DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
The amendment filed on October 17, 2025, has been entered. Claims 7 – 9, 18, and 21 have been canceled. Claims 1, 5, 16, and 22 have been amended. Claims 1 – 6, 10 – 17, 19 and 20 are pending.
The rejections to claims 7 – 9, 18, and 21 are rendered moot due to the cancelation of those claims.
The amendment is sufficient to overcome the 35 USC 112 rejection set forth in the previous Office Action.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1 – 6, 10 – 17, 19, 20, and 222 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hines et al. in view of Gstettner et al. (2010/0270456).
Hines et al. is drawn to a fiber blend useful in garments with a balance of high thermal, abrasion resistance, and moisture management properties (abstract). The fiber blend includes 30 to 70 percent weight of a hydrophobic fiber component which can be chosen from modacrylic fibers; 15 to 45 weight present of a hydrophilic fiber component which can include cellulose fibers; and 10 to 30 weight percent at least one polymer selected from such fibers as aramid fibers (column 3, lines 5 – 25). The fiber blend is used to make a fabric for a garment such as a shirt, pants, underwear, outer wear, etc. (column 5, lines 28 – 35). Other garments made from the blend can include coveralls, overalls, shirts and pants (column 8, lines 13 – 20). A fabric formed from substantially the described blend will have a char length of less than about 5 and preferably less than about 4 inches (column 6, lines 10 – 15). Modacrylic fibers can have 40 to 60 weight percent and more preferably 40 to 50 weight percent (column 6, lines 55 – 60). Further, the hydrophilic fiber is chosen from a cellulose material such as cotton (column 7, lines 2 – 4). Further, the aramid fibers can be present in a level of 27 to 30 weight percent (column 7, lines 28 – 30). Additionally, the fabrics should have a basis weight of less than about 8.0 osy or less than about 6.0 osy (column 8, lines 5 – 15). The fabrics are woven twill fabrics or ripstop fabrics with basis weights as low as 5.75 osy (Examples 1 – 4). Finally, the examples teach making woven fabrics from only yarns formed of the fire retardant blend (Examples 1 – 4). Thus, the fabric will be 100% the blended yarn in the warp and weft directions.
While Hines et al. discloses that the fabric is a woven fabric such as a twill or ripstop fabric. However, Hines et al. doesn’t teach the range of yarns per inch in the woven fabric. Choosing warp and weft density for fabrics is well known in the art. This is shown by Gstettner et al. which is also drawn to flame retardant fabrics. Gstettner et al. discloses that the flame retardant fabrics can have various end uses which will impact selection of fabric structure such as fabric end weight and fiber and yarn size (paragraphs 68 – 73). Specifically, Gstettner et al. teaches that the linear density of the fibers and filaments used in the fabric will be chosen dependent on the intended application (paragraph 69). Further, that the fabric can be chosen from various weave patterns depending on which is appropriate for the clothing application (paragraph 72). Additionally, the products are known to be light weight, medium weight or heavy weight fabrics depending on use (paragraph 72). Lightweight fabrics are between 100 to 150 gsm, or 2.95 to 4.42 osy and medium weight fabrics are between 150 to 230 gsm, or 4.42 to 6.78 osy (paragraph 72). Finally, Gstettner et al. teaches that the basic principle of the invention, which is the combination of fiber materials and yarns, can be incorporated into a wide variety of fabrics and work regardless of construction (paragraph 72). Hence, Gstettner et al. teaches that fire retardant yarn blends can be used in a wide range of fabric constructions and still function as designed. The fabric structure is chosen based on the applicability for the desired end use. Further, Gstettner et al. suggests that the woven fabric is made with yarns having a size of 50/2 Nm, which is equal to about 30 cotton count, and the fabric has a fabric count of 30 warps per cm and 26 wefts per cm, or 76 warps per inch and 66 wefts per inch (paragraphs 79 – 81). Thus, fabric counts, with the claimed ranges and basis weights within the claimed ranges are taught by Gstettner et al. Therefore, it would have been obvious to one in ordinary skill in the art to modify the warp and weft density of the fabric to have more warp and weft yarns per inch based on the size of the yarns used in the fabrics and the structure and properties desired in the end products. Thus, claim 1 – 6, 10, 11, and 15 – 17 are rejected.
