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 .
Information Disclosure Statement
The listing of references in the specification is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered. In the PGPUB US20240016245A1 version these references are listed at ¶¶ 0004-0014.
Specification
The disclosure is objected to because of the following informalities: The use of the term “Lonzabac” which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore, the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term. The term is found at ¶¶ 0050, 0058, 0069, 0070 of PGPUB US20240016245A1.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
The term “preferably” in claims 6, 7, 9, 15 and 17 is a relative term which renders the claim indefinite. The term “preferably” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim 6 is rendered indefinite because the scope of the claim is unclear and thus indefinite as to whether “preferably” is a limitation to the claims or is merely suggestive of a preferred embodiment. Does the claim refer to lauryl sulfobetaine or any other sulfobetaine structure? For purposes of examination, Examiner is interpreting the claim to refer to any sulfobetaine.
Claim 7 is rendered indefinite because the scope of the claim is unclear and thus indefinite as to whether “preferably” is a limitation to the claims or is merely suggestive of a preferred embodiment. In Claim 7 is the zwitterionic surfactant referring to the betaine structure based on trialkyl glycine or any betaine structure alone. For purposes of examination, Examiner is interpreting the claim to refer to a trialkyl glycine.
Claim 9 is rendered indefinite because the scope of the claim is unclear and thus indefinite as to whether “preferably” is a limitation to the claims or is merely suggestive of a preferred embodiment. In Claim 9, is the alkylsulfate or its salt referring to any alkyl chain of between 8 and 16 carbons or that the alkylsulfate is sodium dodecylsulfatethe? For purposes of examination, the Examiner is interpreting the claim to refer to the alkylsulfate as sodium dodecylsulfate.
Claim 15 is rendered indefinite because the scope of the claim is unclear and thus indefinite as to whether “preferably” is a limitation to the claims or is merely suggestive of a preferred embodiment. In Claim 15, is the nonwoven cellulose? Or essentially cellulose with at least 50% by weight? For purposes of examination, the Examiner is interpreting the claim to refer to the nonwoven being at least 50% wt. cellulose.
Claim 17 is rendered indefinite because the scope of the claim is unclear and thus indefinite as to whether “preferably” is a limitation to the claims or is merely suggestive of a preferred embodiment. For purposes of examination, the Examiner is interpreting the claim to refer to the concentration amounts: a) copper salt at 0.5 - 5 % wt/wt b) surfactant at 0.1 - 3 % wt/wt, and optionally when included c) organic acid 0.2 - 3 % wt/wt.
In claims 2, 6 and 7, the term “type” is a relative term which extends the scope of the expression so as to render the claim indefinite. The term “type” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear what is intended to be encompassed by “type.”
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim 16 is rejected under 35 U.S.C. 101 because the claimed recitation of a use, without setting forth any steps involved in the process, results in an improper definition of a process, i.e., results in a claim which is not a proper process claim under 35 U.S.C. 101. See for example Ex parte Dunki, 153 USPQ 678 (Bd.App. 1967) and Clinical Products, Ltd. v. Brenner, 255 F. Supp. 131, 149 USPQ 475 (D.D.C. 1966). Claim 16 provides for “the use of” a facemask, but, since the claim does not set forth any steps involved in the method/process, it is unclear what method/process Applicant is intending to encompass. A claim is indefinite where it merely recites a use without any active, positive steps delimiting how this use is actually practiced.
Claim 16 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention. Instant claim 16 does not recite an active step. Thus, it is unclear how this use is actually practiced. See MPEP 2173.05(q).
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.
Claim(s) 1-15 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over USPUB 20120060258A1 issued to Stewart et al. in view of USPUB20120052036A1 issued to Glenn Jr. et al.
