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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 September 15, 2025 has been entered.
Response to Amendment
The Amendment submitted on September 15, 2025, has been entered. Claims 1 – 5, 11 – 21, 24, 25, 27, and 28 have been cancelled. Claims 6, 8, and 10 have been amended and claims 29 – 33 have been added. Therefore, the pending claims are 6 – 10, 22, 23, 26, and 29 – 33.
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) 6 – 10, 22, 23, 26, and 29 – 33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Emden et al. (2008/0096001A1) in view of Perera et al. (2023/0052244) and Dandapure (2023/0172294) and McMurray (2005/0112975).
Emden et al. discloses a fabric with wicking properties comprising an exterior, or upper layer, of hydrophobic yarns and an interior, or lower layer, of hydrophilic yarns (paragraphs 14 – 22). The fabric can be used to make clothing including shirts or trousers (paragraph 1). The textile can be made by weaving or knitting the wicking yarns (which are hydrophilic yarns) with hydrophobic yarns (paragraph 29 – 31). Emden et al. discloses that the knitted fabric can be a double knit fabric with a layer of hydrophobic yarns and a layer of wicking, or hydrophilic yarns, joined together by a third, binder yarn (paragraphs 80 – 81).
The hydrophobic yarns can be chosen from polyester yarns, polyamide yarns, elastane fibers or combinations thereof and can include hydrophobic yarns that have been rendered hydrophobic by a water repellent finish (paragraph 35). The hydrophobic yarns can be treated with a coating, additive, or finish (paragraph 31). The wicking fibers are inherently hydrophilic yarns or yarns that have been rendered hydrophilic by a hydrophilic additive, coating, or treatment (paragraph 34). The wicking fibers can include cotton yarns or polyamide or polyester fibers which have been rendered hydrophilic by a treatment (paragraph 44 and 46).
The material is dyed at yarn level and if treated with stain or water repellent finished before or at the same time dyeing occurs (paragraph 97). As detailed in Example 6, the individual yarns are treated with a finish and then used to produce a fabric (paragraphs 281 – 283). Further, the applicant teaches that the yarns of their invention are produced with 80 – 100% surface area coverage by treating individual yarns (Specification, paragraph 48). Further, Emden et al. discloses the treatment can be applied with an “exhaust process” similar to the teaching of the applicant (paragraph 39). Thus, the yarns disclosed by Emden are considered to have 80 to 100% of the surface area of the yarns treated with the finish treatment since the treatment is applied to the individual yarns in a manner similar to the applicant’s treatment process. Finally, if the treatment of the individual yarns does not cover almost the entire surface of the individual yarns, then the yarns could not be considered to be wicking yarns or have durable water repellency because too much surface area of the yarns would be left untreated to be effective. Therefore, the treated yarns of Emden et al. are considered to have the required surface area coverage. In the alternative, it would have been obvious to one having ordinary skill in the art to sufficiently coat all 100% of the yarns to provide the yarns with the most effective water repellent and wicking properties.
With regards to the quantity of filaments per yarn, Emden et al. discloses wicking fibers can be due to the material the fiber is made from, the use of many fine fibers bundled together, or a wicking treatment (Paragraph 34). Emden et al. further teaches that applying the wicking coating to wicking fibers prevents fluorocarbon DWR coatings from migrating to the wicking layer (paragraph 44). Additionally, Emden et al. notes that microfiber polyester wicks well because of the channels between the fibers, but the yarn has a low surface energy (paragraph 44). When a hydrophilic additive is applied to polyamide or polyester fibers this increases the surface energy of the fibers and will allow the yarns to keep their wicking properties when in contact with fluorocarbon treated yarn after washing (paragraph 44). Additionally, Emden et al. teaches that the wicking yarns are preferably polyamide or polyester yarns (paragraph 64) and preferably low denier fibers such as microdenier fibers and nanodenier fibers (paragraph 92 and 101). Smaller fibers like nanofibers are advantageous for use as a wicking fiber because of their low density and high surface area (paragraph 107). Thus, it would have been obvious to one having ordinary skill in to have choose wicking fibers with high surface energy, i.e., a wicking coating. And also, made from smaller filament sizes such as microdenier or nanodenier filaments, to maximize the wicking ability of the wicking layer by increasing the surface area of the wicking fibers, and having a higher number of filaments per yarn. This would give the yarn on increased capillary action effect to pull moisture away from the surface. Also, adding a treatment to the microfiber wicking yarns would increase the surface energy of the fibers to improve the wicking ability and prevent the migration of the DWR coatings such as fluorocarbons from the hydrophobic upper layer. Thus, it would be obvious to combine both features in the wicking yarns of Emden et al.
