DETAILED ACTION
Claims 7-11 and 13-21 were rejected in the Office Action mailed 08/25/2025.
Applicant filed a request for continued examination, amended claims 7-11 and 13-21, and added new claims 22-25 on 02/24/2026.
Claims 1-11 and 13-25 are pending, of which claims 1-6 are withdrawn.
Claims 7-11 and 13-25 are rejected.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 02/24/2026 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 7-11 and 13-25 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 7 recites, “a cellulosic textile fibre comprising intrinsic depots of ion-exchanger” in line 1. While there is support in the specification for a cellulosic textile fibre comprising ion-exchanger, there is no support in the specification for a cellulosic textile fiber comprising intrinsic depots of ion-exchanger as recited in claim 1 (emphasis added).
Claim 21 recites, “after-treating the fiber in step (b) with an aqueous fixing solution to convert the water-soluble metal salt into a water-insoluble or sparingly water-soluble form; and after-treating the metal salt of step (c) to change the metal oxidation state” in lines 7-10. The Specification provides support for conversion into water-insoluble forms by treatment with aqueous solution of salts which form sparingly soluble salts with the metal salts of the active ingredients. Alternatively, active ingredients can also be converted into a different oxidation state by a redox reaction to yield water-insoluble compounds. Specification, page 8, lines 1-25. It appears step (c) and (d) are alternative embodiments for attaining the water-insoluble or sparingly water-soluble form and there is no support in the specification for an embodiment including both steps (c) and (d) together.
Claim 24 recites, “after-treating the fiber in step (b) with an aqueous fixing solution to convert the water-soluble metal salt into a water-insoluble or sparingly water-soluble form; and after-treating the metal salt of step (c) to change the metal oxidation state” in lines 7-11. The Specification provides support for conversion into water-insoluble forms by treatment with aqueous solution of salts which form sparingly soluble salts with the metal salts of the active ingredients. Alternatively, active ingredients can also be converted into a different oxidation state by a redox reaction to yield water-insoluble compounds. Specification, page 8, lines 1-25. It appears step (c) and (d) are alternative embodiments for attaining the water-insoluble or sparingly water-soluble form and there is no support in the specification for an embodiment including both steps (c) and (d) together.
Regarding dependent claims 8-11, 13-20, 22-23, and 25, these claims do not remedy the deficiencies of parent claims 7 and 24 noted above, and are rejected for the same rationale.
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.
Claims 7-11 and 13-25 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 7 recites, “a cellulosic textile fibre comprising intrinsic depots of ion-exchanger” in line 1. It is unclear what intrinsic depots means and therefore this term renders the claim indefinite. The Examiner will interpret any cellulosic textile fibre comprising an ion-exchanger as meeting the claim in view of compact prosecution.
Claim 7 further recites, “textile fabrics formed from said textile fibre do not comprise other natural and/or synthetic fibers” in lines 10-11. Claim 8, which depends from claim 7, further requires the cellulosic textile fibre “mixed with textile fibre to produce textile fabric(s)” in line 2. Claim 9, which depends from claim 8 further recites, “said textile fibre comprises polyethylene polypropylene, polyester, polyamide, polyacrylic of cellulosic fibre” in lines 2-3. It is unclear how dependent claims 8-9 further require textile fabric(s) formed from said cellulosic textile fibre mixed with other natural and/or synthetic fibers yet claim 7 requires “textile fabrics formed from said textile fibre do not comprise other natural and/or synthetic fibers” in lines 10-11. Claims 8 and 9 depend from claim 7, yet the limitations of claims 7-9 cannot exist in the same embodiment. Furthermore, since claim 7 is directed to a cellulosic textile fibre, not a textile fabric, it is noted the limitations in lines 10-11 of claim 7 are not germane to claim 7 and therefore not required to meet the claim. For the purpose of compact prosecution, and since the limitations of lines 10-11 regarding “textile fabrics formed from said textile fibre do not comprise other natural and/or synthetic fibers” are not germane to claim 7, the Examiner will examiner claims 8-9 as if the recitation of lines 10-11 of claim 7 are not germane to the claims.
Claim 21 and 24 recites, “after-treating the fiber in step (b) with an aqueous fixing solution to convert the water-soluble metal salt into a water-insoluble or sparingly water-soluble form; and after-treating the metal salt of step (c) to change the metal oxidation state” in lines 7-10 and lines 7-11, respectively. In view of the specification, specifically page 8, lines 1-25, it appears step (c) and (d) are alternative embodiments for attaining the water-insoluble or sparingly water-soluble form and there is no support in the specification for an embodiment including both steps (c) and (d) together. Therefore, it is unclear how steps (c) and (d) are preformed in the same method. The Examiner will interpret any cellulosic fiber comprising the water-insoluble or sparingly water-soluble metal salt as meeting the claimed limitation.
Regarding dependent claims 8-11, 13-20, 22-23, and 25, these claims do not remedy the deficiencies of parent claims 7 and 24 noted above, and are rejected for the same rationale.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 7-11, 13, and 15-19 are rejected under 35 U.S.C. 103 as being unpatentable over Buettner et al. (US 2006/0283567) (Buettner) in view of Thomas (US 2009/0259157) (Thomas).
Regarding claims 7, 13, 15-17, and 19
Buettner teaches a cellulosic fiber comprising a polyacrylate ion exchanger and biologically active silver ions in such a manner that depot of these ions is built up in the fiber. The fiber is formed by a method comprising the steps of producing a cellulosic fiber from a spinning solution loaded with a polyacrylate-based ion exchanger in an amount of 15% by weight based on the cellulose. The method further includes an after-treating step with an aqueous solution of silver nitrate which exhibits antibacterial activity. The cellulosic fiber is capable of being processed on all kind of textile machinery. See, e.g., abstract, paragraphs [0002], [0010-0019], [0024], [0030-0032], [0038-0039], and tables 2 and 5 and claims 1-3 and 17.
