DETAILED ACTION
This is in response to a request for continued examination (RCE) filed on 10/16/25 in which claims 1-6, 8-21, 23-29, 31 (submitted 10/15/25) are presented for examination.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 10/16/25 has been entered.
Examiner Notes
Examiner notes that remarks are directed to paragraph numbers in the published application, but that the original disclosure does not have paragraph numbers. For ease of reference, the paragraph numbers of the published application are utilized herein.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Claim(s) 1-6, 8-21, 23-29, 31 is/are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 Lines 10-12 “the thickness and the yarn/void ratio of the fabric provides an air space between the underlying surface and the overlying surface” is considered new matter. The original disclosure, such as indicated in [0005] and [0006] in the published application, indicate that the thickness contributes to the air space, but is silent that the yarn/void ratio helps to provide the air space. The only related recitation is [0012] of the published application wherein both the air permeability and the yarn/void ratio is recited. However, the ratio is not disclosed as being related to the air permeability, let alone the air space.
Claim 15 Lines 10-12 is rejected for reasons similarly indicated for Claim 1 Lines 10-12.
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.
Claim(s) 1-6, 8-21, 23-29, 31 is/are rejected under U.S.C. 112(b).
The term “constructed of” in Claim 1 Line 3 is unclear and therefore renders the claim indefinite. Especially in light of the issues surrounding the term “yarns” throughout the claims, it is unclear whether the term means “comprising” or “consisting of,” which further calls into question whether Claims 2 and 8 are further narrowing (see 112(d) rejection below). For the purposes of applying art and providing rejections, the term will be considered “comprising either synthetic fibers, or synthetic and natural fibers).”
Relatedly, the term “yarns formed of synthetic fibers” in Claim 2 Line 2 is unclear and therefore renders the claim indefinite. It is unclear, based on the current antecedent basis, how the term relates to “yarns constructed of synthetic, or synthetic and natural, fibers” of Claim 1 Lines 2-3. For the purposes of applying art and providing rejections, Claim 2 is considered “is consisting of the yarns formed of the synthetic fibers.” Other amendments will be considered, such as “constructed of only the yarns formed of the synthetic fibers” for Claim 2.
The term “yarns” in Claim 5 Line 2 is unclear and therefore renders the claim indefinite. It is unclear how this term “yarns” relates to “yarns” in Claim 1 Line 2. For the purposes of applying art and providing rejections, the term will be considered “wherein the fabric is consisting of the yarns formed of the synthetic fibers, wherein the synthetic fibers are formed of about 78 percent modacrylic fibers and about 22 percent flame retardant rayon fibers.”
The term “yarns formed of synthetic fibers and natural fibers” in Claim 8 Line 2 is unclear and therefore renders the claim indefinite. It is unclear, based on the current antecedent basis, how the term relates to “yarns constructed of synthetic, or synthetic and natural, fibers” of Claim 1 Lines 2-3. For the purposes of applying art and providing rejections, Claim 8 is considered “consisting of the yarns formed of the synthetic fibers and the natural fibers.”
The term “yarns” in Claim 11 Line 2 is unclear and therefore renders the claim indefinite. It is unclear how this term “yarns” relates to “yarns” in Claim 1 Line 2. For the purposes of applying art and providing rejections, the term will be considered “wherein the fabric is consisting of the yarns formed of the synthetic fibers and the natural fibers, wherein the synthetic fibers are formed of about 50 percent flame retardant rayon fibers, about 20 percent nylon fibers, and the natural fibers are formed of about 30 percent wool.”
The term “constructed of” in Claim 15 Line 3 is unclear and therefore renders the claim indefinite for reasons similarly indicated for Claim 1 Line 3 and will be similarly interpreted.
The term “yarns formed of synthetic fibers” in Claim 17 Line 2 is unclear and therefore renders the claim indefinite for reasons similarly indicated for Claim 2 Line 2 (unclear with “yarns” of Claim 15 Lines 2-3) and will be similarly interpreted.
The term “yarns” in Claim 20 Line 2 is unclear and therefore renders the claim indefinite for reasons similarly indicated for Claim 11 Line 2 and will be similarly interpreted.
The term “yarns” in Claim 23 Line 2 is unclear and therefore renders the claim indefinite for reasons similarly indicated for Claim 8 Line 2 and will be similarly interpreted.
The term “yarns” in Claim 26 Line 2 is unclear and therefore renders the claim indefinite for reasons similarly indicated for Claim 11 Line 2 and will be similarly interpreted.
The term “yarns” in Claim 31 Line 2 is unclear and therefore renders the claim indefinite. It is unclear how the term relates to “yarns” in Claim 15 Lines 2-3 and will be interpreted as “wherein the fabric is consisting of the yarns formed of the synthetic fibers and the natural fibers, wherein the natural fibers have at least one of a cotton count of 28/1 or a worsted count of 33/1”.
Dependent claims are rejected at the least for depending on rejected claims.
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.
FIRST REJECTION: As best understood in light of the 112(b) rejections-- Claim(s) 1-6, 13, 15-21, 28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Harris et al (USPN 7678718), herein Harris, in view of Cabauy et al (US Publication 2008/0235850), herein Cabauy, Iwashita (US Publication 2018/0080153), Schenk et al (USPN 10145044), herein Schenk, and Frankenbach et al (USPN 11350679), herein Frankenbach.
Regarding Claim 1, Harris teaches a knitted mesh fabric (Col. 1 Lines 57-58 "fabric for the base layer apparel may be…knit", wherein a knit constitutes a mesh; see also knit diagram of Fig. 3; see also Col. 4 Lines 38-45 and Figs. 1 and 2 for mesh), comprising:
a plurality of longitudinally and transversely extending knit yarns constructed of synthetic, or synthetic and natural fibers forming an open, planar framework (wherein all knits have longitudinal and transversely extending knit yarns; inasmuch as a mesh is taught, there is an open, planar framework; as for synthetic-- Col. 5 Lines 35-38 "any blend of at least about sixty percent modacrylic fibers and up to about forty percent flame-resistant rayon will produce a satisfactory fabric for use in the base layer apparel"; Col. 1 Lines 61-64 "yarn are ...at least about sixty percent modacrylic fibers and up to about forty percent fire-resistant viscose fibers"; Col. 3 Line 44 "viscose fibers, sometimes known as 'rayon'", wherein it is known in art that at least modacrylic is synthetic),
the open, planar framework including air transmission openings defined by a yarn/void ratio (Col. 4 Lines 38-45; inasmuch as an open, planar framework that has openings in the knit is taught, the recitation is met),
the fabric further configured to have an by air permeability between an underlying surface and overlying surface in relation to the fabric and configured for use in a garment (Col. 4 Lines 38-45; Harris teaches the open, planar framework fabric that has openings in the knit which meets the structural limitations in the claims and performs the functions as recited such as being capable of having an air permeability as recited, and such as being capable of use in a garment).
Harris does not explicitly teach that the knit is warp knit.
However, Harris teaches desiring breathability (Col. 4 Lines 55-56 "open structure also provides for enhanced air movement and ventilation").
Cabauy teaches a warp knit mesh fabric ([0029] "candidate mesh fabric materials for use...are constructed using known processes (e.g. warp knitting...)"; [0032] "variously shaped apertures are also suitable, including for example, round, oblong, hex, square, diamond, elliptical and rectangular"; [0007] "highly breathable fabric that can used for gloves and other articles of clothing (e.g. sneakers and traffic safety vests) is a mesh fabric...meshes are knitted…and made of natural and/or synthetic fibers and yarns. They provide excellent breathability due to their screen like architecture that provides easy passage for air flow due to the visible repeating pattern of apertures throughout the material"; see Fig. 8; [0056] "top and bottom face layers are typically constructed of highly breathable fabrics such as mesh fabrics"; as such, the apertures are a result of the knitted planar framework).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ knit to be warp knit as taught by Cabauy as a known knitting arrangement for breathability, which Harris also desires (Col. 4 Lines 55-56).
Furthermore, Harris does not explicitly teach the open, planar framework having an uncompressed thickness of between 0.0198 in (0.5 mm) and 0.0242 in (0.6 mm).
However, Cabauy at least suggests wherein the fabric has an uncompressed thickness of between 0.0198 in. (0.5 mm) and 0.0242 in. (0.6 mm) ([0032] "warp knitted mesh …with a thickness of about 0.013 inches, weighing about 2.2 ounces per square yard”, wherein 0.013 inches is 0.3302 mm; Even if the range measured did not overlap but was merely close, a prima facie case of obviousness still exists. See MPEP 2144.05, Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985)).
Modified Harris discloses the general conditions of the claimed invention except for the express disclosure of the thickness in the claimed range. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ thickness, as taught by Cabauy, to be at least 0.0198 inches (0.5mm), since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ thickness, as taught by Cabauy, to be 0.0198 in. (0.5 mm) based on the desired thickness of the fabric depending on intended use (see extrinsic evidence Sytz USPN 7473659), especially absent a showing of criticality with respect to the thickness range (see Table A on pages 9-11 of applicant specification, along with page 5), without unexpected results, especially as a results-effective variable, and especially as Cabauy teaches it is known that thickness affects breathability ([0051]), which Harris also desires (Col. 4 Lines 55-56).
