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 .
Election/Restrictions
Applicant’s election of Group I and the species where antimicrobial, antiviral, and antifungal material is comprised of first and second particles in polymer fibers in the reply filed on December 23, 2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 9-22 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention and species, there being no allowable generic or linking claim.
Drawings
The drawings are objected to because figure1 shows five lines, but only three are identified in the legend and figure 2 shows four lines but again only three appear in the legend. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 1, 3, and 7 are objected to because of the following informalities: Claim 1 recites “re lease”, but it appears that “release” was intended. Claim 3 recites “in the in the” but it appears that a single recitation of “in the” was intended. Claim 7 recites “the average diameter of fibers of the polymeric material”. The polymeric material was not previously recited to be in fiber form in the claim. While the polymeric material is recited to compose the nonwoven top sheet, a non-woven material can be fibrous or non-fibrous. Thus the claim should provide an initial recitation of the polymeric material as fibers before reciting this added limitation.
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 1-5 and 7 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 1 recites the functional limitation “wherein the particle comprises copper compounds that release at least one of Cu+ ions and Cu++ ions upon contact with a fluid embedded in the fiber”. There is no prior recitation of a fiber, thus the composition of the fiber in which the particles are embedded is unclear.
Claim 1 recites “re lease at least one of Cu+ ions and Cu++ ions upon contact with a fluid embedded in the fiber”. It is unclear if the recitation is a functional recitation describing how particles comprising copper compounds embedded in the polymer fiber respond to the presence of fluid or if the recitation means that the material includes a fluid as a component along with polymer and pluralities of first and second particles. The former interpretation will be employed for the sake of application of prior art. Clarification is still required.
Claim 5 recites “release at least one of Cu+ ions and Cu++ ions upon contact with a fluid incorporated into the superabsorbent polymer”. It is unclear if the recitation is a functional recitation describing how the particles comprising copper compounds incorporated in the superabsorbent polymer respond to the presence of fluid or if the recitation means that the absorbent layer includes a fluid as a component along with superabsorbent polymer and pluralities of first and second particles. The former interpretation will be employed for the sake of application of prior art. Clarification is still required.
Claim 7 recites "wherein the average diameter of the particle is in the range of 5% and 10% of the average diameter of fibers of the polymeric material". It is unclear whether this statement means the average particle diameter differs from the fiber diameter by 5 to 10% or the average particle diameter is 5 to 10% of the size of the average fiber diameter. For the sake of application of prior art, the latter interpretation will be employed. Clarification is still required.
Claim 8 recites “a first average particle size range of the plurality of particle size”. It is not clear if this first average is an average of both the first and second particle size ranges or one of the two.
Claims not explicitly elaborated upon are also indefinite because they depend from an indefinite claim and do not add clarity.
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 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gabbay et al. (previously cited).
Gabbay discloses a polymer fiber comprising embedded water insoluble copper oxide particles that release Cu++ upon exposure to water (see claim 1). The particles are sized at between 0.5 and 2 microns which implies a distribution of sizes is envisioned (see claim 2). This size distribution can be viewed as two adjacent ranges that differ and do not overlap, where one size range is larger than the other. These two groups meet the limitations of a first particle and a second particle. Therefore claims 1-3 are anticipated by Gabbay et al.
Claims 1-3 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Agrawal et al. (US PGPub No. 2016/0135470) as evidenced by Vasquez (US Patent No. 5,059,581).
Agrawal et al. disclose a polymer fiber comprising embedded cuprous iodide particles that release Cu+ upon exposure to water (see abstract, paragraphs 6, 25, and 351-352). The copper iodide is a water insoluble compound (see Vasquez example 6). Whatever the numerical bounds of the size distribution of the particles, it can be viewed as two adjacent ranges that differ and do not overlap, where one size range is larger than the other. These two groups meet the limitations of a first particle and a second particle. Therefore claims 1-3 are anticipated by Agrawal et al. as evidenced by Vasquez.
