DETAILED ACTION
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim Language
A transparent layer, as recited in the claims, is understood to mean a layer with a contrast value which is greater than 47, measured with a spectrocolorimeter according to the conditions set forth on page 4, lines 3-7 of the instant specification.
Claim Rejections - 35 USC § 103
Claims 1, 3-5, 8-13, 15, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Meersseman et al. (US 2018/0245354) in view of Kuhn et al. (US 5,814,691).
Meersseman et al. is directed to a floor panel comprising a top layer provided on a substrate wherein the top layer (paragraph 0004). The top layer comprises a back layer, a motif provided on the back layer, and a transparent/translucent wear layer over the motif (paragraph 0023). The motif may be a printed synthetic material film or may be formed by printing directly on the substrate (paragraph 0023). The transparent/translucent wear layer may be a vinyl layer having a thickness of 0.2 to 1 mm (paragraphs 0023-0024). The top layer may be manufactured by bonding the back layer, motif, and wear layer together as a film and the adhered to the substrate by an adhesive connection (paragraph 0025). The back layer may be formed from a vinyl compound (paragraph 0023), such as polyvinyl chloride (paragraph 0077). The substrate comprises a foamed synthetic material with layers of glass fiber on either side (paragraph 0076).
The back layer of the top layer corresponds to back layer A of the instant claims; the motif corresponds to decorative layer B; the transparent/translucent wear layer corresponds to surface layer C.
While Meersseman et al. teach that the translucent/transparent wear layer may be a formed of vinyl, they do not teach that the layer comprises polyvinyl chloride and at least 3 wt% hydrotalcite.
Kuhn et al. is directed to a stabilized PVC composition having excellent thermal and light stability (column 1, lines 25-32). The composition contains (a) PVC, (b) a polyDHP compound, (c) a substance that may be hydrotalcite, and (d) a zinc/aluminum/lanthanoid compound (column 1, line 33-column 2, line 44). The hydrotalcite is of the formula:
M2+1-xM3+x(OH)2(Ab-)x/b dH2O
wherein: M2+ may be Mg2+ or Zn2+, M3+ may be Al3+, Ab- is an anion, x is from 0.2 and 0.33, b is from 1 and 4, and d is form 0 to 2 (column 3, lines 37-60). Component (b) is contained at a concentration of 0.001 to 5 parts by weight per 100 parts PVC (column 3, lines 24-31). Hydrotalcite (c) is contained at a concentration of 0.1 to 20 parts by weight per 100 parts PVC (column 4, lines 31-34). Component (d) is contained at a concentration of 0.001 to 10 parts by weight per 100 parts PVC (column 27, lines 41-46). The composition may further contain plasticizers (column 27, lines 47-63) at a concentration of 5 to 120 parts by weight per 100 parts of PVC (column 38, lines 20-24). The composition may be used in floor coverings (column 43, lines 62-64).
It would have been obvious to use the composition of Kuhn et al. as the wear resistant layer of the flooring panel of Meersseman et al. since the courts have held the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination. See MPEP 2144.07.
Regarding the limitation in claim 1 that the surface layer C is a transparent surface layer, Meersseman et al. teach that their wear layer is a transparent/translucent layer that is applied over a layer provided with a motif or pattern (e.g., paragraphs 0018). Since (i) a layer need not be completely transparent to satisfy that limitation in claim 1 as even layers with contrast values under 50 qualify as transparent (see page 4, lines 3-7 of the instant specification), and (ii) the wear layer is intended to allow the motif or pattern disposed under it to be visible, it would have been obvious to one of ordinary skill in the art to employ a composition having a transparency that satisfies the limitations of claim 1. For example, if, as alleged by the applicant, the presence of metal soaps are known to have an opacifying effect in PVC formulations, it would have been obvious to one of ordinary skill in the art to minimize the amount of metal soap used and Kuhn et al. allow as little as 0.001 parts by weight of metal soap per 100 parts of PVC (column 27, lines 41-46). There is nothing on the record that would lead one of ordinary skill in the art to expect the addition of 0.001 part metal soap per 100 parts PVC to impact the transparency to such an extent that the wear layer would no longer be considered a transparent layer.
