FINAL 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 .
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 01/04/2026 (2) have been considered by the examiner and initialed copies of the IDS are included with the mailing of this office action.
Terminal Disclaimer
The terminal disclaimer filed on 01/09/2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of reference Application No. 17323333 and U.S. Patent No(s). 12161977 and 12059653, has been reviewed and is accepted. The terminal disclaimer has been recorded.
Status of the Claims
This action is in response to papers filed 01/09/2026 in which claims 5, 16, 27, 29, and 32-35 were canceled; and claims 1, 13, 17, 28 and 36-38 were amended. All the amendments have been thoroughly reviewed and entered.
Claims 1-4, 6-15, 17-26, 28, 30-31, and 36-38 are under examination.
Withdrawn Objections/Rejections
The Examiner has re-weighted all the evidence of record. Any rejection and/or objection not specifically addressed below is hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set of rejections and/or objections presently being applied to the instant application.
New Rejection
Necessitated by Applicant’s Claim Amendments
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 17 is 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.
Regarding claim 17, the recitation of “through the one or more openings” in lines 13-14 of claim 17 renders the claim indefinite because there is lack of antecedent basis for “the one or more openings” in claim 17. It is unclear what “the one or more openings” is claim 17 referencing to, as the structure of claim 17 does not contain one or more openings.
As a result, claim 17 does not clearly set forth the metes and bounds of patent protection desired.
Maintained-Modified Rejections
Modification Necessitated by Applicant’s Claim Amendments
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 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.
Claim(s) 1-4, 6-12, 17-23, 25-26, and 36 is/are rejected under 35 U.S.C. 103 as being unpatentable over Eyster et al (US 2018/0050774 A1).
Regarding claims 1 and 17, Eyster teaches a device containing a flexible, water-permeable anti-fouling structure for placement onto a substrate (i.e., a boat propeller, support column and base of an oil rig or a portion of a buoy) that is exposed to aquatic environment, and embedded within the anti-fouling structure are agents that can diffuse out of the structure and prevent biofouling of the substrate stored in the aquatic environment (Abstract; [0002], [00017]-[0025], [0027]-[0053], [0055]-[0062], [0067], [0070]-[0073]; claims 1-30; Figs. 1-6, 7A-7B, 8A-8B, 9-13 and 23- 25). Eyster teaches the water-permeable anti-fouling structure comprising formable covering material containing one or more anti-fouling agents, wherein the cover has a front surface, an expandable body portion which is traversable between a first position and a second expanded position, an interior portion sized and shaped to enclose a substrate (i.e., a boat propeller, support column and base of an oil rig or a portion of a buoy) which is exposed to aquatic environment, and one or more securing members for securing said cover to said substrate, whereby securing of the substrate with said covering results in preventing the formation of biofouling along the surface of the substrate ([0017]-[0020]), thereby meeting “structure comprising at least one flexible sheet layer which is or becomes water permeable during use, said at least one flexible sheet layer substantially surrounding at least a portion of a periphery of the substrate in the aqueous environment, the at least one flexible sheet layer having an upper end at or near a surface of the aqueous environment and a lower end which extends downward into the aqueous environment to a first depth” and “said structure separates the aqueous environment into a local aqueous environment and an open aqueous environment, wherein the local aqueous environment extends from a surface of the substrate to at least an inner surface of the at least one vertically extending flexible sheet layer,” as recited in claims 1 and 17, respectively.
Eyster teaches the fabric is made from natural and synthetic fibers ([0057]-[0058]; claims 5-8 and 24-30). Eyster teaches the water-permeability of the anti-biofouling structure is due to a fenestrated or mesh arrangement of fibers of the covering material, wherein the fenestrated or mesh arrangement is a woven pattern comprising horizontal and vertical elements with spacing there between and wherein the fenestrated or mesh arrangement of fibers are made of natural fiber, synthetic fiber, plastic, metal, nylon, cotton, or any combination thereof ([0057]-[0058]; claims 5-8 and 24-30).
Eyster showed in Fig(s). 3, 4, 7A-7B, 8A-8B, and 9-11 of the anti-fouling structure as having a bottom edge bounding an open bottom which is partially open to the aquatic environment or one edge bounding an opening to the aqueous environment. As described above by Eyster and as shown in at least Fig(s) 3, 4, 7A-7B, and 8A-8B, the open bottom of Eyster is different from the plurality of pores of the mesh fabric, as the open bottom has a larger open surface area than a surface are of any one of the plurality of pores of the mesh fabric. As shown Fig(s). 3, 4, 7A-7B, 8A-8B, 9-11, and 23-25, Eyster described that the anti-fouling structure can constructed such that there is space between the anti-fouling structure and the substrate such as a “bag-like” cover or configuration. As shown in at least Fig(s) 3, 4, 7A-7B, 8A-8B, the open bottom in Fig(s) 3, 4, 7A-7B, 8A-8B, 9-11, and 23-25 of Eyster has a surface area that would encompass at least 2% of a total external surface area of the anti-fouling structure, and the open bottom forms a path in the aquatic environment around the anti-fouling structure leading toward the surface, as it is an open bottom and the anti-fouling structure also has pores due to the fabric having fenestrated or mesh arrangement of fibers.
