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 .
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 1- 9, 12, and 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over LaPray (US 2017/0210889 A1) as modified by Neuman (WO 2013/088443) and Govan (US 2008/0087389 A1).
Regarding claim 1, LaPray teaches articles, including films (Abstract), formed from a combination of petrochemical plastic(s) and carbohydrate-based polymers (Abstract). LaPray specifies that the petrochemical plastics may include polyethylene and polypropylene ([0052]) in amounts ranging from 10 to 99 wt% of the formulation ([0088]), and indicates that the carbohydrate-based materials may comprise one or more starches mixed together ([0053]), and teaches that the first starch may comprise between about 50 and 95 wt% of the overall starch composition ([0056]).
LaPray differs from claim 1 because, while it teaches a composition containing non-degradable polymers (including at least polyethylene and polypropylene, which the instant disclosure indicates as non-degradable, c.f. claim 17) and a blend of other polymers, it is silent with regard to said polymers being those of the claimed list.
In the same field of endeavor, Neuman teaches a biodegradable sheet prepared from biodegradable materials (Abstract), and teaches a series of biodegradable polymers suitable therein, including Poly(lactic acid) (PLA), Polyhydroxyalkanoates (PHA), and Poly(butylene adipate-co-terephthalate) (PBAT) in addition to starch ([0043]). Meanwhile, as described above, LaPray is directed towards biodegradable films (e.g., [0003] and [0047]). It is prima facie obvious to substitute equivalents known in the art as suitable for the same purpose (see MPEP 2144.06). Therefore, it would have been obvious to one having ordinary skill in the art at the time of filing to substitute the biodegradable polymers (including PLA, PHA, and/or PBAT) in place of the starches within the formulation of LaPray, as taught by Neuman, as Neuman recognizes them as alternatives to starch within biodegradable film formulations. In doing so, LaPray as modified by Neuman teaches a formulation containing a non-degradable polymer (optionally including polyethylene and/or polypropylene) and a mixture of degradable polymers (optionally including PLA and/or PHA and PBAT, which is a poly-terephthalate according to the instant Specification at [0072]). The formulation of LaPray as modified by Neuman therefore reads on the claimed composition.
LaPray as modified by Neuman further differs from claim 1 because, while LaPray and Neuman both contemplate the formation of films, the combined documents fail to disclose the specific formation of a curtain.
In the same field of endeavor, Govan teaches a biodegradable hospital curtain formed from a sheet of biodegradable material (Abstract). It is prima facie obvious to substitute equivalents known in the art as suitable for the same purpose (See MPEP 2144.06). Therefore, it would have been obvious to utilize the biodegradable sheet formulation of LaPray as modified by Neuman to form a biodegradable hospital curtain, as both LaPray and Neuman are directed towards the formation of a biodegradable sheet, and because Govan teaches that the inventive biodegradable hospital curtain is made from a sheet of biodegradable material.
Regarding the claimed compositional limitations, LaPray teaches the incorporation of between 50 and 99.0 wt% of a non-degradable polymer such as polyethylene or polypropylene ([0088]). The degradable mixture therefore may be incorporated in amounts ranging from 1.0 to 50 wt%. In each, case, these ranges overlap the claimed range, establishing a prima facie case of obviousness.
LaPray as modified is silent with regard to the anaerobic biodegradation characteristics of the claimed composition. However, as described above, LaPray as modified meets all of the claimed compositional limitations, teaching a composition which has all of the claimed components in all of the claimed compositional ranges. Products of identical chemical compositions cannot have mutually exclusive properties. Where the claimed and prior art products are identical or substantially identical in structure or composition, a prima facie case of obviousness has been established. See MPEP 2112.01. The claimed biodegradation characteristic will therefore necessarily be present in LaPray as modified, and as applied above.
Regarding claim 2, Govan further teaches that the other parts of the hospital curtain including grommets are made from a biodegradable material, such that substantially the entire curtain is biodegradable ([0005]). Furthermore, LaPray and Neuman both contemplate the moldability of the inventive formulations (c.f. [0100] of LaPray and [0073] of Neuman). Therefore, it would have been obvious to one of ordinary skill in the art to additionally form hardware for the privacy curtain of LaPray as modified by Neuman and Govan for the purpose of forming a hospital curtain that is entirely biodegradable.
Regarding the claimed compositional limitations, LaPray teaches the incorporation of between 50 and 99.0 wt% of a non-degradable polymer such as polyethylene or polypropylene ([0088]). The degradable mixture therefore may be incorporated in amounts ranging from 1.0 to 50 wt%. In each, case, these ranges overlap the claimed range, establishing a prima facie case of obviousness.
LaPray as modified is silent with regard to the anaerobic biodegradation characteristics of the claimed composition. However, as described above, LaPray as modified meets all of the claimed compositional limitations, teaching a composition which has all of the claimed components in all of the claimed compositional ranges. Products of identical chemical compositions cannot have mutually exclusive properties. Where the claimed and prior art products are identical or substantially identical in structure or composition, a prima facie case of obviousness has been established. See MPEP 2112.01. The claimed biodegradation characteristic will therefore necessarily be present in LaPray as modified, and as applied above.
Regarding claim 3, as described above, Govan teaches the formation of a grommet.
