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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 11/13/2025 has been entered.
PTAB Decision
The examiner was AFFIRMED in the PTAB decision mailed 10/15/2025. The PTAB wrote: “We agree with the Examiner, and the conclusions reached in the Price ‘3888 Decision, that the Examiner has established a prima facie case of obviousness essentially for the reasons set forth by the Examiner.” In addition, the PTAB agreed with the Examiner that “Appellant’s showing is not commensurate in scope with the claimed invention and, therefore, is not adequate to outweigh the prima facie case of obviousness established by the Examiner.”
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 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over USPN 7,101,818 to Price in view of USPN 5,569,528 to Van der Loo and USPAP 2005/0118394 to Tanaka.
Claims 1, 2, 4, 11, 13 and 15, Price discloses a ballistic material, comprising: a first woven ballistic fabric consisting essentially of ballistic grade fibers (e.g. para-aramid fibers); and a nonwoven fiber component consisting essentially of ballistic grade fibers (e.g. para-aramid fibers) and having a density in the range of about 10 gsm to about 200 gsm; wherein the nonwoven component is needlepunched with the woven ballistic fabric to form the ballistic material (see entire document including column 1, lines 17-67, the paragraph bridging columns 2 and 3, column 3, lines 3-63, column 4, lines 8-62, and Example 1).
Price does not mention the denier of the woven or nonwoven fibers but Van der Loo discloses that it is known in the ballistic fabric art to construct a woven and nonwoven entangled ballistic material with nonwoven layers having a denier of between 0.5 to 12, preferably 0.5 to 3 denier, and woven layers having a denier of about 400 (see entire document including column 2, lines 30-40, column 4, lines 17-28, and Example VI). Van der Loo discloses that ballistic-resistant properties improve with the use of a nonwoven component having fine fibers of 0.5 to 12 denier (column 2, lines 30-40) and that woven ballistic fabrics are commercially constructed with a denier of 400 (Example VI). Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to make the nonwoven and woven fibers with the claimed deniers, motivated by a desire to produce a ballistic material with improved ballistic-resistant properties, because the materials are commercially (commonly and easily) available, to practice the invention of Price (the invention of Price cannot be practiced without selecting fiber deniers), and/or because it is within the general skill of a worker in the art to select fiber deniers on the basis of suitability and desired characteristics.
Price discloses (column 3, lines 3-8) that the nonwoven component is nonwoven batting (fibers entangled by needles) but does not appear to mention the use of a hydroentangled nonwoven (fibers entangled by water). Van der Loo discloses that it is known in the art to construct a woven and nonwoven entangled ballistic material with a needled or hydroentangled nonwoven component (column 6, lines 9-19). Van der Loo and Tanaka each disclose that an advantage of using hydroentangling over needling is less fiber damage (column 6, lines 9-19 of Van der Loo and [0008]-[0009] of Tanaka). Tanaka further discloses that needling reduces strength of a fabric and reduces its reinforcing effect [0008]. Therefore, it would have been obvious to one having ordinary skill in the art to construct the ballistic material of Price with a hydroentangled (spunlace) nonwoven component, motivated by a desire to construct the ballistic material with less damaged fibers, increased strength, and increased reinforcing effect.
Claims 3 and 14, the first woven ballistic fabric comprises a plurality of woven ballistic fabric layers (column 1, line 60 through column 2, line 11).
Claims 5 and 16, the hydroentangled nonwoven component may comprise fibers coated with a water repellent coating (column 6, lines 28-30).
Claims 6, 8 and 11, the ballistic material may have a finished areal weight of between about 0.1 to about 2.0 pounds per square foot (column 2, lines 1-11).
Claims 7, 8 and 11, the ballistic material may have a V50 in a range of about 750 to about 3000 feet per second (Table 1).
Claims 9 and 11, the nonwoven fiber component may constitute about 0.1 to about 10% by weight of the ballistic material (column 4, lines 8-28 and column 5, lines 30-38).
Claims 10 and 17, the ballistic material may be stitched together (claim 15).
Claims 12 and 18, the nonwoven fiber component may consist essentially of UHMWPE (extended chain polyethylene) fibers (column 2, line 56 through column 3, line 27). Plus, Van der Loo discloses that it is known in the ballistic fabric art to construct a nonwoven fiber component with DYNEEMA (UHMWPE) fibers (see Examples). Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to make the nonwoven fiber component from any suitable ballistic grade fiber material, such as UHMWPE, because 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 and desired characteristics.
