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 § 112
Claims 1-15 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.
Regarding claims 5-6, 8 and 11, the claims respectively require “wherein the individual flow- resistant layers are preferably produced with a spinning beam with 30 to 80 hpi, particularly preferably with 50 hpi (claim 5);” “wherein the protective nonwoven is preferably a spunbonded nonwoven or a melt-blown nonwoven with full-surface calendering and is further preferably formed with a low flow resistance of below 500 Pa s/m, particularly preferably below 200 Pa s/m (claim 6);” “wherein the individual flow-resistant layers are preferably bonded by means of a calender having a pressing surface of 0.3 to 5%, more preferably of 0.4 to 3%, and more preferably of 0.6 to 1.2%, and wherein the individual flow-resistant layers of the flow-resistant nonwoven are bonded by the calender, preferably at spaced-apart engraved points that form a pattern (claim 8);” and “the multilayer sound absorber consists of only one starting material, preferably of PET or PBT (claim 11).” In each claim, the term “preferably” renders the claim indefinite, as it is unclear if the limitations following the term “preferably” are optional or required. For the rejection, the Examiner will interpret each instance of the term “preferably” as meaning the limitations following the term are optional.
Further regarding claim 11, it is unclear what is meant by “starting material”. Since the claim is referring to the multilayer structure as a while, does the “starting material” mean said material is a first or main component among a combination of components? Or does it mean that the starting material is the only material forming the component without any additional additives, binders or any other component of even an intestinal amount? The disclosure does not make clear what is meant by “starting material”. For the rejection, the Examiner will interpret this claim as meaning a main component of the multilayer absorber.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance:
Claim 1 recites the broad recitation “each has a flow resistance between 300 Pa s/m and 1800 00 Pa s/m”, and the claim also recites “preferably between 400 Pa s/m and 1500 Pa s/m” which is the narrower statement of the range/limitation.
Claim 2 recites the broad recitation “a difference between the flow resistances of individual flow-resistant layers arranged directly one above the other is between 300 and 1500 Pa s/m”, and the claim also recites “preferably between 500 and 1000 Pa s/m” which is the narrower statement of the range/limitation.
Claim 3 recites the broad recitation “a first individual flow-resistant layer in the direction of penetration has a flow resistance of at least 400 Pa s/m”, and the claim also recites “preferably a flow resistance between 400 and 700 Pa s/m” which is the narrower statement of the range/limitation. The claim further recites the broad recitation “second individual flow-resistant layer directly adjacent to it in the direction of penetration has a flow resistance that is at least 400 Pa s/m higher”, and the claim also recites “preferably a flow resistance that is between 500 and 1100 Pa s/m higher, and wherein the flow resistance of the second individual flow-resistant layer is preferably between 900 and 1700 Pa s/m” which is the narrower statement of the range/limitation.
Claim 4 recites the broad recitation “the individual flow-resistant layers have a weight per unit area between 20 and 100 g/m2”, and the claim also recites “preferably between 35 and 85 g/m2” which is the narrower statement of the range/limitation. The claim further recites the broad recitation “and/or the individual flow-resistant layers have a thickness between 0.1 and 1 mm”, and the claim also recites “preferably between 0.3 and 0.7 mm” which is the narrower statement of the range/limitation.
Claim 5 recites the broad recitation “wherein the individual flow- resistant layers are preferably produced with a spinning beam with 30 to 80 hpi”, and the claim also recites “particularly preferably with 50 hpi” which is the narrower statement of the range/limitation.
Claim 6 recites the broad recitation “and is further preferably formed with a low flow resistance of below 500 Pa s/m”, and the claim also recites “particularly preferably below 200 Pa s/m” which is the narrower statement of the range/limitation.
Claim 8 recites the broad recitation “wherein the individual flow-resistant layers are preferably bonded by means of a calender having a pressing surface of 0.3 to 5%”, and the claim also recites “more preferably of 0.4 to 3%, and more preferably of 0.6 to 1.2%” which is the narrower statement of the range/limitation.
Claim 10 recites the broad recitation “and/or has a weight per unit area between 200 and 1200 g/m2”, and the claim also recites “preferably between 200 and 600 g/m2” which is the narrower statement of the range/limitation.
Claim 11 recites the broad recitation “the multilayer sound absorber consists of only one starting material”, and the claim also recites “preferably of PET or PBT” which is the narrower statement of the range/limitation.