Hines et al. fails to teach using a solution dyed product. However, one of ordinary skill in the art understands that there are a limited number of ways aramid fibers can be dyed. It is well known that fabrics used as clothing and in garments are desired to be colored or dyed to make the garment aesthetically appealing. Further, garments used in safety end products are required to be brightly colored so that the wearer is easily seen and identifiable. It is well known that polymer structure of aramids make it hard to dye by common methods that are used to dye other types of fibers such as cotton or modacrylic fibers. Therefore, it would been obvious to one having ordinary skill in the art that the aramid fibers would need to be dyed via solution dying to produce a colored fabric with good durability. Thus, claim 12 is rejected.
Although Hines et al. and Gstettner et al. do not explicitly teach the limitations a char length of less than 3 inches, and an arc flash protection of less than about 8.3 cal/cm2, it is reasonable to presume that said limitations are inherent to the invention. Support for said presumption is found in the use of similar materials (i.e., a blend in overlapping ranges of modacrylic fibers, cotton fibers, and aramid fiber) and in the similar production steps (i.e., blending the fibers together to form a yarn that is made into a woven fabric) used to produce the fire retardant garment. The burden is upon the Applicant to prove otherwise. In re Fitzgerald, 205 USPQ 594. Claims 13, 14, 19 and 20 are rejected.
As set forth above, Hines uses only the blended fiber in both the warp and weft directions in the examples. However, Gstettner discloses that the blended yarn can be combined with other yarns. Gstettner et al. discloses that a secondary yarn including continuous filaments such as polyamide, can be placed into the warp and weft direction of the fabric (paragraphs 60 – 65). Gstettner et al. discloses that the secondary yarn can be added in a grid pattern in both the warp and weft directions at every 4 to 20 yarns (paragraph 64). Thus, the yarn would run in each direction in addition to the primary fire resistant yarn. Further, Gstettner et al. discloses that the fabric results in exceptional flammability and protection performance (paragraph 65). Thus, it would have been obvious to one having ordinary skill in the art that the woven fabric of Hines et al. could include a secondary continuous filament yarn in a repeating pattern in both the warp and weft directions, as taught by Gstettner et al. to improve the strength and protective performance of the fabric while maintaining exceptional flammability.
While Gstettner et al. discloses the number of yarns primary between the secondary continuous filament yarns, Gstettner et al. does not disclose the weight of each yarn. However, it would have been obvious to one having ordinary skill that the continuous filament secondary yarn is a minority amount of the total weight of the fabric so the flammability of the fabric is maintained from the primary fire retardant fabrics and the secondary yarn needs only to be added between every 4 to 20 yarns, which would be at most 25% of the total number of yarns in the fabric. Thus, it would have been obvious to one having ordinary skill in the art to add the secondary yarn in an amount of 25% or less of the total weight of the fabric of Hines et al. to maintain the flammability properties of the fabric. Thus, claim 22 is rejected.
Claim(s) 1 – 6, 10 – 17, 19, 20, and 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Zhu in view of Hines et al. and Gstettner et al.
Zhu discloses a yarn made from a blend of modacrylic fibers, cotton fibers, and aramid fibers that can be used to make fabrics and garments (abstract). The blend comprises 40 to 75 weight percent modacrylic fiber, 10 to 40 weight percent cotton fiber and 5 to 30 weight percent aramid fiber (paragraph 16). The mixture of fibers is spun into a yarn which is used to make woven or knit fabrics (paragraph 17). The yarns can be used in both the warp and fill direction of the fabric (paragraph 31). The aramid fiber can be chosen from meta-aramid, para-aramid or a blend of both (paragraph 22 – 23). The char length of the fabrics is preferably 6 inches and preferably less than 4.5 inches (paragraph 30).
Further, Zhu et al. suggests fabrics have a preferred weight of 8.0 osy discussed in the disclosure. Hines et al. teaches that certain end use embodiments should have lower basis weights such as less than 8.0 osy and less than 6.0 osy are desirable. Further, Gstettner et al. teaches one of ordinary skill in the art can choose from different general weight categories depending on the end use of the fabric. The products are known to be light weight range, medium weight range or heavy weight range fabrics depending on use (paragraph 72). Lightweight fabrics are between 100 to 150 gsm, or 2.95 to 4.42 osy and medium weight fabrics are between 150 to 230 gsm, or 4.42 to 6.78 osy (paragraph 72). Therefore, it would have been obvious to one having ordinary skill in the art to make a fabric with a basis weight of about 6.0 osy or less, since Hines et al. and Gstettner et al. teaches that certain embodiments desire lower weight fabrics.
