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 .
The applicant has amended the claims and added new claims not previously considered. No new matter is presented.
The remarks filed in conjunction with the amended claims on 3/3/2026 are not persuasive to overcome the rejections for the reasons below set forth. All claims are rejected by the below cited prior art.
Claim Objections
Claim 15 is objected to because of the following informalities: Please add “Celsius” after “600” to properly identify the temperature range. Appropriate correction is required.
Claim Rejections - 35 USC § 103
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 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
INTRODUCTION
The following is expressly incorporated into each and every rejection below as though fully set forth.
The prior art teaches the claimed formula of instant claims 1-3 as more fully below set forth.
PRODUCT BY PROCESS:
Claims 6 and 15 are recited as a product by process claims. The prior art teaches the production of the instantly claimed formula in a manner and under conditions which meet and/or overlap those of instant claim 6 as more fully below set forth and that the conditions of formation can be controlled/adjusted by one of ordinary skill in the art at the time of filing the invention as more fully below set forth. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the 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 Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted) (emphasis added by examiner) As such the product meets the instant claim 6 as well as the properties of claim 1.
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) “When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir.1990) “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990)(emphasis added by examiner)
The prior art teaching the claimed formula and teaching said formula made by the process of claims 6 and 15 with ranges which meet and/or overlap the instantly claimed ranges as to time temperature etc. as rendered obvious (as more fully below set forth) will necessarily possess the claimed properties including but not limited to after delamination x ray diffraction patterns and z average particle size of the instant claims which meet and/or overlap the instantly claimed ranges. See MPEP 2144.05(I): "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)"
The temperatures and cooling times are within the ken of one of ordinary skill in the art at the time of the invention as the below teachings recite overlapping heating temperatures as well as cooling down to temperatures such as room temperature over time. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
The only material requires is that of the claimed formula thereby meeting and/or overlapping the range of claim 5.
35 USC § 103
Claim(s) 1-6 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Charge Homogeneity in Synthetic Fluorohectorite by Josef Freu Wolfgang Seidl Alexander J Stoll Kurt G Lange and Thomas U Probst Chem Mater 2001 13, 4213-4220
Regarding Claims 1-6 and 15:
Charge Homogeneity in Synthetic Fluorohectorite by Josef Freu Wolfgang Seidl Alexander J Stoll Kurt G Lange and Thomas U Probst Chem Mater 2001 13, 4213-4220 teaches layered silicates (Abstract) the material has uniform intracrystalline reactivity and forms regularly interstratified intercalates of mono layers (Abstract)
By combination of the hydrophobic and hydrophilic properties of mixed layer materials containing organic and inorganic interlayers, respectively, amphiphilic materials result that might find applications as versatile ion exchangers, sorbents, and nano particle reagents. Also, a photosensitizer in one inter layer space may be separated from reagents located in the adjacent interlayer (p 4220 Col 2 last par)
Charge teaches synthesis of fluoro smectites from melt. Solid solution capability of 2:1 layer silicate structure.
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(Abstract)
(meeting formula of claim 1 where x= 0.5, z=0.5, y=0.5, and T is Fluorine)
The fluoro smectites are formed with SiO2, LiF, MgF2, MgO and NaF according the formula (i.e. the instantly claimed ratios of claim 6 Na0.5 : Mg 2.5, Li: 0.5, Si: 4)
The particle size distribution shows a maximum at approximately 9 microns shifted to larger particles as compared to natural smectites (P4215 Results and Discussion)(overlapping the claimed range of 500 nm or higher)
These are heated and melted such as heating to 3000°C or heated to 2050-2100 °C then to 1900 °C and then quenched below 1400 °C – below the melting point of the Na-fluorohectorite.(P4214)(overlapping the claimed temperatures and rendering obvious to try by one of ordinary skill in the art various cooling times)
Apparently, protoamphibole production is not only influenced by the composition but also by the cooling rate which will be higher at the ends of the crucible. (P4216 C1 last par) Since phase separation can be a spontaneous (spinodal) process, even raising the synthesis temperature above the critical temperature and high cooling rates will not necessarily prevent separation into two liquid phases interpenetrating each other. (P4216 C2 last par) One of ordinary skill in the art at the time of filing the invention would try to control the cooling rate to control protoamphibole production and phase separation. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
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Showing an x ray diffraction patter of the layer of the material at 001 peak in range of 8 to 5.88 with 001 peak full width at half peak of maximum of larger than 0.10 degrees. (meeting claim 1 for 001 peak in range of 8.0 to 5.88 at 2 theta and meeting and/or overlapping claim 1 full width at half of the peak maximum of larger than 0.10 degrees)Fig 3 is one layer i.e. delamination
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35 USC § 103
Claim(s) 1-6 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Large scale melt synthesis in an open crucible of Na fluorohectorite with charge homogeneity and particle size by Hussein Kalo Michael W Moller Mazen Ziadeh David Dolejs and Josef Breu Applied Clay Science 48 (2010) 39-45
Regarding Claims 1-6 and 15:
Large scale melt synthesis in an open crucible of Na fluorohectorite with charge homogeneity and particle size by Hussein Kalo Michael W Moller Mazen Ziadeh David Dolejs and Josef Breu Applied Clay Science 48 (2010) 39-45 teaches layered silicates (1. Introduction)
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(meeting claim 1 formula)
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(meeting claim 1 for x ray diffraction 001 peak in range of 0.588-8 at 2 theta and meeting/overlapping full width at half of peak maximum of claim 1)
2.2.1 one layer hydrate powder x ray diffraction (i.e. delaminate) 3.2 x ray diffraction of mono layer hydrate and fig 3 (i.e. delaminate)
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Synthesis is shows at pp 40-42 showing three steps by forming various mixtures of the claimed compounds of claim 6 in ranges which meet and/or overlap same and heating.
