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 .
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 and 4-14 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 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.
Regarding claims 1 and 4-14, claim 1 recites first fibers arranged in a first web, second fibers arranged in a second fiber web that forms the outermost-facing surface, and third fibers arranged in a third fiber web that forms the innermost-facing surface, the third fibers comprising a staple length in a range from 40 mm to 60 mm, wherein the fibers have a denier in a range from 0.1 D to 1.0 D. Similarly, claim 9 recites a first entangled fiber web, a second entangled fiber that comprises the outermost-facing surface, and a third entangled fiber web that comprises the innermost-facing surface, wherein the third fibers have a denier in a range from 0.1 D to 1.0 D. Although Applicants’ specification recites first fibers arranged in first fiber web that forms a first face, Applicants’ specification as originally filed does not appear to teach the third fiber web forming the innermost-facing surface and having the claimed denier.
Additionally, if the third fiber web forms the innermost-facing surface and the second fiber web forms the outermost-facing surface, the first fiber web forms neither of the surfaces and is necessarily between the third fiber web (i.e. the innermost-facing surface) and the second fiber web (i.e. the outermost-facing surface). Applicants’ specification does not appear to teach such an arrangement. Note that the same reasoning applies to claim 9.
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 (i.e., changing from AIA to pre-AIA ) 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 1 and 4-8 are rejected under 35 U.S.C. 103 as obvious over USPN 4,416,936 to Erickson in view USPN 3,817,820 to Smith and US Pub. No. 2009/0169802 to Miyamura.
Regarding claims 1 and 4-8, Erickson teaches a multi-layer nonwoven fabric comprising at least one layer of waste fibers positioned between layers of virgin synthetic fibers joined by needlepunching (Erickson, Abstract). Erickson teaches that the outer layers are formed from virgin synthetic fibers such as polyethylene terephthalate, having a staple length of about 2 to 3½ inches, such as about 3¼ inches (Id., column 2 lines 3-29, column 4 lines 29-49). Erickson teaches that the intermediate layer can be formed from a wide variety of waste or off-quality fibers, such as scrap material as fibers which have been recovered from fabric such as by shredding selvage strips, small masses of entangled short fibers, and other fibers which are unsuitable for forming into first-quality fabric (Id., column 2 lines 30-55). Erickson teaches that the waste fibers can be a mixture of short pieces of material and staple fibers of any length from woven or nonwoven fabrics (Id.). Erickson teaches that the fibers will be of varied lengths from 0.25-inch to about 3 inches, crimped and colored (Id.). Erickson teaches that the layers can be consolidated by depositing each layer in the form of a carded web and then needle-punching (Id., column 2 lines 56-68, column 3 lines 5-58). Erickson teaches that the fabric can be used in material used to make economical or disposable blankets (Id., column 4 lines 25-28).
Erickson establishes that an outer layer may comprise staple fibers having a singular length, and a layer of waste fibers of varied length. Therefore, Erickson appears to suggest a layer of fibers having a uniform length, a waste fiber layer having fibers of variable length (i.e. a standard deviation), wherein a layer of fibers with a standard deviation would inherently have a greater standard deviation than a layer of fibers with no standard deviation.
Regarding the shredded fibers including cardable clumps, since Erickson teaches waste fibers recovered from fabric such as by shredding selvage strips, small masses of entangled short fibers, and other fibers, which are then carded, Erickson appears to teach the claimed fiber clumps.
Erickson does not appear to teach the claimed fiber deniers and the claimed elastomeric layer.
