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 .
Response to Amendment
Applicant’s amendment filed on December 1, 2025 has been entered. Claims 22 and 23 have been amended. Claim 15 has been cancelled. New Claims 29 and 30 have been added. As such, Claims 1-14, 16-26, and 28-30 are currently pending in the application, with Claims 1-14 and 16-21 withdrawn from consideration.
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 22-26 and 28-30 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application Publication No. 2019/0226150 to Aydin et al. (“Aydin”) in view of International Application Publication No. 2019/152638 to Salam et al. (“Salam”), and optionally in view of U.S. Patent Application Publication No. 2019/0021553 to Saas et al. (“Saas”).
With regard to Claims 22, 24, 26, and 29, Aydin discloses a bio-based polyelectrolyte complex composition suitable for use as a binder in fibrous nonwoven materials. See, e.g., Abstract, entire document. Aydin teaches that the binder composition is an aqueous composition because the solvent used is water. Paragraphs [0025] and [0031]. Aydin teaches that the fibers forming the nonwoven fabrics can by synthetic fibers, such as polylactic acid-based fibers, paragraph [0095], or be plant-based fibers, such as cellulose or pulp. Paragraph [0096]. Aydin discloses that the binder composition can comprise a cellulose derivative, such as carboxymethylcellulose. Paragraph [0027]. However, Aydin does not disclose the degree of substitution for the carboxymethylcellulose. Salam discloses an aqueous cellulosic binder comprising carboxymethylcellulose, which is used to bind a nonwoven fabric. See, e.g., Abstract, entire document. Salam also discloses that the fiber web can comprise plant-based fibers, such as cellulosic fibers, or synthetic fibers, such as polylactic acid. Paragraphs [0027] and [0116]. Salam discloses that the aqueous binder composition has an acidic pH. Paragraph [0075]. Salam teaches that the “properties (e.g., solubility, viscosity) of the CMC are dependent upon the length of the polymeric chain, as well as upon the degree of substitution. Generally, CMC is commercially available with a degree of substitution of from about 0.3 to about 2, most commonly from about 0.6 to about 0.9. As will be appreciated by one of skill in the art, and with the help of this disclosure, and without wishing to be limited by theory, the pKa of CMC depends on the degree of substitution, and for the most commonly available CMC (e.g., degree of substitution from about 0.6 to about 0.9), the pKa is about 4-5.” Paragraph [0040]. It would have been obvious to a person having ordinary skill in the art at the time of filing the invention to provide carboxymethylcellulose in the binder composition disclosed by Aydin with a degree of substitution in the range of 0.65 to 1 because Salam teaches that such a range is most common in the carboxymethylcellulose art and provides the CMC with a suitable pKa for use in acidic conditions in the same field of endeavor as a binder composition for fibrous materials. “[W]here 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.” In re Aller, 220 F.2d 454, 456 (CCPA 1955).
Aydin discloses that the pH of the composition provided to the nonwoven material is less than 6.5, preferably at a value of 1.8 to 4. Paragraph [0029]. Table 2 of Applicant’s Specification shows a correlation between aqueous solution pH and nonwoven fabric pH (spray solution pH values shown below are within the preferred pH range taught by Aydin, but higher pH spray solution values are within the purview of Aydin).
