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 Objections
Claims 1-2, 7 and 12-13 are objected to because of the following informalities: “a polyhydroxyalkanoates” should be “a polyhydroxyalkanoate”. Appropriate correction is required.
Claims 3 and 7 are objected to because of the following informalities: Multiple periods in the claims (“a.” should be “a)”, “i.” should be “i)”, etc.) (See Fressola v. Manbeck, 36 USPQ2d 1211 (D.D.C. 1995) [MPEP 608.01(m)]. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 3-6 and 8-17 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 3 recites the limitation "the durometer scale" in line 9. There is insufficient antecedent basis for this limitation in the claim.
Claim 4 recites the limitation "the biodegradable lateral transfer support surface system" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 4 recites the limitation "the main body and hardware" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim.
Claim 5 recites the limitation "the main body fabric" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. Accordingly, dependent claims 8 and 11 are indefinite.
Claim 5, it is unclear which hardness scale is used for Shore 70, therefore claim 5 is indefinite.
Claims 5-6 and 9 recites the limitation "the biodegradable lateral transfer support surface" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 6 recites the limitation "the main body fabric hardware" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 recites the limitation "the non-biodegradable polymer" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "the antimicrobial" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. Accordingly, dependent claims 14-17 are indefinite.
Claim 11 recites the limitation "the main body fabric and hardware" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim.
Claim 12 recites the limitation "the non-biodegradable polymer" in line 8. There is insufficient antecedent basis for this limitation in the claim. Accordingly, dependent claim 13 is indefinite.
Claims 14-17 recites the limitation "the composition of matter" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claims 14-16 recites the limitation "the non-biodegradable polymer" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1, 4-6, 9, and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Scholz et al. (US 2012/0304384).
Regarding claim 1: Scholz et al. (US ‘384) discloses patient support systems for transferring patients [abstract], wherein the polymeric platform 102 [Fig. 1; 0047] contains a first (top) sheet 110 and a second (bottom) sheet 112 [Fig. 1; 0054]. Scholz et al. (US ‘384) discloses the first (top) sheet 110 and a second (bottom) sheet 112 can be flexible [0063-0066]. Scholz et al. (US ‘384) discloses the sheets can be coupled together [0079-0080]. Scholz et al. (US ‘384) discloses a plurality of apertures 122 [Fig. 1; 0083-0084] formed through a portion of the second surface 112 for the delivery of warm air [0092]. Scholz et al. (US ‘384) discloses the apertures 122 can be open at all times, as well as some of the apertures 122 can be coupled to one-way valves that can be configured to open only when a threshold pressure within the plenum 120 has been reached [Fig. 1; 0084-0085]. Scholz et al. (US ‘384) polymeric platform 102 (first 110 and second 112 surfaces) can be made from of a variety of materials [0058-0061], including polyethylene [0059], polylactic acid [0059; 0061] and polyethylene terephthalate [0059].
Scholz et al. (US ‘384) does not specifically disclose polymeric platform 102 (first 110 and second 112 surfaces) made from polyethylene and a blend of polylactic acid and polyethylene terephthalate, However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have made the sheets from polyethylene and a blend of polylactic acid and polyethylene terephthalate, and would have been motivated to do so since Scholz et al. (US ‘384) discloses the platform (first 110 and second 112 surfaces) can be made from of a variety of materials [0058-0061], including polyethylene [0059], polylactic acid [0059; 0061] and polyethylene terephthalate [0059]. Additionally, “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) [see MPEP 2144.06].
Regarding claims 4-6 and 11: Scholz et al. (US ‘384) discloses the platform 102 can contain handles 134 and straps 136 coupled to the first sheet 110 and/or second sheet 112 [Fig. 1; 0107-0109]. Scholz et al. (US ‘384) discloses the platform (first 110 and second 112 surfaces) can be made from of a variety of materials [0058-0061], including polyethylene [0059], polylactic acid [0059; 0061] and polyethylene terephthalate [0059]. Scholz et al. (US ‘384) discloses one or more of the surfaces of the platform 102 can have a low friction {correlating to a higher shore hardness (Shore D)} [0063], and sections of the platform 102 can be flexible {correlating to a lower shore hardness (Shore A)} and/or rigid {correlating to a higher shore hardness (Shore D)} [0064-0069].
