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 .
Status of Claims
Claims 1, 3-10, 12, 15, and 17-25 are pending and currently under consideration for patentability.
Claims 19-24 have been withdrawn.
Claims 2, 11, 13-14, and 16 were previously cancelled.
Claim 1 is newly amended.
Response to Arguments
Applicant's arguments filed 3/11/2026 have been fully considered but they are not persuasive.
In response to the argument that Smith in view of Triva fail to teach and wherein the one or more outer layers having pore sizes in the range of 20 nanometer to 5 microns.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have one or more outer layers having pore sizes in the range of 20 nanometer to 5 microns in order to fit the particular procedure being done since this claimed dimension of the pore size is non-critical . Since applicant has not given any criticality to why the dimension disclosed has any importance to the function of the claimed device (see page 5, lines 13-15 of applicants specification), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777.
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 (i.e., changing from AIA to pre-AIA ) 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.
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, 4-7, 9, 10, 15, 17, and 25 are rejected under 35 U.S.C. 103 as being unpatentable over by Smith (US 20030217516 A1) in view of Triva (US 20060142668 A1).
Regarding Claim 1, Smith teaches an article (10) comprising an inner layer (12) contained within one or more outer layers (20), the inner layer comprising a hydrophilic (paragraph [0016]), absorbent porous textile having a solids content of 0.5%-30%, optionally 0.5% to 15% (rayon, paragraph [0016]); and the one or more outer layers comprising a porous, hydrophilic, wicking textile having a solids content of about 2%-40% (rayon, paragraph [0005]); and
further comprising a scouring layer (30) disposed over a portion of at least one of the one or more outer layers and one or more second portions of the one or more outer layers, wherein the scouring layer is not disposed over the one or more second portions (figure 2).
Smith fails to explicitly teach the exact claimed ranges of a solids content of 0.5%-30%, optionally 0.5% to 15% (rayon, paragraph [0016]); and the one or more outer layers comprising a porous, hydrophilic, wicking textile having a solids content of about 2%-40%.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have a absorbent porous textile having a solids content of 0.5%-30%, optionally 0.5% to 15%; and the one or more outer layers comprising a porous, hydrophilic, wicking textile having a solids content of about 2%-40% in order to fit the particular procedure being done, and since the rayon is already in the cited range since this claimed dimension of the % solid contents is non-critical. Since applicant has not given any criticality to why the dimension disclosed has any importance to the function of the claimed device (see page 3, lines 17-23 of applicants specification), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777.
Smith fails to teach wherein an inner layer completely surrounded by one or more outer layers. Triva teaches a swab for collecting biological samples wherein an inner layer (16) completely surrounded by one or more outer layers (17) (figure 2). Therefore, it would have been obvious to a person having ordinary skill in the art prior to the effective filing date of the claimed invention to modify the article of Smith wherein an inner layer completely surrounded by one or more outer layers, similar to Triva, so that the specimen does not come into contact with the inner layer.
Smith in view of Triva fail to teach and wherein the one or more outer layers having pore sizes in the range of 20 nanometer to 5 microns.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have one or more outer layers having pore sizes in the range of 20 nanometer to 5 microns in order to fit the particular procedure being done since this claimed dimension of the pore size is non-critical . Since applicant has not given any criticality to why the dimension disclosed has any importance to the function of the claimed device (see page 5, lines 13-15 of applicants specification), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777.
Regarding Claim 4, Smith in view of Triva teaches the article of claim 1. Smith further teaches wherein the scouring layer comprises a plurality of abrasive particles, and wherein the plurality of abrasive particles comprise glass particles, ceramic particles, or a combination thereof (paragraph [0009]).
Regarding Claim 5, Smith in view of Triva teaches the article of claim 1. Smith further teaches wherein the hydrophilic, absorbent porous textile of the inner layer comprises viscose fibers, rayon fibers, or both viscose and rayon fibers (paragraph [0005]).
Regarding Claim 6, Smith in view of Triva teaches the article of claim 1. Smith further teaches wherein the porous, hydrophilic, wicking textile of the one or more outer layers comprises viscose fibers, rayon fibers, or both viscose and rayon fibers (paragraph [0005]).
Regarding Claim 7, Smith in view of Triva teaches the article of claim 1. Smith further teaches wherein at least part of the viscose fibers or rayon fibers are thermally bonded to poly(ethylene terephthalate) (paragraph [0016]).
Regarding Claim 9, Smith in view of Triva teaches the article of claim 1. Smith further teaches comprising a single outer layer, wherein the single outer layer (26) is sealed to itself at one or more seals; and wherein the inner layer is contained within the single outer layer (paragraph [0023]).
