DETAILED ACTION
Terminal Disclaimer
The terminal disclaimer filed on 3/12/26 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of US 11,788,302 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 16, 18-19 and 24-28 are rejected under 35 U.S.C. 103 as being unpatentable over Cancellier, LU 100188 in view of DeFord et al., US 2002/0139082.
Regarding claim 16:
Cancellier discloses a floor panel comprising a core (12) with upper and lower arrangements,
wherein a central portion (12) of the core contains a mineral-based layer (para. 0033),
wherein the mineral-based layer contains reinforcement fibers (para. 0033 and 0034),
wherein the mineral-based layer comprises non-hydraulic cement (para. 0019, the mineral cement may be hydraulic or non-hydraulic).
Cancellier discloses reinforcement fibers but does not expressly disclose wherein they extend essentially parallel to the plane of the panel includes tensile strength.
DeFord discloses a floor panel comprising cement wherein fiber reinforcement is oriented to extend essentially parallel to the plane of the panel (para. 0147) thereby increasing the tensile strength.
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill to orient the reinforcement fibers of Cancellier parallel to the plane of the panel as suggested by DeFord in order to increase tensile strength and cause the physical properties to be directional (para. 0147).
Regarding claims 18 and 19:
Cancellier discloses wherein the fibers may be inorganic (polymer or glass) as well as organic (cellulosic) or a mix (para. 0019).
Regarding claim 24:
Cancellier does not disclose the exact volume % of the fibers.
It would have been obvious to one having ordinary skill in the art at the time the invention was made, to contrive any number of desirable ranges for the volume % limitation disclosed by Applicant, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. Further, it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. Refer to MPEP § 2144.05.
Regarding claim 25:
Cancellier discloses wherein the reinforcement fibers are non-woven (para. 0033 – they are microfibrillated).
Regarding claim 26:
Cancellier discloses wherein the reinforcement fibers may be arranged in the matrix prior to drying of the mineral-based layer.
The determination of patentability in a product-by-process claim is based on the product itself, even though the claim may be limited and defined by the process. That is, the product in such a claim is unpatentable if it is the same as or obvious from the product of the prior art, even if the prior product was made by a different process.
Regarding claim 27:
Cancellier discloses wherein the reinforcement fibers are distributed throughout the mineral based layer between upper and lower surfaces (it is implied that they are mixed in throughout the binder).
Regarding claim 28:
Cancellier discloses wherein the mineral-based layer comprises a polymer compound (para. 0033).
Claims 17 and 31 are rejected under 35 U.S.C. 103 as being unpatentable over Cancellier, LU 100188 in view of DeFord et al., US 2002/0139082 as applied to claim 16 above, further in view of Baert et al., US 2021/0237402.
Regarding claims 17 and 31:
Cancellier discloses a non-hydraulic cement but does not expressly disclose wherein it includes magnesium oxide.
Baert discloses a floor panel wherein the panel may be based on magnesium oxide non-hydraulic cement (para. 0021).
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill to specifically provide a non-hydraulic cement having magnesium oxide as suggested by Baert for the non-hydraulic cement of DeFord in order to provide excellent strength and fire-retardant properties in addition to flexibility and improved tensile strength (para. 0004 and para. 0007 of Baert).
Claims 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Cancellier, LU 100188 in view of DeFord et al., US 2002/0139082 as applied to claim 16 above, further in view of Dorris et al., US 2016/0102018.
Regarding claims 21-22:
Cancellier does not expressly disclose the aspect ratio of the fibers.
Dorris discloses panels having reinforcement fibers of cellulosic filaments having aspect ratios of up to 1000 falling in the range of 50 to 2000 and reasonably suggesting a range of 25 to 700, the ranges overlapping. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists.
At the time the invention was filed, it would have been obvious to a person of ordinary skill to substitute the cellulosic filament fiber reinforcement as suggested by Dorris for that of Cancellier in order to provide reinforcement that is both abundant and biodegradable.
