DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. 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 § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
2. Claims 1-6, 8, and 10-20 are rejected under 35 U.S.C. 103 as being unpatentable over Hubbuch et al. (US 2008/0050521 A1).
Hubbuch et al. disclose a latex formulation (equivalent to the latex composition of the claimed invention) compromising an aqueous emulsion of a natural or synthetic film-forming polymer. In an alternate embodiment, the disclosed comprises a textile material with a coating of a composition comprising a mixture of the aqueous emulsion of the natural or synthetic film-forming polymer. The textile is a tufted carpet product having a latex foam coating on the backing thereof which produces improved bundle encapsulation/penetration, stitch/fiber lock, wet tuft bind, lamination strength, and/or dimensional stability (meeting the limitations of claim 15 and 16). Aqueous emulsions or solutions of film-forming natural or synthetic polymers (both homopolymers and copolymers) useful in the present invention include, but are not limited to, styrene-butadiene latex, natural rubber latex, acrylic latex, styrene acrylic latex, vinyl acrylic latex, and compatible mixtures thereof (equivalent to the elastomeric component comprising a natural rubber and a synthetic polymer as recited in the claimed invention and meeting the limitations of claims 10 and 11). The amount of the aqueous emulsion of film-forming natural or synthetic polymers used in the formulation of the present invention depends on the type of application for which the foam will be used. Activating agents useful in the disclosed invention can be oxidizing/reducing agents. Any oxidizing/reducing agent that catalyzes the decomposition of hydrogen peroxide can be used. Oxidizing/reducing agents used include, but are not limited to, zinc oxide (meeting the limitations of claim 5). The formulation can also include various additives to improve or adjust the properties of the foam as desired. Such additives can include, but are not limited to, fillers, thickening agents, gelling agents, vulcanizing agents, accelerators, antimicrobial agents, and other additives. Typical gelling agents used for latex formulations can be used and include, but are not limited to, sulfur-containing compounds (equivalent to the crosslinking agent and one or more crosslinking auxiliaries of claim 1 and meeting the limitations of claim 2), and zinc salts (meeting the limitations of claim 5). Typical ingredients used as fillers in the composition include calcium carbonate (equivalent to the inorganic filler component of claim 1 and meeting the limitations of claim 12). Figure 1 shows a floor covering product, such as a carpet. The carpet comprises a primary backing material through which loops of yarn are tufted in order to form a face pile on one side of the primary backing material. The face pile may be looped, as shown in FIG. 1, or it may be cut (not shown). The latex composition can be applied to the primary backing material. Table 4 also shows that a thickener can be added to the composition. (see Abstract and paragraphs 0007-0033).
With regards to the limitation that the elastomeric component comprising natural rubber and a synthetic polymer, wherein the elastomeric component comprises 5 to 35 parts of natural rubber to 65 to 95 parts of the synthetic polymer, an amount of crosslinking agent in the latex composition is based on an amount of natural rubber in the elastomeric component, the crosslinking agent in the latex composition is present in an amount of 1-6% of the amount of natural rubber dry parts in the elastomeric component, wherein the zinc oxide in the latex composition is present in an amount of 1-5% of the amount of natural rubber dry parts in the elastomeric component, wherein an amount of crosslinking auxiliaries in the latex composition is based on an amount of natural rubber in the elastomeric component, the latex composition of claim 1, wherein the inorganic filler component is present in the latex composition in an amount of 150 to 625 dry parts per 100 dry parts of the elastomeric component, wherein the thickener is present in the latex composition in an amount of 0.5-3 dry parts per 100 dry parts of the elastomeric component, as well as the number of layers of the backing materials, the Examiner would like to point out that number of layers and concentrations are deemed to be obvious routine optimizations to one of ordinary skill in the art, motivated by the desire to obtain the required properties, particularly given that Hubbuch et al. state that the amount of the aqueous emulsion of film-forming natural or synthetic polymers used in the formulation on the type of application for which the composition will be used. Differences in concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentrations are critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.
3. Claims 7 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over (US 2008/0050521 A1) in view of Novits et al. (US 5869580).
Hubbuch et al., as discussed above, do not teach the use of zinc dibutyl dithiocarbamate.
However, Novits et al. teach the prevention of scorching prior to crosslinking of an elastomeric composition by incorporation of a sulfur accelerator of the dithiocarbamate which results in a synergistic effect on scorch time at a low additive level. When blended into conventional thermoplastic and/or elastomeric polymers as a crosslinking agent, improved scorch protection is provided for the blended system while not substantially adversely affecting final cure times or characteristics. Any of the known sulfur accelerators can be employed. One sulfur accelerator class that is suitable for use comprises metal salts of disubstituted dithiocarbamates wherein the metal is selected from the group consisting of nickel, cobalt, iron, chromium, tin, zinc, copper, lead, bismuth, cadmium, selenium, and tellurium. Examples of the metal salts of disubstituted dithiocarbamic acid are zinc diethyldithiocarbamate and zinc dimethyldithiocarbamate. Examples 5 also illustrates the use of zinc dibutyl dithiocarbamate. The thermoplastic and/or elastomeric polymers encompassed in the disclosed invention include natural or synthetic polymers which are thermoplastic and/or elastomeric in nature, and which can be crosslinked (cured) through the action of a crosslinking agent. (See Abstract and Column 1, lines 13-16; Column 2, lines 19-33, and Column 5, lines 1-14).
Accordingly, it would have been obvious to one having ordinary skill in the art to use a zinc dimethyldithiocarbamate in the composition taught by Hubbuch et al. given that Novits et al. teach that the addition of dithiocarbamates in natural or synthetic polymers which are thermoplastic and/or elastomeric in nature results in a synergistic effect on scorch time at a low additive level.
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.
4. Claims 1-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 18/932,769 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other because the scope of the claims copending Application No. 18/932,769 and the scope of the claims in the instant application overlap. As a result, the claims are rejected under obviousness-type double patenting.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
5. Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHEEBA AHMED whose telephone number is (571)272-1504. The examiner can normally be reached Monday-Thursday 7am-6pm.
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/SHEEBA AHMED/Primary Examiner, Art Unit 1787
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