Regarding Claim 1, where Applicant seeks an antimicrobial facemask comprising a non-woven fabric incorporating a water soluble copper salt and surfactant, wherein the surfactant is a zwitterionic surfactant or an alkylsulfate surfactant or an alkylsulfate salt surfactant; Applicant is directed to the teachings of Stewart et al. who discloses a method of preparing an antimicrobial nonwoven polypropylene, polyester and non-woven cellulose acetate fabric [¶ 0048, 0054-0056] for use in a facemask comprising coating the fabric with a solution comprising 2% citric acid, 2% polyvinyl alcohol, 0.5% polyoxyethylene sorbitan, 2% copper sulfate (copper salt soluble in water) and 2% zinc acetate [¶¶ 0007, 0060, 0132]. Stewart et al. provide the structure for the facemask, that is that it is a nonwoven (cellulosic) having a water soluble copper salt and a surfactant. Stewart et al do not expressively suggest that the surfactant that is used is a zwitterionic surfactant or alkylsulfate surfactant. This is remedied by the teachings of US20120052036A1 issued to Glenn Jr. et al.
Glenn Jr. et al. is from the same art of endeavor as they create nonwovens having active agents, additives, fillers and surfactants made into a plethora of articles having antimicrobial properties.
Glenn Jr et al. disclose making nonwovens made from filaments, additives, fillers, other ingredients and surfactants [¶¶ abstract, 0003, 0015, 0027, 0157-0190].
At ¶ 0040, Glenn Jr. et al. teach that the filament-forming composition is a composition that is suitable for making a filament to create nonwovens. The filament-forming composition comprises a polymer along with one or more filament-forming materials, one or more additives, active agents and surfactants. In addition, the filament-forming composition it may comprise one or more polar solvents, such as water, into which one or more, for example all, of the filament-forming materials and/or one or more, for example all, of the active agents are dissolved and/or dispersed. Further, at ¶¶ 0043 and 0157-0190, they teach that the filament-forming material as used herein means a material, such as a polymer or monomers capable of producing a polymer that exhibits properties suitable for making a filament. In one example, the filament-forming material comprises one or more substituted polymers surfactants such as an anionic, cationic, zwitterionic, and/or nonionic polymer. The filament-forming material is a polar solvent-soluble material. At ¶¶ 0160-0164, Glenn Jr. et al. teach using anionic surfactants include alkyl sulfates.
A person having ordinary skill in the art before the effective filing date of the invention would have found it obvious to have modified the surfactant of Stewart et al and used those shown by Glenn Jr. et al in the nonwoven. One would have been motivated to do so as anionic surfactants, such as alkyl sulfates, and zwitterionic surfactants are commonly used in cellulosic nonwoven masks primarily to make the material more hydrophilic (wettable), enable the effective delivery of active ingredients, and potentially add antimicrobial properties. Anionic surfactants act as wetting agents, reducing the surface tension of water or liquid formulations. This allows the liquid ingredients (e.g., in a facial mask) to spread evenly across and penetrate into the cellulose fibers of the nonwoven fabric, rather than beading up or rolling off the fiber or fabric.
Regarding Claim 2, where Applicant seeks that the facemask according to claim 1, wherein: a) the zwitterionic surfactant comprises an alkyl chain of between 8 and 16 carbons and has a sulfobetaine type structure or a betaine type structure; or
b) the alkylsulfate or its salt comprises an alkyl chain of between 8 and 16 carbons; Applicant is directed to Stewart modified by Glenn Jr. et al where Glenn Jr. et al at ¶ 0185-0186 and 0245 disclose examples of zwitterionic surfactants; betaines, including alkyl dimethyl betaine and cocodimethyl amidopropyl betaine, C8 to C18 (for example from C12 to C18) amine oxides and sulfo and hydroxy betaines, such as N-alkyl-N,N-dimethylammino-1-propane sulfonate where the alkyl group can be C8 to C18 and in certain embodiments from C10 to C14.
Regarding Claim 3, where Applicant seeks that the facemask according to claim 1, wherein the copper salt has at a solubility of at least 100 g/litre of deionised water at 20° C; it is the position of the Office that Applicant and Stewart are using the same copper sulfate salt therefore it would be inherent if not obvious that it has solubility of at least 100 g/litre of deionised water at 20° C.
