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
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.
Claims 1, 3-6, 8-11, and 24-28 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lalvani et al (US2007/0122590A1).
With regards to claim 1, Lalvani discloses an expanded sheet material made of a soft, pliable material such as a rubberized foam sheet depicted as having a thickness greater than a length or width (i.e., cushioning article comprising a sheet-like conformable layer, comprising a length in an x direction, a width in a y direction, and a thickness in a z-direction, such that the x-direction and y-direction co-operatively define an x-y plane) comprising a pattern of slits 12 formed by cutting, more specifically piercing (i.e., the layer defines a plurality of cuts, wherein the plurality of cuts is arrayed in a pattern, wherein the cuts are gaps, the gaps are formed without the removal of material of the layer) (Lalvani: para. [0001] and [0061]-[0064]; Fig. 1). In the interest of compact prosecution, it is noted that the term “cuts” and the phrase “formed without the removal of material from the layer” constitute product-by-process language. Such language does not limit a claimed product to the material performance of the recited steps, but rather, only the structure implied, per MPEP 2113. In the present case, the recited language specifies the formation of a gap, and Lalvani discloses such a product (i.e., other than the presence of a gap, no further structural distinction is seen). Lalvani further discloses that the expanded sheet material may be pulled along a boundary (i.e., either an x or y direction) to produce expanded slit regions 12’ (i.e., in a stressed state, when stress is applied in either the x or y direction, the article transitions from an unstressed state towards a stressed state) (Lalvani: para. [0064]-[0066]; Figs. 1-2). Lalvani further depicts the formation of a thickened portion 246 in a slightly expanded state, relative to an unexpanded flat state 244, which is caused by stretching the article (i.e., the layer expands such that it rotates out of the x-y plane in a z-directin orthogonal to the x and y directions). It is submitted that due to the expansion and flexibility of the article of Lalvani, the article of Lalvani is capable of being disposed on a human body, and due to the increased thickness when expanded, the article is able to provide improve cushioning (Lalvani: Figs. 1-2 and 46). Similarly, due to the creation of apertures during expansion, the breathability as measured by MVTR would be increased (i.e., at least in the newly formed apertures, where there is no material to block water vapor) (Lalvani: Figs. 1-2 and 46). Alternatively, with respect to each of the functional properties recited in the claim, it is noted that Lalvani discloses the same structure as claimed (more specifically, Lalvani discloses the structural features responsible for each of the claimed functional properties according to the present specification), and therefore, the structure of Lalvani would be considered capable of meeting the claimed functional properties (see above discussion).
With regards to claim 3, Lalvani depicts the expansion in the z direction as caused by the rotations of the expanded sheet material in a direction perpendicular to the length and width directions (i.e., in a stressed state, portins of the layer are orthogonal to the x-y plane) (Lalvani: Figs. 1-2 and 46).
With regards to claim 4, the cuts include a pattern of slits (Lalvani: Fig. 1).
With regards to claim 5, the cuts may be in the form of bent slits (i.e., a chevron shape) (Lalvani: para. [0088]). Alternatively, Lalvani depicts a series of non-periodic slits, some of which are depicted as having a chevron shape (Lalvani: Fig. 22).
With regards to claim 6, the sheet-like layer comprises a foam (see above discussion).
With regards to claim 8, Lalvani discloses that an exterior surface of the article (i.e., at least one of the surfaces of the x-y plane) may have an adhesive layer applied thereto (i.e., the article further comprises an adhesive layer) (Lalvani: para. [0108]).
With regards to claim 9, Lalvani discloses that the adhesive may be used to form, for example, a bandaid in the expanded state (i.e., implies that the stressed state may be maintained by the interaction of the adhesive layer and a human body) (Lalvani: para. [0108]). Alternatively, the present claim language is rather broad, and technically, the attachment of the adhesive layer to a human body, regardless of manner, aids in maintaining the stressed state, in the sense that the human body may pull on the article to create an applied stress (i.e., when applied, for example, between two hands of a human, the human may pull their hands to create an expanded state).
