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 without traverse of Group I: Claims 1-7 and 14-19 in the reply filed on 07/22/2026 is acknowledged.
Claims 8-13 and 20-33 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Group II: Method of making a Microporous Laminate, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 07/22/2026.
Benefit
Applicant’s provisional 63/595,896 filed on 11/03/2023 is acknowledged.
Specification
The disclosure is objected to because of the following informalities:
ASTM D1249 test is claimed to have been used for WVTR measurement (see e.g. on page 34, line 13-14), however this test is for octyl ortho-phthalate ester plasticizers and was withdrawn in 2007
It is suggested you change it to ASTM F1249, which is a test used to measure WVTR and likely what was meant
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.
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 4, 7, 17, and 19 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.
Applicant says that “water vapor permeance of 18 g/(24hr·m2) or greater” in claim 4(iv), “water vapor permeance of 25 g/(24hr·m2) or greater” in claim 7(iv), “water vapor permeance of 200 g/(24hr·m2) or greater” in claim 17(iv), and ), “water vapor permeance of 200 g/(24hr·m2) or greater” in claim 19(iv). Water vapor permeance (WVP) has the measurement of weight/(pressure·time·distance2), while water vapor transmittance rate (WVTR) has the measurement of weight/(time·distance2). It is unclear which measurement Applicant is claiming in claims 4, 7, 17, and 19 because of this. The specification says the test used to measure “water vapor permeance” was a wet cup test (i.e. ASTM E96) (see e.g. Water vapor permeance was the wet cup determination at a temperature of 23°C±0.6°C and RH difference of 50±2% on page 49, lines 8-9). This test is most used to measure water vapor transmission rates (WVTR) but can measure permeance as it is water vapor transmission rates divided by the pressure. Adding to the indefiniteness, water vapor transmission rate (WVTR) is said to be no greater than 2 g/(m2·day) using the ASTM D1249 test (see e.g. sheet material is considered as “non-porous” if , after cooling, it exhibits a water vapor transmission rate (WVTR) of no greater than 2 g/(m2·day) at 37.8°C, 100% relative humidity on page 34, line 13-14).
In the interest of compact prosecution, claims 4, 7, 17, and 19 were interpreted as being drawn to water vapor transmittance rates (WVTR) instead of water vapor permeance (WVP) due to the units and tests detailed. It was decided that the name was mixed up rather than the units and the water vapor transmittance rate cited in the specification was understood to either be a mistake or a value measured during the process and not a final value.
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.
Claims 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over Huang et al (20210095110-A1) in view of Cashin et al (US-20090042471-A1).
Regarding claim 1, Huang et al teaches a microporous laminate (see e.g. laminates that comprise a microporous film and substrate of paragraph 102) comprising a first microporous polymeric surface on a nonwoven substrate (see e.g. nonwoven substrate, made of individual fibers and thread in paragraph 102),
Huang et al teaches of a polypropylene copolymer (see e.g. one or more polypropylene copolymer in paragraph 109), said polypropylene copolymer comprising polypropylene homopolymer chain segments and ethylene-containing copolymer chain segments (see e.g. polypropylene copolymer comprising one or more polypropylene homopolymer chain segments and one or more ethylene-containing copolymer chain segments in paragraph 109) in an amount of:
50 to 95 weight percent polypropylene homopolymer chain segments, based on the weight of the polypropylene copolymer (see e.g. polypropylene homopolymer chain segments in total amount of 50-82 wt. % in paragraph 109); or 43 to 79 mole percent polypropylene homopolymer chain segments, based on the mole content of polymerized units of polypropylene in the polypropylene homopolymer chain segments as a percentage of the total mole content of polymerized monomer units in the polypropylene copolymer (see e.g. from 43-79 mol.% based on the mole content of polymerized units of propylene in the polypropylene homopolymer in paragraph 109); and
5 to 50 weight percent of ethylene-containing copolymer chain segments based on the weight of the polypropylene copolymer (see e.g. ethylene containing copolymer chain segments in a total of 18-50 wt. % in paragraph 109); or 21 to 57 mole percent of ethylene-containing copolymer chain segments based on the mole content of polymerized monomer units in the ethylene-containing copolymer chain segments as a percentage of the total mole content of polymerized monomer units in the polypropylene copolymer (see e.g. from 21-57 mol.% based on the mole content of polymerized monomer units in the ethylene-containing copolymer chain segment in paragraph 109);