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melting the alkali silicate Na LiSi3O7 at relatively low temperature Na Li / Si 2/3. (P41)
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showing synthesis where ratios of Na Mg, Li Si meet the claimed ranges of claim 6
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(meeting/overlapping the instantly claimed particle size)
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Closed container cooled to room temperature (Section 2.2.2) Section 2.1.3 material cools inside furnace to room temperature from 1265ºC by turning off power (i.e. this will be a slow cooling process from 1265-23 ºC overlapping the claimed range and being controlled by keeping the furnace closed.)
35 USC § 103
Claim(s) 1-6 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Daar, Breu, Schiessling, Kao (WO 2019/154758A1)
Regarding Claims 1-6 and 15:
Daar et al teaches a layered silicate (layers) in an aqueous environment used as a barrier material such as diffusion or flame proof barrier material for various articles and composite materials (P L1-7) The layered silicate include
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Thereby meeting claimed formula of claims 1-3 where the values of the reference overlap and encompass claim 3
The silicate is made by combining starting compounds including silicon oxides, alkaline fluorides and oxides such as LiF, NaF MgF2 MgO and quartz with 0.4 to 0.6 mol of F, 0.4 to 0.6 mol of silicon dioxide, 0.45 to 0.55 mol F, 0.45 to 0.55 of silicon dioxide etc. (P6 L25-30)(overlapping the range of instant claim 6) into a curable heated 1700-1900º C (P7 L10-14)and 1600-1900 ºC and cooling at a rate of 0.5 to 30 degrees C per minute (P7 L18-35) (overlapping claim 6)
The product may be dispersed in water and added to polymer composites (P14 L1-20)
Daar et al WO 2019 teaches specifically as an example at P15 which meets the formula of claim 1:
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(meeting the limitations of claims 1-3 when x=0.5; z=0.5; y= 0.5 where “Y” is between 0.4 and 0.8 of instant claim 3 such that 0.5+ (3-0.5) + 0.5= 3.5 which is less than 4 and T is F)(the molar ratios meeting claim 6)
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(the molar ratios meeting claim 6 and heating above 1500°C meeting claim 6 and overlapping claim 15 by cooling below 500°C during at least 0.5 h is rendered obvious by various cooling stages which result in cooling below 250°C prior to heating in the milled powder mill)
As above set forth Daar teaches cooling from 1750 degrees C at a rate of 15 degrees per minute held for 70 minutes and cooled to 1300 ºC at 55/ºC/min and to 1050 ºC at 10ºC/min followed by quenching (i.e. controlled cooling)(P14-15 Examples)
Daar teaches delamination of layered silicates (Abstract)
35 USC § 103
Claim(s) 1-6 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nennemann et al (US 2011/0204286)
Regarding Claims 1-6 and 15:
Nennemann et al (US 2011/0204286) discloses producing synthetic smectite layers in high temperature melt synthesis
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By heating to 1900º C [0040] (meeting the limitation for heating in overlapping ranges) [0042] and cooling at rate of 0.5 to 30°C per minute to 1100-1000°C (about 30 minutes at 30°C/min) then from 0.1 to 100°C/min (about 8-9 minutes) to room temperature [0042](meeting the limitations for cooing time and temperature in overlapping ranges including those of claims 6 and 15)
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The components are added to achieve the stoichiometry of the formula [0047] (meeting/overlapping claim 6)
The layer separation d(0001) is less than 14 [0063] The layer separation:
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Cool for 8 minutes from 1750°-1300°C and 25 minutes from 1300°C to 1050°C and lowered to room temperature [0098] (controlled cooling and room temperature is below 600ºC)
Average tactoid sizes of 3 to 20 microns by scanning electron micrographs [0101]
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It is possible to achieve as a function of stoichiometry and process parameters average tactoid size form 1 micron to 300 microns [0012] The compounds are prepared using various components in stoichiometric ratios [0035] for the desired stoichiometry [0047-0048]
