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 .
Response to Amendment
The Office has carefully considered Applicant’s amendments and accompanying remarks dated 11/12/2025.
The IDS submitted on 12/18/25 is made of record.
The pending claims under review in this office action are claims 1-14. Of the pending claims, claims 1, 8 and 11 were amended; Claims 15-20 are withdrawn to a non-elected invention.
Applicant’s amendments to claims 1, 8 and 11 are entered and made of record.
Applicant’s amendments to the claims overcome the objections made over them in paragraphs 6-7 of the previous office action. They are now withdrawn.
The obviousness double patenting rejection made in paragraphs 4-5 of the previous office action over 18/066,753 [USPUB 20230193516 A1] is maintained and repeated below. The Office appreciates the correction of the typo.
Response to Arguments
Applicant's arguments filed 11/12/2025 have been fully considered but they are not persuasive.
Applicant’s first traversal is that that USPUB 2022/0054964 issued to Gopal does not describe the intermingling of the base fibers with the AM/AC fibers to form a fabric web.
Gopal at ¶ 0003, teaches that “Such filter media are often manufactured by spinning or melt blowing one fiber layer (fine fiber) and then forming another interlocking web (microfiber) on the porous substrate. In the melt blowing process, the fiber can form physical bonds between fibers to interlock the fiber mat into an integrated layer.” Further at ¶ 0018, Gopal teaches that “the methods of producing the fibers, and layers, e.g., spin bonding, melt blowing, electrospinning, inter alia, are discussed in more detail herein under each layer as well. Further down, at ¶ 0029, the instant reference teaches that the composition of the fibers, fabrics, layers may be produced by spunbonding, spun lace, melt blowing, electrospinning. Other production processes are contemplated, including textile spinning and weaving.
At ¶ 0027-0028, Gopal teaches that the first layer and the second layer may be (substantially) contiguous. Alternatively, if needed they can also be separable. It should also be noted that Applicant does not provide any particular degree of entanglement or intermixing. As such, Applicant’s arguments are not commensurate in scope with the claims. Gopal teaches meltblowing process and spun lacing (new claim 21) that is used to create the layers where the fibers can form physical bonds between fibers to interlock the fiber mat into an integrated within the same layer or to another one. Therefore, this argument is not found to be convincing.
Applicant’s second traversal, is that the claimed subject matter is directed to the base fibers and AM/AV fibers being within a single layer/common, which distinguishes over the distinct first and second layers of Gopal. Applicant’s claims do not state “ a single common layer.” Applicant’s specification speaks to “layers” and never provides any definition for what a “fabric web” or what a single common layer is. Applicant’s working examples are towards “fabrics” plural. As such, this argument is not found to be persuasive.
Applicant’s last traversal is that Gopal does not teach the length of the fibers. Gopal teaches meltblowns and melt blown filament/fibers by nature are short (staple) filaments/fibers and not continuous filaments (long). The process of melt blowing is when a molten polymer is extruded through fine nozzles and stretched into fine filaments of a short length. As such, this traversal is also not found to be convincing and the rejection over Gopal et al. is maintained but modified to accommodate Applicant’s amendments.
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 1-14 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8, 10-14 and 20-21 of copending Application No. 18/066,753 [USPUB 20230193516 A1]. The claims filed on 07/09/2025 were considered for analysis. This is a provisional obviousness-type double patenting rejection because the conflicting claims have not in fact been patented. Although the conflicting claims are not identical, they are not patentably distinct from each other because of the embodiment of the instant claims would be rendered obvious by the embodiments of claims 1-14 of 18/359,239 the only difference being efficacy against the type of bacteria Escherichia coli. Both Klebsiella pneumoniae (18/359,239) and Escherichia coli (18/066,763) are part of the Enterobacteriaceae family.
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.
Claim(s) 1-10 and 12-14 is/are rejected under 35 U.S.C. 103 as obvious over USPUB 20220054964A1 issued to Gopal et al.
Regarding modified Claim 1, where Applicant seeks an antiviral and/or antimicrobial and/or antiodor (AM/AV), comprising:
base fibers comprising a base polymer composition comprising a base polymer; and
short AM/AV fibers comprising an AM/AV polymer composition comprising an AM/AV polymer and an AM/AV compound; wherein the base fibers and the short AM/AV fibers are intermingled with one another to form a fabric web, and wherein the fabric has a charge and demonstrates a particle filtration efficiency greater than 20% when measured in accordance with TSI 8130A test system at 10.5 ft/min face velocity, and wherein the fabric demonstrates a Klebsiella pneumoniae efficacy log reduction greater than 1.5, as measured in accordance with ASTM E3160 (2018); Applicant is directed to the teachings of USPUB 20220054964A1 issued to Gopal et al.