Claims 1-3 and 5-6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Rieslinger (US PGPub No. 2014/0221948) as evidenced by Gabbay (AU-2005302085 – henceforth Gabbay B).
Rieslinger discloses a care or wound article composed of superabsorbent polymer fibers in which are embedded copper oxide particles (see paragraphs 23-26, 103-104 and 109-110). The copper oxide particles are copper (I) oxide and/or copper (II) oxide which are water insoluble and release Cu+ or Cu++ upon exposure to water (see paragraph 95; Gabbay B abstract and page 12 lines 7-16). Multiple web (layer) forms of the polymer are disclosed (see paragraph 107-110). They go on to detail the particles to have a size from 0.5 to 20 mm (see claims 1 and 4). Whatever the numerical bounds of the size distribution of the particles, it can be viewed as two adjacent ranges that differ and do not overlap, where one size range is larger than the other. These two groups meet the limitations of a first particle and a second particle. Therefore claims 1-3 and 5-6 are anticipated by Rieslinger as evidenced by Gabbay B.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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.
Claims 1-4 are rejected under 35 U.S.C. 103 as being unpatentable over Agrawal et al. as evidenced by Vasquez and Gabbay B.
Agrawal et al. teach antimicrobial materials composed of copper salts and copper compounds as the antimicrobial active that are combined with a polymer and formed into a final product (see abstract and paragraph 118). The copper compounds are envisioned as particles composed of copper compounds such as copper (I) iodide and copper (I) oxide which are water insoluble compounds that may be employed individually or in combination (see paragraphs 20 and 24; Gabbay B abstract and page 12 lines 7-16 and Vasquez example 6). These compounds release Cu+ upon exposure to water (see paragraphs 6 and 25). An example details a polymer fiber that incorporates particles composed predominantly of copper iodide that also include excipient components (see paragraph 351-352). They further teach pairing copper iodide particles with other antimicrobial agents (see paragraph 57). Additionally, Agrawal et al. teach including particles of differing size to control release kinetics such as pairing particles sized at about 300 nm with particles less than 30 nm or those smaller than 300 nm with those larger than 300 nm (see paragraph 47). Agrawal et al. do not detail an explicit example of each embodiment that follows from its teachings.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to also include particles with copper (I) oxide in the polymer fibers of Agarwal et al., where they are sized differently than the copper (I) iodide particles. These choices would have been obvious in light of the direction by Agarwal et al. to do so in order to control release kinetics and permit the use of the differing properties of similar antimicrobial particles. Instant claim 4 recites the copper iodide and copper oxide particles with “consisting essentially of language”. MPEP 2111.03III details that the transitional phrase "consisting essentially of" limits the scope of a claim to the specified materials or steps "and those that do not materially affect the basic and novel characteristic(s)" of the claimed invention. In re Herz, 537 F.2d 549, 551-52, 190 USPQ 461, 463 (CCPA 1976) (emphasis in original). "A ‘consisting essentially of’ claim occupies a middle ground between closed claims that are written in a ‘consisting of’ format and fully open claims that are drafted in a ‘comprising’ format." PPG Industries v. Guardian Industries, 156 F.3d 1351, 1354, 48 USPQ2d 1351, 1353-54 (Fed. Cir. 1998). See also Atlas Powder v. E.I. duPont de Nemours & Co., 750 F.2d 1569, 224 USPQ 409 (Fed. Cir. 1984); In re Janakirama-Rao, 317 F.2d 951, 137 USPQ 893 (CCPA 1963); Water Technologies Corp. vs. Calco, Ltd., 850 F.2d 660, 7 USPQ2d 1097 (Fed. Cir. 1988). For the purposes of searching for and applying prior art under 35 U.S.C. 102 and 103, absent a clear indication in the specification or claims of what the basic and novel characteristics actually are, "consisting essentially of" will be construed as equivalent to "comprising." See, e.g., PPG, 156 F.3d at 1355, 48 USPQ2d at 1355. Here no clear indication of the basic and novel characteristics of the composition are detailed, therefore the “consisting essentially of” recitation will be construed as “comprising” and the particles taught and rendered obvious by Agarwal et al. meet the limitations of instant claim 4. Therefore claims 1-4 are obvious over Agrawal et al. as evidenced by Vasquez and Gabbay B.
