DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The Applicant's amendment filed on February 9, 2026 was received. Claims 1, 7 and 23-24 were amended. Claims 2-6, 8-12, 14-15, 18, 22, 25 and 27-28 were canceled. Claim 32 was added.
The text of those sections of Title 35. U.S.C. code not included in this action can be found in the prior Office Action Issued November 19, 2025.
Claim Rejections - 35 USC § 103
Claims 1, 7, 13, 16-17, 19-21, 23-24, 26 and 29-32 are rejected under 35 U.S.C. 103 as being unpatentable over Kershaw (US20100015208) in view of Salamone (US20130150451).
Regarding claim 1, Kershaw teaches a method of making a wound dressings (wound care product), comprising a fabric containing gel-forming fibers (hydroactive constituents, in particular fibers) (abstract, paragraphs 0003, 0013). Kershaw teaches to apply an aqueous solution containing antibacterial agent, such as silver ions onto the fabric containing hydroactive constituents (paragraphs 0002 and 0014-0015). Kershaw teaches the solution containing the antimicrobial means is sprayed onto both size of the fabric (paragraphs 0020 and 0023). Kershaw teaches the silver (antimicrobial means) is incorporated into wound dressings to obtain the advantage of the bactericidal properties of silver in a wound dressing (paragraph 0002) and it is important that the volume of the solution applied to the fabric is adjusted so that essentially the correct dosage of silver (antimicrobial means) is applied to each unit area of the fabric but not overwet the fabric (paragraph 0017). Therefore, it would have been within the skill of the ordinary artisan to adjust and optimize the amount of the antimicrobial means (and also the volume of the solution) being applied to each unit area of the fabric in the process to yield the desired bactericidal properties for the wound dressing without overweting the fabric. Discovery of optimum value of result effective variable in known process is ordinarily within skill of art. In re Boesch, CCPA 1980, 617 F. 2d 272, 205 USPQ215.
Kershaw does not explicitly teach the antimicrobial means further comprises polyhexanide (PHMB), ethylenediaminetetraacetic acid (EDTA) disodium salt, ethylhexyl monoglycerine ether (EHG) and Tween 20. However, Salamone teaches an aqueous antimicrobial composition is applied on wound dressing materials, including fiber wound dressing (abstract, paragraph 0001, 0056 and 0106), wherein the composition comprises silver ions (paragraph 0104), PHMB (paragraph 0070), chelator EDTA disodium salt (paragraphs 0101 and 0102), SC 50 (EHG) (paragraphs 0058-0060, 0079 and 0137 and Table 1) and surfactant Tween 20 (paragraph 0086, claims 17-18). Salamone teaches the PHMB is present in the aqueous solution in a concentration in the range of 0.05 wt% to 1 wt% (paragraph 0062), which overlaps with the claimed range, or specifically 0.1% by weight (table 1 solution 7, paragraph 0079). Salamone teaches the EDT disodium salt is in the amount of 0.01wt% to 1wt% (paragraph 0068), which overlaps with the claimed range, or 0.5% by weight (table 1 solution 7, paragraph 0079). Salamone teaches the EHG is in the amount of 0.3% by weight (inside the claimed range) (table 1 solution 7, paragraph 0079) or functions as an antimicrobial agents (paragraphs 0137 and 0025-0026), thus, it would be obvious to one of ordinary skill in the art to optimize an effective amount of the EHG to yield a desired level of the antimicrobial property of the composition. Discovery of optimum value of result effective variable in known process is ordinarily within skill of art. In re Boesch, CCPA 1980, 617 F. 2d 272, 205 USPQ215. In addition, it would have been obvious to one having ordinary skill in the art to have determined the optimum values of the relevant process parameters through routine experimentation in the absence of showing of criticality. In re Aller, USPQ 233 (CCPA 1955). Salamone teaches surfactant Tween 20 is in the amount of 0.1 to 4 weight % (paragraph 0086, claims 17-18), which overlap with the claimed ranges. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exist. In re Wertheim, 541 F.2d 257, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); In re Geisler,116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997). See MPEP 2144.05. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the aqueous antimicrobial composition to apply on wound dressing as suggested by Salamone in the method of Kershaw because Salamone teaches such composition has a broad spectrum of activity against bacteria, fungi, protozoa, and viruses, while glycerol alkyl ethers, monoalkyl glycols, and monoacyl glycerols are particularly effective against Gram positive bacteria and yeast; such antimicrobial compositions is capable of diminishing or eliminating biofilm formation, particularly in wounds and burns, by complete kill with no regrowth of the microorganism (paragraph 0026). In addition, the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP 2144.07). In this case, Salamone clearly teaches the aqueous antimicrobial composition is applied on wound dressing materials, including fiber wound dressing (abstract, paragraph 0001, 0056 and 0106), thus, it would be obvious to one of ordinary skill in the art before the effective filing date to apply such composition to the wound care product as disclosed by Kershaw (fabric containing hydroacive constituents).