Gopal et al teach making filter media structures having antimicrobial and/or antiviral properties. [Abstract] and comprises a first layer with an electret web (an electrically charged nonwoven web) comprising a polymer such as polyolefin, polyester, polyurethane, polycarbonate, polystyrene, fluoropolymer, or copolymers.
At ¶ 0003, Gopal et al. teach that “Such filter media are often manufactured by spinning or melt blowing one fiber layer (fine fiber) and then forming another interlocking web (microfiber) on the porous substrate. In the melt blowing process, the fiber can form physical bonds between fibers to interlock the fiber mat into an integrated layer.”
At ¶ 0027, the instant reference teaches that a second layer may be formed directly on the first layer. For example, the first layer may comprise polyolefin, polyester, or polystyrene, and the second layer may comprise polymer fibers, preferably polyamide fibers, which are blown directly on a surface of the first layer. In this way, the first layer and the second layer may be (substantially) contiguous. The first layer is formed from polypropylene (e.g., spunbond) and the second layer is formed from a plurality of fibers of a polyamide composition (e.g., meltblown). Melt blown fibers are known to be short fibers. This shows that if desired the first and second layers are intermingled so that it is not possible to separate them.
At ¶ 0028, the instant reference teaches that the first layer and the second layer may be (substantially) contiguous. discusses that in some embodiments, the layers of the filter media structure are separable and/or removable, this shows that if desired the first and second layers are intermingled yet separable if needed.
At ¶ 0029, the instant reference teaches that the composition of the fibers, fabrics, layers may be produced by spunbonding, spun lace, melt blowing, electrospinning. Other production processes are contemplated, including textile spinning and weaving.
At ¶ 0033-0034, the instant reference discloses that a charge may be applied to the first layer using any suitable technique, such as corona charging, tribocharging, or hydro charging. ¶ 0033 specifically states that the electrostatic charge of the first layer may be up to -20 kV.
At ¶ 0035, the instant reference teaches that the first layer may comprise staple fibers to provides a more lofty, less dense web wherein the number of staple fibers in the first layer may be 1 - 90 wt.%.
At ¶ 0079, the instant reference discloses that the first layer may comprise an antimicrobial/antiviral polymer composition and ¶ 0080 discloses that a layer with biological reducing properties may comprise a polymer and one or more AM/ AV compounds, such as metallic compounds including copper and zinc.
At ¶ 0136, the instant reference teaches that any of the layers of the filter media structure may comprise additional additives. The additives include pigments, hydrophilic or hydrophobic additives, antiodor additives, additional antiviral agents, and antimicrobial/ anti-fungal inorganic compounds, such as copper, zinc, tin, and silver.
At ¶ 0071, the instant reference teaches that the antimicrobial activity of the filter media structure may also be measured by determining the percentage inhibiting a bacterium or bacteria, e.g. Klebsiella pneumoniae and that in one embodiment, the filter media structure inhibits the growth reduction of K. pneumoniae in an amount ranging from 60% to 100%. It should be noted that in microbiology a 1 log reduction = 90% reduction, 2 log reduction = 99% reduction and a 1.5 log fall is approximately a 96% reduction.
At ¶ 0129 and ¶ 0180-0181, the instant reference discloses that particulate filtration efficiency PFE was measured using the TSI 8130 test.
At ¶ 0130-0132, the instant reference teaches that PFE which measures a percentage of particles that are trapped or isolated by the filter media structure demonstrates a PFE greater than 90%.
Regarding the last limitation in claim 1 wherein the fabric demonstrates a Klebsiella pneumoniae efficacy log reduction greater than 1.5, as measured in accordance with ASTM E3160 (2018)- Gopal et al. at ¶ 0071, teaches that the antimicrobial activity of the filter media structure may also be measured by determining the percentage inhibiting a bacterium or bacteria, e.g. Klebsiella pneumoniae and that in one embodiment, the filter media structure inhibits the growth reduction of K. pneumoniae in an amount ranging from 60% to 100%. It should be noted that in microbiology a 1 log reduction = 90% reduction, 2 log reduction = 99% reduction and a 1.5 log fall is approximately a 96% reduction. They do not test using the same standard as sought by Applicant.