Regarding Claim 4, where Applicant seeks that the facemask according to claim 1, wherein the copper salt is copper sulfate; Applicant is directed to ¶ 0007 of Stewart.
Regarding Claim 5, where Applicant seeks that the facemask according to claim 1, wherein the zwitterionic surfactant comprises an alkyl chain of between 8 and 16 carbons; Applicant is directed to Stewart modified by Glenn Jr. et al where Glenn Jr. et al. at ¶ 0185-0186 disclose examples of zwitterionic surfactants; betaines, including alkyl dimethyl betaine and cocodimethyl amidopropyl betaine, C8 to C18 (for example from C12 to C18) amine oxides and sulfo and hydroxy betaines, such as N-alkyl-N,N-dimethylammino-1-propane sulfonate where the alkyl group can be C8 to C18 and in certain embodiments from C10 to C14.
Regarding Claim 6, where Applicant seeks that the facemask according to claim 1, wherein the zwitterionic surfactant has a sulfobetaine type structure, preferably lauryl sulfobetaine; Applicant is directed to Stewart modified by Glenn Jr. et al where Glenn Jr. et al at ¶ 0185-0186 and 0245 disclose examples of zwitterionic surfactants; betaines, including alkyl dimethyl betaine and cocodimethyl amidopropyl betaine, C8 to C18 (for example from C12 to C18) amine oxides and sulfo and hydroxy betaines, such as N-alkyl-N,N-dimethylammino-1-propane sulfonate where the alkyl group can be C8 to C18 and in certain embodiments from C10 to C14.
Regarding Claim 7, where Applicant seeks that the facemask according to claim 1, wherein the zwitterionic surfactant has a betaine type structure, preferably based on a trialkyl glycine; Applicant is directed to Stewart modified by Glenn Jr. et al where Glenn Jr. et al at ¶ 0160 they teach that suitable anionic surfactants include alkyl sulfates, alkyl ether sulfates, branched alkyl sulfates, branched alkyl alkoxylates, branched alkyl alkoxylate sulfates, mid-chain branched alkyl aryl sulfonates, sulfated monoglycerides, sulfonated olefins, alkyl aryl sulfonates, primary or secondary alkane sulfonates, alkyl sulfosuccinates, acyl taurates, acyl isethionates, alkyl glycerylether sulfonate, sulfonated methyl esters, sulfonated fatty acids, alkyl phosphates, acyl glutamates, acyl sarcosinates, alkyl sulfoacetates, acylated peptides, alkyl ether carboxylates, acyl lactylates, anionic fluorosurfactants, sodium lauroyl glutamate, and combinations thereof.
Regarding Claim 8, where Applicant seeks that the facemask according to claim 1, wherein the zwitterionic surfactant is N,N-dimethyl-N-dodecylglycine betaine; Applicant is directed to Stewart modified by Glenn Jr. et al where Glenn Jr. et al at ¶ 0186 disclose that zwitterionic surfactants; betaines, including alkyl dimethyl betaine and cocodimethyl amidopropyl betaine, C8 to C18 (for example from C12 to C18) amine oxides and sulfo and hydroxy betaines, such as N-alkyl-N,N-dimethylammino-1-propane sulfonate where the alkyl group can be C8 to C18 and in certain embodiments from C10 to C14 may be used.
Regarding Claim 9, where Applicant seeks that the facemask according to claim 1, wherein the alkyl sulfate or its salt comprises an alkyl chain of between 8 and 16 carbons, preferably wherein the alkylsulfate is sodium dodecyl sulfate; Applicant is directed to Stewart modified by Glenn Jr. et al. where Glenn Jr. et al. at ¶¶ 0160-0161, where Glenn Jr. et al. disclose that alkyl sulfates and alkyl ether sulfates suitable for use herein include materials with the respective formula ROSO3M and RO(C2H4O)xSO3M, wherein R is alkyl or alkenyl of from about 8 to about 24 carbon atoms, x is 1 to 10, and M is a water-soluble cation such as ammonium, sodium, potassium and triethanolamine.
