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 .
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.
Claim(s) 1-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jaudouin et al. (US 2019/0263307).
Regarding claims 1 and 3, Jaudouin discloses multilayer structure for floor covering comprising upper layer (2, fig 4, 0048), adhesive layer (3, fig 4, 0048), woven reinforcement layer (4, fig 4, 0048), adhesive layer (5, fig 4, 0048), non woven textile layer (6, fig 4, 0048), wherein the adhesive layers containing copolyester (0037) and the surface layer is made of PVC (0036). Jaudouin discloses intermediate layer of PVC, i.e. backing layer, placed between layers and decreases toxicity of fumes during combustion of the multilayer (0025-0026, 0052) wherein the thickness of the intermediate layer is 0.2 mm to 0.5 mm (200 to 500 microns) (0052). Therefore it would have been obvious to one of ordinary skill in the art to use the intermediate layer, i.e. backing layer, anywhere in the multilayer of Jaudouin including between the woven and non woven textile layer to obtain decreased toxicity of fumes during combustion of the multilayer. Given that the basis weight of the multilayer structure depends on thickness of the multilayer structure, it would have been obvious to one of ordinary skill in the art to adjust the basis weight of the multilayer structure to obtain desired thickness to meet end users requirements.
Regarding claim 2, Jaudouin discloses the multilayer of claim 1, wherein given that the backing of Jaudouin is the same as claimed in present claim, it is clear that the backing of Jaudouin would possess the same properties as presently claim.
Regarding claim 4, Jaudouin discloses the multilayer of claim 1, wherein given that the claim recites flame retardants 2% or less, it is considered to be 0.
Regarding claim 5, Jaudouin discloses the multilayer of claim 1, wherein the surface layer comprises an upper layer and decorative layer of plasticized pvc (0036, 0052).
Regarding claim 6, Jaudouin discloses the multilayer of claim 4, wherein the upper layer is transparent (0022) and the printed decorative layer is directly positioned beneath the upper layer (fig 4, 0022).
Regarding claim 7, Jaudouin discloses the multilayer of claim 1, wherein the woven reinforcement is impregnated with a thermoplastic or thermosetting polymer (0019-0020).
Since the instant specification is silent to unexpected results, the specific amount of thermoplastic or thermosetting polymer is not considered to confer patentability to the claims. As the flexibility is a variable that can be modified, among others, by adjusting the amount of thermoplastic or thermosetting polymer, the precise amount would have been considered a result effective variable by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed amount cannot be considered critical. Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the amount of thermoplastic or thermosetting polymer in the woven layer to obtain the desired flexibility (In re Boesch, 617 F.2d. 272, 205 USPQ 215 (CCPA 1980)), since it has been held that where the general conditions of the claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. (In re Aller, 105 USPQ 223).
Regarding claim 8, Jaudouin discloses the multilayer of claim 1, wherein the non woven textile layer is bonded to a lower surface of the backing layer through a bonding layer comprises polyurethane, i.e. crosslinked polyurethane, (fig 4, 0027).
Regarding claim 9, Jaudouin discloses the multilayer of claim 8, wherein the non woven textile layer comprises aramide fibers (0041).
Regarding claim 10, Jaudouin discloses the multilayer of claim 1, wherein the multilayer structure further comprises a repositionable double sided adhesive layer on a lower surface intended to be facing the floor (0015).
Response to Arguments
Applicant's arguments filed 08/26/2025 have been fully considered but they are not persuasive.
Applicant argues that the examiner has not identified where Jaudouin discloses a PVC backing layer. However, it is noted that the examiner did point to paragraphs 0025-0026 and 0052 in Jaudouin which disclose intermediate layer of PVC which is equivalent to the PVC backing layer as explained above and in the previous Office Action.
Applicant argues that Jaudouin’s intermediate layer cannot function as the claimed backing layer. Examiner respectfully disagrees with the applicant. The examiner is not pointing to figures 3 and 4 of Jaudouin to meet such limitation. Rather, the examiner stated that Jaudouin discloses intermediate layer of PVC placed between layers and decreases toxicity of fumes during combustion of the multilayer (0025-0026, 0052) wherein the thickness of the intermediate layer is 0.2 mm to 0.5 mm (200 to 500 microns) (0052). Therefore it would have been obvious to one of ordinary skill in the art to use the intermediate layer, i.e. backing layer, anywhere in the multilayer of Jaudouin including between the woven and non woven textile layer to obtain decreased toxicity of fumes during combustion of the multilayer.
Applicant argues that Jaudouin does not disclose the plasticizer content of any backing layer. However, it is noted that the present claim recites less than 25 PCR of plasticizer which includes 0 PCR of plasticizer, i.e. optional component.
Applicant argues that moving or duplicating the PVC intermediate layer in order to make it a backing layer does not in any way improve the recyclability of the flooring as a whole. However, it is noted that Jaudouin does provide a motivation to use such layer. There is nothing in Jaudouin disclosure that limits the reposition of the intermediate layer anywhere in the structure. Further, there is no evidence provided that repositioning an intermediate layer in Jaudouin would affect the recyclability of the flooring as a whole.
Applicant argues that the rejection is based on impermissible hindsight reconstruction. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). The rejection is not based on hindsight but rather on motivation to combine found in the references themselves. Further, it is the examiner's position that the combination is not based on hindsight but rather on motivation to combine found in Jaudouin itself, namely, to obtain decreased toxicity of fumes during combustion of the multilayer.
Applicant points to examples in specification and argues that the minimally plasticized backing layer is critical and nonobvivous. However, it is noted that the present claim recites less than 25 PCR of plasticizer which makes the plasticizer an optional component given that less than 25 includes 0. If applicant were to amend present claim to recite plasticizer positively, the present rejection would overcome.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SAMIR SHAH whose telephone number is (571)270-1143. The examiner can normally be reached 8:00am - 5:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Callie Shosho can be reached at 571-272-1123. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SAMIR SHAH/Primary Examiner, Art Unit 1787