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 May 4, 2026, has been entered. Claims 1 – 5, 11 – 22, 24, 25, 27, and 28 are cancelled. Claims 6, 10, 29, and 31 are amended and no claims are added. Therefore, the pending claims are 6 – 10, 23, 26, and 29 – 33.
The cancellation of claim 22 renders moot the rejection to those claims set forth in the previous Office Action.
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, 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 binder yarn that can be chosen from a hydrophobic yarn (paragraph 80). This is equivalent to the claimed tie yar. Further, Emden et al. teaches that 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). However, Emden et al. fails to explicitly teach that the binder yarn is a bare elastane yarn. Dandapure et al. is drawn to a knit fabric with a connecting yarn, which is equivalent to the tie yarn or binder yarn (Paragraph 5). The connecting yarn is at least a single thread and a synthetic polymer such as elastane (paragraphs 23 - 25). Dandapure teaches that the connecting yarn joins together the face layer and the back layer (paragraph 39). Further, the yarns can be a single strand or multiple strands and be between 10 denier and 70 denier (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 Dandapure et al. discloses using a single strand elastane fiber to join together the face layer and the back layer of a knit fabric. A single strand yarn is considered to be a bare yarn.
Perera et al. is drawn to wicking fabrics. 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 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 May 4, 2026 have been fully considered but they are not persuasive. The applicant argues that the construction of Emden, Perera and Dandapure do not suggest the claimed bare elastic tie yarn and the finish isolation (response, pages 1 – 4). However, as set forth above, the rejection includes Dandapure teaching that the tie yarn can be a single strand of elastane fibers. This would be equivalent to the claimed bare yarn as the tie yarn. With regards to the structure producing finish isolation, first it is noted that Emden suggests that the finish migration can be prevented by how it is added to the yarns. Further, the prior art suggest a similar structure which would use a spacer layer to separate the face layer and the back layer. The structure would result in similar properties since the structure has the same materials and construction. Thus, the function is a result of the structure and is present in the combination. Further, 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). Thus, the rejection is maintained.
With regards to the Emden et al. teaching adding DWR finish to polyester in Example 6, the applicant argues this is not sufficient to teach adding it to other polyester fibers for other structures (Response, pages 4 – 5). Emden teaches that the DWR finish can be added to hydrophobic fibers to increase surface energy. Thus, one of ordinary skill in the art could add the DWR finish to maximize surface energy and wicking properties as well as prevent migration. The teaching of Emden et al. is sufficient to suggest adding it to polyester fibers even though the fibers are already hydrophobic. Thus, the rejection is maintained.
The applicant argues that the argues that the prior art fails to teach the combination of yarn counts with the desired filament count. As set forth above, the prior art teach a broader range that includes that applicant’s claimed range. Further, the rejection discusses that it would have been obvious to choose smaller filaments to maximize wicking capabilities in the wicking yarns. Also, different size yarns in combination can impact wicking capabilities is discussed in the prior art. Therefore, it would be within the level of ordinary skill in the art to choose from within known ranges denier size and filament count for the yarns. Applicant has failed to provide any evidence to show that the specific claimed range or combination of narrower ranges result in an unexpected wicking capabilities or other properties. Thus, the rejection is maintained.
The applicant argues that prior art fails to teach the narrower tie yarn size (response, pages 7 – 8). Again, the broader range taught by the prior art includes that claimed range. The applicant has failed to show evidence that would suggest the specific narrower range results in unexpected results as compared to other sizes within the taught range. Therefore, the rejection is maintained.
With regards to the specific basis weight ranges, the applicant argues that the prior art provides general broad ranges and does not disclose narrower ranges (response, pages 8 – 9). Emden suggests a general maximum weight for shirts and garments of 300 gsm. Suggesting that various clothing articles can be made in the range below 300 gsm. It is within the level of skill in the art to choose from a broad range a narrow ranges for specific products based on end use. The applicant has fails to provide evidence that the claimed basis weights provide unexpected results over the broader ranges taught by the prior art. Thus, the rejection is maintained.
The applicant argues that the bare elastic yarn is plated with the outer layer yarns while the yarn of Perera include a hydrophobic yarn covering the elastic core (response, pages 9). However, it is noted that the elastic yarn is not going to be a single elastic yarn once it is plated. Further, the claim language uses comprising allowing for additional materials to be included in the structure. In this case the bare elastic yarn is joined to at least one yarn in the plating process. The additional covering yarns would not be excluded from the final product. Thus, the rejection is maintained.
The applicant’s argues that the term “shredded PET fibers” requires shredded PET fibers (response, page 10). The section quoted by the applicant from the disclosure appears to be drawn to the process of recycling PET to create new polyester filaments. As set forth above, the process limitation drawn to how the PET is recycled is not given weight in the product claims made from recycled polyester fibers. The size of the polyester filaments is set forth in claim 6 as a filament yarn in the range of 20 D to 60 D and having 35 – 60 filaments for the first yarn and a filament yarn in the range of 20 D to 60 D and having 60 – 80 filaments for the second yarn. The fact that polyester material such as used polyester fibers or fabrics were shredded to create the polyester filaments in the final product does not impact the structure of the final product. The polyester fibers are filaments and not shorter staple fibers. Therefore, the rejection is maintained.
The applicant argues that the elastic fiber composition is not taught by the prior art (response, page 10). However, the composition amounts would be obvious over the teachings of the prior art. The applicant has not provided any evidence showing that the specific narrow combination results in particular unexpected results. Further, the applicant argues that combining the elastic composition with the basis weight is not sufficiently taught by the prior art. However, the applicant has not provided any information showing that the combination of the elastic composition and the basis weight range result in particular unexpected results. Thus, the rejection is maintained.
The applicant argues that Emden uses larger diameter yarn in the outer layer and this would teach away from claim 26 (response, page 11). However, this is one embodiment and is not required. Emden et al teaches that different combination of fibers, yarns, and materials can be used to create wicking properties within the layered fabric. This is one option that can be used. Thus, which different size yarns can be used the products of Emden et al. are not required to be different sizes. The layers can include the same size yarns as well. Thus, claim 26 is rejected.
Conclusion
Applicant's amendment necessitated the 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.
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jlj
June 27, 2026
/JENNA L JOHNSON/Primary Examiner, Art Unit 1789
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