DETAILED ACTION
Status of Application
The Examiner acknowledges receipt of the amendments filed on 10/13/2025 wherein claims 1, 3, 5, 10, 14, 15, 17, 18 and 20 have been amended.
Claims 1-20 are presented for examination on the merits. The following rejections are made.
Response to Applicants’ Arguments
Applicant’s response/IDS submisstion filed 10/13/2025 renders moot the rejection of claims 1-8 and 10-20 made by the Examiner under 35 USC 103 over Irisa et al. (JP2004/316005) in view of Oh et al. (KR20140055831) and Green et al. (EP 1287197).
Applicant’s response/IDS submission filed 10/13/2025 renders moot the rejection of claim 9 made by the Examiner under 35 USC 103 over Irisa et al. (JP2004/316005) in view of Oh et al. (KR20140055831) and Green et al. (EP 1287197) further in view of Svoboda et al. (US 6158253).
Although withdrawn, Applicants arguments will be addressed.
Applicant asserts the following:
Green and Oh’s coatings are not indicated as substantially impermeable to capsaicin. Moreover, the need for occlusion itself is not obvious in view of the cited references.
In response to A, Irisa teaches that their fibers may be imbibed with a variety of active compounds such as capsaicin as well as various natural products such as tea, ginseng, chamomile, garlic, mustard and so on. Green teaches controlled release fibers having a core-sheath composite structure. The sheath/coating layer is provided so as to retain the substance in the core over long periods of time such that release of the substance is sustained. Green is similarly directed to fiber substrates imbued with an active substance wherein the surface of the fiber substrate is treated with a finish composition so as to provide durability of performance and maintain activity for prolonged period of time. The modification of Irisa’s fiber to include an outer coating so as to provide release durability such that the active agents contained within the fiber are retained and released over prolonged periods of time would have been a desirable modification.
As to capsaicin not being indicated as substantially impermeable to the coatings described by Green and Oh, this is not persuasive. As the coatings are to be solid in nature, it would be reasonable that they would serve to block release of the agent and thus render the coating at least substantially impermeable to capsaicin. Regardless, one of ordinary skill would desire to modify the fiber of Irisa such that it exhibited the properties described by Green and Oh and would endeavor to identify coating which best resulted in the retention of the agent within the fiber so as to provide sustained release of the agent over the fibers lifetime. Such an undertaking would require a coating which would not permit the agent to freely be released or else the sustained release benefit would be lost. If a coating such as those described by Green and Oh yielded success, then that would have been the product of ordinary skill. Applicant’s arguments are not considered persuasive.
New Rejections
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 1-8 and 10-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Irisa et al. (JP2004/316005; of record, translation provided) in view of Oh et al. (KR20140055831; of record, translation provided), Green et al. (EP 1287197; of record) and Hosoi et al. (JP2004195348; of record, translation provided).
Irisa describes a textile material exhibiting an exothermic tendency upon moisture absorption. The textile may be knitted (see [0028]) (see instant claim 15) and in the form of a garment, such as clothing like gloves, tights and socks (see [0002]) (see instant claims 2, 8, 13, 16). These articles are understood to conform to their target body part, e.g. a hand, leg, foot and are known to produce a compressive force when worn. However, in regards to the limitation to ‘when worn’, such a limitation is an intended use as it pertains to the article being worn rather than a description of the material itself. See MPEP 2111.02(II).
Irisa’s textile is made from fibers (yarn; see [0026]), the fibers themselves having the capacity to generate heat (see [0021]). The fiber may be produced from a synthetic material such as nylon and polyvinylpyrrolidone (see [0026]). Exemplified heat generating substances include capsaicin (a capsaicinoid) (see [0007, 0034]) (see instant claims 1, 3 and 4). Thus, in all, Irisa describes a fiber comprising capsaicin wherein the capsaicin containing fiber is to be fashioned in to a garment such as socks.
Irisa fails to teach the yarn, yarn precursor or filament as including at least one occluded area and at least one exposed area, wherein the at least one occluded area restricts release of the at least one active composition, and wherein the at least one exposed area does not restrict release of the at least one active composition.
Oh describes a controlled release core-sheath fiber composite wherein the fiber can be fashioned into knitted clothing such as socks (see page 3) (see instant claims 6, 8 and 15). The fiber is a core/sheath type composite fiber. The core of the fiber comprises a microcapsule for carrying a substance (e.g. phytoncide, aroma, vitamin, herb, etc.) (see page 2) to be delivered to the skin, wherein the core is made from a polymeric material such as polypropylene (see page 3, Example 2). The sheath (coating) applied to the core of the fiber provides a sustained release benefit and comprises a polymer such as nylon (see page 3, Example 2) (see instant claims 1). Oh teaches that their fibers exhibit the ability to retain and release the contained substance even after washing the fabric 20 times (see page 4) (see instant claim 7). In all, Oh describes a wash durable core/sheath fiber wherein the core is made from a polymer and a skin treating substance, wherein the core possesses a sheath that is also made from a polymer. This core/sheath fiber is described by Oh as useful because the fiber exhibits continuous sustained release of the substance contained in the core for a sufficiently long time (see page 3).
