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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-14 and 20 in the reply filed on 07/08/25 is acknowledged. Claims 15-19 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention.
Examiner’s Comments
The Examiner has cited particular columns and line numbers, paragraphs, or figures in the references as applied to the claims for the convenience of the Applicant. Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages and figures may apply as well. It is respectfully requested from the applicant, in preparing the responses, to fully consider the references in entirety as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the examiner.
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 is relied upon, and the rationale supporting the rejection, would be the same under either status.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-14 and 20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of copending Application No. 18/359,239 [USPUB 20240035214 A1]. The claims filed on 07/09/2025 were considered for analysis. This is a provisional obviousness-type double patenting rejection because the conflicting claims have not in fact been patented. Although the conflicting claims are not identical, they are not patentably distinct from each other because of the embodiment of the instant claims would be rendered obvious by the embodiments of claims 1-14 of 18/359,239 the only difference being efficacy against the type of bacteria Escherichia coli. Both Klebsiella pneumoniae (18/359,239) and Escherichia coli (18/066,763) are part of the Enterobacteriaceae family.
Claim Objections
Claims 1-14 and 20 are objected to because of the following informalities: Applicant needs to spell out the first instant of using AM/AV for the antiviral and/or antimicrobial and/or antiodor (AM/AV) fiber. Appropriate correction is required.
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) 1-14 and 20 is/are rejected under 35 U.S.C. 103 as obvious over USPUB 20220054964A1 issued to Gopal et al. further evidenced y USPUB 20120263771A1 issued to Carlson et al.
Regarding Claim 1, where Applicant seeks an AM/AV fabric, comprising:
base fibers comprising a base polymer composition; and AM/AV fibers comprising an AM/AV polymer composition comprising an AM/AV polymer and an AM/AV compound;
wherein base fibers and the AM/AV fibers are intermingled with one another; and
wherein the fabric demonstrates an Escherichia coli efficacy log reduction greater than 4.0, as measured in accordance with ASTM E3160 (2018) and a particle filtration efficiency greater than 35%; Applicant is directed to the teachings of USPUB 20220054964A1 issued to Gopal et al.
Gopal et al teach making filter media structures having antimicrobial and/or antiviral properties. [Abstract] and comprises a first layer with an electret web (an electrically charged nonwoven web) comprising a polymer such as polyolefin, polyester, polyurethane, polycarbonate, polystyrene, fluoropolymer, or copolymers.
At ¶ 0027, the instant reference teaches that a second layer may be formed directly on the first layer. For example, the first layer may comprise polyolefin, polyester, or polystyrene, and the second layer may comprise polymer fibers, preferably polyamide fibers, which are blown directly on a surface of the first layer. In this way, the first layer and the second layer may be (substantially) contiguous. The first layer is formed from polypropylene (e.g., spunbond) and the second layer is formed from a plurality of fibers of a polyamide composition (e.g., meltblown). Melt blown fibers are known to be short fibers.
As ¶ 0028 discusses that in some embodiments, the layers of the filter media structure are separable and/or removable, this shows that if desired the first and second layers are intermingled so that it is not possible to separate them.
At ¶ 0033-0034, the instant reference discloses that a charge may be applied to the first layer using any suitable technique, such as corona charging, tribocharging, or hydro charging. ¶ 0033 specifically states that the electrostatic charge of the first layer may be up to -20 kV.
At ¶ 0035, the instant reference teaches that the first layer may comprise staple fibers to provides a more lofty, less dense web wherein the number of staple fibers in the first layer may be 1 - 90 wt.%.
At ¶ 0079, the instant reference discloses that the first layer may comprise an antimicrobial/antiviral polymer composition and ¶ 0080 discloses that a layer with biological reducing properties may comprise a polymer and one or more AM/ AV compounds, such as metallic compounds including copper and zinc.
At ¶ 0136, the instant reference teaches that any of the layers of the filter media structure may comprise additional additives. The additives include pigments, hydrophilic or hydrophobic additives, antiodor additives, additional antiviral agents, and antimicrobial/ anti-fungal inorganic compounds, such as copper, zinc, tin, and silver.
At ¶ 0071, the instant reference teaches that the antimicrobial activity of the filter media structure may also be measured by determining the percentage inhibiting a bacterium or bacteria, e.g. Klebsiella pneumoniae and that in one embodiment, the filter media structure inhibits the growth reduction of K. pneumoniae in an amount ranging from 60% to 100%. It should be noted that in microbiology a 1 log reduction = 90% reduction, 2 log reduction = 99% reduction and a 1.5 log fall is approximately a 96% reduction.