Claims 1-3 and 5-8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Rieslinger in view of Gabbay (US PGPub No. 2004/0224005 – henceforth - Gabbay C) as evidenced by Gabbay B.
Rieslinger discloses a care or wound article composed of superabsorbent polymer fibers in which are embedded copper oxide particles (see paragraphs 23-26, 103-104 and 109-110). The copper oxide particles are copper(I) oxide and/or copper(II) oxide which are water insoluble and release Cu+ or Cu++ upon exposure to water (see paragraph 95; Gabbay B abstract and page 12 lines 7-16). Multiple web (layer) forms of the polymer are disclosed (see paragraph 107-110). They go on to detail the particles to have a size from 0.5 to 20 mm (see claims 1 and 4). Whatever the numerical bounds of the size distribution of the particles, it can be viewed as two adjacent ranges that differ and do not overlap, where one size range is larger than the other. These two groups meet the limitations of a first particle and a second particle. They also teach the article to have a top sheet that is preferably nonwoven polymer fibers and also embedded with the copper oxide particles (see paragraph 157). The size of the particles in the topsheet relative to the polymer fibers is not detailed.
Gabbay C teach a antimicrobial polymer fibers comprising water insoluble copper oxide particles that release Cu++ (see abstract and claim 3). The particles are exemplified as copper oxide sized at between 1 and 10 microns while the fibers are exemplified at 50 to 70 microns (see paragraph 57). This yields a size range of particles relative to the fibers of 1.4% to 20% (as calculated by the examiner).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to prepared the dual layered configuration of the article of Rieslinger having both a superabsorber polymer fiber layer with embedded copper oxide particles and a polymer fiber nonwoven topsheet with embedded copper oxide particles because they suggest to do so. Sizing the fibers and particles in light of Gabbay C who also teach polymer fibers with embedded copper oxide to perform a similar antimicrobial function would have been obvious as known relative size proportions to employ. The result is a range of relative diameter proportions that embrace those instant claimed; thereby rendering the claimed range obvious. “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed.Cir. 1990)” (see MPEP 2144.05). The size of the particles in topsheet are either larger than some particles of the superabsorbent sheet or smaller than some particles of the superabsorbent sheet. Given that there are only two options, either is obvious and the embodiment where they are larger meets the limitations of instant claim 8 (see MPEP 2143(I)). Therefore claims 1-3 and 5-8 are obvious over Rieslinger in view of Gabbay C as evidenced by Gabbay B.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-3 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5 of U.S. Patent No. 8,741,197 as evidenced by Gabbay B.
Although the claims at issue are not identical, they are not patentably distinct from each other because both recite a polymer fiber in which is embedded particles of a water insoluble copper oxide. Such oxides release Cu+ or Cu++ upon contact with a fluid (see Gabbay B abstract and page 12 lines 7-16). The particles are sized at 0.5 to 4 microns. This size distribution can be viewed as two adjacent ranges that differ and do not overlap, where one size range is larger than the other. These two groups meet the limitations of a first particle and a second particle. Therefore claims 1-3 are unpatentable over claims 1-5 of U.S. Patent No. 8,741,197 as evidenced by Gabbay B.
Claims 1-4 are rejected on the ground of nonstatutory double patenting as being unpatentable over 1-5 of U.S. Patent No. 8,741,197 as evidenced by Gabbay B as applied to claims 1-3 above, and further in view of Agrawal et al. as evidenced by Vasquez.
Claims 1-5 of U.S. Patent No. 8,741,197 as evidenced by Gabbay B teach the limitations of instant claims 1-3. Copper iodide is not explicitly detailed amongst the Cu releasing particles.
