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 § 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.
Claim(s) 1-7, 10-14, 16-19, and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Parish in view of Modliszewksi and Zhao. Parish (US 2007/0079722) in view of Modliszewski (US 2005/0019294). Regarding claim 1, Parish discloses a paintball construction comprising a fill material and a shell. Note paragraphs [0106], [0022] and [0102] stating that the fill material comprises calcium chloride, polyethylene glycol and water. Parish also teaches that the shell comprises gelatin, water, and a plasticizer such as glycerine. Note paragraph [0109]. However, Parish lacks the teaching for the shell to comprise an alginate. Modliszewski teaches that it is known in the art of capsules including paintballs and soft capsules to form the capsule from certain alginates includes sodium alginate. Note paragraph [0024]. Modliszewski states that using an alginate such as sodium alginate provides significant film strength to the gel film. It would have been obvious to one of ordinary skill in the art to form the shell of Parish using sodium alginate in order to take advantage of the material's well known physical characteristics and provide a proper strength coating for the projectile. The combination of Parish in view of Modliszewski teaches a paintball construction comprising a gelatin shell including sodium alginate. Note paragraphs [0023]-[0025] of Modliszewski. Modliszewski particularly states that the alginates such as sodium alginate provide improved strength to the shell of the paintball. Further, note paragraph [0051] of Modliszewski stating that his capsule product is equally applicable to paintballs, liquid, semi-liquid or powder pharmaceutical capsules and other soft capsules. However, the combination lacks the teaching for the alginate to comprise a calcium alginate. Zhao reveals that it is known in the art of capsules comprising a gelatin shell to form the shell using either sodium or calcium alginate. Note paragraph [0095]. It would have been obvious to one of ordinary skill in the art to replace the sodium alginate as taught by Modliszewski with the calcium alginate in order to take advantage of that material's known physical characteristics and because Zhao teaches that each of these materials are equally well known in the art of capsules comprising a gelatin shell. The examiner takes the position that it would be entirely obvious to only have calcium alginate in the shell as a matter of user preference. The examiner notes that the selection of known materials based on its suitability for its intended use supported a prima facie case of obviousness. See in re Leshin, 277 F.2d 197, 125 USPQ 416 (CCP! 1960).
Regarding claims 2 and 3, the particular amounts of alginate, gelatin, plasticizer and water for the shell are considered to be obvious given the teachings of Parish and Modliszewski and the lack of a showing of the criticality for the particular amounts by the demonstration of a new and unexpected result obtained therefrom. Note paragraphs [0056] and [0057] of Parish stating that the selection of the components for the paintball is completed in order to provide a projectile that is compatible with conditions and elements found in the environment such as heat, light, oxygen, water, and reasonable incidental impacts. The capsules should also possess the characteristics and qualities that have been found desirable in commonly used projectiles such as paint balls. Note also paragraph [0110] stating that more or less water may be provided for the shell of the ball. Note paragraphs [0143], [0151], and [0152] defining different recipes for the shell comprising the gelatin, water and glycerin. Further, note paragraph [0025] of Modliszewski stating that the amount of alginate added to the shell adds strength to the film. Thus, Parish and Modliszewski establish the amount of the alginate, gelatin, plasticizer (e.g., glycerin) and water are result-effective variables, i.e., variables that achieve a recognized result. Note MPEP 2144.05(II)(B). Here, both Parish and Modliszewski teach that the amount of water, plasticizer (e.g., glycerin), gelatin and alginate alter the physical characteristics of the shell of the paintball and thus, to modify the amounts of these materials for the shell would have been obvious to one of ordinary skill in the art in order to achieve particular physical characteristics for the paintball. Regarding claims 4 and 5, the particular amounts of calcium chloride, polyethylene glycol and water for the fill material is considered to be obvious given the teachings of Parish and Modliszewski and the lack of a showing of the criticality for the particular amounts by the demonstration of a new and unexpected result obtained therefrom. Note paragraph [0094] of Parish stating that the fill material should possess the desirable properties generally expected with fillers commonly used in the industry, i.e., washability, target surface adhesion, low splatter radius, and good marking properties. Note paragraph [0099] of Parish stating that the fill material is selected to provide proper thickness of the material and to adjust the surface area of the impacted paintball. Thus, Parish and Modliszewski establish the amounts of calcium chloride, polyethylene glycol and water are result-effective variables, i.e., variables that achieve a recognized result. Note MPEP 2144.05(II)(B). Here, both Parish and Modliszewski teach that the amount of water, calcium chloride and polycthylene glycol alter the physical characteristics of the shell of the paintball and thus, to modify the amounts of these materials for the fill material would have been obvious to one of ordinary skill in the art in order to achieve particular physical characteristics for the paintball. Regarding claim 6, Parish teaches that the plasticizer comprises glycerin. Note paragraph [0109]. Regarding claim 7, note paragraph [0143] of Parish defining a dye for the shell. Regarding claim 9, the water as taught by Parish defines a liquid for the fill material. Note paragraph [0102]. Regarding claim 17, note the rejection of claim 1 as these claims recite similar limitations. The combination of Parish in view of Modliszewski teaches the shell comprising the alginate, gelatin, water, and plasticizer such as glycerine. Note paragraph [0109] of Parish and paragraph [0024] of Modliszewski. Regarding claims 18 and 19, note the rejections of claims 2 and 3 as these claims recite similar limitations.
Claim 8, 15, 21 are rejected under 35 U.S.C. 103 as being unpatentable over Parish (US 2007/0079722) in view of Modliszewski (US 2005/0019294) and Zhang as applied to claims 1-7. 11-14, 16-19 and 22 above and further in view of Louys, Jr. (US 2007/0071781). Regarding claim 8, the combination of Parish in view of Modliszewski lacks the teaching for the shell of the paintball to comprise a preservative. Louys, Jr. reveals that it is known in the art of paintballs to provide the shell with a preservative. Note paragraph [0002] defining a paintball and paragraph [0010] teaches that the gelatin shell may contain preservatives such as parabens. It would have been obvious to one of ordinary skill in the art to provide the gelatin shell of Parish with a preservative such as a paraben in order to take advantage of that material's physical characteristics and provide a paintball with a longer shelf life. 9. Claims 10-14, 16 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Parish (US 2007/0079722) in view of Modliszewski (US 2005/0019294) and Zhao (US 2015/0279056).
Regarding claim 11, note the rejection of claims 1 and 10 as the combination of Parish in view of Modliszewski and Zhao teaches the calcium alginate shell and the fill material comprising polyethylene glycol, calcium chloride and water.
Regarding claims 12 and 13, note the rejections of claims 4 and 5 as these claims recite similar limitations.
Regarding claim 14, note the rejection of claim 7 as these claims recite similar limitations.
Regarding claim 16, note the rejection of claim 9 as these claims recite similar limitations.
Regarding claim 20, note the rejection of claim 10 as these claims recite similar limitations.
Applicant's arguments filed 12/16/2025 have been fully considered but they are not persuasive.
Regarding applicant’s argument that none of the applied prior art shows the limitation of consisting of calcium alginate, the examiner notes that a 103 rejection was made and the examiner pointed out that it would be obvious to replace the sodium alginate with calcium alginate as both are known materials with known benefits or properties. As noted supra, it is known to select known materials based on its suitability for its intended use. In this case, both sodium and calcium alginate are known materials and would be entirely obvious to combine both materials or use each material by itself based on the suitability of the intended use of the material.
The examiner further notes that applicant referred to paragraph 43 to support the amendment regarding “consisting” calcium alginate. The entire process starts with sodium alginate and water in step 101. It is unclear as to how the sodium alginate is “completely” eliminated with the denaturing process where calcium is added.
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 EUGENE LEE KIM whose telephone number is (571)272-4463. The examiner can normally be reached Monday to Thursday 6am-4pm.
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/EUGENE L KIM/Supervisory Patent Examiner, Art Unit 3711
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