Claims 23 is rejected under 35 U.S.C. 103 as being unpatentable over Cancellier, LU 100188 in view of DeFord et al., US 2002/0139082 as applied to claim 16 above, further in view of Vogel et al., WO 2016/102116.
Regarding claim 23:
Cancellier does not, though Vogel discloses wherein the length of the reinforcement fibers is 10 to 15mm falling in the range of 3 to 50mm.
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill to substitute the reinforcement fibers of Vogel for those of Cancellier, as both provide reinforcement without yielding any extraordinary or unexpected results. A change in size is generally recognized as being within the level or ordinary skill in the art. There would be no unexpected or unpredictable result obtained from changing the size of the fibers of Cancellier. There is no evidence that the claimed dimensions not specifically taught by Cancellier provide a criticality that would be unachievable and unexpected with a reasonable amount of experimentation.
Claim 29 is rejected under 35 U.S.C. 103 as being unpatentable over Cancellier, LU 100188 in view of DeFord et al., US 2002/0139082 as applied to claim 28 further in view of Ritchie et al., US 2002/0090871.
Regarding claim 29:
Cancellier discloses wherein the mineral based layer includes a polymer compound (para. 0045) but does not disclose the weight percentage within the range 1 to 15%.
Ritchie discloses wherein the mineral based layer comprises a polymer compound wherein the layer contains 1 to 15% of the polymer compound (para. 0160).
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill to incorporate polymer in the percentage as suggested by Ritchie into the mineral layer of Cancellier in order to reduce the weight/density of the mineral layer (para. 0160 of Ritchie).
Claim 30 is rejected under 35 U.S.C. 103 as being unpatentable over Cancellier, LU 100188 in view of DeFord et al., US 2002/0139082 as applied to claim 16 further in view of Josefsson et al., US 2020/0308846.
Regarding claim 30:
Cancellier discloses a mechanical locking system that includes a first pair of horizontal locking surfaces partly formed in the mineral-based layer (refer to Figs. 1 and 2) but does not expressly disclose the claimed mechanical locking system details.
Josefsson clearly disclose the claimed mechanical locking system.
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill to substitute the mechanical locking system of Josefsson with the panels of Cancellier to allow vertical and folding interlocking between adjacent panels for ease of installation.
Claim 32 is rejected under 35 U.S.C. 103 as being unpatentable over Cancellier, LU 100188 in view of Spencer et al., US 6,729,094.
Regarding claim 32:
Cancellier discloses a floor panel comprising a core (12) with upper and lower arrangements,
wherein a central portion (12) of the core contains a mineral-based layer (para. 0033),
wherein the mineral-based layer contains reinforcement fibers (para. 0033 and 0034) that increase tensile strength of the mineral-based layer,
wherein the mineral-based layer comprises non-hydraulic cement (para. 0019, the mineral cement may be hydraulic or non-hydraulic).
Cancellier discloses reinforcement fibers but does not expressly disclose a metal-based reinforcement layer.
Spencer discloses a floor panel (11) of cement wherein the panel includes a metal-based mesh for reinforcement (16, 1st paragraph of the Description).
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill to incorporate a metal mesh as suggested by Spencer to the panel of Cancellier in order to further reinforce and strengthen the panel.
Claims 34-37 are rejected under 35 U.S.C. 103 as being unpatentable over Cancellier, LU 100188 in view of Meersseman et al., US 2018/0023306.
Regarding claims 34 and 35:
Cancellier discloses a floor panel comprising a core (12) with upper and lower arrangements,
wherein a central portion (12) of the core contains a mineral-based layer (para. 0033),
wherein the mineral-based layer contains reinforcement fibers (para. 0033 and 0034) that increase tensile strength of the mineral-based layer,
wherein the mineral-based layer comprises non-hydraulic cement (para. 0019, the mineral cement may be hydraulic or non-hydraulic).
