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 the Claims
Claims 1-6, 9, 11- 17, 21-23 and 28-32 are pending.
Claims 1, 15 and 16 have been amended.
Claim 23 is withdrawn.
Claims 7, 8, 10, 18-20 and 24-27 have been cancelled.
Response to Arguments
Applicant's arguments filed 3/16/2026 have been fully considered but they are not persuasive.
Applicant Argument A:
Applicant respectfully notes that, while Chapman describes both beverage pouches adapted for brewing or steeping (e.g., tea bags) and oral pouched product designed for insertion into the oral cavity, the Office relies on the relevant disclosure of oral pouched products in Chapman as allegedly serving as a starting point to guide one of ordinary skill in the art to the claimed subject matter (which relates to a pouched product "adapted for use in a user's oral cavity"). To modify such an oral pouched product as disclosed in Chapman, one of ordinary skill in the art would not turn to Bushman, which relates only to tea-bag and coffee-bag products (i.e., non-oral products, which are designed to be steeped in hot water, and not designed for insertion within the mouth of the user).
As such, one of skill in the art is provided with any motivation to modify an oral pouched product as described in Chapman to employ features of pouch materials (as described in Bushman) that are relevant to tea-bag and coffee-bag products (which materials are not indicated to be advantageous or even useful in the context of an oral pouched product).
Examiner Response A:
The Examiner respectfully disagrees. Bushman expressly teaches that the pouch material is used for the construction of a tea bag and components of the loosely arranged composition adapted for oral use readily diffuse through the pouch and into the mouth of the user (or into a surrounding environment, such as the fluid into which a pouched product may be placed, for example in embodiments wherein the pouched product may be a tea bag or the like) ([0041]). It would have been obvious for one of ordinary skill in the art at the time of filing to have taken the characteristics of the fibers of the pouched product of Bushman and applied them to Chapman, which teaches a similar pouch material, with a reasonable expectation of success and predictable results. The known characteristics of the fibers of a pouched product taught by Bushman would have predictably resulted in an effective pouched product for a tobacco material. Therefore, it would have been within the skill of the ordinary artisan to use those fiber characteristics in the pouched product of Chapman. See MPEP 2143 I D.
Applicant Argument B:
Applicant respectfully submits that the PLA fibers of Chapman are understood to serve a distinct purpose (namely, as heat sealable binder fibers) that is readily distinguishable from the purpose of the PLA fibers of Bushman (which is simply to serve as a component of the filter fabrics described therein, e.g., to provide biodegradable properties). Chapman includes one reference to PLA, noting that multiple layers of fabric can be formed from similar nonwoven web compositions (e.g., constructed of a blend of viscose fibers with heat sealable binder fibers such as PLA fibers). It is thus understood that the PLA fibers are incorporated for the specific purpose of providing for heat sealing. By contrast, PLA fibers are employed in Bushman as an example of a "synthetic fiber or material," and in particular, as a biodegradable material. One of ordinary skill in the art would not reasonably take guidance on the content of PLA fibers to incorporate within Chapman's nonwoven material based on the teachings of Bushman, as the amounts of PLA fibers provided in Bushman would not be understood to be relevant to the PLA heat sealable binder fibers specifically incorporated within Chapman's nonwoven material.
Examiner Response B:
The Examiner respectfully disagrees. The PLA fibers may be included for different purposes in Chapman and Bushman, but that does not obviate that the teachings of Bushman are relevant to Chapman. It does not change that it would have been obvious for one of ordinary skill in the art at the time of filing to have taken the characteristics of the fibers of the pouched product of Bushman and applied them to Chapman, which teaches a similar pouch material, with a reasonable expectation of success and predictable results. The known characteristics of the fibers of a pouched product taught by Bushman would have predictably resulted in an effective pouched product for a tobacco material. Therefore, it would have been within the skill of the ordinary artisan to use those fiber characteristics in the pouched product of Chapman. See MPEP 2143 I D.
Applicant Argument C:
Bushman provides no disclosure of combinations wherein one fiber component is present in an amount of about 80% or more by weight, much less wherein PLA is specifically present in an amount of about 80% of more by weight.
With respect to the Office's reference to Bushman as allegedly disclosing that the "nonwoven filter fabric composition ... may comprise 1%-99% plastic(s) and 1%-99% natural material(s)," citing paragraph [0042] of the reference, Applicant notes that the general teachings suggest significantly lower "plastics" fiber contents. That same paragraph references maximum plastics values of 75%. Furthermore, this general teaching with respect to "plastic(s)" fiber content must be considered in the context of the reference in its entirety which, as noted above, describes fiber compositions comprising three or more fibers. Even if Bushman is viewed as reasonably teaching a 99% "plastic(s)" fiber content, it follows that this content would incorporate (particularly at the higher end of the range) more than one "plastic" fiber, e.g., consistent with the ratios referenced in the prior paragraph. When Bushman is viewed in its entirety, Applicant respectfully submits it is unreasonable that one of ordinary skill in the art would predictably be led to manufacture a fabric comprising 80% by weight or more of a biodegradable polyester fiber in combination with 10% by weight or more of polyester fibers (e.g., PLA fibers) as proposed by the Office. As such, even if one of ordinary skill in the art were to reasonably combine reference teachings as proposed (turning from Chapman to Bushman), he or she would not predictably be led to the subject matter of the pending claims.