Huang et al teaches that the portion of the ethylene-containing copolymer chain segments comprise polymerized units of ethylene in an amount of at least 45 weight percent, based on the weight of the ethylene-containing copolymer chain segments (see e.g. wherein at least a portion of ethylene-containing copolymer chain segments comprise units of ethylene in an about of at least 45 wt. % based on the weight of the ethylene-containing copolymer segments in paragraph 109); or at least 55 mole percent, based on the mole content of polymerized units of ethylene in the ethylene-containing copolymer chain segments as a percentage of the total mole content of polymerized monomer units in the ethylene-containing copolymer chain segments (see e.g. at least 55 mol.% based on the mole content of polymerized units of ethylene in the ethylene-containing copolymer in paragraph 109);
Huang et al teaches wherein the first microporous polymeric surface has a matrix phase of said polypropylene homopolymer chain segments (see e.g. polymer film has a majority polypropylene homopolymer phase or matrix in paragraph 80), the matrix phase further having a plurality of domains of said ethylene-containing copolymer chain segments within said matrix phase (see e.g. minority polymer domains of ethylene-containing copolymer in paragraph 80), the domains of the ethylene-containing copolymer chain segments further comprising an inclusion phase (see e.g. inclusion phase within the major polypropylene phase within the minority polymer domain in paragraph 80), within said domains, of said polypropylene homopolymer chain segments, wherein the domains of said ethylene-containing copolymer chain segments within the matrix phase are fractured to form micropores in the first microporous polymeric surface coating (see e.g. the inclusion phase inside the polymer domain further within the polypropylene matrix are broken during stretching and developing micropores in paragraph 80), the first microporous polymeric surface coating having said fractured domains of ethylene-containing copolymer chain segments having an average thickness of 0.4 to 3.9 mils (10 to 100 micrometer) (see e.g. overall thickness of microporous film of 51-254 micrometers or 2-10 mils can be used in applications such as house wraps in paragraph 91), and
Huang et al teaches that the nonwoven substrate (see e.g. nonwoven substrate, made of individual fibers and thread in paragraph 102) comprises a spunbonded nonwoven (see e.g. formed through spunbonding and can be in a spunbonded web in paragraph 102) having a random network of continuous filaments of thermoplastic polymer (see e.g. spunbonded PP (polypropylene) nonwoven is used as a substrate in embodiment/example 16 in paragraph 257) bonded together at crossover points in the random network (see e.g. spunbonded web, carded web, airlaid web, spunlaced web that has threads interlaid but not in a regular or repeating manner in paragraph 102 and);
Huang et al does not teach the nonwoven substrate having two surfaces, the microporous layer being a coating, the polypropylene copolymer of the microporous surface coating being fused to the substrate, or the microporous laminate having a trapezoid tear of 40 to 225 Newtons (9 to 50 lbs.-force).
Cashin et al teaches breathable, liquid impermeable coating (see e.g. fibrous substrate may be coated with a breathable liquid impermeable coating such as a film layer in paragraph 28) and the first microporous polymeric surface coating is fused to the continuous filaments on the first surface of the nonwoven substrate (see e.g. via molten polymer extrusion, the breathable liquid impermeable coating is fused onto fibrous substrate in paragraph 57).
Cashin et al teaches that the nonwoven substrate (see e.g. fibrous substrate “24” in paragraph 45) having a first surface and an opposing second surface (see e.g. nonwoven/fibrous substrate has one surface where the microporous polymeric film layer is overlayed in paragraph 10 and an impact resistant layer “20” extends across a surface of the fibrous substrate in paragraph 33 and Figure 6).
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Figure 6: Labeled Cashin et al (US-20090042471-A1) Published 2009
Cashin et al teaches the microporous laminate has a trapezoid tear of 40 to 225 Newtons (9 to 50 lbs.-force) (see e.g. spunbonded polypropylene nonwoven substrate with trapezoid tear strength of 165 N (37 lbs.) in the MD and 151 N (34 lbs.) in the CD in paragraph 85).
Huang et al and Cashin et al are analogous in the art because they are both vapor permeable and water impermeable nonwoven substrates with coatings that are developed for different uses specifically in relation to house construction. It would have been prima facie obvious for one of ordinary skill in the art to modify the film layer composition taught in Huang et al with the coating and mode of extrusion avoiding adhesive use taught in Cashin et al because it eliminates the need for adhesive which is often not breathable and reduces not only breathability but also tensile properties (see e.g. where breathability is desirable, adhesive may be limited so that breathability is maintained and the adhesive does not adversely affect breathability in paragraph 60 of Cashin et al).
It would have been prima facie obvious for one of ordinary skill in the art to modify the nonwoven substrate taught in Huang et al to specifically have two surfaces as taught in Cashin et al because it allows for the nonwoven substrate to be surrounded by breathable, non-liquid permeable layers on all sides completely sealing out liquid water and providing additional structure. This results in less surface area for water to get in, more surface area for water vapor permeability, and more reinforcement.
