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 14-17 and 19 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 14-17 and 19, claim 14 recites a first fiber web comprising first recycled fibers, a second fiber web, and a third fiber web comprising second recycled fibers, wherein the first fiber web forms the outermost face, and wherein the third fiber web forms the innermost face and wherein the second recycled 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 face surface and having the claimed denier.
Additionally, if the third fiber web forms the innermost face and the first fiber web forms the outermost face, the second fiber web forms neither of the surfaces and is necessarily between the third fiber web (i.e. the innermost-facing surface) and the first fiber web (i.e. the outermost-facing surface). Applicants’ specification does not appear to teach such an arrangement.
Claim Rejections - 35 USC § 103
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, 2, 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, 2, 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 crosslapping and then needle-punching, such as needling two layers together 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). Note that since the fabric only comprises the synthetic fibers and waste fibers, at least 50% by weight of the fabric would appear to comprise those fibers.
Regarding the recycled fibers comprising re-pelletized polymer fibers that are extruded from pelletized by-products derived from polyethylene terephthalate containing products, the recitation of the polymer fibers being extruded from pelletized by-products derived from polyethylene terephthalate containing products 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. The polyethylene terephthalate fibers appear to be within the scope of the claimed recycled fibers.
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 length as claimed, 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 of fibers, 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 Erickson, 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 color properties, Erickson 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.
Regarding the color property being visually discernible to a greater degree on one of the faces, since a layer comprises the shredded-article fibers which are needlepunched, the color property would appear to be visually discernible to a greater degree.
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 Erickson teaches a substantially similar structure as claimed, the fabric of Erickson appears capable of the claimed use.
Regarding the claimed “outermost-facing” and “innermost-facing”, the claimed limitations are only interpreted as to the spatial arrangement of the layers. If the invention of the prior art combination teaches a substantially similar spatial arrangement of the layers, then the prior art combination renders obvious the claimed structure. Since the prior art teaches a virgin fiber layer next to a scrap material fiber layer, the prior art appears to teach the claimed structure.
Regarding claim 2, the prior art combination does not appear to teach the claimed stiffness. However, since the prior art combination teaches a substantially similar structure and composition as claimed, including thicknesses and basis weights as set forth in Applicants’ specification, it is reasonable for one of ordinary skill to expect that the claimed stiffness naturally flows from the teachings of the prior art combination. Products of identical structure cannot have mutually exclusive properties. The burden is on Applicants to prove otherwise.
Regarding claims 4, 6, and 7, Erickson teaches that the fibers will be of varied lengths from 0.25-inch to about 3 inches. Note 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).
Alternatively, 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 fiber lengths and average staple fiber lengths with a standard deviation, such as within the claimed ranges, motivated by the desire of forming a conventional nonwoven textile having properties which are predictably suitable based on the totality of the teachings of Erickson.
Regarding claim 8, since the nonwoven fabric of Erickson appears to be within the scope of the claimed apparel, the fabric would appear to comprise greater than 50% by weight of the article of apparel.
Claims 2 and 3 are rejected under 35 U.S.C. 103 as obvious over Erickson in view of Smith and Miyamura, as applied to claims 1, 2, and 4-8 above, and further in view of US Pub. No. 2010/0222755 to Westwood.
Regarding claim 2, the claimed stiffness appears to naturally flow from the teachings of the prior art. In the event it is shown that the prior art combination does not appear to teach the stiffness, Westwood teaches a meltspun laminate comprising two or more layers of meltspun fabrics, wherein layers that are adjacent to one another are in situ entangled with one another (Westwood, Abstract). Westwood teaches that the laminate may include at least one elastic layer (Id., paragraph 0002), wherein the elastic layer is a fabric layer located between the two facing layers (Id., paragraphs 0024-0027, 0059, claim 9). Westwood teaches that the elastic fabric layer maybe made from any material that is extrudable in a meltspinning apparatus (Id., paragraph 0027), wherein meltspinning includes spunbonding and meltblowing (Id., paragraph 0015). Westwood teaches that layers may be bonded to one other by mechanical entangling methods (Id., paragraph 0027). Westwood teaches the laminate may be used in garments, protective apparel, and clothing apparel (Id., paragraph 0132). Westwood teaches that facing layers may be made from polymers including polyesters such as polyethylene terephthalate (Id., paragraphs 0060-0061). Westwood teaches that the elastomeric fabric may be formed onto and/or bound to a secondary layer to form an elastic layered structure to improve properties such as drape (Id., paragraph 0092). Note that Applicants’ specification teaches that the stiffness corresponds to drape (see Applicants’ specification at paragraph 0039).
