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 .
Priority
The instant claims are the national stage entry of PCT/IB2021/057357 filed 10 August 2021. Acknowledgement is made of the Applicant’s claim of foreign priority to application IN202021034915 filed 13 August 2020.
Examiner's Note
Applicant's amendments and arguments filed 17 December 2025 are acknowledged and have been fully considered. The Examiner has re-weighed all the evidence of record. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application. In the Applicant's response, filed 17 December 2025, it is noted that claim 1 has been amended and no new matter or claims have been added. Support can be found in the claims as originally filed.
This office action is non-final on the second action in order to address deficiencies in the previous rejection.
Status of the Claims
Claims 1-15 are pending.
Claims 11-15 are withdrawn.
Claims 1-10 are rejected.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-8 are rejected under 35 U.S.C. 103 as being unpatentable over Mandawewala et al. (EP 3342902) in view of Hoyt et al. (US 6,531,218) in view of Gopi et al. (US 2017/0258743).
Mandawewala teaches the use of natural and herbal products in the manufacture of non-natural fiber or filaments to exhibit anti-microbial benefits [0009]. The natural or herbal products used in making the herbal masterbatch comprise plant extracts or processed plant extracts of Curcuma longa (aka turmeric) [0019]. The herbal masterbatch may be powder or liquid and may have a powder particle size of preferably less than 25 microns [0022]. The natural or herbal product (0.1-30 wt%) can be mixed with a coupling agent (0.1-10 wt%) and a base polymer (50-99 wt%) [0023] wherein the base polymer can be selected from the group comprising PET, PBT, and polyamide [0026]. The blended mix may then be extruded followed by melt blending to product fibers having denier range between 0.3-30 DPF [0030]. The fiber or filament made using the herbal masterbatch can then be used to manufacture knitted, woven, or non-woven fabrics [0034].
Mandawewala does not teach the temperature of melt extrusion. Mandawewala does not teach wherein the extracts of Curcuma longa is hydrogenated.
Hoyt teaches that yarn can be extruded at a melt temperature of 265 ºC (col 18, lns 40-42).
It would have been prima facie obvious to prepare the anti-microbial and antioxidant fibers of Mandawewala by mixing hydrogenated turmeric extract (0.1-30%) with PBT (50-99%) and then melt extruding the fibers to form an antimicrobial polymeric yard for use in a textile. The skilled artisan would have found it obvious to look to Gopi, since Mandawewala teaches the products can comprise antioxidants, for a process of hydrogenating the extract of Curcuma longa in order to enhance the antioxidant and anti-inflammatory properties thereof. The resulting antioxidant composition would comprise tetrahydrocurcuminoid and PBT. The base polymer of Mandawewala, which fills the balance of the formulation, accounts for the claimed polymer as the carrier and the base polymer of claim 1. Regarding the turmeric extract, it can be used as a liquid, powder, or both, but with a particle size of less than 25 microns when used as a particle. That being said, however, it must be remembered that “[w]hen a patent simply arranges old elements with each performing the same function it had been known to perform and yields no more than one would expect from such an arrangement, the combination is obvious.” KSR v. Teleflex, 127 S.Ct. 1727, 1740 (2007) (quoting Sakraida v. A.G. Pro, 425 U.S. 273, 282 (1976)). “[W]hen the question is whether a patent claiming the combination of elements of prior art is obvious,” the relevant question is “whether the improvement is more than the predictable use of prior art elements according to their established functions.” (Id.). Addressing the issue of obviousness, the Supreme Court noted that the analysis under 35 USC 103 “need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR at 1741. The Court emphasized that “[a] person of ordinary skill is… a person of ordinary creativity, not an automaton.” Id. at 1742. Consistent with this reasoning, it would have been obvious to have selected various combinations of antimicrobial extracts and base polymers from within Mandawewala, to arrive at compositions “yielding no more than one would expect from such an arrangement.” Since Mandawewala does not teach a temperature at which to carry out the melt extrusion of the yarn, it would have been obvious to look to Hoyt for general conditions of melt extruding at 265 ºC.