Further, Emden et al. teaches that the outer layer can have a larger diameter than those of the wicking yarns to help hide the wicking layer from view (paragraph 74). Further Emden et al. does not suggest that the hydrophobic yarns should be low denier or microdenier fibers. Without a specific teaching of using a microdenier fiber, as Emden et al. did for the wicking yarns, one of ordinary skill would be likely to use filaments which are 1 to 10 denier large to make up the yarns because these yarns are less expensive to produce and more commonly used in garments. Thus, it would be obvious to one having ordinary skill in the art to use the combination of microdenier fibers in the yarns used in the inner/wicking layer of the fabric by Emden et al. and larger filaments in the yarns of the hydrophobic outer layer. This would result in a structure with the outer layer having fewer filaments be yarn than the inner/wicking layer since the inner layer would use multiple microfiber or nanofiber sized filaments to aid in the wicking abilities of the fabric. Thus, it would be obvious to have a higher total number of filaments in the yarns of the wicking layer, than the total number of filaments in the yarns on the hydrophobic layer because modifying the yarns to have microdenier sized filaments or nanodenier sized filaments, i.e., a higher number of filaments per yarn, in the wicking layer would increase the wicking abilities of the inner layer while keeping the features of the outer layer and blocking the wicking layer from being seen through the outer layer.
While Emden et al. discloses some yarns sizes such as 99 denier yarns in Example 6, Emden et al. Of yarns having a size of 50/1 Nm or 80/2 Nm fails to teach using yarns with a size between 20 and 60 denier. Dandapure et al. is drawn to a moisture management fabric with a double knit structure. Dandapure et al. discloses that the synthetic yarns can have a denier range of 20 to 100 denier and from 10 to 86 filaments (paragraph 11). Additionally, McMurray is drawn to double knit fabric with an inner layer having a microdenier yarns with wicking properties (paragraph 36). McMurray teaches that the outer layers can be made from yarns having sizes of 20 to 150 denier, or 40 to 60 denier (paragraph 54). Further, McMurray teaches that one of ordinary skill in the art would appreciate that the yarns and fiber sizes will vary and depend upon the particular fabric being made the end use, as well as its functional qualities (paragraph 54). Thus, it would have been obvious to one having ordinary skill in the art to choose from known yarn sizes and fiber sizes, i.e., between 40 and 60 denier, as taught by McMurray and Dandapure, to produce the yarns for the wicking garments based on the particular end use of the fabric and properties desired in the fabric. Further, it would have been within the ordinary level of skill in the art at the time the invention was made to use yarns between 20 and 60 denier, since choosing from known size ranges and yarn constructions would have only involved routine skill in the art. Additionally, it would be obvious to use the same denier sizes for the first and second yarns.