It is noted that the structures “the at least one flexible sheet layer comprises a plurality of pores” of claim 1 or “the at least one flexible sheet layer comprises at least one of mesh, lattice, fenestration or pores” of claim 17 and “the structure comprising at least one bottom edge bound an open bottom which is spaced apart from the substrate and at least partially open to the aqueous environment, and wherein the open bottom has an open surface area that is at least 2% of a total external surface area of the structure” as recited in claim 1 or “the structure further comprising an opening that is spaced apart from the surface and has an open surface area that is at least 2% of a total external surface area of the structure, wherein the opening forms a path in the aqueous environment around the structure leading toward the surface” as recited in claim 17, has been taught supra by Eyster. Thus, the claimed intended function/result of “in addition to being able to flow through the plurality of pores of the at least one flexible sheet layer, the fluid is also able to flow around the edge of the structure toward the substate, opening and toward the substrate” as recited in claim 1 and the claimed intended function/result of “fluid from the aqueous environment is able to flow around the structure, through the one or more openings, and toward the surface without having to pass through the at least one of mesh, fenestration or pores of the at least one flexible sheet layer” as recited in claim 17, are implicitly in the structurally same structures from Eyster supra.
Furthermore, since the structures of the device of claim 1 has been taught by Eyster supra, it would have been reasonably obvious that the device of Eyster being substantially the same in structure as the device of the claimed invention would also implicitly provide “an average water exchange of about 0.1% to 500% of a volume of water each hour between the local aqueous environment and the open aqueous environment” as claimed because as discussed above, Eyster teaches that the anti-fouling structure contains a flexible water-permeable covering material.
Thus, it is noted that [w]here the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, the prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product. In re Best, 562 F.2d at 1255, 195 USPQ at 433. See also Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985).
Regarding claims 2-3, as discussed above, Eyster teaches the water-permeable anti-fouling structure comprising formable covering material containing one or more anti-fouling agents that can diffuse out of the structure and prevent the formation and/or accumulation of plant and animal species build-up that creates biofouling, wherein the cover has a front surface, an expandable body portion which is traversable between a first position and a second expanded position, an interior portion sized and shaped to enclose a substrate (i.e., a boat propeller, support column and base of an oil rig or a portion of a buoy) which is exposed to aquatic environment, and one or more securing members for securing said cover to said substrate, whereby securing of the substrate with said covering results in preventing the formation of biofouling along the surface of the substrate (Abstract; [0002], [00017]-[0025], [0027]-[0053], [0055]-[0062], [0070]-[0073]; claims 1-30; Figs. 1-6, 7A-7B, 8A-8B, 9-13 and 23- 25), thereby the lowest point of the substrate of Eyster would extend a second depth into the aqueous environment, and the first depth is greater than the second depth of claim 2, as well as, the substrate of Eyster would extend into the aqueous environment to a second depth, and the first depth is less than or equals to the second depth of claim 3.
Regarding claim 4, Eyster teaches the flexible, water-permeable covering material contains a water permeable fabric ([0057]-[0058]; claims 5-8 and 24-30).
Regarding claim 6, Eyster teaches the flexible, water-permeable covering material has a tightly knit, weaved pattern with little or no spacing in between, or the fenestrated or mesh arrangement of the covering material is a woven pattern comprising horizontal and vertical elements with spacing there between ([0057]-[0058]; claims 5-8 and 24-30), and thus, it would have been reasonably obvious that the water-permeable covering material of Eyster would implicitly ”maintains a dissolved oxygen content of a liquid within the local aqueous environment of at least an average of 10% or greater” as claimed because [w]here the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, the prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product. In re Best, 562 F.2d at 1255, 195 USPQ at 433. See also Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985).
Regarding claim 7, Eyster teaches the water-permeable anti-fouling structure comprising formable covering material containing one or more anti-fouling agents that can diffuse out of the structure and prevent the formation and/or accumulation of plant and animal species build-up that creates biofouling, wherein the cover has a front surface, an expandable body portion which is traversable between a first position and a second expanded position, an interior portion sized and shaped to enclose a substrate (i.e., a boat propeller, support column and base of an oil rig or a portion of a buoy) which is exposed to aquatic environment, and one or more securing members for securing said cover to said substrate, whereby securing of the substrate with said covering results in preventing the formation of biofouling along the surface of the substrate (Abstract; [0002], [00017]-[0025], [0027]-[0053], [0055]-[0062], [0070]-[0073]; claims 1-30; Figs. 1-6, 7A-7B, 8A-8B, 9-13 and 23- 25), thereby the water chemistry within the local aqueous environment (aqueous environment between substrate and the cover of water-permeable structure) would be different than the water chemistry within an open aqueous environment (aqueous environment on the other side of the water-permeable structure that is not facing the facing).
Regarding claim 8, Eyster teaches the water-permeable anti-fouling structure comprising formable covering material containing one or more anti-fouling agents that can diffuse out of the structure and prevent the formation and/or accumulation of plant and animal species build-up that creates biofouling, wherein the cover has a front surface, an expandable body portion which is traversable between a first position and a second expanded position, an interior portion sized and shaped to enclose a substrate (i.e., a boat propeller, support column and base of an oil rig or a portion of a buoy) which is exposed to aquatic environment, and one or more securing members for securing said cover to said substrate, whereby securing of the substrate with said covering results in preventing the formation of biofouling along the surface of the substrate (Abstract; [0002], [00017]-[0025], [0027]-[0053], [0055]-[0062], [0070]-[0073]; claims 1-30; Figs. 1-6, 7A-7B, 8A-8B, 9-13 and 23- 25), thereby the ratio of a surface area of the water-permeable structure to the volume of the water within the local aqueous environment would implicitly be about 0.4 feet-1 to about 800 feet-1 upon positioning the structure about the substrate, absence of evidence to the contrary.