Regarding the claimed fiber deniers, Erickson teaches that the layers are consolidated by needlepunching. Additionally, Smith teaches a needled textile fabric having entangled fibers and a density gradient increasing from the back surface to the face surface, wherein the products are made by needling layers of fibers (Smith, column 1 lines 11-19). Smith teaches a density gradient provided by a needle-pick-up gradient, such as a fiber denier gradient wherein the denier of the fibers decreases from the back surface to the face surface, and each of the layers has different average fiber deniers (Id., column 5 line 66 to column 6 line 2). Smith teaches that a first layer may have an average denier of approximately 4, a second layer may have an average denier of approximately 3, and a third layer may have an average denier of approximately 1½, wherein deniers between about ½ to 8 can be used (Id., column 5 line 66 to column 6 line 2, column 8 line 29 to column 9 line 15). Smith teaches that a needle will preferentially pick up and entangle fibers of lower denier, wherein the smaller denier fibers can be picked up and entangled at or near the surface of the batt in a more dense and compacted configuration than larger denier fibers (Id., column 9 lines 16-42). Smith teaches that the layers may comprise polyester fibers, including waste fibers (Id., column 25 line 51 to column 26 line 31). Smith teaches that the dense fibrous nature of the fabric surface provides scuff or abrasion resistance properties (Id., column 22 line 70 to column 23 line 7).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the nonwoven fabric of Erickson wherein the fiber deniers decrease from the back surface to the face surface, such as fiber deniers within the claimed ranges for each of an outer and an inner layer, as taught by Smith, motivated by the desire of forming a conventional recyclable garment comprising a structure known in the art to predictably impart the desired surface structure and properties such as scuff and abrasion resistance.
Regarding the claimed elastomeric layer, Miyamura teaches a stretch nonwoven fabric including an elastic fiber layer and a substantially inelastic fiber layer on at least one side of the elastic fiber layer or on respective sides of the elastic fiber layer (Miyamura, Abstract, paragraph 0017). Miyamura teaches that the elastic and inelastic fiber layers may comprise polyester fibers (Id., paragraphs 0018, 0043-0056). Miyamura teaches that the inelastic fiber layers may be a nonwoven fabric, and may be either the same or different (Id., paragraph 0058). Miyamura teaches that the thickness of each of the inelastic fiber layers is preferably 0.1 to 1 mm, and each having a basis weight of 1 to 60 g/m2 (Id., paragraphs 0060-0061). Miyamura teaches that the elastic fiber layer has a smaller thickness than the inelastic layers, and is more preferably 0.1 to 0.5 mm, and has a larger basis weight than the inelastic layer, more preferably 10 to 40 g/m2 (Id.). Miyamura teaches at least one of the inelastic fiber layers has part of its constituent fibers enter the elastic fiber layer and/or the elastic fiber layer has part of its constituent fibers enter at least one of the inelastic fiber layers, as the intermingling state secures the integrity between the layers (Id., paragraph 0065). Miyamura teaches that some of the inelastic fibers enter the elastic fiber layer and penetrate through the elastic fiber layer into the opposite inelastic fiber layer and are entangled with each of the layers (Id.). Miyamura teaches that the stretch nonwoven fabric is useful in various applications including clothing, owing to its good hand, resistance to fuzzing, stretchability, and breathability (Id., paragraph 0075).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the nonwoven fabric of the prior art combination, and including an elastic layer between layered webs, as taught by Miyamura, motivated by the desire of forming a conventional nonwoven textile for use in worn articles requiring increased stretchability and comfort suitable for the intended application.
Regarding the claimed first fibers entangling with the second fibers, the prior art combination teaches that the layers are consolidated by needlepunching. Needlepunching is ordinarily known in the art as bonding by entangling the fibers with barbed needles. Additionally, the prior art combination teaches the advantages of entangling the fibers of the layers with each other to secure the integrity between the layers and prevent delamination (Miyamura, paragraph 0065). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the nonwoven fabric of the prior art combination, wherein the layers are bonded by entangling the fibers of the layers through the middle elastic layer, motivated by the desire of forming a conventional nonwoven textile which is bonded to form a coherent, entangled, and secured material and prevent delamination suitable for the intended application.
Regarding the claimed innermost-facing and outermost-facing surfaces, the prior art combination comprises the claimed nonwoven textile having outer faces including the claimed fibers and layers.