Regarding the limitation of the antimicrobial means (silver ion and/or PHMB) is released upon contact of the fabric with a wound fluid before the hydroactive constituents from a gel by binding the would fluid, Kershaw teaches gel forming fibers becomes gelatinous upon the uptake of wound exudate (pargraph 0003) and the antimicrobial mean is applied to the gel forming fibers fabric (paragraph 0013), and it would be reasonable expected a certain amount of antimicrobial means (in Kershaw in view of Salamone) on the surface of the fabric is released upon contacting of the fabric with the wound fluid as the claim does not specify amount of release of the antimicrobial means before forming the gel (even a very small amount reads on the claimed limitations).
Regarding claim 7, Salamone teaches the PHMB functions as an antimicrobial agents in the solution (paragraphs 0026, 0069-0070), thus, it would be obvious to one of ordinary skill in the art to optimize an effective amount of the PHMB in the composition to yield a desired level of the antimicrobial property on the dressing when it’s being applied to the dressing. Discovery of optimum value of result effective variable in known process is ordinarily within skill of art. In re Boesch, CCPA 1980, 617 F. 2d 272, 205 USPQ215. In addition, it would have been obvious to one having ordinary skill in the art to have determined the optimum values of the relevant process parameters through routine experimentation in the absence of showing of criticality. In re Aller, USPQ 233 (CCPA 1955).
Regarding claim 13, Salamone teaches the EDTA in the aqueous solution is in a concentration in the range of 0.01 to 1 wt% (paragraph 0068), and functions to enhance biocidal activities by removing multivalent metal ions from microbial surfaces, as well as, facilitating wound healing by deactivating matrix metalloproteases to enhance tissue regeneration (paragraph 0068). Thus, it would be obvious to one of ordinary skill in the art to optimize an effective amount of the EDTA in the composition to yield a desired enhancement in biocidal activities by removing multivalent metal ions from microbial surfaces, as well as, facilitating wound healing by deactivating matrix metalloproteases to enhance tissue regeneration (paragraph 0068). Discovery of optimum value of result effective variable in known process is ordinarily within skill of art. In re Boesch, CCPA 1980, 617 F. 2d 272, 205 USPQ215
Regarding claims 16-17, Salamone teaches the EHG functions as an antimicrobial agents (paragraphs 0137 and 0025-0026), thus, it would be obvious to one of ordinary skill in the art to optimize an effective amount of the EHG on both side of the fabric in the method of Kershaw (Kershaw teaches to apply the solution on both side of the dressing) to yield a desired level of the antimicrobial property on the dressing. Discovery of optimum value of result effective variable in known process is ordinarily within skill of art. In re Boesch, CCPA 1980, 617 F. 2d 272, 205 USPQ215. In addition, it would have been obvious to one having ordinary skill in the art to have determined the optimum values of the relevant process parameters through routine experimentation in the absence of showing of criticality. In re Aller, USPQ 233 (CCPA 1955).
Regarding claim 19, Kershaw teaches the hydroactive constituents include carboxymethyl cellulose (paragraphs 0003, 0009-0010 and 0026).
Regarding claim 20, Kershaw teaches the fabric is made of gel forming fibers (paragraph 0010) and is a carboxymethylated hydro entangled non woven fabric (paragraph 0026), thus, indicating the fabric is only made of the hydroactive constituents (close to 100% by weight), which is inside of the claimed range.
