Claims 1-3, and 7-32 are pending in the application. Claims 4-6 have been cancelled. Claims 9, 12-29, 31 and 32 have been withdrawn from consideration as being directed to a non-elected invention. Claims 1-3, 7, 8, 10, 11 and 30 are rejected.
The rejections over Shelton in view of Barger and further in view of Yahara have been maintained.
The nonstatutory double patenting rejections have been maintained.
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.
Claims 1, 7, 8, 10, 11 and 30 are rejected under 35 U.S.C. 103 as being unpatentable over US 2018/0298582 to Shelton et al. (hereinafter “Shelton”) in view of US 2009/0263645 to Barger et al. (hereinafter “Barger”).
As to claims 1 and 11, Shelton discloses a multilayer integral geogrid comprising a plurality of oriented multilayer strands interconnected by partially oriented junctions and having an array of openings therebetween as shown in figure 7. The integral geogrid is produced from coextruded multilayer layers and each layer of which made of a polymer and so is the multilayer strand. The polymeric layer including a foaming agent is equated to a foam layer. The polymeric layer free of a foaming agent is equated to a film layer. Each strand and each junction comprise multiple layers of a polymeric material including an intermediate foam layer sandwiched between two outer film layers (paragraph 81).
The multilayer integral geogrid is comprised of a coextruded multilayer polymer sheet with holes or depressions therein (paragraph 25). The coextruded multilayer polymer sheet is further uniaxially or biaxially stretched to provide a plurality of highly oriented strands interconnected by partially oriented junctions and having an array of the openings therein (paragraphs 12, 14, 21, 25 and 31). Shelton also teaches that CaCO3 filler is incorporated in the layers of the integral geogrid including foam layers and film layer (paragraph 91). Therefore, it is not seen that the cellular openings that forms around the CaCO3 fillers would not be present in the subsequent uniaxial or biaxial stretching process, which is an exact process set out in the Applicant’s disclosure for creating these cellular openings.
Shelton does not explicitly disclose the strand and the junction of the integral geogrid comprising an intermediate film layer disposed between two outer foam layers.
Barger, however, discloses a multilayer foam-film composite structure comprising a plurality of alternating film layers and foam layers wherein the external layer of the composite structure is a film layer or a foam layer (paragraph 4).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to construct an integral geogrid comprising a plurality of polymeric layers wherein an external layer is a foam layer because the foam and the film have been shown in the art to be recognized equivalent external layers of the multilayer foam-film composite structure, the strand and the junction of the integral geogrid; and the selection of these known equivalents will be within the level of the ordinary skill in the art.
As to claim 7, Shelton discloses that CaCO3 filler is incorporated in the layers of the integral geogrid including foam layers and film layer (paragraph 91).
As to claim 8, Shelton discloses that the multilayer integral geogrid or the multilayer strand is formed by co-extrusion (paragraph 80).
As to claim 10, Shelton discloses that the oriented strands are biaxially stretched (paragraphs 12, 14, 21 and 31).
As to claim 30, Shelton discloses that the integral geogrid is a triaxial integral geogrid (paragraph 31).
Claims 2 and 3 are rejected under 35 U.S.C. 103 as being unpatentable over Shelton in view of Barger as applied to claim 1 above, further in view of US 2015/0203648 to Yahara et al. (hereinafter “Yahara”).
Neither Shelton nor Barger discloses that the foam layer has a void volume of 20 to 70% and a compressibility factor of about 20 to 60%.
Yahara, however, discloses a foam obtained from a copolymer of ethylene, an α-olefin and a non-conjugated diene, a blowing agent, and a crosslinking agent (abstract). The foam has a porosity of 40% and a 50% compression strength of 75 KPa (table 2-continuous, example 8). The foam is useful as a cushioning material which damps vibration and impact in civil engineering construction (paragraph 2).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the foam layer disclosed in Shelton having a void volume of 40%, and a compressibility factor of 50% disclosed in Yahara motivated by the desire to provide an integral geogrid having high cushioning properties and improved impact resistance.
Response to Arguments
Applicant alleges that the claim is not rendered obvious in view of the combined disclosures of Shelton and Barger because none of the cited references disclose “the cellular structure including a dispersion of a particulate filler and a distribution of cellular openings, with each of the cellular openings being located adjacent the particulate filler”.
The Examiner respectfully disagrees.
