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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 March 20, 2026 has been entered.
Response to Amendment
The amendment filed on March 20, 2026 has been entered. Claims 13 and 14 have been canceled. Claims 1, 15, and 16 have been amended and no new claims have been added. Therefore, claims 1 – 12, 15, and 16 are pending.
The Affidavit under 37 CFR 1.132 filed March 20, 2026 is insufficient to overcome the rejection of claim 1 based upon Lawrence (WO 2017/210589) and Gorissen et al. (2019/0254361) as set forth in the last Office action because:
With regards to the Affidavit, the applicant states that Lawrence is drawn to a multi-layer knit fabric combining together different layers within a single knit construction. Further, Applicant reiterates that Figure 1 is shown as separate layers for illustrative purposes. The applicant further compares the fabric of Lawrence to various multi-layer knit or woven structures shown in section 12. Figures A, B, and C are specifically woven structures with multiple layers of warp yarns, weft yarns or both. And while these figures show multiple tiers within the multi-layer structure the fabric constructions shown are not similar structures to the multi-layer knit fabric taught by Lawrence. It is not clear from the Figures how the fabric in Figure D is made, if it is a knit or woven fabric, or if it is similar to the fabrics disclosed by Lawrence.
To avoid confusion, it is noted that entire structure of Lawrence willed be called a multi-layer fabric and the regions within the multi-layer fabric formed by different fibers will be referenced as plies. The same will be language will be applied to the other references and Figures. Lawrence specifically is drawn to a multi-layered fabric with distinct plies within the structure and those plies are defined by the yarn materials of those individual plies and the properties produced by the yarns. The multi-layer fabric shown in Figure 1 of Lawrence is separated to shown the distinctness of the different plies within the multi-layer fabric. That is the top ply is made almost completely from a combination of a stretchable synthetic yarn and an evaporative yarn, the middle ply is made almost solely from a highly absorbent yarn and the bottom ply is made from a yarn designed to transport moisture and have a cool touch. The yarns would be interlooped at the surfaces of each ply to interconnect the plies together into a single layer. In contrast, the woven structures shown in the Affidavit all show the multiple plies of yarns are connected together by sets of yarns that transverse from the outer surface of one layer to the opposite outer surface of the entire fabric or into the opposite surface of the middle layer. Thus, the different types of yarns are located in two or three of the plies within the woven structures. The plies of the multi-layered fabric would not be composed almost solely of a desired material as described by Lawrence and suggested by the separate layers shown in Figure 1 of Lawrence. It is by stacking the plies as disclosed by Lawrence that the desired cooling effect and moisture management occurs. Thus, Applicant’s arguments directed to the interwoven fabrics shown in Figures A – D of the Affidavit are not sufficient to overcome the rejection because those structures are not considered too similar in construction or function to the fabric of Lawrence.
Further, it is noted that the invention of Lawrence is focused on the stacking of the materials in a specific order. The fabric shown in Figure 1 is one example of how to make the knit multi-layer fabric, but Lawrence is not limited to this specific structure or the warp-knit pattern shown in Figure 3A-3E. Lawrence discloses that the stacked structure can be made by a variety or combination of different constructions including yarn placement/position changes, warp knit pattern changes, warp knit spacer fabrics, warp knit jacquard fabrics, circular knit spacer fabric, circular knit interlock, ponte, or pique fabrics, circular knit jacquard fabrics, and flatbed knitting fabrics are all suggested by Lawrence as being known knit methods which can produce the desired layering effect depicted in Figure 1 (pages 10 – 11). Lawrence does not required that the layers have any particular structure other than the desired layering effect of Figure 1.
Additionally, the Affidavit argues that the plies in the fabric of Lawrence cannot be separated from each other with causing the fabric to unravel or using different construction patterns (from Figures 3A-3E) for the plies (Affidavit, Section 12). The Affidavit also states that the plies cannot be removed or substituted without changing the knit pattern or construction (Affidavit, Section 13 and 14). Again, Lawrence does not limit the invention to the specific patterns disclosed in Figures 3A-3E. The fabric can be made by various types of knitting methods that would be able to produce a similar layering effect. Therefore, the invention of Lawrence is not limited to the pattern shown in Figures 3A-3E. Also, the rejection is not suggesting that one of ordinary skill in the art would remove, tear, or cut the multi-layer fabric apart and then join the layers together. This is a misrepresentation of the rejection. Thus, the applicant’s arguments are not commensurate with the rejection.