Buettner does not explicitly teach the metal salt is water-insoluble.
With respect to the difference, Thomas teaches a method of imparting a water insoluble or sparingly water soluble silver salt, including water insoluble or sparingly water soluble biologically active silver ions, to a cellulosic fiber, in order to produce an anti-microbial fabric. The insoluble or sparingly soluble salt is retained within the fabric by applying a first solution of silver nitrate followed by a second solution of sodium chloride. Water insoluble silver chloride precipitates into the fabric and the sodium and nitrate ions remain in solution because sodium nitrate is a soluble salt. The precipitated metal provides a lasting self-sterilizing effect such that the antimicrobial properties lasts for at least 30 washes. See, e.g., abstract and paragraphs [0009], [0020-0022], [0026-0028], [0031], [0037-0047], [0050-0060].
Thomas and Buettner are analogous art as they are both drawn to anti-microbial fabrics.
In light of the motivation as provided by Thomas, it therefore would have been obvious to one of ordinary skill in the art to apply a solution of silver chloride to the cellulose fiber treated with silver nitrate of Buettner, in order to produce a water-insoluble or sparingly water-soluble metal form of the water-soluble silver nitrate that upholds the antibacterial effects over an extended period of time and a number of washes, and thereby arrive at the claimed invention.
While Buettner in view of Thomas teaches the method steps as presently claimed, it is noted that the present claims are drawn to a product and not drawn to a method of making. Thus, “even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985).
Therefore, absent evidence of criticality regarding the presently claimed process and given that Buettner in view of Thomas meets the requirements of the claimed product (i.e., cellulosic fiber comprising ion exchanger and water-insoluble metal ions), Buettner in view of Thomas clearly meets the requirements of the present claim.
Since claim 7 is directed to a cellulosic textile fibre, not a textile fabric, it is noted the limitations in lines 10-11 of claim 7 are not germane to claim 7 and therefore not required to meet the claim.
Regarding claims 8-9
Buettner further teaches the cellulosic fiber is spun in combination with cotton to form a knitted fabric. Paragraph [0054].
Regarding claim 10
The recitation in the claims that the cellulosic fiber is “used for producing wound dressings, sanitary products, specialty papers, packaging, and filter materials” is merely an intended use. Applicants attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.
It is the examiner’s position that the intended use recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art and further that the prior art structure is capable of performing the intended use. In addition it is noted that Buettner further teaches the cellulosic fiber is used for producing wound overlays, sanitary products, specialty papers and packaging, and filter materials. Paragraphs [0001-0002] and [0010].
Regarding claim 11
The recitation in the claims that the cellulosic fiber is “used for producing wound dressings, sanitary products, specialty papers, packaging, and filter materials” is merely an intended use. Applicants attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.
It is the examiner’s position that the intended use recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art and further that the prior art structure is capable of performing the intended use. In addition it is noted that Buettner further teaches the cellulosic fiber is used for producing filter materials. Paragraphs [0001-0002] and [0010]. Further, it is noted any fiber would provide some degree of intrinsic fibre protection and given the cellulosic fiber of Buettner in view of Thomas provides protection against bacterial agents, it follows the cellulosic fiber of Buettner in view of Thomas would be capable of providing intrinsic fiber protection for nonwoven filter fabrics and nonwoven geotextile fabrics.
Regarding claim 18
Buettner in view of Thomas teaches all of the limitations of claim 1 above. Thomas further teaches the precipitated metal salt is relatively difficult to remove during washings, providing a lasting self-sterilizing effect. The antimicrobial properties of the precipitated metal salt lasts for at least 30 washes. Paragraph [0043].
Given Thomas teaches the precipitated metal salt is relatively difficult to remove during washings, and given that the material and method of producing the cellulosic fiber is substantially identical to the material and method of production as used in the present invention, including the claimed water-insoluble metal salt, as set forth above, it is clear that the cellulosic fiber of Buettner in view of Thomas would intrinsically retain its biocidal effect after at least 50 industrial standard washes in accordance with ISO 6330, as presently claimed.
Where 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). See MPEP 2112.01 (I).
Regarding claims 22 and 23
Buettner in view of Thomas teaches all of the limitations of claim 7 above. Although Buettner in view of Thomas does not explicitly teach the centrifuge step and period of time sufficient to convert the water-soluble metal salts into a water-insoluble or sparingly water-soluble form as presently claimed, it is noted that the present claims are drawn to a product and not drawn to a method of making. Thus, “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP 2113.
Therefore, absent evidence of criticality regarding the presently claimed process and given that Buettner in view of Thomas meets the requirements of the claimed product, i.e., a cellulosic fibre comprising water-insoluble or sparingly water-soluble salt, Buettner in view of Thomas clearly meets the requirements of the present claim.
Claims 14 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Buettner et al. (US 2006/0283567) (Buettner) in view of Thomas (US 2009/0259157) (Thomas), as applied in claim 7 above, and further in view of Delattre et al. (US 2015/0233049) (Delattre).
Regarding claims 14 and 20
Buettner in view of Thomas teaches all of the limitations of claim 7 above, however does not explicitly teach the presence of a finish.
With respect to the difference, Delattre teaches treating an antimicrobial textile with a softener finish. See, e.g., abstract and paragraph [0026].
Delattre and Buettner in view of Thomas are analogous art as they are both drawn to antimicrobial textiles.