Harris does not explicitly teach wherein the air transmission openings are defined by a yarn/void ratio of between 40-55 percent.
However, Harris teaches that air transmission is desirable (Col. 4 Lines 55-56 "open structure also provides for enhanced air movement and ventilation").
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to measure the yarn/void ratio and get the recited range. Even if the range measured did not overlap but was merely close, a prima facie case of obviousness still exists. See MPEP 2144.05, Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Modified Harris discloses the general conditions of the claimed invention except for the express disclosure of the yarn/void ratio. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the yarn/void ratio to be between 40-55 percent, since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Furthermore, absent a showing of criticality with respect to the value of the yarn/void ratio (see Table on page 9 of applicant specification), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ yarn/void ratio to be of 40-55 percent.
Nevertheless, Iwashita seems to teach wherein a yarn/void ratio is between 40-55 percent ([0008] "cloth tape is constituted by knitted fabric"; [0068] "cloth tape…has a mesh portion. The mesh portion preferably has an opening ratio defined by the formula below of 20% or more….when the opening ratio is less than 20%, there is a possibility that satisfactory air permeability cannot be obtained"; [0068] "opening ratio = (C/D) x 100(%); [0069] "wherein C is a total area of void portions surrounded by a fiber portion obtained when the fabric is projected, and D is a total area of the area of the void portions and the area of the fiber portions"; wherein an opening ratio of at least 20% calculates to a yarn/void ratio of at least 25%, wherein an opening ratio of 35% calculates to a yarn/void ratio of 53%).
Similarly as aforementioned, in the case the prior art of Iwashita lacks sufficient specificity, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Iwashita’s range of yarn/void ratio from at least 25% into 40-55% and thereby meet the range as claimed, as applicant appears to have placed no criticality on the claimed range and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), especially for air transmission purposes.
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ yarn/void ratio to be in the range of 40-55% as calculated from the opening ratio range taught by Iwashita in order to get the desired air transmission, especially as Iwashita teaches such an air transmission range is desirable in a knit mesh by its opening ratio.
Modified Harris at least suggests wherein the fabric is configured to have an air permeability is at least 1000 ft3/min/ft2 (inasmuch as all the aforementioned structures have been met, including the desired yarn/void ratio, it further would have been obvious to measure the air permeability and get the range of at least 1000 ft3/min/ft2).
Furthermore, Harris teaches that air permeability is desirable (Col. 4 Lines 55-56 "open structure also provides for enhanced air movement and ventilation").
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to measure the air permeability, especially as it is part of a known standard (see extrinsic evidence ASTM D737) and get the recited range. Even if the range measured did not overlap but was merely close, a prima facie case of obviousness still exists. See MPEP 2144.05, Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Modified Harris discloses the general conditions of the claimed invention except for the express disclosure of the air permeability value. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the air permeability to be at least 1000 ft3/min/ft2 as claimed, since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Furthermore, absent a showing of criticality with respect to the value of air permeability (see Table on page 10 of applicant specification), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ air permeability to be at least 1000 ft3/min/ft2.
Nevertheless, Schenk teaches improvement to air permeability is known (Col. 20 Lines 61-64 "mesh structure of the knitwear 811 comprises larger mesh openings than in other areas of the knitwear 811. In this way, air permeability is improved").
Furthermore, Frankenbach at least suggests an air permeability of at least 1000 ft3/min/ft2 (see Col. 11 Lines 24, 27-28 "mesh fabric...can provide a lightweight knit"; Col. 11 Lines 42, 46-47 "mesh fabric can have...breathability as measured by ASTM D737 of greater than about 923 CFM/ft2", wherein one of ordinary skill in the art would understand that “greater than about 923” seems to encompass “at least 1000”).
Similarly as aforementioned, in the case the prior art of Frankenbach lacks sufficient specificity, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Frankenbach’s range of air permeability from greater than about 923 CFM/ft2 to greater than 1000 ft3/min/ft2 and thereby meet the range of at least 1000 ft3/min/ft2 as claimed, as applicant appears to have placed no criticality on the claimed range and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), especially for air permeability purposes.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ air permeability to be at least 1000 ft3/min/ft2 as taught by Frankenbach for the desired air permeability, especially as Frankenbach teaches that such a range of air permeability is desirable in a knitted mesh, especially as Harris teaches air permeability is desirable (Col. 4 Lines 55-56), wherein it would have been within the skill of one of ordinary skill in the art to do so, such as taught by Schenk.
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that modified Harris teaches such that the thickness and the yarn/void ratio of the fabric provides an air space between the underlying surface and the overlying surface (Harris already teaches a fabric with yarns and voids, wherein any fabric has a thickness; as such, the existence of the voids in the fabric itself meet the structural limitations in the claims and performs the functions as recited such as being capable of providing air space between the underlying/overlying surfaces, inasmuch as the fabric with voids is capable of being between underlying/overlying surfaces).
Regarding Claim 2, modified Harris teaches all the claimed limitations as discussed above in Claim 1.
Harris further teaches wherein the fabric is constructed of yarns formed of synthetic fibers (Col. 5 Lines 35-38; Col. 1 Lines 61-64; Col. 3 Line 44, wherein it is known in the art that at least modacrylic is synthetic).
Regarding Claim 3, modified Harris teaches all the claimed limitations as discussed above in Claim 2.
Harris further teaches wherein the synthetic fibers are modacrylic fibers and rayon fibers (Col. 5 Lines 35-38, wherein it is known in the art that viscose rayon is synthetic, see extrinsic evidence Fabrics by the Yard NPL).
Regarding Claim 4, modified Harris teaches all the claimed limitations as discussed above in Claim 3.
Harris further teaches wherein the rayon fibers are flame retardant rayon fibers (Col. 5 Lines 35-38; Col. 1 Lines 61-64, wherein fire/flame-resistant is flame retardant).
Regarding Claim 5, modified Harris teaches all the claimed limitations as discussed above in Claim 1.
Harris seems to teach wherein the fabric is constructed of yarns formed of about 78 percent modacrylic fibers and about 22 percent flame retardant rayon fibers (Col. 5 Lines 35-38 "any blend of at least about sixty percent modacrylic fibers and up to about forty percent flame-resistant rayon will produce a satisfactory fabric for use in the base layer apparel"; Col. 1 Lines 61-64 "yarn are ...at least about sixty percent modacrylic fibers and up to about forty percent fire-resistant viscose fibers"; Col. 3 Line 44 "viscose fibers, sometimes known as 'rayon'").
Nevertheless, in the case that the prior art of Harris lacks sufficient specificity, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ range of modacrylic and rayon percentages from at least about 60% modacrylic and up to about 40% rayon into about 78% modacrylic and about 22% rayon and thereby meet the range as claimed, as applicant appears to have placed no criticality on the claimed range (see applicant specification page 9) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), especially for the purposes of achieving the desired level of properties of each material.
Regarding Claim 6, modified Harris teaches all the claimed limitations as discussed above in Claim 1.
Harris at least suggests wherein the air transmission openings are diamond-shaped in relation to a lengthwise side edge and a widthwise side edge of the fabric (see Figs. 1 and 2).
Nevertheless, Cabauy teaches wherein the air transmission openings are diamond-shaped in relation to a lengthwise side edge and a widthwise side edge of the fabric ([0032] "variously shaped apertures are also suitable, including for example, round, oblong, hex, square, diamond, elliptical and rectangular"; [0007] "highly breathable fabric that can used for gloves and other articles of clothing (e.g. sneakers and traffic safety vests) is a mesh fabric...meshes are knitted…and made of natural and/or synthetic fibers and yarns. They provide excellent breathability due to their screen like architecture that provides easy passage for air flow due to the visible repeating pattern of apertures throughout the material"; see Fig. 8; [0056] "top and bottom face layers are typically constructed of highly breathable fabrics such as mesh fabrics").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ openings to be diamond-shaped as taught by Cabauy as a known desirable shape of a knit mesh for breathability ([0007]).
Regarding Claim 13, modified Harris teaches all the claimed limitations as discussed above in Claim 1.
Harris does not explicitly teach wherein the fabric has stretch in the width direction of between about 25 percent and 35 percent.
However, Frankenbach teaches wherein the fabric has stretch in the width direction of between about 25 percent and 35 percent (Col. 7 Lines 51-55 "textile…with a percent stretch value of at least about 5% in the Y-direction and a percent stretch value of at least about 5% in the X-direction"; Col. 11 Lines 42, 44-45 "spandex mesh...about 30%...width in the X-direction (warp))"; Col. 7 Lines 61-62 "X-direction stretch that is lower than the Y-direction stretch in order to apply appropriate pressure"; Col. 8 Lines 4-6 "breathability ...greater than about 923 CFM/ft2").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ fabric to have a stretch between about 25 percent and 35 percent as taught by Frankenbach as a known desirable stretch for at least breathability.