Further, the Affidavit states “It is not possible to manufacture ”layers” in Lawrence as separate fabrics and join them together in a separate step” (Affidavit, Section 13). It is not clear what the statement is implying. What prevents one of ordinary skill in the art from making separate fabric layers comprising the same materials disclosed in each ply of Lawrence and stacking them together? Applicant has not shown how this is impossible. It would seem that this is in fact the invention that applicant is claiming.
Next, the Affidavit suggests that if the layers are separated, as suggested be the rejection, the layers would then need to joined together requiring some sort of adhesive and this would likely alter the properties of the fabric. However, contrary to the applicant’s statement, it is well within the level of ordinary skill in the art to join multiple fabric layers together with various types of bonding methods including adhesives, thermal bonding, chemical bonding, or mechanical methods such as stitching to produce desired properties in the final product. And types of bonding methods, adhesives or other types, are not excluded or required by the present applicant. And in fact, the applicant’s own disclosure, which is drawn to combining together three separately made fabric layers discusses any limitations on how the layers should be joined together. Or even any preferences on how the layers should be joined together. Thus, the method of joining layers together must be well understood in the art such that one of ordinary skill in the art would be able to make the claimed invention without the applicant providing a detailed teaching as to how to join the layers together. If the applicant insists that joining the layers together with adhesives or other known methods would in fact damage the moisture management and cooling properties of the fabric then the applicant’s own specification would also be lacking such disclosure and one of ordinary skill in the art would not be able to produce the claimed invention. Otherwise, choosing the method of joining the layers together to having the desired properties is not in fact beyond the level of one of ordinary skill in the art.
In section 16 of the Affidavit the Applicant states that each layer is interwoven and this is crucial to the invention of Lawrence. However, this is not supported by the disclosure of Lawrence since Lawrence is not interwoven and is focused on creating a layering effect suggested by Figure 1, which shown separate layers and not having all the different yarns intermixed throughout the thickness of the multi-layer fabric. The fact that Lawrence describes the plies as layers suggests that they each appear almost as different fabrics within the multi-layer fabric.
The Applicant further argues that the Examiner incorrectly interpreted the teaching of Gorissen and that as best the teaching implies a first fabric formed using knit construction can have similar properties to a second fabric formed from separate layers, but that this does not mean that the layers in the first fabric and the layers in the second fabric would necessarily be similar (Affidavit, Sections 17 – 19). Gorissen et al. states that the layers of the invention may be present as separate layers arranged on top of each other or formed by integrating the layers with each other during production (paragraphs 12 – 14). Applicant has provided no evidence that this would not be true. A statement that one believes that entirely different yarns or materials may be required is not proof that the integrally formed spacer structure described by Gorissen et al. would have significantly different properties or require entirely different structures to produce the same properties. The teaching of Gorissen et al. has not been shown to be untrue or only true with extreme modifications. Therefore, the argument is not persuasive.
Additionally, the applicant states that there is no straight forward way to simply transform a multi-layered fabric into a fabric formed from multiple layers. However, one of ordinary skill in the art can easily produce various knit fabrics from the different materials by different knit methods to create similar knit fabrics as those describe by Lawrence. Modifying the materials into different single layered fabrics would be within the level of ordinary skill of the art just as much as modifying the knit fabric in one of the various different multi-layer fabrics disclosed by Lawrence. The suggestion is that this critical part of the knit layers is the layering structure of the materials. Further, Gorissen et al. suggests that multi-layer cooling fabrics can be made by integrating the layers during the production process or making separate layers and arranging them on top of each other. Therefore, the prior art suggests the layer structure of the claimed materials and that the layers can be made separately and arranged on top of each other to produce similar cooling effect. Thus, the rejection is not removing or cutting away any layers, but stating it would be obvious to make the layers disclosed by Lawrence separately and then arrange them together. Applicant’s own invention is to use the same materials to make separate layers to produce the desired cooling properties. Therefore, the applicant’s statements that the layers cannot be separated and joined together to produce the desired results are not true since the applicant is claiming exactly that. The applicant has provided no showing or unexpected results or testing that might even suggest only certain combinations of layers would perform as desired. Thus, the arguments are just opinions and not supported by evidence or facts. Therefore, the rejection is maintained.
