DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 April 28, 2026 has been entered.
The amendment filed on April 28, 2026 has been entered. Claims 2 – 7, 9 – 13, 18 and 19 have been canceled. Claims 1, 16, and 21 have been amended and no claims have been added. Therefore, the pending claims are 1, 8, 14 – 17, and 20 – 22.
The 35 USC 112(d) rejection set forth in the previous Office Action is withdrawn. However, a new rejection related to the claimed properties is set forth below.
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.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
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 of carrying out his invention.
Claims 1, 8, 14, and 15 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, because the specification, while being enabling for a composite material including a water-proof membrane with the claimed hydrostatic resistance, air permeability, and MVTR values, does not reasonably provide enablement for the baffle layer to also have these properties when not combined with a waterproof or water repellant membrane. The specification does not enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make a baffle layer structure with the claimed hydrostatic resistance, air permeability, and MVTR values the invention commensurate in scope with these claims.
First, it is noted that in the previous Office Action claim 22, which recites the composite material includes the following properties: a low range hydrostatic water resistance of above 5000 millimeters (mm) as measured using American Association of Textile Chemists and Colorists (AATCC) 127, an air permeability of above 0.25 as measured using American Society for Testing and Materials (ASTM) D737, and a moisture vapor transmission rate (MVTR) of above 30 kilograms per square meter per 24 hour (kg/sqm/24 hr) as measured using Japanese Industry Standards (JIS) L1099-B1. These properties are identical to those listed in claim 1, the only difference being whether the fabric includes a water-proof membrane or not. Applicant notes in the response that claim 1 does not require any water-proof membrane or a membrane containing composite layer (response, page 5). While not clear the applicant also seems to suggest that claim 1 does not require the recited hydrostatic resistance, air permeability, and MVTR values (response, page 5). However, it is noted that claim 1 and claim 22 recite the exact same ranges so it is presumed that the applicant is suggesting that claim 1 does not require the values for a membrane-containing composite layer as opposed to the baffle shell structure described in claim 1. Thus, the limitation recited in claim 1 is directed to only the baffle shell structure only.
Claim 1 recites that the baffle layer structure requires that claimed hydrostatic resistance, air permeability, and MVTR values. Further, the baffle layers structure is made up of the baffle shell structures and the spacers between the baffle shell structures. While the disclosure does teach that the baffle shell structure has air permeability of less than 3cfm, it also teaches that the spacers have an air 3.4cfm to 120cfm. It is not explained the test measurements of the baffle layer are only take in the region where the baffle shell structure are present, in the region where the spacer portions are present or if both the baffle shell structure and the spacer region are used in the test sample. Since the regions have different air permeability the portion of each section in the tested sample will directly impact the air permeability results and well as vapor transmission and water passing through the baffle layer. Thus, it is not clear what is even being tested.
Further, the disclosure teaches that the composite materials including waterproof or water resistant membranes, has the claimed properties (paragraph 6 – 12). The examples are disclosed as comprising a membrane (paragraphs 25 – 27). Thus, the disclosure teaches that the combination of the membrane and the baffle layer produces the claimed properties. Beyond that disclosure the examples do not provide specific details of the fabric structure such as warp and weft density, yarn construction, basis weight, or weave pattern. The disclosure instead includes general ranges for the fabric weights (paragraph 27), air permeability (paragraph 33), or material composition (paragraph 21). Thus, the exact weave structure and membrane combination being tested is not identified in detail by the applicant.
While the disclosure discusses permeability and modifying the weave structure to change the permeability of the fabric, as mentioned above, the disclosure does not teach how to make the woven fabric to have the claimed MVTR and hydrostatic water resistance. The hydrostatic water resistance measures the resistance of a fabric to water penetration caused by hydrostatic pressure. Again, which portion of the baffle layer is being tested, the baffle shell structures, the spacer regions, or both. Further, the regions of fabric with a more open structure will easily let water pass through the fabric. Without a water resistant membrane, water can pass quickly through gaps or openings between yarns of a more open weave structure. Further, the MVTR discusses how readily moisture passes through a layer. Again, the more open the fabric, the easier it is for smaller moisture particles to pass through. Further, the type of fibers and yarn structure can also aid in absorbing moving moisture through a structure. It is only when a membrane is added to the structure that fabric will limit moisture from easily passing through the fabric, by closing off the openings and causing the moisture to pass through micropores in the membrane or be absorbed into and pass through the membrane. The applicant does not discuss how to increase the hydrostatic pressure of the baffle layer. What is done to the structure to make it have better resistance to water while also allowing moisture vapor to pass through the fabric? Also, the disclosure does not suggest that properties are tested for the baffle layer by itself distinct from the samples that include a membrane and the baffle layer.