Regarding Claim 15, Harris teaches a garment constructed of a knitted mesh fabric (Col. 1 Lines 11-13 "'base layer' apparel…refers to garments that are worn against the skin, often as inner garments such as underwear"; Col. 1 Lines 53-55 "'base layer' refers to fabric or apparel constructions for wear as a first layer directly against the skin of the wear; e.g., underwear"; Col. 1 Lines 57-58 "fabric for the base layer apparel may be…knit"; wherein a knit constitutes a mesh; see also knit diagram of Fig. 3; see also Col. 4 Lines 38-45 and Figs. 1 and 2 for mesh) comprising:
a plurality of longitudinally and transversely extending knit yarns constructed of synthetic, or synthetic and natural fibers forming an open, planar framework (wherein all knits have longitudinal and transversely extending knit yarns; inasmuch as a mesh is taught, there is an open, planar framework; as for synthetic-- Col. 5 Lines 35-38 "any blend of at least about sixty percent modacrylic fibers and up to about forty percent flame-resistant rayon will produce a satisfactory fabric for use in the base layer apparel"; Col. 1 Lines 61-64 "yarn are ...at least about sixty percent modacrylic fibers and up to about forty percent fire-resistant viscose fibers"; Col. 3 Line 44 "viscose fibers, sometimes known as 'rayon'", wherein it is known in art that at least modacrylic is synthetic),
the open, planar framework including air transmission openings defined by a yarn/void ratio (Col. 4 Lines 38-45; inasmuch as an open, planar framework that has openings in the knit is taught, the recitation is met),
the fabric further configured to have an air permeability between an underlying surface and overlying surface in relation to the fabric (Col. 4 Lines 38-45; Harris teaches the open, planar framework fabric that has openings in the knit which meets the structural limitations in the claims and performs the functions as recited such as being capable of having an air permeability as recited).
Harris does not explicitly teach that the knit is warp knit.
However, Harris teaches desiring breathability (Col. 4 Lines 55-56 "open structure also provides for enhanced air movement and ventilation").
Cabauy teaches a warp knit mesh fabric ([0029] "candidate mesh fabric materials for use...are constructed using known processes (e.g. warp knitting...)"; [0032] "variously shaped apertures are also suitable, including for example, round, oblong, hex, square, diamond, elliptical and rectangular"; [0007] "highly breathable fabric that can used for gloves and other articles of clothing (e.g. sneakers and traffic safety vests) is a mesh fabric...meshes are knitted…and made of natural and/or synthetic fibers and yarns. They provide excellent breathability due to their screen like architecture that provides easy passage for air flow due to the visible repeating pattern of apertures throughout the material"; see Fig. 8; [0056] "top and bottom face layers are typically constructed of highly breathable fabrics such as mesh fabrics"; as such, the apertures are a result of the knitted planar framework).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ knit to be warp knit as taught by Cabauy as a known knitting arrangement for breathability, which Harris also desires (Col. 4 Lines 55-56).
Furthermore, Harris does not explicitly teach the open, planar framework having an uncompressed thickness of between 0.0198 in (0.5 mm) and 0.0242 in (0.6 mm).
However, Cabauy at least suggests wherein the fabric has an uncompressed thickness of between 0.0198 in. (0.5 mm) and 0.0242 in. (0.6 mm) ([0032] "warp knitted mesh …with a thickness of about 0.013 inches, weighing about 2.2 ounces per square yard”, wherein 0.013 inches is 0.3302 mm; Even if the range measured did not overlap but was merely close, a prima facie case of obviousness still exists. See MPEP 2144.05, Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985)).
Modified Harris discloses the general conditions of the claimed invention except for the express disclosure of the thickness in the claimed range. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ thickness, as taught by Cabauy, to be at least 0.0198 inches (0.5mm), since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ thickness, as taught by Cabauy, to be 0.0198 in. (0.5 mm) based on the desired thickness of the fabric depending on intended use (see extrinsic evidence Sytz USPN 7473659), especially absent a showing of criticality with respect to the thickness range (see Table A on pages 9-11 of applicant specification, along with page 5), without unexpected results, especially as a results-effective variable, and especially as Cabauy teaches it is known that thickness affects breathability ([0051]), which Harris also desires (Col. 4 Lines 55-56).
Harris does not explicitly teach wherein the air transmission openings are defined by a yarn/void ratio of between 40-55 percent.
However, Harris teaches that air transmission is desirable (Col. 4 Lines 55-56 "open structure also provides for enhanced air movement and ventilation").
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to measure the yarn/void ratio and get the recited range. Even if the range measured did not overlap but was merely close, a prima facie case of obviousness still exists. See MPEP 2144.05, Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Modified Harris discloses the general conditions of the claimed invention except for the express disclosure of the yarn/void ratio. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the yarn/void ratio to be between 40-55 percent, since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Furthermore, absent a showing of criticality with respect to the value of the yarn/void ratio (see Table on page 9 of applicant specification), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ yarn/void ratio to be of 40-55 percent.
Nevertheless, Iwashita seems to teach wherein a yarn/void ratio is between 40-55 percent ([0008] "cloth tape is constituted by knitted fabric"; [0068] "cloth tape…has a mesh portion. The mesh portion preferably has an opening ratio defined by the formula below of 20% or more….when the opening ratio is less than 20%, there is a possibility that satisfactory air permeability cannot be obtained"; [0068] "opening ratio = (C/D) x 100(%); [0069] "wherein C is a total area of void portions surrounded by a fiber portion obtained when the fabric is projected, and D is a total area of the area of the void portions and the area of the fiber portions"; wherein an opening ratio of at least 20% calculates to a yarn/void ratio of at least 25%, wherein an opening ratio of 35% calculates to a yarn/void ratio of 53%).
Similarly as aforementioned, in the case the prior art of Iwashita lacks sufficient specificity, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Iwashita’s range of yarn/void ratio from at least 25% into 40-55% and thereby meet the range as claimed, as applicant appears to have placed no criticality on the claimed range and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), especially for air transmission purposes.
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ yarn/void ratio to be in the range of 40-55% as calculated from the opening ratio range taught by Iwashita in order to get the desired air transmission, especially as Iwashita teaches such an air transmission range is desirable in a knit mesh by its opening ratio.
Modified Harris at least suggests wherein the fabric is configured to have an air permeability is at least 1000 ft3/min/ft2 (inasmuch as all the aforementioned structures have been met, including the desired yarn/void ratio, it further would have been obvious to measure the air permeability and get the range of at least 1000 ft3/min/ft2).
Furthermore, Harris teaches that air permeability is desirable (Col. 4 Lines 55-56 "open structure also provides for enhanced air movement and ventilation").
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to measure the air permeability, especially as it is part of a known standard (see extrinsic evidence ASTM D737) and get the recited range. Even if the range measured did not overlap but was merely close, a prima facie case of obviousness still exists. See MPEP 2144.05, Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Modified Harris discloses the general conditions of the claimed invention except for the express disclosure of the air permeability value. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the air permeability to be at least 1000 ft3/min/ft2 as claimed, since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Furthermore, absent a showing of criticality with respect to the value of air permeability (see Table on page 10 of applicant specification), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ air permeability to be at least 1000 ft3/min/ft2.
Nevertheless, Schenk teaches improvement to air permeability is known (Col. 20 Lines 61-64 "mesh structure of the knitwear 811 comprises larger mesh openings than in other areas of the knitwear 811. In this way, air permeability is improved").
Furthermore, Frankenbach at least suggests an air permeability of at least 1000 ft3/min/ft2 (see Col. 11 Lines 24, 27-28 "mesh fabric...can provide a lightweight knit"; Col. 11 Lines 42, 46-47 "mesh fabric can have...breathability as measured by ASTM D737 of greater than about 923 CFM/ft2", wherein one of ordinary skill in the art would understand that “greater than about 923” seems to encompass “at least 1000”).
Similarly as aforementioned, in the case the prior art of Frankenbach lacks sufficient specificity, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Frankenbach’s range of air permeability from greater than about 923 CFM/ft2 to greater than 1000 ft3/min/ft2 and thereby meet the range of at least 1000 ft3/min/ft2 as claimed, as applicant appears to have placed no criticality on the claimed range and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), especially for air permeability purposes.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ air permeability to be at least 1000 ft3/min/ft2 as taught by Frankenbach for the desired air permeability, especially as Frankenbach teaches that such a range of air permeability is desirable in a knitted mesh, especially as Harris teaches air permeability is desirable (Col. 4 Lines 55-56), wherein it would have been within the skill of one of ordinary skill in the art to do so, such as taught by Schenk.
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that modified Harris teaches such that the thickness and the yarn/void ratio of the fabric provides an air space between the underlying surface and the overlying surface (Harris already teaches a fabric with yarns and voids, wherein any fabric has a thickness; as such, the existence of the voids in the fabric itself meet the structural limitations in the claims and performs the functions as recited such as being capable of providing air space between the underlying/overlying surfaces, inasmuch as the fabric with voids is capable of being between underlying/overlying surfaces).
Regarding Claim 16, modified Harris teaches all the claimed limitations as discussed above in Claim 15.
