DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of t/e previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 1/20/2026 has been entered.
Status of Application
The Examiner acknowledges receipt of the amendments filed on 1/20/2026 wherein claims 1 and 2 have been amended and claims 13-15 have been cancelled.
Claims 1-8 are presented for examination on the merits. The following rejections are made.
Response to Applicants’ Arguments
Applicant’s amendments filed 1/20/2026 overcome the rejection of claims 1 and 13-15 made by the Examiner under 35 USC 103 over Lunk et al. (US 2016/0106108). This rejection has been withdrawn. It is noted that claims 13-15 have been cancelled.
Applicant’s arguments filed 1/20/2026 regarding the rejection of claims 2-8 made by the Examiner under 35 USC 103 over Lunk et al. (US 2016/0106108) have been fully considered but they are not found persuasive and is MAINTAINED for the reasons of record in the office action mailed on 10/20/2026.
In regards to the 103 rejection, Applicant asserts the following:
A) Lunk’s oxygen-deficiency disclosure is broad and lacks any teaching of criticality at 5 mol% for the tungsten blue. Lunk does not describe a particle size as narrow as 0.25 microns. There is no suggestion in Lunk to use the compound for the claimed purpose.
In response to A, while Lunk provides a broad array of potential oxygen deficient species where x can be from 0.01 through 1.0, Lunk also provides discrete x value where the x can be 0.12, 0.18 or 0.24 which correspond to mol deficiencies of 4%, 5% and 6%. The x value of 0.18 corresponds to a deficiency which matches that claimed. Given that the deficiency is specifically enumerated, it is unreasonable narrow to suggest that Lunk does not contemplate it due to the breadth of their generic range.
Regarding the dimensions of the resulting particle, Lunk teaches that their particles can be broadly sized to an average dimension of 0.1 to 200 microns. However, Lunk provides discrete average dimensions for the particles of which 0.2 and 0.3 microns are both suggested. These values encompass that claimed 0.25 microns, and as such, being within these two values would obviate the dimension claimed.
The purpose of the invention is not considered differentiating with respect to the prior art. The property of being “antimicrobially active” implies the material be used in some way sufficient to affect such an outcome. However, the use of the composition does not limit the composition itself. See MPEP 2111.02(II) regarding intended use limitations. Lastly, the property of being “antimicrobially active” is a property of the composition itself. An oxygen-deficient tungsten blue material would necessarily have such a property given that a chemical compound and its properties are inseparable. Such a rationale is applicable in the current circumstance. Applicant’s argument are not considered persuasive.
Rejections
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.
Claims 1-4 and 6-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Guggenbichler (US 2019/0029259).
Guggenbichler describes an antimicrobial composite material. The composite is to be a mixture of a tungsten containing material and at least one further material (see claim 1), wherein the tungsten material has the formula WO3-x and x is a value of 0-1 (see claim 3). Guggenbichler is sufficiently narrow that one would envisage the tungsten material alone (e.g. prior to addition to the further material) thereby resulting in an antimicrobial agent representative of instant claim 1.
Guggenbichler’s tungsten material, WO3-x, is to have an x value of 0-1 thereby suggesting an oxygen-deficient tungsten oxide (i.e. WO3) overlapping with that claimed. Guggenbichler teaches that x can take for example value of 0, 0.01, 0.02, 0.03, 0.04, 0.05, 0.06, 0.07, 0.08, 0.09, 0.10, 0.11, 0.12, 0.13, 0.14, 0.15, 0.16, 0.17, 0.18, 0.19, 0.20, 0.21, 0.22, 0.23, 0.24, 0.25, 0.26, 0.27, 0.28, 0.29, 0.30, 0.31, 0.32, 0.33, 0.34, 0.35, 0.36, 0.37, 0.38, 0.39, 0.40, 0.41, 0.42, 0.43, 0.44, 0.45, 0.46, 0.47, 0.48, 0.49, 0.50, 0.51, 0.52, 0.53, 0.54, 0.55, 0.56, 0.57, 0.58, 0.59, 0.60, 0.61, 0.62, 0.63, 0.64, 0.65, 0.66, 0.67, 0.68, 0.69, 0.70, 0.71, 0.72, 0.73, 0.74, 0.75, 0.76, 0.77, 0.78, 0.79, 0.80, 0.81, 0.82, 0.83, 0.84, 0.85, 0.86, 0.87, 0.88, 0.89, 0.90, 0.91, 0.92, 0.93, 0.94, 0.95, 0.96, 0.97, 0.98, 0.99 or 1.00 as well as all of the possible intermediate values (see [0015]). While Guggenbichler does not describe the oxygen deficiency in terms of mol%, it does instead in terms of formula where the deficiency can be reflected as a differential of between 0.01-1.0 of the 3 mol. The claimed 5% oxygen deficiency corresponds to a differential (x) of 0.18 (which is a value enumerated by the reference).
The antimicrobial oxygen-deficient tungsten oxide of Guggenbichler may be sized to a dimension of 0.2 and 0.3 microns (see [0015]) (see instant claim 1). An average size of 0.25 would be obvious as this value is sandwiched in between enumerated values suggested by the reference. Although Guggenbichler is silent with respect to the particles being free of a particle sized less than 0.1 microns, this property is likely implicit to the reference upon identifying and employing a plurality of particles having an average diameter of 0.2 and 0.3.