With regards to claim 10, Lalvani further discloses the inclusion of one or more additional expanded layers (i.e., a non-adhesive layer) (Lalvani: para. [0108]). Technically, regardless of position of the additional expanded layer, each layer of the laminate of Lalvani interacts with one another, and such interactions aid in the maintenance of a stressed state, in the sense that they may be pulled upon and transmit mechanical forces between each other (Lalvani: para. [0108]). Lalvani further discloses the article as wrapped around a roll (Lalvani: Fig. 46).
With regards to claim 11, Lalvani further discloses the inclusion of fasteners 175 b which may be used to secure the sheets together, such that both expand simultaneously when pulled (i.e., the article includes an interaction from mechanical interlocking between layers the layers including portions rotated out of the x-y plane).
With regards to claim 24, Lalvani discloses an expanded sheet material made of a soft, pliable material such as a rubberized foam sheet depicted as having a thickness greater than a length or width (i.e., cushioning article including a layer having a length in an x direction and a width in a y direction, such that the x-direction and y-direction co-operatively define an x-y plane) comprising a pattern of slits 12 formed by cutting, more specifically piercing (i.e., the layer defines a plurality of cuts) (Lalvani: para. [0001] and [0061]-[0064]; Fig. 1). In the interest of compact prosecution, it is noted that the term “cuts” constitutes product-by-process language. Such language does not limit a claimed product to the material performance of the recited steps, but rather, only the structure implied, per MPEP 2113. In the present case, the recited language specifies the formation of a gap, and Lalvani discloses such a product (i.e., other than the presence of a gap, no further structural distinction is seen). Lalvani further discloses that the expanded sheet material may be pulled along a boundary (i.e., either an x or y direction) to produce expanded slit regions 12’ (i.e., in a stressed state, when stress is applied in either the x or y direction, the article transitions from an unstressed state towards a stressed state) (Lalvani: para. [0064]-[0066]; Figs. 1-2). Lalvani further depicts the formation of a thickened portion 246 in a slightly expanded state, relative to an unexpanded flat state 244, which is caused by stretching the article (i.e., the layer expands such that it rotates out of the x-y plane in a z-direction orthogonal to the x and y directions).
With regards to claim 25, as best understood, since the structure of Lalvani is that according to the claimed invention, it is capable of providing increased cushioning to a human body in a stressed state as compared to a cushioning article in the unstressed state (see above discussion).
With regards to claim 26, as best understood, since the structure of Lalvani is that according to the claimed invention, it provides increased breathability as measured by MVTR when disposed on a human body (see above discussion).
With regards to claim 27, the portions of the layer are orthogonal to the x-y plane in a stressed state (see above discussion).
With regards to claim 28, the stressed state is maintained by mechanical interlocking between the portions rotated out of the x-y plane (see above discussion).
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.
Claims 12-13 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Lalvani et al.
With regards to claim 12, Lalvani discloses a bandage in the form of an expanded sheet material made of two connected layers of a soft, pliable material (i.e., a medical article comprising a multi-layer article comprising a first layer and a second layer in contact with the first layer) each comprising a pattern of slits 12 formed by cutting, more specifically piercing (i.e., the second layer comprises a plurality of apertures, where the apertures are prepared by forming an array of cuts in the second layer without removing material from the second layer), which are then pulled to form larger apertures (i.e. applying stress to the second layer causes the cuts to form apertures) (Lalvani: para. [0001], [0061]-[0064], and [0108]; Figs. 1 and 37). In the interest of compact prosecution, it is noted that the term “cuts” and the phrase “the gaps are formed without the removal of material from the layer” constitute product-by-process language. Such language does not limit a claimed product to the material performance of the recited steps, but rather, only the structure implied, per MPEP 2113. In the present case, the recited language specifies the formation of an aperture, and Lalvani discloses such a product (i.e., other than the presence of an aperture, no further structural distinction is seen). With regards to the phrase “wherein the first layer holds the second layer in a stressed state such that the article, when disposed on a human hody, is able to provide increased cushioning to the human body by the absorption of energy, is able to provide increased compression to the human body, or both, compared to the article in an unstressed state,” it is submitted that due to the expansion and flexibility of the article of Lalvani, the