With regards to the Applicant statements about the weight range, one of ordinary skill in the would be motivated to produce a fabric with a similar overall weight, i.e., up to 600 gsm. The woven structure shown by the Applicant in section 21, suggests that the plies are each a portion of the total fabric. Hence, the three separate layers when combined together would weight a total on up to 600 gsm. One is not altering the weight of parts of a multi-layer knit, but choosing the weights of different layers to total up to 600 gsm. The affidavit has provided no evidence that it would not be within the level of skill in the art to choose from the desired total weight a weight range for each layer. Nor does the Affidavit provide any showing of unexpected results. Applicant’s opinion is not persuasive. Therefore, the rejection is maintained.
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 – 12, 15, and 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lawrence in view of Gorissen et al. (US 2019/0254361) and Pezzimenti (US 2013/0061366).
Lawrence discloses a wet-activated cooling fabric comprising a knit multilayer fabric (abstract). The cooling fabric is intended to be worn next to the skin of a user as a garment or other product (e.g., towel, hat) (page 2, lines 19-24). The cooling fabric absorbs water while transporting water efficiently through said fabric to create an evaporative cooling effect which increases the conductive cooling effect thereof (page 4, line 9 – page 5, line 13). The fabric provides a cool touch whether wet or dry, a temperature decrease of up to 30°F below average body temperature when wet, up to 30% increase in conductive cooling power compared to other fabrics such as cotton, and cooling for up to two hours after wetting depending on ambient air conditions (page 5, lines 13-24).
A first layer 104 of cooling fabric 100 is to be worn against the skin 102 and is formed of a combination of stretchable synthetic yarn (e.g., spandex, lycra, or elastane) and an evaporative yarn (page 3, lines 1-5 and Figure 1). The evaporative yarn of first layer 104 is preferably a nylon or polyester yarn having a unique, non-round cross-sectional shape and is embedded with minerals (e.g., jade or mica) to provide a cooling effect (page 3, lines 12-16 and page 7, line 20 – page 8, line 6 and Figure 2A). Suitable evaporative yarns include Aqua-X and Askin yarns made by Hyosung Corporation of Korea (page 3, lines 16-18). The evaporative yarn of the first layer may have a filament count of 1-400 (page 6, lines 14-17). The stretchable yarn (i.e., spandex) may be omitted from the first layer if stretch or draping qualities are not needed (page 3, lines 6-7). In other words, the first layer may comprise 0% spandex and 100% nylon or polyester evaporative yarn.
The second layer 106 of cooling fabric 100 is formed of highly absorbent yarns designed to absorb and hold moisture that is wicked from the skin 102 by first layer 104 (page 3, lines 19-21 and Figure 1). Said absorbent yarns are preferably bicomponent polyester/nylon yarns having a star-shaped cross-section, such as Mipan XF by Hyosung (page 3, line 25 – page 4, line 1 and Figure 2B). In the working embodiments, the second layer (i.e., bar 2 of 4-bar knit fabric) comprises all polyester/nylon yarns (i.e., at least 80% of yarns comprise nylon) (page 6, lines 1-11).
The third layer 108 of cooling fabric 100 is formed of a yarn designed to transport moisture and provide a cool touch (page 4, lines 3-4 and Figure 1). “The third layer 108 allows the moisture trapped in the second layer 106 to evaporate into the ambient air and also allows ambient air to move into the second layer 106 to cool the center of cooling fabric 100” (page 4, lines 4-6 and Figure 1). Suitable yarns include the evaporative yarns of the first layer (e.g., Askin, a polyester yarn) (page 4, lines 6-8, page 6, lines 6-10, and page 7, lines 7-8 and Figures 2A and 2C).