Claim 12 recites the broad recitation “the multilayer sound absorber has an overall thickness between 5 and 50 mm”, and the claim also recites “preferably between 8 and 35 mm, particularly preferably between 10 and 25 mm.” which is the narrower statement of the range/limitation.
The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 14-15 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because the "Use" claims do not purport to claim a process, machine, manufacture, or composition of matter, as required by 35 U.S.C. 101. In re Moreton, 288 F.2d 708, 709, 129 USPQ 227, 228 (CCPA 1961)("one cannot claim a new use per se, because it is not among the categories of patentable inventions specified in 35 U.S.C. § 101 ").
Claim Rejections - 35 USC § 102
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 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, 4, 6, 10-12 and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Schmelter (DE 10 2013 104715 A1 – see translation provided by Examiner).
With respect to claim 1, Schmelter teaches a multilayer sound absorber (Figure 1, #1) comprising a flow-resistant nonwoven (3/4) with at least two individual flow-resistant layers (defined by at least two of layers #5-8), wherein the individual flow-resistant layers (5-8) are arranged one above the other in a direction of penetration of the sound waves to be absorbed and each has a flow resistance between 300 Pa s/m and 1800 00 Pa s/m ([0044]), preferably between 400 Pa s/m and 1500 Pa s/m, and wherein the flow resistance of the respective individual flow-resistant layer increases from individual flow-resistant layer to individual flow-resistant layer in the direction of penetration ([0044]). Regarding the claimed flow-resistance of at least two individual flow-resistant layers (defined by at least two of layers #5-8), it is noted that layer #5, having the highest flow-resistance, can include a flow resistance of 500 Ns/m3 to 10,000 Ns/m3 (note Ns/m3 and Pa s/m are of identical values). Further, it is considered to be inherent that layer at least layer #6, and further layers 7-8, will fall within the claimed flow resistance layer range, especially when layer #5 is on the higher end of the 500 Ns/m3 to 10,000 Ns/m3.
With respect to claim 4, Schmelter teaches wherein the individual flow-resistant layers (defined by at least two of layers #5-8) have a weight per unit area between 20 and 100 g/m2, preferably between 35 and 85 g/m2, and/or the individual flow-resistant layers have a thickness between 0.1 and 1 mm ([0071]), preferably between 0.3 and 0.7 mm. It is note that layer (3/4) can have a thickness of 2 to 20 mm, which will inherently yield a thickness of individual layers #5-8 of being within the claimed range of between 0.1 and 1 mm.
With respect to claim 6, Schmelter teaches wherein the flow-resistant nonwoven (5-8) comprises a protective nonwoven (defined by outermost layer #8) against mechanical abrasion which forms a first layer of the flow-resistant nonwoven in the direction of penetration and has a lower flow resistance than the individual flow-resistant layers (defined by layers 7-5, when layer 8 is a protective layer), and wherein the protective nonwoven is preferably a spunbonded nonwoven ([0077]) or a melt-blown nonwoven with full-surface calendering and is further preferably formed with a low flow resistance of below 500 Pa s/m ([0044), particularly preferably below 200 Pa s/m. Note that layer #5, having the highest flow-resistance, can include a flow resistance as low as 500 Ns/m3 to 10,000 Pa s/m or Ns/m3, which will inherently yield a flow resistance for layer #8 below 500 Pa s/m.
With respect to claim 10, Schmelter teaches wherein the carrier nonwoven (15/17) is thermally consolidated and/or mechanically consolidated ([0025]) and/or has a weight per unit area between 200 and 1200 g/m2, preferably between 200 and 600 g/m2. It is noted that the fiber layer (3/4) and foam layer (15/17) can be adhered by the foam reaction mixture penetrating the fiber layer so as to “back-foam” the fiber layer. This is considered to be at least one of being thermally consolidated or mechanically consolidated, depending on whether or not heat is used in the foaming process. At a minimum there will be a mechanical bond between the foam and fibers, which supports being at least mechanically consolidated in the broadest reasonable interpretation (BRI).
With respect to claim 11, Schmelter teaches wherein the multilayer sound absorber consists of only one starting material, preferably of PET or PBT ([0074]).
With respect to claim 12, Schmelter teaches wherein the multilayer sound absorber has an overall thickness between 5 and 50 mm ([0071]-[0072]), preferably between 8 and 35 mm, particularly preferably between 10 and 25 mm.
With respect to claim 14, Schmelter teaches use of a multilayer sound absorber (1) according to one or more of claim 1 for sound absorption in the automotive sector ([0041]).