In light of the disclosure of Delattre, it therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to treat the cellulosic fibre of Buettner in view of Thomas with a softener, as Delattre teaches this is a known treatment, in order to provide a softer antimicrobial fabric, and thereby arrive at the claimed invention.
Claim 21 is rejected under 35 U.S.C. 103 as being unpatentable over Buettner et al. (US 2006/0283567) (Buettner) in view of Thomas (US 2009/0259157) (Thomas).
Regarding claim 21
Buettner teaches a cellulosic fiber comprising a polyacrylate ion exchanger and biologically active silver ions in such a manner that depot of these ions is built up in the fiber. The fiber is formed by a method comprising the steps of producing a cellulosic fiber from a spinning solution loaded with a polyacrylate-based ion exchanger in an amount of 15% by weight based on the cellulose. The method further includes an after-treating step with an aqueous solution of silver nitrate which exhibits antibacterial activity. See, e.g., abstract, paragraphs [0002], [0010-0019], [0024], [0030-0032], [0038-0039], Tables 2 and 5, and claims 1-3 and 17.
Buettner does not explicitly teach the metal salt is water-insoluble.
With respect to the difference, Thomas teaches a method of imparting a water insoluble or sparingly water soluble silver salt, including water insoluble or sparingly water soluble biologically active silver ions, to a cellulosic fiber, in order to produce an anti-microbial fabric through precipitation or reduction. The precipitated metal or reduced metal salt provides a lasting self-sterilizing effect such that the antimicrobial properties lasts for at least 30 washes. See, e.g., abstract and paragraphs [0009], [0020-0022], [0026-0028], [0031], [0037-0047], [0050-0060].
Thomas and Buettner are analogous art as they are both drawn to anti-microbial fabrics.
In light of the motivation as provided by Thomas, it therefore would have been obvious to one of ordinary skill in the art to reduce the biologically active ions of the cellulose fiber of Buettner, in order to produce a water-insoluble or sparingly water-soluble metal form that upholds the antibacterial effects over an extended period of time and a number of washes, and thereby arrive at the claimed invention. The reduction results in a change to the metal oxidation state.
Thomas further teaches the precipitated or reduced metal salt is relatively difficult to remove during washings, providing a lasting self-sterilizing effect. The antimicrobial properties of the precipitated metal salt lasts for at least 30 washes. Paragraph [0043].
Given Thomas teaches the precipitated or reduced metal salt is relatively difficult to remove during washings, and given that the material and method of producing the cellulosic fiber is substantially identical to the material and method of production as used in the present invention, including the claimed water-insoluble metal salt, as set forth above, it is clear that the cellulosic fiber of Buettner in view of Thomas would intrinsically retain its biocidal effect after at least 50 industrial standard washes in accordance with ISO 6330, as presently claimed.
Where 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). See MPEP 2112.01 (I).
While Buettner in view of Thomas teaches the method steps as presently claimed, it is noted that the present claims are drawn to a product and not drawn to a method of making. Thus, “even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985).
Therefore, absent evidence of criticality regarding the presently claimed process and given that Buettner in view of Thomas meets the requirements of the claimed product (i.e., cellulosic fiber comprising ion exchanger and water-insoluble metal ions), Buettner in view of Thomas clearly meets the requirements of the present claim.
Claim 24 is rejected under 35 U.S.C. 103 as being unpatentable over Buettner et al. (US 2006/0283567) (Buettner) in view of Thomas (US 2009/0259157) (Thomas).
Regarding claim 24
Buettner teaches a cellulosic fiber comprising a polyacrylate ion exchanger and biologically active silver ions and copper ions in such a manner that depot of these ions is built up in the fiber. The fiber is formed by a method comprising the steps of producing a cellulosic fiber from a spinning solution loaded with a polyacrylate-based ion exchanger in an amount of 15% by weight based on the cellulose. The method further includes an after-treating step with an aqueous solution of silver nitrate which exhibits antibacterial activity. See, e.g., abstract, paragraphs [0002], [0010-0019], [0024], [0030-0032], [0038-0039], Tables 2 and 5, and claims 1-4 and 17.
Buettner does not explicitly teach the metal salt is water-insoluble.
With respect to the difference, Thomas teaches a method of imparting water insoluble or sparingly water soluble silver and copper salts, including water insoluble or sparingly water soluble biologically active silver and copper ions, to a cellulosic fiber, in order to produce an anti-microbial fabric through precipitation or reduction. The precipitated metal or reduced metal salt provides a lasting self-sterilizing effect such that the antimicrobial properties lasts for at least 30 washes. See, e.g., abstract and paragraphs [0009], [0019-0022], [0026-0028], [0031], [0037-0047], [0050-0060].
Thomas and Buettner are analogous art as they are both drawn to anti-microbial fabrics.
In light of the motivation as provided by Thomas, it therefore would have been obvious to one of ordinary skill in the art reduce the biologically active silver and copper ions of the cellulose fiber of Buettner, in order to produce a water-insoluble or sparingly water-soluble metal salt form that upholds the antibacterial effects over an extended period of time and a number of washes, and thereby arrive at the claimed invention. The reduction results in a change to the metal oxidation state.
Thomas further teaches the precipitated or reduced metal salt is relatively difficult to remove during washings, providing a lasting self-sterilizing effect. The antimicrobial properties of the precipitated metal salt lasts for at least 30 washes. Paragraph [0043].