Thus, in light of the applicant’s arguments which distinguishes between the properties in claim 1 as being to the baffle layer and the properties in the claim 22 being to composite with a waterproof membrane and the baffle layer; the lack of discussion of testing the baffle layer by itself in the disclosure, and which regions would be tested to determine the overall property of hydrostatic resistance, air permeability, and MVTR values; the lack of discussion of how to design the fabric by itself so that it will have the desired combination of hydrostatic resistance, moisture vapor transmission, and air permeability; the disclosure does not sufficiently teach one of ordinary skill in the art to make a baffle layer with the hydrostatic resistance, air permeability, and MVTR values recited in claim 1 without also using a waterproof or water resistant membrane layer. Claims 8, 14, and 15 are rejected due to their dependency on claim 1.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 8, 14 – 17, and 20 – 22 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
The term “dissolvable yarn” in claim 1 is indefinite. Claim 1 recites that the spacer regions include a “dissolvable yarn”. However, the claim and the disclosure fail to define what qualifies as a dissolvable yarn. All textile materials can be dissolved by a strong acid and/or base solution. No fiber is impervious to all solutions. Therefore, all fibers are able to be dissolved. Further, the applicant has not claimed or taught any specifics with regards to what would be dissolved and what would remain? Is the fabric claimed before or after the dissolving has taken place? When are the dissolved fibers be removed? Will the fibers be removed at a future point or is the dissolved fibers being claimed after a portion of the fiber has been dissolved? What has been removed and what remains. In the present claim, the term is interpreted as requiring that the fabric includes materials that could be dissolved under at least one circumstance within the spacer region of the fabric. It is not clear if portions of the dissolvable material have been removed or if the yarn is completely intact. Either situation will read on the claim limitation.
Claim 16 is similarly rejected. Claims 8, 14, 15, 17, and 20 – 22 are rejected due to their dependency on claim 1 or 16.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1, 8, 14 – 17, and 20 – 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ly (2020/0009828) in view of Smith (2009/0089911) and Massey et al. (2017/0172240).
Ly discloses a composite fabric layer comprising insulating structures adjacent to a first fabric creating insulating structures separated by a plurality of spacer regions formed from the first fabric (abstract). The composite fabric can include insulating structures 310 comprising a fabric shell 330 with insulating material within the cavity (paragraph 39). These insulating structures are separated by a plurality of spacer fabrics 320 (paragraph 39). The shell fabric for the insulating structure and the spacer fabric can be woven or knit from materials such as cotton, wool, polyester, nylon, and combinations thereof (paragraphs 41 and 44). These materials can all dissolve when strong acids or other caustic solutions are applied thereto. The spacer fabrics can be highly air permeable, i.e., 40 CFM to 80 CFM (paragraph 43) and the shell fabric can be substantially impermeable to air, i.e., 0 CFM to 2 CFM (paragraph 45). The use of impermeable fabric provides warmth and prevents or minimizes the migrations of the insulating materials within the composite (paragraph 45). Thus, the fabric of Ly is considered to meet the applicant’s standards for down proof. The insulating material can be incorporated into a finished article such as jackets, pants, outerwear, sporting equipment, outdoor equipment, and blankets (paragraph 48).
