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 § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 2 – 8, 10 – 14, & 16 – 21 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sheth (EP 0309073 B1) (1993).
With regard to claim 2, Sheth teaches two working examples of breathable, polyolefin (i.e., “thermoplastic”) films (examples 6 & 15), each of which have a ratio of the MD load at break to the CD load at break (i.e., MD/CD) of 2.5/7 = 0.36 and 10.5/10.5 = 1, respectively, which is within Applicant’s claimed range of is less than about 10, and an Elmendorf tear strength in the machine direction of 1260 & 139, respectively, which is within Applicant’s claimed range of at least 5 g (Table II, Ex. 6 & 15). Furthermore, Sheth disclose the film of example 6 has a basis weight of 13.6 g/m2, which is within Applicant’s claimed range of “about 8 gsm to about 13 gsm (g/m2).” The term “about” includes values that are slightly above 13.0 gsm, including the value of 13.6 g/m2 taught by Sheth.
With regard to claim 3, examples 6 & 15 taught by Sheth had a water vapor transmission rate of 800 g/m2/day @37.8°C and 3250 g/m2/day @37.8°C, respectively, which is within Applicant’s claimed range of 500 – 10,000 g/24-hr/m2.
With regard to claim 4, example 6 had a MD load at break of 2.5 lbs/in (28 N/cm), which is within Applicant’s claimed range of at least 2.0 N/cm, and a CD load a break of 7 lb/in (79 N/cm), which is within Applicant’s claimed range of at least 0.7 N/cm.
Example 15 had a MD load at break of 10.5 lbs/in (118 N/cm), which is within Applicant’s claimed range of at least 2.0 N/cm, and a CD load a break of 10.5 lbs/in (118 N/cm), which is within Applicant’s claimed range of at least 0.7 N/cm.
With regard to claim 5, Sheth does not teach the opacity of the breathable film composite.
However, Applicant’s specification teaches the breathable film may be composed of a low-density polyethylene (LDPE) (paragraph [0060]) comprising 30 – 60% by weight of a filler, such as CaCO3 (see claim 8 & Applicant’s working examples). One of ordinary skill in the art would expect a breathable film of similar composition to inherently have similar opacity measurements.
It has been held that where the claimed and prior art products are identical or substantially identical in structure or are produced by identical or a substantially identical processes, a prima facie case of either anticipation or obviousness will be considered to have been established over functional limitations that stem from the claimed structure. In re Best, 195 USPQ 430, 433 (CCPA 1977), In re Spada, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). The prima facie case can be rebutted by evidence showing that the prior art products do not necessarily possess the characteristics of the claimed products. In re Best, 195 USPQ 430, 433 (CCPA 1977).
MPEP 2112 [R-3] states:
The express, implicit, and inherent disclosures of a prior art reference may be relied upon in the rejection of claims under 35 U.S.C. 102 or 103. “The inherent teaching of a prior art reference, a question of fact, arises both in the context of anticipation and obviousness.” In re Napier, 55 F.3d 610, 613, 34 USPQ2d 1782, 1784 (Fed. Cir. 1995) (affirmed a 35 U.S.C. 103 rejection based in part on inherent disclosure in one of the references). See also In re Grasselli, 713 F.2d 731, 739, 218 USPQ 769, 775 (Fed. Cir. 1983).
With regard to claim 6, example 6 did not contain titanium oxide (pg. 7).
With regard to claim 7, example 6 contains LDPE (i.e., “an ethylene-based polymeric composition”) (pg. 7).
With regard to claim 8, the film of example 6 comprises about 50% by weight of CaCO3 (i.e., “filler”) (pg. 7).
With regard to claim 10, Sheth teaches the measurements of example 6 is a one film (i.e., a mono layer without the nonwoven layer).
With regard to claim 11, Sheth does not teach the machine-direction notched trapezoidal tear strength of the film.
However, Applicant’s specification teaches the breathable film may be composed of a low-density polyethylene (LDPE) (paragraph [0060]) comprising 30 – 60% by weight of a filler, such as CaCO3 (see Sheth’s claim 8 & Applicant’s working examples). One of ordinary skill in the art would expect a breathable film of similar composition to inherently have similar notched trapezoidal strength properties.
With regard to claim 18, Sheth teaches the breathable film as taught in the examples may be used as a house wrap (i.e., “article of manufacture”) (title).
With regard to claim 12, Sheth teach two working examples of a breathable, polyolefin (i.e., “thermoplastic”) films (example 8) comprising a nonwoven substrate (of example 7) and a breathable film (of example 6), wherein the breathable film of example 6 has a ratio of the MD load at break to the CD load at break (i.e., MD/CD) of 2.5/7 = 0.36 and 10.5/10.5 = 1, respectively, which is within Applicant’s claimed range of is less than about 10, and an Elmendorf tear strength in the machine direction of 1260 & 139, respectively, which is within Applicant’s claimed range of at least 5 g (Table II, Ex. 6 & 15).
