DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 16-19, 24, 27, 38 and 40 are rejected under 35 U.S.C. 103 as being unpatentable over Settels, US 2022/0396953 in view of Wambaugh et al., US 2019/0379319.
Regarding claim 16:
Settels discloses a panel (1) comprising a core (2), an upper arrangement (2a) and a lower arrangement (2b), wherein the upper and lower arrangements are attached to the core on opposite sides of the core wherein the arrangements may be constructed via lamination, wherein the core and the upper and lower arrangements (refer to Figs. 7 and 8, the core is the middle portion and the upper and lower arrangements are the top and bottom portions) comprise a mineral-based layer (para. 0029) comprising a polymer compound and magnesium oxide in the amount of 25 to 65% (para. 0029, the disclosed range overlaps with the claimed range),
wherein the panel is a floor panel comprising a front and a rear side, wherein the front side is a visible side.
Specifically regarding “attached… by an adhesive or by lamination”, the determination of patentability in a product-by-process claim is based on the product itself, even though the claim may be limited and defined by the process. That is, the product in such a claim is unpatentable if it is the same as or obvious from the product of the prior art, even if the prior product was made by a different process.
Settels does not expressly disclose the mineral-based layer comprising a polymer compound that is specifically acrylic.
Wambaugh discloses a panel comprising a mineral-based layer that comprises an acrylic (para. 0043) and magnesium oxide in the amount of 25 to 65 wt% (para. 0014 – magnesium oxide powder in the range of 29 to 40% overlapping with the 25 to 65%).
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill to substitute the core material and upper and lower arrangement materials or specifically the acrylic material of Wambaugh for the core/thermoplastic of Settels in order to provide a stabilized cementitious material with increased stability in environments with high temperatures and high moisture (para. 0019). Further, Settels suggests wherein various combinations of materials and various polymers may be used in the core (para. 0042).
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Regarding claims 17-18 and 38:
Wambaugh discloses wherein the polymer is an amount that falls between 0.1 and 5% (para. 0043). The percentage overlaps with 5 to 10% such that the claimed amount is reasonably suggested.
Regarding claim 19:
Both Settels and Wambaugh discloses wherein the mineral-based layer further comprises magnesium chloride (para. 0040 of Settels and the abstract of Wambaugh).
Regarding claim 24
Settels and Wambaugh disclose wherein one of the mineral based layers comprises reinforcement fibers (para. 0039 of Settels and para. 0076 of Wambaugh) configured to increase the tensile strength of the layer.
Regarding claim 27:
Settels discloses wherein a panel comprises a mechanical locking system at respective opposite first and second edges for assembling a first panel in an assembled position with an adjacent second panel by means of a folding displacement and/or a vertical displacement of the adjacent panels; wherein immediately juxtaposed upper edge portions of the first edge of the first panel and the second edge of the second panel in the assembled position form a vertical plane; the first edge comprising a locking strip projecting beyond the vertical plane and a locking element projecting from the locking strip; the second edge comprising a downwards open locking groove configured to receive the locking element by means of said displacement for horizontal locking of the adjacent panels, wherein a first pair of horizontal locking surfaces comprises a first locking surface provided by the locking element and a second locking surface provided by the locking groove (refer to Figs 1-10).
Regarding claim 40:
Settels discloses wherein the upper and lower arrangements are directly attached to the core (there is no intermediate material therebetween).
Claims 21 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Settels, US 2022/0396953 in view of Wambaugh et al., US 2019/0379319 further in view of Ehrat et al., US 5,508,082.
Regarding claims 21 and 22:
Settels discloses wherein the mineral-based layer further comprises a wood fiber binding agent (para. 0039) but does not expressly disclose the amount of 5 to 25wt%.
Ehrat discloses a panel having a core with a binding agent in the range of 6 to 10 wt% (44th paragraph) overlapping the claimed range of 5 to 25 wt%.
Before the effective filing date of the invention, it would have been obvious to a person of ordinary skill to add the binding agent in the range as suggested by Ehrat in order to provide an easily shapeable panel.
Claims 20 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Settels, US 2022/0396953 in view of Wambaugh et al., US 2019/0379319 further in view of Josefsson et al., US 2020/0308846.
Regarding claims 20 and 23:
Settels and Wambaugh do not, though Josefsson discloses a panel having a filler in an amount of 40-60 wt% and additive in an amount of 0 to 5 wt% (both in para. 0211).
Before the effective filing date of the invention, it would have been obvious to a PHOSITA to use fillers and additives as suggested by Josefsson in the panel of Settels in order to vary hardness and softness and to add color, stabilizer, etc.
In the case where the claimed range “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)
Claim 41 is rejected under 35 U.S.C. 103 as being unpatentable over Settels, US 2022/0396953 in view of Wambaugh et al., US 2019/0379319 as applied to claim 16, further in view of Baert et al., US 2020/0123788.
Regarding claim 41:
Settels does not, though Baert discloses wherein a panel has a density of the upper layer being larger than a density of a core (para. 0043 of Baert).
Before the effective filing date of the invention, it would have been obvious to a PHOSITA to provide the relative densities taught by Baert to the panel of Settels in order to provide rigidity to the panel (para. 0043).
Allowable Subject Matter
Claims 28-37 and 39 are allowable.
Claims 25 and 26 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicant's arguments filed 9/9/26 have been fully considered but they are not persuasive.
In the interview held on 8/13/26, the examiner noted that lamination is directed to a process step such that if the product is anticipated, the limitation would be anticipated irrespective of the process by which it is made. For example, a 3D printed homogenous panel could have been made of individually applied layers, laminated or molded. As such, the claims at issue remain rejected. Regarding claim 40, “directly attached”, the same logic applies regarding product by process.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRENT W HERRING whose telephone number is (571)270-3661. The examiner can normally be reached Monday-Thursday 7:30a-6:00p MT.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian Glessner can be reached at (571)272-6754. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRENT W HERRING/Primary Examiner, Art Unit 3633
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