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 .
Specification
The use of the term Clearweld™, which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore, the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
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.
Claim 37 is 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 37 contains the trademark/trade name Clearweld™. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe an absorption modifier and, accordingly, the identification/description is indefinite.
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.
Claims 1, 2, 3, 5, 9, 12, 31, 33, 34, 42, and 46-49 are rejected under 35 U.S.C. 103 as being unpatentable over Downs et al (US 2016/0031164 A1).
Regarding claims 1, 3, 33, 34, and 49, Downs teaches three-dimensional articles comprising flexible composite materials comprising one or more layers of non-woven unidirectional (UD) fibers and polymer matrix or coating; wherein the fibers comprise UHMWPE (e.g. Spectra®, Dyneema®) in a thermoplastic or an elastomer matrix and coated with a monolithic film such as urethane (i.e., meltable layer) (para 72, 74, 76 101, 151, 152); and further teaches embodiment of the fibers being arranged as cross-plied monolayers (para 78, fig 30A). Therefore, Downs would have suggested or otherwise rendered obvious to one of ordinary skill in the art at the time of invention a first base flexible composite laminate (FCL) (110) and a second base FCL (120), each of the first base FCL (110) and the second base FCL (120) comprising a plurality of stacked, unidirectionally oriented polyethylene fibers arranged in cross-plied monolayers (101 and 102) and embedded in a plastic matrix (103), wherein each base FCL is coated on at least one face with a meltable layer (104) or (105).
Downs teaches the layers may be heat fused or bonded, or laser or ultrasonic welded (para 160, 165) which otherwise rendered obvious to one of ordinary skill in the art at the time of invention a seam comprising a weld formed between a first base flexible composite laminate (FCL) (110) and a second base FCL; the weld comprising a homogeneous, fused monolayer (106) formed from the meltable layers (104) and (105) from each of the first base FCL (110) and the second base FCL (120). Regarding the seam being at least one inch, it would have been obvious to one of ordinary skill in the art at the time of invention to adjust the size of the seam based upon the application.
Regarding the limitations, wherein the relative orientation of each pair of the plurality of unidirectionally oriented polyethylene fibers within the cross-plied monolayers (101) and (102) adjacent to the fused monolayer (106) is (i) perpendicular or having an oblique angle of no less than 75 degrees; or (ii) parallel or having an oblique angle of no more than 15 degrees; the Examiner takes official notice that it was well known in the art at the time of invention to orient the fibers in multi-layered composites to optimize the physical properties of the composite (e.g., tear strength, tensile strength, puncture strength, etc). Furthermore, Downs teaches adjusting the layup of the plies to optimize the stretch of the layup (para 78).
Regarding claims 2, 5, and 31, it would have been obvious to one of ordinary skill in the art at the time of invention to adjust the thickness of the meltable layers, the density or weight of the flexible composite laminates, and the thickness of the cross-plied monolayers to optimize the physical and mechanical properties (e.g., tensile strength, puncture resistance, overall weight, etc) of the three-dimensional articles per the required application or final design necessary.
It is noted that a change in size, scale, proportionality and shape is not patently distinct over the prior art absent persuasive evidence that the particular configuration of the claimed invention is significant. See In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955); In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976); In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966); In Gardner V. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). MPEP 2144.04[R-1].
A change in size (dimension) is generally recognized as being within the level of ordinary skill in the art. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). Where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device, and the device having the claimed dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device, Gardner V. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of invention to provide the three-dimensional articles of Downs with the dimensions (i.e., the thickness of the meltable layers, the density or weight of the flexible composite laminates, and the thickness of the cross-plied monolayers) based on the prior art's intended application as in the present invention.
Regarding claims 9 and 12, the Examiner takes official notice that it was well known in the art at the time of invention to orient the fibers in multi-layered composites to optimize the physical properties of the composite (e.g., tear strength, tensile strength, puncture strength, etc). Furthermore, Downs teaches adjusting the layup of the plies to optimize the stretch of the layup (para 78).
Regarding claims 42 and 46, Downs teaches the monolithic films comprise urethane (para 72, 76), so it would have been obvious to one of ordinary skill in the art at the time of invention to select one of thermoplastic urethane (i.e., a light-absorbing polymer that absorbs light having a wavelength that is between 700 nanometers (nm) and 1400 nm), since it is prima facie obvious to select a known material based on its suitability for its intended use (MPEP § 2144.07).
Regarding claim 47, Downs teaches the layers may be heat fused or bonded, or laser or ultrasonic welded (para 160, 165), so it would have been obvious to one of ordinary skill in the art at the time of invention to adjust the melting temperature of the monolithic films to allow for ease of heat fusion or bonding.
Regarding claim 48, Downs teaches the use of monolithic films (para 72, 76), which would have suggested or otherwise rendered obvious to one of ordinary skill in the art at the time of invention a non-breathable film, and that the films may be heat fused or bonded, or laser or ultrasonic welded (para 160, 165) which would have resulted in a weld that is non-breathable.
Claims 15, 17, 22, 25, 28, and 37 are rejected under 35 U.S.C. 103 as being unpatentable over Downs as applied to claim 1 above, and further in view of Schindler et al (US 2012/0183748 A1).
Downs teaches the seam of claim 1.
Downs fails to suggest the homogeneous, fused monolayer (106) further comprises an absorption modifier (163); or one or both of the meltable layers (104) and (105) further comprises an absorption modifier (163), optionally wherein the absorption modifier (163) is selected from the group consisting of Clearweld™ LD940A, Clearweld™ LD940B, Clearweld™ LD940C, Clearweld™ LD940E, and Clearweld™ LD940F; and the properties of claims 15, 17, 22, 25, and 28.
Schindler teaches methods for joining polymeric materials together (e.g., welds or seams) may use lasers or broadband infrared heat sources; wherein the polymeric materials comprise near infrared absorbing material (i.e., an absorption modifier) known as Clearweld™; wherein the laser absorptive sheet containing Clearweld™ heats up, and it melts the plastic material of both sheet members S1 and S2 at the junction of the transmissive and absorptive materials, causing the two layers to melt or stick together and thereby be "welded" together (abstract, para 3, 7).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of invention to use the infrared absorbing material of Schindler in between the meltable layers (e.g., monolithic films) of Downs, so when exposed to a laser welding method the two layers melt or stick together and thereby be "welded" together (i.e., the homogeneous, fused monolayer (106) further comprises an absorption modifier (163).
Regarding the properties and/or functions of claims 15, 17, 22, 25, and 28, Down as modified by Schindler would have suggested the composition and method of making the seam of the instant claims, so it is deemed to inherently possess these properties and/or functions. 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). “When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). (MPEP § 2112.01 I).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NATHAN L VAN SELL whose telephone number is (571)270-5152. The examiner can normally be reached Mon-Thur, Generally 7am-6pm.
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, M. Veronica Ewald can be reached at 571-272-8519. 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.
NATHAN VAN SELL
Primary Examiner
Art Unit 1783
/NATHAN L VAN SELL/Primary Examiner, Art Unit 1783
Prosecution Insights