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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/2/2026 has been entered.
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 34, 35, 41, 44, 45, 51, 58-61, 63-67, 69 and 70 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 claims contain 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 applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 34, 44, 67, 69 and 70, the specification is silent regarding an upper loop being continuous with a bottom loop. For example, Figure 1 fails to illustrate the first (uppermost) fiber upper loops being continuous with any bottom loops. Rather, Figure 1 illustrates the upper and lower loops of the same fiber being spaced apart. Further, the specification does not even mention the word “continuous” or the phrase “continuous with.”
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 34, 35, 41, 44, 45, 51, 58-61, 63-67, 69 and 70 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.
Claims 34, 44 and 69, the phrase “the bottom loops” lacks antecedent basis. It is not clear which loops are being referenced.
Claims 34, 44, 67, 69 and 70, it is not clear when a loop is considered “continuous with” another loop.
Claims 67, 69 and 70, the phrases “the first yarn” and “the second yarn” and “the third yarn” lack antecedent basis.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 34, 35, 41, 44, 45, 51, 53, 58-61 and 63-71 are rejected under 35 U.S.C. 103 as obvious over WO 2017/210589 to Lawrence in view of USPAP 2009/0044572 to Fujita and USPN 6,805,957 to Santos.
Claims 34, 41, 44, 51, 53, 68 and 71, Lawrence discloses a knit material comprising a first fiber, a second fiber and a third fiber, the fibers being defining opposite top and bottom portions of the knit material and an intermediate portion of the knit material positioned between the top portion and the bottom portion, the top portion comprising the first fiber, the bottom portion comprising the second fiber, the intermediate portion comprising the third fiber, wherein the fibers each define a plurality of upper loops and a plurality of lower loops, each of the upper loops being continuous with one of the bottom loops, the lower loops of the first fiber being interlooped with the upper loops of the third fiber, the upper loops of the second fiber being interlooped with the lower loops of the third fiber (see entire document including page 12 and Figure 8).
Lawrence discloses that the fibers are evaporative fibers and may comprise nylon or polyester embedded with mica (page 12) but Lawrence does not appear to specifically mention the use of a blend of rayon and nylon. Fujita discloses that it is known in the art to enhance the moisture absorbing/release property of a fiber by using a fiber comprising a blend of rayon and nylon (see entire document including [0038] and [0077]) and Santos discloses that it is known in the art to construct a blend fiber of cellulosic and nylon with 50% ±5% nylon to provide enhanced strength, drying ability, durability, comfort, and dyeing/printing (see entire document including column 6, lines 10-28, the paragraph bridging columns 12 and 13, column 15, lines 36-64 and Example 1). Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to make the evaporative fibers comprise the claimed blend of rayon and nylon, to provide the fabric with enhanced strength, drying ability, durability, comfort, and/or dyeing/printing.
Claims 35 and 45, the second fiber is the same as the first fiber (page 12 and Figure 8).
Claims 41, 51, and 53, the first and second fibers can each comprise 145 denier and 140 filaments (pages 6 and 12). Plus, it would have been obvious to one having ordinary skill in the art at the time the invention was made to make the fibers with any suitable size and fiber count, such as claimed, because 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 and desired characteristics.
Claims 44, 60 and 61, Lawrence discloses a variety of uses including garment, shirt, shorts, headbands, towels, hats, etc. (page 2). Considering that the claims fail to define any bedding material, mattress component, or blanket structure, one or more of the disclosed products (e.g. a towel) may be considered the claimed bedding material, the claimed mattress component, and the claimed blanket.
Claims 58 and 59, Santos discloses that each of the fibers has an even mélange effect (column 15, lines 52-64 and Example 1).
Claims 63 and 64, the first and second fibers are different than the third fiber at least in terms of location within the knit material (Figure 8).
Claims 65 and 66, the knit material may be formed using a circular knitting technique (page 11 of Lawrence). Plus, even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.
Claim 67, Lawrence discloses that a respective one of the upper loops of the first fiber is continuous with a respective one of the lower loops of the first fiber; a respective one of the upper loops of the second fiber is continuous with a respective one of the lower loops of the second fiber; and a respective one of the upper loops of the third fiber is continuous with a respective one of the lower loops of the third fiber (Figure 8).
Claim 69, each of the upper loops of the first fiber is continuous with one of the bottom loops of the first fiber; each of the upper loops of the second fiber is continuous with one of the bottom loops of the second fiber; and each of the upper loops of the third fiber is continuous with one of the bottom loops of the third fiber (Figure 8).
Claim 70 a respective one of the upper loops of the first fiber is continuous with a respective one of the lower loops of the first fiber; a respective one of the upper loops of the second fiber is continuous with a respective one of the lower loops of the second fiber; and a respective one of the upper loops of the third fiber is continuous with a respective one of the lower loops of the third fiber (Figure 8).
Response to Arguments
Applicant's arguments filed 1/2/2026 have been fully considered but are not persuasive.
The applicant asserts that the prior art fails to teach or suggest the limitations of claims 34, 44, 53 or 68. The examiner respectfully disagrees. Lawrence discloses a knit material comprising a first fiber, a second fiber and a third fiber, the fibers being defining opposite top and bottom portions of the knit material and an intermediate portion of the knit material positioned between the top portion and the bottom portion, the top portion comprising the first fiber, the bottom portion comprising the second fiber, the intermediate portion comprising the third fiber, wherein the fibers each define a plurality of upper loops and a plurality of lower loops, each of the upper loops being continuous with one of the bottom loops, the lower loops of the first fiber being interlooped with the upper loops of the third fiber, the upper loops of the second fiber being interlooped with the lower loops of the third fiber (see entire document including page 12 and Figure 8). Lawrence discloses that the fibers are evaporative fibers and may comprise nylon or polyester embedded with mica (page 12) but Lawrence does not appear to specifically mention the use of a blend of rayon and nylon. Fujita discloses that it is known in the art to enhance the moisture absorbing/release property of a fiber by using a fiber comprising a blend of rayon and nylon (see entire document including [0038] and [0077]) and Santos discloses that it is known in the art to construct a blend fiber of cellulosic and nylon with 50% ±5% nylon to provide enhanced strength, drying ability, durability, comfort, and dyeing/printing (see entire document including column 6, lines 10-28, the paragraph bridging columns 12 and 13, column 15, lines 36-64 and Example 1). Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to make the evaporative fibers comprise the claimed blend of rayon and nylon, to provide the fabric with enhanced strength, drying ability, durability, comfort, and/or dyeing/printing.
The applicant asserts that the examiner "flip flopped" because a restriction in a different patent application (16/256,438 - now abandoned) indicated that "species are not obvious variants of each other." Applicant's argument is not persuasive for a variety of reasons, one of which is that the restriction said the species are not obvious variants of each other "based on the current record." The "current record" is in reference to the applicant (e.g. the specification) never clearly stating that this is the case.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW T PIZIALI whose telephone number is (571)272-1541. The examiner can normally be reached Monday-Thursday 7am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Marla McConnell can be reached on 571-270-7692. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW T PIZIALI/Primary Examiner, Art Unit 1789
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