It would have been prima facie obvious for one of ordinary skill in the art to modify the film composition and substrate taught in Huang et al to a coated nonwoven substrate, which had a high trapezoidal tear strength taught in Cashin et al because (see e.g. while barrier fabric blocks water and air while allowing moisture vapor, they are offer little impact resistance in paragraph 3 of Cashin et al).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Please note, claim 1 includes product by process language with regards to the recitation of “spunbonded”. The above arguments establish a rationale tending to show the claimed product is the same as what is taught by the prior art. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” (In re Thorpe, 227 USPQ 964,966). Once the Examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product. In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983), MPEP 2113.
Regarding claim 2, Huang et al teaches that the thermoplastic polymer of the polymeric filaments of the nonwoven substrate comprises polypropylene, polyester, nylon, or a mixture thereof (see e.g. spunbonded PP (polypropylene) nonwoven is used as a substrate in embodiment/example 16 in paragraph 257).
Regarding claim 3, Huang et al teaches the thermoplastic polymer comprises polypropylene (see e.g. spunbonded PP (polypropylene) nonwoven is used as a substrate in embodiment/example 16 in paragraph 257).
Regarding claim 4, The microporous laminate further having:
Huang et al teaches a water vapor transmittance rate of 18 g/(24hr∙m2) or greater (see e.g. both laminate films (ex. 16) and polypropylene copolymer with polypropylene homopolymer (ex. 2 plus homopolymer) tested, had water vapor transmittance greater than 18 g/(24hr∙m2) or greater, ranged 110.32-624.14 g/(24hr∙m2) for laminate films in Table 27 and ranged 270-2990 g/(24hr∙m2) for the polypropylene copolymer with polypropylene homopolymer in Table 8), and
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Table 8: Highlighted Huang et al (US-20210095110-A1) Published 2021
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Table 27: Highlighted Huang et al (US-20210095110-A1) Published 2021
Huang et al teaches an overall thickness of 3 to 15 mils (0.076 to 0.381 mm) (see e.g. total thickness of laminates after stretching 4.8-7.6 mils in Table 27),
Huang et al teaches the tensile strength of 10 lbs./inch (87.6 N/50 mm) or greater (see e.g. Tensile strength is 266.59-467.29 N/50mm in the MD and 116.94-189.22 N/50mm in the XD in Table 27).
Huang et al teaches the hydrostatic head greater than 2 meters or greater for the microporous films (see e.g. all samples had hydrohead greater than 300 cm or 3 meters with example 13 in paragraph 254 with further examples in Table 26) but does not teach a laminate hydrostatic head. Cashin et al teaches a hydrostatic head of 2 meters or greater (see e.g. hydrohead of 550cm or 5.5 meters in Table 1 measured using AATCC 127),
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Table 26: Highlighted Huang et al (US-20210095110-A1) Published 2021
Huang et al teaches basis weights of microporous films (see e.g. basis weights of film example 13 ranging from 60.4-223.4 g/m2 in Table 24) but does not teach the total basis weight of the laminate. Cashin et al teaches a basis weight of 30 g/m2 to 120 g/m2 (see e.g. basis weight polymer film extruded onto substrate was 30 g/m2, with the spun bond polypropylene nonwoven fabric having a basis weight of 64 g/m2 for a total basis weight up to 94 g/m2 in paragraph 85, further shown by the film layer having a minimum basis weight of 25 g/m2 and preferably 30 g/m2 to 50 g/m2 in paragraph 51 and the fibrous substrate may have a basis weight from 60 to 140 g/m2 in paragraph 49, giving a total range of total thickness of 85 to 190 g/m2),
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Table 24: Highlighted Table 24 and 24 continued Huang et al (US-20210095110-A1) Published 2021
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Table 1: Highlighted Regions of Cashin et al (US-20090042471-A1) Published 2009
It would have been prima facie obvious for one of ordinary skill in the art to modify the hydrostatic head values of the film taught in Huang to be of the entire laminate (substrate and coating) as taught in Cashin et al because in maintaining and/or improving the hydrostatic head would be expected as a parameter describing its liquid water impermeability. Additionally with the added nonwoven substrate and in a coated form allows for an optimization and higher hydrostatic head.
It would have been prima facie obvious for one of ordinary skill in the art to modify the basis weight of the film taught in Huang to be of the entire laminate (substrate and coating) as taught in Cashin et al because maintaining the basis weight with the added nonwoven substrate and in a coated form is important to its applications as a microporous laminate that must maintain a lower weight to be put on the sides of houses as a house wrap (see e.g. desired to be lightweight, flexible, and be able to be cut in conventional means to be installed on the exterior walls in the same way as house wrap materials in paragraph 12 of Cashin et al).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Claims 6 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Huang et al (20210095110-A1) in view of Cashin et al (US-20090042471-A1) as applied to claim 1 above, and further in view of Tynys et al (US-20130210304-A1).
Regarding claim 6, Huang et al teaches the composition of the microporous coating but does not teach the two surfaces, let alone two polymeric surface coatings surrounding the nonwoven substrate.