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 drape of the composite by including an elastic layer, such as within the claimed range, motivated by the desire of forming a conventional nonwoven fabric comprising a stiffness and drape based on the desired properties of the resulting garment.
Regarding claim 3, Westwood teaches that any layer may include additives from 0.1 to 10 wt % by weight of the fiber, wherein additives include nucleating agents (Westwood, paragraph 0076). It is reasonable for one of ordinary skill in the art to expect that the addition of nucleating agents predictably increases the crystallinity and flexibility of the polymer fibers.
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 a nucleating agent in an amount, such as within the claimed range, motivated by the desire of forming a conventional nonwoven fabric comprising additives based on the desired properties of the fabric.
Claims 14, 15, 17, and 19 are rejected under 35 U.S.C. 103 as obvious over Erickson in view of Smith and Miyamura, and US Pub. No. 2018/0363183 to Jarrard.
Regarding claims 14, 15, 17, and 19, the teachings of Erickson, Smith, and Miyamura set forth above are incorporated herein, including a multi-layer nonwoven fabric comprising at least one layer of waste fibers positioned between layers of synthetic fibers and an elastomeric layer.
Regarding the claimed elastomeric layer comprising a recycled thermoplastic elastomer, Applicants’ specification does not set forth any characteristics which necessarily differentiate a recycled thermoplastic elastomer and a thermoplastic elastomer, such that the recitation of a recycled thermoplastic elastomer imputes certain unique characteristics or properties to the claimed layer other than indicating the source of the starting material for the layer. Therefore, the recitation of “recycled thermoplastic elastomer” only appears to be directed to the intermediate product or source of the material which is eventually used in the claimed invention, and is interpreted as product by process limitations.
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 the fibers being viewable as claimed, 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. It is reasonable for one of ordinary skill in the art to expect that the fibers of the layers are entangled with each other, such that the fibers extend through the layers as claimed.
Additionally, Jarrard teaches a multilayered batt including one or more layers of staple fibers and filament fiber layers, wherein at least some of the staple fibers are mechanically entangled through a thickness of the batt, to impart structural stability and enhance the Z-directional strength of the batt (Jarrard, Abstract). Jarrard teaches that at least some fibers may optionally extend though the thickness of the batt (Id., paragraph 0024, Fig. 1A). Note that the entangled fibers are exposed through a surface of the batt. Jarrard teaches that the staple fibers may be formed from any synthetic material and that the filament fiber layer may be formed from a polyester (Id., paragraphs 0039-0042). Jarrard teaches the needlepunching reorients the fibers so they are entangled with other fibers in other layers thereby helping to secure each layer together in a manner that prevents shearing of the layers (Id., paragraph 0055). Jarrard teaches that the disclosure relates generally to materials for providing insulative properties (Id., paragraph 0012).
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 entangled such that the fibers extend through the surface and a second color or third color property is viewable on the first face, as taught by Jarrard, motivated by the desire of forming a conventional recyclable garment comprising a structure known in the art to predictably impart structural stability and enhance the Z-directional strength of the composite.
Regarding claim 15, the prior art combination does not appear to teach the claimed stiffness. However, since the prior art combination teaches a substantially similar structure and composition as claimed, including thicknesses and basis weights as set forth in Applicants’ specification, it is reasonable for one of ordinary skill to expect that the claimed stiffness naturally flows from the teachings of the prior art combination. Products of identical structure cannot have mutually exclusive properties. The burden is on Applicants to prove otherwise.
Regarding claim 17, Erickson teaches that the fibers will be of varied lengths from 0.25-inch to about 3 inches. Note 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).
Alternatively, 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 fiber lengths and average staple fiber lengths with a standard deviation, such as within the claimed ranges, motivated by the desire of forming a conventional nonwoven textile having properties which are predictably suitable based on the totality of the teachings of Erickson.