Regarding claim 9, Eyster teaches the water-permeable structure contains a biocide ([0059], [0068], [0070], [0073]; claims 2 and 23).
Regarding claim 10, Eyster teaches the water-permeable anti-fouling structure comprising formable covering material containing one or more anti-fouling agents that can diffuse out of the structure and prevent the formation and/or accumulation of plant and animal species build-up that creates biofouling, wherein the cover has a front surface, an expandable body portion which is traversable between a first position and a second expanded position, an interior portion sized and shaped to enclose a substrate (i.e., a boat propeller, support column and base of an oil rig or a portion of a buoy) which is exposed to aquatic environment, and one or more securing members for securing said cover to said substrate, whereby securing of the substrate with said covering results in preventing the formation of biofouling along the surface of the substrate (Abstract; [0002], [00017]-[0025], [0027]-[0053], [0055]-[0062], [0070]-[0073]; claims 1-30; Figs. 1-6, 7A-7B, 8A-8B, 9-13 and 23- 25), thereby the water-permeable structure of Eyster defines a top which is at least partially open, as the water-permeable structure covers the surrounding of the substrate such as enclosing a boat propeller, support column and base of an oil rig or a portion of a buoy.
Regarding claim 11, Eyster teaches the water-permeable anti-fouling structure comprising formable covering material containing one or more anti-fouling agents that can diffuse out of the structure and prevent the formation and/or accumulation of plant and animal species build-up that creates biofouling, wherein the cover has a front surface, an expandable body portion which is traversable between a first position and a second expanded position, an interior portion sized and shaped to enclose a substrate (i.e., a boat propeller, support column and base of an oil rig or a portion of a buoy) which is exposed to aquatic environment, and one or more securing members for securing said cover to said substrate, whereby securing of the substrate with said covering results in preventing the formation of biofouling along the surface of the substrate (Abstract; [0002], [00017]-[0025], [0027]-[0053], [0055]-[0062], [0070]-[0073]; claims 1-30; Figs. 1-6, 7A-7B, 8A-8B, 9-13 and 23- 25), thereby the device of Eyster contains “an aqueous flow mechanism that is positioned within the local aqueous environment, wherein the aqueous flow mechanism is configured to at least one of disturb the local aqueous environment or add or remove liquid, compounds or other materials to or from the local aqueous environment” as recited by claim 11, as the water-permeable structure prevents the formation and/or accumulation of plant and animal species build-up on the substrate.
Regarding claim 12, Eyster teaches the water-permeable anti-fouling structure comprising formable covering material containing one or more anti-fouling agents that can diffuse out of the structure and prevent the formation and/or accumulation of plant and animal species build-up that creates biofouling, wherein the cover has a front surface, an expandable body portion which is traversable between a first position and a second expanded position, an interior portion sized and shaped to enclose a substrate (i.e., a boat propeller, support column and base of an oil rig or a portion of a buoy) which is exposed to aquatic environment, and one or more securing members for securing said cover to said substrate (Abstract; [0002], [00017]-[0025], [0027]-[0053], [0055]-[0062], [0070]-[0073]; claims 1-30; Figs. 1-6, 7A-7B, 8A-8B, 9-13 and 23- 25), thereby the device of Eyster contains a modification compound that is positioned within the local aqueous environment, wherein the modification compound is configured to condition the local aqueous environment by applying a change in water chemistry of the local aqueous environment” as recited in claim 12, as the water-permeable structure of Eyster diffuses the anti-fouling agent into the water so as to maintain the effective prevention of attachment of aquatic organism to the substrate.
Regarding claim 18, Eyster teaches a device containing a flexible, water-permeable anti-fouling structure for placement onto a substrate (i.e., a boat propeller, support column and base of an oil rig or a portion of a buoy) that is exposed to aquatic environment, and embedded within the anti-fouling structure are agents that can diffuse out of the structure and prevent biofouling of the substrate stored in the aquatic environment (Abstract; [0002], [00017]-[0025], [0027]-[0053], [0055]-[0062], [0070]-[0073]; claims 1-30; Figs. 1-6, 7A-7B, 8A-8B, 9-13 and 23- 25). It is noted that a boat propeller, support column and base of an oil rig or a portion of a buoy is a floatable device.
Regarding claim 19, Eyster teaches the device further contains one or more attachment features ([0060]-[0073]).
Regarding claim 20, Eyster teaches the water-permeable anti-fouling structure is in the form of a skirt (Figs. 7A-7B, 8A-8B, 9-13 and 23- 25).
Regarding claim 21, Eyster teaches a device containing a flexible, water-permeable anti-fouling structure for placement onto a substrate (i.e., a boat propeller, support column and base of an oil rig or a portion of a buoy) that is exposed to aquatic environment, and embedded within the anti-fouling structure are agents that can diffuse out of the structure and prevent biofouling of the substrate stored in the aquatic environment (Abstract; [0002], [00017]-[0025], [0027]-[0053], [0055]-[0062], [0070]-[0073]; claims 1-30; Figs. 1-6, 7A-7B, 8A-8B, 9-13 and 23- 25).