Cashin et al teaches two surfaces of the nonwoven substrate but does not teach of a second microporous polymeric surface coating covering the second, opposing side of the nonwoven substrate.
Tynys et al discloses the microporous laminate further comprising a second microporous polymeric surface coating, said second microporous polymeric surface coating being the same as the first microporous polymeric surface coating, and wherein the polypropylene copolymer of the second microporous polymeric surface coating is fused to continuous filaments on the opposing second surface of the nonwoven substrate (see e.g. at least one surface i.e. the upper and/or the lower surface, is coated with a polymer constituting the barrier layer. Where both or one surface is coated in paragraph 30).
Huang et al, in view of Cashin et al and Tynys et al are analogous because both are nonwoven fabric substrates with coatings that have the properties of increased moisture vapor permeability and good liquid barrier properties. It would have been prima facie obvious for one of ordinary skill in the art to modify the two surfaces taught in Huang et al in view of Cashin et al to have a second microporous coating on the second surface because it allows for the nonwoven substrate to be surrounded by breathable, non-liquid permeable layers on all sides completely sealing out liquid water and providing additional structure. This results in less surface area for water to get in, more surface area for water vapor permeability, and more reinforcement.
Regarding claim 7, The microporous laminate of claim 6 further having:
Huang et al teaches a water vapor transmittance rate of 25 g/(24hr∙m2) or greater (see e.g. both laminate films (ex. 16) and polypropylene copolymer with polypropylene homopolymer (ex. 2 plus homopolymer) tested, had water vapor transmittance greater than 18 g/(24hr∙m2) or greater, ranged 110.32-624.14 g/(24hr∙m2) for laminate films in Table 27 and ranged 270-2990 g/(24hr∙m2) for the polypropylene copolymer with polypropylene homopolymer in Table 8), and
Huang et al teaches an overall thickness of 4 to 19 mils (0.10 to 0.48 mm) (see e.g. total thickness of laminates after stretching 4.8-7.6 mils in Table 27),
Huang et al teaches the tensile strength of 10 lbs./inch (87.6 N/50 mm) or greater (see e.g. Tensile strength is 266.59-467.29 N/50mm in the MD and 116.94-189.22 N/50mm in the XD in Table 27).
Huang et al teaches the hydrostatic head greater than 3 meters or greater for the microporous films (see e.g. all samples had hydrohead greater than 300 cm or 3 meters with example 13 in paragraph 254 with further examples in Table 26) but does not teach a laminate hydrostatic head. Cashin et al teaches a hydrostatic head of 3 meters or greater (see e.g. hydrohead of 550cm or 5.5 meters in Table 1 measured using AATCC 127),
Huang et al teaches basis weights of microporous films (see e.g. basis weights of film example 13 ranging from 60.4-223.4 g/m2 in Table 24) but does not teach the total basis weight of the laminate. Cashin et al teaches a basis weight of 40 g/m2 to 150 g/m2 (see e.g. basis weight polymer film extruded onto substrate was 30 g/m2, with the spun bond polypropylene nonwoven fabric having a basis weight of 64 g/m2 for a total basis weight up to 94 g/m2 in paragraph 85, further shown by the film layer having a minimum basis weight of 25 g/m2 and preferably 30 g/m2 to 50 g/m2 in paragraph 51 and the fibrous substrate may have a basis weight from 60 to 140 g/m2 in paragraph 49, giving a total range of total thickness of 85 to 190 g/m2),
It would have been prima facie obvious for one of ordinary skill in the art to modify the hydrostatic head of the film taught in Huang et al with the hydrostatic head of the laminate taught in Cashin et al because in maintaining and/or improving the hydrostatic head would be expected as a parameter describing its liquid water impermeability. Additionally with the added nonwoven substrate and in a coated form allows for an optimization and higher hydrostatic head.
It would have been prima facie obvious for one of ordinary skill in the art to modify the basis weight of the film taught in Huang to be of the entire laminate (substrate and coating) as taught in Cashin et al because maintaining the basis weight with the added nonwoven substrate and in a coated form is important to its applications as a microporous laminate that must maintain a lower weight to be put on the sides of houses as a house wrap (see e.g. desired to be lightweight, flexible, and be able to be cut in conventional means to be installed on the exterior walls in the same way as house wrap materials in paragraph 12 of Cashin et al).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Claims 14-16 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Huang et al (20210095110-A1) in view of Jeon et al (US-20220094019-A1) as evidenced by Cashin et al (US-20090042471-A1) and Sinha et al (Thermal Resistance and Moisture Management Behaviour of Nettle/Polyester Nonwoven Fabrics, Tekstilec, Vol. 62, 2019, pages 258-268).
