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 .
Response to Amendment
The amendment filed on December 15, 2025 has been entered. Claims 2 – 7, 9 – 13, 18 and 19 are canceled. Claims 1 is amended and no claims were added. Claims 1, 8, 14 – 17, and 20 – 22 are pending.
The amendment to claim 1 is sufficient to overcome the 35 USC 112 rejection to claim 1.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 22 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 1 requires the same limitations are present in the composite material comprising the baffle as recited in claim 22. While claim 21 includes a waterproof membrane, if the baffle includes the properties then the laminate made from the baffle would also include the claimed properties. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 are 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). 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.
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 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).
With regards to claim 21, it is noted that 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. Thus, claims 21 and 22 are rejected.
Response to Arguments
Applicant's arguments filed December 15, 2025 have been fully considered but they are not persuasive. The applicant argues that Ly does not teach the claimed baffle shell structure or combination of down-proof face layer with non-down proof spacer zones (response, page 7). With regards to the baffle structure, the rejection acknowledges that Ly does not teach that the material in the face of the baffle is functionally distinct from the back of the baffle. Further, the applicant states that “Ly does not disclose intentionally incorporating spaces adjacent to the down-proof shells, where the spacers define a breathability zone having a higher permeability than one or more of the baffle face layer and the baffle back layer” (Response, page 7). Again, it is acknowledge in the rejection that Ly does not teaching using a baffle face fabric different from the baffle back layer. However, Ly does teach that spacers are placed between the insulating structure (paragraph 39) and the fabric used to make the spacer areas is more air permeable (paragraph 43) than the fabric used to make the fabric shell of the insulating structures (paragraph 45). Ly even suggests the desire to let moisture pass through the composite (paragraph 43).
The applicant argues that Massey does not sufficiently teach the combination of a down-proof face layer and a back layer with fewer warp yarns because Massey does not intentional state that the modification is for the purpose of having fewer warp yarns. (response, page 7). As set forth above, Massey teaches changing functional properties of the face and back layers of the insulating structure. While Massey doesn’t expressly state that the warp density of the face fabric in the insulative fabric is different from the warp density of the back layer in the insulative fabric, Massey specifically, teaches that the fabric forming the baffles can have variations in properties such as breathability and durability, which is achieved by variations in yarn densities and using different weave patterns (paragraphs 91 – 92). More specifically, Massey teaches that in any of the baffle constructs disclosed herein, at least one layer may be downproof (paragraph 15. Thus, Massey teaches that one layer is downproof. Additionally, Massey teaches that the woven layers comprises warp yarns and weft yarns (paragraph 11) and that one of the layers has an overall yarn density that varies from the overall yarn density of another layer (paragraph 8). Thus, Massey discloses that the yarn density which directly means the warp and weft density of the woven fabric can be varied in the different layers. Reasons to modify the warp and weft densities are to produce a variation in the properties of the face or back layers of the insulative structure. Thus, Massey discloses it is known to modify the warp and weft density of the layers of the insulative structure and that these changes modify the properties of the insulative structure. Further, Massey discloses that it is known to also include at least one downproof layer. Therefore, it would be obvious to one having ordinary skill in the art to modify one of the insulative structure of Ly by increasing the number of warp yarns in the face layer to improve the windproof properties of the fabric while also maintaining a downproof insulative structure to keep the insulation in the desired regions of the composite. This, is not a mere possibility but expressly suggested by the teaching of Massey.
Additionally, the applicant argues that changing the properties or weave structure as taught by Massey would not produce the specific function claimed is not sufficient. The prior art is allowed to modifying the structure for different reasons, if the same structure is produced. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006). Nor does the rejection on hindsight, as argued by the applicant. Instead, the prior art teaches the claimed features such as modifying the yarn density, using downproof fabric, and including spacers with higher air permeabilities between the insulation regions. As long as the rejection takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Further, one of ordinary skill in the art would have been capable of applying this known technique (i.e., modifying properties of baffle fabrics taught by Massey) to a known device (i.e., the insulative baffle of Ly) that was ready for improvement and the results would have been predictable to one of ordinary skill in the art (see MPEP §2143 I. D.). Thus, the rejection is maintained.
With regards to claims 14 and 15 the applicant argues that the claims incorporate all structural limitations of the composite material and are not merely statements of intended use (response, page 8). However, the argument is that claims 14 and 15 only positively require the features of the composite material recited in claim 1 and do not positively recite any additional structural limitation to the claimed uses. Specifically, claim 15 is an article comprising the material of claim 1. What additional features does claim 14 require to be an article? Additionally, the end uses of garment, sleeping bag, or footwear, do not impart any specific structural limitations. A large composite material can be wrapped around a person and used as a garment, sleeping bag or footwear. Thus, the rejection is maintained.
The applicant argues that Smith fails to teach claims 21 and 22. Smith is relied on to teach adding a membrane to insulative structures such as Ly or Massey. The rejection is not based only on Smith. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). The claims are rejected over the combination of Ly, Massey, and Smith.
Finally, with regards to the applicant’s arguments drawn to the data presented in Tables 1 – 3 of the Specification, it is noted that the composition of the layers in each of those samples is not clearly taught by the disclosure. While the tables provide a fiber breakdown of the shell material, the details are not commensurate in scope with the claims because the structure of the face and back of the baffle layer and the spacer material is not specified. In fact, it is not clear if the materials are made from different weave structures or not. Further, it is not clear if additional layers such as waterproof membranes are included in any of those samples. Without more details about what is tested, it is unclear what the results show. Further, The rejection is based on the combination of Ly, Massey, and Smith. Thus, the unexpected results need to be shown over the closest prior art set forth in the rejection and not just any generic baffle materials. Therefore, the testing data within the specification is not commensurate in scope with the claimed product, does not compare the invention to the closest prior art, and is not persuasive of unexpected results. Thus, the rejection is maintained.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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jlj
January 27, 2026
/JENNA L JOHNSON/Primary Examiner, Art Unit 1789