Regarding claims 22, 23, and 26, as discussed above, Eyster teaches the anti-fouling structure is a flexible fabric. Thus, the structures of claim 17 and 22 have been structurally taught by Eyster supra. As such, the limitation of “wherein, when the structure at least partially surrounds the surface in the aqueous environment such that the first side of the structure faces the surface, the structure allows fluid exchange through the structure to the surface while preventing or limiting biofouling on the surface such that a first chemistry of the aqueous environment between the surface and the first side of the structure is different than a second chemistry of the aqueous environment outside the second side of the structure wherein the first chemistry is measured in the aqueous environment proximate the surface, wherein the second chemistry is measured in the aqueous environment at a spaced apart distance from the second side of the structure facing away from the surface” as recited in claim 22 and “wherein the spaced apart distance from the second side of the structure is 12 inches” as recited in claim 26 (dependent from claim 22), are conditional clauses/limitations which merely describe how the structure is used and “when” it is used is conditional and does not need to be performed. See MPHJ Tech. Invs., LLC v. Ricoh Ams. Corp., 847 F.3d 1363, 1379 (Fed. Cir. 2017). In MPFIJ, Judge O’Malley opined that “a “wherein” clause invoking certain protocols “when” a certain application was used is a “conditional, nonlimiting, non-specific clause that [did] not narrow the claim.” Id. at 1379. Since the anti-fouling structure of Eyster is substantially the same in structure as the structure of the claimed invention, it is presumed that “when” the anti-fouling structure of Eyster is “at least partially surrounds the surface in the aqueous environment such that the first side of the structure faces the surface,” the substantially the same anti-fouling structure of Eyster would be expected to behave in the same manner in which “the structure allows fluid exchange through the structure to the surface while preventing or limiting biofouling on the surface such that a first chemistry of the aqueous environment between the surface and the first side of the structure is different than a second chemistry of the aqueous environment outside the second side of the structure wherein the first chemistry is measured in the aqueous environment proximate the surface, wherein the second chemistry is measured in the aqueous environment at a spaced apart distance from the second side of the structure facing away from the surface, and wherein the spaced apart distance from the second side of the structure is 12 inches” as claimed. Furthermore, Eyster being substantially the same in structure as the structure of claim 22 would also function to “modulate dissolved oxygen content between the second side and the first side” as claimed in claim 23. This is because, as discussed above, Eyster teaches the water-permeable anti-fouling structure comprising formable covering material (a flexible meshed fabric) containing one or more anti-fouling agents that can diffuse out of the structure and prevent the formation and/or accumulation of plant and animal species build-up that creates biofouling, wherein the cover has a front surface, an expandable body portion which is traversable between a first position and a second expanded position, an interior portion sized and shaped to enclose a substrate (i.e., a boat propeller, support column and base of an oil rig or a portion of a buoy) which is exposed to aquatic environment, and one or more securing members for securing said cover to said substrate, whereby securing of the substrate with said covering results in preventing the formation of biofouling along the surface of the substrate (Abstract; [0002], [00017]-[0025], [0027]-[0053], [0055]-[0062], [0070]-[0073]; claims 1-30; Figs. 1-6, 7A-7B, 8A-8B, 9-13 and 23- 25). Thus, it is noted that [w]here the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, the prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product. In re Best, 562 F.2d at 1255, 195 USPQ at 433. See also Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985).
Regarding claim 25, Eyster teaches the water-permeable structure contains a biocide ([0059], [0068], [0070], [0073]; claims 2 and 23).
Regarding claim 36, Eyster teaches the anti-fouling structure is in the form of a skirt that surrounds the substrate (Figs. 7A-7B, 8A-8B, 9-13 and 23- 25).
From the teachings of the reference, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of Applicant’s invention, as evidenced by the reference, especially in the absence of evidence to the contrary.
Claim(s) 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Eyster et al (US 2018/0050774 A1), as applied to claim 17 above, and further in view of Le Buzit (US 2013/0139744 A1).
The device of claim 17 is discussed above, said discussion being incorporated herein in its entirety.
However, Eyster does not teach the structure comprises a plurality of flexible sheet layers, wherein at least one of the plurality of flexible sheet layers is removeable from a remaining set of the plurality of flexible sheet layers of claim 24.
Regarding claim 24, Le Buzit teaches a device for protecting a submerged surface such as a ship hull, the device comprising upper emerged portion (1) and a lower submerge portion (2), wherein the submerged portion (2) is made of a flexible and water-permeable material that contains a plurality of layers of separate materials (Abstract; [0001]-[0002], and [0011]-[0078]; Figs. 1-31; claims 1-15). Le Buzit teaches the submerged portion (2) contains plurality of holes to let through or diffuse a fluid ([0062] and [0078]). Le Buzit teaches the submerged portion (2) is formed from sheets and films made from natural and synthetic fibers ([0047]-[0077]). Le Buzit teaches the submerged portion (2) contains several films of materials the properties of which are identical or not, cleavable or strippable, peelable, films adhering together with the appearance of a single film comprised of several easily separable layers, providing a way to remove and recycle a layer as soon as it is deteriorated or covered with aquatic organisms ([0070]). Le Buzit teaches the submerged portion (2) contains plurality of holes to let through or diffuse a fluid ([0062] and [0078]).