Agrawal et al. teach antimicrobial materials composed of copper salts and copper compounds as the antimicrobial active that are combined with a polymer and formed into a final product (see abstract and paragraph 118). The copper compounds are envisioned as particles composed of copper compounds such as copper (I) iodide and copper (I) oxide which are water insoluble compounds that may be employed individually or in combination (see paragraphs 20 and 24; Gabbay B abstract and page 12 lines 7-16 and Vasquez example 6).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include copper iodide particles in the polymer fibers of the patented claims along with the other copper releasing particles of the patented claims in light of Agrawal et al. This modification would have been obvious because of the suggestion by Agrawal et al. In addition, both the copper particles of the patented claims and those of Agrawal et al. are useful for the same purpose. “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) (see MPEP 2144.06). Therefore claims 1-4 are obvious over claims 1-5 of U.S. Patent No. 8,741,197 in view of Agrawal et al. as evidenced by Gabbay B and Vasquez.
Claims 1-3 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2 and 4-5 of U.S. Patent No. 9,403,041.
Although the claims at issue are not identical, they are not patentably distinct from each other because both recite a polymer fiber in which is embedded particles of a water insoluble copper compound that can release Cu+ or Cu++ upon contact with a fluid. Whatever the numerical bounds of the size distribution of the particles, it can be viewed as two adjacent ranges that differ and do not overlap, where one size range is larger than the other. These two groups meet the limitations of a first particle and a second particle. Therefore claims 1-3 are unpatentable over claims 1-2 and 4-5 of U.S. Patent No. 9,403,041.
Claims 1-4 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2 and 4-5 of U.S. Patent No. 9,403,041 as applied to claims 1-3 above, and further in view of Agrawal et al. as evidenced by Gabbay B and Vasquez.
Claims 1-2 and 4-5 of U.S. Patent No. 9,403,041 teach the limitations of instant claims 1-3. Copper iodide is not explicitly detailed amongst the Cu releasing particles.
Agrawal et al. teach antimicrobial materials composed of copper salts and copper compounds as the antimicrobial active that are combined with a polymer and formed into a final product (see abstract and paragraph 118). The copper compounds are envisioned as particles composed of copper compounds such as copper (I) iodide and copper (I) oxide which are water insoluble compounds that may be employed individually or in combination (see paragraphs 20 and 24; Gabbay B abstract and page 12 lines 7-16 and Vasquez example 6).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include copper iodide particles in the polymer fibers of the patented claims along with the other copper releasing particles of the patented claims in light of Agrawal et al. This modification would have been obvious because of the suggestion by Agrawal et al. In addition, both the copper particles of the patented claims and those of Agrawal et al. are useful for the same purpose. “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) (see MPEP 2144.06). Therefore claims 1-4 are obvious over claims 1-2 and 4-5 of U.S. Patent No. 9,403,041 in view of Agrawal et al. as evidenced by Gabbay B and Vasquez.
Claims 1-3 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 11-14, and 16 of U.S. Patent No. 9,439,437 as evidenced by Gabbay B.
Although the claims at issue are not identical, they are not patentably distinct from each other because both recite a polymer fiber in which is embedded particles of a copper compound that can release Cu++ upon contact with a fluid. The patented claims’ copper compound is cuprous oxide (copper(I)oxide) or cupric oxide (copper(II)oxide) which are water insoluble (see Gabbay B abstract and page 12 lines 7-16). The particles are sized at 1 to 10 microns. This size distribution can be viewed as two adjacent ranges that differ and do not overlap, where one size range is larger than the other. These two groups meet the limitations of a first particle and a second particle. Therefore claims 1-3 are unpatentable over claims 1, 3, 11-14, and 16 of U.S. Patent No. 9,439,437 as evidenced by Gabbay B.
