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 .
Applicant states that this application is a continuation of the prior-filed applications. A continuation application cannot include new matter. Applicant is required to delete the benefit claim or change the relationship (continuation) to continuation-in-part because this application contains the following matter not disclosed in the prior-filed application: In Claim 16, applicant recite that the composition of claim 1 “further comprises” a heat barrier, and in Claim 17, applicant recite that the fabric of claim 16 “comprises” the heat barrier. However, in the parent application 16/975,543, for example, there is no support for the composition of claim 1 (comprising a fabric and an oxygen generating material impregnated in the fabric) “further comprising” (or “comprising”) a heat barrier. There is support (see [0015] and [0027] of the parent application 16/975,543) only for the mask materials forming a heat barrier or the mask materials functioning as heat barriers.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1, 2, 4-8, 12, 16-18 and 26 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Carter et al (US 2015/0093429 A1) (with Chen (US 2003/0099674 A1), which is being cited here merely to support the Examiner’s assertion that Carter’s Pluronic F68 is a polyoxamer).
Carter teaches ([0008], [0089] and [0114]) a method of making non-woven, demineralized bone fiber sheets, which may be impregnated by an oxygen-generating compound, such as calcium peroxide (in [0089], Carter states that “the bone fibers are formed using a wet lay technique as is well understood by those skilled in the art of nonwoven or paper manufacture and described in . . . the entire contents of all of which are herein incorporated by reference”). Specifically, in Example 8, Carter teaches a method of making (using a wet lay technique) non-woven, demineralized bone fiber sheets comprising (i) Pluronic F68 (which is a trade name for polyoxamer as evidenced by Chen ([0088]), (ii) calcium peroxide (as the oxygen generating compound) and (iii) PFTBA (perfluorotributylamine). Carter’s Pluronic F68 (polyoxamer) teaches instant binding agent (see [0041] of present specification). Thus, Carter teaches instant composition comprising non-woven fabric impregnated with an oxygen generating material (calcium peroxide) and a binding agent, and such composition would inherently be capable of being used for healing or improving skin as instantly recited.
Thus, Carter teaches instant claims 1, 2 and 4-8 (as to instant claim 5, the claim language does not require that the fabric of claim 4 is a woven material. It only requires that if the fabric of claim 4 is a woven material, then the woven material has to be knitted or has to be a foam; as to instant claim 7, the claim language does not require that the nonwoven material of claim 6 is a polymer. It only requires that if the nonwoven material of claim 6 is a polymer, then the polymer has to be a polyester).
With respect to instant claims 16-18, according to [0027] of present specification, Carter’s non-woven, demineralized bone fiber sheet (impregnated with oxygen-generating compound) can function as a heat barrier between a formulation applied to the skin and the environment to reduce evaporation and increase retention of the heat. Thus, Carter teaches instant claims 16-18.
With respect to instant claims 12 and 26, Carter teaches (see Fig.21, [0040] and [0099]) that its non-woven, demineralized bone fiber sheet (which can function as a heat barrier) can be made into a rectangular shape (see Fig.21) having length and width anywhere from about 2 inches to about 8 inches. Carter even teaches ([0102]) that holes can be made into the sheet. Thus, it is the Examiner’s position that Carter’s non-woven, demineralized bone fiber sheet (which can also function as a heat barrier) would inherently be capable of forming a face mask. Thus, Carter teaches instant claims 12 and 26.
Claim(s) 1, 4-6, 8, 10, 12, 16-18, 24 and 26-28 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by McHugh et al (US 2016/0228380 A1).
McHugh teaches (abstract, [0048] and [0049]) methods for treating (healing or improving) wounds and burns comprising the step of administering to the wound or burn a bandage comprising a peroxide compound (instant oxygen generating material) impregnated into a carrier material, which can be a synthetic polymer. Specifically, in Example 1, McHugh teaches hydrogen peroxide (instant oxygen generating material) impregnated into a non-woven cellulose acetate mat (instant nonwoven material which is a polymer) to be used as a bandage for continuous delivery of oxygen in wound-care. Thus, McHugh teaches instant composition comprising non-woven fabric (formed of a synthetic polymer) impregnated with an oxygen generating material. Thus, McHugh teaches instant claims 1, 4-6, 27 and 28.
With respect to instant claim 8, McHugh teaches ([0031]) that its peroxide compound can include calcium peroxide, magnesium peroxide, sodium peroxide or sodium percarbonate. Thus, McHugh teaches instant claim 8.