It would have been obvious to one of ordinary skill in the art to modify the anti-fouling structure of Eyster to a multilayer or to contain plurality of layers, and produce the claimed invention. One of ordinary skill in the art would have been motivated to do so because Le Buzit teaches that the anti-fouling structure for protecting a portion of an object such as a ship or boat from fouling can be constructed as a multilayer in which the anti-fouling structure comprised of several easily separable layers, providing a way to remove and recycle a layer as soon as it is deteriorated or covered with aquatic organisms. Thus, an ordinary artisan seeking to produce a protective covering that provide a way to remove and recycle a layer as soon as it is deteriorated or covered with aquatic organisms, would have looked to modifying the anti-fouling structure of Eyster to a multilayer or to contain plurality of layers, per guidance from Le Buzit, and produce Applicant’s claimed invention with reasonable expectation of success.
From the teachings of the reference, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of Applicant’s invention, as evidenced by the reference, especially in the absence of evidence to the contrary.
Claim(s) 13-15, 28, 30-31, 37, and 38 is/are rejected under 35 U.S.C. 103 as being unpatentable over Eyster et al (US 2018/0050774 A1) in view of Le Buzit (US 2013/0139744 A1).
Regarding claims 13 and 28, Eyster teaches a device containing a flexible, water-permeable anti-fouling structure for placement onto a substrate (i.e., a boat propeller, support column and base of an oil rig or a portion of a buoy) that is exposed to aquatic environment, and embedded within the anti-fouling structure are agents that can diffuse out of the structure and prevent biofouling of the substrate stored in the aquatic environment (Abstract; [0002], [00017]-[0025], [0027]-[0053], [0055]-[0062], [0067], [0070]-[0073]; claims 1-30; Figs. 1-6, 7A-7B, 8A-8B, 9-13 and 23- 25). Eyster teaches the water-permeable anti-fouling structure comprising formable covering material containing one or more anti-fouling agents, wherein the cover has a front surface, an expandable body portion which is traversable between a first position and a second expanded position, an interior portion sized and shaped to enclose a substrate (i.e., a boat propeller, support column and base of an oil rig or a portion of a buoy) which is exposed to aquatic environment, and one or more securing members for securing said cover to said substrate, whereby securing of the substrate with said covering results in preventing the formation of biofouling along the surface of the substrate ([0017]-[0020]), “structure comprising at least one flexible sheet layer which is or becomes water permeable during use, said at least one flexible sheet layer substantially surrounding at least a portion of a periphery of the substrate in the aqueous environment, the at least one flexible sheet layer having an upper end at or near a surface of the aqueous environment and a lower end which extends downward into the aqueous environment to a first depth” and “said structure separates the aqueous environment into a local aqueous environment and an open aqueous environment, wherein the local aqueous environment extends from a surface of the substrate to at least an inner surface of the at least one vertically extending flexible sheet layer,” as recited in claims 1 and 17, respectively.
Eyster teaches the fabric is made from natural and synthetic fibers ([0057]-[0058]; claims 5-8 and 24-30). Eyster teaches the water-permeability of the anti-biofouling structure is due to a fenestrated or mesh arrangement of fibers of the covering material, wherein the fenestrated or mesh arrangement is a woven pattern comprising horizontal and vertical elements with spacing there between and wherein the fenestrated or mesh arrangement of fibers are made of natural fiber, synthetic fiber, plastic, metal, nylon, cotton, or any combination thereof ([0057]-[0058]; claims 5-8 and 24-30).
Eyster showed in Fig(s). 3, 4, 7A-7B, 8A-8B, and 9-11 of the anti-fouling structure as having a bottom edge bounding an open bottom which is partially open to the aquatic environment or one edge bounding an opening to the aqueous environment. As described above by Eyster and as shown in at least Fig(s) 3, 4, 7A-7B, and 8A-8B, the open bottom of Eyster is different from the plurality of pores of the mesh fabric, as the open bottom has a larger open surface area than a surface are of any one of the plurality of pores of the mesh fabric. As shown in at least Fig(s) 3 and 4, the surface area of the mesh fabric is less than or at least equal to the a surface are of the substrate (i.e., a boat propeller, support column and base of an oil rig or a portion of a buoy). Also see Fig(s). 6, 7A-7B, 8A-8B of Eyster which also show the surface area of the mesh fabric is less than or at least equal to the a surface are of the substrate. As shown Fig(s). 3, 4, 7A-7B, 8A-8B, 9-11, and 23-25, Eyster described that the anti-fouling structure can constructed such that there is space between the anti-fouling structure and the substrate such as a “bag-like” cover or configuration. As shown in at least Fig(s) 3, 4, 7A-7B, 8A-8B, the open bottom in Fig(s) 3, 4, 7A-7B, 8A-8B, 9-11, and 23-25 of Eyster has a surface area that would encompass at least 2% of a total external surface area of the anti-fouling structure.
It is noted that the structures “the each of the plurality of flexible sheets comprises a plurality of pores” of claim 13 or “the each of the plurality of flexible sheets comprises at least one of mesh, lattice, fenestration, or pores” of claim 28 and “the structure comprises at least one edge spaced apart from the substrate and bounding an opening to the aqueous environment, wherein the opening has an open surface area that is at least 2% of a total external surface area of the structure” as recited in claim 13 or “the structure comprises at least one bottom edge spaced apart from the substrate and bounding a first opening to the aqueous environment, wherein the first opening has an open surface area that is at least 2% of a total external surface area of the structure” as recited in claim 28, has been taught supra by Eyster. Thus, the claimed intended function/result of “in addition to being able to flow through the plurality of pores of the flexible sheet layer, the fluid is also able to flow around the edge of the structure, through the opening and toward the substrate” as recited in claim 13 and the claimed intended function/result of “in addition to flowing through the at least one of mesh, lattice, fenestration, or pores of the flexible sheet layer, the fluid is also able to flow around the bottom edge of the structure toward the substrate” as recited in claim 28, are implicitly in the structurally same structures from Eyster supra.
