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 . Claims 22-28 are currently pending with claim 28 being withdrawn (see below).
Election/Restrictions
Newly submitted claim 28 is directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: There is a lack unity of invention because even though the inventions of these groups require the technical feature of the kitted fabric with a water absorbing resin coated on the knitted fabric, this technical feature is not a special technical feature as it does not make a contribution over the prior art in view of Brun del Re in view of Dias (see rejection of claim 22 below).
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim 28 is withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
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.
Claims 22-25 and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Brun del Re et al. US Publication 202004/0073104 (hereinafter Brun del Re) in view of Dias et al. US Publication 2009/0018428 (hereinafter Dias).
Regarding claim 22, Brun del Re discloses a bioelectrode comprising: a fabric containing 90-100 mass % of conductive fibers (74 which is described as a layer made entirely of metalized fabrics which means it is 100% of the mass or if the manufacturing process was not perfect, near 100%), anything beyond that would have been obvious given the lack of criticality for the claimed range so long as the metalized portion could reasonable conduct physiological signals from the skin to a processing unit; and a water-absorbing resin coated on the knitted fabric (73, the process of “coating” is considered a product by process type limitation, see MPEP 2113; for purposes of prosecution the limitation is simply read as one layer with the other layer over and in direct contact with it).
Brun del Re is silent on the conductive fabric being a knitted fabric. Though the difference between knitting, weaving, and sewing are ultimately negligible to those of the medical arts, there is still a physical difference in the final product though it does not affect the electrode’s resistance or functionality at all. Dias teaches that a conductive fabric layer can be made with knitting (0093]). Knitting is one of many processes to combine strands of yarn (conductive or not) and Nurkka (US publication 2018/0317814) hereinafter utilized as a teach reference to illustrate that point (see [0036][0037] which details the common ways yarns are combined). Therefore, it would have been obvious to the skilled artisan before the effective filing date to utilize knitting for the fabric as taught by Dias with the device of Brun del Re as predictable results would have ensued (combining of yarn/fibers to make a fabric layer).
Though the material listed, sodium polyacrylate, has absorption rates of 800- 1000 times its weight with distilled water, Brun del Re is still silent on the moisture retention index (MRI) of 0.8 or more. This claimed index is the product of a methodology for determining how much pure/distilled water is retained in the claimed resin by using filter paper and a weight over said paper. This specific process is not disclosed, however given that the exact same material choice is utilized it would have been reasonable to assume that they would have had comparable if not identical absorption rates. The skilled artisan before the effective filing date would have found it obvious to select the preferred version (of sodium polyacrylate) for its suitability of maximizing absorption of water for a better hydrogel. Its well-known that variants of polymers exist, however each of the variants of sodium polyacrylate, given the purpose, would perform predictably well for the use as a hydrogel in a bioelectrode.
Brun del Re is also silent on the exact range of the resin’s thickness as the focus on the layer (73) is after the addition of moisture/sweat. However, given that the material is identical to the layer from the Applicant’s specification, is utilized for the exact same application and purpose (super absorbent material to absorb sweat/moisture to facilitate electrical connectivity to skin), and that the Applicant includes no criticality for this specific resin thickness range, it would have been obvious to the skilled artisan before the effective filing date to optimize the initial thickness of the resin in contact with the conductive fibers of Brun del Re in order to allow for adequate moisture absorption for the electrode to operate as intended.
Regarding claim 23, Brun del Re discloses that the knitted fabric is a sheet structure (74, a “sheet” structure implies it’s a layer, not that it must be flat, see Figure 12D).
Regarding claims 24-25, and 27, the resultant combination of Brun del Re and Dias (above), includes one of a conductive, knitted fabric placed over and in direct contact with a resin but is silent on the exact course/wale range, the ratio of resin to knitted fabric, and weight of the knitted fabric. That said, the Applicant includes no criticality for those specific ranges and why they are advantageous over any other similar range. Therefore, it would have been obvious to the skilled artisan before the effective filing date to optimize the sizing, ratio, and weight of the above components given routine experimentation.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over Brun del Re in view of Dias, and in further view of Begriche et al. US Publication 2018/0249757 (hereinafter Begriche).
Regarding claim 26, Brun del Re discloses that at least one of the conductive fibers is a fiber having a metal film on a surface thereof ([0127] which details nickel plated over synthetic fibers), but does not explicitly disclose that the fiber is synthetic in nature. Begriche teaches an ECG monitoring garment that includes electrodes made of fabric made of conductive metal plated over synthetic fibers ([0116]). Therefore, it would have been obvious to the skilled artisan before the effective filing date to utilize the synthetic fibers as taught by Begriche with the device of Brun del Re and Dias as the various fiber types are art recognized equivalents of each other and would have produced predictable results (having a stretchable, breathable fabric electrode).
Response to Arguments
Applicant's arguments filed 10/28/2025 have been fully considered but they are not persuasive. The Applicant’s arguments are narrower than what is presently claimed regarding the voids in the fabric layer. The voids are designed to take in the thin layer of resin however that is nowhere to be seen in the claims. Simply having a layer coated to the other falls within the scope of product by process. Do the fibers of the prior art likely have voids, yes, but there is a lack of disclosure regarding how the coating is applied (73 to 74). Further detail regarding the resin coating making its way into the voids would overcome the prior art of record.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Brian M Antiskay whose telephone number is (571)270-5179. The examiner can normally be reached M-F 10am-6pm EST.
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/BRIAN M ANTISKAY/Examiner, Art Unit 3794
/JOSEPH A STOKLOSA/Supervisory Patent Examiner, Art Unit 3794