DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
The amendment of claims 1-3, 6 are supported by the specification.
Any rejections and/or objections made in the previous Office action and not repeated below are hereby withdrawn.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The new grounds of rejection set forth below are necessitated by applicant's amendment filed on 8/17/2026. Thus, the following action is properly made final.
Claim Rejections - 35 USC § 103
Claims 1-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kocurek et al (US 2017/0190864).
Claim 1, 3-6, 10: Kocurek teaches a compressible sealant composition comprising a polymeric dispersion, diluent, defoamer, surfactant, biocides, freeze/thaw additive, dispersant, microsphere Expancel 909 DET 80 which has a particle size of 60-90um and true density of 12-18, a thickener, a pH modifier, a flame retardant, a filler such as talc or kaolin clay, an adhesion promoter (abstract, claims, tables 1-6). The polymer can be styrenated acrylic, acrylate acrylonitrile etc [0017, table 4, table 6]. The microsphere is mixed with other ingredients by using a peristaltic pump [0053].
The choice of polymeric chemical composition may depend upon the intended end use of the product [0018]. Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to choice a polymer mixture like claimed through routine experimentation to balance between cost and performance. Case law holds that "discovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art." In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977). In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
Claim 2: Kocurek teaches the density of the sealant can range from 0.51-0.99.
Claims 7-9: It is noted that “are introduced into…” is a product-by-process limitation. Case law holds that “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.” See In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985).
Response to Arguments
Applicant's arguments filed 8/17/2026 have been fully considered but they are not persuasive.
In response to applicant's argument regarding freeze-thaw stability, it is noted that 1) this feature is not recited in the claims; 2) unexpected results should be demonstrated by experimental data, be compared to the closest prior art and be commensurate in scope of the scope of the claims.
In response to applicant's argument that Kocurek does not teach the relatively high amounts of surfactant, it is noted that claim recites 1-2 wt% of surfactant, and Kocurek discloses the amount of surfactant can be 0.68-1.19wt%.
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 extension fee 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 date of this final action.
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/WENWEN CAI/
Primary Examiner, Art Unit 1763
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