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 § 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 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 1-2, 4, and 7-8 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nishino (US Patent 6,355,321).
Regarding claim 1, Nishino teaches a laminated resin tube (Fig. 2 and/or other sections cited below) comprising:
an inner layer (innermost layer 10 in col. 4, lines 9-12) containing a thermoplastic material which is a thermoplastic resin (any of the various fluorine type resins of col. 5, lines 62 through col. 6, line 24 or polyamide types resins of col. 6, lines 27 through col. 7, line 3) or a thermoplastic elastomer (any of thermoplastic elastomers listed in col. 7, lines 6-19);
an intermediate layer (referred to as adhesive layer 11 in col. 4, lines 9-12) provided on an outer periphery of the inner layer (as shown in Fig. 2) and containing a polyamide (col. 9, line 39 through col. 10, line 29); and
an outer layer (14 in col. 4, lines 9-12) provided on an outer periphery of the intermediate layer (as shown in Fig. 2) and containing a fluoropolymer (col. 8, lines 48-50).
Regarding claim 2, Nishino teaches a thickness of the outer layer is equal to or less than one-third of a sum of a thickness of the inner layer, a thickness of the intermediate layer, and the thickness of the outer layer (col. 4, lines 44-48 and lines 56-59 and col. 5, lines 35-39)3.
Regarding claim 4, Nishino teaches the thermoplastic material is any one of a polyurethane resin, a polyurethane-based elastomer, a polyamide-based elastomer, an olefin-based elastomer, or a polystyrene-based elastomer (see various species listed in col. 6, line 27 through col. 7, lines 6-19).
Regarding claim 7, Nishino teaches the inner layer, the intermediate layer, and the outer layer are molded by co-extrusion (col. 9, lines 24-26 and col. 11, lines 19-26).
Regarding claim 8, Nishino teaches a method for molding the laminated resin tube (col. 11, lines 19-38) according to claim 1 (see mappings for claim 1 above), the method comprising:
causing an inner layer extruder to heat and melt an inner layer material of the inner layer (col. 4, lines 18-21 and col. 11, lines 25-26), the inner layer material containing the thermoplastic resin or the thermoplastic elastomer (see mappings for claim 1 above);
causing an intermediate layer extruder to heat and melt an intermediate layer material of the intermediate layer (col. 4, lines 18-21 and col. 11, lines 25-26), the intermediate layer material containing the polyamide (see mappings for claim 1 above);
causing an outer layer extruder to heat and melt an outer layer material of the outer layer (col. 4, lines 18-21 and col. 11, lines 25-26), the outer layer material containing the fluoropolymer (see mappings for claim 1 above); and
simultaneously performing extrusion of the inner layer material from the inner layer extruder into a die by the inner layer extruder, extrusion of the intermediate layer material from the intermediate layer extruder into the die by the intermediate layer extruder, and extrusion of the outer layer material from the outer layer extruder into the die by the outer layer extruder (col. 9, lines 24-26 and col. 11, lines 19-26), thereby performing co-extrusion molding of the inner layer, the intermediate layer, and the outer layer in the die (col. 9, lines 24-26 and col. 11, lines 19-26).
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 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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 3 is rejected under 35 U.S.C. 103 as being unpatentable over Nishino.
Regarding claim 3, selecting an ethylene tetrafluoroethylene copolymer resin (ETFE) or a tetrafluoroethylene-perfluoroalkyl vinyl ether-chlorotrifluoroethylene copolymer resin for the fluoropolymer of the outer layer is obvious to one of ordinary skill in view of Nishino’s teachings (col. 5, line 62 through col. 6, line 24 wherein the desirable properties of these materials are discussed in col. 5, lines 51-55).
The courts have held that selection of a known material on the basis of suitability for its intended use is obvious and within the capability of one of ordinary skill in the art. "Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle." 325 U.S. at 335, 65 USPQ at 301. See MPEP § 2144.07, Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945), and In re Leshin, 277 F.2d 197, 125 USPQ 416 (CCPA 1960).
Claims 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over Nishino, as applied to claim 1 above, in view of Sato (US PG Pub 2019/0055390).
Regarding claim 5, Nishino is silent regarding this feature.
However, Sato teaches that fluoropolymer films used for fuel tubes (para. 0017, sections 4 and 12) have an arithmetic average roughness of the surface which is 4 μm or less (para. 0017, section 7, paras. 0182-0183, and claim 7), thus encompassing the claimed range and rendering it obvious in the absence of any unexpected results arising from the claimed range.
A prior art range which encompasses, partially overlaps, or touches the claimed range is sufficient to establish a prima facie case of obviousness, in the absence of any unexpected results. See MPEP § 2144.05.I and In re Harris, 409 F.3d 1339, 74 USPQ2d 1951 (Fed. Cir. 2005); In re Peterson, 315 F.3d 1325, 1330, 65 USPQ2d 1379, 1382-83 (Fed. Cir. 2003).
Regarding claim 6, Nishino teaches the inner layer is colorless and transparent, or colored and transparent (since Nishino teaches the claimed materials for the inner layer, these optical properties are present for these matching materials).
“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 either anticipation or obviousness has been established.” In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (emphasis added), see MPEP § 2112.01(I).
Furthermore, the courts have held that if the composition is physically the same as that claimed, it must have the same properties. "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JIM R SMITH whose telephone number is (303)297-4318. The examiner can normally be reached Mon-Fri. 9-6 MST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Phillip Tucker can be reached on 571-272-1095. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JIMMY R SMITH JR./Examiner, Art Unit 1745
Prosecution Insights