As previously discussed, Shelton discloses that the multilayer integral geogrid is comprised of a coextruded multilayer polymer sheet with holes or depressions therein (paragraph 25). The coextruded multilayer polymer sheet is further uniaxially or biaxially stretched to provide a plurality of highly oriented strands interconnected by partially oriented junctions and having an array of the openings therein (paragraphs 12, 14, 21, 25 and 31). Shelton also teaches that CaCO3 filler is incorporated in the layers of the integral geogrid including foam layers and film layer (paragraph 91). Therefore, it is not seen that the cellular openings that forms around the CaCO3 fillers would not be present in the geogrid in the subsequent uniaxial or biaxial stretching process, which is an exact process set out in the Applicant’s disclosure for creating these cellular openings.
Accordingly, the rejections over Shelton in view of Barger and further in view of Yahara have been maintained.
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 1-3, 7, 8, 10, 11 and 30 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 of U.S. Patent No. 11,753,788. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the US Patent No. 11,753,788 fully encompass those of the current application.
As indicated in claims 6 and 7, the first cellular outer layer and the second cellular outer layer have a construction that includes a particulate filler. Therefore, it is not seen that the first and second outer layers could not generate the cellular openings upon the stretching/orientating of the multilayer integral geogrid. This an exact process set out in the Applicant’s disclosure for creating these cellular openings.
Response to Arguments
Applicant alleges that none of the claims of the U.S. Patent No. 11,753,788 disclose “the cellular structure including a dispersion of a particulate filler and a distribution of cellular openings, with each of the cellular openings being located adjacent the particulate filler”.
The Examiner respectfully disagrees.
As indicated in claims 6 and 7, the first cellular outer layer and the second cellular outer layer have a construction that includes a particulate filler. Therefore, it is not seen that the first and second outer layers could not generate the cellular openings upon stretching/orientation of the multilayer integral geogrid. This an exact process set out in the Applicant’s disclosure for creating these cellular openings.
Accordingly, the nonstatutory double patenting rejection over the U.S. Patent No. 11,753,788 has been maintained.
Claims 1, 7, 8, 10, 11 and 30 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-26 of U.S. Patent No. 11,519,150. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the US Patent No. 11,519,150 fully encompass those of the current application.
As indicated in claims 9, 10, 24 and 25, the compressible cellular outer layer has a construction that includes a particulate filler. Therefore, it is not seen that the compressible cellular outer layer could not generate the cellular openings upon stretching/orientation of the geogrid system. This an exact process set out in the Applicant’s disclosure for creating these cellular openings.
Claims 2 and 3 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-26 of U.S. Patent No. 11,519,150 in view of Yahara.
The claims of the U.S. Patent No. 11,519,150 do not explicitly disclose that the foam layer has a void volume of 20 to 70% and a compressibility factor of about 20 to 60%.
Yahara, however, discloses a foam obtained from a copolymer of ethylene, an α-olefin and a non-conjugated diene, a blowing agent, and a crosslinking agent (abstract). The foam has a porosity of 40% and a 50% compression strength of 75 KPa (table 2-continuous, example 8). The foam is useful as a cushioning material which damps vibration and impact in civil engineering construction (paragraph 2).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use the foam layer disclosed in the Patent No. 11,519,150 having a void volume of 40%, and a compressibility factor of 50% disclosed in Yahara motivated by the desire to provide an integral geogrid having high cushioning properties and improved impact resistance.
Response to Arguments
Applicant alleges that none of the claims of the U.S. Patent No. 11,519,150 disclose “the cellular structure including a dispersion of a particulate filler and a distribution of cellular openings, with each of the cellular openings being located adjacent the particulate filler”.
The Examiner respectfully disagrees.
As indicated in claims 9, 10, 24 and 25, the compressible cellular outer layer has a construction that includes a particulate filler. Therefore, it is not seen that the compressible cellular outer layer could not generate the cellular openings upon stretching/orientation of the geogrid system. This an exact process set out in the Applicant’s disclosure for creating these cellular openings.
Accordingly, the nonstatutory double patenting rejections over the U.S. Patent No. 11,753,788, and further in view of Yahara have been maintained.
Conclusion
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 Hai Vo whose telephone number is (571)272-1485. The examiner can normally be reached M-F: 9:00 am - 6:00 pm with every other Friday off.
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/Hai Vo/
Primary Examiner
Art Unit 1788