Regarding claim 21, it is noted that the instant claim is a product-by-process claim. “Even though product-by-process claims are limited by and defined by the process, determination of the patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in a product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thrope, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). In this case, Kershaw teaches a method of making a wound dressings (wound care product), comprising a fabric containing gel-forming fibers (hydroactive constituents, in particular fibers) (abstract, paragraphs 0003, 0013). Kershaw teaches to apply an aqueous solution containing antibacterial agent, such as silver ions onto the fabric containing hydroactive constituents (paragraphs 0002 and 0014-0015); thus Kershaw teaches the wound care product with a fabric having hydroactive constituents (in particular fibers), characterized in that at least some hydroactive constituents are provided with an antimicrobial means. Kershaw teaches the silver (antimicrobial means) is incorporated into wound dressings to obtain the advantage of the bactericidal properties of silver in a wound dressing (paragraph 0002) and it is important that the volume of the solution applied to the fabric is adjusted so that essentially the correct dosage of silver (antimicrobial means) is applied to each unit area of the fabric but not overwet the fabric (paragraph 0017). Therefore, it would have been within the skill of the ordinary artisan to adjust and optimize the amount of the antimicrobial means (and also the volume of the solution) being applied to each unit area of the fabric in the process to yield the desired bactericidal properties for the wound dressing without overweting the fabric. Discovery of optimum value of result effective variable in known process is ordinarily within skill of art. In re Boesch, CCPA 1980, 617 F. 2d 272, 205 USPQ215.
Kershaw does not explicitly teach the antimicrobial means further comprises polyhexanide (PHMB), ethylenediaminetetraacetic acid (EDTA) disodium salt, ethylhexyl monoglycerine ether (EHG) and Tween 20. However, Salamone teaches an aqueous antimicrobial composition is applied on wound dressing materials, including fiber wound dressing (abstract, paragraph 0001, 0056 and 0106), wherein the composition comprises silver ions (paragraph 0104), PHMB (paragraph 0070), chelator EDTA disodium salt (paragraphs 0101 and 0102), SC 50 (EHG) (paragraphs 0058-0060, 0079 and 0137 and Table 1) and surfactant Tween 20 (paragraph 0086, claims 17-18). Salamone teaches the PHMB is present in the aqueous solution in a concentration in the range of 0.05 wt% to 1 wt% (paragraph 0062), which overlaps with the claimed range, or specifically 0.1% by weight (table 1 solution 7, paragraph 0079). Salamone teaches the EDT disodium salt is in the amount of 0.01wt% to 1wt% (paragraph 0068), which overlaps with the claimed range, or 0.5% by weight (table 1 solution 7, paragraph 0079). Salamone teaches the EHG is in the amount of 0.3% by weight (inside the claimed range) (table 1 solution 7, paragraph 0079) or functions as an antimicrobial agents (paragraphs 0137 and 0025-0026), thus, it would be obvious to one of ordinary skill in the art to optimize an effective amount of the EHG to yield a desired level of the antimicrobial property of the composition. Discovery of optimum value of result effective variable in known process is ordinarily within skill of art. In re Boesch, CCPA 1980, 617 F. 2d 272, 205 USPQ215. In addition, it would have been obvious to one having ordinary skill in the art to have determined the optimum values of the relevant process parameters through routine experimentation in the absence of showing of criticality. In re Aller, USPQ 233 (CCPA 1955). Salamone teaches surfactant Tween 20 is in the amount of 0.1 to 4 weight % (paragraph 0086, claims 17-18), which overlap with the claimed ranges. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exist. In re Wertheim, 541 F.2d 257, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); In re Geisler,116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997). See MPEP 2144.05. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the aqueous antimicrobial composition to apply on wound dressing as suggested by Salamone in the method of Kershaw because Salamone teaches such composition has a broad spectrum of activity against bacteria, fungi, protozoa, and viruses, while glycerol alkyl ethers, monoalkyl glycols, and monoacyl glycerols are particularly effective against Gram positive bacteria and yeast; such antimicrobial compositions is capable of diminishing or eliminating biofilm formation, particularly in wounds and burns, by complete kill with no regrowth of the microorganism (paragraph 0026). In addition, the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP 2144.07). In this case, Salamone clearly teaches the aqueous antimicrobial composition is applied on wound dressing materials, including fiber wound dressing (abstract, paragraph 0001, 0056 and 0106), thus, it would be obvious to one of ordinary skill in the art before the effective filing date to apply such composition to the wound care product as disclosed by Kershaw (fabric containing hydroacive constituents).