Regarding claim 19, the prior art combination 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). The prior art combination teaches a substantially similar structure and composition as claimed, including overlapping basis weight as set forth the specification. 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, and adjusting and varying the basis weight of the multi-layer nonwoven fabric, such as within the range, as taught by Miyamura, motivated by the desire of forming a conventional nonwoven textile for use in garments having properties known in the art as being predictably suitable for multi-layer nonwoven fabrics suitable for use in clothing and having good hand, resistance to fuzzing, stretchability, and breathability.
Claims 15 and 16 are rejected under 35 U.S.C. 103 as obvious over Erickson in view of Smith, Miyamura, and Jarrard, as applied to claims 14, 15, 17, and 19 above, and further in view of Westwood.
Regarding claims 15 and 16, the teachings of Westwood set forth above are incorporated herein.
Regarding claim 15, as set forth above, the prior art combination teaches that the elastomeric fabric may be formed onto and/or bound to a secondary layer to form an elastic layered structure to improve properties such as drape (Westwood, paragraph 0092). Note that Applicants’ specification teaches that the stiffness corresponds to drape (see Applicants’ specification at paragraph 0039).
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 drape of the composite, such as within the claimed range, motivated by the desire of forming a conventional nonwoven fabric comprising a stiffness and drape based on the desired properties of the resulting garment.
Regarding claim 16, as set forth above, the prior art combination teaches that any layer may include additives from 0.1 to 10 wt % by weight of the fiber, wherein additives include nucleating agents (Westwood, paragraph 0076). It is reasonable for one of ordinary skill in the art to expect that the addition of nucleating agents predictably increases the crystallinity and flexibility of the polymer fibers.
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 a nucleating agent in an amount, such as within the claimed range, motivated by the desire of forming a conventional nonwoven fabric comprising additives based on the desired properties of the fabric.
Response to Arguments
Applicants’ arguments filed November 13, 2025, have been fully considered but they are not persuasive. Applicants argue that Smith is not combinable with Erickson, because Erickson specifies that the length of the staple fibers should be at least about 2 inches in length, whereas Smith teaches a decreasing fiber length gradient with fiber lengths of up to 4 inches. Examiner respectfully disagrees. As set forth by Applicants, Erickson teaches that the staple fibers should be at least about 2 inches in length. Although at least about 2 inches overlaps with the claimed length, it is noted that Erickson establishes that staple fibers ranging in length from about 1 ½ inches to 10 inches are suitable (Erickson, column 2 lines 3-11). Additionally, Smith teaches that fiber lengths up to 4 inches, or 1 inch to 3 inches, may be used in building the fiber length gradient (Smith, column 6 lines 31-40). The fiber lengths of Smith additionally overlap with the claimed length, and the lengths set forth in Erickson. Therefore, Erickson and Smith, both directed to layers consolidated by needlepunching having overlapping lengths, appear properly combinable.
Applicants argue that arrangement of the entangled fiber webs in the article of apparel are important and serve a particular purpose. Examiner notes that Applicants’ arguments do not differentiate the arrangement of layers taught by the prior art from the claimed invention, as the prior art teaches a similar arrangement of layers. Additionally, it should be noted that reversible apparel is well-known in the art.
Applicants argue that Smith teaches that the face surface has the short length and lower denier fibers, which is the opposite configuration from the claimed structure. Additionally, Applicants argue that one of ordinary skill would not be motivated to modify Erickson with the teachings of Smith, because doing so would change the principle of the textile disclosed in Erickson, as the lower denier fibers are shorter fibers provided on the face surface which is the opposite fiber configuration claimed.
Regarding Applicants’ arguments, Examiner respectfully disagrees. As set forth previously, the prior art teaches a similar arrangement of layers. Applicants’ recitation of “innermost” and “outermost” is only interpreted as to the spatial arrangement of the layers, as the claims are not directed to the use of the article of apparel, such as in combination with a wearer when used.
Applicants argue that Westwood fails to cure the deficiencies of Erickson and Miyamura with respect to the claimed recycled fibers having the claimed staple length and the claimed denier. Examiner respectfully disagrees. As set forth above, the recitation of recycled fibers is interpreted as a product by process limitation. Applicants have not established that the fibers are necessarily not within the scope of the claimed recycled fibers.
Although Applicants argue that the prior art fails to teach each and every element of claims 14-17 and 19, Applicants do not recite with particularity elements which are not taught by the prior art. However, as set forth above, the prior art combination renders obvious the claimed invention.
Conclusion
Applicants’ amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicants are 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