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 . 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.
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.
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.
Claim(s) 1-2, 4, 7-10, 12-19, 21-23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Garvey (U.S PG Pub 20140273687A1), Payot (U.S PG Pub 20130186705A1), and Tinianov (U.S PG Pub 20090004448A1).
Regarding claims 1-2, & 4, Garvey, drawn also to the art of a building board construction that provides enhanced acoustical properties (i.e. enhanced sound absorption) (Abstract), discloses a plaster board having a first surface and an opposed second surface, the plaster board comprising, a body of hardened plaster material (i.e. gypsum) extending from the first surface to the second surface (Figures 4 & 6; [0022-0024], and one or more continuous layers of material disposed within the body and extending along a first axis to two opposed edges of the plaster board (polymer sheet 28), each continuous layer of material having a first side and second opposed side (given that the polymer sheet is 3-dimensional, this is necessarily true, as it is with the plaster board) and the first and second sides being covered by the hardened plaster material, each continuous layer being a damping sheet ([0025]; Figures 4 & 6) having a damping loss factor that is greater than a damping loss factor of the hardened plaster material. Given that the polymer sheet (28) is specifically used to enhance acoustical properties of the building board construction, it can be reasonably expected that the damping factor of the polymer sheet is greater than the damping factor of hardened plaster material [0025-0026]. Garvey discloses that the polymer sheet (28) has sound absorbing characteristics: attenuates and dissipates sound [0026]. It is implied that the polymer sheet would have a higher damping factor than the plaster otherwise it would serve no purpose. Given that the polymer sheet (28) of Garvey is responsible for attenuating and dissipating sound [0026], this would mean that the polymer sheet serves the function of absorbing or damping sound, and as is also disclosed in the abstract of Garvey, the invention of Garvey is drawn to a building board that provides improved/enhanced acoustical properties i.e. improved sound absorption. Taking all of this together, it is implied, that the polymer sheet (28) of Garvey would have a higher damping factor than the damping factor of hardened plaster material, since hardened plaster material is well-known in building boards and is not anything new or novel, thus the improved acoustical properties are drawn from the polymer sheet (28) of Garvey, rather than the hardened plaster board material. Garvey also has disclosed the plaster material being a gypsum material [0022-0023].
However, Garvey has not explicitly disclosed the continuous layer of material being a sheet that is a carrier sheet with a polymer disposed thereon.
Payot, drawn also the art of acoustic damping articles and construction materials formed using acoustic damping articles [0002], discloses a polymer resin 102 between two rigid panels (104 & 106) (Figures 1a & 6a-e). Payot discloses that the rigid panels are gypsum [0035]. Payot further discloses a polymer resin (102), which is an acrylic material or silicone [0017-0020], on a release liner (604), with the release liner being a polymer sheet [0038]. Payot discloses the polymer resin and release liner being sandwiched/laminated between two rigid gypsum panels (Figures 1a & 6a-6e; [0046-0048]). Payot further discloses the polymer resin having a damping factor of 0.4 to 1 [0024], and as evidenced by Tinianov [0011], gypsum wallboards have a damping factor of 0.03, thus, Payot has disclosed a continuous layer (i.e. polymer resin + release liner) having a greater damping loss factor than the hardened plaster material (i.e. gypsum wallboards). Payot further discloses that the polymer resin can have a shear modulus up to 100 MPa [0023], and has further disclosed that the damping loss factor of the resin is higher than 10% (Figure 3).
It would have been obvious to an ordinarily skilled artisan to have modified the plaster board of Garvey, with the polymer resin being disposed on a carrier sheet as disclosed by Payot, to arrive at the instant invention, in order to have acoustic damping articles with technical advantages and which exhibit desirable modal damping factors and short drying time [0037].
In the event the applicant disagrees with the interpretation of the carrier sheet of Payot as explained above, it is further known from Tinianov to have a polymer resin on carrier sheets, that remain a part of the final product.
Tinianov, drawn also to the art of panel for use in building construction, which exhibit improved acoustical sound proofing, with the panel having a laminated structure with a viscoelastic material disposed on a constraining layer (which is a plastic layer i.e. polymer) (i.e. carrier layer/sheet – analogous to polymer sheet of Garvey) and the viscoelastic material and constraining layer being sandwiched between two external surface of gypsum (Abstract; Figure 1), discloses an uncured ([0030]; [0043]) viscoelastic material ([0030-0031]; Table 1) (acrylic material 104 & 105 as claimed in instant specification [0037]) sprayed [0049] on a constraining layer (i.e. plastic layer 102) [0041-0042], and then sandwiched between gypsum boards 101 & 103 (Figure 1; [0030]; [0045-0048] and allowed to set/cure in a controlled manner at a certain temperature (i.e. being thermally curable). The constraining layer of Tinianov (plastic layer 102) which carries the polymer resin, is interpreted as the carrier sheet, since it serves the exact same purpose as the carrier sheet as instantly claimed.