Harris further teaches wherein the garment is an undergarment selected from the group consisting of an upper body undergarment for a human, a lower body undergarment for a human and a full body garment for a human (Col. 1 Lines 11-13 "'base layer' apparel…refers to garments that are worn against the skin, often as inner garments such as underwear"; Col. 1 Lines 53-55 "'base layer' refers to fabric or apparel constructions for wear as a first layer directly against the skin of the wear; e.g., underwear", wherein underwear is a lower body undergarment for a human).
Regarding Claim 17, modified Harris teaches all the claimed limitations as discussed above in Claim 16.
Harris further teaches wherein the fabric is constructed of yarns formed of synthetic fibers (Col. 5 Lines 35-38; Col. 1 Lines 61-64; Col. 3 Line 44, wherein it is known in the art that at least modacrylic is synthetic).
Regarding Claim 18, modified Harris teaches all the claimed limitations as discussed above in Claim 17.
Harris further teaches wherein the synthetic fibers are modacrylic fibers and rayon fibers (Col. 5 Lines 35-38, wherein it is known in the art that viscose rayon is synthetic, see extrinsic evidence Fabrics by the Yard NPL).
Regarding Claim 19, modified Harris teaches all the claimed limitations as discussed above in Claim 18.
Harris further teaches wherein the rayon fibers are flame retardant rayon fibers (Col. 5 Lines 35-38; Col. 1 Lines 61-64, wherein fire/flame-resistant is flame retardant).
Regarding Claim 20, modified Harris teaches all the claimed limitations as discussed above in Claim 15.
Harris seems to teach wherein the fabric is constructed of yarns formed of about 78 percent modacrylic fibers and about 22 percent flame retardant rayon fibers (Col. 5 Lines 35-38 "any blend of at least about sixty percent modacrylic fibers and up to about forty percent flame-resistant rayon will produce a satisfactory fabric for use in the base layer apparel"; Col. 1 Lines 61-64 "yarn are ...at least about sixty percent modacrylic fibers and up to about forty percent fire-resistant viscose fibers"; Col. 3 Line 44 "viscose fibers, sometimes known as 'rayon'").
Nevertheless, in the case that the prior art of Harris lacks sufficient specificity, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ range of modacrylic and rayon percentages from at least about 60% modacrylic and up to about 40% rayon into about 78% modacrylic and about 22% rayon and thereby meet the range as claimed, as applicant appears to have placed no criticality on the claimed range (see applicant specification page 9) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), especially for the purposes of achieving the desired level of properties of each material.
Regarding Claim 21, modified Harris teaches all the claimed limitations as discussed above in Claim 15.
Harris at least suggests wherein the air transmission openings are diamond-shaped in relation to a lengthwise side edge and a widthwise side edge of the fabric (see Figs. 1 and 2).
Nevertheless, Cabauy teaches wherein the air transmission openings are diamond-shaped in relation to a lengthwise side edge and a widthwise side edge of the fabric ([0032] "variously shaped apertures are also suitable, including for example, round, oblong, hex, square, diamond, elliptical and rectangular"; [0007] "highly breathable fabric that can used for gloves and other articles of clothing (e.g. sneakers and traffic safety vests) is a mesh fabric...meshes are knitted…and made of natural and/or synthetic fibers and yarns. They provide excellent breathability due to their screen like architecture that provides easy passage for air flow due to the visible repeating pattern of apertures throughout the material"; see Fig. 8; [0056] "top and bottom face layers are typically constructed of highly breathable fabrics such as mesh fabrics").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ openings to be diamond-shaped as taught by Cabauy as a known desirable shape of a knit mesh for breathability ([0007]).
Regarding Claim 28, modified Harris teaches all the claimed limitations as discussed above in Claim 15.
Harris does not explicitly teach wherein the fabric has stretch in the width direction of between about 25 percent and 35 percent.
However, Frankenbach teaches wherein the fabric has stretch in the width direction of between about 25 percent and 35 percent (Col. 7 Lines 51-55 "textile…with a percent stretch value of at least about 5% in the Y-direction and a percent stretch value of at least about 5% in the X-direction"; Col. 11 Lines 42, 44-45 "spandex mesh...about 30%...width in the X-direction (warp))"; Col. 7 Lines 61-62 "X-direction stretch that is lower than the Y-direction stretch in order to apply appropriate pressure"; Col. 8 Lines 4-6 "breathability ...greater than about 923 CFM/ft2").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ fabric to have a stretch between about 25 percent and 35 percent as taught by Frankenbach as a known desirable stretch for at least breathability.
As best understood in light of the 112(b) rejections-- Claim(s) 12, 27 is/are rejected under 35 U.S.C. 103 as being unpatentable over Harris et al (USPN 7678718), herein Harris, in view of Cabauy et al (US Publication 2008/0235850), herein Cabauy, Iwashita (US Publication 2018/0080153), Schenk et al (USPN 10145044), herein Schenk, and Frankenbach et al (USPN 11350679), herein Frankenbach, as applied to the FIRST REJECTION above, further in view of Gehring Jr (US Publication 2008/0081529).
Regarding Claim 12, modified Harris teaches all the claimed limitations as discussed above in Claim 1.
Modified Harris does not explicitly teach wherein the warp knit fabric is a tricot warp knit fabric.
Gehring teaches wherein the warp knit fabric is a tricot warp knit fabric ([0032] "knitted fabric produced on...a warp...knit system...for warp knits, suitable equipment is...tricot").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ warp knit as provided by Cabauy to be tricot warp knit as taught by Gehring as a known method for warp knits.
Regarding Claim 27, modified Harris teaches all the claimed limitations as discussed above in Claim 15.
Modified Harris does not explicitly teach wherein the warp knit fabric is a tricot warp knit fabric.
Gehring teaches wherein the warp knit fabric is a tricot warp knit fabric ([0032] "knitted fabric produced on...a warp...knit system...for warp knits, suitable equipment is...tricot").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ warp knit as provided by Cabauy to be tricot warp knit as taught by Gehring as a known method for warp knits.
As best understood in light of the 112(b) rejections-- Claim(s) 14, 29 is/are rejected under 35 U.S.C. 103 as being unpatentable over Harris et al (USPN 7678718), herein Harris, in view of Cabauy et al (US Publication 2008/0235850), herein Cabauy, Iwashita (US Publication 2018/0080153), Schenk et al (USPN 10145044), herein Schenk, and Frankenbach et al (USPN 11350679), herein Frankenbach, as applied to the FIRST REJECTION above, further in view of Bonin (US Publication 2017/0106622).
Regarding Claim 14, modified Harris teaches all the claimed limitations as discussed above in Claim 1.
Harris does not explicitly teach wherein the fabric has a weight of between about 3.5 oz/yd2 (118 g/m2) and about 4.3 oz/yd2 (146 g/m2).
However, Harris does teach desiring a light weight fabric and breathability (Col. 3 Lines 58-60 "intimate blend of modacrylic and fire resistant viscose fibers may be used to form a lighter weight fabric construction"; Col. 4 Lines 55-56 "open structure also provides for enhanced air movement and ventilation").
Bonin teaches the fabric has a weight of between about 3.5 oz/yd2 (118 g/m2) and about 4.3 oz/yd2 (146 g/m2) ([0019] "weight of the base material is approximately 3 to 6 ounces per yard for the wearable article designed for cooling purposes”, wherein one of ordinary skill in the art understands that weight is measured per square yard).
In the case the prior art of Bonin lacks sufficient specificity, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Bonin’s range of weight from approximately 3 to 6 oz/yd2 to 3 to 4.3 oz/yd2 and thereby meet the range 3.5 to 4.3 oz/yd2 claimed, as applicant appears to have placed no criticality on the claimed range and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ fabric weight to be 3.5 to 4.3 oz/yd2 as taught by Bonin as a known desirable light weight for knit fabrics, especially for cooling/breathability purposes.
Regarding Claim 29, modified Harris teaches all the claimed limitations as discussed above in Claim 15.
Harris does not explicitly teach wherein the fabric has a weight of between about 3.5 oz/yd2 (118 g/m2) and about 4.3 oz/yd2 (146 g/m2).
However, Harris does teach desiring a light weight fabric and breathability (Col. 3 Lines 58-60 "intimate blend of modacrylic and fire resistant viscose fibers may be used to form a lighter weight fabric construction"; Col. 4 Lines 55-56 "open structure also provides for enhanced air movement and ventilation").
Bonin teaches the fabric has a weight of between about 3.5 oz/yd2 (118 g/m2) and about 4.3 oz/yd2 (146 g/m2) ([0019] "weight of the base material is approximately 3 to 6 ounces per yard for the wearable article designed for cooling purposes”, wherein one of ordinary skill in the art understands that weight is measured per square yard).
In the case the prior art of Bonin lacks sufficient specificity, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Bonin’s range of weight from approximately 3 to 6 oz/yd2 to 3 to 4.3 oz/yd2 and thereby meet the range 3.5 to 4.3 oz/yd2 claimed, as applicant appears to have placed no criticality on the claimed range and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Harris’ fabric weight to be 3.5 to 4.3 oz/yd2 as taught by Bonin as a known desirable light weight for knit fabrics, especially for cooling/breathability purposes.