Regarding claim 14, Huang et al teaches a microporous laminate (see e.g. laminates that comprise a microporous film and substrate of paragraph 102) comprising a first microporous polymeric surface on a nonwoven substrate (see e.g. nonwoven substrate, made of individual fibers and thread in paragraph 102),
Huang et al teaches of a polypropylene copolymer (see e.g. one or more polypropylene copolymer in paragraph 109), said polypropylene copolymer comprising polypropylene homopolymer chain segments and ethylene-containing copolymer chain segments (see e.g. polypropylene copolymer comprising one or more polypropylene homopolymer chain segments and one or more ethylene-containing copolymer chain segments in paragraph 109) in an amount of:
i) 50 to 95 weight percent polypropylene homopolymer chain segments, based on the weight of the polypropylene copolymer (see e.g. polypropylene homopolymer chain segments in total amount of 50-82 wt. % in paragraph 109); or 43 to 79 mole percent polypropylene homopolymer chain segments, based on the mole content of polymerized units of polypropylene in the polypropylene homopolymer chain segments as a percentage of the total mole content of polymerized monomer units in the polypropylene copolymer (see e.g. from 43-79 mol.% based on the mole content of polymerized units of propylene in the polypropylene homopolymer in paragraph 109); and
ii) 5 to 50 weight percent of ethylene-containing copolymer chain segments based on the weight of the polypropylene copolymer (see e.g. ethylene containing copolymer chain segments in a total of 18-50 wt. % in paragraph 109); or 21 to 57 mole percent of ethylene-containing copolymer chain segments based on the mole content of polymerized monomer units in the ethylene-containing copolymer chain segments as a percentage of the total mole content of polymerized monomer units in the polypropylene copolymer (see e.g. from 21-57 mol.% based on the mole content of polymerized monomer units in the ethylene-containing copolymer chain segment in paragraph 109);
Huang et al teaches that the portion of the ethylene-containing copolymer chain segments comprise polymerized units of ethylene in an amount of at least 45 weight percent, based on the weight of the ethylene-containing copolymer chain segments (see e.g. wherein at least a portion of ethylene-containing copolymer chain segments comprise units of ethylene in an about of at least 45 wt. % based on the weight of the ethylene-containing copolymer segments in paragraph 109); or at least 55 mole percent, based on the mole content of polymerized units of ethylene in the ethylene-containing copolymer chain segments as a percentage of the total mole content of polymerized monomer units in the ethylene-containing copolymer chain segments (see e.g. at least 55 mol.% based on the mole content of polymerized units of ethylene in the ethylene-containing copolymer in paragraph 109);
Huang et al teaches wherein the first microporous polymeric surface has a matrix phase of said polypropylene homopolymer chain segments (see e.g. polymer film has a majority polypropylene homopolymer phase or matrix in paragraph 80), the matrix phase further having a plurality of domains of said ethylene-containing copolymer chain segments within said matrix phase (see e.g. minority polymer domains of ethylene-containing copolymer in paragraph 80), the domains of the ethylene-containing copolymer chain segments further comprising an inclusion phase (see e.g. inclusion phase within the major polypropylene phase within the minority polymer domain in paragraph 80), within said domains, of said polypropylene homopolymer chain segments, wherein the domains of said ethylene-containing copolymer chain segments within the matrix phase are fractured to form micropores in the first microporous polymeric surface coating (see e.g. the inclusion phase inside the polymer domain further within the polypropylene matrix are broken during stretching and developing micropores in paragraph 80), the first microporous polymeric surface coating having said fractured domains of ethylene-containing copolymer chain segments having an average thickness of 0.5 to 3.0 mils (12.7 to 76.2 micrometer) (see e.g. overall thickness of microporous film of 51-254 micrometers or 2-10 mils can be used in applications such as house wraps in paragraph 91), and
Huang et al teaches that the nonwoven substrate (see e.g. nonwoven substrate, made of individual fibers and thread in paragraph 102) comprises a spunbonded nonwoven (see e.g. formed through spunbonding and can be in a spunbonded web in paragraph 102) having a random network of continuous filaments of thermoplastic polymer (see e.g. spunbonded PP (polypropylene) nonwoven is used as a substrate in embodiment/example 16 in paragraph 257) bonded together at crossover points in the random network (see e.g. spunbonded web, carded web, airlaid web, spunlaced web that has threads interlaid but not in a regular or repeating manner in paragraph 102 and); Huang et al teaches of the microporous film having a Gurley air permeability of 20 to 150 s/100 cm3 (see e.g. Gurley air permeability of 28.1 to 521.8 s/100 cm3 of film example 13 in Table 24).
Huang et al does not teach the nonwoven substrate having two surfaces, the microporous layer being a coating, the polypropylene copolymer of the microporous surface coating being fused to the substrate, or the microporous laminate having a Gurley air permeability of 20 to 150 seconds /100 cm3 of air.
