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 9/26/2025 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-21 and 23-27 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 states that the first yarn comprises at least 50 weight percent heat-resistant polymer fiber based on total weight of polymeric fiber in the first yarn and that at least 30 weight percent of the polymeric fiber present in the at least one first yarn is cut-resistant heat-resistant polymer fiber. It is unclear if the claimed at least 30 weight percent of the polymeric fiber is referring to 30 weight percent of the first yarn heat-resistant polymer fiber or the total weight of first yarn polymeric fiber.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 1-21 and 23-27 are rejected under 35 U.S.C. 103 as being unpatentable over USPAP 2023/0228011 (or WO 2021/236873) to Martin, USPAP 2021/0189609 to Patrick, and USPAP 2013/0118635 to Layson and (when necessary) further in view of USPAP 2020/0199790 to Hayashi.
Claims 1-4, 6-8, 11, 14, 15 and 24, Martin discloses a flame-resistant and cut-resistant fabric comprising a yarn (corresponding to the claimed second yarn) having a sheath/core construction with a sheath of halogenated self-extinguishing (modacrylic) staple fibers and a core comprising at least one continuous elastomeric filament, wherein 60 to 95 weight percent of the yarn is halogenated self-extinguishing fiber, based on the total weight of the yarn, and the halogenated self-extinguishing fiber is in contact with the at least one continuous elastomeric filament, the second yarn being free of inorganic fibers; and the halogenated self-extinquishing fibers inherently provides a flame-extinquishing cover of the core comprising at least one continuous elastomeric filament (see entire document including [0002], [0020], [0027], [0028], [0056], [0059], [0061], [0062], [0066], [0071], [0075] and [0099]).
Martin discloses that the fabric may comprise another yarn [0072] but does not appear to specifically mention the claimed first yarn. Patrick discloses that it is known in the art to construct a flame-resistant and cut-resistant fabric with sheath/core yarns comprising a glass or metal core filament and a para-aramid and meta-aramid fiber blend sheath to produce a fabric that exhibits enhanced cut-resistance, heat-resistance and strength (see entire document including [0002], [0003], [0007], [0008], [0025]-[0027] and [0030]-[0038] and claim 5). Patrick does not appear to mention the exact weight percentages of para-aramid fiber and meta-aramid fiber but Layson discloses that it is known in the art for an aramid blended yarn to comprise at least 50 weight percent heat-resistant polymeric (para-aramid) fiber and at least 30 weight percent cut-resistant and heat-resistant polymeric (meta-aramid) fiber to provide the optimum amount of flame protection, comfort and flexibility (see entire document including [0003], [0005], [0013], [0083], [0088] and [0101]). Therefore, it would have been obvious to one having ordinary skill in the art to include the yarns taught by Patrick/Layson in the fabric of Martin, as claimed and with the claimed weight percentages, to provide a fabric that exhibits enhanced cut-resistance, heat-resistance, strength, comfort and flexibility.
Regarding the claimed properties, considering that the applied prior art discloses a substantially identical first yarn, second yarn, and flame-resistant and cut-resistant fabric in terms of structure and materials, the claimed properties appear to be inherent. The Patent and Trademark Office can require applicants to prove that prior art products do not necessarily or inherently possess characteristics of claimed products where claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes; burden of proof is on applicants where rejection based on inherency under 35 U.S.C. § 102 or on prima facie obviousness under 35 U.S.C. § 103, jointly or alternatively, and Patent and Trademark Office’s inability to manufacture products or to obtain and compare prior art products evidences fairness of this rejection, In re Best, Bolton, and Shaw, 195 USPQ 431 (CCPA 1977).
Claim 5, the para-aramid fiber is poly(paraphenylene terephthalamide ([0085] of Layson).
Claim 9, the meta-aramid is poly(metaphenylene isophthalamide) ([0084] of Layson).
Claim 10, Martin discloses that 80 to 95 weight percent of the total weight of the at least one second yarn is the halogenated self-extinguishing fiber [0020].
Claim 12, Martin discloses that 5 to 40 weight percent of the total weight of the at least one second yarn is the at least one continuous elastomeric filament [0020].
Claim 13, Martin discloses that the at least one continuous elastomeric filament is spandex filament [0029].
