DETAILED ACTION
Applicant’s amendment submitted on May 18, 2026 (“amendment”) in response to previous Office action mailed on December 11, 2025 (“previous OA”) have been fully considered. Support for amendment to claim 14 can be found in the original specification and in the evidence reference cited by the examiner in the previous OA (see document cited under NPL on PTO 892 form).
In view of the amendment, the objection to claim 7 as set forth in the previous OA is moot.
The rejection of claims 1 and 14 under 35 USC 112(b) as set forth in the previous OA is withdrawn. The rejection of claim 10 under 35 USC 112(b) is maintained.
The art rejections of record as set forth in the previous OA are maintained.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 10 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
As to claim 10, this claim recites antimicrobial additive amount as wt% of the cushion article. This recitation is indefinite because the cushion article includes more than one layer (at least two substrate layer and an antimicrobial adhesive layer). Therefore, it is unclear how applicant arrives at the wt% of the antimicrobial additive relative to the whole cushion article when the antimicrobial additive is added in the antimicrobial adhesive layer.
The specification (see published application) does not clarify what is meant by this recitation. The examiner submits that in the claimed invention antimicrobial additive is included in the antimicrobial adhesive layer (see claim 1). Ordinarily, the amount of antimicrobial additive should have been specified relative to the antimicrobial adhesive layer, because the additive is included in the adhesive layer. However, applicant has claimed amount of the antimicrobial additive relative to the cushion article. The examiner submits that the claimed cushion article is open to presence of other elements (recited and unrecited), because the transition phrase “comprising” in the preamble of parent claim 1 is open-ended and does not exclude additional unrecited elements (e.g. further layers, ingredients etc.). See MPEP 2111.03 (I). Therefore, it is unclear how applicant arrives at the wt% of the antimicrobial additive relative to the entirety of the cushion article. Applicant’s amendment does not address the rejection of claim 10 under 35 USC 112(b). See page 5 of the amendment.
For purpose of the examination, if prior art discloses wt% of antimicrobial agent as claimed, it will be interpreted to meet the claim limitation.
Claim Rejections - 35 USC § 102
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.
Claims 1 and 7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Macuga (US 20040180195 A1).
As to claim 1, Macuga teaches a housewrap (cushion article) for attachment to a building (abstract).
Further, as to claim 1, the housewrap of Macuga comprises a barrier layer (substrate layer), a release liner (substrate layer), and an adhesive layer between the barrier layer and the release liner (Figure 6, 0023, 0031). As such, Macuga teaches two substrate layers.
Further, as to claim 1, Macuga teaches that the adhesive layer comprises polymers including polyacrylic acid (0035). The examiner submits that present specification recites that the adhesive substrate includes acrylic (see 0040 of the published application). As such, Macuga teaches an adhesive substrate. Further, Macuga teaches that the adhesive comprises antibacterial agent such as fungicide (0051).
Further, as to claim 1, Macuga is silent as to disclosing presence of antimicrobial additive from the barrier layer and the release liner.
As to claim preamble “cushion article, applicants’ attention is drawn to MPEP 2111.02 which states that “if the body of a claim fully and intrinsically sets forth all the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction”. Further, MPEP 2111.02 states that statements in the preamble reciting the purpose or intended use of the claimed invention must be evaluated to determine whether the purpose or intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.
The examiner submits that the preamble does not state any distinct definition of any of the claimed invention’s limitations and further that the purpose or intended use, i.e. cushion article, recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art of Macuga and further that the prior art structure which is a housewrap identical to that set forth in the present claims is capable of performing the recited purpose or intended use.
As to claim 7, Macuga teaches that the adhesive layer comprises polyacrylic acid (0035), which meets claimed acrylic.
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 1-4 and 7-14 are rejected under 35 U.S.C. 103 as being unpatentable over Klancnik et al. (US 20130174344 A1) in view of Batdorf (US 20040043686 A1), and as evidenced by (a) data sheet Zinc Omadine™ 48% from Lonza and (b) Papsin Jr. (US 6281298 B1).
As to claim 1, Klancnik discloses a layered components including mattresses, cushions, pillows, mattress supports with multiple layers (cushion article) (0026). Further, the cushion article of Klancnik comprises a top portion (substrate layer), a middle portion (substrate layer), and a bottom portion (substrate layer) (Figure 1 and 0029). Further, Klancnik discloses that the layers disclosed in Figure 1 are bonded together with an adhesive (adhesive layer comprising adhesive substrate) (0030, 0031, 0035).
Further, as to claim 1, Klancnik discloses that “a layer may further include biocide, preservatives…”. Thus, a person having ordinary skill in the art would recognize that the biocide (antimicrobial agent) are optional in the substrate layers of Klancnik. As such, Klancnik suggests that the at least two substrate layers are free of antimicrobial additive.