Thus, it is noted that [w]here the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, the prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product. In re Best, 562 F.2d at 1255, 195 USPQ at 433. See also Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985).
While Eyster does not expressly teach the anti-fouling structure is composed of a plurality of flexible sheets of claims 13 and 28, such plurality of flexible sheets would have been obvious in view of the teachings from Le Buzit.
Le Buzit teaches a device for protecting a submerged surface such as a ship hull, the device comprising upper emerged portion (1) and a lower submerge portion (2), wherein the submerged portion (2) is made of a flexible and water-permeable material that contains a plurality of layers of separate materials (Abstract; [0001]-[0002], and [0011]-[0078]; Figs. 1-31; claims 1-15). Le Buzit teaches the submerged portion (2) contains plurality of holes to let through or diffuse a fluid ([0062] and [0078]). Le Buzit teaches the submerged portion (2) is formed from sheets and films made from natural and synthetic fibers ([0047]-[0077]). Le Buzit teaches the submerged portion (2) contains several films of materials the properties of which are identical or not, cleavable or strippable, peelable, films adhering together with the appearance of a single film comprised of several easily separable layers, providing a way to remove and recycle a layer as soon as it is deteriorated or covered with aquatic organisms ([0070]). Le Buzit teaches the submerged portion (2) contains plurality of holes to let through or diffuse a fluid ([0062] and [0078]).
It would have been obvious to one of ordinary skill in the art to modify the anti-fouling structure of Eyster to a multilayer or to contain plurality of layers, and produce the claimed invention. One of ordinary skill in the art would have been motivated to do so because Le Buzit teaches that the anti-fouling structure for protecting a portion of an object such as a ship or boat from fouling can be constructed as a multilayer in which the anti-fouling structure comprised of several easily separable layers, providing a way to remove and recycle a layer as soon as it is deteriorated or covered with aquatic organisms. Thus, an ordinary artisan seeking to produce a protective covering that provide a way to remove and recycle a layer as soon as it is deteriorated or covered with aquatic organisms, would have looked to modifying the anti-fouling structure of Eyster to a multilayer or to contain plurality of layers, per guidance from Le Buzit, and produce Applicant’s claimed invention with reasonable expectation of success.
Regarding claims 14 and 15, Eyster teaches the water-permeable anti-fouling structure comprising formable covering material containing one or more anti-fouling agents that can diffuse out of the structure and prevent the formation and/or accumulation of plant and animal species build-up that creates biofouling, wherein the cover has a front surface, an expandable body portion which is traversable between a first position and a second expanded position, an interior portion sized and shaped to enclose a substrate (i.e., a boat propeller, support column and base of an oil rig or a portion of a buoy) which is exposed to aquatic environment, and one or more securing members for securing said cover to said substrate, whereby securing of the substrate with said covering results in preventing the formation of biofouling along the surface of the substrate (Abstract; [0002], [00017]-[0025], [0027]-[0053], [0055]-[0062], [0070]-[0073]; claims 1-30; Figs. 1-6, 7A-7B, 8A-8B, 9-13 and 23- 25).Thus, the lowest point of the substrate of Eyster would extend a second depth into the aqueous environment, and the first depth is greater than the second depth of claim 14, as well as, the substrate of Eyster would extend into the aqueous environment to a second depth, and the first depth is less than or equals to the second depth of claim 15. Le Buzit shows the lower end of submerged portion (2) extends downward into the aqueous environment to a first depth, wherein a lowest point of the submerged portion (2) extends to a second depth into the aqueous environment, and the first depth is greater than, less than or equals to the second depth (Figs. 1-31), thereby the lowest point of the substrate of Shimizu would extend a second depth into the aqueous environment, and the first depth is greater than the second depth of claim 14, as well as, the substrate of Shimizu would extend into the aqueous environment to a second depth, and the first depth is less than or equals to the second depth of claim 15.
Regarding claims 30 and 31, Eyster teaches the water-permeable anti-fouling structure comprising formable covering material containing one or more anti-fouling agents that can diffuse out of the structure and prevent the formation and/or accumulation of plant and animal species build-up that creates biofouling, wherein the cover has a front surface, an expandable body portion which is traversable between a first position and a second expanded position, an interior portion sized and shaped to enclose a substrate (i.e., a boat propeller, support column and base of an oil rig or a portion of a buoy) which is exposed to aquatic environment, and one or more securing members for securing said cover to said substrate, whereby securing of the substrate with said covering results in preventing the formation of biofouling along the surface of the substrate (Abstract; [0002], [00017]-[0025], [0027]-[0053], [0055]-[0062], [0070]-[0073]; claims 1-30; Figs. 1-6, 7A-7B, 8A-8B, 9-13 and 23- 25). Thus, the lowest point of the substrate of Eyster would extend a second depth into the aqueous environment, and the first depth is greater than the second depth of claim 30, as well as, the substrate of Eyster would extend into the aqueous environment to a second depth, and the first depth is less than or equals to the second depth of claim 31. Le Buzit shows the lower end of submerged portion (2) extends downward into the aqueous environment to a first depth, wherein a lowest point of the submerged portion (2) extends to a second depth into the aqueous environment, and the first depth is greater than, less than or equals to the second depth (Figs. 1-31), thereby the lowest point of the substrate of Shimizu would extend a second depth into the aqueous environment, and the first depth is greater than the second depth of claim 30, as well as, the substrate of Shimizu would extend into the aqueous environment to a second depth, and the first depth is less than or equals to the second depth of claim 31.