SECOND REJECTION: As best understood in light of the 112(b) rejections--Claim(s) 1, 8-10, 15, 23-25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Urbelis (USPN 11208744), in view of Cabauy et al (US Publication 2008/0235850), herein Cabauy, Iwashita (US Publication 2018/0080153), Schenk et al (USPN 10145044), herein Schenk, and Frankenbach et al (USPN 11350679), herein Frankenbach.
Regarding Claim 1, Urbelis teaches a knitted mesh fabric (see Figs. 1 and 2; Col. 10 Lines 8-10 "knitted fabric according to the present invention comprises...bottom layer 2", wherein all knits constitute a mesh; see also Figs. 1, 2, wherein 2 being the bottom layer has openings), comprising:
a plurality of longitudinally and transversely extending knitted yarns constructed of synthetic, or synthetic and natural fibers forming an open, planar framework (wherein all knits have longitudinal and transversely extending knit yarns; inasmuch as a mesh is taught, there is an open, planar framework especially as shown in Fig. 2 for bottom layer 2; as for synthetic and natural-- Col. 6 Lines 56-64 "fabric is utilized in at least a portion of a protective clothing that may abut the skin of a human body, the bottom layer of the knitted 3D fabric may consist of fibers from at least one of: FRCV (flame retardant viscose fiber), PA (polyamide), and natural fiber yarns such as...wool. Said material will be comfortable against the skin. At least some of the fibers reduce accumulation of moisture and create favourable air circulation conditions ", wherein it is known in art that at least polyamide is synthetic and wool is natural),
the open, planar framework including air transmission openings defined by a yarn/void ratio (see Fig. 2; inasmuch as an open, planar framework that has openings in the knit is taught, the recitation is met),
the fabric further configured to have an by air permeability between an underlying surface and overlying surface in relation to the fabric and configured for use in a garment (see Fig. 2; Urbelis teaches the open, planar framework fabric that has openings in the knit which meets the structural limitations in the claims and performs the functions as recited such as being capable of having an air permeability as recited, and such as being capable of use in a garment).
Urbelis does not explicitly teach that the knit is warp knit.
However, Urbelis teaches desiring breathability (Col. 6 Lines 63-64 "fibers reduce accumulation of moisture and create favourable air circulation conditions”).
Cabauy teaches a warp knit mesh fabric ([0029] "candidate mesh fabric materials for use...are constructed using known processes (e.g. warp knitting, weft knitting...)"; [0032] "variously shaped apertures are also suitable, including for example, round, oblong, hex, square, diamond, elliptical and rectangular"; [0007] "highly breathable fabric that can used for gloves and other articles of clothing (e.g. sneakers and traffic safety vests) is a mesh fabric...meshes are knitted…and made of natural and/or synthetic fibers and yarns. They provide excellent breathability due to their screen like architecture that provides easy passage for air flow due to the visible repeating pattern of apertures throughout the material"; see Fig. 8; [0056] "top and bottom face layers are typically constructed of highly breathable fabrics such as mesh fabrics"; as such, the apertures are a result of the knitted planar framework).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ knit to be warp knit as taught by Cabauy as a known knitting arrangement for breathability, which Urbelis also desires (Col. 6 Lines 63-64).
Furthermore, Urbelis does not explicitly teach the open, planar framework having an uncompressed thickness of between 0.0198 in (0.5 mm) and 0.0242 in (0.6 mm).
However, Cabauy at least suggests wherein the fabric has an uncompressed thickness of between 0.0198 in. (0.5 mm) and 0.0242 in. (0.6 mm) ([0032] "warp knitted mesh …with a thickness of about 0.013 inches, weighing about 2.2 ounces per square yard”, wherein 0.013 inches is 0.3302 mm; Even if the range measured did not overlap but was merely close, a prima facie case of obviousness still exists. See MPEP 2144.05, Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985)).
Modified Urbelis discloses the general conditions of the claimed invention except for the express disclosure of the thickness in the claimed range. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ thickness, as taught by Cabauy, to be at least 0.0198 inches (0.5mm), since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ thickness, as taught by Cabauy, to be 0.0198 in. (0.5 mm) based on the desired thickness of the fabric depending on intended use (see extrinsic evidence Sytz USPN 7473659), especially absent a showing of criticality with respect to the thickness range (see Table A on pages 9-11 of applicant specification, along with page 5), without unexpected results, especially as a results-effective variable, and especially as Cabauy teaches it is known that thickness affects breathability ([0051]), which Urbelis also desires (Col. 6 Lines 63-64).
Urbelis also does not explicitly teach wherein the air transmission openings are defined by a yarn/void ratio of between 40-55 percent.
However, Urbelis teaches that air transmission is desirable (Col. 6 Lines 63-64 "fibers reduce accumulation of moisture and create favourable air circulation conditions”).
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to measure the yarn/void ratio and get the recited range. Even if the range measured did not overlap but was merely close, a prima facie case of obviousness still exists. See MPEP 2144.05, Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Modified Urbelis discloses the general conditions of the claimed invention except for the express disclosure of the yarn/void ratio. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the yarn/void ratio to be between 40-55 percent, since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Furthermore, absent a showing of criticality with respect to the value of the yarn/void ratio (see Table on page 9 of applicant specification), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ yarn/void ratio to be of 40-55 percent.
Nevertheless, Iwashita seems to teach wherein a yarn/void ratio is between 40-55 percent ([0008] "cloth tape is constituted by knitted fabric"; [0068] "cloth tape…has a mesh portion. The mesh portion preferably has an opening ratio defined by the formula below of 20% or more….when the opening ratio is less than 20%, there is a possibility that satisfactory air permeability cannot be obtained"; [0068] "opening ratio = (C/D) x 100(%); [0069] "wherein C is a total area of void portions surrounded by a fiber portion obtained when the fabric is projected, and D is a total area of the area of the void portions and the area of the fiber portions"; wherein an opening ratio of at least 20% calculates to a yarn/void ratio of at least 25%, wherein an opening ratio of 35% calculates to a yarn/void ratio of 53%).
Similarly as aforementioned, in the case the prior art of Iwashita lacks sufficient specificity, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Iwashita’s range of yarn/void ratio from at least 25% into 40-55% and thereby meet the range as claimed, as applicant appears to have placed no criticality on the claimed range and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), especially for air transmission purposes.
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ yarn/void ratio to be in the range of 40-55% as calculated from the opening ratio range taught by Iwashita in order to get the desired air transmission, especially as Iwashita teaches such an air transmission range is desirable in a knit mesh by its opening ratio.
Modified Urbelis at least suggests wherein the fabric is configured to have an air permeability is at least 1000 ft3/min/ft2 (inasmuch as all the aforementioned structures have been met, including the desired yarn/void ratio, it further would have been obvious to measure the air permeability and get the range of at least 1000 ft3/min/ft2).
Furthermore, Urbelis teaches that air permeability is desirable (Col. 6 Lines 63-64 "fibers reduce accumulation of moisture and create favourable air circulation conditions”).
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to measure the air permeability, especially as it is part of a known standard (see extrinsic evidence ASTM D737) and get the recited range. Even if the range measured did not overlap but was merely close, a prima facie case of obviousness still exists. See MPEP 2144.05, Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Modified Urbelis discloses the general conditions of the claimed invention except for the express disclosure of the air permeability value. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the air permeability to be at least 1000 ft3/min/ft2 as claimed, since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Furthermore, absent a showing of criticality with respect to the value of air permeability (see Table on page 10 of applicant specification), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ air permeability to be at least 1000 ft3/min/ft2.
Nevertheless, Schenk teaches improvement to air permeability is known (Col. 20 Lines 61-64 "mesh structure of the knitwear 811 comprises larger mesh openings than in other areas of the knitwear 811. In this way, air permeability is improved").
Furthermore, Frankenbach at least suggests an air permeability of at least 1000 ft3/min/ft2 (see Col. 11 Lines 24, 27-28 "mesh fabric...can provide a lightweight knit"; Col. 11 Lines 42, 46-47 "mesh fabric can have...breathability as measured by ASTM D737 of greater than about 923 CFM/ft2", wherein one of ordinary skill in the art would understand that “greater than about 923” seems to encompass “at least 1000”).
Similarly as aforementioned, in the case the prior art of Frankenbach lacks sufficient specificity, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Frankenbach’s range of air permeability from greater than about 923 CFM/ft2 to greater than 1000 ft3/min/ft2 and thereby meet the range of at least 1000 ft3/min/ft2 as claimed, as applicant appears to have placed no criticality on the claimed range and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), especially for air permeability purposes.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ air permeability to be at least 1000 ft3/min/ft2 as taught by Frankenbach for the desired air permeability, especially as Frankenbach teaches that such a range of air permeability is desirable in a knitted mesh, especially as Urbelis teaches air permeability is desirable (Col. 6 Lines 63-64), wherein it would have been within the skill of one of ordinary skill in the art to do so, such as taught by Schenk.