Examiner Response C:
The Examiner respectfully disagrees. The Applicant has not argued why the obviousness rejection is incorrect, which is a combination of Chapman and Bushman. The courts have held that “a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely that product [was] not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under § 103."KSR, 550 U.S. at 421, 82 USPQ2d at 1397. See MPEP 2143 I E.
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 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) 1-6, 9, 11, 12, 15-17, 21, 22, 31 and 32 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 20160157515 (Chapman hereinafter) in view of US 20190335935 (Bushman hereinafter).
Regarding claims 1 and 9, Chapman teaches a pouched product, comprising: an outer water-permeable pouch defining a cavity; and, a composition comprising a water-soluble component, wherein the composition is situated within the cavity (abstract); wherein the outer water-permeable pouch comprises a nonwoven web comprising fibers (“fleece” pouch); and wherein the fibers comprise PLA fibers, which are biodegradable polyester fibers, and viscose fibers ([0109]), which are cellulosic fibers ([0097]).
Chapman teaches that the pouch provides a liquid-permeable container of a type that may be considered to be similar in character to the mesh-like type of material that is used for the construction of a tea bag and that components of the loosely arranged composition adapted for oral use readily diffuse through the pouch and into the mouth of the user ([0041]).
Chapman does not expressly teach that the nonwoven web comprises at least 80% by weight of the biodegradable polyester fiber, specifically PLA fibers, and at least about 10% by weight or more of the viscose fibers or cellulosic fibers.
Bushman teaches a pouched product that can be used to filter coffee, tea, spices, herbs, hops ([0009]) comprising: an outer water-permeable pouch defining a cavity and a composition comprising a water-soluble component wherein the composition is situated within the cavity ([0024]); the outer water-permeable pouch comprises a nonwoven web comprising fibers, wherein the first portion of fibers are naturally-derived and the second portion of fibers are a thermoplastic ([0037]). The thermoplastic can be polylactic acid (PLA) ([0034]) and the naturally-derived material includes viscose fibers or cellulose-based fibers or sisal fibers ([0032]).
It would have been obvious for one of ordinary skill in the art at the time of filing to have taken the characteristics of the fibers of the pouched product of Bushman and applied them to Chapman, which teaches a similar pouch material, with a reasonable expectation of success and predictable results. The known characteristics of the fibers of a pouched product taught by Bushman would have predictably resulted in an effective pouched product for a tobacco material. Therefore, it would have been within the skill of the ordinary artisan to use those fiber characteristics in the pouched product of Chapman. See MPEP 2143 I D.
Modified Chapman teaches selecting a thermoplastic fibers, including PLA fibers, and a naturally derived material fibers, including viscose fibers or cellulose-based fibers or sisal fibers, provides no limits regarding the percent by weight of one relative to the other, and thus encouraging one of ordinary skill to utilize a variety of weights as evidenced by the broad disclosure in Bushman; however, Modified Chapman does not explicitly teach that the nonwoven web comprises at least 80% by weight of the thermoplastic fibers, specifically PLA fibers, and at least about 10% by weight or more of the naturally-derived material fibers, specifically sisal fibers or cellulose fibers or combinations thereof.
However, it would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to utilize at least 80% by weight thermoplastic fibers, specifically PLA fibers, and at least about 10% by weight or more of the naturally-derived material fibers, specifically sisal fibers or cellulose fibers, in the non-woven pouch of Modified Chapman as Modified Chapman teaches that the nonwoven filter fabric composition of the present invention may comprise 1%-99% plastic(s) and 1%-99% natural material(s) (Bushman, [0042]) and also teaches the nonwoven filter fabric composition of the present invention may be comprised in whole or in part of a biodegradable materials such as but not limited to a bioplastic such as polylactic acid (PLA) (Bushman, [0036]) presenting a reasonable expectation of success, selection of a particular materials such as PLA for a first fiber and sisal fibers for a second fiber presents selection by one of ordinary skill of fibers from a finite number of identified predictable solutions for the fiber and serves to use the fibers for their identified intended purpose as a naturally derived fiber establishing predictable results. "The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 82 USPQ2d 1385 (2007).