article of Lalvani is capable of being disposed on a human body, and due to the increased thickness when expanded, the article is able to provide increased absorption of energy and cushioning (Lalvani: Figs. 1-2, 37, and 46). In addition, due to the presence of fasteners, or alternatively, due to contact of the first layer with a human body in the recited function, the first layer holds the second layer in a stressed state (Lalvani: Fig. 37). Alternatively, with respect to each of the functional properties recited in the claim, it is noted that Lalvani discloses the same structure as claimed (more specifically, Lalvani discloses the structural features responsible for each of the claimed functional properties according to the present specification), and therefore, the structure of Lalvani would be considered capable of meeting the claimed functional properties (see above discussion). Regarding the limitation “wherein the second layer is transitionable from an unstressed state towards a stressed state in which: the cuts transition to form corresponding apertures; a first region of the second layer decreases in thickness; and a second region of the second layer increases in thickness,” the Lalvani notes that adjusting the thickness of sheet materials is well-known, and Lalvani cites a variety of known materials of varying thicknesses (Lalvani: para. [0002]-[0003]). Lalvani directly instructs a person of ordinary skill to adjust thickness depending on application (Lalvani: para. [0062]). In view of the foregoing, a person of ordinary skill in the art would have found it obvious to have optimized or otherwise adjusted the thicknesses of the regions of Lalvani, and therefore, the claimed features are not seen as distinguishing. In addition, as best understood, due to the change in thickness via rotation of the article of Lalvani, the second layer is transitionable as claimed.
With regards to claim 13, a person of ordinary skill in the art would have found it obvious to have further provided a third layer in contact with the second layer, as Lalvani expressly instructs adding additional expandable layers to its laminate (Lalvani: para. [0108]). Regarding the limitation “wherein the third layer is thinner than the second layer,” the Lalvani notes that adjusting the thickness of sheet materials is well-known, and Lalvani cites a variety of known materials of varying thicknesses (Lalvani: para. [0002]-[0003]). Lalvani directly instructs a person of ordinary skill to adjust thickness depending on application (Lalvani: para. [0062]). In view of the foregoing, a person of ordinary skill in the art would have found it obvious to have optimized or otherwise adjusted the thicknesses of the layers of Lalvani, and therefore, a second layer having a larger thickness than the third layer is not seen as distinguishing. Alternatively, Lalvani teaches adjusting thickness, of which there are three possible permutations – a third layer thicker than a second layer, a second layer thicker than a third layer, or third and second layers of equal thickness. Based on these permutations, a person of ordinary skill in the art would have found selection of a second layer having a larger thickness than the first layer (i.e., or equivalently, a third layer being thinner than a second layer) obvious to try.
With regards to claim 17, the application of a pulling stress causes rotation in the second layer, resulting in an increased thickness (Lalvani: Fig. 46).
With regards to claim 22, the layer includes rubber materials (i.e., elastomeric materials) such as those made of fabrics (i.e., filaments) (Lalvani: para. [0002] and [0009]).
With regards to claim 23, the layer includes rubber materials (i.e., a polymeric binder) (see above discussion).
Response to Arguments
Applicant’s arguments/amendments with respect to the claim objection and the grounds of rejection under 35 U.S.C. 112(b) have been fully considered and they are found persuasive. Therefore, the claim objection and the grounds of rejection under 35 U.S.C. 112(b) are withdrawn.
The remainder of Applicant’s arguments have been fully considered and they are not found persuasive.
Applicant points to paragraph [0113] of Lalvani, and argues that the structure of Lalvani fails to disclose portions of the layer rotating out of the x-y plane in a z direction orthogonal to the x and y directions. This argument is not found persuasive as Figure 46 of Lalvani is considered to disclose portions expanding in the z-direction (i.e., rotating out of the x-y plane). Paragraph [0113] of Lalvani appears to state that such the regions “morph variably” in an expanded (i.e., stressed) state. Also, it is noted that, regardless of Figure 46 of Lalvani, the application of stress to the structure of Lalvani still results in the stretching of apertures, which, as best understood, is the same mechanism by which the claimed invention operates. Lalvani still discloses the structural features necessary for it to function in the claimed manner.
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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/E.W./
Examiner, Art Unit 1783
/MARIA V EWALD/ Supervisory Patent Examiner, Art Unit 1783
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