Regarding claims 4, 6-7, and 12, as described above, LaPray as modified by Neuman and Govan teaches a hospital curtain and grommet formed from a sheet of biodegradable material which meets all of the claimed compositional limitations. LaPray as modified is silent with regard to the claimed durometer hardness and durometer hardness difference characteristics. Nevertheless, LaPray as modified results in a curtain comprising a sheet and grommets which are compositionally identical to the claimed curtain system. Products of identical chemical compositions cannot have mutually exclusive properties. Where the claimed and prior art products are identical or substantially identical in structure or composition, a prima facie case of obviousness has been established. See MPEP 2112.01. The claimed durometer hardness and durometer hardness difference characteristics will therefore necessarily be present in LaPray as modified, and as applied above.
Furthermore, Govan specifies the formation of a curtain of non-woven material (p. 3, claim 17) and the grommets are molded ([0018]). It therefore would have been obvious to one having ordinary skill in the art to form the hospital sheet from a non-woven web, and the grommet from a molded article, as claimed.
Regarding claim 5, as described above, LaPray as modified by Neuman and Govan teaches a hospital privacy curtain comprising a sheet and grommets which are formed from the same composition, which reads on the claimed limitation.
Regarding claim 8, as described above, LaPray as modified by Neuman and Govan teaches a hospital curtain comprising a sheet and grommets, which may optionally be formed from a non-degradable polymer (optionally including polyethylene and/or polypropylene) and a mixture of degradable polymers (optionally including PLA and/or PHA and PBAT, which is a poly-terephthalate according to the instant Specification at [0072]).
Furthermore, Govan specifies the formation of a curtain of non-woven material (p. 3, claim 17) and the grommets are molded ([0018]). It therefore would have been obvious to one having ordinary skill in the art to form the hospital sheet from a non-woven web, and the grommet from a molded article, as claimed.
Regarding claim 9, as described above, LaPray as modified teaches the incorporation of between 50 and 99.0 wt% of a non-degradable polymer such as polyethylene or polypropylene ([0088]). The degradable mixture therefore may be incorporated in amounts ranging from 1.0 to 50 wt%. LaPray as modified further teaches that, within the biodegradable component, the biodegradable polymers may be mixed such that the first biodegradable material is incorporated in amounts ranging from 50 to 95 wt% of the biodegradable composition. In a mixture of two biodegradable components, the second component may therefore comprise between 5 and 50 wt% of the biodegradable composition. In each case, the compositional amounts taught by LaPray as modified by Neuman and Govan overlap their respectively claimed ranges, establishing prima facie cases of obviousness.
Regarding claims 17-19 and 21, as described above, LaPray teaches the specific use of polyethylene and polypropylene ([0052]).
Claims 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over LaPray (US 2017/0210889 A1) as modified by Neuman (WO 2013/088443) and Govan (US 2008/0087389 A1), and further in view of Mishler (US 2006/0252326 A1)
Regarding claims 10 and 11, LaPray as modified by Neuman and Govan teaches all of the limitations of claims 1 and 7, as described above. LaPray as modified differs from claims 10 and 11 because it is silent with regard to the incorporation of an antimicrobial agent.
In the same field of endeavor, Mishler teaches an antimicrobial hospital cubicle curtain (Abstract) optionally formed from polyethylene or polypropylene ([0021]), which possesses an antimicrobial effect derived from the incorporation of silver or compounds including silver ([0028]). Mishler teaches that the inventive curtain is useful for reducing the level of microbes present in the curtain ([0002]). Therefore, it would have been obvious to one having ordinary skill in the art at the time of filing to incorporate silver and/or silver-containing compounds into the hospital curtain of LaPray as modified by Neuman and Govan for the purpose of reducing the level of microbes present therein.
Response to Arguments
Applicant’s arguments, see Applicant’s Remarks, filed January 12, 2026, with respect to 35 USC 112(b) have been fully considered and are persuasive. The 35 USC 112(b) rejection of claims 3 and 11 has been withdrawn.
Applicant's arguments with regard to 35 USC 103 have been fully considered but they are not persuasive.
Applicant argues that LaPray teaches a composition which is primarily composed of biodegradable polymers, which the Applicant contends is “the exact opposite” of the claimed composition. Applicant refers to the teaching of LaPray which refers to a mixing of a first and second starch component, wherein each component is between 50 and 95 wt% of the mixture ([0056]).
However, this passage and the associated percentages are related only to the mixture of biodegradable polymers and not the entire mixture of materials within the inventive composition. For example, [0056] specifically states that these percentages relate to “a mixture of a first starch and a second starch.”
The entire composition of LaPray does meet the claimed compositional amount limitations: LaPray specifies that the petrochemical plastics may include polyethylene and polypropylene ([0052]) in amounts ranging from 10 to 99 wt% of the formulation ([0088]), and indicates that the carbohydrate-based materials may comprise one or more starches mixed together ([0053]), and teaches that the first starch may comprise between about 50 and 95 wt% of the overall starch composition ([0056]). LaPray teaches the incorporation of between 50 and 99.0 wt% of a non-degradable polymer such as polyethylene or polypropylene ([0088]). The degradable mixture therefore may be incorporated in amounts ranging from 1.0 to 50 wt%. In each, case, these ranges overlap the claimed range, establishing a prima facie case of obviousness.
LaPray does not require that starch comprises between 50 and 95 wt% of the overall composition, as contended by the Applicant. LaPray specifically teaches the use of between 10 and 99 wt% of a petrochemical plastic ([0088]).
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).
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 JOSHUA CALEB BLEDSOE whose telephone number is (703)756-5376. The examiner can normally be reached Monday-Friday 8:00 a.m. - 5:00 p.m. EST.
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/JOSHUA CALEB BLEDSOE/Examiner, Art Unit 1762
/ROBERT S JONES JR/Supervisory Patent Examiner, Art Unit 1762
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