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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 05/28/2025 has been entered.
Status of Claims
The amendments and arguments filed on 05/28/2025 are acknowledged and have been fully considered. Claims 1-3 and 9 are now pending. Claims 4-8 are canceled; claims 1-2 are amended; claim 9 is withdrawn.
Claims 1-3 will be examined on the merits herein.
Objections/Rejections Withdrawn
Rejections and/or objections not reiterated from previous Office Actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied, and constitute the complete set presently being applied to the instant application.
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.
Claim 2 is 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. In the instant case, claim 2 requires at least one textured yarn composed of a polymer material and a textured material, however the disclosure did not mention a “textured material” previously in any claims or the specification. As such this is considered new matter.
For purposes of search and consideration, the limitation is understood as “at least one textured yarn is composed of a polymer material, and wherein the at least one textured yarn is woven into the textile substrate.”
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1 and 3 are rejected under 35 U.S.C. 103 as being unpatentable over USPGPUB 20080152894 A1 (Beihoffer et al, 2008) in view of KR 102142453 B1 (Eun et al., 2020; machine translation provided by FIT via PE2E), “Organic Astaxanthin-A Antioxidant Facial oil” (VeOrganics, 2019), (Nature’s Skin Remedy: A closer look at the skin-clearing benefits of Fulvic acid” (Fedotova, 2018), “Silk Amino Acids” (Treeactiv, 2018), “Fabrication of ceramic particles deposited nano-web using elecrospinning process and its far-infrared ray emission property” (Hong, 2010; machine translation via Google Translate), “Benefits of Citric Acid for Skin – Why is Citric Acid Good for your Skin” (C., Jessica, 2020; referred to as Citric acid), and “Grapeseed Oil for Skin: Benefits and Uses” (Healthline, 2019) as evidenced by “Nutrient” (Merriam-Webster, 2020; screenshot from Wayback Machine from https://web.archive.org/web/20200702210317/https://www.merriam-webster.com/dictionary/nutrient).
In regards to claim 1, Beihoffer teaches an article containing microparticles loaded with multiple active agents (see Beihoffer, abstract, paragraph 0034) wherein the microparticles are impregnated into a porous substrate (see Beihoffer, abstract, paragraph 0019). Said article is taught to be a wipe product, a garment, a bed sheet, a pillow case, a carpet, a glove, a cloth towel, among others (i.e., a textile substrate) (see Beihoffer, paragraph 0012). Further, it is taught that a substrate of the article generally is an intersticed material, such as a cloth or fabric-like sheet, comprising fibers or fiber blends designed to impart desired strength and wetting properties to the substrate, such as woven and nonwoven webs, such as spun-lace, melt-blown, and air-laid fabrics (see Beihoffer, paragraph 0026). The microparticles are taught to be distributed throughout the volume of the substrate (see Beihoffer, paragraph 0018). Also, it is taught that the term "polymeric microparticle delivery system" encompasses microparticles and microcapsules generally (see Beihoffer, paragraph 0035). It is taught that the polymeric microparticle delivery system is applied to applied to the surface of the substrate, such as the external surface of the substrate (see Beihoffer, paragraph 0085).
In regards to the microencapsulated compound of claim 1, the microparticle of Beihoffer is taught to be semipermeable which allows the active agent to diffuse from the particle (i.e., a semipermeable shell) and have controlled release of the active agent over time (i.e., a time-release grain) (see Beihoffer, paragraph 0034). Further, it is taught that the microparticles are covered in barrier layer (see Beihoffer, paragraphs 0047-0050) comprised of a water-soluble polymer, a biological polymer, a gum (defined by Applicants as being a biodegradable material on page 7, lines 1-3 of the instant specification as filed), carbohydrate, a cellulose derivative, and a sorbitan derivative, as well as mixtures thereof (see Beihoffer, claim 22). The broadest reasonable interpretation of Applicants’ recited term “nutrient” is understood as being a substance or ingredient that promotes growth, provides energy, and maintains life (see e.g., Merriam-Webster, page 1), such as a vitamin, protein, or mineral. It is taught that the active agent is a vitamin, a protein, a mineral, among others (see Beihoffer, paragraphs 0056-0058; claim 19).