Regarding the preamble, a preamble is generally not accorded any patentable weight where it merely recites the intended use of a structure, and where the body of the claim does not depend on the preamble for completeness but, instead, the structural limitations are able to stand alone. See In re Hirao, 535 F.2d 67, 190 USPQ 15 (CCPA 1976) and Kropa v. Robie, 187 F.2d 150, 152, 88 USPQ 478, 481 (CCPA 1951). Since the prior art combination teaches a substantially similar structure as claimed, the fabric of the prior art combination appears capable of the claimed use, as evidenced by Miyamura.
Regarding claims 4 and 5, the prior art combination teaches that the outer layer virgin staple fibers have previously not been used in a fabric, whereas the waste fibers are colored. Additionally, since the waste fibers are recovered from fabric such as by shredding selvage strips, small masses of entangled short fibers, and other fibers, it is reasonable for one of ordinary skill to expect that the colors of the waste fibers comprise different hues.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the nonwoven fabric of the prior art combination, wherein the virgin fibers comprise a singular color and the waste fibers comprise different colors and hues, motivated by the desire of forming a nonwoven fabric having the desired aesthetics enhanced by the variable hues of color.
Although the prior art combination does not appear to teach dope dyed fibers, the limitation is interpreted as a product by process limitation. Absent a showing to the contrary, it is Examiner’s position that the article of the applied prior art is identical to or only slightly different than the claimed article. 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. In re Thorpe, 227 USPQ 964, 966 (Fed. Cir. 1985). The burden has been shifted to Applicant to show unobvious differences between the claimed product and the prior art product. In re Marosi, 218 USPQ 289 (Fed. Cir. 1983). The applied prior art either anticipated or strongly suggested the claimed subject matter. It is noted that if Applicant intends to rely on Examples in the specification or in a submitted declaration to show unobviousness, Applicant should clearly state how the Examples of the present invention are commensurate in scope with the claims and how the Comparative Examples are commensurate in scope with the applied prior art.
Regarding claims 6 and 7, Erickson teaches that an outer layer has a weight of 2.3 oz/yd2 (Erickson, column 4 lines 29-49). Additionally, Miyamura teaches that each of the inelastic fiber layers has a basis weight of 1 to 60 g/m2 and that the elastic fiber layer has a basis weight of more preferably 10 to 40 g/m2 ((Miyamura, paragraphs 0060-0061). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the nonwoven fabric of the prior art combination, and adjusting and varying the weight of the first fibers in the nonwoven fabric, motivated by the desire of forming a nonwoven fabric having the desired amount of virgin fibers suitable for the intended application, as the amount of scrap fibers would predictably decrease cost.
Claims 4 and 5 are rejected under 35 U.S.C. 103 as obvious over Erickson in view of Smith and Miyamura, as applied to claims 1 and 4-8 above, and further in view of USPN 6,671,936 to Carlson.
Regarding claims 4 and 5, the prior art combination does not appear to teach that the fibers comprise different colors as claimed. However, Carlson teaches a color enhanced, patterned nonwoven based composite fabric wherein an entangled, imaged nonwoven fabric exhibits variable fiber density in selected regions and where a colored backing material is laminated to the facing layer such that the color of the backing layer is observed as variable hues which coincide with regions of lower fiber density in the facing layer (Carlson, Abstract). Carlson teaches that the facing fabric may be white or colored (Id., column 2 line 64 to column 3 line 11). Carlson teaches that the backing layer is a fibrous nonwoven material (Id., column 2 lines 28-44). Carlson teaches that the web comprises 100% staple length polyester fibers (Id., column 3 lines 12-18, column 4 lines 12-21). Carlson teaches that the materials may be colored by any means, including the use of chemical dyes (Id., column 3 lines 25-31). Carlson teaches that some of the fibers of the backing layer are relocated into the facing layer and the color of the backing layer is made visible (Id., column 4 lines 37-56). Carlson teaches that a highly decorative fabric is produced, whereby the patterned image is aesthetically enhanced by the variable hues of color associated with particular areas of the pattern (Id., column 2 lines 55-63).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the nonwoven fabric of the prior art combination, wherein the fiber layers are dyed to comprise different colors and hues, as taught by Carlson, motivated by the desire of forming a highly decorative nonwoven textile having the desired aesthetics enhanced by the variable hues of color.