While Ly suggests using the insulating fabric in a final product, Ly fails to teach the specific layered structure of the final product. Smith is drawn to garment constructions using textiles with dissimilar parts. Smith discloses that the composite can include a functional layer with an outer shell material that is bonded to the functional layer (paragraph 10). The composite materials can be used to form garments with thermally insulating materials (paragraph 31). The composite can include a functional layer bonded to the outer shell layer by a discontinuous adhesive layer (paragraph 33). One embodiment includes an insulation layer with multiple insulation filled chambers and is affixed via discontinuous adhesive to the outer shell. Thus, it would have been obvious to one having ordinary skill in the art to use the insulation layer of Ly is a garment by bonding the insulation layer to an outer shell or cover layer, as taught by Smith.
Further, Ly fails to teach explicitly using a different fabric structure for the top layer of the insulative structure than the bottom layer of the insulative structure, which would have different warp or weft yarns. Massey et al. is drawn to an insulative baffle (abstract). Massey discloses that the fabric layers in the baffles may be made from the same or different yarns and fabrics as the other layers (paragraphs 48 – 49). Further, Massey et al. suggests examples where one layer has a jacquard pattern while the opposite side is a taffeta construction (paragraph 50). As discussed by Massey different can include structures where one layer of fabric varies from another layer by having a different overall yarn density (paragraph 8), i.e., the density of the warp and weft yarns are different in the different layers. Further, Massey teaches that varying the fabric construction (denier, material, and density) of the different layers in the baffle can provide selective breathability, windproofness, waterproofness, thermal insulation, moisture transport, elasticity, abrasion resistance, cut/tear resistance, anti-compression resistance, increased compressibility, or purely aesthetic features in one layer or zone versus another (paragraph 18). Additionally, Massey disclose that the baffles can have different areas, or zones, having different constructions properties (paragraph 91). The zones are formed in the same weaving process and varied breathability and varied durability can be achieved by variations in density of yarns, different weaving patterns, different materials, and/or different manufacturing processes (paragraphs 91 – 92). Thus, the different fabric layers in the different layers of the baffle disclosed by Massey would have different numbers of warp and weft yarns, and one of those layers would inherently include less warp yarns. Therefore, it would have been obvious to one having ordinary skill in the art to choose fabric layers with different numbers of warp or weft yarns within the baffle shell fabrics to customize properties of the fabrics such as durability, breathability, windproofness, waterproofness, etc. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416.
Ly fails to teach adding a waterproof or water resistance membrane. However, Smith discloses that the insulation layer can be joined to additional, functional layers to form a composite structure (paragraph 10). Smith discloses that the functional layer can include various materials including a material that is waterproof or waterproof and breathable (paragraph 30). Further, Smith teaches that these materials include PTFE membranes, polyurethane films, etc. (paragraph 30). Thus, it would have been obvious to one having ordinary skill in the art that the back layer of Ly can be bonded to a water and breathable membrane to form a composite with waterproof properties, as taught by Smith.
Additionally, although the limitations of hydrostatic water resistance above 5000 mm, air permeability of above 0.25, and moisture vapor transmission rate of above 30 kg per square meter per 24 hours are not explicitly taught by Ly, Massey, or Smith, it is reasonable to presume that said limitations would be met by the combination of the two references. Support for said presumption is found in the use of similar materials (i.e. insulation baffles with spacer fabric having different air permeabilities, and the face and back layer of the insulative baffle having different properties) and in the similar production steps (i.e. joining the layers together to form a insulative composite) used to produce the insulative composite material. The burden is upon the Applicant to prove otherwise. Thus, claims 1, 8, 16, 17, and 20 – 22 are rejected.
Claims 14 and 15 are rejected with claim 1 since the claims are considered to recite the intended use of the fabric and not add further limitations to the structure of the final products. It has been held that a recitation with respect to the manner in which a claimed product is intended to be employed does not differentiate the claimed product from a prior art product satisfying the claimed structural limitation. Ex parte Masham, 2 USPQ2d 1647 (1987).
Response to Arguments
Applicant’s arguments with respect to claim(s) April 28, 2026 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jenna Johnson whose telephone number is (571)272-1472. The examiner can normally be reached Monday, Wednesday, and Thursday, 10am - 4pm.
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jlj
May 21, 2026
/JENNA L JOHNSON/Primary Examiner, Art Unit 1789
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