Further in regards to claim 1, it is taught that the article has a barrier layer, which is applied to the loaded microparticles, wherein the material for the barrier layer is selected from waxes or polyethylene (see Beihoffer, paragraphs 0047-0049). These are taught as acceptable rheological aids in the instant specification as filed on page 5, lines 25-26.
Beihoffer is silent on the use of a dry abrasive material in the article, the textile substrate being elastic, the use of a far infrared emitting particle that is ceramic, and the use of a solution comprising astaxanthin oil, silk amino acids, and fulvic acid.
In regards to claim 1, Eun teaches a composition wherein a cleansing pad is impregnated with a cleansing composition comprising an abrasive material containing inorganic powder, that has excellent cleansing and exfoliating effects (see Eun, abstract). Eun teaches that the cleansing pad is a dry glove-type pad, has a glove shape, a square-shaped towel shape, or is an integral cleansing pad in which all surfaces of the fabric layer are fused (see Eun, page 4, paragraph 8). Eun teaches that the cleansing pad is made of nylon, cellulose, rayon, or Tencel (see Eun, page 4, paragraph 12).
In regards to the volcanic mineral of claim 1 and the micron-sized particles of claim 3, Eun discloses that the abrasive, inorganic powder is further defined as comprising volcanic pine powder (see Eun, page 3, paragraphs 8-9). “Volcanic pine powder is an inorganic raw material obtained from lava sediments. Volcanic pine powder is an excellent abrasive for exfoliating, and is excellent for removing wastes and sebum with its excellent adsorption power of fine nanopores. In addition, as it is rich in minerals, it has the effect of supplying nutrients and moisture to the skin, and additionally provides antibacterial effects” (see Eun, page 3, paragraph 9). It is taught that the inorganic powder (i.e., volcanic pine powder) has a particle diameter of 10-100µm (see Eun, page 2, paragraph 7). Eun additionally discloses preference for this range stating that “[i]f the particle diameter is less than 10 µm, the exfoliating ability is deteriorated, and if it exceeds 100 µm, it may irritate the skin.”
Eun teaches that the cleaning composition is impregnated onto the substrate by continuously immersing the fabric in a container containing the cleansing composition (see Eun, page 5, paragraph 11). One with ordinary skill in the art would understand that by immersing the fabric in the cleansing composition, the cleansing composition and its components (i.e., the volcanic pine powder) would be on the surface of the fabric (i.e., being positioned external to the textile substrate). Further, it is taught that once impregnated, the fabric is dried (see Eun, page 4, paragraphs 8-12). As such, the volcanic pine powder is dry as well once impregnated onto the fabric.
VeOrganics teaches that astaxanthin oil is a rich source of vitamin A, a strong antioxidant, and also is used to fight against aging. Astaxanthin fights against aging, helps diminish fine lines and wrinkles, firms and tones the skin, protects the skin from pollution and damaging effects of free radicals and prevents development of photoaging (see VeOrganics, page 2, paragraph 1). It is also used to increase hydration, skin moisture retention, and soothes the skin (see VeOrganics, page 2, paragraph 2).
TreeActiv teaches that silk amino acids are used to rejuvenate skin tone, reduce wrinkles, and hydrate skin tissues, while also providing hair care and penetrates the upper layers of skin to create a protective barrier that seals in moisture (see TreeActiv, page 1, paragraphs 1-2). Silk amino acids also prevent scar formation and protect against harmful free radicals (see TreeActiv, page 2, “some fun facts about silk amino acids”).
Fedotova teaches that fulvic acid is used to assist in every state of cellular rejuvenation (see Fedotova, page 3, paragraph 3), reduce inflammation, neutralize toxins, and transport nutrients to skin cells (see Fedotova, page 3, paragraph 4). It is also used to treat acne and rosacea (see Fedotova, page 3, paragraph 5).