It would have been obvious to an ordinarily skilled artisan to have modified the plaster board of Garvey, with the constraining layer (carrier sheet) and uncured polymer on the constraining layer, as disclosed by Tinianov, to arrive at the instant invention, in order to obtain a panel or building board construction that allows reduction of noise transmission at multiple frequencies [0008] and improved acoustic isolation for assemblies subject to multiple temperature exposures [0056].
Regarding claim 7, Payot further discloses a polymer resin (102), which is an acrylic material or silicone [0017-0020], on a release liner (604), with the release liner being a polymer sheet [0038].
It would have been obvious to an ordinarily skilled artisan to have modified the plaster board of Garvey, with the polymer resin being an acrylic material or silicone as disclosed by Payot, to arrive at the instant invention, in order to have acoustic damping articles with technical advantages and which exhibit desirable modal damping factors and short drying time [0037].
Regarding claim 8 & 10, Payot further discloses that the polymer resin can have a shear modulus up to 100 MPa [0023], and has further disclosed that the damping loss factor of the resin is higher than 10% (Figure 3).
It would have been obvious to an ordinarily skilled artisan to have modified the plaster board of Garvey, with the polymer having a damping factor of at least 5% as disclosed by Payot, to arrive at the instant invention, in order to have acoustic damping articles with technical advantages and which exhibit desirable modal damping factors and short drying time [0037].
Regarding claim 9, Payot further discloses that the polymer resin can have a shear modulus up to 100 MPa [0023], and has further disclosed that the damping loss factor of the resin is higher than 10% (Figure 3). The shear modulus as disclosed by Payot forms at least an overlapping and encompassing range with the instantly claimed range. The courts have held that in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976) (MPEP 2144.05(I)).
It would have been obvious to an ordinarily skilled artisan to have modified the plaster board of Garvey, with the polymer having a shear modulus in the range as claimed, as disclosed by Payot, to arrive at the instant invention, in order to have acoustic damping articles with technical advantages and which exhibit desirable modal damping factors and short drying time [0037].
Regarding claims 12-13, Garvey has already disclosed the continuous layer of material being a single continuous layer of material ([0025]; Figures 4 & 6 of Garvey). As can be seen in Figures 4 & 6, the continuous layer of material also extends throughout the body of hardened plaster material in a plane substantially parallel to the first surface of the plaster board.
Regarding claim 14-15, Payot has disclosed a plurality of continuous layers of material (polymer resin 102 in continuous strips 6022, 6024, 6026 & 6028; Figures 6a-6e; [0046-0048]), with at least a first continuous slayer of material elongated in parallel with a first axis of the plaster board and a second continuous layer of material that is elongated in parallel with the first axis of the plaster board (Figures 6a-6e). Payot also discloses that the distance between the coated area edges i.e. strip edges is no greater than 35mm [0031], which translates to 1.38 inches, and thus falls within the instantly claimed range.
It would have been obvious to an ordinarily skilled artisan to have modified the plaster board of Garvey, with the layer of continuous material being a plurality of layers arranged side by side, to arrive at the instant invention, in order to have acoustic damping articles with technical advantages and which exhibit desirable modal damping factors and short drying time [0037].
Regarding claim 16, Payot has disclosed a plurality of continuous layers of material (polymer resin 102 in continuous strips 6022, 6024, 6026 & 6028; Figures 6a-6e; [0046-0048]), with at least a first continuous slayer of material elongated in parallel with a first axis of the plaster board and a second continuous layer of material that is elongated in parallel with the first axis of the plaster board (Figures 6a-6e). Payot also discloses that the distance between the coated area edges i.e. strip edges is no greater than 35mm [0031], which translates to 1.38 inches, and thus falls within the instantly claimed range.
It would have been obvious to an ordinarily skilled artisan to have modified the plaster board of Garvey, with the layer of continuous material being a plurality of layers arranged side by side and extending in parallel with an axis of the plaster board, to arrive at the instant invention, in order to have acoustic damping articles with technical advantages and which exhibit desirable modal damping factors and short drying time [0037].