Regarding the limitation of the antimicrobial means (silver ion and/or PHMB) is released upon contact of the fabric with a wound fluid before the hydroactive constituents from a gel by binding the would fluid, Kershaw teaches gel forming fibers becomes gelatinous upon the uptake of wound exudate (pargraph 0003) and the antimicrobial mean is applied to the gel forming fibers fabric (paragraph 0013), and it would be reasonable expected a certain amount of antimicrobial means (in Kershaw in view of Salamone) on the surface of the fabric is released upon contacting of the fabric with the wound fluid as the claim does not specify amount of release of the antimicrobial means before forming the gel (even a very small amount reads on the claimed limitations).
Thus, Kershaw in view of Salamone teaches the whole method of in claim 1, which would be obvious to form the claimed product in claim 21, which is formed by the same method.
Regarding claims 23, Kershaw teaches the solution containing the antimicrobial means is sprayed onto both sides of the fabric with at least one ultrasonic nozzle (paragraphs 0020 and 0023).
Regarding claim 24, Kershaw teaches the solution containing the antimicrobial means is sprayed onto both sides of the fabric with at least one ultrasonic nozzle (paragraphs 0020 and 0023).
Regarding claims 26, Kershaw teaches the solution containing the antimicrobial means is sprayed onto both size of the the fabric (paragraphs 0020 and 0023). Kershaw teaches the silver is incorporated into wound dressings to obtain the advantage of the bactericidal properties of silver in a wound dressing (paragraph 0002) and it is important that the volume of the solution applied to the fabric is adjusted so that essentially the correct dosage of silver is applied to each unit area of the fabric but not overwet the fabric (paragraph 0017). Therefore, it would have been within the skill of the ordinary artisan to adjust and optimize the amount of the antimicrobial means being applied to each unit area of the fabric in the process to yield the desired bactericidal properties for the wound dressing. Discovery of optimum value of result effective variable in known process is ordinarily within skill of art. In re Boesch, CCPA 1980, 617 F. 2d 272, 205 USPQ215. In addition, Kershaw teaches the fabric is 55gsm (5.5mg/cm2) (paragraph 0026), and the dosage of the silver in the final product is from 0.5% to 8% based on the total weigh of the finished product (paragraph 0018) (0.0276 to 0.0434 mg/cm2), which is in side of the claimed range.
Regarding claims 29-30, Salamone teaches the tenside is present in the aqueous solution in a centration in the range of 0.05-4wt% (paragraph 0063). Salamone teaches the EHG functions as an antimicrobial agents (paragraphs 0137 and 0025-0026), thus, it would be obvious to one of ordinary skill in the art to optimize an effective amount of the EHG on both side of the fabric in the method of Kershaw (Kershaw teaches to apply the solution on both side of the dressing) to yield a desired level of the antimicrobial property on the dressing. Discovery of optimum value of result effective variable in known process is ordinarily within skill of art. In re Boesch, CCPA 1980, 617 F. 2d 272, 205 USPQ215. In addition, it would have been obvious to one having ordinary skill in the art to have determined the optimum values of the relevant process parameters through routine experimentation in the absence of showing of criticality. In re Aller, USPQ 233 (CCPA 1955).
Regarding claim 31, Kershaw teaches the hydroactive constituents are gel-forming fibers (abstract, paragraphs 0003, 0013).