It is the position of the Office that the resultant property of the fabric demonstrates a Klebsiella pneumoniae efficacy log reduction greater than 1.5, as measured in accordance with ASTM E3160 (2018) would be met by Gopal et al. Support for said assumption is found in the use of the same layers, same composition, same fiber size and filtering the same bacteria of Klebsiella pneumoniae as Applicant. The burden is upon Applicant to prove otherwise. In re Fitzgerald 205 USPQ 594. In addition, the presently claimed properties as set forth above, it would obviously have been present once the Gopal et al. product is provided. Note In re Best, 195 USPQ at 433, footnote (CCPA 1977) as to the providing of this rejection made above under 35 USC 102. Reliance upon inherency is not improper even though rejection is based on Section 103 instead of Section 102. In re Skoner, et al. (CCPA) 186 USPQ 80.
At ¶ 0157, the instant reference teaches that the filter media structures may be used in wound care, for example, the filter media structures may be employed as wraps, (breathable) gauzes, bandages, and/or other dressings and that the AM/ AV properties of the filter media structures make them particularly beneficial in these applications. In some cases, the filter media structures serve as a moisture barrier and/or to facilitate an oxygen transmission balance.
Regarding Claim 2, where Applicant seeks that the fabric of claim 1, wherein the short AM/AV fibers have fiber lengths less than 200 mm; Melt blown fibers by nature are short fibers and not continuous filaments. The process of melt blowing is when a molten polymer is extruded through fine nozzles and stretched into fine filaments of a short length.
Regarding Claim 3, where Applicant seeks that the fabric of claim 1, wherein the fabric comprises greater than 20 wt % short AM/AV fibers; Applicant is directed to ¶ 0010, where the instant reference teaches that the amount can be 50 to 99.9 wt. %
Regarding Claim 4, where Applicant seeks that the fabric of claim 1, wherein the short AM/AV fibers have a surface energy less than 4 N/m; Gopal et al. do not explicitly teach the resultant properties of the short AM/AV fibers have a surface energy less than 4 N/m, it is reasonable to presume that said limitations are inherent to the invention. Support for said presumption is found in the use of similar materials (i.e. same fibers, same weave, same composition, same length, same basis weight and most of all same intended use. The burden is upon the Applicant to prove otherwise. In re Fitzgerald, 205 USPQ 594. In the alternative, the claimed resultant properties of surface energy would obviously have been provided by the composite disclosed by Gopal et al. Note In re Best, 195 USPQ 433, footnote 4 (CCPA 1977) as to the providing of this rejection under 35 USC 103 in addition to the rejection made above under 35 USC 102.
Regarding Claim 5, where Applicant seeks that the fabric of claim 1, wherein the charge is achieved via applying a voltage to the fabric at 10 Hz to 70 Hz; Gopal et al. do not explicitly teach the resultant properties of a charge is achieved via applying a voltage to the fabric at 10 Hz to 70 Hz, it is reasonable to presume that said limitations are inherent to the invention. Support for said presumption is found in the use of similar materials (i.e. same fibers, same weave, same composition, same length, same basis weight and most of all same intended use. The burden is upon the Applicant to prove otherwise. In re Fitzgerald, 205 USPQ 594. In the alternative, the claimed resultant properties of a charge is achieved via applying a voltage to the fabric at 10 Hz to 70 Hz would obviously have been provided by the composite disclosed by Gopal et al. Note In re Best, 195 USPQ 433, footnote 4 (CCPA 1977) as to the providing of this rejection under 35 USC 103 in addition to the rejection made above under 35 USC 102.
Regarding Claim 6, where Applicant seeks that the fabric of claim 1, wherein the charge is a voltage drop less than 25 V; Gopal et al. do not explicitly teach the resultant properties of charge is a voltage drop less than 25 V, it is reasonable to presume that said limitations are inherent to the invention. Support for said presumption is found in the use of similar materials (i.e. same fibers, same weave, same composition, same length, same basis weight and most of all same intended use. The burden is upon the Applicant to prove otherwise. In re Fitzgerald, 205 USPQ 594. In the alternative, the claimed resultant properties of charge is a voltage drop less than 25 V would obviously have been provided by the composite disclosed by Gopal et al. Note In re Best, 195 USPQ 433, footnote 4 (CCPA 1977) as to the providing of this rejection under 35 USC 103 in addition to the rejection made above under 35 USC 102.