Regarding claim 37 and 38, Eyster teaches the anti-fouling structure is in the form of a skirt that surrounds the substrate (Figs. 7A-7B, 8A-8B, 9-13 and 23- 25).
From the teachings of the reference, it is apparent that one of ordinary skill in the art would have had a reasonable expectation of success in producing the claimed invention. Therefore, the invention as a whole was prima facie obvious to one of ordinary skill in the art before the effective filing date of Applicant’s invention, as evidenced by the reference, especially in the absence of evidence to the contrary.
Response to Arguments
Applicant's arguments filed 01/09/2026 have been fully considered but they are not persuasive.
Applicant argues the device of Eyster is sealed to the propeller at its edge and is not spaced apart. (Remarks, page 12, last paragraph to top of page 13).
In response, the Examiner disagrees. As discussed above in the pending 103 rejection, Eyster teaches the anti-fouling structure can be constructed such that there is some space between the anti-fouling structure and the substrate. As discussed above in the pending 103 rejection, . As shown Fig(s). 3, 4, 7A-7B, 8A-8B, 9-11, and 23-25, Eyster described that the anti-fouling structure can constructed such that there is space between the anti-fouling structure and the substrate such as a “bag-like” cover or configuration. As shown in at least Fig(s) 3, 4, 7A-7B, 8A-8B, the open bottom in Fig(s) 3, 4, 7A-7B, 8A-8B, 9-11, and 23-25 of Eyster has a surface area that would encompass at least 2% of a total external surface area of the anti-fouling structure.
Applicant argues:
“the limitation "...wherein the open bottom has an open surface area that is at least 2% of a total external surface area of the structure,..." more clearly defines the size of the opening and structurally differentiates the open bottom from the pores, which structure is similarly not present in Eyster. The structures in Eyster (e.g., propeller socks, bag-like covers) are designed to fit snugly around objects, and Eyster does not teach or suggest structures with large openings (at least 2% of total external surface area) that are structurally distinct from the pores of the permeable material. Applicant further notes that the Examiner's identification of "open bottoms" in Eyster's Figures 3 and 4 is incorrect - these figures show structures designed to enclose propellers, not structures with intentionally large openings for creating dual-path fluid exchange systems. Finally, Applicant notes that the claimed structures require both (1) porous material with small pores for fluid exchange, and (2) separate large openings (at least 2% of total external surface area) that provide an alternative path (e.g., a dual path) for fluid flow.” (Remarks, page 13).
In response, the Examiner disagrees. As discussed above in the pending 103 rejection, as described in Eyster and shown in at least Fig(s) 3, 4, 7A-7B, and 8A-8B, the open bottom of Eyster is different from the plurality of pores of the mesh fabric, as the open bottom has a larger open surface area than a surface are of any one of the plurality of pores of the mesh fabric. As shown Fig(s). 3, 4, 7A-7B, 8A-8B, 9-11, and 23-25, Eyster described that the anti-fouling structure can constructed such that there is space between the anti-fouling structure and the substrate such as a “bag-like” cover or configuration. As shown in at least Fig(s) 3, 4, 7A-7B, 8A-8B, the open bottom in Fig(s) 3, 4, 7A-7B, 8A-8B, 9-11, and 23-25 of Eyster has a surface area that would encompass at least 2% of a total external surface area of the anti-fouling structure, and the open bottom forms a path in the aquatic environment around the anti-fouling structure leading toward the surface, as it is an open bottom and the anti-fouling structure also has pores due to the fabric having fenestrated or mesh arrangement of fibers.
Thus, as discussed in the pending 103 rejection, it is reiterated that the structures “the at least one flexible sheet layer comprises a plurality of pores” of claim 1 or “the at least one flexible sheet layer comprises at least one of mesh, lattice, fenestration or pores” of claim 17 and “the structure comprising at least one bottom edge bound an open bottom which is spaced apart from the substrate and at least partially open to the aqueous environment, and wherein the open bottom has an open surface area that is at least 2% of a total external surface area of the structure” as recited in claim 1 or “the structure further comprising an opening that is spaced apart from the surface and has an open surface area that is at least 2% of a total external surface area of the structure, wherein the opening forms a path in the aqueous environment around the structure leading toward the surface” as recited in claim 17, has been taught supra by Eyster. Thus, the claimed intended function/result of “in addition to being able to flow through the plurality of pores of the at least one flexible sheet layer, the fluid is also able to flow around the edge of the structure toward the substate, opening and toward the substrate” as recited in claim 1 and the claimed intended function/result of “fluid from the aqueous environment is able to flow around the structure, through the one or more openings, and toward the surface without having to pass through the at least one of mesh, fenestration or pores of the at least one flexible sheet layer” as recited in claim 17, are implicitly in the structurally same structures from Eyster supra.