The knit construction of the cooling fabric 100 may be a warp knit fabric, such as tricot (e.g., jersey), raschel, spacer, mesh, and/or lace (page 5, lines 26-29 and page 10, lines 8-10). The knits may be warp knit, circular knit, flat knit, or combinations thereof (page 10, line 8 – page 11, line 27). A spacer fabric can provide additional monofilament yarns for thickness (page 10, lines 19-25 and page 11, lines 4-10). A warp knit Jacquard fabric can produce lace or mesh fabrics and other fancy knits (page 10, lines 26-29 and page 11, lines 16-19). A single yarn feed may be employed for composite yarns 700 comprising a stretchable core yarn 702 (i.e., spandex) and an outer evaporative wrapping yarn 704 (page 12, lines 1-20 and Figures 7A-7D). The core yarn 702 may be wrapped in a single-covered manner, a double-covered manner, or an air jet covering technique or the composite yarn 700 may be a core spun yarn (page 12, lines 14-16 and Figures 7A-7D).
Lawrence teaches the cooling fabric is intended to be worn next to the skin of a user as garment or accessory, wherein the first layer 104 is to be worn against the skin and the third layer 108 is intended to be an outer layer exposed to the environment. A Q-max value for said evaporative yarns on the face side of fabric is greater than 0.140 W/cm2 and greater than 0.0120 W/cm2 on the back side thereof (page 7, lines 8-10). When wet a Q-max value is greater than 0.280 W/cm2 on the face side and 0.180 W/cm2 on the back side (page 7, lines 10-12). The cooling fabric may be finished by brushing to provide a nap pile (page 9, lines 11-22). Said cooling fabric may have a total basis weight of 100-600 g/m2 (page 6, lines 11-12).
Lawrence discloses that the cooling fabric is made by knitting together different types of yarns to create a layered structure (pages 5 – 6). As discussed above, the fabric of Lawrence functions placing the inner layer absorbs and wicks moisture away from the user into the absorbent second layer, and the outer third layer transports moisture from the second layer to the surface of the fabric. Lawrence suggest different knit structures can be used to make the knit fabric (pages 10 – 11) and that modifications may be made without departing from the scope of the invention (page 13, last paragraph), i.e., a composite fabric with different functioning layers that wick moisture away and cool the user wearing the fabric.
However, Lawrence doesn’t teach using that the first, second and third layers can be formed as separate layers and then joined together. Gorissen et al. is drawn to a cooling fabric comprising an inner moisture permeable layer, a spacer fabric, and an outer surface layer (abstract). Gorissen et al. teaches that the cooling fabric can include an inner layer, spacer layer, and outer layer that are interconnected together by spacer fibers or the layers can be three separate layers arranged together (paragraphs 10 – 14). Specifically, the layers can include an inner layer and outer layer which are interconnected by spacer fibers (i.e., formed in a single step) (paragraph 11). Or, alternatively, the moisture permeable inner layer and the outer layer may be separate layers (i.e., formed in a different step) and arranged, i.e., bonded, to the upper and lower fabrics of the spacer fabric (paragraph 13). Hence, Gorissen et al. discloses that the cooling fabric can be made as separate layers joined together or as in a single step wherein the layers are integrally formed, i.e., formed at the same time (paragraph 14). Therefore, Gorissen teaches that when the materials are farmed into separate fabric layers and then joined together, the combination of layers will still interact to allow moisture to move through the composite materials and function as a cooling fabric. Further, the spacer layer, inner layer, and outer layer can be formed individually from knit or woven fabrics (paragraph 36 and 40). Additionally, Gorissen et al. discloses that the spacer fabric may have a thickness of 2 – 20 mm (paragraph 29). Thus, it is understood in the art that cooling effects occur readily between adjacent layers that are formed separately or formed integrally. Thus, it would have been obvious to one having ordinary skill in the art that the integral knit cooling fabric taught by Lawrence could be made as three separately formed fabric layers that are then arranged together in the same order to produce an equivalent cooling fabric as taught by Gorissen et al. Further, the individual layers can be made from knit of woven fabrics desired materials and still have the desired cooling effect, since Gorissen et al. suggests either type of fabric can be used in the cooling fabric layers.