Layers (See claims 10-12)
In the third step, the temperature is lowered to a value of from 1100 to 1500.degree. C., preferably from 1200 to 1400.degree. C., using a cooling rate of from 10 to 100.degree. C./min, preferably from 30 to 80.degree. C./min. In a fourth step, the temperature is lowered at a cooling rate of from 0.5 to 30.degree. C./min, preferably from 1 to 20.degree. C./min, to a value of from 1200 to 900.degree. C., preferably from 1100 to 1000.degree. C. After the fourth step, the reduction of the temperature to room temperature takes place at from 0.1 to 100.degree. C./min, or preferably in uncontrolled fashion, by switching off the furnace [0042] (controlled cooling ) [0098] (cooling rate of 10 degrees per minute and cooling rant of 0.5 degrees per minute to room temperature from 1900 ºC overlapping the claimed range of new claim 15)
35 USC § 103
Claim(s) 1-6 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kalo et al (US 2019/0359492)
Regarding Claims 1-6 and 15:
Kalo et al (US 2019/0359492) discloses sheet silicate lamellae (Abstract)(i.e. layers) such as
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[0039] See also par [0061 for various molar amounts
Formed from LiFNaFMgF2MgO silicon oxides quartz etc. [0056] heated to 1700°C to 1900°C followed by cooling by lowering the temperature at a rate of 10-100°C per minute to room temperature of 2°3C (at a rate of 100° C per minute from 1900°C this would take approx. 18.75 minutes)
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(overlapping the limitations of claim 1)
[0137] X ray powder diffraction of the sodium hectorite see also Table 1 and [0145]
The product us suitable for use in polymeric composites [0097] and aqueous dispersions (see claim 9 reference) (overlapping the limitations of claim 1)
SLS measurement has lateral size extent around 10-20 microns diameter as median [0140] (overlapping the limitations of claim 1)
Layers [0033]
The sheet silicate can be obtained by delaminating [0016][0023][0025]0043][0044][0047][0049] etc.
The temperature is lowered from 1900 C to room temperature at a cooling rate of 10-100° C./min, preferably of 30 to 80° C./min, to a level of 1100 to 1500° C., preferably of 1200 to 1400° C. In a fourth step, the temperature is lowered with a cooling rate of 0.5 to 30° C./min, preferably of 1 to 20° C./min, to a level of 1200 to 900° C., preferably of 1100 to 1000° C. After the fourth step, the reduction in the heating rate to room temperature (23° C.) takes place with a rate for example of 0.1-100° C./min [0059] (controlled cooing by rate and overlapping the range of claim 15)
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-6 and 15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of U.S. Patent No. 12,378,129. Although the claims at issue are not identical, they are not patentably distinct from each other because both the patent and the copending application claim the same sodium hectorite (patent has formula which overlaps and encompasses that of the instant application)
US 12,378,129 claims a layered silicate and process of making same (claims 1-14) where the layered silicate of the patent is
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which encompasses and overlaps the instantly claimed sodium fluorohectorite (with overlapping x, y and z values and the same T substituent) (As above set forth it is the product which determines patentability)
Claims 1-6 and 15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4 of U.S. Patent No. 11,905,419. Although the claims at issue are not identical, they are not patentably distinct from each other because both the patent and the copending application claim the same sodium hectorite (patent has formula which overlaps and encompasses that of the instant application)
US 11,905,419 claims a process of making a layered silicate having formula
which overlaps and encompasses the instantly claimed formula which overlaps and encompasses the formula of instant claim 1.
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The patent claims a delaminated layered silicate (claim 1) (As above set forth it is the product which determines patentability)
Response to Arguments
Applicant's arguments filed 3/3/2026 have been fully considered but they are not persuasive.