Jeon et al teaches that the microporous layer is a coating (see e.g. a coating “20” in paragraph 143, may be porous or non-porous such as microporous coating in paragraph 214) Jeon et al further teaches that the nonwoven substrate has two surfaces (see e.g. a substrate “1” has a first surface “10” and a second surface “11” in paragraph 143), and that the microporous coating may be on both or either side of the nonwoven substrate (see e.g. coating “20” may be positioned on the first surface “10” of the substrate “1”, or on both the first and second surfaces of the substate “1” in paragraph 143 and coating positioned on the first surface, on the second surface, or on both the first and second surfaces of the porous substrate of paragraph 138 and Figure 1).
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Figure 1: Jeon et al (US-20220094019-A1) Published in 2022
Huang et al in view of Jeon et al teaches the claimed invention above but fails to teach the laminate having a Gurley air permeability of 20 to 150 seconds/100 cm3. It is reasonable to conclude that the property is inherent to the combination of Huang et al in view of Jeon et al. Support for said conclusion is found in the use of like materials which would result in the claimed property. The burden is upon the Applicant to prove otherwise.
Applicant claims that the microporous laminate has a Gurley air permeability of 20 to 150 seconds /100 cm3 of air.
Huang et al teaches that the microporous film has a Gurley air permeability of 28.1 to 521.8 s/100 cm3 but not that the entire laminate has this permeability (see e.g. Gurley air permeability of 28.1 to 521.8 s/100 cm3 of film example 13 in Table 24 of Huang et al). Jeon et al teaches a Gurley air permeability of 100 to 800 s/100 cm3 (see e.g. porous film or substrate described herein as a JIS Gurley (s/100 cc) of 100 or more in paragraph 110 of Jeon et al). While neither gives a definite combined porous coating and substrate value, they both are within the applicant’s claimed range. Additionally, Jeon et al teaches that it is expected for the Gurley of the microporous coated substrate to increase compared to the substrate or film alone (see e.g. Gurley of coated film is increased compared to uncoated microporous membrane with the coated film being up to 130% or less in paragraph 252 of Jeon et al). Taken at the lowest Gurley of Huang et al this would still be within the range of the claimed Gurley of the application.
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977); see also In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (Products of identical chemical composition cannot have mutually exclusive properties.”).
Huang et al and Jeon et al are analogous in the art because both are concerned about the air permeability and mechanical properties of a nonwoven microporous substrate with microporous coatings. It would have been prima facie obvious for one of ordinary skill in the art to modify the film layer composition taught in Huang et al with the coating and limited adhesive use taught in Jeon et al because it eliminates the need for adhesive which is often not breathable and reduces not only breathability but also tensile properties (see e.g. where breathability is desirable, adhesive may be limited so that breathability is maintained and the adhesive does not adversely affect breathability in paragraph 60 of Cashin et al).
It would have been prima facie obvious for one of ordinary skill in the art to modify the nonwoven substrate taught in Huang et al to specifically have two surfaces as taught in Jeon et al because it allows for the nonwoven substrate to be surrounded by breathable, non-liquid permeable layers on all sides completely sealing out liquid water and providing additional structure. This results in less surface area for water to get in, more surface area for water vapor permeability, and more reinforcement.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Please note, claim 1 includes product by process language with regards to the recitation of “spunbonded”. The above arguments establish a rationale tending to show the claimed product is the same as what is taught by the prior art. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” (In re Thorpe, 227 USPQ 964,966). Once the Examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product. In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983), MPEP 2113.
Regarding claim 15, Huang et al teaches that the thermoplastic polymer of the polymeric filaments of the nonwoven substrate comprises polypropylene, polyester, nylon, or a mixture thereof (see e.g. spunbonded PP (polypropylene) nonwoven is used as a substrate in embodiment/example 16 in paragraph 257).
Regarding claim 16, Huang et al teaches that there is a thermoplastic polymer (see e.g. spunbonded PP (polypropylene) nonwoven is used as a substrate in embodiment/example 16 in paragraph 257) but does not teach the use of polyesters.
Jeon et al teaches that the thermoplastic of the nonwoven substrate includes a polyester (see e.g. substrate may be a polyester in paragraph 95 and a be nonwoven in paragraph 197 where substrate and microporous membrane are understood to be the same in paragraph 108).
It would have been prima facie obvious for one of ordinary skill in the art to modify the thermoplastic polymer nonwoven substrate taught in Huang et al with the polyester nonwoven substrate taught in Jeon et al because polyester as nonwoven fibers are not only thermoplastics, but is hydrophobic, benefitting liquid water impermeability and has a quick dispersion of water (see e.g. polyester nonwoven fabric and polyester fiber has the ability of quick dispersion of water supported by wicking even though the fabric is hydrophobic in nature therefore the wetting time is shortest in pg. 265, 2nd paragraph of 3.6.1: Top and bottom wetting line in Sinha et al).