While Lawrence discloses that the outer surface is designed to transport moisture and provide a cool touch, Lawrence fails to teach that the layer can be woven and includes perforations. As set forth above, Gorissen et al. suggests that the layers of a cooling fabric can be separate layers and made from woven or knit fabrics. Thus, it would have been obvious to substitute a woven layer for the outer layer of the cooling fabric taught by Lawrence. Further, Gorissen et al. discloses that the upper fabric should include pores to create an open structure which improves cooling properties (paragraph 40 – 42). Pezzimenti discloses a multilayered moisture management athletic garment (Abstract). Pezzimenti discloses that the multilayered garment includes an inner layer with a moisture management structure that transports moisture away from the wearer and that the outer layer is microperforated to permit perspiration to evaporate through the micro-perforation (abstract). Pezzimenti discloses that the outer layer comprises a woven or knit structure provided with micro-perforations (paragraph 4). Further, the outer layer may be processed by adding micro-perforation using lasers to facilitate providing desired vapor permeability in the finished garment (paragraph 29). Thus, it would have been obvious to one having ordinary skill in the art that the woven outer layer can be made from woven fabrics with micro perforations, as taught by Pezzimenti, to allow the outer layer to have the desired open structure to improve cooling and provide sufficient evaporation during use. Thus, claims 1-4, 7-10, and 12 are rejected.
With respect to claim 5, Lawrence teaches the first layer is preferably a combination of a stretchable yarn, such as spandex, and an evaporative yarn, such as polyester. Lawrence also teaches the spandex may be omitted if stretch or draping qualities are not needed. Hence, Lawrence implicitly teaches the amount of spandex present in the layer directly impacts the degree of stretch and drape of said layer. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select the polyester and spandex yarns in the recited amounts since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 205 USPQ 215. Note, as taught by Lawrence, the amount of a material present in a fabric will result in said material contributing properties thereto in a proportional manner. In other words, one of ordinary skill in the art readily understands how to blend materials within a fabric to balance desired properties achieved from each material. For example, for light stretch clothing such as pants and tops, about 3-10% spandex blends are common, while high stretch garments (e.g., swimwear, athletic wear, and compression garments) typically have higher amounts of spandex in the range of about 20-30%. Thus, it would have been within the level of ordinary skill in the art to determine an appropriate blend of spandex and polyester for the first layer of Lawrence’s cooling fabric, such as 5% spandex and 95% polyester, to provide the desired degree of stretch and drape depending upon the intended garment or accessory of said cooling fabric. Therefore, absent a showing of unexpected results achieved therefrom or other evidence of non-obviousness, exception (a) is rejected as being obvious over the cited prior art.
Regarding claim 6, while Lawrence teaches the claimed Q-max ratings, the reference fails to explicitly teach the cumulative heat flux property limitation. However, it is reasonable to presume that said limitation is inherent to the invention. Support for said presumption is found in the use of similar materials (i.e., a three-layer knit fabric comprising a first layer of evaporative polyester or nylon yarns having embedded minerals therein to provide a cooling effect) and in the similar production steps (i.e., knitting a three-layer knit fabric that absorbs water while transporting said water efficiently through said fabric to create an evaporative cooling effect which increases the conductive cooling effect thereof) used to produce the cooling fabric. The burden is upon applicant to prove otherwise.
With regards to claim 11, Lawrence discloses that the knit structure can include a knit spacer layer. One of ordinary skill in the art would understand that spacer fabrics are designed to maintain and open structure with resilient intermediate yarns that result in the fabric having a desired thickness instead of being a flat fabric. Additionally, Gorissen et al. discloses that the spacer fabric may have a thickness of 2 – 20 mm (paragraph 29). Thus, it would have been obvious to one having ordinary skill in the art to choose a second layer with thickness of 2 – 20mm to help allow moisture to evaporate from the first layer through the second layer as taught by Gorissen et al. Thus, claim 11 is rejected.