Regarding claims 17-18, Garvey has disclosed the one or more continuous layers of material disposed within the body and extending along a first axis to two opposed edges of the plaster board (polymer sheet 28) ([0025]; Figures 4 & 6). Given that the continuous layer of material extends to the opposed edges of the plaster board, this would mean that there is no separation or distance between the opposed edges of the plaster board and the continuous layer of material, and thus as such this would meet the instant limitation of claim 18, as the continuous layer of material would extend to no less than 1 inch from the opposed edges of the board.
Regarding claim 19, Garvey has not explicitly disclosed the thickness between the first and second surface. i.e. the thickness of the middle layer, being between 0.25 to 2 inches.
Tinianov discloses the thickness of the constraining layer to be around 0.012 inch and the two adhesive layers to have a thickness of 1/8 inches, which when added together gives a thickness that is 0.262 inches. Thus the thickness of the middle layer or the layer between the first and second surface is 0.262 inches thick, and this falls within the instantly claimed range.
It would have been obvious to an ordinarily skilled artisan to have modified the plaster board of Garvey, with the thickness between the first and second surface being as claimed, to have arrived at the instant invention, in order to obtain a panel or building board construction that allows reduction of noise transmission at multiple frequencies [0008] and improved acoustic isolation for assemblies subject to multiple temperature exposures [0056].
Regarding claim 21, the instant limitations amount to product by process limitations, and the courts have held that while product by process claims are limited and defined by the process, determination of patentability is based on the product itself. The product claimed in the instant claim is the plaster board product as claimed in claim 1, and thus Garvey, as modified by Payot and Tinianov disclose the instant product.
Regarding claims 22-23, Garvey as modified by Tinianov has disclosed the polymer being a thermally cured polymer and has also disclosed it being in liquid or semi-liquid form (the ability to set/cure would mean the formulation is not solid i.e. is at least semi-liquid) (see claim 19 rejection above).
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Garvey (U.S PG Pub 20140273687A1), Payot (U.S PG Pub 20130186705A1), Tinianov (U.S PG Pub 20090004448A1), and further in view of McLarty (U.S PG Pub 20040152379A1).
Regarding claim 5, neither Garvey, nor Payot have explicitly disclosed the carrier sheet comprising a fiberglass mat or fiberglass fabric. However, it is known in the art of gypsum boards, to have a carrier sheet with adhesive in a gypsum core, with the carrier sheet being a fiberglass fabric, as disclosed by McLarty.
McLarty, drawn also to the art of a gypsum wallboard (Abstract), discloses a textile reinforcing material (i.e. carrier sheet) embedded within a gypsum core (Abstract). McLarty discloses the textile reinforcing material to be a fiberglass fabric [0024], and discloses an acrylic adhesive on the textile material [0031], thus disclosing a carrier sheet with polymer precursor (textile material with acrylic adhesive), and further disclosing the carrier sheet with polymer being embedded within the gypsum core (Abstract) (i.e. analogous to Garvey as modified by Tinianov and Payot, and analogous to the carrier sheet and polymer disposed on carrier sheet of the instant application). McLarty further discloses that the fiberglass is preferred because it is inexpensive to manufacture and process [0025].
It would have been obvious to an ordinarily skilled artisan to have modified the carrier sheet of Garvey and Payot, with the carrier sheet being a fiberglass fabric, as disclosed by McLarty, to arrive at the instant invention, in order to have a gypsum wallboard having a superior strength and fire resistance [0005-0006], and further since fiberglass is inexpensive to manufacture and process, and survives high temperatures in manufacturing plants [0025].
Response to Arguments
Applicant’s arguments, see Notice of Appeal, filed 09/19/2025, with respect to the rejection(s) of claim(s) 1 under 35 U.S.C 103 over Garvey and Payot have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of Garvey, as modified by Payot and Tinianov.
Applicant argues that Garvey does not teach a liquid or semiliquid curable prepolymer material provided in body of wet plaster material.
Examiner disagrees. What is instantly claimed in claim 1 is a polymer on a carrier sheet between hardened plaster material – there is no recitation of liquid or semi-liquid prepolymer material being provided in body of wet plaster material.
Applicant argues that Payot describes the use of a release layer and not a carrier sheet.
While noting that the applicant has not specifically disclosed a definition for a carrier sheet or that it is necessary for it to be a part of the final product, the examiner agrees that Payot discloses a release liner. However, Tinianov, as explained above, discloses a carrier sheet that carries a polymer to be cured, and wherein the carrier sheet and polymer are a part of the final product.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ABHISHEK A PATWARDHAN whose telephone number is (571)272-8431. The examiner can normally be reached Monday to Friday 7:30am-5pm.
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/ABHISHEK A PATWARDHAN/Examiner, Art Unit 1746
/MICHAEL N ORLANDO/Supervisory Patent Examiner, Art Unit 1746