As discussed in the pending 103 rejection, [w]here the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, the prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product. In re Best, 562 F.2d at 1255, 195 USPQ at 433. See also Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985). As such, Applicant alleged feature of “dual-path fluid exchange systems” would have been implicitly in the structurally same structures from Eyster supra, absence of evidence to the contrary.
Applicant argues:
“the device described in Le Buzit discloses a shell with emerged and submerged portions, where the submerged portion may be permeable with "plurality of holes of less than 4 mm2,..." (Le Buzit, paragraph [0058]). These small holes are perforations in the material itself, not large structural openings. Le Buzit does not teach or suggest structures with large openings (at least 2% of total external surface area) that are separate from and larger than the pores of the permeable material.” (Remarks, bottom of page 13).
In response, the Examiner disagrees. As discussed above, as described in Eyster and shown in at least Fig(s) 3, 4, 7A-7B, and 8A-8B, the open bottom of Eyster is different from the plurality of pores of the mesh fabric, as the open bottom has a larger open surface area than a surface are of any one of the plurality of pores of the mesh fabric. As shown Fig(s). 3, 4, 7A-7B, 8A-8B, 9-11, and 23-25, Eyster described that the anti-fouling structure can constructed such that there is space between the anti-fouling structure and the substrate such as a “bag-like” cover or configuration. As shown in at least Fig(s) 3, 4, 7A-7B, 8A-8B, the open bottom in Fig(s) 3, 4, 7A-7B, 8A-8B, 9-11, and 23-25 of Eyster has a surface area that would encompass at least 2% of a total external surface area of the anti-fouling structure.
Applicant argues:
“the combination of Eyster and Le Buzit does not teach or suggest the claimed structural features (porous material plus separate large openings) or the functional relationships (dual-path fluid exchange enabling creation of differentiated aqueous environment). The amended claims now explicitly recite that the opening (or open bottom) has a minimum size of at least 2% of total external surface area and that the structure provides water exchange through both the pores and the separate large opening. This dual-path system with the claimed water exchange characteristics is not taught or suggested by Eyster or Le Buzit, either alone or in combination.” (Remarks, bottom of page 13 to page 14).
In response, the Examiner disagrees. As discussed above, as described in Eyster and shown in at least Fig(s) 3, 4, 7A-7B, and 8A-8B, the open bottom of Eyster is different from the plurality of pores of the mesh fabric, as the open bottom has a larger open surface area than a surface are of any one of the plurality of pores of the mesh fabric. As shown Fig(s). 3, 4, 7A-7B, 8A-8B, 9-11, and 23-25, Eyster described that the anti-fouling structure can constructed such that there is space between the anti-fouling structure and the substrate such as a “bag-like” cover or configuration. As shown in at least Fig(s) 3, 4, 7A-7B, 8A-8B, the open bottom in Fig(s) 3, 4, 7A-7B, 8A-8B, 9-11, and 23-25 of Eyster has a surface area that would encompass at least 2% of a total external surface area of the anti-fouling structure, and the open bottom forms a path in the aquatic environment around the anti-fouling structure leading toward the surface, as it is an open bottom and the anti-fouling structure also has pores due to the fabric having fenestrated or mesh arrangement of fibers.
Thus, as discussed in the pending 103 rejection, it is reiterated that the structures “the at least one flexible sheet layer comprises a plurality of pores” of claim 1 or “the at least one flexible sheet layer comprises at least one of mesh, lattice, fenestration or pores” of claim 17 and “the structure comprising at least one bottom edge bound an open bottom which is spaced apart from the substrate and at least partially open to the aqueous environment, and wherein the open bottom has an open surface area that is at least 2% of a total external surface area of the structure” as recited in claim 1 or “the structure further comprising an opening that is spaced apart from the surface and has an open surface area that is at least 2% of a total external surface area of the structure, wherein the opening forms a path in the aqueous environment around the structure leading toward the surface” as recited in claim 17, has been taught supra by Eyster. Thus, the claimed intended function/result of “in addition to being able to flow through the plurality of pores of the at least one flexible sheet layer, the fluid is also able to flow around the edge of the structure toward the substate, opening and toward the substrate” as recited in claim 1 and the claimed intended function/result of “fluid from the aqueous environment is able to flow around the structure, through the one or more openings, and toward the surface without having to pass through the at least one of mesh, fenestration or pores of the at least one flexible sheet layer” as recited in claim 17, are implicitly in the structurally same structures from Eyster supra.
As discussed in the pending 103 rejection, [w]here the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, the prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed product. In re Best, 562 F.2d at 1255, 195 USPQ at 433. See also Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985). As such, Applicant alleged feature of “dual-path fluid exchange systems” would have been implicitly in the structurally same structures from Eyster supra, absence of evidence to the contrary.
It is also noted that the limitations as amended in independent claims 13 and 28 remained to be taught and rendered obvious by the combined teachings of Eyster and Le Buzit in the pending 103 rejection as set forth on pages 19-24 of this office action, said pages being incorporated herein in its entirety.
As a result, for at least the reasons discussed above, claims 1-4, 6-15, 17-26, 28, 30-31, and 36-38 remained rejected as being obvious and unpatentable over the cited prior art(s) in the pending 103 rejections as set forth in this office action.
Conclusion
No claim is allowed.
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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/DOAN T PHAN/ Primary Examiner, Art Unit 1613
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