While Kuhn et al. do not illustrate an embodiment wherein the composition contains at least 3 wt% hydrotalcite, one of ordinary skill in the art would expect the range of hydrotalcite in the composition (i.e., as high as 20 weight parts per 100 parts PVC) to overlap the amounts recited in claims 1, 3, 4, and 13. Since the range of hydrotalcite in the composition overlaps the range recited in the claims, the courts have held that a prima facie case of obviousness exists. See MPEP 2144.05.
Additionally, a hydrotalcite of formula M2+1-xM3+x(OH)2(Ab-)x/b dH2O overlaps the structure recited in claim 5.
Regarding claims 10 and 12, the glass fiber layer corresponds to fibrous reinforcing layer A' and the adhesive used to form the adhesive connection between the top layer and the substrate corresponds to adhesive layer B'. Additionally, it would have been obvious to use the adhesive in the form of a film (i.e. manufacturing an adhesive layer) rather than a liquid to reduce thickness variations in the resulting panel.
Regarding claim 16, since Meersseman et al. is directed to a flooring panel, it would have been obvious to one of ordinary skill in the art to use the flooring panel in any environment in which flooring panel are used, including vehicles, as there is nothing on the record that would lead one of ordinary skill in the art to presume that the flooring panel of Meersseman et al. are limited only to use in stationary situations.
Claims 6 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Meersseman et al. (US 2018/0245354) in view of Kuhn et al. (US 5,814,691) as applied to claim 1 above, and further in view of Lee (US 2016/0177065).
Meersseman et al. taken in view of Kuhn et al. suggest all the limitations of claims 6 and 14, as outlined above, except for the size of the hydrotalcite.
Lee is directed to a hydrotalcite used as a stabilizer for polyvinyl chloride (paragraph 0001). The hydrotalcite may have a broad range of particle sizes, for example from 0.01 to 100 mm (paragraph 0018).
It would have been obvious to employ the hydrotalcite of Kuhn et al. at a particle size of 0.01 to 100 mm since the courts have held the selection of a known material (e.g. 0.01 to 100 mm sized hydrotalcite particles) based on its suitability for its intended use (e.g. stabilizer for polyvinyl chloride) supported a prima facie obviousness determination. See MPEP 2144.07.
Regarding claim 14, a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I. In this case, it would have been obvious to one skilled in the art to have expected the same stabilization properties for a polyvinyl chloride wear resistant layer comprising hydrotalcite having a size of 400 mm as one having a size of 100 mm since Lee recites the upper bound of 100 mm only as an example and explicitly teaches that the hydrotalcite can have a broad range of particle sizes (paragraph 0018).
Claims 1, 3, 4, 8-13, 15, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Meersseman et al. (US 2018/0245354) in view of Kato et al. (JP H6-306232).
Meersseman et al. is directed to a floor panel comprising a top layer provided on a substrate wherein the top layer (paragraph 0004). The top layer comprises a back layer, a motif provided on the back layer, and a transparent/translucent wear layer over the motif (paragraph 0023). The motif may be a printed synthetic material film or may be formed by printing directly on the substrate (paragraph 0023). The transparent/translucent wear layer may be a vinyl layer having a thickness of 0.2 to 1 mm (paragraphs 0023-0024). The top layer may be manufactured by bonding the back layer, motif, and wear layer together as a film and the adhered to the substrate by an adhesive connection (paragraph 0025). The back layer may be formed from a vinyl compound (paragraph 0023), such as polyvinyl chloride (paragraph 0077). The substrate comprises a foamed synthetic material with layers of glass fiber on either side (paragraph 0076).
The back layer of the top layer corresponds to back layer A of the instant claims; the motif corresponds to decorative layer B; the transparent/translucent wear layer corresponds to surface layer C.
While Meersseman et al. teach that the translucent/transparent wear layer may be a formed of vinyl, they do not teach that the layer comprises polyvinyl chloride and at least 3 wt% hydrotalcite.
