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 with traverse of Group (I) and Species (A) in the reply filed on 5/28/2026 is acknowledged. The traversal is on the ground(s) that there would not be a serious burden on the Examiner to examiner all the groups and species. This is not found persuasive because the instant application is a national stage entry filed under 35 U.S.C. 371, and is therefore not subject to US restriction practice but rather subject to lack of unity practice, see MPEP 1893.03(d). It is noted that undue search burden is not a criterion in lack of unity analysis. The test is whether or not special technical features can be established.
The requirement is still deemed proper and is therefore made FINAL.
Claims 10-11 and 17 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention(s), there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 5/28/2026.
Specification
The disclosure is objected to because of the following informalities: Table 2 rightmost border has been cut-off and is not legible.
Appropriate correction is required.
The disclosure is objected to because of the following informalities: The header of the last page reads “38/42” and should only be “38”.
Appropriate correction is required.
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Drawings
The drawings are objected to because the second release liner on page 35, line 12 should be “(5’)” instead of “(5)” for consistency with the other portions of the specification.
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 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.
Claim 16 is 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 16 recites the limitation "the pressure sensitive adhesive layer" in line 2. There is insufficient antecedent basis for this limitation in the claim as a pressure sensitive adhesive layer has not been previously introduced.
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.
Claim(s) 1-5, 7-8 and 12 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Xu et al. (WO 2021105249 A1).
Regarding claim(s) 1, 5 and 8, Xu teaches a sealing device (1) (sealing element) comprising a second polymeric layer (3) between a first polymeric layer (2) and a third polymeric layer (4) (page 4, lines 12-15; Fig. 1), wherein the first second and third polymeric layers (2,3,4) each comprise at least one first polymer (P1), at least one second polymer (P2) and at least one third polymer (P3), respectively, and wherein the second polymeric layer (3) comprises at least one powdered superabsorber polymer (SAP) in an amount of at least 15 wt.-% (page 5, lines 1-9).
The second polymer (P2) is selected from, inter alia, polyvinyl chloride (PVC) (polymeric layer comprising at least one polymer (P)) (page 11, line 28 to page 12, line 6; Table 3), which is identical to that presently recited as the presently claimed PVC-based layer comprising the polymeric layer comprising the waterproofing layer (polyvinylchloride resin (P1), current claim 8).
Regarding claim 2, the second polymeric layer (3) comprises 25 to 45 wt.% of the SAP (page 10, lines 1-4).
Regarding claim 3, the at least one powdered SAP comprises a d50 particle size of not more than 100 mm (5 to 150 mm) (page 10, lines 31-33).
Regarding claim 4, second polymeric layer (3) is not tacky to the touch at 23 ℃ (page, lines 12-13).
Regarding claim 7, the second polymeric layer comprises a compatibilizer of thermoplastic polyurethane (TPU) (page 20, lines 24-32).
Regarding claim 12, the thickness of the second polymeric layer (3) is 0.1 to 1.5 mm (page 27, lines 5-10).
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.
Claim(s) 6, 9 and 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Xu et al. (WO 2021105249 A1).
Regarding claims 6 and 9, Xu does not specify the wt.-% of the polyvinyl chloride (PVC) (polymer (P2)) in the second polymeric layer (3), but does teach the proportions of the SAP is 25 to 45 wt.% as set forth above. Xu also teaches that the total amount of the SAP and the polymer (P2) comprise at last 60 wt.-% of the second polymeric layer (3) (page 10, lines 6-10), with the at least compatibilizer present at not more than 25 wt.-% (page 22, lines 15-18).
In addition, the inventive examples disclosed in Tables 3-4 demonstrate that the second polymeric layer (3) comprises the PVC in a range of 26.88 to 48.39 wt.-%, which is identical to that presently claimed (at least 15 wt.-% of PVC resin (P1)).
Indeed, it would have been obvious to one of ordinary skill in the art before the effective filing date of the present invention to include the PVC resin in the second polymeric layer (3) in an amount identical to that presently claimed towards the degree water absorption (from the SAP) and the properties provided by said PVC resin based on the prior art’s intended application as in the present invention.
Regarding claim 14, Xu teaches a layer of fiber material selected from, inter alia, synthetic organic fibers and embedded in the second polymeric layer (3) (reinforcement layer) (page 25, lines 11-24).
Claim(s) 13, 15-16 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Xu et al. (WO 2021105249 A1) in view of Borenstein (US 2005/0214496 A1).
Regarding claims 13, 15-16 and 18, Xu teaches a sealing device (1) as in the rejection of at last current claims 1 and 12 as set forth above.
Xu does not specify that the sealing element (1) is a roof or wall breather comprising an acrylic PSA layer.
However, Borenstein teaches a self-adhering barrier sheet membrane, which is permeable to water vapor (breather) (abstract), for use in wall and roof assemblies (para 0028), and comprises adhesives such as, inter alia, acrylic PSA (para 0044).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the present invention to provide the sealing element (1) of Xu with and acrylic PSA towards adhering the sealing element to a surface as in the present invention.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to FRANK D DUCHENEAUX whose telephone number is (571)270-7053. The examiner can normally be reached 8:30 PM - 5:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alicia A Chevalier can be reached at 571-272-1490. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/FRANK D DUCHENEAUX/Primary Examiner, Art Unit 1788 6/12/2026
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