The antimicrobial oxygen-deficient tungsten oxide may be combined (i.e. agglomerated) with other materials such as hydrophilizing and/or hygroscoping agents, organic polymers and silicones as well as ceramics (see [0018, 0020, 0035]) (see instant claims 2-5 and 7). The resulting material is described by Guggenbichler as a ‘composite material’ (see Title and [0017-0019] and claim 1). Guggenbichler states that the composite material may comprise the antimicrobial oxygen-deficient oxide in an amount of 0.1-10% by mass (see [0019]) (see instant claim 6). As the antimicrobial oxygen-deficient tungsten particles are dispersed or agglomerated with other materials (e.g. organic polymers, silicon oxide) the resulting composite can fairly be described as a ‘particle composite’ as required by instant claim 8.
Guggenbichler fails to specifically teach the population of particles being free from particles of less than 0.1 microns.
As Guggenbichler never contemplates including particles of a dimension below 0.1 microns together with the fact that the reference requires their particles be sized to a size of 0.1, 0.2, 0.3, 0.4, 0.5, 0.6, 0.7, 0.8 and 0.9 microns (see [0011]), which excludes a size below 0.1 microns, would strongly suggest the limitation that the composition be free of particles less than 0.1 micron as stated by instant claim 1. However, in the event that Guggenbichler teaching does not describe the composition being free of particles having a particle size of less than 0.1 micron, such still would have been obvious from the general framework provided by the reference. See MPEP 2144.05(II)(A) which states that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Claims 2-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lunk et al. (US 2016/0106108).
Lunk is directed to an antimicrobial material comprising a metal oxide of formula
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20
110
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wherein x is 0<x<1, y is 0≤y≤2 and z is 2.0≤z≤3.0 and M denotes a metal other than Mo and W (see abstract). [0021] states that the metal oxide may oxygen deficient according to the following stipulation:
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23
310
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wherein x can be 0.01 through 1.00. Lunk describes an oxygen-deficient tungsten oxide (i.e. WO3) identical to that claimed. Lunk teaches that x can take for example value of 0, 0.01, 0.02, 0.03, 0.04, 0.05, 0.06, 0.07, 0.08, 0.09, 0.10, 0.11, 0.12, 0.13, 0.14, 0.15, 0.16, 0.17, 0.18, 0.19, 0.20, 0.21, 0.22, 0.23, 0.24, 0.25, 0.26, 0.27, 0.28, 0.29, 0.30, 0.31, 0.32, 0.33, 0.34, 0.35, 0.36, 0.37, 0.38, 0.39, 0.40, 0.41, 0.42, 0.43, 0.44, 0.45, 0.46, 0.47, 0.48, 0.49, 0.50, 0.51, 0.52, 0.53, 0.54, 0.55, 0.56, 0.57, 0.58, 0.59, 0.60, 0.61, 0.62, 0.63, 0.64, 0.65, 0.66, 0.67, 0.68, 0.69, 0.70, 0.71, 0.72, 0.73, 0.74, 0.75, 0.76, 0.77, 0.78, 0.79, 0.80, 0.81, 0.82, 0.83, 0.84, 0.85, 0.86, 0.87, 0.88, 0.89, 0.90, 0.91, 0.92, 0.93, 0.94, 0.95, 0.96, 0.97, 0.98, 0.99 or 1.00 as well as all of the possible intermediate values (see [0021]). While Lunk does not describe the oxygen deficiency in terms of mol%, it does instead in terms of formula where the deficiency can be reflected as a differential of between 0.01-1.0 of the 3 mol. The claimed 5% oxygen deficiency results in a differential (x) of 0.18 which is a value enumerated by the reference.
The antimicrobial oxygen-deficient tungsten oxide of Lunk may be sized to a dimension of 0.1, 0.2, 0.3, 0.4, 0.5, 0.6, 0.7, 0.8 and 0.9 microns (see [0011]) (see instant claims 1, 13 and 14). Although Lunk is silent with respect to the particles being free of a particle size of less than 0.1 microns, this property is likely implicit to Lunk’s disclosure upon identifying and employing a plurality of particles having an average diameter of 0.1, 0.2, 0.3, 0.4, 0.5, 0.6, 0.7, 0.8 and/or 0.9 microns.
The antimicrobial oxygen-deficient tungsten oxide may be combined (i.e. agglomerated) with other materials such as organic polymers and silicones as well as ceramics comprising silicon oxide (SiO2) (see [0012, 0017]) (see instant claims 2-5 and 7). The resulting material is described by Lunk as a ‘composite material’ (see Title and [0017-0019]) (see instant claim 6). Lunk states that the composite material may comprise the antimicrobial oxygen-deficient oxide in an amount of 0.1-10% by mass (see [0015]) (see instant claim 6). As the antimicrobial oxygen-deficient tungsten particles are dispersed or agglomerated with other materials (e.g. organic polymers, silicon oxide) the resulting composite can fairly be described as a ‘particle composite’ as required by instant claim 8.
Lunk fails to specifically teach the population of particles being free from particles of less than 0.1 microns.
As Lunk never contemplates including particles of a dimension below 0.1 microns together with the fact that Lunk requires their particles be sized to a size of 0.1, 0.2, 0.3, 0.4, 0.5, 0.6, 0.7, 0.8 and 0.9 microns (see [0011]), which excludes a size below 0.1 microns, would strongly suggest the limitation that the composition be free of particles less than 0.1 micron as stated by instant claim 1. However, in the event that Lunk’s teaching does not describe the composition being free of particles having a particle size of less than 0.1 micron, such still would have been obvious from the general framework provided by the reference. See MPEP 2144.05(II)(A) which states that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Potentially Relevant Prior Art
Duan et al., Chem Res Toxicology, 32, 7, 2019, 1357-1366
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYLE A PURDY whose telephone number is (571)270-3504. The examiner can normally be reached from 9AM to 5PM.
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/KYLE A PURDY/Primary Examiner, Art Unit 1611