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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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,