Regarding instant claim 2, the composition of Mandawewala which comprises the required anti-microbial extract of turmeric and/or other antimicrobial components would necessarily have the property of being able to reduce Gram negative and Gram positive bacteria by 85-99.99%. It is noted that “products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (see MPEP 2112.01 (II)).
Regarding instant claim 7, the species of polyamides are interpreted as being optional forms of the polymer of claim 1.
Therefore, the teachings of Mandawewala in view of Hoyt and Gopi render obvious instant claims 1-8.
Claims 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over Mandawewala et al. (EP 3342902) in view of Hoyt et al. (US 6,531,218) in view of Gopi et al. (US 2017/0258743) in view of Hedley (US 2003/0138595).
Mandawewala and Hoyt, as applied supra, are herein applied in their entirety for the teachings of an antimicrobial polymeric fiber comprising turmeric extract and a base polymer.
Mandawewala does not teach using the fibers for form a textile with twists.
Hedley teaches a mat with a fabric layer comprising anti-microbial fibers (abstract). The blended yarn (fibers) has 2-20 plies and is formed into a twisted synthetic yarn that can be heat set [0020]. For example, a two-ply yarn can comprise 195 twists per meter [0050].
It would have been prima facie obvious to prepare the anti-microbial fibers of Mandawewala for use in a woven or non-woven textile, and apply them in the anti-microbial mat of Hedley. Hedley teaches twisting the fibers prior to forming the mat, thus rendering obvious instant claims 9-10 in addition to claims 1-8.
Response to Arguments
Applicant's arguments filed 17 December 2025 have been fully considered but they are not persuasive. The Applicant argues, on pages 5-6 of their remarks, that Mandawewala does not teach hydrogenated extract of turmeric.
In response, Gopi is newly applied to bridge this gap and teach a motivation for including tetrahydrocurcuminoid as it has antioxidant properties and Mandawewala teaches the natural products can include antioxidants.
The Applicant argues, on page 6 of their remarks, that conventional curcumin-based masterbatches suffer from poor color fastness to light whereas yarns containing hydrogenated extract overcomes this limitation.
In response, “the discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer.” Atlas Powder Co. v. Ireco Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus, the claiming of a new use, new function or unquantified property which is necessarily present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). In the instant application, the Applicant has shown that conventional curcumin exhibits a dark yellow color to the masterbatch wherein tetrahydrocurcumin results in a white yarn. The Applicant has shown that these two different components start with different inherent color properties before applying dyes. It is unclear what effect the base color of the yarns has on the color fastness or the ability of the yarn to absorb the initial dye. In addition, the compared strands are different sizes/weights and the example only compares tetrahydrocurcumin as the hydrogenated extract. There is a fundamental requirement that must be met before secondary considerations can carry the day. "For objective evidence of secondary considerations to be accorded substantial weight, its proponent must establish a nexus between the evidence and the merits of the claimed invention." Wyers v. Master Lock Co., 616 F.3d 1231, 1246 [95 USPQ2d 1525] (Fed. Cir. 2010) (quotation omitted). Where the offered secondary consideration actually results from something other than what is both claimed and novel in the claim, there is no nexus to the merits of the claimed invention. Takai Corp. v. Easton Enters., Inc., 632 F.3d 1358, 1369 [97 USPQ2d 1673] (Fed. Cir. 2011) ("If commercial success is due to an element in the prior art, no nexus exists."); Ormco Corp., 463 F.3d at 1312 ("[l]f the feature that creates the commercial success was known in the prior art, the success is not pertinent."); In re Woodruff, 919 F.2d 1575 1578 [16 USPQ2d 1934] (Fed. Cir. 1990). Therefore, the data in Table 3 does not amount to unexpected results that are sufficient in overcoming the pending obviousness rejection.
The Applicant argues, in pages 6-7 of their remarks, that Hedley is not based on incorporating an herbal masterbatch during melt extrusion.
In response, Hedley teaches a mat with a fabric layer comprising any anti-microbial fibers therefore it would have been prima facie obvious to include the anti-microbial fibers of Mandawewala in the anti-microbial mat of Hedley.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW S ROSENTHAL whose telephone number is (571)272-6276. The examiner can normally be reached M-F 8-5pm EST.
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/ANDREW S ROSENTHAL/ Primary Examiner, Art Unit 1613