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 .
Election/Restrictions
Applicant’s election without traverse of Group I in the reply filed on 11/17/2025 is acknowledged. Applicant’s election of a spunbond nonwoven fabric formed from three spunbond layers for Species Group 1, a VPLI film having three layers for Species Group 2, and a discontinuous adhesive layer for Species Group 3, in the reply filed on 11/17/2025, is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)). Claims 8-11 and 15-19 are withdrawn from further consideration as being drawn to a nonelected invention and/or species.
Claim Rejections - 35 USC § 102/103
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 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.
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 1-7, 12-14 and 20 are rejected under 35 U.S.C. 102(a)(1) as anticipated by USPAP 2005/0043460 to McCormack or, in the alternative, under 35 U.S.C. 103 as obvious over USPAP 2005/0043460 to McCormack in view of USPN 5,540,976 to Shawver, USPAP 2003/0049397 to Singer, and/or USPN 6,156,421 to Stopper.
Claim 1, McCormack discloses a laminate, comprising: a nonwoven fabric; and a vapor-permeable and liquid impermeable (VPLI) film bonded to the nonwoven fabric by an adhesive layer located between the nonwoven fabric and the VPLI film; wherein the VPLI film has (i) a moisture vapor transmission rate (MVTR) of at least about 2000 g/m2/24 hours as determined according to EDNA/INDA Worldwide Strategic Methods: WSP 70.4(08), and/or (ii) a puncture resistance of at least about 5 N as determined according to UNI EN 863:1997 + UNI EN 14325:2005 Par. 4.10 + UNI EN 13034:2009 Par. 4.1 with test conditions of (20 +/- 2)°C at (65 +/- 4)% U.R. with an extension rate of 100 mm/min (see entire document including [0002]-[0008], [0038]-[0040], [0090] and [0098]-[0100]).
The Patent and Trademark Office can require applicants to prove that prior art products do not necessarily or inherently possess characteristics of claimed products where claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes; burden of proof is on applicants where rejection based on inherency under 35 U.S.C. § 102 or on prima facie obviousness under 35 U.S.C. § 103, jointly or alternatively, and Patent and Trademark Office’s inability to manufacture products or to obtain and compare prior art products evidences fairness of this rejection, In re Best, Bolton, and Shaw, 195 USPQ 431 (CCPA 1977).
Claim 2, the nonwoven fabric comprises at least one spunbond layer, at least one meltblown layer, at least one carded layer, or any combinations thereof [0090].
Clam 3, the nonwoven fabric comprises one or more spunbond layers [0090].
Claim 4, the nonwoven fabric has a basis weight from about 40 to about 150 grams-per-square meter (gsm) [0090].
Claim 5, the nonwoven fabric includes a plurality of fibers comprising a high density polyethylene, an ethylene/1-octene copolymer, a polypropylene, or a combination thereof [0099].
Claim 6, McCormack does not appear to mention the spunbond fibers comprising a high density polyethylene (HDPE) but Shawver discloses that it is known in the art to use spunbond HDPE nonwoven fabrics (see entire document including column 1, lines 5-47 and column 7, lines 12-51). Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to make the nonwoven fabric from any suitable spunbond fabric material, such as HDPE, because it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability and desired characteristics.
Claim 7, Shawver discloses Dow 25355 and 12350 HDPE which have a melt flow rate (MFR) of from about 5 to about 30 g/ 10 min as determined by ASTM D1238 (190 C°/2.16 kg) (column 7, lines 12-51 of Shawver and [0053] of Singer).
Claims 12-14, McCormack does not appear to mention the VPLI microporous film comprising a multi-layer film but Stopper discloses that it is known in the art to construct a VPLI film as a multi-layer film comprising additional film layers, wherein each film layer is a microporous layer with fillers dispersed throughout the same polymeric composition (see entire document including column 1, line 9 through column 2, line 31 and column 5, lines 41-49). Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to make the film of McCormack with any suitable construction, such as the claimed multi-layer construction, because it is within the general skill of a worker in the art to select a known construction on the basis of its suitability and desired characteristics. Plus, the mere duplication of parts has no patentable significance. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960) (Claims at issue were directed to a water-tight masonry structure wherein a water seal of flexible material fills the joints which form between adjacent pours of concrete. The claimed water seal has a “web” which lies in the joint, and a plurality of “ribs” projecting outwardly from each side of the web into one of the adjacent concrete slabs. The prior art disclosed a flexible water stop for preventing passage of water between masses of concrete in the shape of a plus sign (+). Although the reference did not disclose a plurality of ribs, the court held that mere duplication of parts has no patentable significance unless a new and unexpected result is produced.). MPEP 2144.04.
Claim 20, McCormack discloses an article of protective clothing, comprising a laminate according to claim 1, wherein the article of protective clothing comprises coveralls, gowns, smocks, pants, headwear, and shoe covers [0003].
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW T PIZIALI whose telephone number is (571)272-1541. The examiner can normally be reached Monday-Thursday 7am-5pm.
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/ANDREW T PIZIALI/Primary Examiner, Art Unit 1789