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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 2/26/2026 has been entered.
Declaration Under 37 C.F.R. 1.132
The declaration submitted on 2/26/2026 has been entered.
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, 4 and 6-8 are rejected under 35 U.S.C. 103 as being unpatentable over USPAP 2018/0171049 to Lue in view of USPAP 2013/0059495 to Dempster, USPN 3,855,776 to Omura, USPAP 2011/0092937 to Pepper, and/or USPN 4,263,777 to Wada.
Claims 1, 4 and 6-8, Lue discloses a polyethylene yarn, being a yarn manufactured by melting polyethylene having a density of 9.41 to 9.65 g/cm3, a weight average molecular weight (Mw) between 50,000 to 99,000 g/mol, a melt index (MI) between 6 to 21 g/10 min, a PDI of 6.4 to 8.4, and wherein the polyethylene yarn is formed by melt spinning (i.e. melting the polyethylene, extruding the molten polyethylene through a spinneret, and cooling) the polyethylene (see entire document including [0008] and [0074]-[0085]).
Lue does not appear to specifically mention the yarn denier, yarn denier per filament, yarn cross sectional shape, or the yarn interlacing number, but Dempster discloses that it is known in the art to construct a yarn with a yarn denier between 75 to 450, a filament denier between 1 to 5, a circular cross section, and with between 10 to 40 nodes/meter to provide bulk and/or a yarn which may be knit or woven into a fabric (see entire document including [0002]-[0017] and [0032]-[0043]). Therefore, it would have been obvious to one having ordinary skill in the art to construct the yarn of Lue, as taught by Dempster, to provide a yarn with bulk and/or a yarn which may be knit or woven into a fabric.
Lue does not appear to specifically mention the yarn being twisted but Omura discloses that it is known in the art to twist a yarn between 50 to 300 twists per meter to provide a yarn with smoothness and/or good coherency for weaving into a fabric (see entire document including column 1, lines 11-43, column 2, lines 38-48, column 7, lines 3-21 and Example 2). Therefore, it would have been obvious to one having ordinary skill in the art to twist the yarn of Lue, as taught by Omura, to provide a yarn with smoothness and/or good coherency for weaving into a fabric.
Lue does not appear to specifically mention the yarn draw ratio or overfeed ratio but Pepper discloses that it is known in the art to subject a yarn to a draw ratio between 2.5 and 8.5 (see entire document including the Inventive Examples) and Wada discloses that it is known in the art to subject a yarn to an overfeed ratio of between 6 to 10% to provide of yarn of soft touch (see entire document including column 1, lines 38-43 and column 9, lines 13-33). Therefore, it would have been obvious to one having ordinary skill in the art to apply a draw ratio of 2.5 to 8.5 and/or an overfeed ratio of 6-10% to the yarn of Lue, to provide a yarn with the desired properties such as soft touch.
Considering that the applied prior art teaches a substantially identical polyethylene yarn in terms of structure and material and production method, 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). Plus, it would have been obvious to one having ordinary skill in the art at the time the invention was made to adjust the properties, such as claimed, based on the intended application and the desired/required application properties.
Claims 1, 4 and 6-8 are rejected under 35 U.S.C. 103 as being unpatentable over USPAP 2011/0212315 to Fantinel in view of USPAP 2013/0059495 to Dempster, USPN 3,855,776 to Omura, USPAP 2011/0092937 to Pepper, and/or USPN 4,263,777 to Wada.
Claims 1, 4 and 6-8, Fantinel discloses a polyethylene yarn, being a yarn manufactured with polyethylene having a density of 9.41 to 9.65 g/cm3, a weight average molecular weight (Mw) between 50,000 to 99,000 g/mol, a melt index (MI) between 6 to 21 g/10 min, and a PDI of 6.4 to 8.4 (see entire document including [0002], [0009]-[0013] and claim 28).
Fantinel does not appear to specifically mention forming the yarn by spinning, yarn denier, yarn denier per filament, yarn cross sectional shape, or the yarn interlacing number, but Dempster discloses that it is known in the art to construct a yarn by spinning a yarn with a yarn denier between 75 to 450, a filament denier between 1 to 5, a circular cross section, and with between 10 to 40 nodes/meter to provide bulk and/or a yarn which may be knit or woven into a fabric (see entire document including [0002]-[0017] and [0032]-[0043]). Therefore, it would have been obvious to one having ordinary skill in the art to construct the yarn of Fantinel, as taught by Dempster, to provide a yarn with bulk and/or a yarn which may be knit or woven into a fabric.
Fantinel does not appear to specifically mention the yarn being twisted but Omura discloses that it is known in the art to twist a yarn between 50 to 300 twists per meter to provide a yarn with smoothness and/or good coherency for weaving into a fabric (see entire document including column 1, lines 11-43, column 2, lines 38-48, column 7, lines 3-21 and Example 2). Therefore, it would have been obvious to one having ordinary skill in the art to twist the yarn of Fantinel, as taught by Omura, to provide a yarn with smoothness and/or good coherency for weaving into a fabric.
Fantinel does not appear to specifically mention the yarn draw ratio or overfeed ratio but Pepper discloses that it is known in the art to subject a yarn to a draw ratio between 2.5 and 8.5 (see entire document including the Inventive Examples) and Wada discloses that it is known in the art to subject a yarn to an overfeed ratio of between 6 to 10% to provide of yarn of soft touch (see entire document including column 1, lines 38-43 and column 9, lines 13-33). Therefore, it would have been obvious to one having ordinary skill in the art to apply a draw ratio of 2.5 to 8.5 and/or an overfeed ratio of 6-10% to the yarn of Fantinel, to provide a yarn with the desired properties such as soft touch.
