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 .
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on January 6, 2026 has been entered.
Claims 1, 3-13, 15-21 are pending.
The rejection of claims 1, 3-13, 15-17 under 35 U.S.C. 103 as being unpatentable over Nair et al is withdrawn in view of Applicant’s amendment.
The rejection of claims 2 and 14 under 35 U.S.C. 103 as being unpatentable over Nair et al in view of Lofftus et al is withdrawn in view of Applicant’s amendment.
The rejection of claims 18-19 under 35 U.S.C. 103 as being unpatentable over Nair et al in view of Lofftus et al is withdrawn in view of Applicant’s amendment.
The rejection of claim 20 under 35 U.S.C. 103 as being unpatentable over Nair et al in view of Lofftus et al in view of Quincy III et al is withdrawn in view of Applicant’s amendment.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 3-13, 15-19, 21 are rejected under 35 U.S.C. 103 as being unpatentable over Nair et al (US Patent 2020/0088915 (already of record)) in view of Lofftus et al (US Patent Application 2018/0128946) in view of Evon et al (FR 2538755).
Regarding claims 1, 3-13, 15-19, 21, Nair et al teaches a non-foamed, aqueous composition for forming an opacifying layer comprising at least 5 wt% of (a) porous particles comprising continuous polymeric phase and discrete pores having a particle size of 2-50µm, (b) at least 10wt% of binder materials including polyvinyl chloride and polyvinylidene chloride, (c) optionally opacifying colorants and (e) optional additives including 0.0001-20wt% of nanofillers including titanium dioxide (which satisfies claimed white inorganic particulate filler having a RI greater than 2) and aluminum hydroxides (which satisfies claimed white low density hydrated alumina) (which 0.0001-20wt% overlaps the instantly claimed ranges of components (iii) and (iv) in the instant claims) (Paragraphs 17, 107, 136-138, 107, 121-125). Nair et al further teaches a flame retardant (Paragraph 121). Nair et al further teaches up to 0.5wt% of carbon black as the opacifying colorant in the pores of the porous particles (which the “up to 0.5” is in the aqueous composition and hence satisfies/overlaps up to 1wt% in the porous particles) (Paragraphs 115, 117). Nair et al further teaches thickeners, dispersants, biocide and optical brighteners (Paragraph 121). Nair et al further teaches Neocryl A6093 as the binder in the examples (which satisfies the claimed glass transition temperature recited in the instant claims as evidenced by Lofftus et al, see below) (Paragraph 216). Nair et al further teaches the an opacifying article made of a fabric and an opacifying layer (Abstract). Nair et al further teaches the fabric used in the opacifying article can have an openness of at least 0% and including 10% (Paragraph 67). However, Nair et al fails to specifically disclose the percentage of solids, anatase and/or rutile titanium dioxide, defoaming and anti-foaming agent and shear thinning with a zero shear viscosity and density of the composition.
In the same field of endeavor, Lofftus et al teaches a light blocking article containing porous particles and a polymer binder that can be designed into fabric or curtains; the article has an opacifying layer (Abstract). Lofftus et al teaches further Neocryl A6093 has Tg=-30°C (Paragraph 172). Lofftus et al further teaches the opacifying layer can contain additives including defoamers (wherein defoamer satisfies claimed defoamer and anti-foaming) (Paragraph 125).
In the same field of endeavor, Evon et al teaches a layer comprising opacifying agents for textiles (Abstract, Claims). Evon et al further teaches opacifying agents include titantium dioxide in rutile or anatase form (Paragraph 9).
With regard to the percentage of solids, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the percentage of solids within the same range as instantly claimed in Nair et al as Nair et al teaches overlapping amounts of the solid components in the composition; hence, it would only be obvious to the ordinary artisan to provide this claimed range.
With regard to anatase and/or rutile titanium dioxide, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have substituted anatase and/or rutile titanium dioxide in Nair et al and Lofftus et al in view of Evon et al as Nair et al already encompasses 0.0001-20wt% of nanofillers including titanium dioxide, Evon et al teaches opacifying agents include anatase and rutile titanium dioxide. Simple substitution of one anatase or rutile titanium dioxide in Nair et al in view of Evon et al would only be obvious to the ordinary artisan for providing an opacifying colorant additive.
With regard to a defoaming and anti-foaming agent, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided two defoaming agent additives in Nair et al in view of Lofftus et al as Lofftus et al teaches optional additives include defoaming agents where the objective of Nair et al is to provide a non-foamed composition and includes 0.0001wt% of additives (Paragraphs 140); providing two defoaming agents in the amount of 0.0001wt% or greater would only be obvious in Nair et al in view of Lofftus et al. The selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). See MPEP 2144.07.
With regard to the shear thinning with a zero shear viscosity and density of the composition, it would have been obvious to one of ordinary skill in the art before the effect filing date of the claimed invention to have expected a shear thinning with a zero shear viscosity and density of the composition to be similar to the instantly claimed ranges as the composition of Nair et al encompasses overlapping amounts of each of the components in the composition.
With regard to “a sprayable” composition, Nair et al satisfies the claimed “sprayable” composition, as this is a product by process limitation. The claims are drawn to the composition, not the method of forming an article. Nair et al’s composition has the ability to be sprayed onto the textile/fabric substrate.
With regard to the original openness factor of the fabric substrate being reduced by less than 20%, this is a product by process limitation. The claims are drawn to the composition, not the method of forming an article. Any difference imparted by the product by process limitations would have been obvious to one having ordinary skill in the art at the time the invention was made because where the examiner has found a substantially similar product as in the applied prior art, the burden of proof is shifted to the applicant to establish that their product is patentably distinct, not the examiner to show the same process of making, see In re Brown, 173 USPQ 685 and In re Fessmann, 180 USPQ 324.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Nair et al (US Patent 2020/0088915 (already of record)) in view of Lofftus et al (US Patent Application 2018/0128946) in view of Evon et al (FR 2538755) as applied to claims 1, 3-13, 15-19, 21 above, and in further view of Quincy III et al (US Patent Application 2006/0141882 (already of record)).
Regarding claim 20, Nair et al, Lofftus et al and Evon et al disclose the invention substantially as claimed. Nair et al, Lofftus et al and Evon et al teach the features above. However, Nair et al, Lofftus et al and Evon et al fail to specifically disclose a vinyl chloride-acrylic copolymer.
In the same field of endeavor, Quincy III et al teaches a substrate having a coating comprising a binder including vinyl chloride-acrylic copolymer (Paragraph 26).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention was made to have substituted vinyl chloride-acrylic copolymer in Nair et al, Lofftus et al and Evon et al in view of Quincy III et al as simple substitution of one known binder for another would only be obvious to the ordinary artisan.
Response to Arguments
Applicant’s arguments with respect to claims 1, 3-13, 15-21 have been considered but are moot in view of the new grounds of rejection.
With respect to Applicant’s arguments of unexpected results, the examples in the specification are of no probative value in determining patentability of claims since they do not involve a comparison of applicant’s invention with the closest applied prior art. See In re De Blawe, 222 USPQ 191 (Fed. Cir. 1984) and In re Fenn, 208 USPQ 470) CCPA 1981). Evidence of unexpected properties may be in the form of a direct or indirect comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims. See In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). See MPEP 716.02(b) III and 716.02(e). The Examiner considered the showing in Table 1 of the instant specification, however, none of the comparative examples have porous particles, which is required in the closest prior art of record, Nair et al.
Conclusion
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/TANISHA DIGGS/Primary Examiner, Art Unit 1761 March 21, 2026