With respect to instant claims 16-18, according to [0027] of present specification, McHugh’s non-woven cellulose acetate mat (instant non-woven fabric formed of a polymer) impregnated with an oxygen generating material can function as a heat barrier between a formulation applied to the skin and the environment to reduce evaporation and increase retention of the heat. Thus, McHugh teaches instant claims 16-18.
With respect to instant claims 10 and 24, McHugh teaches ([0007], Fig.18 and [0041]) that an oxygen-impermeable membrane (instant oxygen barrier backing layer) is on the other side of the carrier material (such as the non-woven cellulose acetate mat of McHugh’s Example 1 – instant non-woven fabric which can also function as a heat barrier). Thus, McHugh teaches instant claims 10 and 24.
With respect to instant claims 12 and 26, as discussed above, McHugh teaches hydrogen peroxide (instant oxygen generating material) impregnated into a non-woven cellulose acetate mat to be used for continuously delivering oxygen to a wound. Since McHugh teaches instant non-woven fabric comprising a polymer impregnated with instant oxygen generating material, it is the Examiner’s position that McHugh’s non-woven cellulose acetate mat (instant non-woven fabric which can also function as a heat barrier) impregnated with hydrogen peroxide would inherently be capable of forming a face mask. Thus, McHugh teaches instant claims 12 and 26.
Claim(s) 1, 2, 4-12, 16-18, 24 and 26-28 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Carter et al (US 11,045,499 B2, which is equivalent to US 11,622,979 B2, US 12,419,916 B2 and US 2025/0381232 A1).
The applied reference has a common assignee with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
Carter teaches (claim 1 and col.4, lines 49-54) a method of producing a composition for treating (i.e., healing or improving) wounds, which comprises preparing a sheet of demineralized bone fibers and then coating the sheet with an oxygen generating material and/or an oxygen carrier. The composition furthermore comprises a film layer on the surface of the composition that does not contact the wound. Carter furthermore teaches (col.13, lines 55-61) that the sheet of demineralized bone fibers is prepared using a wet lay technique and heat treatment for cohesion (thus, Carter’s sheet is non-woven since applicant uses the same process – see [0092] and [0117] of present specification). Carter also teaches (claim 14) a method of treating a soft-tissue wound on a subject which comprises administering its composition to the wound on the subject. Therefore, Carter teaches instant claim 1, 4-7, 27 and 28 (the claim language of instant claim 5 does not require that the fabric of claim 4 is a woven material. It only requires that if the fabric of claim 4 is a woven material, then the woven material has to be knitted or has to be a foam; the claim language of instant claim 7 does not require that the nonwoven material of claim 6 is a polymer. It only requires that if the nonwoven material of claim 6 is a polymer, then the polymer has to be a polyester).
With respect to instant claim 2, Carter teaches (col.5, lines 10-16) that its oxygen generating material and/or the perfluorocarbon is dispersed in a dispersing agent such as polyoxamers (instant binding agent of claim 2 – see [0041] of present specification). Thus, Carter teaches instant claim 2.
With respect to instant claim 8, Carter teaches (claims 3 and 4) that as its oxygen generating material, calcium peroxide, magnesium peroxide, sodium percarbonate or sodium peroxide is used. Thus, carter teaches instant claim 8.
With respect to instant claim 9, Carter teaches (claims 2 and 6) that its composition can further comprise polymeric fibers made from resorbable polymers listed in its claim 6, and those resorbable polymers teach instant resorbable polymer that encapsulates the oxygen generating material (see [0043] of present specification). Thus, Carter teaches instant claim 9.
With respect to instant claim 11, Carter teaches (col.4, lines 25-30) that its composition includes a bioactive agent such as anti-inflammatory drugs (instant calming agents of claim 11). Thus, Carter teaches instant claim 11.
With respect to instant claims 16-18, according to [0027] of present specification, Carter’s non-woven, demineralized bone fiber sheet (impregnated with oxygen-generating compound) can function as a heat barrier between a formulation applied to the skin and the environment to reduce evaporation and increase retention of the heat. Thus, Carter teaches instant claims 16-18.
With respect to instant claims 10 and 24, as discussed above, in its claim 1, Carter teaches that its composition furthermore comprises a film layer on the surface of the composition that does not contact the wound. Carter furthermore teaches (col.2, lines 50-53) that such film layer can act as a barrier to prevent oxygen loss into the atmosphere. Thus, Carter teaches instant claims 10 and 24.
With respect to instant claims 12 and 26, Carter teaches (col.5, lines 44-48) that its sheet of demineralized bone fibers has about 4 mm thick and can be cut to the desired size. Since Carter’s sheet of demineralized bone fibers coated with an oxygen generating material teaches instant non-woven fabric comprising demineralized bone fibers impregnated with instant oxygen generating material, it is the Examiner’s position that Carter’s sheet of demineralized bone fibers (which can also function as a heat barrier) coated with an oxygen generating material would inherently be capable of forming a face mask as instantly recited. Thus, Carter teaches instant claims 12 and 26.