Regarding Claim 10, Smith in view of Triva teaches the article of claim 1. Smith further teaches wherein the scouring layer is disposed over at least a first portion of the one or more outer layers in the form of a plurality of lines or geometrical shapes (paragraph [0024] More viscous, molten polymers will produce formations with sharply defined surfaces or "peaks" as the web separates from the applicator roll. Alterations in the abrasiveness can also be effected by changing the pattern, spacing and size of the indentations 58 in the roll 54) over more than one first portions of the one or more outer layers, the plurality of lines or geometrical shapes being present in a repeating pattern on the one or more outer layers (paragraph [0023]).
Regarding Claim 15, Smith in view of Triva teaches the article of claim 1. Smith further teaches wherein the hydrophilic, absorbent porous textile is a nonwoven (paragraph [0016]).
Regarding Claim 17, Smith in view of Triva teaches the article of claim 1. Smith further teaches wherein the porous, hydrophilic, wicking textile is a nonwoven (paragraph [0016]).
Regarding Claim 18, Smith in view of Triva teaches the article of claim 1. Smith fails to explicitly teach wherein the inner layer and the one or more outer layers are biocide free. However Smith does not teach that the inner layer and one or more of the out layers contain biocide either. It would have been obvious to one having ordinary skill in the art effective filing date of the invention to modify Smith such that the inner layer and the one or more outer layers are explicitly biocide free since it was known in the art that biocides could kill or damage microbes that are being recovered.
Regarding Claim 25, Smith in view of Triva teaches the article of claim 5. Smith further teaches wherein at least part of the viscose fibers or rayon fibers are thermally bonded to poly(ethylene terephthalate) (paragraph [0016]).
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over by Smith (US 20030217516 A1) in view of Triva (US 20060142668 A1) in view of Furton (US 20090081795 A1).
Regarding Claim 3, Smith in view of Triva teaches the article of claim 1. Smith further teaches wherein the scouring layer comprises a plurality of abrasive particles (paragraph [0003]) having a mohs hardness of 3 or greater (paragraph [0009: all materials listed have a mohs hardness greater than 3]). However Smith fails to teach that the scouring layer comprises resin. Furton teaches an article to be applied to human skin wherein a scouring layer comprises resin (paragraph [0066]). Therefore, it would have been obvious to a person having ordinary skill in the art prior to the effective filing date of the claimed invention to modify the scouring layer of Smith to comprise resin, even though it is more expensive to manufacture, similar to Furton to produce transparent aesthetic effect, at expense of damage to cotton fiber (as motivated by Furton, paragraph [0066]).
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over by Smith (US 20030217516 A1) in view of Triva (US 20060142668 A1) in view of Dehn (US 20120036733 A1).
Regarding Claim 8, Smith in view of Triva teaches the article of claim 1. Smith fails to explicitly teach a first outer layer and a second outer layer, wherein the first outer layer is sealed to the second outer layer at one or more seals; and the inner layer is disposed between the first outer layer and the second outer layer. Dehn teaches an absorbent article with a first outer layer and a second outer layer, wherein the first outer layer is sealed to the second outer layer at one or more seals (paragraph [0013] and [0103]); and the inner layer (absorbent) is disposed between the first outer layer and the second outer layer (paragraph [0018]). Therefore, it would have been obvious to a person having ordinary skill in the art prior to the effective filing date of the claimed invention to modify the article of Smith to have two outer layers surrounding the absorbent layer similar to Dehn so that the swap may have more surface area for microorganism retrieval.
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over by Smith (US 20030217516 A1) in view of Triva (US 20060142668 A1) in view of Laugharn (US 20160025604 A1).
Regarding Claim 12, Smith in view of Triva teaches the article of claim 1. Smith fails to teach a handle. Laugharn teaches a handle attached to the absorbent (paragraph [0036]). Therefore, it would have been obvious to a person having ordinary skill in the art prior to the effective filing date of the claimed invention to modify the article of Smith to have a handle similar to Laugharn so that the user will not contaminate the sample.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATE ELIZABETH STRACHAN whose telephone number is (571)272-7291. The examiner can normally be reached M-F: 8:00-5:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Rebecca Eisenberg can be reached on (571)-270-5879. The fax phone number for the organization where this application or proceeding is assigned is (571)-270-5879.
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/KATE ELIZABETH STRACHAN/Examiner, Art Unit 3781
/REBECCA E EISENBERG/Supervisory Patent Examiner, Art Unit 3781
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