Claims 19 and 20, the nonwoven fiber component may consist essentially of polyester fibers (column 3, lines 9-27).
Response to Arguments
Applicant's arguments filed 11/13/2025 have been fully considered but they are not persuasive.
Conclusory statements, mere arguments, or speculation are not sufficient to establish that results are unexpected (surprising). To be given weight, an assertion of unexpected results must be supported by factual evidence (concrete, factual proof). Although the declarations of record factually support the assertion that V-50 performance improves (2%) when substituting a hydroentangled/spunlace nonwoven fabric for a needled nonwoven fabric, none of the declarations include factual evidence that said improvement is unexpected. Every improvement in performance is expected or unexpected, it is the burden of the applicant to factually prove that said improvement is unexpected.
The applicant has failed to evidence (or even argue) unexpected results in view of the teachings of Van der Loo (USPN 5,569,528), Tanaka (USPAP 2005/0118394), Viazmensky (USPN 5,009,747) and Thomas (USPN 5,736,474). The Brahms and Janco declarations argue that it is unexpected that V-50 (ballistic strength) improves with a hydroentangled (spunlace) nonwoven fabric compared to a needlepunched nonwoven fabric. These declarations are not persuasive because Van der Loo, Tanaka and Viazmensky disclose that a known advantage of using hydroentangling over needling is less fibers damage and thus improved fabric strength (column 6, lines 9-19 of Van der Loo, [0008]-[0009] of Tanaka, and column 1, line 25 through column 2, line 37 of Viazmensky). Tanaka explicitly discloses that compared to hydroentangling, needling reduces the strength of a fabric and reduces its reinforcing effect due to the needles causing fiber damage [0008] and to avoid broken filaments it is known in the art to substitute hydroentangling/spunlacing for needlepunching [0009]. The current specification discloses in the BACKGROUND OF THE INVENTION section that needling “subjects the fibers to damage” [004] and that there is a known desire in the art is to increase entanglement of a nonwoven into a woven fabric [005]. Tanaka similarly discloses that a known desire in the art is to “entangle the fibers more sufficiently” and to avoid “damage of filaments” that a known solution in the art is to substitute a hydroentangled/spunlaced nonwoven for the needlepunched nonwoven ([0008] and [0009]). Further, Viazmensky explicitly discloses that needles damage fibers (column 1, lines 25-34) and that hydroentangling results in “improved physical strength” compared to mechanically entangled materials because “the water jets do not damage the fibers as they entangle them” (column 2, lines 15-21). Further still, Thomas discloses that it has been known in the art (since at least since 1998) that fiber breakage effects V-50 ballistic performance as impact dissipation occurs through fiber to fiber friction at the points of fiber contact and fiber friction assists in absorbing energy in all fabric types (e.g. woven and nonwoven) and most advantageously in nonwoven fabrics (column 1, lines 9-43 and column 4, line 27 through column 6, line 6). Thomas teaches that the more friction generated in a nonwoven structure “without catastrophic fiber breakage, the more impact energy can be absorbed” (paragraph bridging columns 5 and 6). Therefore, the prior art teaches that the V-50 (ballistic strength) of a spunlace (hydroentangled) nonwoven fabric would be EXPECTED by one of ordinary skill in the art to be higher compared to a needlepunched nonwoven fabric because needling causes fiber damage which reduces V-50 performance.
The Brahms I declaration (dated 8/10/2018) argues that it is unexpected that a low fiber denier (low fabric weight) spunlace fabric results in a higher V-50 (e.g. see paragraph 5 of the declaration). This declaration is not persuasive because Van der Loo explicitly discloses that it was already known to one skilled in the art that ballistic-resistant properties improve with a decrease in fiber denier. Specifically, Van der Loo discloses that a fineness of more than 12 denier results in “poorer ballistic-resistant properties” than using fibers of between 0.5 to 12 denier (column 2, lines 30-40). Van der Loo discloses a most preferred fiber fineness range of 0.5 to 3 denier which is nearly identical to the claimed fineness range of about 0.5 to about 2.5 denier (claims 1 and 11). Thomas also discloses that that it was already known to one skilled in the art that ballistic-resistant properties improve with a decrease in fiber denier (paragraph bridging columns 5 and 6).