Regarding Claim 7, where Applicant seeks that the fabric of claim 1, wherein the charge is a voltage drop greater than 0.01 V; Gopal et al. do not explicitly teach the resultant properties of charge is a voltage drop greater than 0.01 V, it is reasonable to presume that said limitations are inherent to the invention. Support for said presumption is found in the use of similar materials (i.e. same fibers, same weave, same composition, same length, same basis weight and most of all same intended use. The burden is upon the Applicant to prove otherwise. In re Fitzgerald, 205 USPQ 594. In the alternative, the claimed resultant properties of charge is a voltage drop greater than 0.01 V, would obviously have been provided by the composite disclosed by Gopal et al. Note In re Best, 195 USPQ 433, footnote 4 (CCPA 1977) as to the providing of this rejection under 35 USC 103 in addition to the rejection made above under 35 USC 102.
Regarding modified Claim 8, where Applicant seeks that the fabric of claim 1, wherein the short AM/AV fibers comprise polyamide and the base fibers comprise olefins, rayon, acrylic polymers, polyesters, polyester-polypropylene splittable fibers, polypropylene-polyethylene splittable fibers, polyamide-polypropylene splittable fibers, natural fibers (wood pulp), or glass fibers, or combinations thereof; Applicant is directed to ¶ 0009-0013 and 0027 and the working examples.
Regarding Claim 9, where Applicant seeks that the 9. The fabric of claim 1, wherein the AM/AV fabric demonstrates a flow resistance less than 40 mmH2O; Gopal et al. do not explicitly teach the resultant properties of flow resistance less than 40 mmH2O, it is reasonable to presume that said limitations are inherent to the invention. Support for said presumption is found in the use of similar materials (i.e. same fibers, same weave, same composition, same length, same basis weight and most of all same intended use. The burden is upon the Applicant to prove otherwise. In re Fitzgerald, 205 USPQ 594. In the alternative, the claimed resultant properties of flow resistance less than 40 mmH2O would obviously have been provided by the composite disclosed by Gopal et al. Note In re Best, 195 USPQ 433, footnote 4 (CCPA 1977) as to the providing of this rejection under 35 USC 103 in addition to the rejection made above under 35 USC 102.
Regarding Claim 10, where Applicant seeks that the fabric of claim 1, wherein the base polymer comprises polypropylene and the AM/AV polymer comprises polyamide; Applicant is directed to ¶ 0011 and ¶ 0183, Example 1, of the instant reference they teach that the filter media structure was prepared using a 77.2 g/m2 spunbond polypropylene (SBPP) charged two-layer nonwoven layer having an average fiber diameter of 13 microns, thickness of 0.65 mm on which a 17 g/m2 meltblown polyamide (MBPA) having an average fiber diameter of about 1.5 to 2 microns was positioned in an upstream manner. The meltblown polyamide comprised 500 ppm of zinc by weight (wppm).
Regarding Claim 12, where Applicant seeks that the fabric of claim 1, wherein the AM/AV fabric has a basis weight ranging from 30 g/m2 to 130 g/m2; Applicant is directed to ¶ 0038, where the instant reference teaches that the basis weight of the first layer may be controlled through processing techniques and is in the range of about 10 to 500 g/m2. At ¶ 0055, the instance reference teaches that the second layer y have a basis weight from 4.5 g/m2 to 50 g/m2.
Regarding Claim 13, where Applicant seeks that the fabric of claim 1, wherein the AM/AV compound comprises zinc or copper or a combination thereof; Applicant is directed to ¶ 0079, where the instant reference discloses that the first layer may comprise an antimicrobial/antiviral polymer composition and ¶ 0080 discloses that a layer with biological reducing properties may comprise a polymer and one or more AM/ AV compounds, such as metallic compounds including copper and zinc. Also, at ¶ 0136, that any of the layers of the filter media structure may comprise additional additives. The additives include pigments, hydrophilic or hydrophobic additives, antiodor additives, additional antiviral agents, and antimicrobial/ anti-fungal inorganic compounds, such as copper, zinc, tin, and silver.
Regarding Claim 14, where Applicant seeks a wound care product comprising the fabric of claim 1; Applicant is directed to ¶ 0157, where the instant reference teaches that the filter media structures may be used in wound care, for example, the filter media structures may be employed as wraps, (breathable) gauzes, bandages, and/or other dressings and that the AM/ AV properties of the filter media structures make them particularly beneficial in these applications. In some cases, the filter media structures serve as a moisture barrier and/or to facilitate an oxygen transmission balance.
Allowable Subject Matter
Claim 11 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. Gopal et al. do not teach that the base fibers and the short AM/AV fibers are spunlaced, needle punched, and/or hydroentangled, thereby to form the fabric web.
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.
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/Arti Singh-Pandey/
Primary Patent Examiner
Art Unit 1759
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