan is cited to show that ZnO can be used in sanitary glaze composition in an amount of 20-35% and it would have been obvious to modify Tomioka to comprise 20-35% ZnO with a reasonable expectation in producing a product having sanitary properties.
Applicant’s suggestion that Figure 2 demonstrates a surprising outcome is not considered persuasive. Figure 2 is reproduced below:
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It is observed that the base glaze layer (no ZnO) exhibits no antimicrobial activity, the 150 um layer comprising 10% ZnO demonstrated good antimicrobial activity and the 300 um layer comprising 10% demonstrated better antimicrobial activity than the 150 um layer. Perhaps the outcome that the 300 um outperformed the 150 um layer is significant but the outcome that the ZnO layers altogether outperform the base layer (no ZnO) is not surprising given ZnO is commonly employed for its antimicrobial benefit.
On the basis of being antimicrobial, this is not surprising. The prior art of Tomioka and Tan suggests ZnO as being a necessary component for antimicrobial activity. On the basis of the thickness modulating the antimicrobial activity, this is found to be somewhat surprising given the concentration of ZnO in both the 150 um and 300 um layers are equivalent (10%). However, there is nothing in the claim that reflects this outcome as the claimed ZnO containing second layer has a claimed thickness of 25-300 um thereby encompassing both the lesser and greater efficacious thickness per Figure 2.
Maintained Rejections, of Record
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103(a) are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 3, 4, 7, 9-12 and 15 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Tomioka et al. (US 6383646; published 5/7/2002, of record) in view of Tan (CN 1521145; translation provided; of record).
Tomioka teaches sanitary ceramic products comprising a first glaze layer (base glaze layer) comprising:
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and a second glaze layer (top glaze layer) comprising:
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(see column 4). ZnO is present in both layers (see instant claim 1, 3 and 4) wherein the base glaze layer comprises between 3-10% by weight ZnO and the top glaze layer comprises between 3-11% by weight ZnO (see instant claims 1, 3 and 4). Tomioka’s products are described as having excellent flatness and smoothness (i.e. substantially free of surface defects) (see instant claim 1).
The first coloring layer (base glaze layer) is to have a thickness from about 0.1 mm (100 microns) to 1.0 mm (1000 microns) (see column 4, lines 30-35) (see instant claims 6 and 7) and the second transparent glaze layer (top glaze layer) is to have a thickness from about 0.1 mm (100 microns) to 1.0mm (1000 microns) (see column 4, lines 30-35) (see instant claims 8-12). Regarding the obviousness of the first and second layer thickness, see MPEP 2144.05(I) which states that overlapping ranges are considered obvious.
The top glaze layer of Tomioka comprises ions such as silver and copper (see column 4, lines 35-40) (see instant claim 15).
Tomioka fails to teach their ceramic product wherein the top glaze layer comprises between 8-35% ZnO.
Tan describes a sanitary ceramic glaze composition which utilizes zinc oxide. The resulting glaze possess excellent strength and the ability to be used on sanitary wares (see abstract). Tan teaches that the sanitary glaze may comprise zinc oxide in an amount of 20-35% (see claim 1). Thus, it would have been obvious to modify Tomioka’s top glaze composition (which includes up to 11% zinc oxide) such that the zinc oxide of the outer glaze layer was present in an amount of between 20-35%, as taught by Tan, with a reasonable expectation for success in producing a glaze layer having sanitary properties and excellent strength. The combination of Tomioka and Tan effectively broadens the range which zinc oxide is known to be used in ceramic glaze layers for sanitary benefit. See MPEP 2144.05(I). Moreover, combining prior art elements according to known methods to yield predictable results is indicia of obviousness. See MPEP 2143(I)(A).
Regarding the ability of the ceramic material to inhibit greater than 3.0 log S. aureas relative to a sample having an identical base layer with no top layer, this property is 1) considered to be an intended use limitation and b) reflects the outcome of a composition that is suggested by the prior art. As the prior art suggests the same structure/composition as that claimed, it would be reasonable to expect similar properties absent some evidence to the contrary.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was made, as evidenced by the references, especially in absence of evidence to the contrary.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYLE A PURDY whose telephone number is (571)270-3504. The examiner can normally be reached from 9AM to 5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Bethany Barham, can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYLE A PURDY/Primary Examiner, Art Unit 1611
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