Claim Rejections - 35 USC § 103
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.
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 9 is rejected under 35 U.S.C. 103 as being unpatentable over Carter et al (US 2015/0093429 A1).
Carter teaches ([0107], [0114]-[0115]) that a biocompatible material can be added (as an additive) to its bone fiber composition, and among examples of such biocompatible material, Carter teaches collagen (instant resorbable polymer that encapsulates the oxygen generating material according to [0043] of present specification). Based on Carter’s teaching, it would have been obvious to one skilled in the art to further add collagens into Carter’s non-woven, demineralized bone fiber sheet with a reasonable expectation of success. Thus, Carter renders obvious instant claim 9.
Claim 10 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Carter et al (US 2015/0093429 A1) in view of McHugh et al (US 2016/0228380 A1).
Carter does not explicitly teach instant oxygen barrier backing layer attached to the non-woven fabric. However, McHugh teaches ([0007], Fig.18 and [0041]) an oxygen-impermeable membrane (instant oxygen barrier backing layer) that is attached onto the carrier material (such as non-woven fabric formed of a synthetic polymer) impregnated with oxygen generating material. It would be obvious to one skilled in the art to have an oxygen-impermeable membrane (instant oxygen barrier backing layer) attached onto Carter’s non-woven fabric formed of demineralized bone fibers (which can function as a heat barrier) with a reasonable expectation of preventing oxygen loss into the atmosphere. Thus, Carter in view of McHugh renders obvious instant claims 10 and 24.
7. Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Carter et al (US 2015/0093429 A1) in view of Drapeau et al (US 2014/0212471 A1).
Carter teaches ([0107] and [0113]) that excipients and additives can be added to its bone fiber composition, and among the examples of excipients, Carter teaches derivatives of hyaluronic acid ([0113]). Although Carter does not explicitly teach instant sodium hyaluronate of claims 11 and 25, as evidenced by Drapeau ([0001], [0095] and [0097]), sodium hyaluronate is a well-known compound that is used as a flow additive (to modify the viscosity of the composition) in a bone fiber composition. Since Carter already teaches that derivatives of hyaluronic acid can be used as excipient in its bone fiber composition, it would have been obvious to one skilled in the art to use sodium hyaluronate as one of Carter’s excipient with a reasonable expectation of modifying the viscosity of its bone fiber composition. Therefore, Carter in view of Drapeau renders obvious instant claim 11.
Claims 2, 9 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over McHugh et al (US 2016/0228380 A1) (with Jin et al (US 2021/0280946 A1), which is being cited here merely to support the Examiner’s assertion that McHugh’s polymethyl methacrylate is a type of polyacrylate).
With respect to instant claims 2 and 9, McHugh teaches ([0038] and claim 4) that its impregnated carrier material is coated with one or more of polymethyl methacrylate, poly(vinylacetate), PLGA copolymer or PLA homopolymer in order to reduce the loss of the active ingredient impregnated into the carrier material. It would have been obvious to one skilled in the art to have McHugh’s impregnated carrier material coated with polymethyl methacrylate and PLGA copolymer with a reasonable expectation of reducing the loss of the active ingredient impregnated into the carrier material. Polymethyl methacrylate is a type of polyacrylate, as evidenced by Jin ([0003]), and thus it teaches instant binding agent of claim 2 (see [0041] of present specification), and PLGA copolymer teaches instant resorbable polymer of claim 9 that encapsulates the oxygen generating material (see [0043] of present specification). Thus, McHugh renders obvious instant claims 2 and 9.
With respect to instant claim 11, McHugh teaches ([0047]) that additional compounds, which examples include anti-inflammatants (instant calming agent), can be impregnated into the carrier material to act in concert with the oxygen for wound or burn treatment. It would have been obvious to one skilled in the art to impregnate anti-inflammatants into McHugh’s carrier material with a reasonable expectation that such material would act in concert with the oxygen for wound or burn treatment. Thus, McHugh renders obvious instant claim 11.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over McHugh et al (US 2016/0228380 A1) in view of Yang et al (US 2013/0244028 A1).