Further, Emden et al. discloses using a tie yarn that can be chosen from a hydrophobic yarn and that those yarns can include from polyester yarns, polyamide yarns, elastane fibers or combinations thereof and can include hydrophobic yarns that have been rendered hydrophobic by a water repellent finish (paragraph 35). However, Emden et al. fails to teach that the binder yarn is an elastane yarn. Perera et al. is drawn to a knit fabric with a spacer yarn (paragraphs 6 – 9). The spacer yarn is hydrophobic yarn with an elastic material which can be chosen from elastane (paragraph 44). Perera et al. teaches that the use of an elastic spacer yarn is advantageous because it is believed to result in a thinner fabric (paragraph 44). Thus, it would have been obvious to one having ordinary skill in the art to add an elastane yarn as the spacer or binder yarn of Emden et al. since Emden et al. suggests elastane as one of the type of hydrophobic fibers the binder yarn can be chosen from and Perera et al. discloses that it makes the fabric thinner.
Further, Perera et al. discloses that the polyester material can be chosen from recycled polyester fibers (paragraph 20). Thus, it would have been obvious to choose recycled polyester fibers for the wicking material of Emden et al. as suggested by Perera et al. Thus, claim 6, 22, and 26 are rejected.
With regards to the re-extruded polyethylene terephthalate fibers, even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same or an obvious variant from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 227 USPQ 964, 966 (Fed. Cir. 1985). The burden has been shifted to the Applicant to show unobvious differences between the claimed product and the prior art product. In re Marosi, 218 USPQ 289, 292 (Fed. Cir. 1983). In this case the features of the recycled polyester fibers made from re-extruded polyester and shredded PET fibers would still produce polyethylene terephthalate fibers in the final product. The applicant does not recite a specific portion of recycled content is present of the recycled content produced a specific amount of impurities or variation from the virgin polyester fibers. Thus, the final products are not considered to be patentably distinct. Therefore, claims 7 and 9 are rejected.
Further, Emden et al. suggests that elastane can be added to the fabric layers to add flexibility/stretch into the layer (paragraph 173). While Emden et al. discloses adding elastane alone or in combination to the fabric (paragraph 35), Emden et al. fails to teach how elastane is added into the layers. Perera et al. is drawn to a knitted wicking fabric with a spacer structure, i.e., a technical face layer, a technical back layer and a spacer yarn connecting the face and back together (paragraph 48). Perera et al. discloses that the knit structure includes a second, elastic yarn plaited into the technical face and back of the knitted structure (401a and 402a). Perera et al. discloses that the rate of moisture wicking is influenced by the amount of pressure acting on the wearer (paragraph 39). Specifically, when one, two or three, of the face, back, or spacer layer contain an elastic yarn it is noted to result in the moisture wicking occurring only in one direction from the inside surface to the outer surface (paragraph 39). Thus, it would have been obvious to include an elastane yarn plated to the exterior and interior layers taught by Emden et al. to not only enhance stretch and flexibility, but to also add pressure or tension to the structure to help force moisture to the outer surface of the composite fabric during use. Further, it would also be obvious to use an elastane yarn as the binder yarn of Emden et al., as taught by Perera et al. to further enhance the pressure on the user and enhance the moisture wicking capabilities of the composite fabric as taught by Perera et al. Thus, claims 8 is rejected.
Additionally, Perera discloses that the knit fabric is made with the plated yarn having a smaller diameter than the main yarn to help avoid mis-plating during the production of the fabric (paragraph 43). The ratio of the diameters of the main yarn to the plated yarn is 8:1 to 1.5:1 (paragraph 43). Thus, the hydrobhobic and hydrophilic yarns would be a larger amount of the total than the smaller plated yarns. Therefore, it would be obvious to optimize the total amount of elastic yarn present in the three layers of the overall knit fabric to be a minority amount of the fabric. Particularly, the goal of the fabric is to have the material have moisture transport properties which keep a wearer comfortable by using hydrophobic and hydrophilic fiber placement to control the flow of moisture through the fabric. Therefore, one of ordinary skill in the art would be motivated to have a sufficient amount of the hydrophilic and hydrophobic fibers to effectively transport moisture and keep the user comfortable. Further, the elastic fibers would be a smaller percentage of the overall weight of the outer layers, and a small amount of elastic fibers is known to produce stretch in the final product. Thus, one of ordinary skill in the would be motivated to optimize the amount of polyester and elastic fibers to have about 70 – 80% polyester fibers and 20 – 30% elastic fibers to produce a fabric that has good moisture transport properties and sufficient stretch to provide comfort. Therefore, claims 10, 29, and 31 – 33 are rejected.