Additionally, Zhu discloses that the fabric is a woven fabric such as a twill fabric. However, Zhu doesn’t teach the range of yarns per inch in the woven fabric. The examples disclose fabrics were prepared with 100% of the inventive yarn and had 60 ends and 39 picks per inch and 58 ends and 40 picks per inch before scouring a drying the fabric. However, it would have been obvious to one in ordinary skill in the art to modify the warp and weft density of the fabric to have more warp and weft yarns per inch based on the size of the yarns used in the fabrics and the structure and properties desired in the end products. Choosing warp and weft density for fabrics is well known in the art. This is shown by Gstettner et al. which is also drawn to flame retardant fabrics. Gstettner et al. discloses that the flame retardant fabrics can have various end uses which will impact selection of fabric structure such as fabric end weight and fiber and yarn size (paragraphs 68 – 73). Specifically, Gstettner et al. teaches that the linear density of the fibers and filaments used in the fabric will be chosen dependent on the intended application (paragraph 69). Further, that the fabric can be chosen from various weave patterns depending on which is appropriate for the clothing application (paragraph 72). Additionally, the products are known to be light weight, medium weight or heavy weight fabrics depending on use (paragraph 72). Lightweight fabrics are between 100 to 150 gsm, or 2.95 to 4.42 osy and medium weight fabrics are between 150 to 230 gsm, or 4.42 to 6.78 osy (paragraph 72). Finally, Gstettner et al. teaches that the basic principle of the invention, which is the combination of fiber materials and yarns, can be incorporated into a wide variety of fabrics and work regardless of construction (paragraph 72). Hence Gstettner et al. teaches that fire retardant yarn blends can be used in a wide range of fabric constructions and still function as designed. The fabric structure is chosen based on the applicability for the desired end use. Further, Gstettner et al. suggests that the woven fabric is made with yarns having a size of 50/2 Nm, which is equal to about 30 cotton count, and the fabric has a fabric count of 30 warps per cm and 26 wefts per cm, or 76 warps per inch and 66 wefts per inch (paragraphs 79 – 81). Thus, fabric counts, with the claimed ranges and basis weights within the claimed ranges are taught by Gstettner et al. Therefore, it would have been obvious to one in ordinary skill in the art to modify the warp and weft density of the fabric to have more warp and weft yarns per inch based on the size of the yarns used in the fabrics and the structure and properties desired in the end products. Thus, claims 1, 2, 4 – 6, and 15 – 17 are rejected.
Further, the examples teach that the fabric is made with a 2 x 1 twill weave pattern (Table). Thus, claims 3 and 11 are rejected.
However, Zhu fails to specify types of garments the fabric can be used to make. The features of Hines et al. have been set forth above. Hines et al. is drawn to fire retardant garments made from blends of modacrylic, cotton, and aramids. Hines et al. discloses that the fabric can be used to make include coveralls, overalls, shirts and pants (column 8, lines 13 – 20). Therefore, it would be obvious to use the fabric of Zhu to make fire retardant end products that include shirts, pants, and overalls, as suggested by Hines et al. Thus, claim 10 is rejected.
While Zhu discloses that the fire retardant fabrics can be dyed, Zhu fails to teach using a solution dyed product. However, one of ordinary skill in the art understands that there are a limited number of ways aramid fibers can be dyed. It is well known that polymer structure of aramids make it hard to dye by common methods that are used to dye other types of fibers such as cotton or modacrylic fibers. Therefore, it would been obvious to one having ordinary skill in the art that the aramid fibers would need to be dyed via solution dying to produce a colored fabric with good durability. Thus, claim 12 is rejected.
Although the combination of Zhu, Hines and Gstettner et al. does not explicitly teach the limitations char length being less than 3 and arc protection being greater than about 8.3 cal/cm2, Zhu discloses that the examples include char lengths 3.3 inches and 3.6 inches (Table) and that the arc flash should be at least 1.2 cal/cm2 per osy (paragraph 35), it is reasonable to presume that said limitations are inherent to the invention. Support for said presumption is found in the use of similar materials (i.e., a blend in overlapping ranges of modacrylic fibers, cotton fibers, and aramid fibers) and in the similar production steps (i.e., blending the fibers together to form a yarn that is made into a woven fabric) used to produce the fire retardant garments. The burden is upon the Applicant to prove otherwise. In re Fitzgerald, 205 USPQ 594. Thus, claims 13, 14, 19, and 20 are rejected.