The claims are directed to a material comprising layered material of a specified formula. The examiner notes that the above references disclose the claimed product having the claimed chemical formula, As such it will necessarily possess all of the claimed properties including but not limited to powder x ray diffraction patter of layered material after delamination etc. in ranges which meet and/or overlap the claimed ranges.
The prior art teaches the claimed layered material having the claimed formula as more fully above set forth. The prior art teaches said composition being made by a process which renders obvious the instantly claimed process and possessing in some instances overlapping ranges of temperature time process steps etc. as well as may be above set forth teaching the process conditions may be controlled by one of ordinary skill in the art at the time of filing the invention as more fully above set forth. "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the 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 Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted) (emphasis added by examiner)
The examiner has taken into consideration the process steps as well as the structure implied thereby in assessing patentability. Since the claims set forth a specific chemical formula which is taught by the prior art and the prior art teaches the claimed process steps with times/durations, temperatures, etc. in ranges which meet/overlap or otherwise are rendered obvious, the prior art thereby being a similar process to that of the instant claims, the examiner maintains that the product meeting the claimed formula which is taught by the prior art renders the claims obvious.
"The Patent Office bears a lesser burden of proof in making out a case of prima facie obviousness for product-by-process claims because of their peculiar nature" than when a product is claimed in the conventional fashion. In re Fessmann, 489 F.2d 742, 744, 180 USPQ 324, 326 (CCPA 1974). Once the examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an nonobvious difference between the claimed product and the prior art product. In re Marosi, 710 F.2d 799, 803, 218 USPQ 289, 292-33 (Fed. Cir. 1983)
Applicant asserts unexpected and superior results and points to table 1 Examples 1-4 inventive examples and Examples 5-6 comparative and asserts the inventive examples have a FWHM greater than 0.1 with barrier properties on the same level as examples with FWHM less than 0.1. This is not persuasive.
The examiner notes as above set forth the prior art teaches the material for use with barrier properties. As such these properties are not unexpected.
The data offered is not commensurate with the scope of the claims and no comparison with the prior art is provided. For example:
The formula of instant example is the same as that disclosed by the reference Charge Homogeneity as does Daar and Nenneman. The claims set forth a formula which is far broader than the one example of the data set offered in support of unexpected and superior results.
The claims set forth a composition which requires only the claimed formula possessing a particle size range for which data is not provided in the examples above or below the thresholds
The claims set forth a powder x ray diffraction pattern of delaminated material but insufficient data of for ranges outside the claimed ranges is provided for comparison.
The comparative examples do not appear to correspond to those of the cited prior art.
For example, Nenneman teaches a layer distance d001 of less than 14 A (i.e. less than 1400 nm overlapping the range in the instant inventive examples) See reference [0063,0071, claims)
Objective evidence of nonobviousness including commercial success must be commensurate in scope with the claims. In re Tiffin, 448 F.2d 791, 171 USPQ 294 (CCPA 1971) MPEP 716.03 Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980) MPEP 716.02
No explanation is provided with a nexus for the process steps and their affect on the material produced by those claims having product by process limitations. Since the prior art teaches exactly the claimed formula made by process which is the same/similar to that of the instant application, the product of the prior art would be expected to possess the claimed properties absent evidence to the contrary.
If the evidence is to be given substantial weight in the determination of obviousness or nonobviousness, evidence of secondary considerations must be relevant to the subject matter as claimed, and therefore the examiner must determine whether there is a nexus between the merits of the claimed invention and the evidence of secondary considerations. Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 305 n.42, 227 USPQ 657, 673-674 n. 42 (Fed. Cir. 1985), cert. denied, 475 U.S. 1017 (1986) Applicant or patent owner bears the burden of establishing a nexus between the objective evidence of nonobviousness and the claimed invention. See In re Huang, 100 F.3d 135, 140, 40 USPQ 1685, 1689 (Fed. Cir. 1996) MPEP 716.01
The evidence relied upon should establish "that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance." Ex parte Gelles, 22 USPQ2d 1318, 1319 (Bd. Pat. App. & Inter. 1992) "[A]ppellants have the burden of explaining the data in any declaration they proffer as evidence of non-obviousness." Ex parte Ishizaka, 24 USPQ2d 1621, 1624 (Bd. Pat. App. & Inter. 1992).MPEP 716.02 716.02
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO 892 accompanying the office action mailed 9/24/2025.
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 PAMELA HL WEISS whose telephone number is (571)270-7057. The examiner can normally be reached M-Thur 830 am-700 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, Coris Fung can be reached at (571) 270-5713. 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.
/PAMELA H WEISS/Primary Patent Examiner, Art Unit 1732
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