Although the prior art combination does not appear to specifically teach dope dyeing, the limitation is interpreted as a product by process limitation. Absent a showing to the contrary, it is Examiner’s position that the article of the applied prior art is identical to or only slightly different than the claimed article. 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. In re Thorpe, 227 USPQ 964, 966 (Fed. Cir. 1985). The burden has been shifted to Applicant to show unobvious differences between the claimed product and the prior art product. In re Marosi, 218 USPQ 289 (Fed. Cir. 1983). The applied prior art either anticipated or strongly suggested the claimed subject matter. It is noted that if Applicant intends to rely on Examples in the specification or in a submitted declaration to show unobviousness, Applicant should clearly state how the Examples of the present invention are commensurate in scope with the claims and how the Comparative Examples are commensurate in scope with the applied prior art.
Claims 4 and 5 are rejected under 35 U.S.C. 103 as obvious over Erickson in view of Smith and Miyamura, as applied to claims 1 and 4-8 above, in view of Carlson and “Environmental Evaluation of Fabric Dyeing and Water Use for a Global Apparel Manufacturer” to Lewis.
Regarding claims 4 and 5, in the event it is shown that dope dyeing the fibers necessarily results in a different product, Lewis teaches textile dyeing being one of the largest contributors to hazardous chemicals in the apparel supply chain (Lewis, Abstract). Lewis teaches common assessments of water pollution from dyestuffs, wherein waterless dyeing methods are researched to both reduce the amount of water use and the amount of waste caused by dyes and dyebath additives (Id., page 2). Lewis teaches that in the solution dyeing process for polyester, the polymer solution is melt spun and dyes or pigments are added most often as melt chips (i.e., dope dyeing), wherein the process requires no water and results in virtually no waste (Id.). Lewis teaches a polyester fabric dyed traditional and solution dyed (Table I). Lewis teaches that the color cannot be removed in the solution dyed polyester fabric (Id., page 6), either through extraction or even home laundering (Id., page 12). Lewis teaches that since solution dyeing does not require a traditional dyebath, it can provide some environmental benefits, especially water conservation and quality (Id.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the nonwoven fabric of the prior art combination, wherein the fiber layers are dyed by solution dyeing, as taught by Lewis, motivated by the desire of forming a highly decorative nonwoven textile which is dyed by methods known in the art as predictably providing environmental benefits.
Claims 9-14 are rejected under 35 U.S.C. 103 as obvious over USPN 4,416,936 to Erickson in view USPN 3,817,820 to Smith.
Regarding claims 9-14, Erickson teaches a multi-layer nonwoven fabric comprising at least one layer of waste fibers positioned between layers of virgin synthetic fibers joined by needlepunching (Erickson, Abstract). Erickson teaches that the outer layers are formed from virgin synthetic fibers such as polyethylene terephthalate, having a staple length of about 2 to 3½ inches, such as about 3¼ inches (Id., column 2 lines 3-29, column 4 lines 29-49). Erickson teaches that the intermediate layer can be formed from a wide variety of waste or off-quality fibers, such as scrap material as fibers which have been recovered from fabric such as by shredding selvage strips, small masses of entangled short fibers, and other fibers which are unsuitable for forming into first-quality fabric (Id., column 2 lines 30-55). Erickson teaches that the waste fibers can be a mixture of short pieces of material and staple fibers of any length from woven or nonwoven fabrics (Id.). Erickson teaches that the fibers will be of varied lengths from 0.25-inch to about 3 inches, crimped and colored (Id.). Erickson teaches that the layers can be consolidated by depositing each layer in the form of a carded web and then needle-punching two layers to form an integral two-layer web (Id., column 2 lines 56-68, column 3 lines 5-58). Erickson teaches that the fabric can be used in material used to make economical or disposable blankets (Id., column 4 lines 25-28).