Given Thomas teaches the reduced metal salt is relatively difficult to remove during washings, and given that the material and method of producing the cellulosic fiber is substantially identical to the material and method of production as used in the present invention, including the claimed water-insoluble metal salt, as set forth above, it is clear that the cellulosic fiber of Buettner in view of Thomas would intrinsically retain its biocidal effect after at least 50 industrial standard washes in accordance with ISO 6330, as presently claimed.
Where 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). See MPEP 2112.01 (I).
While Buettner in view of Thomas teaches the method steps as presently claimed, it is noted that the present claims are drawn to a product and not drawn to a method of making. Thus, “even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985).
Therefore, absent evidence of criticality regarding the presently claimed process and given that Buettner in view of Thomas meets the requirements of the claimed product (i.e., cellulosic fiber comprising ion exchanger and water-insoluble metal salts having changed metal oxidation state), Buettner in view of Thomas clearly meets the requirements of the present claim.
Claim 25 is rejected under 35 U.S.C. 103 as being unpatentable over Buettner et al. (US 2006/0283567) (Buettner) in view of Thomas (US 2009/0259157) (Thomas), as applied in claim 24 above, and further in view of Gabbay (US 2008/0241530).
Regarding claim 25
Buettner in view of Thomas teaches all of the limitations of claim 24 above, however does not explicitly teach the water insoluble or sparingly water soluble metal salt is Cu2O.
With respect to the difference, Gabbay teaches an antimicrobial, antifungal and antiviral rayon fiber comprising water insoluble particles of cuprous oxide, Cu2O, incorporated in the rayon fibers. Rayon fibers incorporating water insoluble particles of cuprous oxide, Cu2O, demonstrate antibacterial, antifungal, and antiviral properties. See, e.g., abstract and paragraphs [0005], [0025], [0041], and claims 1 and 4.
Gabbay and Buettner in view of Thomas are analogous art as they are both drawn to
antibacterial cellulose fibers.
In light of the motivation as provided by Gabbay, it therefore would have been obvious to one of ordinary skill in the art to modify the cellulose fiber of Buettner in view of Thomas, such that the water insoluble or sparingly water soluble metal salt is cuprous oxide, Cu2O, in order to provide in addition to antibacterial properties, both antifungal and antiviral properties, and thereby arrive at the claimed invention.
Response to Arguments
In view of the amendments to the claims, the previous 35 U.S.C. 112(a) and 35 U.S.C. 112(b) rejections are withdrawn. However, the amendment necessitates a new set of 35 U.S.C. 112(a) and 35 U.S.C. 112(b) rejections, as set forth above.
The previous rejection of claim 7-11 and 13-21 are substantially maintained. Any modification to the rejection is in response to the amendment of claims 7 and 21 and addition of new claims 22-25.
Applicant's arguments and affidavit filed 02/24/2026 have been fully considered but they are not persuasive, as set forth below.
Applicant primarily argues the cellulosic fibre can be loaded with quite elevated quantities of ion-exchanger during its production and subsequently impregnated with likewise elevated quantities of biologically active metal ions while retaining adequate tensile properties for textile applications, such that textile fabrics formed from the inventive fibres do not comprise other natural and/or synthetic fibers, as recited in claim 7. In contrast, Buettner indicates that his more elevated fiber loaded fiber is blended with other textile fibers. paragraph [0031]. Remarks, pages 9-10.
The Examiner respectfully disagrees, as follows:
Claim 7 is drawn to a cellulosic textile fibre. The limitation, “textile fabrics formed from said textile fibre do not comprise other natural and/or synthetic fibers” in lines 10-11 are not required in the claim because a textile fabric is not required in the claim. It is further noted claims 8-9 require a textile fabric comprising other natural and/or synthetic fibers.
Applicant further argues the claimed fibres retain their biocidal effect after at least 50 industrial standard washes in accordance with ISO 6330, as recited in claims 18 and 20. Buettner instead loses approximately 80% of the metal ions by the 10th washing. This is further evidenced in Example 5, in which fiber loaded with 51,200 mg/kg silver nitrate retained only 2,150 mg/kg silver after 50 washes. Applicant-as filed, Example 3, page 16, lines 1-16. Remarks, page 10.
The Examiner respectfully disagrees, as follows:
Firstly, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant primarily argues that Buettner does not expressly teach the claimed retained biocidal effect after at least 50 industrial standard washes in accordance with ISO 6330. This argument merely agrees with the basis for the rejection under 35 U.S.C. 103(a), which admits that Buettner does not disclose the entire claimed invention. Rather, Thomas is relied upon to teach claimed elements missing from Buettner. See page 8 of the Office Action mailed 08/25/2025.
Secondly, it is not clear how the prior art can disclose the same structure and the same material as presently claimed and not possess the properties claimed. The Office realizes that the claimed properties are not positively stated by the reference. However, the reference teaches all of the claimed ingredients and claimed structure. Therefore, the claimed properties would be inherently necessarily be capable of being achieved by the prior art. If it is Appellant’s position that this would not be the case: (1) evidence would need to be provided to support this position; and (2) it would be the Office's position that the application contains inadequate disclosure in that there is no teaching as to how to obtain the claimed properties with only the claimed ingredients and claimed amounts.”
Applicant further argues the prior art does not teach the claimed centrifugal drying recited in newly added claim 22. The centrifugal drying provides an improved, more uniform environment for converting the metal salt within the intrinsic depots into a water insoluble/sparingly soluble form. Applicant argues the centrifugal drying imparts far greater efficiency than Buettner, along with more uniform reaction conditions for the recited insolubilization of the intrinsic metal salt depots. Remarks, pages 10-11 and 18-19.
The Examiner respectfully disagrees, as follows:
The present claims are drawn to a cellulosic textile fibre. It is noted that the present claims are drawn to a product and not drawn to a method of making. Thus, “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP 2113.