Lawrence teaches the cooling fabric may have a total basis weight of 100-600 g/m2 (page 6, lines 11-12), but fails to teach suitable weights for each layer. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to select suitable weights for each of the layers in amounts so as to add up to the disclosed total weight of 100-600 gsm. Specifically, it would have been obvious to one of ordinary skill in the art to at least divide the total weight of the cooling fabric into weights for each layer based upon the desired functionality of each layer. For an equal distribution of functions, it would have been obvious to one of ordinary skill in the art to at least divide the total weight of the cooling fabric into approximate thirds for each layer weight in order to provide an equal distribution of the functions of each layer. For example, it would have been obvious to provide the first layer in an amount of about 33-200 gsm to provide sufficient wicking of moisture from a wearer’s skin and a cooling effect for said wearer, the second layer in an amount of about 33-200 gsm to provide sufficient absorption and holding properties of the moisture wicked from a wearer’s skin, and the third layer in an amount of 33-200 gsm to provide sufficient evaporative properties of said moisture. For a cooling fabric having a greater moisture holding capability, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide, for example, one third to one half the weight of the total weight in the second layer comprising absorbent yarns. Additionally, since the weight of each layer is dependent upon the weight of the materials employed therein and the amount employed, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the weight of each layer based upon the materials employed in order to achieve the desired functionality of each layer. For example, the weight of the first layer may be modified to be greater than approximately one third of the total weight due to the presence of the cooling minerals. Thus, claim 16 is rejected.
Lawrence fails to teach the claimed breathability of the spacer material. However, it is reasonable to presume that said breathability property would obviously be met by the spacer fabric discussed by Lawrence. As set forth above, spacer fabrics are designed to maintain an open structure by using resilient yarns in the center layer to create an open gap between the top and bottom surface. The open structure of spacer fabrics would inherently result in the fabric being breathable. Further, Lawrence teaches that the spacer fabric is intended to be used in a produce that allows moisture to easily evaporate. Thus, one of ordinary skill in the art would be motivated to choose a spacer fabric with a high level of breathability to allow for moisture evaporation. Thus, it would have been obvious to one having ordinary skill in the to use a spacer fabric with a greater than 800 MVTR level of breathability.
Finally, while Pezzimenti discloses that the outer layer can be woven or knit fabrics, Pezzimenti fails to teach using a particular weave pattern. However, weave patterns are well known in the textile art. One of ordinary skill in the art would be familiar with different types of woven fabrics and the general properties of those fabrics. It would have been obvious to one having ordinary skill in the art to choose known weave patterns which are used in athletic and outdoor gear such as rip stop pattern, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. Thus, claim 15 is rejected.
Response to Arguments
Applicant's arguments filed March 20, 2026 have been fully considered but they are not persuasive. The applicant argues that the Affidavit provides reasons why layers cannot be removed from an “interwoven” multi-layer knit fabric (response, page 6). The reasons why the Affidavit is not found persuasive have been set forth above. However, the Examiner reiterates that the interwoven knit structure shown in Figure C of the arguments is not commensurate in structure with the multi-layer knit structure taught by Lawrence. The yarns traverse from the top surface, through the middle region and onto the opposite surface to join the structure together. Lawrence is drawn to multi-layer knit fabric, not a woven fabric, and is specific to the fabric having distinct plies within the overall multi-layer knit structure as discussed above. Therefore, the arguments are not related to a similar type of fabric structure and are not found persuasive. Further, the rejection is not removing layers, but instead making the plies into separate fabrics, made from the same materials and layering the single fabrics together in the same order as described by Lawrence. Gorissen et al. discloses that cooling fabrics can be made by producing all the plies in a single integrated step or by making the separate fabrics and then joining those fabric together. Gorissen et al. suggests that either method would produce similar results. Thus, it is reasonable for one having ordinary skill in the art to substitute individual layers for the different plies of Lawrence and expect similar results. Further, it is noted that the present invention is to take the multi-layer fabric of Lawrence as forming a single step and make the layers separately and join them together. It would have been obvious to one having ordinary skill in the art at the time of the invention was made to use separate layers made from the same materials and stack them together, since it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art. Nerwin v. Erlichman, 168 USPQ 177, 179. Thus, it would have been obvious to make the multi-layer knit fabric of Lawrence from separate fabric layers. Applicant has provided no evidence of unexpected results. Therefore, the rejection is maintained.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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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March 25, 2006
/JENNA L JOHNSON/Primary Examiner, Art Unit 1789