Regarding claim 32, Kershaw teaches the solution containing the antimicrobial means is sprayed onto both size of the fabric (paragraphs 0020 and 0023). Kershaw teaches the silver (antimicrobial means) is incorporated into wound dressings to obtain the advantage of the bactericidal properties of silver in a wound dressing (paragraph 0002) and it is important that the volume of the solution applied to the fabric is adjusted so that essentially the correct dosage of silver (antimicrobial means) is applied to each unit area of the fabric but not overwet the fabric (paragraph 0017). Therefore, it would have been within the skill of the ordinary artisan to adjust and optimize the amount of the antimicrobial means (and also the volume of the solution) being applied to each unit area of the fabric in the process to yield the desired bactericidal properties for the wound dressing without overweting the fabric. Discovery of optimum value of result effective variable in known process is ordinarily within skill of art. In re Boesch, CCPA 1980, 617 F. 2d 272, 205 USPQ215.
Response to Arguments
Applicant's arguments filed on February 9, 2025 have been fully considered but they are not persuasive.
Applicant’s principal arguments are:
Kershaw teaches silver nitrate as antimicrobial means, which is not the equivalent of polyhexanide as claimed. Kershaw lacking the teaching of applying an aqueous solution as claimed or the solution is applied per cm2.
There is no reason to combine Kershaw and Salamone.
Kershaw teaches “this process could only be operated for a short period of time before the heads blocked” which means that sprayed heads required to spray the antimicrobial means having a tendency to block; and Salamone’s would result in high viscosity and blocking based on the teaching of paragraph 0096.
Salamone’s composition comprises “viscosity builders” (paragraph 0096), thus, Salamone cannot yield the presently claimed subject matter.
Salamone’s teaching in paragraph 0106 and 0119 is different formed the claimed subject matter that the antimicrobial composition, as a solution, will be directly in contact with a biofilm.
Subject matter of claim 1 is heterogeneously distributes the molecules over the thickness of the fabric similar to a Gaussian distribution to provide a flexible wound care product with improved gel stability, low production cost and reduce the overall risk of creating resistant bacterial strains growing on used product.
In response to Applicant’s arguments, please consider the following comments:
Claim 1 requires an aqueous solution containing the antimicrobial means is sprayed onto the fabric, wherein the aqueous solution comprising PHMB, EDTA disodium salt, EHG and Tween20. Thus, claim 1 does not define the specific antimicrobial means, nor exclude silver as the antimicrobial means. Kershaw teaches to apply the aqueous solution comprising silver ions to the wound dressings, while Salamone teaches an aqueous antimicrobial composition is applied on wound dressing materials, including fiber wound dressing (abstract, paragraph 0001, 0056 and 0106), wherein the composition comprises silver ions (paragraph 0104), polyhexanide (PHMB )(paragraph 0070), chelator EDTA disodium salt (paragraphs 0101 and 0102), SC 50 (EHG) (paragraphs 0058-0060, 0079 and 0137 and Table 1) and surfactant Tween 20 (paragraph 0086, claims 17-18). The combination does not require submitting the silver ions with PHMB, and both silver ions and PHMB (and the combination) can be interpreted as antimicrobial means. Kershaw teaches the silver (antimicrobial means) is incorporated into wound dressings to obtain the advantage of the bactericidal properties of silver in a wound dressing (paragraph 0002) and it is important that the volume of the solution applied to the fabric is adjusted so that essentially the correct dosage of silver (antimicrobial means) is applied to each unit area of the fabric but not overwet the fabric (paragraph 0017). Therefore, it would have been within the skill of the ordinary artisan to adjust and optimize the amount of the antimicrobial means (and also the volume of the solution) being applied to each unit area of the fabric in the process to yield the desired bactericidal properties for the wound dressing without overwetting the fabric. Discovery of optimum value of result effective variable in known process is ordinarily within skill of art. In re Boesch, CCPA 1980, 617 F. 2d 272, 205 USPQ215. The rejection dose is based on the quantity of the antimicrobial means per unit area of the fabric is being optimized for the proper dosage of the bactericidal properties for the wound dressing without overwetting the fabric. One of ordinary skill in the art would have recognized such optimization reasoning is applicable to any antimicrobial means (silver ions or polyhexanide) being applied via an aqueous solution. The comment regarding the silver ion will diffuse away and easily wash out, while polyhexanide will stay in place at the required concentration for much longer, thus, different quantities are required; such arguments appear to be Applicant’s comments without factual support, and the rejection does not based on apply the exactly amounts of silver ion and PHMB, or substituting silver ion with PHMB (Salamone’s composition comprising both antimicrobial means), but optimizing the amount of the antimicrobial means. Applicants can rebut a prima facie case of obviousness by showing the criticality of the range, or by showing that the art