As already discussed above, McHugh teaches (abstract, [0048], [0049] and Example 1) a non-woven cellulose acetate mat (impregnated with hydrogen peroxide – instant oxygen generating material) to be used as a bandage for continuous delivery of oxygen in wound-care. Although McHugh does not teach instant polyester of claim 7, as evidenced by Yang et al ([0041]), it is well known in the art that cellulose acetate and polyester are equivalently or interchangeably used as carrier materials (or support materials) for bandages. It would be obvious to use non-woven polyester (impregnated with hydrogen peroxide) in McHugh as the carrier material or support material for the bandage for continuous delivery of oxygen in wound-care. Thus, McHugh in view of Yang renders obvious instant claim 7.
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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1, 2, 4-12, 16-18, 24 and 26-28 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 5, 6, 9, 10 and 14 of U.S. Patent No. 11,045,499 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because of the following reason:
Claim 1 of Pat.’499 teaches the following
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Thus, claim 1 of Pat.’499 teaches instant composition (of claim 1) for healing or improving skin comprising a fabric and an oxygen generating material impregnated in the fabric, and such composition would inherently be capable of forming a face mask. Claims 2 and 5 of Pat.’499 teach that its composition of claim 1 can further comprise polymeric fibers made from non-resorbable polymers, such as poly(ethyleneoxide), poly(vinylpyrrolidone) and poly(vinylalcohol), all of which are instant binding agents of claim 2. Claims 2 and 6 of Pat.’499 teach that the composition of its claim 1 can further comprise polymeric fibers made from resorbable polymers as listed in its claim 6. Furthermore, claim 14 of Pat.’499 teaches a method of treating a soft-tissue wound on a subject, the method comprising administering the composition of claim 1 to the wound on the subject. Claim 3 of Pat.’499 teaches that as the oxygen generating material, calcium peroxide, magnesium peroxide, sodium percarbonate or sodium peroxide can be used. Claim 9 of Pat.’499 teaches that the film layer of its claim 1 can be made of ethylene vinyl alcohol (instant oxygen barrier backing layer – see [0034] of present specification). Claim 10 of Pat.’499 teaches that the composition of its claim 1 further comprise a bioactive agent such as anti-inflammatory drugs (instant calming agent). Thus, claims 1-3, 5, 6, 9, 10 and 14 Pat.’499 render obvious instant claims 1, 2, 8-12, 27 and 28.
With respect to instant claims 4-7, as shown above, claim 1 of Pat.’499 teaches that its composition comprises demineralized bone fibers derived from allogeneic or xenogenic cortical bone. Present specification ([0038]) states that nonwoven material is formed from demineralized bone fibers. Thus, claim 1 of Pat.’499 renders obvious instant claims 4-7 (the claim language of instant claim 5 does not require that the fabric of claim 4 is a woven material. It only requires that if the fabric of claim 4 is a woven material, then the woven material has to be knitted or has to be a foam; the claim language of instant claim 7 does not require that the nonwoven material of claim 6 is a polymer. It only requires that if the nonwoven material of claim 6 is a polymer, then the polymer has to be a polyester).
With respect to instant claims 16-18, 24 and 26, [0027] of present specification states that non-woven, demineralized bone fiber sheet (impregnated with oxygen-generating compound) can function as a heat barrier between a formulation applied to the skin and the environment to reduce evaporation and increase retention of the heat. Thus, claims 1 and 9 and of Pat.’499 render obvious instant claims 16-18, 24 and 26.
Claims 1, 2, 4-12, 16-18, 24 and 26-28 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2, 4, 6, 7, 10 and 11 of U.S. Patent No. 11,622,979 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because of the following reason:
Claim 1 of Pat.’979 teaches the following:
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Thus, claim 1 of Pat.’979 teaches instant composition (of claim 1) for healing or improving (treating) skin (wound) comprising a fabric (non-woven demineralized bone fibers) and an oxygen generating material impregnated in the fabric, and such composition would inherently be capable of forming a face mask. Claim 2 of Pat.’979 teaches that the oxygen generating materials can be calcium peroxide, magnesium peroxide, sodium percarbonate, sodium peroxide or mixtures thereof. Claim 4 of Pat.’979 teaches that the composition of its claim 1 further comprises polymeric fibers made from resorbable polymers (chosen from its claim 7 – instant resorbable polymer of claim 9 that encapsulates the oxygen generating material) and/or non-resorbable polymers (chosen from its claim 6, such as poly(ethyleneoxide), poly(vinylpyrrolidone) and poly(vinylalcohol) – instant binding agents of claim 2). Claim 11 of Pat.’979 teaches that the composition of its claim 1 further comprises anti-inflammatory drugs (instant calming agents). Claim 10 of Pat.’979 teaches that the film layer of its claim 1 can be made of ethylene vinyl alcohol (instant oxygen barrier backing layer – see [0034] of present specification). Thus, claims 1, 2, 4, 6, 7, 10 and 11 of Pat.’979 render obvious instant claims 1, 2, 4-12, 27 and 28.
