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 .
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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 1-4, 6 and 14-16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-4, 11 and 13-15 of U.S. Patent No. 11,346,047. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-4, 11 and 13-15 recite almost identical claim limitations of claims 1-4, 6 and 14-16 of the present claims.
Claim Rejections - 35 USC § 112
Claims 17-30 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 17 is rejected for reciting “…and (c) and….” in lines 7-8 of claim 17.
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 1-8, 10-24 and 26-30 are rejected under 35 U.S.C. 103 as being unpatentable over Sammak et al (US Pat. 4,138,518) in view of Gardner et al. (PG Pub. 2006/0204712) in view of Irwin Sr. (US Pat. 5,612,113).
Regarding claims 1, 10, 12-13, Sammak et al. teach a carpet comprising a greige good comprising a primary backing 43, wherein the primary backing has a face side and a back surface and wherein a plurality of face fibers 42 are attached to the primary backing material and extending from the face of the primary backing material and exposed at the back side of the primary backing material [Fig. 2-3]. Sammak et al. teach a latex layer 45 is applied to the back surface of the primary backing material and secondary backing is adhered to the latex layer and the secondary backing has a first surface and a second surface [Fig. 2-3]. Sammak et al. are silent regarding the specifics of the secondary backing. However, Gardner et al. teach secondary backing comprising a woven fabric 405 wherein polyester fibers are needle punched into the woven fabric to be extending from the first surface of the secondary backing and the polyester fibers would be embedded within the latex layer to provide high carpet manufacturing speeds, provides a smooth textile-like surface that prevents the filler/binder mixture from exuding from the underside of the carpet, and imparts high levels of dimensional stability, delamination resistance, air permeability, and tuft binds to carpets. [0020, 0063 and 0079]. The needlepunched polyester fibers of the secondary backing are present in the claimed weight amount [0054]. It would have been obvious to one of ordinary skill in the art to use the secondary backing of Gardner et al. in Sammak et al. in order to provide high carpet manufacturing speeds, provides a smooth textile-like surface that prevents the filler/binder mixture from exuding from the underside of the carpet, and imparts high levels of dimensional stability, delamination resistance, air permeability, and tuft binds to carpets and arrive at the claimed invention. The previous combination is silent regarding the carpet being fluid impermeable. However, Irwin Sr. teaches adding a film to the secondary backing to provide a fluid impermeable carpet (including impermeable to liquids and liquid water). It would have been obvious to one of ordinary skill in the art to use the film of Irwin Sr. in the previous combination to provide a fluid impermeable carpet and arrive at the claimed invention.
Regarding claim 2, the latex is a carboxylated styrene-butadiene latex (Example 1].
Regarding claims 3-4 and 14, the latex comprises a filler (including calcium carbonate) with the filler present in the claimed amount [8:3-9].
Regarding claim 5, the polyester fibers comprises polyethylene terephthalate (PET) [0063].
Regarding claim 6, the latex layer has a weight per square yard of less than 30 ounces [Examples].
Regarding claim 7, the latex layer has a weight per square yard of at least 30 ounces [Examples].
Regarding claim 8, the secondary backing is adhered to the latex by the latex composition.
Regarding claim 11, the carpet is a broadloom carpet [Figure 1] and further Gardner and Irwin Sr. both teach broadloom applications. And given, the teachings of Sammat et al., broadloom would have been obvious to one of ordinary skill in the art as it is well known in the art.
Regarding claim 15, Sammat et al. teach inclusion of thickeners (rheology agents) and emulsifiers (surfactants). It would have been obvious to one of ordinary skill in the art to include rheology agents and surfactants in order to tailor the viscosity of the adhesive and affect wetting, dispersion and application uniformity and arrive at the claimed invention.
Regarding claim 16, the claimed impermeability is taught by the cited art. The claimed method of testing is a product by process limitation. Although the cited art does not disclose the method of testing, it is noted that “[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, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) . Further, “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). See MPEP 2113. Therefore, absent evidence of criticality regarding the presently claimed method of testing and given that cited art meets the requirements of the claimed impermeable carpet, the cited art clearly meet the requirements of present claims impermeable carpet. Further, given the cited art teaches such a similar carpet made of such similar materials, by such as similar method with such similar arrangement, the claimed impermeability determined according to the claimed method is necessarily inherent to the cited art.