Green describes a fabric material wherein a substrate, such as a yarn, is treated with a finish composition and then treated with a binder formulation (see abstract and claim 1) (see instant claim 1). The yarn may be sourced from natural materials (e.g. cotton, wool, etc.) and synthetic polymers (e.g. polyolefins, polyesters, etc.) (see [0013]) (see instant claim 1). The fabric of Green may be fashioned into various textile structures such as gloves (see [0014]) (see instant claims 2 and 16).
The finish composition applied to the yarn comprises an antimicrobial active in addition to other additives such as antioxidants and UV stabilizers (see [0006]) (see instant claim 1). To the finished fiber a binder formulation is applied thereto. The binder formulation may include crosslinked imidazolidinones and acrylic polymers (see [0006]). The binder is applied so as to provide wash durability performance so as to maintain the antimicrobial characteristics of the treated fiber even after being laundered ten times such that after 30 washes of the coated finished fiber, 70% of antimicrobial metal particles are retained thereby retaining antimicrobial activity (see [0033]) (see instant claim 10).
Green’s treated yarn may be knit/woven into a fabric with non-treated yarns (see [0034]) (see instant claim 17). As these fibers are each exposed to the atmosphere, they are broadly considered air-covered (see instant claim 12).
Hosoi is directed to a coating process wherein a coating is applied on to a sheet or film such as chemical fibers like polyester and polyolefin (see [0041, 0042]). The coating applied on to the substrate fiber may be applied continuously or intermittently (see abstract, [0032]). Thus, application of a coating layer on the surface of the prior art fibers would reasonably envisaged as either continuous or intermittent along the substrate axis.
Combining together Irisa and Oh/Green/Hosoi would result in an article comprising core/sheath fibers, wherein the core comprises a capsaicinoid and a sheath (an occluded area/coating) on the surface of the core so as to provide sustained release of the capsaicinoid from the core of a sufficiently long time in addition to providing wash durability. It is noted that Applicant’s specification identifies acrylic polymer and nylon as coating materials in accordance with that claimed (see [0119] of instant specification). Oh and Greene, separately suggest nylon and acrylic polymers as fiber coatings. Thus, upon the obvious modification of Irisa’s fiber so as to possess a surface coating, the resulting fiber would have a coating substantially impermeable to the capsaicinoid composition contained within the core. It would be reasonably expected that any area of the core/sheath fiber not possessing sheath would not restrict release of the substance given that Oh teaches the sheath as critical to the sustained release benefit.
The benefit of continuous/persistent release when the fiber is exposed to the skin is a property that would be expected for the areas of the core/sheath fiber which do not possess sheath. As Oh teaches, the continuous release is observed for their core/sheath fiber. This would be expected to necessarily occur when contacted to the skin, especially for areas of the fiber free from coating. Moreover, such a limitation describes an outcome that occurs upon wearing the treated fabric. See MPEP 2112.02(II).
Regarding instant claims 1 and 11, although none of the references teach the occluded area (coated surface) comprising at least 80% of the surface area of the yarn, this would have been an optimizable parameter given that the references teach that the coating applied on to the surface of the fiber is important for fiber durability and maintenance and that a coating layer can be applied as a continuous or intermittent layer. Moreover, upon identifying a suitable coating area would result in a fiber having some percentage of exposed area, the exposed area being free of an occlusive coating and being capable of releasing the active composition. Thus, knowing that the performance of the fiber is directly tied to the coating, one of ordinary skill in the art would endeavor to optimize such a parameter and if the result found that coating 80% of more of the fibers surface resulted in success, then this result would be the product of ordinary skill and common sense rather than one of innovation. See MPEP 2144.05(II)(A).
Regarding instant claim 1, the limitation that the intermittent coating is provided by ‘masking’ is an intended use limitation. See MPEP 2111.02(II). As the prior art suggests an intermittent coating of an occlusion polymer on the substrate surface so as to control release, this applied coating can fairly be said to read on that claimed even if not applied via masking as the net result is the same.
Regarding instant claim 18, as the references teach that their fibers may comprise a variety of agents for delivery to the skin (e.g. capsaicin, antimicrobial, herbs, etc.), it would be obvious to provide a combination of fibers, each providing a distinct agent for delivery to the skin. That is, an article having a first fiber population treated with a first agent and a second fiber population treated with a second agent. However, there is nothing in instant claim 18 that requires the first and second agent to not overlap.
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Irisa et al. (JP2004/316005; translation provided) in view of Oh et al. (KR20140055831; translation provided), Green et al. (EP 1287197; of record) and Hosoi et al. (JP2004195348; of record, translation provided) as applied to claims 1-8 and 10-20 above, and further in view of Svoboda et al. (US 6158253; of record).
Irisa, Oh and Green fail to teach the wearable article as being seamless.
Svoboda is directed to socks that are seamless such that the sock exhibits no undesirable wrinkles or thicknesses in the fabric which might cause local pressure on the foot or leg (see abstract). Thus, it would have been obvious to modify the sock of Irisa, Oh and Green to be seamless such as that described by Svoboda such that the modified sock exhibits no undesirable wrinkles or thicknesses that may cause pain to the wearer. See MPEP 2143(I)(A).
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Conclusion
Applicant's submission of an information disclosure statement under 37 CFR 1.97(c) with the timing fee set forth in 37 CFR 1.17(p) on 10/13/2025 prompted the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 609.04(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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYLE A PURDY whose telephone number is (571)270-3504. The examiner can normally be reached from 9AM to 5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Bethany Barham, can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYLE A PURDY/Primary Examiner, Art Unit 1611