The Brahms II declaration (dated 2/5/2019) argues that it is unexpected that V-50 (ballistic strength) improves with a hydroentangled (spunlace) nonwoven fabric compared to a needlepunched nonwoven fabric. The examiner respectfully disagrees. As stated above, Van der Loo, Tanaka, Viazmensky and Thomas clearly disclose that a known advantage of using hydroentangling over needling is less fibers damage and improved V-50 ballistic performance.
The Janco declaration also asserts that since a needled/woven stack and a spunlaced/woven stack each have the same weight, a person of ordinary skill in the art would expect the same ballistic performance. The examiner respectfully disagrees. As stated above, Van der Loo, Tanaka, Viazmensky and Thomas clearly disclose that a known advantage of using hydroentangling over needling is less fibers damage and improved V-50 ballistic performance.
In response (pages 7-9 of the Reply Brief), the applicant continues to ignore the issue at hand and instead asserts that the “relevant issue” is that the current rejection is not obvious. Applicant’s argument is not persuasive because the PTAB has now ruled TWICE (once in this case and once in the parent application) that the Examiner has established a prima facie case of obviousness. Therefore, the applicant is once again requested to address the issue at hand – which is that the applicant has failed to evidence (or even argue) unexpected results in view of the teachings of Van der Loo, Tanaka, Viazmensky and Thomas. The burden is on the applicant to establish results are unexpected. See MPEP 716.02(b) and 716.02(d).
The applicant also asserts that since both Price and the current application inevitably require needling (needlepunching) to consolidate the nonwoven fiber component with a woven fabric, one skilled in the art would not expect that avoiding needling the nonwoven fabric before consolidation with a woven fabric would improve V-50 performance. In essence, the applicant asserts that since some fiber breakage is unavoidable (due to a later production step) one skilled in the art would not expect avoiding further fiber breakage during construction of the nonwoven fabric would improve V-50 performance. Applicant’s argument is fatally flawed. The later step of consolidating (entangling via needlepunching) the nonwoven and woven together clearly does not break all the fibers. It goes without saying, but if all the fibers were broken the two fabrics would not combine together because the nonwoven fibers wouldn’t be long enough to entangle the two fabrics together. Although any amount of fiber breakage decreases V-50 performance, Thomas clearly teaches that the more fiber breakage that occurs the lower the V-50 performance because of reduced fiber to fiber friction. The less fibers are broken the more fiber to fiber friction throughout the fabric and higher the V-50 performance. Therefore, it is expected that V-50 performance would increase using a hydroentangled/spunlace nonwoven (compared to using a needled nonwoven fabric), even when later subjected to a subsequent needlepunching process, because the total sum of needling (i.e. the total number of broken fibers) would be less.
To summarize: the applicant has been told twice by the PTAB that the examiner’s obviousness rejection is proper, the applicant is relying solely on an argument of unexpected results to overcome obviousness, the applicant relies on a declaration showing as little as a 2% improvement in V-50 bullet resistance performance (Janco declaration Table 1 using polyester nonwoven fibers) as evidence of significant results, a declaration statement by Brahm (an inventor of the current invention) as evidence that the result was unexpected to one of ordinary skill in the art, and the applicant has never explained how the V-50 improvement is unexpected in view of the teachings of Van der Loo, Tanaka, Viazmensky and Thomas which collectively teach a V-50 improvement is expected by one skilled in the art when a hydroentangled (spunlace) nonwoven fabric replaces a needlepunched nonwoven fabric.
It is noted that in the parent application (the Price ‘3888 Decision - claims limited to para-aramid nonwoven fiber material) the PTAB indicated that the V-50 results were unexpected but the PTAB was not made aware of the combined teachings of Van der Loo, Tanaka, Viazmensky, and Thomas. Neither the PTAB nor the applicant has addressed the clear teachings of Van der Loo, Tanaka, Viazmensky and Thomas that a V-50 improvement is expected by one skilled in the art when a hydroentangled (spunlace) nonwoven fabric replaces a needlepunched nonwoven fabric.
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.
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 at 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
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