Regarding Claim 10, where Applicant seeks that a facemask according to claim 1 also incorporating an organic carboxylic acid; Applicant is directed to Stewart modified by Glenn Jr. et al., where Glenn Jr. et al. at ¶¶ 0045 and 0164 disclose that the surfactant may include sulfonated linear esters of C8-C20 carboxylic acids (i.e., fatty acids). Other suitable anionic surfactants that may be used include salts of soap, C8-C22 primary of secondary alkanesulfonates, C8-C24 olefinsulfonates, sulfonated polycarboxylic acids, C8-C24 alkylpolyglycolethersulfates (containing up to 10 moles of ethylene oxide).
Regarding Claim 11, where Applicant seeks a facemask according to claim 10, wherein the organic carboxylic acid has between 3 and 7 carbons; Applicant is directed to Stewart modified by Glenn Jr. et al., where Glenn Jr. et al at to ¶¶ 0045 and 0164 disclose that the surfactant may include sulfonated linear esters of C8-C20 carboxylic acids (i.e., fatty acids). Other suitable anionic surfactants that may be used include salts of soap, C8-C22 primary of secondary alkanesulfonates, C8-C24 olefinsulfonates, sulfonated polycarboxylic acids, C8-C24 alkylpolyglycolethersulfates (containing up to 10 moles of ethylene oxide).
Regarding Claim 12, where Applicant seeks a facemask according to claim 10, wherein the organic acid is any of propionic acid, citric acid or lactic acid; Applicant is directed to ¶ 0105 of Glenn Jr. et al who teaches the use of citric acid as does Stewart et al at ¶ 0007-0012.
Regarding Claim 13, where Applicant seeks a facemask according to claim 1, further comprising N1-(3-aminopropyl)-N1-dodecylpropane-1,3-diamine or Didecyldimethylammonium chloride; Applicant is directed to Stewart modified by Glenn Jr. et al., where Glenn Jr. et al at ¶ 0169 disclose that the quat surfactant may be didecyldimethylammonium chloride.
Regarding Claim 14, where Applicant seeks a facemask according to claim 1, wherein the facemask is a composite layered mask, optionally wherein the water soluble copper salt and surfactant are incorporated in the outer layer and/or an inner layer of the composite layered mask; Applicant is directed to ¶ 0013 of Stewart et al.
Regarding Claim 15, where Applicant seeks a facemask according to claim 1, wherein the non-woven fabric is cellulosic, preferably wherein the non-woven fabric consists essentially of cellulosic fibres, preferably at least 50% by weight; Stewart teaches using cellulose but does not disclose the percentage to be at least 50% by wt. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to optimize the amount of cellulosic fibers used in the mask, since it has been held 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. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The burden is upon the Applicant to demonstrate that the claimed weight is critical and has unexpected results. In the present invention, one would have been motivated to optimize the amount of cellulosic fibers to be at least 50% weight motivated by the desire to create an easily dyeable mask as taught by Stewart.
Regarding 17, where Applicant seeks a process for production of a facemask according to claim 1, wherein an active formulation of a water soluble copper salt and surfactant is applied to a non-woven fabric as a solution in water, preferably with the following concentration amounts: a) copper salt at 0.25-10% wt/wt, preferably 0.5-5% wt/wt b) surfactant at 0.05-5% wt/wt, preferably 0.1-3% wt/wt, and optionally when included c) organic acid 0.1-5% wt/wt, preferably 0.2-3% wt/wt; Applicant is directed to rationale set forth for claim 1 for the percentages .