As set forth above, Zhu uses only the blended fiber in both the warp and weft directions in the examples. However, Gstettner discloses that the blended yarn can be combined with other yarns. Gstettner et al. discloses that a secondary yarn including continuous filaments such as polyamide, can be placed into the warp and weft direction of the fabric (paragraphs 60 – 65). Gstettner et al. discloses that the secondary yarn can be added in a grid pattern in both the warp and weft directions at every 4 to 20 yarns (paragraph 64). Thus, the yarn would run in each direction in addition to the primary fire resistant yarn. Further, Gstettner et al. discloses that the fabric results in exceptional flammability and protection performance (paragraph 65). Thus, it would have been obvious to one having ordinary skill in the art that the woven fabric of Zhu could include a secondary continuous filament yarn in a repeating pattern in both the warp and weft directions, as taught by Gstettner et al. to improve the strength and protective performance of the fabric while maintaining exceptional flammability.
While Gstettner et al. discloses the number of yarns primary between the secondary continuous filament yarns, Gstettner et al. does not disclose the weight of each yarn. However, it would have been obvious to one having ordinary skill that the continuous filament secondary yarn is a minority amount of the total weight of the fabric so the flammability of the fabric is maintained from the primary fire retardant fabrics and the secondary yarn needs only to be added between every 4 to 20 yarns, which would be at most 25% of the total number of yarns in the fabric. Thus, it would have been obvious to one having ordinary skill in the art to add the secondary yarn in an amount of 25% of the total weight or less of the fabric of Zhu to maintain the flammability properties of the fabric. Thus, claim 22 is rejected.
Response to Arguments
Applicant's arguments filed October 17, 2025 have been fully considered but they are not persuasive. Applicant acknowledge that it is know in the art to use fabrics with similar fiber blends, similar fabric construction and fabric weights (response, pages 5 – 6). The Applicant argues that the claimed amount of cellulose fibers, 17% - 23% would not be obvious because there is a low probability of choosing 17% - 23% from the larger range of 15% - 45% taught by the Hines et al. The applicant argues that the probability is 4% (Response, page 6). While the applicant provides a formula for determining the probability of 4% it is unclear how the applicant chose the formula. The legal standard is not based on probability, but the probability that one would choose a number between 17 – 23 from within the range of 15 – 45, would be (23-17)/(45-15), or 6/30, or 20%. However, the legal standard is if the prior art taught the claimed range. 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). Applicants can rebut a prima facie case of obviousness by showing the criticality of the range, a teaching away, unexpected results, or an overly broad range (see MPEP §2144.05). Applicant’s arguments regarding probability are not considered sufficient to show criticality, unexpected results, or a teaching away. Further, the prior art is considered to have disclosed the invention with sufficient specificity to fully teach the entire range and there is no showing that the properties such as flammability would drastically change over the range. Thus, the rejection is maintained.
Further, the applicant that hindsight is relied on to choose the specific combination of fabric construction features. Again, the applicant has not shown that any of these features or the combination of the features together produces unexpected results. Instead, the applicant acknowledges that the individual pieces were taught and known in the art. In fact, the prior art set forth above provide similar fabric features to produce a fabric with good flammability properties. The reasoning for choosing and combining the claimed features came from teachings in the prior art and not from the applicant’s own invention. Thus, the rejection does not rely on hindsight. Further, it was held that the rationale to support a conclusion that the claim would have been obvious is that all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results to one of ordinary skill in the art. KSR, 550 U.S. at 416, 82 USPQ2d at 1395; B/E Aerospace, Inc. v. C&D Zodiac, Inc., 962 F.3d 1373, 1379, 2020 USPQ2d 10706 (Fed. Cir. 2020). Thus, since the features were known in the art as acknowledge by the applicant and the combination of those features yielded predictable results, i.e., durable fabrics with good flammability properties, the rejection is maintained. Unless the applicant can show that the claim combination of features produces unexpected results, the rejections set forth above will be maintained.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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jlj
December 17, 2025
/JENNA L JOHNSON/Primary Examiner, Art Unit 1789