With respect to instant claims 16-18, 24 and 26, [0027] of present specification states that non-woven, demineralized bone fiber sheet (impregnated with oxygen-generating compound) can function as a heat barrier between a formulation applied to the skin and the environment to reduce evaporation and increase retention of the heat. Thus, claim 1 of Pat.’979 renders obvious instant claims 16-18, 24 and 26.
Claims 1, 4-8, 10-12, 16-18, 24 and 26-28 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2 and 6-8 of U.S. Patent No. 12,419,916 B2 (with CHAKRAVARTY et al (US 2017/0313021 A1) which is being cited here merely to support the Examiner’s assertion that polylactide is a non-woven fabric of an aliphatic polyester). Although the claims at issue are not identical, they are not patentably distinct from each other because of the following reason:
Claim 1 of Pat.’916 teaches the following:
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Thus, claim 1 of Pat.’916 teaches instant composition for healing or improving (treating) skin (soft tissue wound) comprising a fabric (polylactide fibers) and an oxygen generating material impregnated in the fabric, and such composition would inherently be capable of forming a face mask. As evidenced by CHAKRAVARTY ([0110]), polylactide is a non-woven fabric of an aliphatic polyester, and such material can function as a heat barrier to reduce evaporation and increase retention of the heat (see [0027] of present specification). Claim 2 of Pat.’916 teaches that the oxygen generating material can be calcium peroxide, magnesium peroxide, sodium percarbonate or sodium peroxide. Claim 6 of Pat.’916 teaches that the composition of its claim 1 can further comprise anti-inflammatory drugs (instant calming agent). Claim 7 of Pat.’916 teaches that the composition of its claim 1 further comprises a film layer coated on the polymeric fibers, and such film layer teaches instant oxygen barrier backing layer attached to the fabric. Claim 8 of Pat.’916 teaches a method of treating a soft-tissue wound on a subject, the method comprising: administering the fiber composition of claim 1 to the wound on the subject. Thus, claims 1, 2 and 6-8 render obvious instant claims 1, 4-8, 10-12, 16-18, 24 and 26-28.
Claims 1, 4-6, 8, 10-12, 16-18, 24 and 26-28 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 20, 25, 30, 31 and 34 of copending Application No. 19/313,529 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because of the following reason:
Claim 20 of App.’529 teaches the following:
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Present specification ([0036]) states that suitable nonwovens may be fabricated using polypropylene or polyethylene. Thus, claim 20 of App.’529 teaches instant composition for healing or improving (treating) skin (soft tissue wound) comprising a non-woven fabric and an oxygen generating material impregnated in the fabric, and such composition would inherently be capable of forming a face mask. Also, the non-woven fabric formed of polypropylene or polyethylene can function as a heat barrier to reduce evaporation and increase retention of the heat (see [0027] of present specification). Claim 25 of App.’529 teaches that the oxygen generating material can be calcium peroxide, magnesium peroxide, sodium percarbonate, or sodium peroxide. Claim 30 of App.’529 teaches that the composition of its claim 20 can further comprise anti-inflammatory drugs (instant calming agents). Claim 31 of App.’529 teaches that the composition of its claim 20 further comprises a film layer coated on the polymeric fibers (instant oxygen barrier backing layer attached to the fabric). Claim 34 of App.’529 teaches a method of treating a soft-tissue wound on a subject, the method comprising, administering the fibrous composition of its claim 20 to the wound on the subject. Thus, claims 20, 25, 30, 31 and 34 of App.’529 render obvious instant claims 1, 4-6, 8, 10-12, 16-18, 24 and 26-28.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 7 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 20, 25, 30, 31 and 34 of copending Application No. 19/313,529 in view of Ju et al (US 2014/0364381 A1).
As already discussed above, the claims of App.’529 teach a non-woven fabric formed of polypropylene or polyethylene and an oxygen generating material impregnated in the fabric. Although polypropylene or polyethylene does not teach instant polyester of claim 7, as evidenced by Ju et al ([0010]), it is well known in the art that polypropylene or polyethylene and polyester are equivalently or interchangeably used fabrics used for treating wounds. It would be obvious to use a non-woven polyester as the fiber in the fibrous composition of claim 20 of App.’529 with a reasonable expectation of success. Thus, claims 20, 25, 30, 31 and 34 of App.’529 in view of Ju render obvious instant claim 7.
This is a provisional nonstatutory double patenting rejection.
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/SIN J LEE/Primary Examiner, Art Unit 1613 June 24, 2026
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