Ref
pH spray solution
Avg pH nonwoven fabric
9.1
2.5
3.07
10.1
2.5
3.34
9.2
3.0
3.66
10.2
3.0
3.77
9.3
3.5
3.95
10.3
3.5
4.33
It can be appreciated that the person having ordinary skill in the art would readily expect that applying a spray solution have a pH in the range of 3.0 to 4.0, which is within the preferred range disclosed by Aydin, would tend to result in the nonwoven fabric having pH that falls within the claimed range of 3.5 to 5.5. Although an exact mirroring of values is not present, such a standard is not required when a correlation is quite clear. “The hypothetical person having ordinary skill in the art to which the claimed subject matter pertains would, of necessity have the capability of understanding the scientific and engineering principles applicable to the pertinent art.” M.P.E.P. 2141.03. In the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. M.P.E.P. 2144.05. In the alternative, Saas is also related to fibrous products comprising an adhesive binder. See, e.g., Abstract, paragraph [0082], entire document. Saas teaches that “[t]he current pH level of tissue paper products is hence between 6.5 and 8.5 whereas the pH of healthy skin lies in the range between 4.5 and 6.0.” Paragraph [0006]. Saas concludes that a suitable pH for the tissue products should be in the range of 3.5 to 6.0. Paragraph [0020]. It would have been obvious to a person having ordinary skill in the art at the time of filing the invention to provide the fibrous product taught by the combination of Aydin with Salam with pH in the range of 3.5 to 5.5 in order to provide the product with better compatibility with skin, as shown to be known by Saas.
Aydin further discloses that the binder composition can include a monocarboxylic acid, such as lactic acid or salicylic acid. Paragraph [0029]. It would have been obvious to a person having ordinary skill in the art at the time of filing the invention to provide a monocarboxylic acid to the binder composition disclosed by Aydin, since Aydin lists monocarboxylic acid materials as viable options for their composition, and because it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability and desired characteristics. In re Leshin, 277 F.2d 197 (CCPA 1960). With regard to Claim 23, Aydin, alone, or combined with Salam or Saas, does not report the wet maximum tensile strength in the machine direction and cross direction of the nonwoven fabric, as measured by a tensile tester according to NWSP 110.4R0. Nonetheless, it is reasonable to presume that the wet maximum tensile strength in the machine direction and cross direction is at least 110 N/m in the nonwoven fabric disclosed by Aydin or the combination of references. Support for the presumption is found because Aydin discloses using similar materials, i.e. a nonwoven fabric constructed from plant-based fiber bonded together with a bio-based adhesive, formed from similar processes, i.e., airlaying the fibers to form the nonwoven fabric then consolidating the fibers with the adhesive by spray bonding, in order to make similar end-use products, i.e. a nonwoven fabrics. The burden is upon the Applicant to show otherwise. The Patent and Trademark Office can require applicants to prove that prior art products do not necessarily or inherently possess characteristics of claimed products where claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes; burden of proof is on applicants where rejection based on inherency under 35 U.S.C. § 102 or on prima facie obviousness under 35 U.S.C. § 103, jointly or alternatively, and Patent and Trademark Office’s inability to manufacture products or to obtain and compare prior art products evidences fairness of this rejection. In re Best, Bolton, and Shaw, 195 USPQ 431 (CCPA 1977). Even if not inherent, Salam teaches that strengthening agents can be utilized to improve the tensile strength of the material, without any undue burden, rendering the adjustments of wet tensile strength obvious by inclusion of the strengthening agent. Salam discloses “an increased amount of wet strength agent leads to an increased number of chemical bonds.” Paragraph [0182]. If the person having ordinary skill in the art desired to increase wet maximum tensile strength in the machine- and/or cross-machine directions, then such a feat can simply be accomplished by adding the wet tensile strength agent. It would have been obvious to a person having ordinary skill in the art at the time of filing the invention to increase the amount of strengthening agent provided to the nonwoven fabric taught by Aydin in order to increase CD wet strength and MD dry strength to the desired level, since Salam teaches that the amount strengthening agent is a result effective variable affecting the wet strength properties of the fabric, and because it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272 (CCPA 1980). With regard to Claim 25, Aydin teaches that the nonwoven fabric can be formed from an airlaying process. Paragraph [0221]. With regard to Claim 28, Aydin, alone, or combined with Salam or Saas, does not report the wet elongation in the machine direction and cross direction of the nonwoven fabric, as measured by a tensile tester according to NWSP 110.4R0. Nonetheless, it is reasonable to presume that the wet elongation in the machine direction and cross direction is at least 6% in the nonwoven fabric disclosed by Aydin or the combination of references. Support for the presumption is found because Aydin discloses using similar materials, i.e. a nonwoven fabric constructed from plant-based fiber bonded together with a bio-based adhesive, formed from similar processes, i.e., airlaying the fibers to form the nonwoven fabric then consolidating the fibers with the adhesive by spray bonding, in order to make similar end-use products, i.e. a nonwoven fabrics. The burden is upon the Applicant to show otherwise. The Patent and Trademark Office can require applicants to prove that prior art products do not necessarily or inherently possess characteristics of claimed products where claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes; burden of proof is on applicants where rejection based on inherency under 35 U.S.C. § 102 or on prima facie obviousness under 35 U.S.C. § 103, jointly or alternatively, and Patent and Trademark Office’s inability to manufacture products or to obtain and compare prior art products evidences fairness of this rejection. In re Best, Bolton, and Shaw, 195 USPQ 431 (CCPA 1977). With regard to Claim 30, “[t]he transitional phrase ‘consisting essentially of’ limits the scope of a claim to the specified materials or steps ‘and those that do not materially affect the basic and novel characteristic(s)’ of the claimed invention.” M.P.E.P. 2111.03(III). Any additional ingredient used by Aydin, or Aydin combined with the secondary references, does not affect the basic and novel characteristic of the binder having an adhesive function with fibrous materials.