Regarding claims 17, 27-28, Sammat et al. teach A method of making a carpet, the method comprising providing a greige good comprising a primary backing component 43 having a face surface and a back surface, a plurality of fibers 42 attached to the primary backing component and extending from the face surface of the primary backing component, applying a latex composition 45 to the back surface of the primary backing component to provide a latex layer, and applying a first surface of a secondary backing to the latex layer. Sammak et al. are silent regarding the specifics of the secondary backing. However, Gardner et al. teach secondary backing comprising a woven fabric 405 wherein polyester fibers are needle punched into the woven fabric to be extending from the first surface of the secondary backing and the polyester fibers are embedded within the latex layer upon application of the first surface of the secondary backing to the latex layer in order to provide high carpet manufacturing speeds, provides a smooth textile-like surface that prevents the filler/binder mixture from exuding from the underside of the carpet, and imparts high levels of dimensional stability, delamination resistance, air permeability, and tuft binds to carpets. [0020, 0063 and 0079]. The needlepunched polyester fibers of the secondary backing are present in the claimed weight amount [0054]. It would have been obvious to one of ordinary skill in the art to use the secondary backing of Gardner et al. in Sammak et al. in order to provide high carpet manufacturing speeds, provides a smooth textile-like surface that prevents the filler/binder mixture from exuding from the underside of the carpet, and imparts high levels of dimensional stability, delamination resistance, air permeability, and tuft binds to carpets and arrive at the claimed invention. The previous combination is silent regarding the carpet being fluid impermeable. However, Irwin Sr. teaches adding a film to the secondary backing to provide a fluid impermeable carpet (including impermeable to liquids and liquid water). It would have been obvious to one of ordinary skill in the art to use the film of Irwin Sr. in the previous combination to provide a fluid impermeable carpet and arrive at the claimed invention.
Regarding claim 18, the latex is a carboxylated styrene-butadiene latex (Example 1].
Regarding claims 19-20 and 29, the latex comprises a filler (including calcium carbonate) with the filler present in the claimed amount [8:3-9].
Regarding claim 21, the polyester fibers comprises polyethylene terephthalate (PET) [0063].
Regarding claim 22, the latex layer has a weight per square yard of less than 30 ounces [Examples].
Regarding claim 23, the latex layer has a weight per square yard of at least 30 ounces [Examples].
Regarding claim 24, the secondary backing is adhered to the latex by the latex composition.
Regarding claim 26, the carpet is a broadloom carpet [Figure 1] and further Gardner and Irwin Sr. both teach broadloom applications. And given, the teachings of Sammat et al., broadloom would have been obvious to one of ordinary skill in the art as it is well known in the art.
Regarding claim 30, Sammat et al. teach inclusion of thickeners (rheology agents) and emulsifiers (surfactants). It would have been obvious to one of ordinary skill in the art to include rheology agents and surfactants in order to tailor the viscosity of the adhesive and affect wetting, dispersion and application uniformity and arrive at the claimed invention.
Claims 9 and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Sammak et al (US Pat. 4,138,518) in view of Gardner et al. (PG Pub. 2006/0204712) in view of Irwin Sr. (US Pat. 5,612,113) in view of Trunx et al. (US Pat. 3,537,946).
Regarding claims 9 and 25, the previous combination is silent regarding the additional adhesive composition. However, Trunx et al. teach using an additional adhesive composition in addition to the latex in order to provide dedicated bond securing the secondary backing to the latex coating to produce a stronger and more secure bonding. It would have been obvious to one of ordinary skill in the art to use the additional adhesive composition of Trunx et al. in the previous combination in order to provide dedicated bond securing the secondary backing to the latex coating to produce a stronger and more secure bonding and arrive at the claimed invention.
Prior Art Not Used but Relevant
US Pat. 5,756,152 teaches a carpet with primary backing, latex precoat and secondary backing.
Conclusion
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/Shawn Mckinnon/Examiner, Art Unit 1789
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