Scholz et al. (US ‘384) does not specifically disclose the sheets having a hardness of Shore A 50 to Shore 70 hardness [instant claim 5]; the handles and/or straps having a hardness of Shore D 45 to Shore D 60 hardness [instant claim 6]; the sheets, handles and/or straps having different hardnesses [instant claim 11]. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to dis-cover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969). For more recent cases applying this principle, see Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997) [see MPEP 2144.05].
Regarding claim 9: Scholz et al. (US ‘384) discloses the platform 102 can include an antimicrobial layer [0058].
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Scholz et al. (US 2012/0304384).
Regarding claim 2: Scholz et al. (US ‘384) discloses patient support systems for transferring patients [abstract], wherein the polymeric platform 102 [Fig. 1; 0047] contains a first (top) sheet 110 and a second (bottom) sheet 112 [Fig. 1; 0054]. Scholz et al. (US ‘384) discloses the first (top) sheet 110 and a second (bottom) sheet 112 can be flexible [0063-0066]. Scholz et al. (US ‘384) discloses the sheets can be coupled together [0079-0080]. Scholz et al. (US ‘384) discloses a plurality of apertures 122 [Fig. 1; 0083-0084] formed through a portion of the second surface 112 for the delivery of warm air [0092]. Scholz et al. (US ‘384) discloses the apertures 122 can be open at all times, as well as some of the apertures 122 can be coupled to one-way valves that can be configured to open only when a threshold pressure within the plenum 120 has been reached [Fig. 1; 0084-0085]. Scholz et al. (US ‘384) discloses polymeric platform 102 (first 110 and second 112 surfaces) can be made from of a variety of materials [0058-0061], including polyethylene [0059], polyurethane [0059], polylactic acid [0059; 0061] and polyethylene terephthalate [0059].
Scholz et al. (US ‘384) does not specifically disclose polymeric platform 102 (first 110 and second 112 surfaces) made from polyethylene and a blend of polylactic acid and polyethylene terephthalate; having a polyurethane coating containing a blend of polylactic acid and polyethylene terephthalate. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have made the sheets from polyethylene and a blend of polylactic acid and polyethylene terephthalate; having a polyurethane coating containing a blend of polylactic acid and polyethylene terephthalate, and would have been motivated to do so since Scholz et al. (US ‘384) discloses the platform (first 110 and second 112 surfaces) can be made from of a variety of materials [0058-0061], including polyethylene [0059], polyurethane [0059], polylactic acid [0059; 0061] and polyethylene terephthalate [0059]. Additionally, “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) [see MPEP 2144.06].
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Scholz et al. (US 2012/0304384).
Regarding claim 3: Scholz et al. (US ‘384) discloses patient support systems for transferring patients [abstract], wherein the polymeric platform 102 [Fig. 1; 0047] contains a first (top) sheet 110 and a second (bottom) sheet 112 [Fig. 1; 0054]. Scholz et al. (US ‘384) discloses the first (top) sheet 110 and a second (bottom) sheet 112 can be flexible [0063-0066]. Scholz et al. (US ‘384) discloses the sheets can be coupled together [0079-0080]. Scholz et al. (US ‘384) discloses a plurality of apertures 122 [Fig. 1; 0083-0084] formed through a portion of the second surface 112 for the delivery of warm air [0092]. Scholz et al. (US ‘384) discloses the apertures 122 can be open at all times, as well as some of the apertures 122 can be coupled to one-way valves that can be configured to open only when a threshold pressure within the plenum 120 has been reached [Fig. 1; 0084-0085]. Scholz et al. (US ‘384) discloses the platform 102 can contain handles 134 and straps 136 coupled to the first sheet 110 and/or second sheet 112 [Fig. 1; 0107-0109]. Scholz et al. (US ‘384) discloses polymeric platform 102 (first 110 and second 112 surfaces) can be made from of a variety of materials [0058-0061], including polyethylene [0059], polylactic acid [0059; 0061] and polyethylene terephthalate [0059]. Scholz et al. (US ‘384) discloses one or more of the surfaces of the platform 102 can have a low friction {correlating to a higher shore hardness (Shore D)} [0063], and sections of the platform 102 can be flexible {correlating to a lower shore hardness (Shore A)} and/or rigid {correlating to a higher shore hardness (Shore D)} [0064-0069].
