DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Applicant’s response filed November 21, 2025, has been entered.
Claims 1, 7-11, and 16-22 are currently pending in the above identified application.
Claims 11 and 16-20 have been withdrawn from consideration as being directed towards a non-elected invention.
Claim Interpretation
The limitation “the carpet file has an ounce weight” in claims 7-9 is interpreted as referring to the face weight of the carpet, also called pile yarn weight, aligned with the declaration filed and remarked filed July 21, 2023, p. 7.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Claims 1 and 6-10 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over US Pub. No. 2002/0034606 to Miller in view of US Pub. No. 2005/0160955 to Lovelady and US Pub. No. 2004/0253409 to Whitten.
Regarding claims 1 and 6-10, Miller teaches a modular carpet (carpet tile) comprising a primary backing having a top surface and an opposing bottom surface, a plurality of yarn tufts extending upwardly from at least a portion of the top surface of the primary backing layer, an adhesive backing material secured to the bottom surface of the primary backing layer, and a secondary backing material secured to the adhesive backing material (Miller, abstract, para 0034, 0055, 0094-0109, Fig. 12). The primary backing layer would necessarily have a primary backing color and the plurality of tufts would necessarily have a pile height. Miller teaches the carpet being a low weight carpet having a face weight less than or equal to about 15 oz/yd2 (Id., para 0033). The carpet would necessarily have a face pattern having a color profile corresponding to respective portion of the face pattern that are configured to be visible following installation of the modular carpet.
Miller does not explicitly teaches the primary backing layer and the plurality of yarn tufts cooperating to define a face a pattern of the carpet tile, the face patterning having a color profile corresponding to colors of respective portion of the face pattern that are configured to be visible following installation of the carpet tile, wherein the face pattern comprising a first tufted section comprising yarn tufts of the plurality of yarn tufts that are pulled sufficiently low against the top surface of the primary backing to expose portions of the primary backing layer that surround the yarn tufts within the first tufted section such that the color profile within the first tufted section includes both the primary backing color and the contrast color; a second tufted section comprising yarn tufts of the plurality of yarn tufts that have a pile height that is greater than the pile height of the yarn tufts of the first tufted section, wherein the yarn tufts of the second tufted section obscure portions of the primary backing layer that surround the yarn tufts within the second tufted section such that the color profile of the face pattern within the second tufted section is formed entirely by the contrast color; and a third section, wherein the color profile of the face pattern within the third section is formed entirely by the primary backing color of the primary backing layer.
However, Lovelady teaches a tuft fabric for use as a floorcovering (carpet) (Lovelady, title, abstract, para 0036) comprising a backing 19 having a top surface and tufted yarn consisting of a plurality of yarn bights 51, 52, 53, 54 extending at about the same height (pile height of about 0 relative to the surface) and protruding above the front surface (extending upwardly from the top surface) of the backing 19, which would necessarily have a respective pile height (Id., para 0019-0020, 0032-0033), wherein the plurality of yarn bights (plurality of yarn tufts) comprise a plurality of lowered bights 53, 54 (plurality of lowered yarn tufts) that are pulled sufficiently low against the top surface of the single needlefelt backing 19 to expose portions of the underlying top surface of the backing 19 (first tufted section comprising yarn tufts that are pulled sufficiently low against the top surface of the primary backing layer to expose portions of the primary backing layer that surround the yarn tufts within the first tufted section such that the color profile within the first tuft section includes both the primary backing color and the bight color) and a plurality of bight 52, 51 (second tufted section comprising yarn tufts having a pile height that is greater than the pile height of the yarn tufts of the first tufted section and obscure portions of the primary backing that surround the yarn tufts within the second tufted section such that the color profile of the face pattern within the second tufted section is formed entirely by the contrast color) that cooperate with the additional tuft portion and the exposed portions of the backing 19 to form the face pattern of the floorcovering (carpet) (Id., abstract, Fig. 3A, 3B, 5B, 5C, para 0001, 0004, 0010-0017, 0029-0036). As the primary backing is visible in comparison to the bight yarn (Id., Fig. 3A, 3B, 5B, 5C), the plurality of yarn tufts has a contrast color that is different than the primary backing color. As the bights 53, 54 are lowered relative to the bights 51, 52, the pile height of each of the lowered bights 53, 54 is less than the pile height of the bights 51, 52 (first plurality of tufts). Lovelady teaches the lowered bights 53, 54 (lowered yarn tufts) being partially obscured by the primary needlefelt 19 and extending to about the same height as the front surface of the needlefelt primary backing 19 (Id., para 0032-0033), indicating that the backing would be exposed and the bights 53, 54 (lowered tufts) would necessarily extend upwardly from the top surface of the primary needlefelt 19 in order to be visible and collective form a portion that includes both the yarn color and backing color. Lovelady teaches using stitch that are barely visible on the face of the carpet provides good tuft binding (Id., para 0001, 0004). As the stitch are visible, they would necessarily extend upwardly from the top surface of the primary backing. As less yarn is used, the weight would also be less. Lovelady teaches bights 55, 56 being embedded within the backing to hide the appearance of a stitch (Id., para 0032-0034), reading on a third section wherein the color profile of the face pattern within the third section is formed entirely by the primary backing color of the primary backing layer.
