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
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-5, 7, 9, 11-13, & 15 are rejected under 35 U.S.C. 103 as being unpatentable over Magovac (Magovac, Materials 2020, 13, 5492) in view of Barbalini (Barbalini, Polymers 2019, 11, 1664) and Roy (Roy, Biological Activities and Application of Marine Polysaccharides, Chapter 12: Chitosan-Based Sustainable Textile Technology: Process, Mechanism, Innovation, and Safety, Intechopen, 2017).
Claim 1: Magovac is directed towards a method of preparing a eco-friendly flame-retardant fabric (environmentally-benign flame retardant cotton; title & abstract), comprising:
dipping a natural fiber (cotton is a natural fiber) into a first solution comprising chitosan and urea (see abstract);
dipping the natural fiber into a second solution including phytic acid (title & abstract);
drying the natural fiber dipped into the first solution (pg 3).
Magovac does not teach drying between each dipping step.
However, any order of process steps is prima facie obvious. See MPEP §2144.04(IV)(C).
Magovac does not teach that the first solution comprises a carboxylic acid.
Magovac does teach dissolving the chitosan in a solution with water and acid to obtain a pH of 4 (see pg 2, § 2, ¶ 2).
Roy, which is directed towards chitosan and the textile industry (title) discloses that chitosan can be dissolved with acetic acid (see for example, Table 2, pg 255).
It would have been obvious to one of ordinary skill in the art at the time of filing to use the teachings of Roy in the process of Magovac and use acetic acid as the solvent and as the acid for modifying the pH of the first solution because it is an art recognized solvent that is suitable for solvating chitosan and would have also provided the requisite acid for adjusting the pH which would have reduced the number of steps in the process.
Magovac does not teach that the second solution comprises an alcohol.
However, Barbalini, which is directed towards flame retardant coatings for cotton (title) teaches adding a TEOS sol to phytic acid for coating cotton significantly increases the flame retardant properties of the coating can be used in place of a pure phytic acid coating (see pg 11) wherein the phytic acid/TEOS coating is formed by combining phytic acid, TEOS, and ethanol (see § 2, pg 3).
It would have been obvious to one of ordinary skill in the art at the time of filing to incorporate the teachings of Barbalini into the process of Magovac and substitute the phytic acid/TEOS coating material in place of the phytic acid coating during the LBL coating process of Magovac because the phytic acid/TEOS coating is recognized in the art as a suitable flame retardant phytic acid based coating which would have predictably increased the flame retardant properties of the coating and it is an art recognized alternative for pure phytic acid coatings.
Magovac teaches drying at 80ºC for 24 hrs (pg 3).
It is well known in the art that the drying time is a result-effective variable based on the desired degree of dryness.
It would have been obvious to one of ordinary skill in the art at the time of filing to optimize drying time to obtain the desired degree of dryness.
"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." See MPEP 2144.05(II)(B).
Magovac does not teach the claimed drying temperature.
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here 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). MPEP 2144.05(II)(A).
Claims 2-3: As discussed above, the fabric is cotton.
Claim 4: As discussed above, the first solution of the combination comprises acetic acid.
Claim 5: As discussed above, the second solution of the combination comprises ethanol.
Claim 7: As discussed above, the second solution of the combination comprises TEOS and phytic acid.
Claim 9: Magovac teaches dipping in the first solution 5 minutes the first time and then 1 minute for each subsequent dipping in the first solution (pg 3).
It is well known in the art that the immersion time is a result-effective variable based on the desired concentration absorbed/deposited.
It would have been obvious to one of ordinary skill in the art at the time of filing to optimize immersion time to obtain the desired amount absorbed/deposited.
"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." See MPEP 2144.05(II)(B).
Magovac does not teach a temperature for the first solution.
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here 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). MPEP 2144.05(II)(A).
Claim 11: Magovac teaches dipping in the first solution 5 minutes the first time and then 1 minute for each subsequent dipping in the first solution (pg 3).
It is well known in the art that the immersion time is a result-effective variable based on the desired concentration absorbed/deposited.
It would have been obvious to one of ordinary skill in the art at the time of filing to optimize immersion time to obtain the desired amount absorbed/deposited.
"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." See MPEP 2144.05(II)(B).
Magovac does not teach a temperature for the first solution.
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here 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). MPEP 2144.05(II)(A).
Claim 12: As discussed above, Magovac teaches drying the cotton dipped into the second solution.
Claim 13: Magovac teaches drying at 80ºC for 24 hrs (pg 3).
It is well known in the art that the drying time is a result-effective variable based on the desired degree of dryness.
It would have been obvious to one of ordinary skill in the art at the time of filing to optimize drying time to obtain the desired degree of dryness.
"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." See MPEP 2144.05(II)(B).
Magovac does not teach the claimed drying temperature.
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here 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). MPEP 2144.05(II)(A).
Claim 15: The combination teaches the claimed invention but fails to explicitly teach that the structure exhibits water-repellent properties. Since the same materials are used; it is reasonable to presume the same material properties will be present. Support for said presumption is found in the use of like materials and like processes which would result in the claimed property.
The burden is upon the Applicant to prove otherwise. In re Fitzgerald 205 USPQ 594. In addition, the presently claimed properties would obviously have been present once the product is provided. Note In re Best, 195 USPQ at 433, footnote 4 (CCPA 1977).
Response to Arguments
Applicant's arguments filed 1/23/26 have been fully considered but they are not persuasive.
In regards to applicant’s argument that the order of steps is critical and significant; the Office does not find this argument convincing because no evidence has been provided to demonstrate criticality. The examiner asserts that the arguments of counsel cannot take the place of evidence in the record. In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965). MPEP 2145(I).
In regards to applicant’s argument that drying time is beyond routine experimentation; the Office does not find this argument convincing because as discussed above, the combination renders obvious the drying step and if there is a drying step then one must determine the amount of time to perform the drying step and thus it is within one of ordinary skill’s ability to determine the drying time by routine experimentation as discussed above. The examiner asserts that the arguments of counsel cannot take the place of evidence in the record. In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965). MPEP 2145(I).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 JAMES M MELLOTT whose telephone number is (571)270-3593. The examiner can normally be reached 8:30AM-4:30PM CST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Curtis Mayes can be reached at 571-272-1234. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/James M Mellott/ Primary Examiner, Art Unit 1759