Scholz et al. (US ‘384) does not specifically disclose polymeric platform 102 (first 110 and second 112 surfaces) made from polyethylene and a blend of polylactic acid and polyethylene terephthalate. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have made the sheets from polyethylene and a blend of polylactic acid and polyethylene terephthalate, and would have been motivated to do so since Scholz et al. (US ‘384) discloses the platform (first 110 and second 112 surfaces) can be made from of a variety of materials [0058-0061], including polyethylene [0059], polyurethane [0059], polylactic acid [0059; 0061] and polyethylene terephthalate [0059]. Additionally, “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) [see MPEP 2144.06].
Scholz et al. (US ‘384) does not specifically disclose the sheets, handles and/or straps having different hardnesses. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to dis-cover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382; In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969). For more recent cases applying this principle, see Merck & Co. Inc. v. Biocraft Laboratories Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997) [see MPEP 2144.05].
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Scholz et al. (US 2012/0304384).
Regarding claim 7: Scholz et al. (US ‘384) discloses patient support systems for transferring patients [abstract], wherein the polymeric platform 102 [Fig. 1; 0047] contains a first (top) sheet 110 and a second (bottom) sheet 112 [Fig. 1; 0054]. Scholz et al. (US ‘384) discloses the first (top) sheet 110 and a second (bottom) sheet 112 can be flexible [0063-0066]. Scholz et al. (US ‘384) discloses the sheets can be coupled together [0079-0080]. Scholz et al. (US ‘384) discloses a plurality of apertures 122 [Fig. 1; 0083-0084] formed through a portion of the second surface 112 for the delivery of warm air [0092]. Scholz et al. (US ‘384) discloses the apertures 122 can be open at all times, as well as some of the apertures 122 can be coupled to one-way valves that can be configured to open only when a threshold pressure within the plenum 120 has been reached [Fig. 1; 0084-0085]. Scholz et al. (US ‘384) discloses the first sheet 110, the second sheet 112, and supporting structures 114 can be affixed by melt bonding and/or suitable mechanical fastening [Fig. 1; 0078-0079]. Scholz et al. (US ‘384) discloses polymeric platform 102 can contain handles 134 and straps 136 coupled to the first sheet 110 and/or second sheet 112 [Fig. 1; 0107-0109]. Scholz et al. (US ‘384) discloses polymeric platform 102 (first 110 and second 112 surfaces) can be made from of a variety of materials [0058-0061], including polyethylene [0059], polylactic acid [0059; 0061] and polyethylene terephthalate [0059].
Scholz et al. (US ‘384) does not specifically disclose polymeric platform 102 (first 110 and second 112 surfaces) made from polyethylene and a blend of polylactic acid and polyethylene terephthalate. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have made the sheets from polyethylene and a blend of polylactic acid and polyethylene terephthalate, and would have been motivated to do so since Scholz et al. (US ‘384) discloses the platform (first 110 and second 112 surfaces) can be made from of a variety of materials [0058-0061], including polyethylene [0059], polyurethane [0059], polylactic acid [0059; 0061] and polyethylene terephthalate [0059]. Additionally, “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) [see MPEP 2144.06].
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Scholz et al. (US 2012/0304384) as applied to claim 7 above, and further in view of Piotrowicz et al. (US 2021/0268543).