Response to Arguments
Applicant’s arguments with respect to the new limitations of a degree of substitution for the cellulose derivative in Claim 22 and the presence of a monocarboxylic acid in Claim 23 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. To the extent that Applicant's arguments filed December 1, 2025 sill apply to the grounds of rejections that have been made in light of the claim amendments, then those arguments have been fully considered but they are not persuasive.
Applicant argues that the pH of the applied solution in Aydin is not the same as the pH of the nonwoven fabric, itself. The Examiner agrees that the pH of the applied solution does not exactly mirror the pH of the nonwoven fabric to which it is applied, but disagrees that 1:1 to mirroring is required to show that the pH of the nonwoven fabric of Aydin falls within the range of pH that is presently claimed. This is evidenced by Table 2 of the present Application, which shows that spray solution having a pH of 3.0 or 3.5, when applied to a nonwoven fabric, provides a nonwoven fabric having pH within the claimed range of 3.5 to 5.5. The spray solution pH values of 3.0 and 3.5 fall within the preferred range disclosed by Aydin. Although an exact mirroring of values is not present, such a standard is not required when a correlation is quite clear. “The hypothetical person having ordinary skill in the art to which the claimed subject matter pertains would, of necessity have the capability of understanding the scientific and engineering principles applicable to the pertinent art.” M.P.E.P. 2141.03. In the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. M.P.E.P. 2144.05.
Applicant argues that Aydin does not disclose using polylactic acid fibers. The Examiner disagrees. Aydin teaches that nonwoven fabrics include cloth formed of synthetic fibers, including polylactic acid. Paragraph [0095].
Applicant argues that Claim 30 utilizes the transitional phrase “consisting essentially of” and that Aydin’s solution requires a cationic biopolymer, such as chitosan. Applicant argues that Aydin goes into great detail as to how chitosan changes the characteristics of its disclosed composition. However, “[t]he transitional phrase ‘consisting essentially of’ limits the scope of a claim to the specified materials or steps ‘and those that do not materially affect the basic and novel characteristic(s)’ of the claimed invention.” M.P.E.P. 2111.03(III) (emphasis added). It does not matter whether the chitosan is in important and useful ingredient in the composition disclosed by Aydin. In an “inclusion/exclusion” analysis regarding the use of “consisting essentially of” claim phrasing, the analysis centers on whether the inclusion of chitosan would effect how the claimed invention functions. In this instance, the claimed invention functions as a binder material for fibers. The composition disclosed by Aydin functions as a binder material for fibers. As such, the presence of chitosan in Aydin does not alter the basic and novel characteristic of the claimed invention, and it is therefore not precluded from Claim 30.
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.
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JEREMY R. PIERCE
Primary Examiner
Art Unit 1789
/JEREMY R PIERCE/ Primary Examiner, Art Unit 1789