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 § 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.
Claim(s) 21-28, 39 and 40 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Koshita et al.(2019/0112444).
Koshita et al. discloses molded bodies formed from thermoplastic polyurethane [note: claim 26] pellet materials as defined by applicants’ claims {see abstract, paras [0021]-[0026] and the Examples}. Koshita et al. discloses pellet sizes as defined by applicants’ claim 22 and ratios of length to width (aspect ratios) meeting the requirements of claim 23 {see Table 1 of the Examples}. Koshita et al. discloses molded cushioning, sport and other articles as defined by applicants’ claim 40 {see para [0002]}. Though Koshita et al. does not specifically refer to the foamed pellets of their molded articles as being elastomers, owing to the closeness of the material make-ups disclosed by Koshita et al., including their beads being thermoplastic and polyurethane, it is held that the beads of Koshita et al. would inherently be elastomeric to any degree that is required by applicants’ claims. To any degree that applicants’ claims recite any definitive range of A/V values {see rejection above}, though Koshita et al. does not specifically refer to A/V ratios in defining the pellets of its disclosure, it is held that owing to the closeness of the material make-ups disclosed by Koshita et al., including their beads being thermoplastic and polyurethane and having other size and shape features meeting features of dependent claims [note claims 22 & 23], it is held that the beads of Koshita et al. would inherently possess A/V ratios to the degree as defined by applicants’ claims to any degree that its recited range of values can be definitively ascertained.
Regarding claims 24 and 25, though soft phase glass transition values and/or G’ modulus values as set forth by these claims are not particularly identified by Koshita et al., owing to the closeness of the materials make-ups and applications to which the formed articles are employed, it is held that the bead compositions of Koshita et al. would inherently possess the soft phase glass transition values and/or G’ modulus values as set forth by these claims.
Regarding claim 27, Koshita et al. is sufficient to meet the filler requirements to the degree defined by this claim {see paras [0038], [0077]-[0079]}.
Response to Arguments
Applicants’ arguments have been considered. However, rejection is maintaind for all of the reasons set forth above.
Applicants’ arguments have been considered. However, rejection is maintained.
Position is maintained to be properly established for the reasons stated, and the positions set forth have not been refuted in fact. With position of anticipation being made evident, burden is upon applicants to establish patentable difference to be evident based on the totality of the preponderant evidence of record. Assertions that the products of Koshita et al. would not necessarily possess the A/V values set forth by the claims are insufficient in overcoming the rejection as set forth without any evidence to support such assertions. Based on the current preponderant evidence of record, applicants have not sufficiently established, in fact, that the products of Koshita et al. would not necessarily possess the A/V values as defined by the claims, and distinction in the patentable sense is not otherwise seen. Further, as to arguments concerning obviousness, position is one of anticipation and arguments concerning obviousness are not relevant to the instant position under 35USC102.
Rejection under 35USC112 is withdrawn in light of the pointed to definitions of terms in the supporting disclosure.
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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to John Cooney whose telephone number is 571-272-1070. The examiner can normally be reached on M-F from 9 to 6. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Heidi Riviere Kelley, can be reached on 571-270-1831. 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.
/JOHN M COONEY/ Primary Examiner, Art Unit 1765
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