Claims 1-4 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3, 11-14, and 16 of U.S. Patent No. 9,439,437 as applied to claims 1-3 above, and further in view of Agrawal et al. as evidenced by Gabbay B and Vasquez.
Claims 1, 3, 11-14, and 16 of U.S. Patent No. 9,439,437 teach the limitations of instant claims 1-3. Copper iodide is not explicitly detailed amongst the Cu releasing particles.
Agrawal et al. teach antimicrobial materials composed of copper salts and copper compounds as the antimicrobial active that are combined with a polymer and formed into a final product (see abstract and paragraph 118). The copper compounds are envisioned as particles composed of copper compounds such as copper (I) iodide and copper (I) oxide which are water insoluble compounds that may be employed individually or in combination (see paragraphs 20 and 24; Gabbay B abstract and page 12 lines 7-16 and Vasquez example 6).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include copper iodide particles in the polymer fibers of the patented claims along with the other copper releasing particles of the patented claims in light of Agrawal et al. This modification would have been obvious because of the suggestion by Agrawal et al. In addition, both the copper particles of the patented claims and those of Agrawal et al. are useful for the same purpose. “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) (see MPEP 2144.06). Therefore claims 1-4 are obvious over claims 1, 3, 11-14, and 16 of U.S. Patent No. 9,439,437 in view of Agrawal et al. as evidenced by Gabbay B and Vasquez.
Claims 1-3 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 4 of U.S. Patent No. 9,931,283.
Although the claims at issue are not identical, they are not patentably distinct from each other because both recite a polymer fiber in which is embedded particles of a water insoluble copper compound that can release Cu+ or Cu++upon contact with a fluid. Whatever the numerical bounds of the size distribution of the particles, it can be viewed as two adjacent ranges that differ and do not overlap, where one size range is larger than the other. These two groups meet the limitations of a first particle and a second particle. Therefore claims 1-3 are unpatentable over claims 1 and 4 of U.S. Patent No. 9,931,283.
Claims 1-4 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 4 of U.S. Patent No. 9,931,283 as applied to claims 1-3 above, and further in view of Agrawal et al. as evidenced by Gabbay B and Vasquez.
Claims 1 and 4 of U.S. Patent No. 9,931,283 teach the limitations of instant claims 1-3. Copper iodide is not explicitly detailed amongst the Cu releasing particles.
Agrawal et al. teach antimicrobial materials composed of copper salts and copper compounds as the antimicrobial active that are combined with a polymer and formed into a final product (see abstract and paragraph 118). The copper compounds are envisioned as particles composed of copper compounds such as copper (I) iodide and copper (I) oxide which are water insoluble compounds that may be employed individually or in combination (see paragraphs 20 and 24; Gabbay B abstract and page 12 lines 7-16 and Vasquez example 6).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include copper iodide particles in the polymer fibers of the patented claims along with the other copper releasing particles of the patented claims in light of Agrawal et al. This modification would have been obvious because of the suggestion by Agrawal et al. In addition, both the copper particles of the patented claims and those of Agrawal et al. are useful for the same purpose. “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) (see MPEP 2144.06). Therefore claims 1-4 are obvious over claims 1 and 4 of U.S. Patent No. 9,931,283 in view of Agrawal et al. as evidenced by Gabbay B and Vasquez.
Claims 1-3 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 10,238,117 as evidenced by Gabbay B.
Although the claims at issue are not identical, they are not patentably distinct from each other because both recite a polymer fiber in which is embedded particles of a water insoluble copper compound that can release Cu+ upon contact with a fluid. The patented claims’ copper compound is cuprous oxide (copper(I)oxide) is water insoluble (see Gabbay B abstract and page 12 lines 7-16). The particles are sized at 0.25 to 0.65 microns. This size distribution can be viewed as two adjacent ranges that differ and do not overlap, where one size range is larger than the other. These two groups meet the limitations of a first particle and a second particle. Therefore claims 1-3 are unpatentable over claims 1-17 of U.S. Patent No. 10,238,117 as evidenced by Gabbay B.