Hong teaches fabrics comprising far infrared (FIR) emitting particles comprised of ceramics, such as cordierite (see Hong, abstract; page 2, column 1, paragraph 3). It is taught that the use of FIR emitting clothing and bedding is made by incorporating inorganic particles (i.e., ceramic particles) into the fibers of the textiles (see Hong, page 1, column 1, paragraph 1). Multiple benefits of using ceramic powders incorporated into fabrics are discussed, including the reducing heat loss from the human body (see Hong, page 1, column 1, paragraph 1).
Citric acid teaches that citric acid is known for exfoliating and removing dead skin cells, reduces the appearance of fine lines and wrinkles, evens the skin tone, helps to brighten, soften, and smooth the skin, targets mild breakouts and is a known antioxidant (see Citric acid, page 3).
Healthline teaches that grape seed oil is known as an anti-inflammatory, antimicrobial, and antioxidant compound (see Healthline, page 1), while also treating acne breakouts, making skin softer and more elastic, and works as a sunscreen (see Healthline, pages 1-2).
In regards to claims 1 and 3, it would have been prima facie obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, to formulate the textile as instantly claimed by modifying the teachings of Beihoffer with the cosmetic disclosures of Eun, VeOrganics, TreeActiv, Fedotova, Citric acid, Healthline, and Hong as discussed above.
MPEP §2144.06(I) states that “[i]t is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose … the idea of combining them flows logically from their having been individually taught in the prior art.”
In the instant case, each of the cite references provides disclosure directed towards cosmetic and/or topically-applied agents that convey beneficial advantages to the skin. Beihoffer and Eun both disclose treated substrates having cosmetic application.
Thus, it would be beneficial to combine the abrasive material (i.e., volcanic pine powder) of Eun to the textile of Beihoffer as it is an excellent abrasive for removing waste and sebum and exfoliating, while also providing nutrients and moisture to the skin (see Eun, page 3, paragraph 9). It would also be beneficial to use Tencel as it has a smooth fiber structure, excellent moisture content, and water absorption (see Eun, page 4, paragraph 12) while also being processed in an environmentally safe, and ethical way (see Clothing Manufacturers UK, page 1). Further, Beihoffer teaches that multiple active agents are used in the composition (see Beihoffer, abstract, paragraph 0034), such as antioxidants (i.e. astaxanthin, citric acid, and grape seed oil), anti-inflammatory compounds (i.e. fulvic acid and grapeseed oil), sunscreens (i.e., grapeseed oil), optical brighteners (i.e., citric acid), or skin care compounds (i.e. silk amino acids, citric acid and grape seed oil). Further, each of the nutrients (astaxanthin, fulvic acid, silk amino acids, citric acid, and grape seed oil) have their own benefits for use on the skin as discussed above. Finally, it would be beneficial to one with ordinary skill in the art to use the teachings of Hong to incorporate FIR emitting ceramic particles, such as cordierite, into the textile of Beihoffer, as these sorts of fabrics are known along with their benefits for the human body, including reducing heat loss from the human body (see Hong, page 1, column 1, paragraph 1). One with ordinary skill in the art would be motivated to combine the abrasive material and textile of Eun, the nutrients of VeOrganics, TreeActiv, Fedotova, Citric acid, and Healthline, and the ceramic particles of Hong to the textile of Beihoffer according to known methods of impregnating a textile with an abrasive material (see Eun, page 5, paragraphs 10-page 6, paragraph 10), using microcapsules to deliver active agents (see Beihoffer, paragraph 0034-0035), and incorporating FIR emitting particles into textiles (see Hong, page 2, 2.1 Production of polymer nanoweb containing inorganic particles) to yield predictable results with a reasonable expectation of success. One with ordinary skill in the art would be motivated to combine prior art elements according to known method to yield predictable results.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over USPGPUB 20080152894 A1 (Beihoffer et al, 2008) in view of KR 102142453 B1 (Eun et al., 2020; machine translation provided by FIT via PE2E), “Organic Astaxanthin-A Antioxidant Facial oil” (VeOrganics, 2019), (Nature’s Skin Remedy: A closer look at the skin-clearing benefits of Fulvic acid” (Fedotova, 2018), “Silk Amino Acids” (Treeactiv, 2018), “Fabrication of ceramic particles deposited nano-web using elecrospinning process and its far-infrared ray emission property” (Hong, 2010; machine translation via Google Translate), “Benefits of Citric Acid for Skin – Why is Citric Acid Good for your Skin” (C., Jessica, 2020; referred to as Citric acid), and “Grapeseed Oil for Skin: Benefits and Uses” (Healthline, 2019) as applied to claims 1 and 3 above, and further in view of “Textured Yarns” (Desales, 2020; screenshot provided by Wayback Machine) as evidenced by “Nutrient” (Merriam-Webster, 2020; screenshot from Wayback Machine from https://web.archive.org/web/20200702210317/https://www.merriam-webster.com/dictionary/nutrient).