Regarding claim 18, Huang et al teaches a microporous polymeric surface film made of a polypropylene copolymer (see e.g. one or more polypropylene copolymer in paragraph 109). Huang et al does not teach another layer of microporous film.
Jeon et al teaches that the microporous laminate further comprising a second microporous polymeric surface coating (see e.g. Figure 2), said second microporous polymeric surface coating being the same as the first microporous polymeric surface coating (see e.g. in one embodiment the first layer “20a” is positioned on both the first and second surfaces of substrate “1” in Figure 2 and paragraph 143), and wherein the polypropylene copolymer of the second microporous polymeric surface coating is fused to surface filaments or fibers on the opposing second surface of the nonwoven substrate (see e.g. coating positioned on the first surface, on the second surface, or on both the first and second surfaces of the porous substrate of paragraph 138 and Figures 1 and 2).;
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Figure 2: Jeon et al (US-200220094019-A1) Published 2022
Huang et al in view of Jeon et al teaches the claimed invention above but fails to teach the laminate having a Gurley air permeability of 20 to 150 seconds/100 cm3. It is reasonable to conclude that the property is inherent to the combination of Huang et al in view of Jeon et al. Support for said conclusion is found in the use of like materials which would result in the claimed property. The burden is upon the Applicant to prove otherwise.
Applicant claims that the microporous laminate has a Gurley air permeability of 20 to 150 seconds /100 cm3 of air.
Huang et al teaches that the microporous film has a Gurley air permeability of 28.1 to 521.8 s/100 cm3 but not that the entire laminate has this permeability (see e.g. Gurley air permeability of 28.1 to 521.8 s/100 cm3 of film example 13 in Table 24 of Huang et al). Jeon et al teaches a Gurley air permeability of 100 to 800 s/100 cm3 (see e.g. porous film or substrate described herein as a JIS Gurley (s/100 cc) of 100 or more in paragraph 110 of Jeon et al). While neither gives a definite combined porous coating and substrate value, they both are within the applicant’s claimed range. Additionally, Jeon et al teaches that it is expected for the Gurley of the microporous coated substrate to increase compared to the substrate or film alone (see e.g. Gurley of coated film is increased compared to uncoated microporous membrane with the coated film being up to 130% or less in paragraph 252 of Jeon et al). Taken at the lowest Gurley of Huang et al this would still be within the range of the claimed Gurley of the application.
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977); see also In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (Products of identical chemical composition cannot have mutually exclusive properties.”).
It would have been prima facie obvious for one of ordinary skill in the art to modify the polymeric surface coating taught in Huang et al with the sandwiched coated substrate taught in Jeon et al because it allows for the nonwoven substrate to be surrounded by breathable, non-liquid permeable layers on all sides completely sealing out liquid water and providing additional structure. This results in less surface area for water to get in, more surface area for water vapor permeability, and more reinforcement.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Claims 17 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Huang et al (US-20210095110-A1) in view of Jeon et al (US-20220094019-A1) as applied to claims 14 and 18 respectively above, and further in view of Jones et al (US-20070178784-A1) as evidenced by Cashin et al (US-20090042471-A1).
Regarding claim 17, The microporous laminate of claim 14 further having:
Huang et al teaches a water vapor transmittance rate of 200 g/(24hr∙m2) or greater (see e.g. both laminate films (ex. 16) and polypropylene copolymer with polypropylene homopolymer (ex. 2 plus homopolymer) tested, had water vapor transmittance greater than 200 g/(24hr∙m2) or greater, ranged 110.32-624.14 g/(24hr∙m2) for laminate films in Table 27 and ranged 270-2990 g/(24hr∙m2) for the polypropylene copolymer with polypropylene homopolymer in Table 8), and
Huang et al teaches an overall thickness of 3 to 15 mils (0.076 to 0.381 mm) (see e.g. total thickness of laminates after stretching 4.8-7.6 mils in Table 27),
Huang et al teaches the tensile strength of 10 lbs./inch (87.6 N/50 mm) or greater (see e.g. Tensile strength is 266.59-467.29 N/50mm in the MD and 116.94-189.22 N/50mm in the XD in Table 27).
Huang et al teaches basis weights of microporous films (see e.g. basis weights of film example 13 ranging from 60.4-223.4 g/m2 in Table 24) but does not teach the total basis weight of the laminate. Jones et al teaches a total basis weight of the laminate being 30 g/m2 to 100 g/m2 (see e.g. single layer microporous coating of 20 g/m2 was extrusion laminated to a 34 g/m2 PE/PET spunbond nonwoven fabric for a total basis weight of 54 g/m2 in example 2 of paragraph 49).