Claims 1, 8 and 13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wilson (2012/0155688 A1).
With respect to claim 1, Wilson teaches a multilayer sound absorber ([0011]) comprising a flow-resistant nonwoven with at least two individual flow-resistant layers ([0011] – i.e. “a plurality of open-pore porous absorption layers with increasingly high flow resistance are arranged in succession”), wherein the individual flow-resistant layers are arranged one above the other in a direction of penetration of the sound waves to be absorbed and each has a flow resistance between 300 Pa s/m and 1800 00 Pa s/m ([0040] – note the range of 50-5000 Pa s/m for the multilayer structure of Wilson will inherently yield at least two layers having a flow resistance between 300 Pa s/m and 1800 00 Pa s/m), preferably between 400 Pa s/m and 1500 Pa s/m, and wherein the flow resistance of the respective individual flow-resistant layer increases from individual flow-resistant layer to individual flow-resistant layer in the direction of penetration ([0011]).
With respect to claim 8, Wilson teaches wherein the individual flow-resistant layers of the flow-resistant nonwoven are bonded to one another only area-wise, so that cavities remain between the individual flow-resistant layers ([0068]-[0069] - i.e. a volume formed the first and second absorption layers), wherein the individual flow-resistant layers are preferably bonded by means of a calender having a pressing surface of 0.3 to 5%, more preferably of 0.4 to 3%, and more preferably of 0.6 to 1.2% (note this limitation is considered optional due to the “preferably language” as detailed in the 112b rejection above), and wherein the individual flow-resistant layers of the flow-resistant nonwoven are bonded by the calender ([0113]), preferably at spaced-apart engraved points that form a pattern (note this limitation is considered optional due to the “preferably language” as detailed in the 112b rejection above).
With respect to claim 13, Wilson teaches wherein the individual flow-resistant layers of the flow-resistant nonwoven are arranged one above the other in the direction of penetration after their manufacture and are bonded to one another only area-wise in such a way that cavities remain between the individual flow-resistant layers ([0068]-[0069], [0074] - i.e. a volume formed the first and second absorption layers).
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.
Claims 2-3, 5-7, 9, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Schmelter (DE 10 2013 104715 A1 – see translation provided by Examiner).
With respect to claim 2, Schmelter teaches multilayer sound absorber of claim 1. Schmelter further teaches wherein a difference between the flow resistances of individual flow-resistant layers (5-8) arranged directly one above the other is of an obvious, but unspecified amount.
Schmelter fails to explicitly teach wherein a difference between the flow resistances of individual flow-resistant layers arranged directly one above the other is between 300 and 1500 Pa s/m, preferably between 500 and 1000 Pa s/m.
It would have been obvious to one of ordinary skill in the before the effective filing date of the claimed invention to provide wherein a difference between the flow resistances of individual flow-resistant layers arranged directly one above the other is between 300 and 1500 Pa s/m, preferably between 500 and 1000 Pa s/m, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working range involves only routine skill in the art. In re Aller, 105 USPQ 233. In this case, selecting a specific range of a difference between the flow resistances of individual flow-resistant layers arranged directly one above would have been well known and obvious so as to acoustically tune the device, as is known in the art.
With respect to claim 3, Schmelter teaches multilayer sound absorber of claim 1. Schmelter further teaches wherein a first individual flow-resistant layer (6) in the direction of penetration has a flow resistance of at least 400 Pa s/m ([0044] – note higher resistance layer #5 can be as low as 500 Pa s/m or Ns/m3), preferably a flow resistance between 400 and 700 Pa s/m, and a second individual flow-resistant layer (5) directly adjacent to it in the direction of penetration has a flow resistance that is of an obvious, but unspecified amount higher ([0044]), and wherein the flow resistance of the second individual flow-resistant layer (5) is preferably between 900 and 1700 Pa s/m ([0044] – note higher resistance layer #5 can have an airflow resistance range between 500 and 10,000 Pa s/m or Ns/m3).
Schmelter fails to explicitly teach wherein a second individual flow-resistant layer directly adjacent to it in the direction of penetration has a flow resistance that is at least 400 Pa s/m higher, preferably a flow resistance that is between 500 and 1100 Pa s/m higher.