Regarding claims 2-6, modified Chapman teaches that the fibers measure about 1.5 dpf to about 2.0 dpf (Chapman, [0100]) and that the fibers in the nonwoven pouch include continuous filament fibers and staple fibers (Chapman, [0093]). Modified Chapman teaches the staple fibers measure about 35 mm to about 60 mm in length ([0100]). Modified Chapman teaches that the fibrous webs have a basis weight of about 20 gsm to about 35 gsm such that the fiber orientation and porosity of the pouched product formed therefrom can retain the composition adapted for oral use that is enclosed within the outer water-permeable pouch, but can also allow the flavors of the composition to be enjoyed by the consumer (Chapman, [0107]).
Regarding claim 11, modified Chapman teaches that the nonwoven web comprises sisal fibers (Bushman, [0032]).
Regarding claim 12, modified Chapman teaches that the nonwoven web comprises corn fibers (Bushman, [0032]).
Regarding claim 15, modified Chapman does not expressly teach that the cellulosic fiber is MCC. However, MCC is a naturally occurring cellulose material and it would have been obvious for one of ordinary skill in the art at the time of filing to have chosen any suitable cellulose as the cellulose fiber in the nonwoven web including MCC. Selection of a known prior art material for its intended purpose such as a fiber presents a case of prima facie obviousness. Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945). The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination.
Regarding claim 16, modified Chapman teaches a further portion of fibers (Chapman, [0030]), wherein the further portion of fibers comprises fibers formed from a polymer material (Chapman, [0030] and [0033]).
Regarding claims 17, modified Chapman teaches that the nonwoven web comprises a heat sealable binder coating on the nonwoven web (Chapman, [0095]).
Regarding claim 21, modified Chapman teaches that the composition is substantially free of a tobacco material, and specifically comprises coffee or tea (Bushman, [0024]).
Regarding claims 22 and 32, modified Chapman teaches that the composition comprises particulate non-tobacco material (e.g., microcrystalline cellulose) that has been treated to contain nicotine (Chapman, [0035]).
Regarding claim 31, modified Chapman teaches that the composition comprises tea (Bushman, [0024]), but does not expressly teach the type of tea. It would have been obvious for one of ordinary skill in the art at the time of filing to have chosen any tea, especially one of the most common teas, specifically black tea or green tea, with a reasonable expectation of success and predictable results.
Claim(s) 13 and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chapman view of Bushman as applied to claim 1 above, and further in view of US 20040094474 (Heinrich hereinafter).
Regarding claims 13 and 14, modified Chapman teaches regenerated cellulose fibers are particularly advantageous, and are typically prepared by extracting non-cellulosic compounds from wood (Chapman, [0098]), but does not expressly teach that the natural fibers are long wood fibers.
Heinrich teaches a filter material for tea bags which includes natural fibers such as hemp, manila, jute, sisal and long fiber wood ([0062]). Modified Chapman teaches that the nonwoven material is used in tea bags (Chapman, [0035] and Bushman, [0024]) and that the natural fibers include hemp and sisal (Bushman, [0032]). It would have been obvious for one of ordinary skill in the art before the effective filing date of the invention to have looked to the material in the filters of tea bags such as taught by Heinrich to apply to the filter material of modified Chapman with a reasonable expectation of success and predictable results, namely that natural fibers are biodegradable ([0005]).
Modified Chapman does not expressly teach that the long wood fibers are wood-derived from at least one gymnosperm tree. However, the steps and parameters for the process of making the long wood fibers does not add patentable details to this invention, as no structural characteristics are associated with the step in the specification. Furthermore, the prior art discloses the same structural characteristics as the instantly claimed long wood fibers. As such, this is a “product by process” claim limitation. See MPEP 2113 and 2114. “[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), (MPEP 2113).
Claim(s) 28-30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chapman in view of Bushman as applied to claim 1 above, and further in view of US 20140271791 (Mishra hereinafter).
Regarding claims 28-30, modified Chapman does not expressly teach that the oral pouched product comprises vitamins or active ingredients as claimed.
Mishra teaches an oral pouched product which includes vitamins, such as Vitamin C ([0041]), citicoline, caffeine and taurine ([0040]). It would have been obvious for one of ordinary skill in the art at the time of filing to have included these active ingredients in the pouch of modified Chapman to provide a burst of energy to the consumer (Mishra, [0002]).
Conclusion
THIS ACTION IS MADE FINAL. 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 YANA B KRINKER whose telephone number is (571)270-7662. The examiner can normally be reached Monday, Wednesday, Thursday and Friday.
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, Philip Louie can be reached at 571-270-1241. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
YANA B. KRINKER
Examiner
Art Unit 1755
/YANA B KRINKER/Examiner, Art Unit 1755 /PHILIP Y LOUIE/Supervisory Patent Examiner, Art Unit 1755
Prosecution Insights