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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/19/95 has been entered.
Response to Amendment
The Office has carefully considered Applicant’s amendments and accompanying remarks dated 12/19/25. Applicant’s amendments to the claims have been made or record. The pending claims at this time 1,18-26, 31-32, 35-37, 39-41, 46, 54, 65-66 and 68-71.
Response to Arguments
Applicant’s arguments, dated 12/19/25, with respect to 1,18-26, 31-32, 35-37, 39-41, 46, 54, 65-66 and 68-71 are as follows:
Applicant’s remarks in regard to the ODP made over USPN 11,946,173 is withdrawn as the current claims recites ranges outside that of the USPN 11,946,173.
Applicant’s remarks in regard to the ODP made over 17/998,964 is withdrawn as the current claims and the amended claim in the application differ in the amounts claimed.
Applicant’s remarks in regard to the ODP made over 17/998,967 is withdrawn as the current claims and the amended claim in the application differ in the amounts claimed.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 18-26, 31-32, 35-37, 39-41, 46, 54, 65-66 and 68-71 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 4-5, 7-8, 11, 13-15, 21, 27-28, 30, 46-47, 63, 88 and 90-92 of copending Application No. 17/998,969 [USPUB 20230228011 A1]. The claims dated 08/20/2025 were considered for analysis. Although the conflicting claims are not identical, they are not patentably distinct from each other because the yarns comprise the same blends of fibers in overlapping proportions and then fabrics made from the yarns, they the embodiment of the instant claims would be rendered obvious by the embodiments of claims 1-2, 4-5, 7-8, 11,13-15, 21, 27-28, 30, 46-47, 63, 88 and 90-92 of copending Application No. 17/998,969.
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.
Claim(s) 1, 18-26, 31-32, 35-37, 39-41, 46, 54, 65-66 and 68-71 is/are rejected under 35 U.S.C. 103 as being unpatentable over USPUB 2005/0204487 issued to Zhu in view of USPUB 2014/0290560 issued to Lawson et al.
Zhu discloses a method of dying a blend of modacrylic and aramid fibers.
At ¶¶ 0009-0013, Zhu teaches that the modacrylic is present in a range of 1-99 wt.% and the aramid is present in a range of 99-1 wt.%.
At ¶¶ 0014 and 0016, Zhu teaches that an antistatic component can be employed and is in an amount of 1 to 5wt. %.
At ¶ 0012, Zhu teaches that the preferred modacrylic fibers of this invention are copolymers of acrylonitrile combined with vinylidene chloride, the copolymer having in addition an antimony oxide or antimony oxides for improved fire retardancy.
At ¶ 0013, Zhu teaches that the aramid can be meta or para aramid or both.
At ¶¶ 0017-0018, Zhu teaches that the fibers can be formed into yarns. The yarns can be formed into woven or knitted fabrics. The modacrylic, para aramid and antistatic yarns are present in ranges within the claimed ratios.
Zhu differs from the claimed invention because it does not teach that the fabric is devoid of post-formation dyes. With regard to the particular process by which the yarns and fibers are dyed, since the instant claims are drawn to a product, the burden is shifted to Applicant to show that any process differences result in an unobvious difference between the claimed invention and the prior art product.
Zhu and Lawson are both from the same art of endeavor as they both create garments made from fabrics of blended fibers which include at least modacrylic and p-aramids.
Lawson et al., at ¶¶ 0003 and 0006, teaches that it was known to solution dye flame retardant fibers including aramids and modacrylic fibers. Lawson teaches that solution dyed fibers, in particular flame resistant solution dyed fibers, rather than post formation dyed; in order to retain their color far better than piece-dyed or yarn-dyed fibers after significant exposure to heat, flame and/or UV-light and as such is an improvement. At ¶ 0027, Lawson et al. teach that suitable fibers for solution dyeing include aramid and modacrylic fibers. Therefore, it would have been obvious to have solution dyed the fibers of Zhu in order to provide a fabric having improved color retention when exposed to heat, flame or UV light. Additionally, it would have been obvious to have solution dyed the fibers of Zhu in order to provide fibers having a particular appearance or color.
Regarding Claim 31, where Applicant seeks that the fabric of claim 19, wherein the fabric has a weight of about 5 ounces per square yard (osy) to about 7 osy; It would have been obvious to a skilled artisan to have employed a Fabric weight of 5-7 ounces per square yard (oz/yd²) is often chosen for garments that require a balance of structure and flexibility. This weight range provides a good amount of flexibility while still holding shape, making it suitable for a variety of projects.
Regarding Claims 35-37, 39-41, 46, 54 and 65; With regards to requirements of testing against the specific standards in claims 35-37, 39-41, 46, 54 and 65, it is the position of the Office that the claimed resultant properties as desired in the aforesaid claims, would be inherent if not obvious to the fabric of Zhu modified by Lawson et al., It is reasonable to presume so, as support for said presumption is found in the use of like materials (i.e., same composition of yarns, in the same amounts, same weave and same final intended use). The burden is upon Applicant to prove otherwise. In re Fitzgerald 205 USPQ 594. In addition, the presently claimed properties as set forth above, it would obviously have been present once the Zhu modified by Lawson et al., product is provided. Note In re Best, 195 USPQ at 433, footnote (CCPA 1977) as to the providing of this rejection made above under 35 USC 102. Reliance upon inherency is not improper even though rejection is based on Section 103 instead of Section 102. In re Skoner, et al. (CCPA) 186 USPQ 80.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
USPN 9,706,804 issued to Emery-Emery teaches a flame resistant fabric comprising a plurality of flame resistant yarns. The flame resistant yarns comprise flame resistant fibers such as modacrylic fibers. The flame resistant fibers are solution dyed. It is believed solution dyeing flame resistant fibers produces fibers with lower flame shrinkage than natural flame resistant fibers because of higher crystallinity. Lower shrinkage may contribute to a larger insulation air gap and better performance. See, e.g., abstract and col. 1, lines 20-45, col. 2, line 64 - col. 3, line 16, and col. 4, lines 54-64.
USPUB 2013/0055491 issued to Zhu. Zhu teaches a flame resistant fabric for forming flame resistant garments. Using para-aramid and crystalline meta-aramid fibers in the fabrics and garments results in significantly reduced laundry shrinkage. Preferred fabrics for forming flame resistant garments demonstrate a shrinkage of 5 percent or less after 25 wash cycles. See, e.g., abstract and paragraphs [0002], [0034], [0045], and [0051].
USPUB 2018/0371647 issued to Sato. Sato teaches a flame resistant fabric for forming flame resistant garments. The flame resistant fabric comprises modacrylic fibers. The modacrylic fibers contain antimony in order to ensure excellent production stability and favorable flame retardance. See, e.g., abstract and paragraphs [0013], [0020], [0025-0026], and [0075].
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Arti Singh-Pandey whose telephone number is (571)272-1483. The examiner can normally be reached Monday-Thursday 8:30-5:00 and 8:00-10:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Duane Smith can be reached at 571-272-1166. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Arti Singh-Pandey/
Primary Patent Examiner
Art Unit 1759
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