As to claim 1, the difference between the claimed invention and the prior art of Klancnik is that Klancnik is silent as to disclosing antimicrobial additive in the adhesive layer.
Batdorf discloses antimicrobial article including a porous sheeting substrate impregnated with a water-based antimicrobial composition that is substantially free of environmentally hazardous material (0001). Thus, the composition of Batdorf is environmentally friendly. Batdorf further discloses that the antimicrobial article can be used as mattress pads (0043).
The water based antimicrobial composition of Batdorf includes at least one polymeric emulsion or dispersion and at least one antimicrobial component (antimicrobial additive) that is substantially non-leaching and substantially free of environmentally hazardous material (0005). Moreover, Batdorf discloses that the water-based antimicrobial composition contains adhesion promoters (0031). Thus, a person having ordinary skill in the art would recognize that the antimicrobial composition of Batdorf is adhesive. Additionally, the antimicrobial article of Batdorf includes an adhesive layer, wherein the adhesive layer includes the antimicrobial component (0033).
As to claim 1, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to select the environmentally friendly water based antimicrobial composition containing the antimicrobial component of Batdorf and use it as the adhesive layer in the mattress of Klancnik, motivated by the desire to provide antibacterial characteristics (e.g. destroying insects such as pests, zero growth of microorganisms etc.) to the mattress of Klancnik (see 0012-0013, and 0028 of Batdorf).
Alternatively, as to claim 1, it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to select the adhesive containing the antimicrobial component as disclosed by Batdorf and use it as the adhesive layer in the mattress of Klancnik, motivated by the desire to provide antibacterial characteristics (e.g. destroying insects such as pests, zero growth of microorganisms etc.) to the mattress of Klancnik (see 0012-0013, and 0028 of Batdorf).
As to claim 2, Klancnik discloses that at least one of the first layer and the second layer comprises a gel foam such as polyurethane (claim 1, claim 3, and claim 4), which is interpreted to suggest claimed flexible polyurethane foam.
As to claim 3, Klancnik does not explicitly disclose whether the polyurethane foam disclosed previously is open-celled, closed-celled, or partially open-celled. However, Klancnik discloses that many manufacturers utilize foams that have a more closed cell structures, which restricts air flow through the mattress resulting in poor heat dissipation or transfer away from an individual resting upon the mattress (0008). As such, it would have been obvious to provide a flexible PU foam that is open celled, motivated by the desire to provide airflow through a mattress resulting in better heat dissipation and comfort to an individual resting upon the mattress.
As to claim 4, Klancnik as set forth previously discloses that “at least one of the first layer and the second layer comprises a gel foam such as polyurethane (claim 1, claim 3, and claim 4), which is interpreted to suggest that each of the two substrate layer comprises flexible polyurethane foam.
As to claim 7, Klancnik is silent as to disclosing this claim. However, Batdorf discloses that the adhesive is a PSA PD-8118 from H.B. Fuller Company (0033). The examiner submits that PD-8118 is polyacrylic adhesive (see column 5, lines 55-56 of Papsin). Thus, Batdorf discloses adhesive substrate including acrylic as claimed. it would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to select the polyacrylic adhesive containing the antimicrobial component as disclosed by Batdorf and use it as the adhesive layer in the mattress of Klancnik, motivated by the desire to provide antibacterial characteristics (e.g. destroying insects such as pests, zero growth of microorganisms etc.) to the mattress of Klancnik (see 0012-0013, and 0028 of Batdorf).
As to claims 8 and 9, Klancnik is silent as to disclosing this claim. Batdorf discloses 48% active zinc omadine as antimicrobial additive (0055). Batdorf does not explicitly disclose the particle size as claimed. However, zinc omadine 48% has 90% particle size of less than or equal to 1 microns as evidence by data sheet Zinc Omadine™ 48% from Lonza (see under “Specifications”). As to claim 9, the examiner submits that less than 1 microns encompasses the average particle size of less than 1 nm. Further, at present, there is no unobvious result seen between the claimed size of less than 1 nm and the size disclosed by the aforementioned data sheet.
As to claim 10, Klancnik or Batdorf do not disclose the amount of the antimicrobial additive with respect to the wt% of the cushion article as claimed. However, Batdorf discloses that typically, the amount of the antimicrobial component present in the composition depends on individual active agent. Further, Batdorf discloses that the antimicrobial agent component can be present in an amount of from about 0.080 wt% (active) to about 30.0 wt% (active), based on the total weight of the composition (0028). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to arrive at a workable range of the amount of the antimicrobial additive, including the claimed, motivated by the desire to provide proper antimicrobial properties (e.g. inhibition of growth of the microorganisms and/or kill the microorganisms).