The teachings of Beihoffer, Eun, VeOrganics, Fedotova, Treeactive, Hong, Citric acid, and Healthline have been described supra.
The teachings of Beihoffer, Eun, VeOrganics, Fedotova, Treeactive, Hong, Citric acid, and Healthline are silent on the use of at least one textured yarn.
Desales teaches that texturing yarn enables the yarn to be knit or woven, while also giving the yarn stretch (see Desales, paragraphs 1 and 2). It is taught that the textured yarn is generally made from a filament polyester, filament nylon, or filament polypropylene (i.e., polymer material) (see Desales, paragraph 5).
In regards to claim 2, it would have been prima facie obvious to a person of ordinary skill in the art, before the effective filing date of the claimed invention, to formulate the textile as instantly claimed by modifying the teachings of Beihoffer, Eun, VeOrganics, TreeActiv, Fedotova, Citric acid, Healthline, and Hong with the teachings of Desales as instantly claimed. One with ordinary skill in the art would be motivated to combine the teachings of Desales with the references as Desales teaches that textured yarn is made using polyester or nylon and Eun teaches that the fabrics used in the article are at least one of polyester or nylon (see Eun, page 4, paragraph 12). Further, it is taught that textured yarn can be used to adjust how much stretch and elasticity the article has and allows for the yarn to be woven (see Desales, paragraphs 1 and 3). It would be obvious to one with ordinary skill in the art to combine the teachings of Desales with the teachings of Beihoffer, Eun, VeOrganics, Fedotova, Treeactive, Hong, Citric acid, and Healthline according to the known method of making a textured yarn (see Desales, paragraph 1) to yield predictable results with a reasonable expectation of success. One with ordinary skill in the art would be motivated to combine prior art elements according to known methods to yield predictable results.
Response to Arguments
Applicant's arguments filed 05/28/2025 have been fully considered but they are not persuasive in view of the modified grounds of rejection as necessitated by amendment.
In regards to applicant’s argument that the abrasive material is superimposed onto the textile substrate and that the abrasive material is positioned external to the textile substrate, it is pointed out that the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). In the instant case, examiner points out that Eun teaches that the cleaning composition is impregnated onto the substrate by continuously immersing the fabric in a container containing the cleansing composition (see Eun, page 5, paragraph 11). One with ordinary skill in the art would understand that by immersing the fabric in the cleansing composition, the cleansing composition and its components (i.e., the volcanic pine powder) would be on the surface of the fabric (i.e., being positioned external to the textile substrate). Further, it is taught in Beihoffer that the polymeric microparticle delivery system is applied to applied to the surface of the substrate, such as the external surface of the substrate (see Beihoffer, paragraph 0085).
In regards to applicant’s argument that the instant claims require a dry abrasive material and the teachings of Eun require a cleansing solution which is soaked into the cleansing pad, it is pointed out that once impregnated, the fabric is dried (see Eun, page 4, paragraphs 8-12). As such, the volcanic pine powder is dry as well once impregnated onto the fabric.