It would have been obvious to one of ordinary skill in the before the effective filing date of the claimed invention to provide wherein a second individual flow-resistant layer directly adjacent to it in the direction of penetration has a flow resistance that is at least 400 Pa s/m higher, preferably a flow resistance that is between 500 and 1100 Pa s/m higher, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working range involves only routine skill in the art. In re Aller, 105 USPQ 233. In this case, selecting a specific range of a difference between the flow resistances of a first and second individual flow-resistant layers as claimed would have been well known and obvious so as to acoustically tune the device, as is known in the art.
With respect to claim 5, Schmelter teaches multilayer sound absorber of claim 1. Schmelter further teaches wherein the individual flow-resistant layers (5-8) are nonwovens “can be formed mechanically or produced by known conventional aerodynamic nonwoven formation” ([0077]).
Schmelter fails to teach wherein the individual flow-resistant layers are melt-blown nonwovens, wherein at least one of the individual flow-resistant layers is produced as a melt- blown nonwoven without a carrier and without a calender, and wherein the individual flow- resistant layers are preferably produced with a spinning beam with 30 to 80 hpi, particularly preferably with 50 hpi.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide wherein the individual flow-resistant layers are melt-blown nonwovens, wherein at least one of the individual flow-resistant layers is produced as a melt- blown nonwoven without a carrier and without a calender, and wherein the individual flow- resistant layers are preferably produced with a spinning beam with 30 to 80 hpi, particularly preferably with 50 hpi, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. In this case, selecting a particular type of nonwoven would have been well known and obvious to one of ordinary skill.
Further, the method of forming a device is not germane to the issue of patentability of the device itself. Therefore, this limitation has been given little patentable weight.
With respect to claim 7, Schmelter teaches multilayer sound absorber of claim 1. Schmelter further teaches wherein the flow-resistant nonwoven comprises at least three individual flow-resistant layers (5-7), and having a difference between the flow resistances of mutually adjacent individual flow-resistant layers, wherein the between the flow resistances of mutually adjacent individual flow-resistant layers changes in an obvious, but unspecified difference (i.e. increasing, decreasing or consistent) between.
Schmelter fails to teach wherein the difference between the flow resistances of mutually adjacent individual flow-resistant layers decreases in the direction of penetration.
It would have been obvious to one of ordinary skill in the before the effective filing date of the claimed invention to provide wherein the difference between the flow resistances of mutually adjacent individual flow-resistant layers decreases in the direction of penetration, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or working range involves only routine skill in the art. In re Aller, 105 USPQ 233. In this case, providing the difference between the flow resistances of mutually adjacent individual flow-resistant layers decreases in the direction of penetration serves to acoustically tune the device, which would have been obvious and well known to one of ordinary skill.
With respect to claim 9, Schmelter teaches multilayer sound absorber of claim 1. Schmelter further teaches wherein the multilayer sound absorber (1) has a carrier nonwoven (15/17) in addition to the flow-resistant nonwoven (5-8), and wherein the carrier nonwoven (15/17) is laminated in the direction of penetration on a rear side of the flow-resistant nonwoven (5-8).
Schmelter fails to teach wherein the carrier nonwoven comprises at least first fibers having a titer of 3 to 28 dtex and second fibers having a titer of 0.5 to 3 dtex.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide wherein the carrier nonwoven comprises at least first fibers having a titer of 3 to 28 dtex and second fibers having a titer of 0.5 to 3 dtex, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. In this case, selecting a particular type of carrier nonwoven material would have been well known and obvious to one of ordinary skill.
With respect to claim 15, Schmelter teaches multilayer sound absorber of claim 1. Schmelter further teaches use of a multilayer sound absorber (1) according claim 1 for soundproofing ([0001]).
Schmelter fails to explicitly teach use of a multilayer sound absorber according to claim 1 for soundproofing in the field of building and room acoustics.
However, it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. If the prior art structure is capable of performing the intended use, then it meets the claim. Ex Parte Masham, 2 USPQ F.2d 1647 (1987). In this case, the multilayer sound absorber #1 of Schmelter could easily be used for soundproofing in any conceivable area, including in the field of building and room acoustics, where it is well known to employ fibrous and foam sound absorbing materials. In this case, the material of Schmelter is capable of absorbing sounds and being used for soundproofing in the field of building and room acoustics.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Pertinent arts of record relating to Applicant’s disclosure are disclosed in the PTO-892.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEREMY AUSTIN LUKS whose telephone number is (571)272-2707. The examiner can normally be reached Monday-Friday (9:00-5:00).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Dedei Hammond can be reached at (571) 270-7938. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JEREMY A LUKS/Primary Examiner, Art Unit 2837
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