teaches away from the claimed invention (MPEP 2144.05 III). It is noted that Applicant has not established criticality of claimed range. Regarding the limitation of the antimicrobial means (silver ion and/or PHMB) is released upon contact of the fabric with a wound fluid before the hydroactive constituents from a gel by binding the would fluid, Kershaw teaches gel forming fibers becomes gelatinous upon the uptake of wound exudate (pargraph 0003) and the antimicrobial mean is applied to the gel forming fibers fabric (paragraph 0013), and it would be reasonable expected a certain amount of antimicrobial means (in Kershaw in view of Salamone) on the surface of the fabric is released upon contacting of the fabric with the wound fluid as the claim does not specify amount of release of the antimicrobial means before forming the gel (even a very small amount reads on the claimed limitations). In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). In this case, the composition as disclosed in claim 1 is disclosed by Salamone, and a motivation is provided by Salamone to apply the composition in the wound dressing (see rejections above). In addition, the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP 2144.07). In this case, Salamone clearly teaches the aqueous antimicrobial composition is applied on wound dressing materials, including fiber wound dressing (abstract, paragraph 0001, 0056 and 0106), thus, it would be obvious to one of ordinary skill in the art before the effective filing date to apply such composition to the wound care product as disclosed by Kershaw (fabric containing hydroacive constituents). The combination of the Kershaw in view of Salamone teaches the claimed method and product.
In response to applicant's argument that Kershaw is nonanalogous art, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, both Kershaw and the present invention are directed to making a wound care product in which a fabric containing hydroactive constituents. The instant claim or invention does not exclude silver ion (inorganic component) being included in the solution. In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Salamone teaches such composition has a broad spectrum of activity against bacteria, fungi, protozoa, and viruses, while glycerol alkyl ethers, monoalkyl glycols, and monoacyl glycerols are particularly effective against Gram positive bacteria and yeast; such antimicrobial compositions is capable of diminishing or eliminating biofilm formation, particularly in wounds and burns, by complete kill with no regrowth of the microorganism (paragraph 0026) and it’s being applied to wound care product. In addition, the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination in Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP 2144.07). In this case, Salamone clearly teaches the aqueous antimicrobial composition is applied on wound dressing materials, including fiber wound dressing (abstract, paragraph 0001, 0056 and 0106), thus, it would be obvious to one of ordinary skill in the art before the effective filing date to apply such composition to the wound care product as disclosed by Kershaw (fabric containing hydroacive constituents). In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
The arguments appear to be Applicant’s comments without factual support. None of the reference does not teaches how the combinations would destroy the primary functions of the reference or render the references inoperable. The argument regarding the viscosity of the composition is irrelevant, as it is not claimed feature.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., claim 1 subject matter would have a much higher concentration on the surface where the antimicrobial means is applied, and does not include viscosity builders) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). It is well settled that nonpreferred and alternative embodiments constitute prior art and disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments (see MPEP 2123 II). Thus, Salamone’s teaches of the viscosity builder might be included does not render Salamone teaching away from the claim.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., claim 1 subject matter teaches the antimicrobial composition, as a solution, will be directly in contact with a biofilm; or how the solution are being distributed) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). It is well settled that nonpreferred and alternative embodiments constitute prior art and disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments (see MPEP 2123 II). Thus, Salamone’s teaches of the product can also be does not render Salamone teaching away from the claim.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., heterogeneously distributes the molecules over the thickness of the fabric similar to a Gaussian distribution to provide a flexible wound care product with improved gel stability, low production cost and reduce the overall risk of creating resistant bacterial strains growing on used product) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
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 NGA LEUNG V LAW whose telephone number is (571)270-1115. The examiner can normally be reached M-F 8 am - 5 pm.
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, Dah-Wei Yuan can be reached on 5712721295. 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.
/N.V.L/Examiner, Art Unit 1717
/Dah-Wei D. Yuan/Supervisory Patent Examiner, Art Unit 1717
Prosecution Insights