In regards to applicant’s argument that the FIR emitting particles are interspersed amongst the plurality of time-release grains in the instant invention and the art teaches that the FIR emitting particles and time-release grains are one in the same topically administered compound, Hong teaches fabrics comprising far infrared (FIR) emitting particles comprised of ceramics, such as cordierite (see Hong, abstract; page 2, column 1, paragraph 3). It is taught that the use of FIR emitting clothing and bedding is made by incorporating inorganic particles (i.e., ceramic particles) into the fibers of the textiles (see Hong, page 1, column 1, paragraph 1). Multiple benefits of using ceramic powders incorporated into fabrics are discussed, including the reducing heat loss from the human body (see Hong, page 1, column 1, paragraph 1). Further the ceramic particles are separate from the microencapsulated compounds of Beihoffer as Beihoffer is silent on FIR particles. Further, for example, if the ceramic particles of Hong are combined with the method of immersing a fabric to impregnate it with a composition, then the ceramic particles would be interspersed amongst the other compounds in the cleaning composition. It would be beneficial to one with ordinary skill in the art to use the teachings of Hong to incorporate FIR emitting ceramic particles, such as cordierite, into the textile of Beihoffer, as these sorts of fabrics are known along with their benefits for the human body, including reducing heat loss from the human body (see Hong, page 1, column 1, paragraph 1). One with ordinary skill in the art would be motivated to combine the abrasive material and textile of Eun, the nutrients of VeOrganics, TreeActiv, Fedotova, Citric acid, and Healthline, and the ceramic particles of Hong to the textile of Beihoffer according to known methods of impregnating a textile with an abrasive material (see Eun, page 5, paragraphs 10-page 6, paragraph 10), using microcapsules to deliver active agents (see Beihoffer, paragraph 0034-0035), and incorporating FIR emitting particles into textiles (see Hong, page 2, 2.1 Production of polymer nanoweb containing inorganic particles) to yield predictable results with a reasonable expectation of success. One with ordinary skill in the art would be motivated to combine prior art elements according to known method to yield predictable results.
In regards to the amendments made by applicant and that the rejection previously did not teach all of the limitations of the instant claims, it is pointed out that the rejection has been modified as necessitated by amendment to be over Beihoffer in view of Eun, VeOrganics, Fedotova, Treeactive, Hong, Citric acid, and Healthline, and in further view of Desales. These references together render the new limitations of the claims obvious as discussed above in the rejections.
In response to applicant's argument that the examiner has combined an excessive number of references, reliance on a large number of references in a rejection does not, without more, weigh against the obviousness of the claimed invention. See In re Gorman, 933 F.2d 982, 18 USPQ2d 1885 (Fed. Cir. 1991). In the instant case, the references are drawn towards the same field of endeavor as the claimed invention. Further, in response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it 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). In the instant case, the reasoning for the combination of references has been given above in the rejection. Further, it is pointed out the Beihoffer teaches that the composition comprises at least one active agent that includes, but are not limited to, skin-care compounds, plant extracts, antioxidants, insect repellants, counterirritants, vitamins, steroids, antibacterial compounds, antifungal compounds, antiinflammatory compounds, topical anesthetics, sunscreens, optical brighteners, and other cosmetic and medicinal topically effective compounds (see Beihoffer, paragraph 0057), which gives one with ordinary skill in the art to use any one of these types of compounds (i.e., citric acid, grape seed oil, etc…) in the article of Beihoffer.
In regards to applicant’s argument that a prima facie case of obviousness has not been established and that a piecemeal examination should be avoided, the examiner respectfully directs Applicants to the statement of obviousness presented in the above rejection.
Conclusion
No claims allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AYAAN A ALAM whose telephone number is (571)270-1213. The examiner can normally be reached M-F 8-5 EST.
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/BETHANY P BARHAM/Supervisory Patent Examiner, Art Unit 1611
/A.A.A./Examiner, Art Unit 1611