Huang et al teaches the hydrostatic head greater than 2.5 meters or greater for the microporous films (see e.g. all samples had hydrohead greater than 300 cm or 3 meters with example 13 in paragraph 254 with further examples in Table 26) but does not teach a laminate hydrostatic head. Jones et al teaches a laminate hydrostatic head of 2.5 meters or greater (see e.g. for the materials used in the building industry, hydrostatic head pressure greater than 55 cm or 0.55 m is acceptable in paragraph 43),
Huang et al in view of Jeon et al and Jones et al are analogous in the art because all are of a breathable material that has a microporous material coating on top of a nonwoven substrate. It would have been prima facie obvious for one of ordinary skill in the art to modify the basis weight of the film taught in Huang to be of the entire laminate (substrate and coating) as taught in Jones et al because maintaining the basis weight with the added nonwoven substrate and in a coated form is important to its applications as a microporous laminate that must maintain a lower weight to be put on the sides of houses as a house wrap (see e.g. desired to be lightweight, flexible, and be able to be cut in conventional means to be installed on the exterior walls in the same way as house wrap materials in paragraph 12 of Cashin et al).
It would have been prima facie obvious for one of ordinary skill in the art to modify the hydrostatic head of the film taught in Huang et al with the hydrostatic head of the laminate taught in Jones et al because in maintaining and/or improving the hydrostatic head would be expected as a parameter describing its liquid water impermeability. Additionally with the added nonwoven substrate and in a coated form allows for an optimization and higher hydrostatic head.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Regarding claim 19, The microporous laminate of claim 18, further having:
Huang et al teaches a water vapor transmittance rate of 200 g/(24hr∙m2) or greater (see e.g. both laminate films (ex. 16) and polypropylene copolymer with polypropylene homopolymer (ex. 2 plus homopolymer) tested, had water vapor transmittance greater than 200 g/(24hr∙m2) or greater, ranged 110.32-624.14 g/(24hr∙m2) for laminate films in Table 27 and ranged 270-2990 g/(24hr∙m2) for the polypropylene copolymer with polypropylene homopolymer in Table 8), and
Huang et al teaches an overall thickness of 4 to 19 mils (0.10 to 0.48 mm) (see e.g. total thickness of laminates after stretching 4.8-7.6 mils in Table 27),
Huang et al teaches the tensile strength of 10 lbs./inch (87.6 N/50 mm) or greater (see e.g. Tensile strength is 266.59-467.29 N/50mm in the MD and 116.94-189.22 N/50mm in the XD in Table 27).
Huang et al teaches basis weights of microporous films (see e.g. basis weights of film example 13 ranging from 60.4-223.4 g/m2 in Table 24) but does not teach the total basis weight of the laminate. Jones et al teaches a total basis weight of the laminate being 30 g/m2 to 100 g/m2 (see e.g. single layer microporous coating of 20 g/m2 was extrusion laminated to a 34 g/m2 PE/PET spunbond nonwoven fabric for a total basis weight of 54 g/m2 in example 2 of paragraph 49).
Huang et al teaches the hydrostatic head greater than 3 meters or greater for the microporous films (see e.g. all samples had hydrohead greater than 300 cm or 3 meters with example 13 in paragraph 254 with further examples in Table 26) but does not teach a laminate hydrostatic head. Jones et al teaches a laminate hydrostatic head of 3 meters or greater (see e.g. for the materials used in the building industry, hydrostatic head pressure greater than 55 cm or 0.55 m is acceptable in paragraph 43),
Huang et al in view of Jeon et al and Jones et al are analogous in the art because all are of a breathable material that has a microporous material coating on top of a nonwoven substrate. It would have been prima facie obvious for one of ordinary skill in the art to modify the basis weight of the film taught in Huang to be of the entire laminate (substrate and coating) as taught in Jones et al because maintaining the basis weight with the added nonwoven substrate and in a coated form is important to its applications as a microporous laminate that must maintain a lower weight to be put on the sides of houses as a house wrap (see e.g. desired to be lightweight, flexible, and be able to be cut in conventional means to be installed on the exterior walls in the same way as house wrap materials in paragraph 12 of Cashin et al).
It would have been prima facie obvious for one of ordinary skill in the art to modify the hydrostatic head of the film taught in Huang et al with the hydrostatic head of the laminate taught in Jones et al because in maintaining and/or improving the hydrostatic head would be expected as a parameter describing its liquid water impermeability. Additionally with the added nonwoven substrate and in a coated form allows for an optimization and higher hydrostatic head.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Additional References
Additional references that could be read on the claims of the invention are Kelch (WO-2005030860-A1).
Conclusion
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/T.N.W./Examiner, Art Unit 1781
/ALICIA J WEYDEMEYER/Primary Examiner, Art Unit 1781
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