Erickson teaches that the layers are consolidated by needlepunching. Erickson does not appear to teach the claimed fiber deniers and the claimed elastomeric layer. However, Smith teaches a needled textile fabric having entangled fibers and a density gradient increasing from the back surface to the face surface, wherein the products are made by needling layers of fibers (Smith, column 1 lines 11-19). Smith teaches a density gradient provided by a needle-pick-up gradient, such as a fiber denier gradient wherein the denier of the fibers decreases from the back surface to the face surface, and each of the layers has different average fiber deniers (Id., column 5 line 66 to column 6 line 2). Smith teaches that a first layer may have an average denier of approximately 4, a second layer may have an average denier of approximately 3, and a third layer may have an average denier of approximately 1½, wherein deniers between about ½ to 8 can be used (Id., column 5 line 66 to column 6 line 2, column 8 line 29 to column 9 line 15). Smith teaches that a needle will preferentially pick up and entangle fibers of lower denier, wherein the smaller denier fibers can be picked up and entangled at or near the surface of the batt in a more dense and compacted configuration than larger denier fibers (Id., column 9 lines 16-42). Smith teaches that the layers may comprise polyester fibers, including waste fibers (Id., column 25 line 51 to column 26 line 31). Smith teaches that the dense fibrous nature of the fabric surface provides scuff or abrasion resistance properties (Id., column 22 line 70 to column 23 line 7).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the nonwoven fabric of Erickson wherein the fiber deniers decrease from the back surface to the face surface, such as fiber deniers within the claimed ranges for each of an outer and an inner layer, as taught by Smith, motivated by the desire of forming a conventional recyclable garment comprising a structure known in the art to predictably impart the desired surface structure and properties such as scuff and abrasion resistance.
Claims 12-14 are rejected under 35 U.S.C. 103 as obvious over Erickson in view of Smith, as applied to claims 9-14 above, and further in view of Carlson.
Regarding claims 12-14, in the event it is shown that the prior art does not recite the claimed properties or it would not have been obvious to form the invention of Erickson with the claimed properties, Carlson teaches a color enhanced, patterned nonwoven based composite fabric wherein an entangled, imaged nonwoven fabric exhibits variable fiber density in selected regions and where a colored backing material is laminated to the facing layer such that the color of the backing layer is observed as variable hues which coincide with regions of lower fiber density in the facing layer (Carlson, Abstract). Carlson teaches that the facing fabric may be white or colored (Id., column 2 line 64 to column 3 line 11). Carlson teaches that the backing layer is a fibrous nonwoven material (Id., column 2 lines 28-44). Carlson teaches that the web comprises 100% staple length polyester fibers (Id., column 3 lines 12-18, column 4 lines 12-21). Carlson teaches that the materials may be colored by any means, including the use of chemical dyes (Id., column 3 lines 25-31). Carlson teaches that some of the fibers of the backing layer are relocated into the facing layer and the color of the backing layer is made visible (Id., column 4 lines 37-56). Carlson teaches that a highly decorative fabric is produced, whereby the patterned image is aesthetically enhanced by the variable hues of color associated with particular areas of the pattern (Id., column 2 lines 55-63).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the nonwoven fabric of the prior art combination, wherein the fiber layers are dyed to comprise different colors and hues, as taught by Carlson, motivated by the desire of forming a highly decorative nonwoven textile having the desired aesthetics enhanced by the variable hues of color.
Response to Arguments
Applicant’s arguments have been considered but are moot based on the new ground of rejection.
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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/PETER Y CHOI/Primary Examiner, Art Unit 1786