At ¶ 0129 and ¶ 0180-0181, the instant reference discloses that particulate filtration efficiency PFE was measured using the TSI 8130 test.
At ¶ 0130-0132, the instant reference teaches that PFE which measures a percentage of particles that are trapped or isolated by the filter media structure demonstrates a PFE greater than 90%.
At ¶ 0183, Example 1, of the instant reference they teach that the filter media structure was prepared using a 77.2 g/m2 spunbond polypropylene (SBPP) charged two-layer nonwoven layer having an average fiber diameter of 13 microns, thickness of 0.65 mm on which a 17 g/m2 meltblown polyamide (MBPA) having an average fiber diameter of about 1.5 to 2 microns was positioned in an upstream manner. The meltblown polyamide comprised 500 ppm of zinc by weight (wppm).
Regarding the limitation in claim 1 wherein the fabric demonstrates an Escherichia coli efficacy log reduction greater than 4.0, as measured in accordance with ASTM E3160 (2018)- Gopal et al. at ¶ 0071, teaches that the antimicrobial activity of the filter media structure may also be measured by determining the percentage inhibiting a bacterium or bacteria, e.g. Klebsiella pneumoniae and that in one embodiment, the filter media structure inhibits the growth reduction of K. pneumoniae in an amount ranging from 60% to 100%. It should be noted that in microbiology a 1 log reduction = 90% reduction, 2 log reduction = 99% reduction and a 1.5 log fall is approximately a 96% reduction. They do not test using the same standard nor do they speak to the bacteria being Escherichia coli as sought by Applicant.
It is the position of the Office that the resultant property of the fabric demonstrates a Escherichia coli efficacy log reduction greater than 1.5, as measured in accordance with ASTM E3160 (2018) would be met by Gopal et al. Support for said assumption is found in the use of the same layers, same composition, same fiber size and filtering the same bacteria of Klebsiella pneumoniae or Escherichia coli as they are from the same Enterobacteriaceae family as Applicant. This is also evidenced by the teachings of USPUB 20120263771A1 issued to Carlson et al. (see ¶ 0122). The burden is upon Applicant to prove otherwise. In re Fitzgerald 205 USPQ 594. In addition, the presently claimed properties as set forth above, it would obviously have been present once the Gopal et al. product is provided. Note In re Best, 195 USPQ at 433, footnote (CCPA 1977) as to the providing of this rejection made above under 35 USC 102. Reliance upon inherency is not improper even though rejection is based on Section 103 instead of Section 102. In re Skoner, et al. (CCPA) 186 USPQ 80.
At ¶ 0157, the instant reference teaches that the filter media structures may be used in wound care, for example, the filter media structures may be employed as wraps, (breathable) gauzes, bandages, and/or other dressings and that the AM/ AV properties of the filter media structures make them particularly beneficial in these applications. In some cases, the filter media structures serve as a moisture barrier and/or to facilitate an oxygen transmission balance.
Regarding Claims 2-5, where Applicant seeks that the fabric of claim 1, wherein the base fibers have a base fiber charge; Applicant is directed to ¶ 0032-0034, 00691, 0170 and 0187.
Regarding Claim 6, where Applicant seeks that the fabric of claim 1, wherein the fabric, comprises greater than 25 wt% base fibers; Applicant is directed to ¶ 0010, where the instant reference teaches that the amount can be 50 to 99.9 wt. %
Regarding Claim 7, where Applicant seeks that the fabric of claim 1, wherein the base polymer comprises polypropylene and the AM/AV polymer comprises polyamide; Applicant is directed to ¶ 0009-0013 and 0027 and the working examples, where the instant reference teaches that a second layer may be formed directly on the first layer. For example, the first layer may comprise polyolefin, polyester, or polystyrene, and the second layer may comprise polymer fibers, preferably polyamide fibers, which are blown directly on a surface of the first layer. In this way, the first layer and the second layer may be (substantially) contiguous. The first layer is formed from polypropylene (e.g., spunbond) and the second layer is formed from a plurality of fibers of a polyamide composition (e.g., meltblown). Melt blown fibers are known to be short fibers.
Regarding Claim 8, where Applicant seeks that the fabric of claim 1, wherein the AM/AV compound comprises zinc or copper or a combination thereof; Applicant is directed to ¶ 0136, the instant reference teaches that any of the layers of the filter media structure may comprise additional additives. The additives include pigments, hydrophilic or hydrophobic additives, antiodor additives, additional antiviral agents, and antimicrobial/ anti-fungal inorganic compounds, such as copper, zinc, tin, and silver.
