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 .
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
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) 1-5 and 10 is/are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over US20090117173A1(US’173).
Regarding claim 1, US’173 discloses a cost-effective and practical antimicrobial glaze system and glazing process is disclosed herein. The antimicrobial glaze/enamel may comprise at least two layers: a base layer and a top layer. The base layer may contain a typical or normal glaze widely used in sanitary ware, having a low level of zinc oxide. The base layer glaze may be directly sprayed on the clay body surface. A thin top glaze layer is sprayed on top of the base glaze layer and the top layer may contain a high level of zinc oxide. See abstract.
The top layer was sprayed on to the base layer to a post-fire thickness of approximately 150 μm. See [0023].
The top glaze layer material contains high ZnO levels in the range of between about 6.0 wt % and about 35.0 wt %, preferably about 10.0 wt % to about 25.0 wt %. Other ingredients in the top layer may include, but are not limited to, Al2O3, SiO2, and other oxides, such as, but not limited to, K2O, Na2O, Li2O, MgO, CaO, B2O3, BaO, MoO, SnO, and SrO. See [0019].
The oligodynamic elements or compounds other than zinc are added to increase the antimicrobial efficacy of the glaze or enamel, including but not limited to Hg, Ag, Cu, Fe, Pb, Bi, and/or a rare earth element or elements. See [0021] and claim 5.
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As for “the metal element is present in a state of a spinodal phase separation at least on a surface of the glaze layer”, it has been held that 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).
Regarding claim 2, US’173 discloses that sanitary ware set forth above. 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).
Regarding claims 3-4, US’173 discloses that the oligodynamic elements or compounds other than zinc are added to increase the antimicrobial efficacy of the glaze or enamel, including but not limited to Hg, Ag, Cu, Fe, Pb, Bi, and/or a rare earth element or elements. See [0021].
Regarding claim 5, US’173 discloses that the antimicrobial glaze/enamel may comprise at least two layers: a base layer and a top layer. See abstract.
Regarding claim 10, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
Response to Arguments
Applicant's arguments filed 01/29/2026 have been fully considered but they are not persuasive.
The applicant argues that none of the references discloses or reasonably suggests features required by the rejected claims, including the original limitation "the metal element is present in a state of a spinodal phase separation at least on a surface of the glaze layer".
The Examiner respectfully submits the oligodynamic elements or compounds other than zinc are added to increase the antimicrobial efficacy of the glaze or enamel, including but not limited to Hg, Ag, Cu, Fe, Pb, Bi, and/or a rare earth element or elements. See [0021] and claim 5.
The applicant argues that the instant claims require that the glaze layer contains at least one glaze material, as well as a metal element as an antivirus agent which is different from metal element(s) contained in the at least one glaze material but Chen reference discloses an antimicrobial sanitary ware (see paragraph[0002]), specifically, an antimicrobial glaze/enamel (see claim 1) comprising a base glaze layer and a top glaze layer each provided on a ceramic body in this order, wherein the top glaze layer has a higher ZnO content than the base glaze layer (see Tables 2 and 3), and specifically the top glaze layer contains more than about 8.0 percent by weight and less than about 35.0 percent by weight of ZnO (claim 1).
The Examiner respectfully submits that a reference is not limited to the teaching in its preferred embodiment (A reference is good not only for what it teaches but also for what one of ordinary skill might reasonably infer from the teachings. In re Opprecht 12 USPQ 2d 1235, 1236 (CAFC 1989); In re Bode USPQ 12; In re Lamberti 192 USPQ 278; In re Bozek 163 USPQ 545, 549 (CCPA 1969); In re Van Mater 144 USPQ 421; In re Jacoby 135 USPQ 317; In re LeGrice 133 USPQ 365; In re Preda 159 USPQ 342 (CCPA 1968). In addition, "A reference can be used for all it realistically teaches and is not limited to the disclosure in its preferred embodiments" See In re Van Marter, 144 USPQ 421).
The applicant argues that Chen fails to teach that "the glaze layer contains at least one glaze material, as well as a metal element as an antivirus agent which is different from metal element(s) contained in the at least one glaze material, the at least one glaze material comprising at least one selected from SiO2, A1203, a divalent metal oxide and a monovalent metal oxide."