Additionally, Whitten teaches a fabric having discrete surface portion of a primary backing and tuft yarn exposed on the technical face of the fabric (Whitten, abstract, para 0015, 0018-002, Fig. 3&4), also reading on a third section formed entirely by the primary backing color of the primary backing layer. Whitten teaches the fabric having reduced cost, less surface pile material, and different aesthetic characteristics (Id., para 0003-0004, 0008). Whitten teaches that the aesthetic characteristics, e.g., color or texture, of the fabric may change as the perspective of the viewer changes (Id., para 0008).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to form the carpet of Miller, wherein the tufts comprising multiple pile heights as taught by Lovelady and include partially visible and exposed primary backing with yarn positioned below as taught by Lovelady and Whitten, motivated by the desire of forming conventionally known surface comprising pile predictably suitable for carpet application and by desire to reduce the amount of pile yarn required, and therefore weight of the carpet and disposal cost of the carpet, while providing good tuft binding and a different aesthetic characteristics based on the desire aesthetic and binding strength of the carpet required by the application. The prior art combination teaches tufts that obscure the primary backing (second tuft section), tufts that partially obscure the primary backing and therefore have both the tuft and primary backing colors (first tufted section), and primary backing that is fully visible (third section).
The limitations “wherein each yarn tuft of the plurality of yarn tufts has the same contrast color” and “wherein the contract color differs from the primary backing color in at least one of hue, chroma, or value” and “wherein the pile height of the yarn tufts of the second tuft section varies within the second tufted section” (claim 6) are limitations with regards to the aesthetic of the carpet tile, including visual appearance and texture. The court found that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. See In re Seid, 161 F.2d 229, 73 USPQ 431 (CCPA 1947). Therefore, it would have been an obvious choice of design to one of ordinary skill in the art before the effective filing date to adjust and vary the relative color and appearance of the yarn tufts and the primary backing as well as the tuft height, such as claimed, based upon the desired aesthetic and appearance of the carpet.
Regarding claims 7-9, the prior art combination teaches the carpet having a face weight of less than or equal to about 15 oz/yd2 (Miller, para 0033). While the reference does not specifically teach the claimed range of 6 to 25 oz per square yard (claim 7), specifically 8 to 16 oz per square yard (claim 8), more specifically about 10 oz per square yard (claim 9), the disclosed range of the prior art combination overlaps with the instant claimed range. It should be noted that in 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). The existence of overlapping or encompassing ranges shifts the burden to Applicant to show that his invention would not have been obvious. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003). Furthermore, it would have been obvious to one of ordinary skill in the art before the effective filing date to adjust, vary, and optimize the ounce weight, such as within the claimed range, motivated by the desire to successfully practice the invention of the prior art based on the totality of the teachings of the prior art.
Regarding claim 10, the prior art combination teaches the primary backing comprising a woven material (Miller, para 0098).
Claims 21-22 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable Miller in view of Lovelady and Whitten, as applied to claims 1 and 6-10, further in view of US Pub. No. 2003/0031821 to Oakey.
Regarding claims 21-22, the prior art combination does not specifically teach the plurality of yarn tufts comprising space dyed yarn (claim 21) or comprising barber pole yarn (claim 22).
However, Oakey teaches a carpet tile form using yarns such as space dyed or barber pole (Oakey, abstract, para 0002, 0047, 0050, 0052).
It would have been obvious to one of ordinary skill in the art to form the carpet of the prior art combination, wherein the plurality of yarn tuft comprise either spaced dyed or barber pole yarn as taught by Oakey, motivated by the desire of using conventionally known yarn predictably suitable for use in form carpet and based on the desire aesthetic of the carpet.
Response to Arguments
Applicant's arguments filed November 21, 2025 have been fully considered but they are not persuasive with regards to the prior art rejection.