Claims 1-4 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 10,238,117 as evidenced by Gabbay B as applied to claims 1-3 above, and further in view of Agrawal et al. as evidenced by Vasquez.
Claims 1-17 of U.S. Patent No. 10,238,117 as evidenced by Gabbay B teach the limitations of instant claims 1-3. Copper iodide is not explicitly detailed amongst the Cu releasing particles.
Agrawal et al. teach antimicrobial materials composed of copper salts and copper compounds as the antimicrobial active that are combined with a polymer and formed into a final product (see abstract and paragraph 118). The copper compounds are envisioned as particles composed of copper compounds such as copper (I) iodide and copper (I) oxide which are water insoluble compounds that may be employed individually or in combination (see paragraphs 20 and 24; Gabbay B abstract and page 12 lines 7-16 and Vasquez example 6).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include copper iodide particles in the polymer fibers of the patented claims along with the other copper releasing particles of the patented claims in light of Agrawal et al. This modification would have been obvious because of the suggestion by Agrawal et al. In addition, both the copper particles of the patented claims and those of Agrawal et al. are useful for the same purpose. “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) (see MPEP 2144.06). Therefore claims 1-4 are obvious over claims 1-17 of U.S. Patent No. 10,238,117 in view of Agrawal et al. as evidenced by Gabbay B and Vasquez.
Claims 1-3 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 21-23 of U.S. Patent No. 10,501,587.
Although the claims at issue are not identical, they are not patentably distinct from each other because both recite a polymer fiber in which is embedded particles of a water insoluble copper compound that can release Cu+ or Cu++ upon contact with a fluid. Whatever the numerical bounds of the size distribution of the particles, it can be viewed as two adjacent ranges that differ and do not overlap, where one size range is larger than the other. These two groups meet the limitations of a first particle and a second particle. Therefore claims 1-3 are unpatentable over claims 21-23 of U.S. Patent No. 10,501,587.
Claims 1-4 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 21-23 of U.S. Patent No. 10,501,587 as applied to claims 1-3 above, and further in view of Agrawal et al. as evidenced by Gabbay B and Vasquez.
Claims 21-23 of U.S. Patent No. 10,501,587 teach the limitations of instant claims 1-3. Copper iodide is not explicitly detailed amongst the Cu releasing particles.
Agrawal et al. teach antimicrobial materials composed of copper salts and copper compounds as the antimicrobial active that are combined with a polymer and formed into a final product (see abstract and paragraph 118). The copper compounds are envisioned as particles composed of copper compounds such as copper (I) iodide and copper (I) oxide which are water insoluble compounds that may be employed individually or in combination (see paragraphs 20 and 24; Gabbay B abstract and page 12 lines 7-16 and Vasquez example 6).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include copper iodide particles in the polymer fibers of the patented claims along with the other copper releasing particles of the patented claims in light of Agrawal et al. This modification would have been obvious because of the suggestion by Agrawal et al. In addition, both the copper particles of the patented claims and those of Agrawal et al. are useful for the same purpose. “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) (see MPEP 2144.06). Therefore claims 1-4 are obvious over claims 21-23 of U.S. Patent No. 10,501,587 in view of Agrawal et al. as evidenced by Gabbay B and Vasquez.
Claims 1-3 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 of U.S. Patent No. 10,717,828 in view Gabbay B.
Although the claims at issue are not identical, they are not patentably distinct from each other because both recite a polymer matrix in which is embedded particles of a water insoluble copper oxide that can release Cu++ upon contact with a fluid. The particles are sized at 0.2 to 10 microns. This size distribution can be viewed as two adjacent ranges that differ and do not overlap, where one size range is larger than the other. These two groups meet the limitations of a first particle and a second particle. The extruded shape is not detailed.