Kato et al. is directed to a vinyl chloride resin composition comprising a flame retardant and a distearyl adipate (paragraph 0007). Distearyl adipate improves the kneadability of the resin (paragraph 0018), i.e., it functions as a plasticizer. The flame retardant may be hydrotalcite (paragraph 0013). The flame retardant is employed at a concentration 5 to 50 parts by weight per 100 parts resin (paragraph 0017), with concentrations of about 10 to 12 wt% employed in the embodiments of Examples 2 and 3 (Table 1). The resin composition can be easily molded by ordinary methods, exhibits flame retardancy as well as low smoke generation and heat buildup, and is suitable for use as interior components of aircraft, etc. (paragraph 0036).
It would have been obvious to one of ordinary skill in the art to use the vinyl resin composition of Kato et al. as the vinyl composition of the wear layer for usages in which additional flame retardancy, as well as low smoke generation and heat buildup is desired. One of ordinary skill in the art would have an expectation of success employing the composition in the panel of Meersseman et al. since the Kato et al. teach that their composition may be easily molded and used as interior components for aircraft and the like.
Regarding the limitation in claim 1 that the surface layer C is a transparent surface layer, Meersseman et al. teach that their wear layer is a transparent/translucent layer that is applied over a layer provided with a motif or pattern (e.g., paragraphs 0018). Since (i) a layer need not be completely transparent to satisfy that limitation in claim 1 as even layers with contrast values under 50 qualify as transparent (see page 4, lines 3-7 of the instant specification), and (ii) the wear layer is intended to allow the motif or pattern disposed under it to be visible, it would have been obvious to one of ordinary skill in the art to employ a composition having a transparency that satisfies the limitations of claim 1.
Regarding claims 10 and 12, the glass fiber layer corresponds to fibrous reinforcing layer A' and the adhesive used to form the adhesive connection between the top layer and the substrate corresponds to adhesive layer B'. Additionally, it would have been obvious to use the adhesive in the form of a film (i.e. manufacturing an adhesive layer) rather than a liquid to reduce thickness variations in the resulting panel.
Regarding claim 16, since Meersseman et al. is directed to a flooring panel, it would have been obvious to one of ordinary skill in the art to use the flooring panel in any environment in which flooring panel are used, including vehicles, as there is nothing on the record that would lead one of ordinary skill in the art to presume that the flooring panel of Meersseman et al. are limited only to use in stationary situations.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Meersseman et al. (US 2018/0245354) in view of Kato et al. (JP H6-306232) as applied to claim 1 above, and further in view of Hayami (US 5,563,375).
Meersseman et al. taken in view of Kato et al. suggest all the limitations of claim 5, as outlined above, except for the chemical structure of the hydrotalcite.
Hayami is directed to an article comprising a flame retardant, polyvinyl chloride resin containing hydrotalcite (column 2, lines 45-51). The hydrotalcite generally has a particle size of 0.1 to 3 mm and may have a structure of Mg0.67Al0.33(OH)2(CO3)0.17 0.5H2O (column 3, lines 44-52). This structure reads on that of claim 4 wherein x is 0.33, y is 0.5, and n is 2.
It would have been obvious to use the hydrotalcite of Hayami as the hydrotalcite of the composition of Kato et al. since the courts have held the selection of a known material (here, the hydrotalcite of Hayami) based on its suitability for its intended use (here, flame retardant for polyvinyl chloride) supported a prima facie obviousness determination. See MPEP 2144.07.
Claims 6 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Meersseman et al. (US 2018/0245354) in view of Kato et al. (JP H6-306232) as applied to claim 1 above, and further in view of Lee (US 2016/0177065).
Meersseman et al. taken in view of Kato et al. suggest all the limitations of claims 6 and 14, as outlined above, except for the size of the hydrotalcite.
Lee is directed to a hydrotalcite used as a stabilizer for polyvinyl chloride (paragraph 0001). The hydrotalcite may have a broad range of particle sizes, for example from 0.01 to 100 mm (paragraph 0018).
It would have been obvious to employ the hydrotalcite of Kuhn et al. at a particle size of 0.01 to 100 mm since the courts have held the selection of a known material (e.g. 0.01 to 100 mm sized hydrotalcite particles) based on its suitability for its intended use (e.g. stabilizer for polyvinyl chloride) supported a prima facie obviousness determination. See MPEP 2144.07.