Claim 16, Martin discloses that the sheath of the at least one second yarn further comprises heat-resistant polymeric fiber [0020].
Claim 17, Martin discloses that the sheath of the at least one second yarn further comprises a flame resistant fiber that is not cut-resistant [0020].
Claim 18, Martin discloses that the flame resistant fiber may be meta-aramid, polyamide-imide, flame-retardant-treated (FR) cellulose, FR cotton, FR lyocell, or mixtures thereof [0020].
Claim 19, Martin discloses that the flame resistant fiber may be meta-aramid [0020].
Claim 20, the meta-aramid is poly(metaphenylene isophthalamide) ([0084] of Layson).
Claim 21, Martin discloses that the sheath of the at least one second yarn further comprises an antistatic fiber [0020].
Claim 23, Martin discloses that the fabric may be a knit fabric [0061].
Claims 24-26, Martin teaches that the fabric may have any known knit structure [0061] but Martin does not appear to specifically mention the first and second yarns in a co-knit parallel relationship. Hayashi discloses that it is known in the art to construct a knit fabric with two yarns in a co-knit parallel relationship (see entire document including [0013], [0035], [0042], [0046], [0047], [0060] and [0126]). Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to make the fabric of Martin in any suitable knit construction, such as claimed, because it is within the general skill of a worker in the art to select a known knit construction on the basis of its suitability and desired characteristics.
Claim 26, Martin discloses that the at least one second yarn may be a weft insertion [0066].
Claim 27, Martin discloses a glove or other article comprising the fabric of claim 1 [0120].
Response to Arguments
Applicant's arguments filed 9/26/2025 have been fully considered but they are not persuasive.
The applicant asserts that Martin fails to teach or suggest the claimed high range (65 to 95 weight percent) of modacrylic fibers. The examiner respectfully disagrees. Martin discloses that yarn comprises an elastomeric filament and a blend of fibers wherein the elastomeric filament is present in an amount of as little as 0.1 weight percent and the blend of fibers may comprise about 80 or 90 weight percent modacrylic fibers [0020].
All the disclosures in a reference must be evaluated for what they fairly teach one of ordinary skill in the art even though the art teachings relied upon are phased in terms of a non-preferred embodiment or even as being unsatisfactory for the intended purpose, In re Boe, 148 USPQ 507 (CCPA 1966); In re Smith, 65 USPQ 167 (CCPA 1945); In re Nehrenberg, 126 USPQ 383 (CCPA 1960); In re Watanabe, 137 USPQ 350 (CCPA 1963).
Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971). “A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use.” In re Gurley, 27 F.3d 551, 554, 31 USPQ2d 1130, 1132 (Fed. Cir. 1994) (The invention was directed to an epoxy impregnated fiber-reinforced printed circuit material. The applied prior art reference taught a printed circuit material similar to that of the claims but impregnated with polyester-imide resin instead of epoxy. The reference, however, disclosed that epoxy was known for this use, but that epoxy impregnated circuit boards have “relatively acceptable dimensional stability” and “some degree of flexibility,” but are inferior to circuit boards impregnated with polyester-imide resins. The court upheld the rejection concluding that applicant’s argument that the reference teaches away from using epoxy was insufficient to overcome the rejection since “Gurley asserted no discovery beyond what was known in the art.” Id. at 554, 31 USPQ2d at 1132.). MPEP 2123.
The applicant asserts that Martin fails to mention the modacrylic forming “an active flame-extinguishing cover” for the elastomeric filament core. Applicant’s argument is not persuasive because the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
The applicant asserts that one skilled in the art would have no clear guidance from Patrick on the formulation of the claimed first yarn. The examiner respectfully disagrees. Martin discloses that the fabric may comprise another yarn [0072] but does not appear to specifically mention the claimed first yarn. Patrick discloses that it is known in the art to construct a flame-resistant and cut-resistant fabric with sheath/core yarns comprising a glass or metal core filament and a para-aramid and meta-aramid fiber blend sheath to produce a fabric that exhibits enhanced cut-resistance, heat-resistance and strength (see entire document including [0002], [0003], [0007], [0008], [0025]-[0027] and [0030]-[0038] and claim 5). Patrick does not appear to mention the exact weight percentages of para-aramid fiber and meta-aramid fiber but Layson discloses that it is known in the art for an aramid blended yarn to comprise at least 50 weight percent heat-resistant polymeric (para-aramid) fiber and at least 30 weight percent cut-resistant and heat-resistant polymeric (meta-aramid) fiber to provide the optimum amount of flame protection, comfort and flexibility (see entire document including [0003], [0005], [0013], [0083], [0088] and [0101]). Therefore, it would have been obvious to one having ordinary skill in the art to include the yarns taught by Patrick/Layson in the fabric of Martin, as claimed and with the claimed weight percentages, to provide a fabric that exhibits enhanced cut-resistance, heat-resistance, strength, comfort and flexibility.