Gabbay B also teaches a polymer material in which is embedded water insoluble copper oxide that releases Cu+ or Cu++ upon contact with a fluid. They detail extruded polymer products where fibers/filaments are named (see page 1 lines 21-26).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to extrude the polymer as a fiber in light of Gabbay B as a final form of the extruded material for the copper oxide containing polymer. Therefore claims 1-3 are unpatentable over claims 1-6 of U.S. Patent No. 10,717,828 in view Gabbay B.
Claims 1-4 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 of U.S. Patent No. 10,717,828 in view Gabbay B as applied to claims 1-3 above, and further in view of Agrawal et al. as evidenced by Vasquez.
Claims 1-6 of U.S. Patent No. 10,717,828 in view Gabbay B teach the limitations of instant claims 1-3. Copper iodide is not explicitly detailed amongst the Cu releasing particles.
Agrawal et al. teach antimicrobial materials composed of copper salts and copper compounds as the antimicrobial active that are combined with a polymer and formed into a final product (see abstract and paragraph 118). The copper compounds are envisioned as particles composed of copper compounds such as copper (I) iodide and copper (I) oxide which are water insoluble compounds that may be employed individually or in combination (see paragraphs 20 and 24; Gabbay B abstract and page 12 lines 7-16 and Vasquez example 6).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include copper iodide particles in the polymer fibers of the patented claims along with the other copper releasing particles of the patented claims in light of Agrawal et al. This modification would have been obvious because of the suggestion by Agrawal et al. In addition, both the copper particles of the patented claims and those of Agrawal et al. are useful for the same purpose. “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) (see MPEP 2144.06). Therefore claims 1-4 are obvious over 1-6 of U.S. Patent No. 10,717,828 in view Gabbay B and Agrawal et al. as evidenced by Vasquez.
The following are provisional nonstatutory double patenting rejections because the patentably indistinct claims have not in fact been patented.
Claims 1-3 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of copending Application No. 18/692668 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because both recite a polymer fiber in which is embedded particles of a water insoluble copper compound that can release Cu+ or Cu++ upon contact with a fluid. The structure is an incontinence device comprising a topsheet composed of the fibers, where the particles have an average diameter in a range of 5 to 10% of the average diameter of the polymer fibers. Whatever the numerical bounds of the size distribution of the particles, it can be viewed as two adjacent ranges that differ and do not overlap, where one size range is larger than the other. These two groups meet the limitations of a first particle and a second particle. Therefore claims 1-3 are unpatentable over claims 1-15 of copending Application No. 18/692668.
Claims 1-3 and 5-8 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of copending Application No. 18/692668 as applied to claims 1-3 above, and further in view of Rieslinger.
Claims 1-15 of copending Application No. 18/692668 teach the limitations of instant claims 1-3 and claim 7 in regard to the non-woven topsheet in its incontinence device. A superabsorbent layer is not detailed.
Rieslinger discloses a care or wound article composed of superabsorbent polymer fibers in which are embedded copper oxide particles (see paragraphs 23-26, 103-104 and 109-110). The copper oxide particles are copper(I) oxide and/or copper(II) oxide which are water insoluble and that release Cu+ or Cu++ upon exposure to water (see paragraph 95; Gabbay B abstract and page 12 lines 7-16). Multiple web (layer) forms of the polymer are disclosed (see paragraph 107-110). The article also has a top sheet that is preferably nonwoven and embedded with the copper oxide particles (see paragraph 157).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to prepare an incontinence device of the copending claims that also includes a superabsorbent polymer layer composed of polymer fibers that embed water insoluble copper compounds, in light of Rieslinger who teach such a pairing of antimicrobial components to be beneficial (e.g., providing absorbency and antimicrobial properties to the device). The modification is obvious as the application of the same technique to a similar product in order to yield the same improvement. The size of the particles in topsheet are either larger than some particles of the superabsorbent sheet or smaller than some particles of the superabsorbent sheet. Given that there are only two options, either is obvious and the embodiment where they are larger meets the limitations of instant claim 8 (see MPEP 2143(I)). Therefore claims 1-3 and 5-8 are obvious over claims 1-15 of copending Application No. 18/692668 in view of Rieslinger.