Sheth discloses the breathable, thermoplastic film that has a basis weight of 13.6 g/m2 (example 6), while the present claims require a breathable, thermoplastic film that has a basis weight of 8 – 13 gsm (g/m2).
Although the claims recite the amount of 8 – 13 gsm, Applicant’s specification teaches breathable, thermoplastic films of their invention have a basis weight of less than or equal to 15 gsm (see specification, paragraphs [0008] – [0009], [00035], [0054], & working examples 1 – 11 (Table 1)). Applicant’s specification suggests the claimed basis weight of the film comprising an upper endpoint of 13 gsm is a preferred embodiment, but not is not a critical feature of the breathable film (see specification, paragraph [0054]).
Furthermore, Sheth disclose the film of example 6 has a basis weight of 13.6 g/m2, which is within Applicant’s claimed range of “about 8 gsm to about 13 gsm (g/m2).” The term “about” includes values that are slightly about 13.0 gsm, including the value of 13.6 g/m2.
With regard to claim 13, example 6 taught by Sheth had a water vapor transmission rate of 800 g/m2/day @37.8°C, which is within Applicant’s claimed range of 500 – 10,000 g/24-hr/m2.
With regard to claim 14, example 6 contained LDPE (i.e., “an ethylene-based polymeric composition”) (pg. 7).
With regard to claim 16, Sheth teaches the breathable film and the nonwoven fabric are joined by heat sealing via a heat sealable layer (i.e., “adhesive”) on the outer layer of the fabric (Sheth’s claim 3).
With regard to claim 19, Sheth teaches the laminated fabric and breathable film may be used as diapers, as well as medical and surgical surgery supplies (i.e., “personal hygiene”) (pg. 9).
With regard to claim 20, Sheth teaches the breathable film as taught in the examples may be used as a house wrap (i.e., “article of manufacture”) (title).
With regard to claim 21, Sheth teaches the laminated fabric and breathable film may be used for rain coats, shoe linings (i.e., “backing”) (pg. 9).
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.
Claim(s) 17 is rejected under 35 U.S.C. 103 as being unpatentable over Sheth, as applied to claim 12 above, and further in view of Haas et al. (US 2006/0281379 A1).
With regard to claim 17, Sheth teaches the breathable film is laminated to the nonwoven fabric via heat sealing, not via ultrasonic bonds.
Hass et al. teach a breathable water-resistant fabric comprising a laminate composite of a plurality of fabric layers joined by adhesive, heat bonding, or by a way of ultrasonic lamination (paragraph [0020]).
Therefore, based on the teaching of Haas et al., it would have been obvious to one of ordinary skill in the art prior to the effective filing date to use any type of known adhesion method for joining the layers of the breathable laminate taught by Sheth, including adhesive, heat bonding, and ultrasonic (bonds) lamination because it is nothing more than simple substitution of one method of bonding for another to yield the predictable result of a bonded laminate.
Allowable Subject Matter
Claims 9 & 15 are 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.
The following is a statement of reasons for the indication of allowable subject matter:
With regard to claim 9, example 6 has with the measured properties shown are each a composite of a breathable film and example 8 is the breathable film of example 6 joined to a nonwoven fabric of example 7 (i.e., “multilayered”) (abstract, pg. 2, line 30). However, the sum of the breathable film and the nonwoven film have a basis weight far outside Applicant’s claimed range of about 8 gsm to about 13 gsm.
With regard to claim 15, Sheth teaches the breathable film of example 6 containing polyethylene, but not polypropylene. Sheth teaches in the broader teachings of the reference that the breathable film of the invention may be composed of polypropylene (pg. 3, lines 4 – 9). However, Sheth does not teach or suggest a polypropylene-based breathable film would inherently have the properties of a polyethylene-based breathable film of example 6 or the recited properties of claim 12. Therefore, Sheth does not teach a breathable film with the recited properties of claim 12 comprising polypropylene.
Terminal Disclaimer
The terminal disclaimer filed on December 19, 2025 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of U.S. Patent No. 9,492,332 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Response to Arguments
Applicant’s arguments with respect to the previous rejection(s) of the claims have been fully considered and are persuasive. Therefore, the rejection has been withdrawn.
However, upon further consideration, a new ground(s) of rejection is made in view of Sheth. Applicant is directed to the discussion above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NICOLE T GUGLIOTTA whose telephone number is (571)270-1552. The examiner can normally be reached M - F (9 a.m. to 10 p.m.).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Frank Vineis can be reached at 571-270-1547. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NICOLE T GUGLIOTTA/Examiner, Art Unit 1781
/FRANK J VINEIS/Supervisory Patent Examiner, Art Unit 1781