Regarding claim 14, a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. See MPEP 2144.05 I. In this case, it would have been obvious to one skilled in the art to have expected the same stabilization properties for a polyvinyl chloride wear resistant layer comprising hydrotalcite having a size of 400 mm as one having a size of 100 mm since Lee recites the upper bound of 100 mm only as an example and explicitly teaches that the hydrotalcite can have a broad range of particle sizes (paragraph 0018).
Response to Arguments
Applicant's arguments filed 15 September 2025 with respect to the rejections over Meersseman et al. in view of Kuhn et al. have been fully considered but they are not persuasive.
The applicant notes that Kuhn et al. requires the presence of metal soaps and alleges that they are known to have an opacifying effect in PVC formulations, suggesting that the composition of Kuhn et al. is opaque.
This is not persuasive for the following reasons. First, there is nothing on the record supporting the contention that metal soaps have an opacifying effect in PVC formulations - this appears to merely be the applicant's opinion. Additionally, since a layer need not be completely transparent to satisfy that limitation in claim 1 as even layers with contrast values under 50 qualify as transparent and since the wear layer is intended to allow the motif or pattern disposed under it to be visible, it would have been obvious to one of ordinary skill in the art to employ a composition having a transparency that satisfies the limitations of claim 1. Assuming arguendo that metal soaps have an opacifying effect on PVC formulations, it would have been obvious to one of ordinary skill in the art to minimize the amount of metal soap used and Kuhn et al. allow as little as 0.001 parts by weight of metal soap per 100 parts of PVC. There is nothing on the record that would lead one of ordinary skill in the art to expect the addition of 0.001 part metal soap per 100 parts PVC to impact the transparency to such an extent that the wear layer would no longer be considered a "transparent" layer, as the term is used in this application.
The applicant further argues that the combination of Meersseman et al. and Kuhn et al. would not lead to the claimed invention as the claims require a hydrotalcite content of at least 3% relative to the total composition but there is no specific guidance of motivation to select such a content from the broad range of 0.1 to 20 parts per 100 parts PVC disclosed in Kuhn et al. The applicant asserts that a skilled person must be able to rely on a concrete and complete embodiment, such as an example, and noted that the only example in Kuhn et al. employs hydrotalcite at about 0.692% of the total composition.
This is not persuasive since the courts have held that a prima facie case of obviousness exists for overlapping ranges. See MPEP 2144.05. Additionally, the courts have held that disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. Rather, patents are relevant as prior art for all they contain. See MPEP 2123. As such, the teaching of a reference cannot be thought of as limited only to disclosed examples - a boon for the applicant as there are no examples in the instant disclosure of a floor covering having a surface layer with only 3 wt% hydrotalcite. Finally, it is noted that the range recited in Kuhn et al. (0.1 to 20) is significantly less broad than the range recited in claim 1 (3 and up).
Finally, the applicant alleges unexpected advantages, such as fire resistance and reduced smoke toxicity, obtained by the presently claimed invention that further distinguish it from the prior art.
This is not persuasive for at least the reason that there does not appear to be a showing that is commensurate in scope with the claims. The inventive examples presented in table 1 appear to all employ: a particular base layer (i.e., 1.5 mm thick layer of polyvinyl chloride, plasticizer, and mineral filler), a particular decorative layer (i.e., a glass gride and polyester non-woven fabric coating with a pattern applied by digital printing), a copolyimide hot melt adhesive layer situated between the back and decorative layers (a feature that doesn’t appear in any of the claims), and a wear layer containing 38 parts of an undefined plasticizer (i.e., "Santicizer 141") and 9 to 33 wt% of an Mg-Zn-Al type hydrotalcite. This is in contrast to the floor covering of claim 1, which is merely required to contain a back layer, decorative layer, and surface layer comprising plasticized polyvinyl chloride with at least 3 wt% hydrotalcite.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RAMSEY E ZACHARIA whose telephone number is (571)272-1518. The best time to reach the examiner is weekday afternoons, Eastern time.
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/RAMSEY ZACHARIA/Primary Examiner, Art Unit 1787