Cancellier does not expressly disclose wherein the upper arrangement comprises a thermoplastic layer with a plasticizer and wherein the upper arrangement is softer than the core.
Meersseman discloses a floor panel wherein an upper arrangement (transparent wear layer) comprises a thermoplastic layer with a plasticizer (para. 0059) and is softer than a core (para. 0013).
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill to substitute an upper arrangement as suggested by Meersseman for the upper arrangement of Cancellier in order to minimize permanent impression and avoid lining out (para. 0013 of Meersseman).
Regarding claim 36:
Meersseman discloses wherein the upper arrangement comprises at least two upper layers attached together (para. 0019 – transparent wear layer, print layer, back layer).
Regarding claim 37:
Meersseman discloses wherein the thermoplastic layer comprises PVC (para. 0019).
Response to Arguments
Applicant's arguments filed 3/12/26 have been fully considered but they are not persuasive.
Regarding applicant’s argument that the rejection improperly assumes that Cancellier’s mineral layer is functionally analogous to DeFord’s fiber-cement sheets, it has been held that the determination that a reference is from a nonanalogous art is twofold. First, it is decided if the reference is within the field of the inventor’s endeavor. If it is not, it is determined whether the reference is reasonably pertinent to the particular problem with which the inventor was involved. In re Wood, 202 USPQ 171, 174. In this case, both Cancellier and DeFord are from the field of flooring. Further, DeFord is reasonably pertinent to reinforcement fiber orientation.
Regarding applicant’s argument that DeFord’s fiber-orientation addresses a different problem than that solved in Cancellier, but the fibers of Cancellier (para. 0034) and the fibers of DeFord (para. 0005) are concerned with reinforcing fibers. The examiner finds that both Cancellier and DeFord address fiber reinforcement.
Regarding applicant’s argument that the rejection relies on information gained from Applicant’s disclosure, the examiner disagrees. The rejection relies on a second teaching that discloses parallel reinforcement fibers (para. 0053 of DeFord).
The mere existence of differences between the prior art and an invention does not establish the invention’s nonobviousness.
Regarding applicant’s argument that the metal mesh of Spencer is not the claimed “metal-based reinforcement layer” in the context of a flooring core, Spencer specifies that the panel is for use in forming a floor. The fact that the reinforcement metal of Spencer exists within concrete does not preclude reliance upon Spencer in modifying a primary reference having a different core material. Spencer suggests that metal is usable as a reinforcement layer in a flooring.
Regarding applicant’s argument that the references solve different structural problems, the examiner disagrees. The prior art references are concerned with flooring construction and reinforcement of flooring layers.
Incorporating a metal mesh as suggested by Spencer within a mineral floor panel as taught by Cancellier would not compromise the functionality of the panel of Cancellier. Changes in construction do not necessitate non-functionality.
Regarding applicant’s argument that Meersseman’s soft layer is tied to polymeric substrates rather than mineral cores, the modification is directed to substitution of the top layer. The mere existence of differences between the prior art and an invention does not establish the invention’s nonobviousness. The gap between the prior art and respondent’s system is simply not so great as to render the system nonobvious to one reasonably skilled in the art.
Regarding applicant’s argument that the softness relationship is not a generic substitution, the examiner modified the plasticizer softened material of Meersseman for that of Cancellier. That is not a generic substitution of “softness”.
The examiner does not submit that Cancellier discloses the claimed softness relationship. Rather, the secondary reference of Meersseman is relied upon in substitution of a soft top layer. Plasticized plastic is softer than a mineral based core. Additionally, Meersseman specifies that the top layer should be softer.
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 BRENT W HERRING whose telephone number is (571)270-3661. The examiner can normally be reached Monday-Thursday 7:30a-6:00p MT.
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, Brian Glessner can be reached at (571)272-6754. 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.
/BRENT W HERRING/Primary Examiner, Art Unit 3633