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that modified Urbelis teaches such that the thickness and the yarn/void ratio of the fabric provides an air space between the underlying surface and the overlying surface (Urbelis already teaches a fabric with yarns and voids, wherein any fabric has a thickness; as such, the existence of the voids in the fabric itself meet the structural limitations in the claims and performs the functions as recited such as being capable of providing air space between the underlying/overlying surfaces, inasmuch as the fabric with voids is capable of being between underlying/overlying surfaces).
Regarding Claim 8, modified Urbelis teaches all the claimed limitations as discussed above in Claim 1.
Urbelis further teaches wherein the fabric is constructed of yarns formed of synthetic fibers and natural fibers (see Figs. 1 and 2; Col. 10 Lines 8-10; Col. 6 Lines 56-64, wherein it is known in the art that at least polyamide is synthetic and that wool is natural).
Regarding Claim 9, modified Urbelis teaches all the claimed limitations as discussed above in Claim 8.
Urbelis further teaches wherein the synthetic fibers are rayon and nylon fibers (see Figs. 1 and 2; Col. 10 Lines 8-10; Col. 6 Lines 56-64, wherein it is known in the art that viscose is rayon and polyamide is nylon, and that viscose rayon and nylon are synthetic; see extrinsic evidence Fabrics by the Yard NPL),
and the natural fibers are wool fibers (see Figs. 1 and 2; Col. 10 Lines 8-10; Col. 6 Lines 56-64).
Regarding Claim 10, modified Urbelis teaches all the claimed limitations as discussed above in Claim 9.
Urbelis further teaches wherein the rayon fibers are flame retardant rayon fibers (Col. 6 Lines 56-64).
Regarding Claim 15, Urbelis teaches a garment constructed of a knitted mesh fabric (see Figs. 1 and 2; Col. 10 Lines 8-10 "knitted fabric according to the present invention comprises...bottom layer 2", wherein all knits constitute a mesh; see also Figs. 1, 2, wherein 2 being the bottom layer has openings; Col. 6 Lines 56-64 "fabric is utilized in at least a portion of a protective clothing that may abut the skin of a human body, the bottom layer of the knitted 3D fabric may consist of fibers from at least one of: FRCV (flame retardant viscose fiber), PA (polyamide), and natural fiber yarns such as...wool. Said material will be comfortable against the skin. At least some of the fibers reduce accumulation of moisture and create favourable air circulation conditions”, wherein protective clothing indicates garment), comprising:
the open, planar framework including air transmission openings defined by a yarn/void ratio (see Fig. 2; inasmuch as an open, planar framework that has openings in the knit is taught, the recitation is met),
the fabric further configured to have an air permeability between an underlying surface and overlying surface in relation to the fabric (see Fig. 2; Urbelis teaches the open, planar framework fabric that has openings in the knit which meets the structural limitations in the claims and performs the functions as recited such as being capable of having an air permeability as recited).
Urbelis does not explicitly teach that the knit is warp knit.
However, Urbelis teaches desiring breathability (Col. 6 Lines 63-64 "fibers reduce accumulation of moisture and create favourable air circulation conditions”).
Cabauy teaches a warp knit mesh fabric ([0029] "candidate mesh fabric materials for use...are constructed using known processes (e.g. warp knitting, weft knitting...)"; [0032] "variously shaped apertures are also suitable, including for example, round, oblong, hex, square, diamond, elliptical and rectangular"; [0007] "highly breathable fabric that can used for gloves and other articles of clothing (e.g. sneakers and traffic safety vests) is a mesh fabric...meshes are knitted…and made of natural and/or synthetic fibers and yarns. They provide excellent breathability due to their screen like architecture that provides easy passage for air flow due to the visible repeating pattern of apertures throughout the material"; see Fig. 8; [0056] "top and bottom face layers are typically constructed of highly breathable fabrics such as mesh fabrics"; as such, the apertures are a result of the knitted planar framework).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ knit to be warp knit as taught by Cabauy as a known knitting arrangement for breathability, which Urbelis also desires (Col. 6 Lines 63-64).
Furthermore, Urbelis does not explicitly teach the open, planar framework having an uncompressed thickness of between 0.0198 in (0.5 mm) and 0.0242 in (0.6 mm).
However, Cabauy at least suggests wherein the fabric has an uncompressed thickness of between 0.0198 in. (0.5 mm) and 0.0242 in. (0.6 mm) ([0032] "warp knitted mesh …with a thickness of about 0.013 inches, weighing about 2.2 ounces per square yard”, wherein 0.013 inches is 0.3302 mm; Even if the range measured did not overlap but was merely close, a prima facie case of obviousness still exists. See MPEP 2144.05, Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985)).
Modified Urbelis discloses the general conditions of the claimed invention except for the express disclosure of the thickness in the claimed range. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ thickness, as taught by Cabauy, to be at least 0.0198 inches (0.5mm), since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ thickness, as taught by Cabauy, to be 0.0198 in. (0.5 mm) based on the desired thickness of the fabric depending on intended use (see extrinsic evidence Sytz USPN 7473659), especially absent a showing of criticality with respect to the thickness range (see Table A on pages 9-11 of applicant specification, along with page 5), without unexpected results, especially as a results-effective variable, and especially as Cabauy teaches it is known that thickness affects breathability ([0051]), which Urbelis also desires (Col. 6 Lines 63-64).
Urbelis also does not explicitly teach wherein the air transmission openings are defined by a yarn/void ratio of between 40-55 percent.
However, Urbelis teaches that air transmission is desirable (Col. 6 Lines 63-64 "fibers reduce accumulation of moisture and create favourable air circulation conditions”).
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to measure the yarn/void ratio and get the recited range. Even if the range measured did not overlap but was merely close, a prima facie case of obviousness still exists. See MPEP 2144.05, Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Modified Urbelis discloses the general conditions of the claimed invention except for the express disclosure of the yarn/void ratio. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the yarn/void ratio to be between 40-55 percent, since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Furthermore, absent a showing of criticality with respect to the value of the yarn/void ratio (see Table on page 9 of applicant specification), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ yarn/void ratio to be of 40-55 percent.
Nevertheless, Iwashita seems to teach wherein a yarn/void ratio is between 40-55 percent ([0008] "cloth tape is constituted by knitted fabric"; [0068] "cloth tape…has a mesh portion. The mesh portion preferably has an opening ratio defined by the formula below of 20% or more….when the opening ratio is less than 20%, there is a possibility that satisfactory air permeability cannot be obtained"; [0068] "opening ratio = (C/D) x 100(%); [0069] "wherein C is a total area of void portions surrounded by a fiber portion obtained when the fabric is projected, and D is a total area of the area of the void portions and the area of the fiber portions"; wherein an opening ratio of at least 20% calculates to a yarn/void ratio of at least 25%, wherein an opening ratio of 35% calculates to a yarn/void ratio of 53%).
Similarly as aforementioned, in the case the prior art of Iwashita lacks sufficient specificity, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Iwashita’s range of yarn/void ratio from at least 25% into 40-55% and thereby meet the range as claimed, as applicant appears to have placed no criticality on the claimed range and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), especially for air transmission purposes.
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ yarn/void ratio to be in the range of 40-55% as calculated from the opening ratio range taught by Iwashita in order to get the desired air transmission, especially as Iwashita teaches such an air transmission range is desirable in a knit mesh by its opening ratio.
Modified Urbelis at least suggests wherein the fabric is configured to have an air permeability is at least 1000 ft3/min/ft2 (inasmuch as all the aforementioned structures have been met, including the desired yarn/void ratio, it further would have been obvious to measure the air permeability and get the range of at least 1000 ft3/min/ft2).
Furthermore, Urbelis teaches that air permeability is desirable (Col. 6 Lines 63-64 "fibers reduce accumulation of moisture and create favourable air circulation conditions”).
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to measure the air permeability, especially as it is part of a known standard (see extrinsic evidence ASTM D737) and get the recited range. Even if the range measured did not overlap but was merely close, a prima facie case of obviousness still exists. See MPEP 2144.05, Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Modified Urbelis discloses the general conditions of the claimed invention except for the express disclosure of the air permeability value. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the air permeability to be at least 1000 ft3/min/ft2 as claimed, since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Furthermore, absent a showing of criticality with respect to the value of air permeability (see Table on page 10 of applicant specification), it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ air permeability to be at least 1000 ft3/min/ft2..
Nevertheless, Schenk teaches improvement to air permeability is known (Col. 20 Lines 61-64 "mesh structure of the knitwear 811 comprises larger mesh openings than in other areas of the knitwear 811. In this way, air permeability is improved").
Furthermore, Frankenbach at least suggests an air permeability of at least 1000 ft3/min/ft2 (see Col. 11 Lines 24, 27-28 "mesh fabric...can provide a lightweight knit"; Col. 11 Lines 42, 46-47 "mesh fabric can have...breathability as measured by ASTM D737 of greater than about 923 CFM/ft2", wherein one of ordinary skill in the art would understand that “greater than about 923” seems to encompass “at least 1000”).