As to claim 11, Batdorf as set forth previously discloses that typically, the amount of the antimicrobial component present in the composition depends on individual active agent. Further, Batdorf discloses that the antimicrobial agent component can be present in an amount of from about 0.080 wt% (active) to about 30.0 wt% (active), based on the total weight of the composition (0028). The examiner submits that 0.080 wt% to 30.0 wt% converts to 800 to 300,000 ppm, respectively (1% = 10,000 ppm). The claimed range of 5 ppm to 50,000 ppm overlaps or lies within the range disclosed by Batdorf such that prima facie case of obviousness exists. See MPEP 2144.05 (I). It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to arrive at a workable range of the amount of the antimicrobial additive, including the claimed, motivated by the desire to provide proper antimicrobial properties (e.g. inhibition of growth of the microorganisms and/or kill the microorganisms).
As to claims 12 and 13, Klancnik discloses that the top portion and the intermediate portion includes 1-6 layers, 2-8 layers etc. (0029). Further, Klancnik discloses that a layer can include an adhesive (0035). Moreover, Klancnik also discloses that the layers can be adhered together with an adhesive (0030-0031). Batdorf as set forth previously discloses an antimicrobial adhesive. Therefore, it would have been obvious to arrive at a third substrate and a second antimicrobial adhesive layer in the manner as claimed by using the antimicrobial adhesive of Batdorf, motivated by the desire to provide antibacterial characteristics (e.g. destroying insects such as pests, zero growth of microorganisms etc.) to the mattress of Klancnik (see 0012-0013, and 0028 of Batdorf). Further, a person having ordinary skill in the art would recognize that in the cushion article of Klancnik as modified by Batdorf, the antimicrobial additive would be included in the same amount in the first and the second adhesive layer.
As to claim 14, Batdorf discloses zinc omadine (0027-0028), which is interpreted to suggest zinc pyrithione powder or dispersion as claimed. The examiner submits that zinc omadine is also known as zinc pyrithione.
Response to Arguments
Applicant's arguments submitted with the amendment have been fully considered but they are not persuasive.
With respect to 35 USC 102(a)(1) rejection of claims 1 and 7 over Macuga (US 20040180195 A1), applicant argues the examiner has ignored entire claim 1 limitation “A cushion article comprising at least two substrate layers…wherein the at least two substrate layers are free of the antimicrobial additive.” Pages 5-6 of the amendment.
The examiner respectfully disagrees. All of the limitations recited in claim have been addressed by the examiner in the previous OA. See pages 5-6 of the previous OA. Accordingly, applicant’s argument is not found persuasive.
Applicant submits that paragraphs 00037-00040 of the specification discloses substrate layers. Further, applicant points to paragraph 00039 of the specification and argues that the substrate layers of the application include any material that is configured to be bound by the antimicrobial adhesive layer. Page 6 of the amendment.
The examiner respectfully submits that although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See MPEP 2145 (VI). Independent claim 1 recites “at least two substrate layers” without specifying specific structure and/or composition. At present, there are no structural and/or compositional difference between the barrier layer and release liner of Macuga and “at least two substrate layers”. Further, claim 1 requires that the antimicrobial adhesive layer is present between at least two substrate layers (see lines 3-4 of claim 1 “an antimicrobial adhesive layer between the at least two substrate layers”). Contrary to applicant’s argument, there is nothing in the claim that requires the antimicrobial adhesive layer binding at least two substrate layers together. Further, there is nothing in the claim that requires that the bonding between at least two substrate layers by the antimicrobial adhesive layer is permanent or temporary. Accordingly, applicant’s argument is not found persuasive.
With respect to the rejection of claims 1-4 and 7-14 are rejected under 35 USC 103 as being unpatentable over Klancnik et al. (US 20130174344 A1) in view of Batdorf (US 20040043686 A1), and as evidenced by (a) data sheet Zinc Omadine™ 48% from Lonza and (b) Papsin Jr. (US 6281298 B1), applicant argues following:
Applicant submits that the rejection is improper because Klancnik fails to teach a cushion article comprising at least two substrate layers, an antimicrobial adhesive layer between the at least two substrate layers. Page 8 of the amendment.
The examiner respectfully disagrees. One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of reference. See MPEP 2145 (IV). The examiner submits that Klancnik discloses presence of adhesive layer between at least two substrate layers as claimed. Specifically, the cushion article of Klancnik comprises a top portion (substrate layer), a middle portion (substrate layer), and a bottom portion (substrate layer) (Figure 1 and 0029). Further, Klancnik discloses that the layers disclosed in Figure 1 are bonded together with an adhesive (adhesive layer comprising adhesive substrate) (0030, 0031, 0035). While, Klancnik does not explicitly disclose adhesive layer includes antimicrobial additive as claimed, as set forth in the previous OA, Batdorf is relied upon to teach claim limitation of antimicrobial additive in an adhesive layer, and Klancnik as modified by Batdorf renders obvious claimed antimicrobial adhesive layer. Accordingly, applicant’s argument is not found persuasive.