Claims 1-4 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of copending Application No. 18/692668 as applied to claims 1-3 above, and further in view of Agrawal et al. as evidenced by Gabbay B and Vasquez.
Claims 1-15 of copending Application No. 18/692668 teach the limitations of instant claims 1-3. Copper iodide is not explicitly detailed amongst the Cu releasing particles.
Agrawal et al. teach antimicrobial materials composed of copper salts and copper compounds as the antimicrobial active that are combined with a polymer and formed into a final product (see abstract and paragraph 118). The copper compounds are envisioned as particles composed of copper compounds such as copper (I) iodide and copper (I) oxide which are water insoluble compounds that may be employed individually or in combination (see paragraphs 20 and 24; Gabbay B abstract and page 12 lines 7-16 and Vasquez example 6).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include copper iodide particles in the polymer fibers of the copending claims along with the other copper releasing particles of the copending claims in light of Agrawal et al. This modification would have been obvious because of the suggestion by Agrawal et al. In addition, both the copper particles of the copending claims and those of Agrawal et al. are useful for the same purpose. “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) (see MPEP 2144.06). Therefore claims 1-4 are obvious over claims 1-15 of copending Application No. 18/692668 in view of Agrawal et al. as evidenced by Gabbay B and Vasquez.
Claims 1-4 are rejected on the ground of provisional nonstatutory double patenting as being unpatentable over claims 1-12 of copending Application No. 19/155103 as evidenced by Gabbay B.
Although the claims at issue are not identical, they are not patentably distinct from each other because both recite a polymer fiber in which is embedded particles of a water insoluble metal compounds that may be copper iodide and/or coper oxides that include cuprous oxide and cupric oxide. The copper (I) oxide (cuprous oxide) and copper(II) oxide (cupric oxide) release Cu+ or Cu++ upon exposure to water (see Gabbay B abstract and page 12 lines 7-16). that can release Cu++ upon contact with a fluid. The particles are sized at 0.2 to 10 microns. Whatever the numerical bounds of the size distribution of the particles, it can be viewed as two adjacent ranges that differ and do not overlap, where one size range is larger than the other. These two groups meet the limitations of a first particle and a second particle. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include cuprous oxide particles or cupric oxide particles alone or in combination with copper iodide particles in the fibers of the copending claims because they are recited options for the water insoluble metal powder individually or in combination. Therefore claims 1-4 are unpatentable over claims 1-12 of copending Application No. 19/155103 as evidenced by Gabbay B.
Claims 1-4 are rejected on the ground of provisional nonstatutory double patenting as being unpatentable over claims 7-15, 22-25, and 35 of copending Application No. 19/155099 as evidenced by Gabbay B.
Although the claims at issue are not identical, they are not patentably distinct from each other because both recite a polymer fiber in which is embedded particles of a water insoluble antimicrobial metal compounds that may be copper iodide and/or coper oxides. The copper (I) oxide (cuprous oxide) and copper(II) oxide (cupric oxide) release Cu+ or Cu++ upon exposure to water (see Gabbay B abstract and page 12 lines 7-16). that can release Cu++ upon contact with a fluid. The particles are sized at 0.2 to 10 microns. Whatever the numerical bounds of the size distribution of the particles, it can be viewed as two adjacent ranges that differ and do not overlap, where one size range is larger than the other. These two groups meet the limitations of a first particle and a second particle. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include cuprous oxide particles or cupric oxide particles alone or in combination with copper iodide particles in the fibers of the copending claims because they are recited options for the antimicrobial water insoluble metal powder individually or in combination. Therefore claims 1-4 are unpatentable over claims 7-15, 22-25, and 35 of copending Application No. 19/155099 as evidenced by Gabbay B.
Conclusion
No claim is allowed.
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/CARALYNNE E HELM/ Examiner, Art Unit 1615