Considering that the applied prior art teaches a substantially identical polyethylene yarn in terms of structure and material and production method, 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). Plus, it would have been obvious to one having ordinary skill in the art at the time the invention was made to adjust the properties, such as claimed, based on the intended application and the desired/required application properties.
Response to Arguments
Applicant's arguments filed 2/26/2026 have been fully considered but they are not persuasive.
The applicant asserts that unexpected results overcome the current rejection prima facie obviousness. The applicant submitted a Rule 132 Declaration including experimental data in an attempt to support the assertion that the claimed invention with the claimed PDI range of 6.4 to 8.4 exhibits an unexpected technical advantage. The declaration, and applicant’s arguments citing said declaration results, are not persuasive.
Lou explicitly discloses that the PDI may be “6.0, 7.5, or 10” [0081]. The disclosed value of “7.5” is within the claimed range of 6.4-8.4. Further, Sample 3 of Lue has a PDI of 6.8 (along with a density, MI, and Mw all within the claimed ranges) which is also within the claimed range of 6.4-8.4. MPEP 2131.03 states that a specific example in the prior art which is within the claimed range anticipates the range. An argument of unexpected results cannot be found persuasive when the allegedly unexpected feature is anticipated by the applied art. A showing of unexpected results does not automatically overcome all grounds of rejection. Rather, evidence of unexpected advantageous properties/results can rebut prima facie obviousness. Because Lou discloses specific examples within the claimed PDI range, Lou anticipates the claimed PDI range and the PDI argument of unexpected results cannot overcome anticipation. Put in other words, a showing of unexpected results must directly relate to an obviousness statement of a rejection and rebut that showing of obviousness by showing that the statement of obviousness is not obvious in view of the unexpected results.
Further, although the declaration results show thermal shrinkage results that are preferred when specific thermal shrinkage properties are desired, the applicant has failed to show that the results are necessarily unexpected and unexpected to a degree sufficient to overcome obviousness. The applicant argues that the declaration results are “unexpected” simply because the results show advantageous/preferred results. Specifically, the applicant argues that since the test results in the declaration show reduced thermal shrinkage and/or acceptable elongation, the results are necessarily unexpected to one skilled in the art. The declaration and arguments fail to address how the test results are unexpected (not expected to occur) to one of ordinary skill in the art. The declaration results shown in Table 1 clearly shows variation in a variety of variables including based on variation in polyethylene PDI, but any PDI difference may be expected to result in some differences in properties (e.g. thermal shrinkage and/or elongation). The burden is on the applicant to establish results are unexpected and significant. See MPEP 716.02.
Further still, the declaration results do not show a clear unexpected improvement in thermal shrinkage or elongation based on use of the claimed PDI range of 6.4 to 8.4. For example, Example 2 (PDI 8.4) and Supp. Comp. Ex. C-1 (PDI 8.8) have almost identical shrinkage stress at 70ºC, shrinkage stress at 100ºC, dry thermal shrinkage rate at 70ºC, dry thermal shrinkage rate at 100ºC, tensile modulus, and elongation at break. Therefore, the declaration results teach that a PDI of 8.4 (within the claimed range) does not result in an unexpected difference in thermal shrinkage or elongation compared to a PDI of 8.8 (outside the claimed range).
Example 2 (PDI 8.4) does have a larger tensile strength than Supp. Comp. Ex. C-1 (PDI 8.8), but Example 2 (Mw 98,290) also has a much higher molecular weight (Mw) than Supp. Comp. Ex. C-1 (Mw 62,000). As is well-known to one skilled in the art, a higher molecular weight generally increases tensile strength due to greater chain entanglement which resists deformation. Therefore, the declaration results further fail to show that the increase in tensile strength is due to anything other than a decrease in molecular weight.
Although Example 2 (PDI 8.4) and Supp. Comp. Ex. C-1 (PDI 8.8) have almost identical shrinkage stress at 70ºC, shrinkage stress at 100ºC, dry thermal shrinkage rate at 70ºC, dry thermal shrinkage rate at 100ºC, tensile modulus, and elongation at break, Example 2 (PDI 8.4) does have a slightly smaller wet thermal shrinkage rate than Supp. Comp. Ex. C-1 (PDI 8.8), 0.85% versus 1.1%. But, as explained above, Example 2 (Mw 98,290) also has a much higher molecular weight (Mw) than Supp. Comp. Ex. C-1 (Mw 62,000). Therefore, the declaration fails to show that the difference in PDI is even responsible for the one slight performance difference between Example 2 and Supp. Comp. Ex. C-1. Plus, the wet thermal shrinkage rate of Example 1 (PDI 6.4) is almost identical to the wet thermal shrinkage rate of Supp. Comp. Ex. B-1 (PDI 6.0). Therefore, the declaration results teach that a PDI of 6.4 (within the claimed range) does not result in an unexpected difference in wet thermal shrinkage rate compared to a PDI of 6.0 (outside the claimed range).
The burden is on the applicant to establish results are unexpected and significant and the evidence relied upon should establish that the differences in results are in fact unexpected, unobvious, and commensurate in scope with the claims. See MPEP 716.02(b) and 716.02(d).
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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/ANDREW T PIZIALI/Primary Examiner, Art Unit 1789
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