Applicant argues that Batdorf fails because the disclosed antimicrobial article including a porous sheeting substrate impregnated with a water-based antimicrobial composition is not an adhesive substrate. According to applicant, even if Batdorf were to be combined in the manner suggested, the resulting hypothetical combination would fail to include a cushion article comprising at least two substrate layers and an antimicrobial adhesive substrate. Page 8 of the amendment.
The examiner respectfully disagrees. First, the examiner submits that primary reference of Klancnik as set forth previously discloses at least two substrate layers and an adhesive layer (i.e. adhesive layer comprising adhesive substrate). The claim does not structurally and/or compositionally distinguish “adhesive substrate” from “adhesive layer”. Second, Batdorf is relied upon to render obvious claimed antimicrobial additive in the adhesive layer. Accordingly, applicant’s argument is not found persuasive.
Applicant argues that the USPTO must supply some objective reason for making the purported combination, not merely state a conclusion. The rejection fails in this regards as well. Page 8 of the amendment.
The examiner respectfully disagrees. The objective reason(s) for making the combination is set fort on pages 8-9 of the previous OA.
With respect to the rejection of claims 8-9, applicant argues that the application and the claimed invention include various antimicrobial additives that may be used alone or in combination with one another (see paragraph 00041 and claim 14). Thus, applicant argues that one would not look to Lonza, because this reference fails to make obvious applicant’s antimicrobial additive as it only discloses the particle size of one of many antimicrobial additives that are used or could be used. Page 9 of the amendment.
The examiner respectfully disagrees. The examiner submits that although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See MPEP 2145 (VI). At present, claims 8-9 do not require specific types of antimicrobial additives including those disclosed in paragraph 00041 of the specification. Therefore, applicant’s argument is not commensurate in scope with the claimed invention. Further, Lonza is relied upon as evidence reference to show that 48% active zinc omadine as antimicrobial additive disclosed by Klancnik (0055) has 90% particle size of less than or equal to 1 microns. See page last full paragraph beginning on page 10 of the previous OA. Accordingly, applicant’s argument is not found persuasive.
With respect to the rejection of claim 10, applicant argues that Batdorf’s disclosure of presence of antimicrobial agent in the amount of about 0.080 wt% to about 30.0 wt% is not enough to render obvious specifically selected chemicals in the specified ranges of the specific components in the claims without more additional teaching or suggestion to arrive at not only the claimed ranges and the ratios but the specific chemicals and combinations thereof. Page 10 of the amendment.
The examiner respectfully disagrees. Claim 10 does not require specifically selected chemicals (specific antimicrobial agent) and combinations. At present, claim 10 requires a generic antimicrobial agent and its amount, which is rendered obvious from Batdorf. Further, at present, applicant has not cited any factual evidence that would establish that claimed amount of antimicrobial additive is critical (i.e. shows unexpected results). See MPEP 2144.05 (III)(A). Accordingly, applicant’s argument is not found persuasive.
With respect to the rejection of claim 11, applicant incorporates same arguments that are set forth previously with respect to claim 10 (see page 10 of the amendment). In response, the examiner respectfully incorporates his comments as set forth previously above here by reference.
With respect to the rejection of claims 12 and 13, applicant argues that the combination of references as proposed by the examiner would fail to include a cushion article comprising at lest a third substrate layer and a second antimicrobial adhesive layer, the second antimicrobial adhesive layer being located between the third substrate layer and at least one other substrate layer (claim 12), and the antimicrobial adhesive layer and the second antimicrobial adhesive layer include the antimicrobial additive in the same concentration (claim 13). Furter, according to applicant, the USPTO must supply some objective reason for making the purported combination, not merely state conclusion. Page 11 of the amendment.
The examiner respectfully disagrees. As set forth on page 12 of the previous OA, the examiner has provided rationale as to why one of ordinary skill in the art would have found it obvious to arrive at claims 12-13. Accordingly, applicant’s argument is not found persuasive.
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 ANISH P DESAI whose telephone number is (571)272-6467. The examiner can normally be reached Mon-Fri 8:00 am ET to 4:30 PM ET.
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, Alicia Chevalier can be reached at 571-272-1490. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ANISH P DESAI/ Primary Examiner, Art Unit 1788
June 5, 2026
Prosecution Insights