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, claims 1-16, Species A (claim 3), and Species D (claim 14) in the reply filed on September 8, 2025 is acknowledged.
Claims 5, 6, 15, and 16 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on September 8, 2025.
Claim Objections
Claim7 is objected to because of the following informalities: the status identifier of claim 7 (withdrawn) is incorrect, because this claim is not withdrawn.
Appropriate correction is required.
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.
Claims 1-4 and 7-14 are 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 1, this claim recites adhesive layer comprising an adhesive substrate. It is unclear whether the recitation “adhesive substrate” refers to another layer of adhesive within the antimicrobial adhesive layer or a layer that formed the antimicrobial adhesive layer. In accordance with the specification, the recitation “adhesive substrate” is interpreted as a material that forms the antimicrobial adhesive layer. See 0040 of US Patent Application Publication 20240164542 A1 of the present application (“published application”) and claim 7.
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. For purpose of the examination, if prior art discloses wt% of antimicrobial agent as claimed, it will be interpreted to meet the claim limitation.
As to claim 14, this claim contains the trademark/trade name “zinc omadine”. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe zinc pyrithione (see under “INCI Name: Zinc Pyrithione” on the attached data sheet Zinc Omadine™ 48% from Lonza). As such, the identification/description is indefinite.
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 evidence by (a) data sheet Zinc Omadine™ 48% from Lonza and 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 omadine powder or dispersion as claimed.
Conclusion
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.
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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.
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/ANISH P DESAI/ Primary Examiner, Art Unit 1788
December 8, 2025