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
USPUB20090214606A1 issued to Bujard et al. Bujard teaches antimicrobial particles having high antimicrobial activity [ ¶ 0015] used in the fields of foods, living body materials, cosmetics, fibers, celluloses, coatings, plastics, filters, water absorption polymers etc., where antimicrobial properties are needed [¶ 0017]. The antimicrobial particles are applied to porous materials. The porous particles may be of any shape and size, for example platelets, tubes, filaments, hollow or spheres [¶ 0032]. The porous particles, comprise an organic, or inorganic antimicrobial compound, or composition [¶ 0036]. the antimicrobial compound, or composition comprises an antimicrobial metal salt which can include salts of metals selected from the group consisting of Mn, Ag, Au, Zn, Sn, Fe, Cu, Al, Ni, Co, Ti, Zr, Cr, La, Bi, K, Cd, Yb, Dy, Nd, Ce, Tl, Pr, and combinations thereof. Even more preferably, metal salts include salts of metals selected from the group consisting of Mn, Ag, Au, Zn, Sn, Fe, Cu, Al, Ni, Co, Ti, Zr, Cr, La, and combinations thereof. Most preferably, the metal salts include salts of metals selected from the group consisting of Ag, Au, Cu, Zn, and combinations thereof [¶ 0043]. The antimicrobial compound, or composition comprise a metal, especially a metal which is selected from Mn, Ag, Zn, Sn, Fe, Cu, Al, Ni, Co, Ti, Zr, Cr, La, Bi, K, Cd, Yb, Dy, Nd, Ce, Tl, Pr and combinations thereof, very especially silver, gold, copper, zinc, and combinations thereof.[¶ 0061,0102]. At ¶¶ 0066-0067, the instant reference teaches that the metal compound [copper sulfate] are suspended in preferably water, heated, stirred, reduced and then cooled.
At ¶ 0118, the instant reference teaches that the antimicrobial porous particles of the present invention may include various substrate-based products. In such instances, the antimicrobial porous particles may be impregnated into or onto the substrate products. For instance, suitable carriers include nonwovens, disposable garments (e.g., gloves, smocks, surgical masks, infant bibs, socks, shoe inserts, etc.). Further, at ¶ 0210, they teach that nonwoven textiles are widely used in disposable as well as durable goods, such as baby diaper, feminine hygiene, adult incontinence, wipers, bed linings, automotive industries, medical face masks, air and water filtration, home furnishing and geotextiles. Such materials can be fabricated by different techniques, such as spunbonding, melt blown, carded thermal bonding and carded chemical bonding, dry and/or wet laid and needlefelts. Because of the nature of such applications the market is increasingly demanding products with specific properties such as antimicrobial efficacy
At ¶ 0132, the instant reference teaches that the antimicrobial composition may include a wide variety of anionic surfactants are potentially useful herein. Non-limiting examples of anionic lathering surfactants include those selected from the group consisting of alkyl and alkyl ether sulfates, sulfated monoglycerides, sulfonated olefins, alkyl aryl sulfonates, primary or secondary alkane sulfonates, alkyl sulfosuccinates, acyl taurates, acyl isethionates, alkyl glycerylether sulfonate, sulfonated methyl esters, sulfonated fatty acids, alkyl phosphates, acyl glutamates, acyl sarcosinates, alkyl sulfoacetates, acylated peptides, alkyl ether carboxylates, acyl lactylates, anionic fluorosurfactants, and mixtures thereof. At ¶ 0167-0170, the instant reference teaches that the fibrous materials like nonwovens, knits or woven can be treated with the antimicrobial porous particles of the present invention are materials comprising for example, silk, leather, wool, polyamide, for example nylon (including nylon-6, Nylon-66), or polyurethanes, polyester, polyacrylonitrile polypropylene, polyethylene and cellulose-containing fiber materials of all kinds, for example natural cellulose fibers, such as cotton, linen, jute and hemp, and also viscose staple fiber and regenerated cellulose.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Arti R Singh-Pandey whose telephone number is (571)272-1483. The examiner can normally be reached Monday-Thursday 8:30-3:00 and 8:00-10:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Duane Smith can be reached at 571-272-1166. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Arti Singh-Pandey/
Primary Patent Examiner
Art Unit 1759
asp