Therefore, absent evidence of criticality regarding the presently claimed process and given that Buettner in view of Thomas meets the requirements of the claimed product, i.e., a cellulosic textile fibre comprising an ion exchanger in an amount of 10 to 200% by mass and a water-insoluble or sparingly water-soluble biologically active metal ions, Buettner in view of Thomas clearly meets the requirements of the present claim.
It appears the benefits Applicant argues including the centrifugal drying imparts far greater efficiency than Buettner and more uniform reaction conditions for the recited insolubilization of the intrinsic metal salt depots are benefits to the method. Since patentability is dependent on the product, this argument is unpersuasive.
Applicant further argues Thomas teaches a maximum dwell times of 5 minutes for insolubilization, while the newly added claim 23 requires 20 minutes to convert the water-soluble metal salt intrinsic depots into a water-insoluble or sparingly water-soluble form. There would be no motivation to increase dwell time because increased dwell times detrimentally impacts production speed. Applicant notes only centrifugal drying allows for acceptable fibre bath dwell times that impart a heretofore unknown balance of improved properties versus loss in production inefficiencies. Applicants have found that longer dwell times are beneficial to ensure formation of water-insoluble depots within the fiber interior. Remarks, pages 11 and 18-19.
The Examiner respectfully disagrees, as follows:
Firstly, the present claims are drawn to a cellulosic textile fibre. It is noted that the present claims are drawn to a product and not drawn to a method of making. Thus, “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP 2113.
Therefore, absent evidence of criticality regarding the presently claimed process and given that Buettner in view of Thomas meets the requirements of the claimed product, i.e., a cellulosic textile fibre comprising an ion exchanger in an amount of 10 to 200% by mass and a water-insoluble or sparingly water-soluble biologically active metal ions present in fiber depot, Buettner in view of Thomas clearly meets the requirements of the present claim.
Since the prior art meets the requirements of the product, as discussed in the rejection above, and since patentability does not depend on a product’s method of production, it is the Examiner’s opinion the prior art meets the claims.
Applicant further argues Delattre teaches the retention of a minimal percentage of metal ions present after 30 washings as sufficient while the presently claimed cellulose fibre retains biocidal effect after at least 50 industrial standard washes in accordance with ISO 6330. Remarks, pages 11-12 and 20.
The Examiner respectfully disagrees, as follows:
Delattre is not used to meet the limitation regarding biocidal effect after at least 50 industrial standard industrial washes in accordance with ISO 6330. Instead, Delattre is used to teach applying a softner finish to an antimicrobial textile as discussed on pages 8-9 of the Office Action 08/25/2025. For the reasons set forth in item #38 above, and in the rejection above, it is the Examiner’s opinion the requirements of claim 18 is met.
Applicant further argues fibers whose copper had been insolubilized via salt formation, i.e. Cu (II) carbonate, retained 26,500 mg copper/kg fiber during insolubilization, ultimately retaining 10,400 mg copper/kg fiber after 50 wash cycles, Applicant-as-filed, pages 15, lines 19 through 29. In contrast, in example 3 of the present application, fibers whose copper was insolubilized via reduction to copper (I) oxide only contained 789- mg copper/kg fiber subsequent to reduction, ultimately retained only 321 mg copper/kg fiber after 50 washings. Applicant-as-filed, page 16, lines 1-16. Applicant respectfully submits that by initially insolubilizing metal ions within the fiber prior to changing the metal oxidation, more metal is entrapped and ultimately retained within the fiber, as shown in a comparison of Example 2 versus Example 3 within the Application-as-filed. Applicant found that copper (I) within the intrinsic domains of the inventive fibres retains its superior antiviral capacity, even after 50 washings, as claimed in newly added claim 25. Remarks, pages 12-13 and 18-19.
The Examiner respectfully disagrees, as follows:
Firstly, it appears applicant acknowledges Thomas teaches the metal ions are precipitated or reduced so that the fabric contains the water insoluble or sparingly water soluble metal salt. See, e.g., abstract and paragraphs [0002-0003], [0018], [0027-0028], [0031]. In the Application-as-filed, Example 2, pages 15, lines 19-29 provides an example of precipitating a metal salt, copper carbonate. In the Application as filed, Example 3, page 16, lines 1-16, provides an example of reducing to a metal salt, copper oxide. It is noted the precipitation in Example 2 and the reduction in Example 3 are contemplated by Thomas. As discussed in the 35 U.S.C. 112(a) rejection above, the Application-as-filed provides support for these two separate embodiments. It is noted there is no support for a method including (c) after-treating the fibre in step (b) with an aqueous fixing solution to convert the water-soluble metal salt into a water-insoluble or sparingly water-soluble metal salt; and (d) after-treating the water-insoluble or sparingly water-insoluble metal salt of step (c) to change the metal oxidation state as recited in claims 21 and 24.
Secondly, while Buettner in view of Thomas does not explicitly teach the water insoluble or sparingly water soluble metal salt is Cu2O, Buettner in view of Thomas is not closed off from such modification. In fact, Buettner teaches the cellulosic fibre comprise copper ions. Paragraphs [0038] and claim 4. Thomas teaches the metal ions are provided from copper sulfate. Paragraph [0022]. As discussed in the rejection above, in view of Gabbay, it therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to ensure the teach the water insoluble or sparingly water soluble metal salt is Cu2O, for the benefit of providing antiviral and antifungal properties in addition to antibacterial properties.