Similarly as aforementioned, in the case the prior art of Frankenbach lacks sufficient specificity, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Frankenbach’s range of air permeability from greater than about 923 CFM/ft2 to greater than 1000 ft3/min/ft2 and thereby meet the range of at least 1000 ft3/min/ft2 as claimed, as applicant appears to have placed no criticality on the claimed range and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), especially for air permeability purposes.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ air permeability to be at least 1000 ft3/min/ft2 as taught by Frankenbach for the desired air permeability, especially as Frankenbach teaches that such a range of air permeability is desirable in a knitted mesh, especially as Urbelis teaches air permeability is desirable (Col. 6 Lines 63-64), wherein it would have been within the skill of one of ordinary skill in the art to do so, such as taught by Schenk.
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that modified Urbelis teaches such that the thickness and the yarn/void ratio of the fabric provides an air space between the underlying surface and the overlying surface (Urbelis already teaches a fabric with yarns and voids, wherein any fabric has a thickness; as such, the existence of the voids in the fabric itself meet the structural limitations in the claims and performs the functions as recited such as being capable of providing air space between the underlying/overlying surfaces, inasmuch as the fabric with voids is capable of being between underlying/overlying surfaces).
Regarding Claim 23, modified Urbelis teaches all the claimed limitations as discussed above in Claim 15.
Urbelis further teaches wherein the fabric is constructed of yarns formed of synthetic fibers and natural fibers (see Figs. 1 and 2; Col. 10 Lines 8-10; Col. 6 Lines 56-64, wherein it is known in the art that at least polyamide is synthetic and that wool is natural).
Regarding Claim 24, modified Urbelis teaches all the claimed limitations as discussed above in Claim 23.
Urbelis further teaches wherein the synthetic fibers are rayon and nylon fibers (see Figs. 1 and 2; Col. 10 Lines 8-10; Col. 6 Lines 56-64, wherein it is known in the art that viscose is rayon and polyamide is nylon, and that viscose rayon and nylon are synthetic; see extrinsic evidence Fabrics by the Yard NPL),
and the natural fibers are wool fibers (see Figs. 1 and 2; Col. 10 Lines 8-10; Col. 6 Lines 56-64).
Regarding Claim 25, modified Urbelis teaches all the claimed limitations as discussed above in Claim 24.
Urbelis further teaches wherein the rayon fibers are flame retardant rayon fibers (Col. 6 Lines 56-64).
Claim(s) 11, 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Urbelis (USPN 11208744), in view of Cabauy et al (US Publication 2008/0235850), herein Cabauy, Iwashita (US Publication 2018/0080153), Schenk et al (USPN 10145044), herein Schenk, and Frankenbach et al (USPN 11350679), herein Frankenbach, as applied to the SECOND REJECTION above, further in view of Podhajny (USPN 8997530).
Regarding Claim 11, modified Urbelis teaches all the claimed limitations as discussed above in Claim 10.
Urbelis does not explicitly teach wherein the fabric is constructed of yarns formed of about 50 percent flame retardant rayon,
about 30 percent wool
and about 20 percent nylon fibers.
However, Podhajny teaches that the advantages of each material claimed (rayon, wool, nylon) are known (Col. 7 Line 67-Col. 8 Line 4 "rayon provides high luster and moisture absorption. Wool also provides high moisture absorption, in addition to insulating properties and biodegradability. Nylon is a durable and abrasion-resistant material with relatively high strength").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ range of rayon, wool, and nylon percentages to be 50% rayon, 30% wool, and 20% nylon as claimed, as applicant appears to have placed no criticality on the claimed range (see applicant specification page 9) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), especially for the purposes of achieving the desired properties of each material.
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ rayon, wool, and nylon composition to be 50%, 30%, and 20% as claimed in order to achieve desired properties as taught by Podhajny, wherein it is well within the skill of one of ordinary skill in the art to modify the percentages based on amount of advantage of each material desired without unexpected results.
Regarding Claim 26, modified Urbelis teaches all the claimed limitations as discussed above in Claim 24.
Urbelis does not explicitly teach wherein the fabric is constructed of yarns formed of about 50 percent flame retardant rayon,
about 30 percent wool
and about 20 percent nylon fibers.
However, Podhajny teaches that the advantages of each material claimed (rayon, wool, nylon) are known (Col. 7 Line 67-Col. 8 Line 4 "rayon provides high luster and moisture absorption. Wool also provides high moisture absorption, in addition to insulating properties and biodegradability. Nylon is a durable and abrasion-resistant material with relatively high strength").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ range of rayon, wool, and nylon percentages to be 50% rayon, 30% wool, and 20% nylon as claimed, as applicant appears to have placed no criticality on the claimed range (see applicant specification page 9) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists.” In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990), especially for the purposes of achieving the desired properties of each material.
As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ rayon, wool, and nylon composition to be 50%, 30%, and 20% as claimed in order to achieve desired properties as taught by Podhajny, wherein it is well within the skill of one of ordinary skill in the art to modify the percentages based on the amount of advantage of each material desired without unexpected results.
Claim(s) 31 is/are rejected under 35 U.S.C. 103 as being unpatentable over Urbelis (USPN 11208744), in view of Cabauy et al (US Publication 2008/0235850), herein Cabauy, Iwashita (US Publication 2018/0080153), Schenk et al (USPN 10145044), herein Schenk, and Frankenbach et al (USPN 11350679), herein Frankenbach, as applied to the SECOND REJECTION above, further in view of Harris et al (USPN 7678718), herein Harris.
Regarding Claim 31, modified Urbelis teaches all the claimed limitations as discussed above in Claim 10.
Urbelis does not explicitly teach wherein the fabric is constructed of yarns having at least one of a cotton count of 28/1 or a worsted count of 33/1.
Harris teaches wherein the fabric is constructed of yarns having at least one of a cotton count of 28/1 or a worsted count of 33/1 (Col. 4 Lines 6-7 "yarn size of between about 30/1 cc and 36/11 is quite suitable for forming the fabric").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Urbelis’ fabric with the yarn size of Harris as a known yarn size to form flame resistant apparel, the same art of endeavor in which are both Urbelis and Harris.
Response to Arguments
Applicant’s arguments with respect to claims 1-6, 8-21, 23-29, 31 have been considered but are moot because of the new grounds of rejection necessitated by amendment. Therefore, see aforementioned rejections for the argued missing limitations. Nevertheless, for clarification—
The declarations under 37 CFR 1.132 filed 10/15/25 are insufficient to overcome the rejection of claims 1-6, 8-21, 23-29, 31 based upon at least Harris or Urbelis as set forth in the last Office action because of the following:
At the outset, it is noted that declarations are made under 37 CFR 1.132, not 37 CFR 1.32 as indicated on the declarations.
Lomba declaration
Pertaining to remark #7 that there is no viable way to make a weft knit fabric into a warp knit fabric and vice versa—examiner respectfully disagrees. The examiner further clarifies that the term “into” is being utilized that it is well within the skill set of one of ordinary skill in the art to know how to switch from making a weft knit fabric into a warp knit fabric. Examiner remarks were not meant to be taken literally as if a weft fabric on a weft knitting machine can suddenly be added some modification to change the weft fabric into a warp fabric, as seemingly interpreted, or vice versa. Examiner directs attention to Cabauy [0029], recited herein, for clear recitation that it is well known that mesh fabrics can be either weft or warp, and the appropriate process applied. It would be a simple substitution, for one of ordinary skill in the art, to decide to make a warp knit instead of a weft. Examiner notes that Urbelis is a weft, and Harris is silent. There are also a finite number of solutions—either the fabric is decided to be a weft or warp, which is not beyond the skill of one of ordinary skill in the art.
Pertaining to remark #8 that it is further not obvious to teach modify the fabric to be a warp knit because though warp and weft fabrics are well known structures, novel warp knit structures are still being produced—examiner respectfully disagrees. This statement is not found persuasive especially as the claims are not directed to novel warp structure, but a very generic warp knit. No other warp knit structure has been claimed, let alone disclosed.
Pertaining to remark #8 that it is further not obvious to teach a warp knit because warp and weft knits can have differing properties—examiner respectfully disagrees. Examiner notes that the property in question (breathability) is taught for both warp and weft in the modification by Cabauy as indicated in the rejection, and therefore the remark is not found persuasive.
Pertaining to remark #8 that a separating space is not taught—see rejection herein. Examiner notes that “separating space” is not the same metes and bounds as “air space,” but is broader. Any existence of an object is capable of being a separating space between an underlying/overlying surface, whereas an air space would at least require some sort of void.
Pertaining to remark #10 that Harris only refers to air ventilation across the outer side of the double knit fabric not through the whole double knit fabric—examiner respectfully disagrees. One of ordinary skill in the art would understand that ventilation is through a fabric, and not on a surface. Harris explicitly teaches ventilation.
Pertaining to remark #10 that it is not obvious to teach a high yarn/void ratio and high air permeability—examiner notes that the terms “high” are relative terms. No evidence has been provided that the modification to teach the actual values of the ratio and air permeability would break the primary reference, whether Harris alone or Harris modified by Iwashita.
Pertaining to remark #10 that the two sides of a double knit fabric such as Harris cannot be separated without destroying the fabric and therefore Harris is improper to teach the recitations—examiner respectfully disagrees. No separation is being made to Harris when Harris to teach its recitations or when Harris is modified. Examiner believes the rejection is misconstrued. As best understood, the misunderstanding is related to remark #8 of Horne, and attention is directed thereto for examiner response.