Regarding Claim 9, where Applicant seeks that the fabric of claim 1, wherein the AM/AV compound comprises a zinc compound; Applicant is directed to ¶ 0136, the instant reference teaches that any of the layers of the filter media structure may comprise additional additives. The additives include pigments, hydrophilic or hydrophobic additives, antiodor additives, additional antiviral agents, and antimicrobial/ anti-fungal inorganic compounds, such as copper, zinc, tin, and silver.
Regarding Claim 10, where Applicant seeks that the fabric of claim 1, wherein the AM/AV fibers comprise a supplemental polymer different from the AM/AV polymer; Applicant is directed to ¶ 0009-0013 and 0027 and the working examples, where the instant reference teaches that a second layer may be formed directly on the first layer. For example, the first layer may comprise polyolefin, polyester, or polystyrene, and the second layer may comprise polymer fibers, preferably polyamide fibers, which are blown directly on a surface of the first layer. In this way, the first layer and the second layer may be (substantially) contiguous. The first layer is formed from polypropylene (e.g., spunbond) and the second layer is formed from a plurality of fibers of a polyamide composition (e.g., meltblown).
Regarding Claim 11, where Applicant seeks that the fabric of claim 1, wherein the base polymer composition or the AM/AV polymer composition comprises a charge agent; Applicant is directed to ¶ 0033 of the instant reference which teaches that comprise a charge additives.
Regarding Claim 12, where Applicant seeks that the fabric of claim 1, wherein the fabric demonstrates an ATI filtration efficiency greater than 20% at an 85 1pm flow rate; Gopal et al. do not explicitly teach the resultant properties of the fabric demonstrates an ATI filtration efficiency greater than 20% at an 85 1pm flow rate, it is reasonable to presume that said limitations are inherent to the invention. Support for said presumption is found in the use of similar materials (i.e. same fibers, same weave, same composition, same length, same basis weight and most of all same intended use. The burden is upon the Applicant to prove otherwise. In re Fitzgerald, 205 USPQ 594. In the alternative, the claimed resultant properties of the fabric demonstrates an ATI filtration efficiency greater than 20% at an 85 1pm flow rate, would obviously have been provided by the composite disclosed by Gopal et al. Note In re Best, 195 USPQ 433, footnote 4 (CCPA 1977) as to the providing of this rejection under 35 USC 103 in addition to the rejection made above under 35 USC 102.
Regarding Claim 13, where Applicant seeks that the fabric of claim 1, wherein the fabric demonstrates a pressure drop greater than 1 mm H2O/cm2; Gopal et al. do not explicitly teach the resultant properties of the fabric demonstrates a pressure drop greater than 1 mm H2O/cm2, it is reasonable to presume that said limitations are inherent to the invention. Support for said presumption is found in the use of similar materials (i.e. same fibers, same weave, same composition, same length, same basis weight and most of all same intended use. The burden is upon the Applicant to prove otherwise. In re Fitzgerald, 205 USPQ 594. In the alternative, the claimed resultant properties of the fabric demonstrate a pressure drop greater than 1 mm H2O/cm2, would obviously have been provided by the composite disclosed by Gopal et al. Note In re Best, 195 USPQ 433, footnote 4 (CCPA 1977) as to the providing of this rejection under 35 USC 103 in addition to the rejection made above under 35 USC 102.
Regarding Claim 14, where Applicant seeks that the fabric of claim 1, wherein the fabric demonstrates an air permeability greater than 20 cfm/ft2 at a mean flow pore size of at least 7 microns; Gopal et al. do not explicitly teach the resultant properties of the fabric demonstrates an air permeability greater than 20 cfm/ft2 at a mean flow pore size of at least 7 microns, it is reasonable to presume that said limitations are inherent to the invention. Support for said presumption is found in the use of similar materials (i.e. same fibers, same weave, same composition, same length, same basis weight and most of all same intended use. The burden is upon the Applicant to prove otherwise. In re Fitzgerald, 205 USPQ 594. In the alternative, the claimed resultant properties of the fabric demonstrate an air permeability greater than 20 cfm/ft2 at a mean flow pore size of at least 7 microns, would obviously have been provided by the composite disclosed by Gopal et al. Note In re Best, 195 USPQ 433, footnote 4 (CCPA 1977) as to the providing of this rejection under 35 USC 103 in addition to the rejection made above under 35 USC 102.
Regarding Claim 20, see rationale for Claim 1 above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Please review references listed on PTO 892.
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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/Arti Singh-Pandey/
Primary Patent Examiner
Art Unit 1759
asp
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