The applicant also asserts that one skilled in the art would have no clear guidance from Layson on the formulation of the claimed first yarn. The examiner respectfully disagrees. Martin discloses that the fabric may comprise another yarn [0072] but does not appear to specifically mention the claimed first yarn. Patrick discloses that it is known in the art to construct a flame-resistant and cut-resistant fabric with sheath/core yarns comprising a glass or metal core filament and a para-aramid and meta-aramid fiber blend sheath to produce a fabric that exhibits enhanced cut-resistance, heat-resistance and strength (see entire document including [0002], [0003], [0007], [0008], [0025]-[0027] and [0030]-[0038] and claim 5). Patrick does not appear to mention the exact weight percentages of para-aramid fiber and meta-aramid fiber but Layson discloses that it is known in the art for an aramid blended yarn to comprise at least 50 weight percent heat-resistant polymeric (para-aramid) fiber and at least 30 weight percent cut-resistant and heat-resistant polymeric (meta-aramid) fiber to provide the optimum amount of flame protection, comfort and flexibility (see entire document including [0003], [0005], [0013], [0083], [0088] and [0101]). Therefore, it would have been obvious to one having ordinary skill in the art to include the yarns taught by Patrick/Layson in the fabric of Martin, as claimed and with the claimed weight percentages, to provide a fabric that exhibits enhanced cut-resistance, heat-resistance, strength, comfort and flexibility.
In response, the applicant asserts that Layson fails to disclose a sheath/core yarn. Applicant’s argument is not commensurate in scope with the rejection. The claimed second yarn has a sheath/core construction and Martin (the primary reference) discloses a flame-resistant and cut-resistant fabric comprising a yarn (corresponding to the claimed second yarn) having a sheath/core construction with a sheath of halogenated self-extinguishing (modacrylic) staple fibers and a core comprising at least one continuous elastomeric filament, wherein 60 to 95 weight percent of the yarn is halogenated self-extinguishing fiber, based on the total weight of the yarn, and the halogenated self-extinguishing fiber is in contact with the at least one continuous elastomeric filament, the second yarn being free of inorganic fibers; and the halogenated self-extinquishing fibers inherently provides a flame-extinquishing cover of the core comprising at least one continuous elastomeric filament (see entire document including [0002], [0020], [0027], [0028], [0056], [0059], [0061], [0062], [0066], [0071], [0075] and [0099]).
The applicant also asserts that Hayashi fails to teach a sheath/core yarn having an elastomeric core because the core of Hayashi is a metal filament. Applicant’s argument is not commensurate in scope with the current rejection. Martin (the primary reference) already teaches the claimed elastomeric filament core. Martin teaches that the fabric may have any known knit structure [0061] but Martin does not appear to specifically mention the first and second yarns in a co-knit parallel relationship. Hayashi discloses that it is known in the art to construct a knit fabric with two yarns in a co-knit parallel relationship (see entire document including [0013], [0035], [0042], [0046], [0047], [0060] and [0126]). Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to make the fabric of Martin in any suitable knit construction, such as claimed, because it is within the general skill of a worker in the art to select a known knit construction on the basis of its suitability and desired characteristics.
Conclusion
Applicant's amendment necessitated any 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 ANDREW T PIZIALI whose telephone number is (571)272-1541. The examiner can normally be reached Monday-Thursday 7am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Marla McConnell can be reached on 571-270-7692. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW T PIZIALI/Primary Examiner, Art Unit 1789