Applicant further argues the cellulosic fibers of Buettner are designed to release their active agent. Buettner notes that the incorporation of increase amounts of ion exchanger into fibers leads to a reduction in the physical parameters of the fibers, particularly reduced strength. Paragraph [0017]. Consequently, Buettner expressly limits the amount of ion exchanger within his fibers to 0.5 to 1.5 wt% to bind 5,000 to 10,000 mg metal/kg fiber. Paragraph [0019]. Buettner blends the highly silver-loaded fibers with “other textile fibers”, e.g., cotton, resulting in a yarn containing 1/16th metal-filled fiber. Buettner then went on to incorporate 0.5% wt ion exchanger resin in order to form fibers having textile parameters that were only marginally different from conventional fibers. Buettner does not teach or suggest inventive fibers in which the ion exchanger is present in an amount of 10 to 200 wt.% and textile fabrics formed from the inventive textile fibre do not comprise other natural and/or synthetic fibers. Buettner limits the amount of ion exchanger within his fibers to 0.5 to 1.5 wt.% in order to make possible the processing of the yarns on textile machinery, while fibers containing an elevated loading of ion exchanger resin must be blended with other fibers prior to fabric formation. Therefore Buettner teaches away from claim 7. Remarks pages 13-15 and 18-19.
The Examiner respectfully disagrees, as follows:
Firstly, the prior art is not required to teach the same purpose as the claimed invention. Therefore, even if Buettner is designed to release the active agent, the fact remains the cellulosic fiber comprising an ion exchanger still reads on the claimed invention. In addition, Buettner states an aim is to keep the active agents in the textile depot. Therefore, it follows one of ordinary skill in the art would look to maintain the antibacterial effect over time.
Secondly, a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art. While paragraph [0019] of Buettner teaches the amount of ion exchanger within the fiber from 0.5 to 1.5 wt.% to bind 5,000 to 10,000 mg metal/kg fiber, the fact remains Buettner teaches a cellulosic fiber comprising 15% by weight of ion exchanger to bind 80,000 mg metal/kg fiber. Paragraphs [0030-0032] and [0037-0039] and Tables 2 and 5. Therefore, it is the Examiner’s opinion the prior art meets the claimed limitation.
Thirdly, it is noted claim 7 is drawn to a cellulosic fibre, not a textile fabric formed of said cellulosic textile fibre. Therefore, the recitation “textile fabrics formed from said textile fibre do not comprise other natural and/or synthetic fibers” are not required in the claim because the claim is directed to a cellulosic textile fibre, not a textile fabric. The fact remains the cellulosic fiber of Buettner meets the cellulosic fibre as claimed, as discussed in the rejection above.
Applicant further argues Buettner does not teach or suggest after-treating cellulosic fibers containing a water soluble metal salt to convert the metal salt into a water-insoluble or sparingly water-soluble metal ion, as recited in claim 7. Remarks, page 14.
The Examiner respectfully disagrees, as follows:
Firstly, while Buettner does not explicitly teach converting the metal salt into a water insoluble or sparingly water-soluble metal ion, Buettner is not closed off from such modification.
Secondly, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant primarily argues that Buettner does not expressly teach the claimed after-treating cellulosic fibers containing a water soluble metal salt to convert the metal salt into a water-insoluble or sparingly water-soluble metal ion. This argument merely agrees with the basis for the rejection under 35 U.S.C. 103(a), which admits that Buettner does not disclose the entire claimed invention. Rather, Thomas is relied upon to teach claimed elements missing from Buettner. See pages 5-6 of the Office Action mailed 08/25/2025 and the rejection above.
Applicant further argues Buettner fails to teach or suggest a finish on the cellulosic fiber. Remarks, pages 15 and 19.
The Examiner respectfully disagrees, as follows:
Firstly, Buettner is not closed of from such modification.
Secondly, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant primarily argues that Buettner does not expressly teach the claimed finish. This argument merely agrees with the basis for the rejection under 35 U.S.C. 103(a), which admits that Buettner does not disclose the entire claimed invention. Rather, Delattre is relied upon to teach claimed elements missing from Buettner. See pages 8-9 of the Office Action mailed 08/25/2025 and the rejection above.
Applicant further argues Buettner fails to teach or suggest the cellulosic fibers retaining biocidal effect after at least 50 industrial standard washiness in accordance with ISO 6330. Buettner instead loses approximately 90% of the metal ions by the 10th washing. Remarks, page 15 and 19.
The Examiner respectfully disagrees, as follows:
Firstly, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant primarily argues that Buettner does not expressly teach the claimed retained biocidal effect after at least 50 industrial standard washiness in accordance with ISO 6330. This argument merely agrees with the basis for the rejection under 35 U.S.C. 103(a), which admits that Buettner does not disclose the entire claimed invention. Rather, Thomas is relied upon to teach claimed elements missing from Buettner. See pages 5-8 of the Office Action mailed 08/25/2025 and the rejection above.
Secondly, it is not clear how the prior art can disclose the same structure and the same material as presently claimed and not possess the properties claimed. The Office realizes that the claimed properties are not positively stated by the reference. However, the reference teaches all of the claimed ingredients and claimed structure. Therefore, the claimed properties would be inherently necessarily be capable of being achieved by the prior art. If it is Appellant’s position that this would not be the case: (1) evidence would need to be provided to support this position; and (2) it would be the Office's position that the application contains inadequate disclosure in that there is no teaching as to how to obtain the claimed properties with only the claimed ingredients and claimed amounts.”
Applicant further argues Buettner fails to teach newly added claims 22-23. Buettner and Thomas fail to teach a water insoluble/slightly soluble metal salt, much less such insolubilized metal salts that have been subjected to an additional after-treatment to change the metal oxidation state subsequently to insolubilization as recited in claim 21 as amended and newly added claims 24-25. Remarks, pages 15-16 and 18-19.