Pertaining to remark #11 that Harris cannot be modified with Cabauy because Harris is a double knit fabric and such a structure would have to be ignored by removing the tightly knitted inner side when modified by Cabauy—examiner respectfully disagrees, and believes the rejection to be misconstrued, as indicated above in remark #10.
Pertaining to remark #12 that the term “about 0.013 inches” is a “single thickness” and a single thickness is not a range—examiner respectfully disagrees. Attention is directed to MPEP 2173.05(b)(III) wherein the term “about” is a term of approximation, and therefore recites a range.
Pertaining to remark #12 that it would not have been obvious to increase the thickness by more than 50% as currently so in Cabauy, and therefore Cabauy cannot be utilized for its teaching-- examiner respectfully disagrees. See extrinsic evidence Goenka et al (US Publication 2017/0088983) and extrinsic evidence Bagwell et al (USPN 10465316)—though applicant and the prior art do not explicitly teach a defined range for the term “about”, one of ordinary skill in the art through the extrinsic evidence references would understand that the term is generally no more than +/- 10%. However, applicant has provided no criticality for the claimed thickness range-- see Table A in the specification, wherein the disclosure only ever indicated the thickness values within the range and never showed comparison products with thicknesses outside the claimed range which would support criticality. Furthermore, Cabauy explicitly teaches that thickness affects breathability ([0051]), which further supports modifying Cabauy based on desired use and/or breathability, as a mere results-effective variable.
Pertaining to remark #13 that Urbelis’ tightness factors are much tighter than could support a yarn/void ratio of 40-55%-- examiner respectfully disagrees. No evidence has been provided for such a statement.
Pertaining to remarks #14 that it would not make sense to replace a cut-resistant protective double knit fabric as taught in Urbelis with a mesh warp knit fabric as taught by Cabauy and therefore the rejection is incorrect—examiner respectfully disagrees, and believes the rejection to be misconstrued. Urbelis’ structure is not being wholly replaced by Cabauy. Urbelis already teaches a mesh knit fabric, and Cabauy is utilized to modify the fabric to be warp, instead of weft.
Horne declaration
Pertaining to remark # 7—this is similar to and has already been addressed in remarks #7 and #8 in Lomba. Examiner further notes that remarks further reinforce that it is not beyond the skill of one of ordinary skill in the art to know how to switch from making a weft fabric to a warp fabric as is clearly outlined in the declaration itself, such as which machines would be needed (circular, flatbed, etc).
Pertaining to remark #8 “barely visible to the naked eye”—this is similar to and has already been addressed in remark #10 of Lomba, and therefore addresses the remarks that Harris cannot be modified alone to teach 40-55%.
Pertaining to remark #8 that yarn/void ratio is measured throughout the whole fabric—examiner notes that the claims do not currently restrict the broadest reasonable interpretation to such a narrow interpretation. Inasmuch as there are voids taught anywhere in the fabric, on the inner layer, or outer layer, or both, the existence of yarn/void ratio is met, and so does is the existence of air permeability met.
Pertaining to remark #8 that a double knit fabric with “very small openings” cannot be “replaced” with a “high air permeability” fabric because of wicking properties and therefore the rejection is incorrect—examiner respectfully disagrees. Again, the rejection has been misconstrued as to what structures are modified. Furthermore, no evidence has been provided that Harris’ openings, modified to be the value of air permeability taught, cannot provide the wicking function.
Pertaining to remark #9 that seems to sum the modification of Harris with Iwashita and Cabauy—examiner respectfully disagrees and believes the rejection to be misconstrued. To clarify, Harris’ fabric, made to be warp by Cabauy, is modified to have yarn/void ratio of 40-55% as taught by Iwashita.
Pertaining to remark #9 that a double knit fabric designed to wick moisture would not be replaced with a more open warp knit, as it would not provide tight knitted structure needed for wicking—examiner respectfully disagrees. It is not persuasive that fabrics modified to be warp knitted cannot wick—see extrinsic evidence McMurray US Publication 2005/0112975 indicating otherwise. Also, no evidence has been provided that merely because a warp knit is more open than another that wicking is no longer possible.
Pertaining to remark #10 that modifications with Iwashita’s 40-55% would require modifying with Iwashita’s non-mesh portion—examiner respectfully disagrees. In response to applicant's argument, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). In other words, the non-mesh portion is not required as part of the modification. Iwashita is merely used to teach that it is known in the art that mesh fabric can have 40-55% yarn/void ratio, which can be applied to Harris and Urbelis, also mesh fabrics.
Pertaining to remark #11 that modifying with Cabauy would no longer provide the protectiveness desired by Urbelis—examiner respectfully disagrees. No evidence has been provided for this statement. The materials in Urbelis have not changed, and therefore still provide protectiveness desired.
Remark #12 seems to be a repeat of remark #9, and attention is directed to examiner response thereto.
Remarks #13 and #14 are not applicable, as they are directed to the mention of Sexton during an interview 8/10/23. Inquiries of the patentability of diamond shapes arose, whereby then examiner noted that diamond shapes are already known in the art and directed attention to Sexton.
Pertaining to remark #15 that it was found that the yarn/void ratio was crucial to provide open space and structural integrity—examiner respectfully disagrees. A mere statement of criticality is not enough, and no remarks directed back to where the criticality is located in the disclosure has been provided. In fact, see Table A in the specification, wherein the disclosure only ever indicated the yarn/void ratio within the range claimed and never showed comparison products with yarn/void ratios outside the claimed range which would support criticality.
Hunter declaration
Pertaining to remark #7—this is similar to and has already been addressed in remark #15 of Horne.
Pertaining to remarks #8, #11-- this is similar to and has already been addressed in remark #9 of Horne.
Pertaining to remark #12-- this is similar to and has already been addressed in remark #12 of Lomba.
Pertaining to remark #13-- this is similar to and has already been addressed in remark #11 of Horne.
Furthermore, the remarks directed to rejections under U.S.C. 103 are unpersuasive.
Pertaining to remarks on pages 13-23 —see examiner response to declarations.
Furthermore, pertaining to remarks on page 14 that only a portion of the fabric is an open structure that is used in combination with a much denser portion—examiner respectfully disagrees. Merely because a portion is dense does not indicate that the fabric is not an open structure. Inasmuch as both layers are knit, both layers are open planar frameworks.
Pertaining to remarks on page 15 that Urbelis does not teach a yarn/void ratio of an open planar framework because it’s an interlocking double knit fabric—examiner respectfully disagrees. As best understood, remarks desire to have a much narrower interpretation of the term “open planar framework” than is currently required by the claims. See Fig. 2 of Urbelis which shows a knit with loops. As such, it is an open (has voids in the loops), planar (in a plane), framework (loops are connected).
Pertaining to remarks on page 15 that Urbelis teaches high tightness factors meaning both layers of the fabric have a high cover that does not have an open planar framework—examiner respectfully disagrees. It is not understood what the remarks mean by “cover”—there is no separate cover layer in Fig. 2. In fact, Fig. 2 clearly shows an open planar framework as aforementioned, even with the tightness factors disclosed. As aforementioned, remarks have a different definition in mind that is not currently claimed or disclosed for the term “open planar framework.”
Pertaining to remarks on page 16 directed to cover—similar examiner response is provided as aforementioned.
Pertaining to remarks on page 16 that it is not obvious to replace—see response to remark #9 of Horne.
Pertaining to remarks on page 17 that Iwashita requires non-mesh portions—see response to remark #10 of Horne.
Pertaining to remarks on page 19 that the Titanium Metals Corp case law is not applicable because it is directed to alloy composition and not a fabric—examiner respectfully disagrees. The case law is directed to ranges, which is the issue being argued. Regardless of whether alloy composition or fabric properties, the case law for ranges applies.
Pertaining to remarks on page 20 that Harris modifications change the wicking aspect—examiner respectfully disagrees, as no evidence has been provided that wicking cannot occur.
Pertaining to remarks on page 21 that an open yarn/void ratio would allow penetration in Urbelis—examiner respectfully disagrees and directs attention to response to remark #11 of Horne.
Examiner further notes that: 1) criticality would have to be persuasively argued in order for the amendment of thickness values to be reconsidered for allowability,
2) Harris was needed instead of Urbelis for Claims 3-5, 18-20; and Urbelis was needed instead of Harris for Claims 8-11, 24-26. As such, a further amendment into the independent claims of at least one claim from each set of Harris and Urbelis may require further consideration for allowability.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure and can be used to formulate a rejection if necessary: Schumacher et al (USPN 11890723) for a warp-knitted open planar framework with yarn/void ratio and air permeability.
Lawrence (US Publication 2023/0313426) is also found pertinent as a open planar framework warp-knitted fabric for wicking and air permeability.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Grace Huang whose telephone number is (571)270-5969. The examiner can normally be reached M-Th 8:30am-5:30pm EST.
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, Khoa Huynh can be reached on 571-272-4888. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/GRACE HUANG/Primary Examiner, Art Unit 3732
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