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 .
Continued Examination Under 37 CFR 1.114
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission has been entered.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-3, 5-7, and 9-11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wu (20110030858).
Regarding claims 1-3, 5-7, and 9-11, Wu discloses a gas generating composition for use in an air bag device that includes a fuel such as guanidine nitrate (0022) from 10-60 % (0017), an oxidizer such as basic copper nitrate (0024) from 20-70 %, a binder such as carboxymethyl cellulose (0040) from .5-15 % (0018), and an additive such as a cooling agent of size 10 micron (0032) of basic magnesium carbonate (0038) from 1-20 %.
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 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over Wu as applied above.
Wu discloses that the particle size can be 5, 5.5, or 6 micron (0031). Wu also discloses that the D50 is 10 micron, this means that 50 % of the particles are larger than 10 micron and 50 % are smaller. This value does not correlate to an average particle size.
It would have been obvious to one having ordinary skill in the art at the time the invention was made and/or filed to use smaller particle sizes since Wu discloses that it is known to use them and since Wu discloses that the sizes can be as low as 5, 5.5, and 6 micron, it would be obvious to use these particle size to obtain an average diameter that is claimed. Wu identifies that basic magnesium carbonate as a cooling agent and thus it would have been obvious to vary the parameters of the such as particle size to achieve a desired result, i.e. variations in cooling. It is well-settled that optimizing a result effective variable is well within the expected ability of a person of ordinary skill in the subject art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980), In re Aller, 220 F.2d 454, 105 USPQ 233 (CCPA 1955).
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive. Applicant argues that the prior art does not disclose the composition with sufficient specificity. This is not persuasive because the entire range is disclosed by the prior art. Applicant arguyes that Wu does not disclose or teach the focus on the content. This is not required. Wu recites the same amounts as claimed by Applicant, thus the composition is anticipated by the prior art. Further one of skill in the art would expect the same results with respect to burn rate and ignition from 10-20 % that are achieved from 0 to 10%. Applicant has not shown that this is a critical feature nor provided any evidence of unexpected results. The ranges here are different than that disclosed in the case law because they are a much narrower range and there are examples within the claimed range.
In response to applicant's argument regarding the properties, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AILEEN BAKER FELTON whose telephone number is (571)272-6875. The examiner can normally be reached Monday 9-5:30, Thursday 11-3, Friday 9-5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jonathan Johnson can be reached at 571-272-1177. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AILEEN B FELTON/Primary Examiner, Art Unit 1734
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