Further, Emden et al. discloses that the fabric can be used in garments such as shirts, tops, underwear, long johns, trouser, tracksuit bottom, shorts, etc. (paragraph 134). Emden et al. discloses that the fabric can have a basis weight of 300 or less gsm (paragraph 94). Thus, claim 23, 30, and 31 are rejected.
Response to Arguments
Applicant's arguments filed September 15, 2025 have been fully considered but they are not persuasive. The applicant argues that Emden fails to teach specifically adding a durable water repellant (DWR) finish to recycled polyester (response, pages 1 – 3). First, as set forth above it is noted that recycled polyester has not been defined as requiring any specific composition other than polyester, most commonly produced from polyethylene terephthalate. Thus, recycled polyester is considered to be equivalent to non-recycled polyester. Additionally, Emden does disclose that the DWR finishes can be added to fibers to make them hydrophobic. The applicant argues that Emden only discloses that the finish is added to hydrophilic materials to make them hydrophobic and Emden does not teach adding a hydrophobic finish to a hydrophobic fiber. However, in Example 6 of Emden (paragraphs 281 – 283), a Teflon finish, which qualifies as a DWR finish, is disclosed as being applied to a polyester yarn. Thus, Emden explicitly discloses that polyester yarns can be treated with DWR finished. Thus, the rejection is maintained.
The applicant argues that Emden fails to teach it would be obvious to treat a yarn formed from polyester microfibers with a wicking finish (response, pages 3 – 5). The applicant argues that Emden teaches using microfiber polyester as the wicking fiber, without a wicking treatment, and it would not be obvious to use the wicking treatment on microfiber polyesters yarn. First, it is noted that the arguments are not commensurate in scope with the claim language in claim 6. Claim 6 recites that the number of filaments in the second yarns is higher than the number of filaments in the first yarn. Neither limitation is specific to how many filaments are present in the yarn. Thus, the second polyester yarn in claim 6 can be a non-microfiber yarn. Emden does teach wicking fibers are preferably low denier polyester fibers with a wicking/hydrophilic finish (paragraph 1560. This would meet the limitation of claim 6. Claim 22 would limit the polyester fibers to be microfibers. Emden discloses that the low denier fibers are preferably microfibers or nanofibers (paragraph 156). Thus, it would be obvious to one having ordinary skill in the art that the low denier fibers include microfiber and nanofiber polyester yarns and that those low denier fibers can also be treated with a wicking finish to produce wicking fibers (paragraph 156). Further, combining together two different methods of enhancing wicking properties of a yarn, i.e., microdenier filament yarn and a wicking finish, would increase the degree to which the layer can wick moisture away from the user. Thus, the rejection is maintained.
Finally, the applicant argues that the limitation drawn to a fabric with 70 – 80% polyester and 20 – 30% elastic would be obvious. However, as set forth above, it would have been obvious to choose a higher amount of polyester treated fibers in the knit fabric to prioritize the ability of the fabric to control the moisture transport properties of the fabric. Further, fabrics do not need a majority amount of elastic fibers to produce improved comfort. Thus, it would be obvious to one having ordinary skill in the art that a smaller amount of elastic is needed to add comfort properties to the final fabric. Thus, one of ordinary skill in the art would optimize the properties of the fabric to have a high degree of moisture transport while adding a sufficient amount of elastic to the fabric to make the garment comfortable to the wearer. Thus, the rejection is maintained.
Conclusion
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jlj
October 30, 2025
/JENNA L JOHNSON/Primary Examiner, Art Unit 1789