Applicant argues, with regards to the application of Miller and Lovelady, that Miller emphasizes the densification of face fibers in an explicit advantage of Miller obtaining the appearance of a denser face fabric to achieve “sufficient yarn coverage” with lower face weight and modification with Lovelady to expose the surface by reducing the pile in a way that would reduce density of fibers would be contradictory and there the combination would not have been obvious to one of ordinary skill in the art. Examiner respectfully disagrees. Miller is directed towards a “low weight carpet” however there is no requirement that the primary backing is covered as a requirement. Miller explicitly teaches “it is intended that any low weight (low face weight) primary carpet fabric having a pile forming portion and a primary base may be utilized as the primary carpet fabric” (Miller, para 0096). Miller does not teach the pile or tuft needing to completely cover or hide the primary backing (Id. all). Miller teaches shrinking the pile yarn to form smaller, tighter loops and provide a denser surface to the primary carpet precursor (Miller, para 0099). Miller teaches the flooring having at least one of durability, low crush, short pile dense surface, and combinations (Id., claim 155, para 0174), indicating that dense surface being optional and not required. While the shrinkage is taught as improving coverage (Id.), there is no teach that the backing cannot be visible, especially if the exposed portion is desired as part of the aesthetic, taught by Whitten and Lovelady as being known in the art. Denser is relative to the starting, allowing a lower basis weight with the same coverage. It is unclear where the reference to the ”extensive coverage of the thin primary backing” is derived from in Miller. Additionally, Miller teaches the face weight being less than less than 20 oz/yd2, preferably less than 15 oz/yd2 (Miller, para 0061-0067-0173, claims 31, 119, 139-147). Lovelady teaches the tufted yarn being applied at a weight of only about 12-17 ounces of yarn per square yard and teaches about 5 to 30 ounces per square yard may be suitable for some applications (Id. para 0035). As Miller is open to various low weight primary carpet fabric and Lovelady teaches a weight overlapping with the cited range, the combination would have been obvious to one of ordinary skill in the art before the effective filing date. Furthermore, Whitten teaches the use of exposed primary backing as part of the aesthetic characteristics. While there is no tuft in the exposed portion of Whitten, Lovelady teaches an alternative for achieving the exposed backing while ensuring substantially uniform tuft bind (Lovelady, para 0034). Lovelady teaches that prior art tufting when it has been desired to completely pulled out of the backing material provides no tuft bind at that location whereas the invention allows substantially uniform tuft bind (Lovelady, para 0034).
Applicant further argues that Lovelady relies on a thickness substrate to embed the bights and Miller does not disclose or suggest a thick needlefelt substrate but a thin primary backing and modification to use a thin primary backing would be defeat the purpose of Miller’s invention that is directed towards a low weight carpet. Examiner respectfully disagrees. Miller teaches the backing thickness varying from about 0.01 inches to about 0.19 inches (Miller, para 0109). Miller is open to various low weight embodiment for the pile and primary backing portion of the invention. Lovelady provides a low weight pile option. Lovelady teaches the substrate having a thickness between 1 and 7 millimeters (0.04 to 0.28 inches), specific embodiments of about 1.5 to 2 millimeters (about 0.6 to 0.8 inches) (Lovelady, claim 34, para 0035), equating to, overlapping and within the predictably suitable thicknesses disclosed by Miller. Therefore, there is a reasonable expectation of success. The thickness of Miller does not need to be increased as Applicant appears to be arguing. If the thickness of the primary backing is critical to achieving the claimed invention, Applicant has provided no guidance in the instant disclosure nor claims this feature. Applicant has not provided any evidence that the combination of Miller, Lovelady, and Whitten would not achieve combination.
Applicant argues that Whitten is specifically directed to entirely omitting a tuft from the backing and therefore fails to disclose the first tufted section comprising yarn tufts of the primary yarn tufts that are pulled sufficiently low against the top surface of the primary backing layer to expose portions of the primary backing layer. However, Whitten is not relied upon for teaching this feature merely for teachings it was known in the art before the effective filing date to use the exposed primary backing as part of the carpet aesthetic. Lovelady teaches the tufts being pulled sufficiently low to exposed the backing. Additionally, Lovelady teaches that prior art tufting when it has been desired to completely pulled out of the backing material provides no tuft bind at that location whereas the invention allows substantially uniform tuft bind (Lovelady, para 0034), a benefit over how Whitten achieves the exposed backing in order to provide substantially similar tuft bind.
Therefore, Examiner maintains the rejections detailed above.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER ANN GILLETT whose telephone number is (571)270-0556. The examiner can normally be reached 7 AM- 4:30 PM EST M-H.
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/JENNIFER A GILLETT/Examiner, Art Unit 1789