The Examiner respectfully disagrees, as follows:
Firstly, for the reasons set forth in item #42, it appears there is no support in the specification for the newly added limitation in amended claim 21 and the limitations regarding step (d) in newly added claims 24-25.
Secondly, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant primarily argues that Buettner does not expressly teach the claimed additional after-treatment to change the metal oxidation state subsequently to insolubilization. This argument merely agrees with the basis for the rejection under 35 U.S.C. 103(a), which admits that Buettner does not disclose the entire claimed invention. Rather, Thomas is relied upon to teach claimed elements missing from Buettner.
It appears applicant acknowledges Thomas teaches the metal ions are precipitated or reduced so that the fabric contains the water insoluble or sparingly water soluble metal salt. See, e.g., abstract and paragraphs [0002-0003], [0018], [0027-0028], [0031]. In the case the metal salt is reduced to form the water insoluble or sparingly water soluble metal salt, it follows a change in metal oxidation state occurs. Therefore, Thomas teaches the water-insoluble or sparingly water-soluble metal salt changes metal oxidation state.
Thirdly, it is noted that the present claims are drawn to a product and not drawn to a method of making. Thus, “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP 2113.
Therefore, absent evidence of criticality regarding the presently claimed process and given that Buettner in view of Thomas meets the requirements of the claimed product, i.e., cellulosic fiber comprising ion exchanger and water insoluble or sparingly water soluble metal salt that has changed metal oxidation state, Buettner in view of Thomas clearly meets the requirements of the present claim.
Applicant further argues Thomas fails to teach the incorporation of ion exchange resins into a cellulosic fiber spinning solution. Thomas fails to teach the insolubilization of metal ions within individual fibers. Thomas teaches the treatment of a fabric, not treatment to a fiber. Remarks, page 16-18.
The Examiner respectfully disagrees, as follows:
It is noted that while Thomas does not disclose all the features of the present claimed invention, Thomas is used as teaching reference, and therefore, it is not necessary for this secondary reference to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981). Rather this reference teaches a certain concept, and in combination with the primary reference, discloses the presently claimed invention.
Thomas teaches the benefits of converting a water-soluble metal salt into a water-insoluble form, in order to provide a lasting self-sterilizing effect such that anti-microbial properties lasts for at least 30 washes, as discussed in the Office Action above. Paragraph [0043]. Given Thomas does not teach impregnating a fabric or specific structure of the fabric is necessary to achieve this conversion, it follows one of ordinary skill in the art before the effective filing date of the invention would look to Thomas to improve the antimicrobial fabric of Buettner, such that the antimicrobial fabric exhibits a self-sterilizing effect with lasting antimicrobial properties. It is the Examiner’s opinion converting a water-soluble metal into its water-insoluble form as taught by Thomas does not depend on the substrate of the water-soluble metal, i.e., whether the water-soluble metal is present on a fabric or fiber, nor does it require the presence of a fabric substrate. Therefore, Thomas’s teaching of converting the water-soluble metal is applied to the water-soluble metal present on a cellulosic fiber with predictable success.
Applicant further argues Thomas fails to teach a finish on a cellulosic fiber. Remarks, pages 17 and 19.
The Examiner respectfully disagrees, as follows:
Firstly, it is noted that while Thomas does not disclose all the features of the present claimed invention, Thomas is used as teaching reference, and therefore, it is not necessary for this secondary reference to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981). Rather this reference teaches a certain concept, and in combination with the primary reference, discloses the presently claimed invention. Thomas is not required to teach applying a finish or softener to the cellulosic fiber.
Applicant further argues Thomas fails to teach the cellulosic fibers retaining biocidal effect after at least 50 industrial standard washes in accordance with ISO 6330. Thomas teaches his method provides antimicrobial properties for 10 to 30 washes. Remarks, pages 17 and 19.
The Examiner respectfully disagrees, as follows:
Firstly, Thomas teaches the antimicrobial properties are present for at least 30 washes. Paragraph [0043].
Secondly, it is not clear how the prior art can disclose the same structure and the same material as presently claimed and not possess the properties claimed. The Office realizes that the claimed properties are not positively stated by the reference. However, the reference teaches all of the claimed ingredients and claimed structure. Therefore, the claimed properties would be inherently necessarily be capable of being achieved by the prior art. If it is Appellant’s position that this would not be the case: (1) evidence would need to be provided to support this position; and (2) it would be the Office's position that the application contains inadequate disclosure in that there is no teaching as to how to obtain the claimed properties with only the claimed ingredients and claimed amounts.”
Applicant further argues the combination does not teach or suggest the incorporation of ion exchange resins into a cellulosic fibre spinning solution, loading the ion exchange resin with the spun fiber with water-soluble metal salt, followed by the conversion of the water-soluble metal salt within the fiber into the claimed water-insoluble or sparingly water-soluble metal ion. Remarks, page 18.
The Examiner respectfully disagrees, as follows:
Firstly, it is noted that the present claims are drawn to a product and not drawn to a method of making. Thus, “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP 2113.
Therefore, absent evidence of criticality regarding the presently claimed process and given that Buettner in view of Thomas meets the requirements of the claimed product, for the reasons set forth in the response to arguments above and in the rejection above, Buettner in view of Thomas clearly meets the requirements of the present claim.