Regarding claim 10: Scholz et al. (US ‘384) discloses the basic claimed support surface [as set forth above with respect to claim 7]; wherein Scholz et al. (US ‘384) discloses the platform 102 can include an antimicrobial layer [0058].
Scholz et al. (US ‘384) does not specifically disclose silver as the antimicrobial. However, Piotrowicz et al. (US ‘543) discloses medical device surfaces containing polymers mixed with additives to resist bacterial adhesion [abstract; 0002; 0034], wherein the surface can contain silver as the antimicrobial agent [0036; 0294]. Scholz et al. (US ‘384) and Piotrowicz et al. (US ‘543) are analogous art because they are concerned with a similar technical difficulty, namely the preparation of polymeric medical devices containing an antimicrobial surface. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined silver, as taught by Piotrowicz et al. (US ‘543) in the invention of Scholz et al. (US ‘384), and would have been motivated to do so since Piotrowicz et al. (US ‘543) discloses silver as the antimicrobial agent [0036; 0294].
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Scholz et al. (US 2012/0304384) in view of Piotrowicz et al. (US 2021/0268543) as applied to claim 10 above, and further in view of Herrera, R.; Franco, L.; Rodríguez-Galán, A.; Puiggalí, J. J. Polym. Sci. A Polym. Chem. 2002, 40, 4141-4157.
Regarding claim 17: Scholz et al. (US ‘384) and Piotrowicz et al. (US ‘543) disclose the basic claimed support surface [as set forth above with respect to claim 10]; wherein Scholz et al. (US ‘384) discloses polyesters, such as polyethylene terephthalate and polyethylene terephthalate glycol [0059], and biodegradable polymers such as polylactic acid, polyethylene succinate and polyhydroxybutyrate [0059; 0061].
Scholz et al. (US ‘384) does not specifically disclose the random block copolymer of instant claim 17. However, Herrera et al. (J. Polym. Sci. A Polym. Chem. 2002, 40, 4141-4157) discloses biodegradable random clock copolyesters [abstract], such as PBAT 50/50 (poly(butylene adipate-co-terephthalate; 50/50 adipate/terephthalate); corresponding to a = b = c= 4; m:n molar ratio 0.530:0.470 {~1.13:1; 13%}) [§Synthesis; Table 1; Table 3]. Scholz et al. (US ‘384) and Herrera et al. (J. Polym. Sci. A Polym. Chem. 2002, 40, 4141-4157) are analogous art because they are concerned with a similar technical difficulty, namely biodegradable polyesters. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have combined PBAT 50/50, as taught by Herrera et al. (J. Polym. Sci. A Polym. Chem. 2002, 40, 4141-4157) in the invention of Scholz et al. (US ‘384), and would have been motivated to do so since Herrera et al. (J. Polym. Sci. A Polym. Chem. 2002, 40, 4141-4157) discloses the aromatic units in PBAT 50/50 offers improved physical and mechanical properties of the aliphatic polyester, and is biodegradable [§Introduction; §Conclusion].
Allowable Subject Matter
Claim 12 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
Claims 8 and 14-16 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include 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: While Scholz et al. (US 2012/0304384) discloses patient support systems for transferring patients [abstract], wherein the polymeric platform 102 (first 110 and second 112 surfaces) [Fig. 1; 0047] can be made from of a variety of materials [0058-0061], including polyethylene [0059], polyurethane [0059], polylactic acid [0059; 0061] and polyethylene terephthalate [0059], Scholz et al. (US ‘384) does not disclose a non-biodegradable polymer present in a concentration from 90-99.9 wt. %, the additive is present in a concentration from 0.1-10 wt. % and the additive has 30-70 wt. % of the first polymer and 30-70% of the second polymer with sufficient specificity. Such a reconstruction of the claims would be based on improper hindsight reasoning.
See attached form PTO-892.
Correspondence
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL F PEPITONE whose telephone number is (571)270-3299. The examiner can normally be reached on 7:00 AM - 3:30 PM.
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/MICHAEL F PEPITONE/Primary Examiner, Art Unit 1767
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