The Examiner respectfully submits that the Chen teaches that the top glaze layer material contains high ZnO levels in the range of between about 6.0 wt % and about 35.0 wt %, preferably about 10.0 wt % to about 25.0 wt %. Other ingredients in the top layer may include, but are not limited to, Al2O3, SiO2, and other oxides, such as, but not limited to, K2O, Na2O, Li2O, MgO, CaO, B2O3, BaO, MoO, SnO, and SrO. See [0019].The oligodynamic elements or compounds other than zinc are added to increase the antimicrobial efficacy of the glaze or enamel, including but not limited to Hg, Ag, Cu, Fe, Pb, Bi, and/or a rare earth element or elements. See [0021] and claim 5.
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As for “the metal element is present in a state of a spinodal phase separation at least on a surface of the glaze layer”, it has been held that 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).
The applicant argues that that "Zn" from ZnO contained in Chen's glaze layers is expressly different from "a metal element as an antivirus agent" defined in present claim 1.
The Examiner respectfully submits that oligodynamic elements or compounds other than zinc are added to increase the antimicrobial efficacy of the glaze or enamel, including but not limited to Hg, Ag, Cu, Fe, Pb, Bi, and/or a rare earth element or elements.
The applicant argues that plain meaning of the language "a state of a spinodal phase separation".
The Examiner respectfully submits that oligodynamic elements or compounds other than zinc are added to increase the antimicrobial efficacy of the glaze or enamel, including but not limited to Hg, Ag, Cu, Fe, Pb, Bi, and/or a rare earth element or elements. As for “the metal element is present in a state of a spinodal phase separation at least on a surface of the glaze layer”, it has been held that 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).
The applicant argues that Chen's disclosure that his antimicrobial glaze is fired in air at 1215 for a soak time of 45 minutes, which is understood to render at least Zn among the metal elements in the glaze crystallized.
The Examiner respectfully submits that oligodynamic elements or compounds other than zinc are added to increase the antimicrobial efficacy of the glaze or enamel, including but not limited to Hg, Ag, Cu, Fe, Pb, Bi, and/or a rare earth element or elements. it has been held that 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).
The applicant argues that Chen includes 8-35 wt % of ZnO in the top glaze layer of his antimicrobial glaze that enables Chen's sanitary ware to exhibit antimicrobial activity ,while conversely it is "a metal element as an antivirus agent" which is different from Zn or ZnO by any means and which is present in a state of a spinodal phase separation at least on a surface of the glaze layer that enables the invention according to present claim 1 to exhibit antivirus activity.
The Examiner respectfully submits that oligodynamic elements or compounds other than zinc are added to increase the antimicrobial efficacy of the glaze or enamel, including but not limited to Hg, Ag, Cu, Fe, Pb, Bi, and/or a rare earth element or elements.
The applicant argues that there is an essential difference between the invention according to present claim 1 and the invention disclosed by Chen, not only in their structure or composition but also by the state in which antimicrobial activity/antivirus activity is exhibited.
The Examiner respectfully submits that US’173 discloses a cost-effective and practical antimicrobial glaze system and glazing process is disclosed herein. The antimicrobial glaze/enamel may comprise at least two layers: a base layer and a top layer. The base layer may contain a typical or normal glaze widely used in sanitary ware, having a low level of zinc oxide. The base layer glaze may be directly sprayed on the clay body surface. A thin top glaze layer is sprayed on top of the base glaze layer and the top layer may contain a high level of zinc oxide. See abstract. The top layer was sprayed on to the base layer to a post-fire thickness of approximately 150 μm. See [0023]. The top glaze layer material contains high ZnO levels in the range of between about 6.0 wt % and about 35.0 wt %, preferably about 10.0 wt % to about 25.0 wt %. Other ingredients in the top layer may include, but are not limited to, Al2O3, SiO2, and other oxides, such as, but not limited to, K2O, Na2O, Li2O, MgO, CaO, B2O3, BaO, MoO, SnO, and SrO. See [0019]. The oligodynamic elements or compounds other than zinc are added to increase the antimicrobial efficacy of the glaze or enamel, including but not limited to Hg, Ag, Cu, Fe, Pb, Bi, and/or a rare earth element or elements. See [0021] and claim 5. As for “the metal element is present in a state of a spinodal phase separation at least on a surface of the glaze layer”, it has been held that 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).
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
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 SHUANGYI ABU ALI whose telephone number is (571)272-6453. The examiner can normally be reached Monday - Friday, 8:00 am- 5:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amber Orlando can be reached at (571)270-3149. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SHUANGYI ABU ALI/Primary Examiner, Art Unit 1731
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