Applicant further argues Delattre does not teach the incorporation of ion exchange resin during cellulose spinning, treating the ion exchange loaded spun fibre with water soluble metal salts, much less after-treating cellulosic fibres containing such water soluble metal salt to convert the metal salt into the claimed water-insoluble or sparingly water-soluble metal ion. Applicant further argues Delattre clearly teaches away from the claimed invention by indicating that extruding antimicrobial material into polymer is “fraught with problems” and further by relying upon a linking agent rather than insolubilization. Remarks, page 21.
The Examiner respectfully disagrees, as follows:
Firstly, it is noted that while Delattre does not disclose all the features of the present claimed invention, Delattre is used as teaching reference, and therefore, it is not necessary for this secondary reference to contain all the features of the presently claimed invention, In re Nievelt, 482 F.2d 965, 179 USPQ 224, 226 (CCPA 1973), In re Keller 624 F.2d 413, 208 USPQ 871, 881 (CCPA 1981). Rather this reference teaches a certain concept, i.e., applying a softener finish to an antimicrobial fabric, and in combination with the primary reference, discloses the presently claimed invention. Since Delattre is a teaching reference, it is not required Delattre teach the incorporation of ion exchange resins during cellulose spinning, treating the ion exchange loaded spun fiber with water-soluble metal salts, much less after -treating cellulosic fibers containing such water soluble metal salt to convert the metal salt into the claimed water-insoluble or sparingly water-soluble metal ion. Remarks, pages 15-16.
As Delattre teaches this is a known treatment for antimicrobial fabrics, it follows one of ordinary skill in the art would look to Delattre to modify the antimicrobial fabric of Buettner in view of Thomas, in order to produce a softer antimicrobial fabric.
Secondly, in response to applicant's argument that Delattre teaches away from the claimed invention by indicating that extruding antimicrobial material into polymer is fraught with problems, it is noted that the features upon which applicant relies (i.e., extrusion) are not recited in the rejected claims. In addition, it is noted patentability of a product does not depend on its method of production.
Applicant argues there is no motivation to have combined Buettner, Thomas and Delattre. There is no motivation to incorporate a finish onto the cellulosic fibers, especially as Thomas indicates that his fabrics retain sufficient softness. Remarks, pages 21-22.
The Examiner respectfully disagrees, as follows:
Firstly, for the reasons set forth in the rejection mailed 08/25/2025 and the reasons in the rejection above, it is maintained there is motivation to have combined Buettner, Thomas, and Delattre. Since Applicant has not provided evidence or reasoning showing there is no motivation to combine the references, this argument is unpersuasive.
Secondly, it is noted the fabric of Thomas is not relied upon to meet any of the claimed limitation. Instead, Thomas is relied upon as a teaching reference, for a specific modification, as discussed above. The softness of the Thomas’s fabric is not relevant to the prior art combination.
Applicant has provided an affidavit comparing the retained biocidal effect after 50 washes between a cellulosic fiber that has undergone transformation from CuSO4 to CuCO3, transformation from CuSO4 to Cu2O, and an unloaded fiber.
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Affidavit, pages 1-6.
The Examiner respectfully disagrees, as follows:
Firstly, overcoming a rejection based on unexpected results requires the combination of three different elements: (i) the results must fairly compare with the closest prior art in an affidavit or declaration under 37 CFR 1.132, (ii) the claims must be commensurate in scope, and (iii) the results must truly be unexpected. MPEP 716.02. It is Applicants’ burden to explain why their proffered results are considered to be unexpected, are considered to be commensurate in scope with the claimed subject matter, and are considered to be the consequence of a comparison to the closest prior art. See, e.g., In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972).
In the instant case, Applicant has compared their data with an unloaded fiber. It does not appear this is the closest prior art to the present invention in view of Buettner in view of Thomas.
Further, the claims are not commensurate in scope with the claims. Currently, claim 7 and claim 24 requires any water insoluble metal salt or sparingly water-soluble metal salt. Claim 21 requires any water insoluble or sparingly water-soluble silver of copper salt. Yet, the evidence relied upon by Applicant specifically uses Cu2O.
In addition, Applicant has not explained why their results are considered to be unexpected.
It is reiterated it is Applicants’ burden to explain why their proffered results are considered to be unexpected, are considered to be commensurate in scope with the claimed subject matter, and are considered to be the consequence of a comparison to the closest prior art.
Secondly, it appears fiber with insoluble calcium carbonate corresponds to Example 2, pages 15, lines 19-29, in the Application-as-filed where calcium sulfate is transformed to calcium carbonate through precipitation. It appears fiber with copper oxide corresponds to Example 3, page 16, lines 1-16, in the Application-as-filed where calcium sulfate is reduced to copper oxide. It appears the precipitation in Example 2 and the reduction in Example 3 are contemplated by Thomas as Thomas teaches the metal ions are precipitated or reduced so that the fabric contains the water insoluble or sparingly water soluble metal salt. See, e.g., abstract and paragraphs [0002-0003], [0018], [0027-0028], [0031].
Thirdly, while Buettner in view of Thomas does not explicitly teach the water insoluble or sparingly water soluble metal salt is Cu2O, Buettner in view of Thomas is not closed off from such modification. In fact, Buettner teaches the cellulosic fibre comprise copper ions. Paragraphs [0038] and claim 4. Thomas teaches the metal ions are provided from copper sulfate. Paragraph [0022]. As discussed in the rejection above, in view of Gabbay, it therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to ensure the teach the water insoluble or sparingly water soluble metal salt is Cu2O, for the benefit of providing antiviral and antifungal properties in addition to antibacterial properties.
Therefore, Applicant’s affidavit is unpersuasive.
Conclusion
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/C.X.N./Examiner, Art Unit 1789
/MARLA D MCCONNELL/Supervisory Patent Examiner, Art Unit 1789
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