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 .
Claims Status
Claims 15-28 are pending. Claims 15 and 22 are independent claims.
Response to Arguments
Applicant's arguments filed 11/10/2025 with respect to the rejection of present claim(s) 15-17 and 20-28 under 35 U.S.C. 103 as being unpatentable over Ly (US Pub. 2020/0009828) in view of WO2009/048504 to Smith (“Smith”) and further in view of JP2014-100843 to Sakashita et al. (“Sakashita”, see English translation) have been fully considered but they are not persuasive for at least the following reasons.
Applicant contents that (1) neither Ly nor Sakashita discloses or suggests that down-proof performance can coexist with the claimed air permeability and moisture vapor transmission rate (MVTR), and the prior art teaches away from such a balance, as conventional down-proof laminates inherently limit air and moisture transport (remarks, page 4, last two para); (2) the modification of Ly in view of Smith would defeat the functional objective of Ly, because a down-proof layer would obstruct the air and moisture permeability required to achieve Ly's performance characteristics (remarks, page 5, first and second para); and (3) the claimed down-proof baffle achieves unexpected result, as per applicant, the claimed down-proof baffle composite achieves both down-proof resistance and measurable air/moisture permeability outside the performance range achievable by the prior art (remarks, page 5, fourth para).
In response to contention (1), in response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413,208 USPQ 871 (CCPA 1981); In re Merck& Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Further, the examiner disagrees with applicant’s assertion that the prior art teaches away from the claimed invention because conventional down-proof laminates inherently limit air and moisture transport. Such argument is not persuasive because it is relied on the generalized characteristic of so-called conventional down-proof laminates, rather than identifying any specific disclosure in Ly and Sakashita that teaches down-proof performance necessarily precludes the claimed level of air permeability and moisture vapor transmission.
In response to contention (2), Applicant's arguments have been carefully studied and fully considered but they are not found persuasive.
In the present case, it is noted the primary reference Ly does not specifically teach its backer layer effects the down proofing. Smith is relied upon in this regard. Smith teaches a multilayer composite fabric suitable for making protective garments (page 1, first para, page 6, second para) that includes a down-proof woven textile layer, i.e., effects down proofing (page 18, fifth para).
It is the examiner’s position that it would have been obvious to one of ordinary skill in the art to modify Ly in view the teachings of Smith, to select and include the down-proof woven textile layer as taught by Smith as the backer layer of the composite fabric of Ly, for the obvious benefit of providing the composite fabric with improved down proofing properties.
The examiner acknowledges the possibility of certain level performance tradeoffs for such modification to arrive at a baffle with overall improved performance such as having improved down proofing properties as taught by Smith. However, there is lack of any objective evidence demonstrating that incorporation of Smith’s down-proof fabric into Ly’s breathable composite would destroy or render inoperable Ly’s air and moisture permeability.
In response to contention (3), the asserted unexpected result of the instantly claimed down-proof baffle has been carefully studied and fully considered.
Applicant notes that “experimental data, if submitted, may demonstrate that the claimed composite achieves both down-proof resistance and measurable air/moisture permeability outside the performance range achievable by the prior art” (remarks, page 5, fourth para). However, it is noted that "the arguments of counsel cannot take the place of evidence in the record", In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965). It is the examiner's position that the arguments provided by the applicant must be supported by a declaration or affidavit. As set forth in MPEP 716.02(g), "the reason for requiring evidence in a declaration or affidavit form is to obtain the assurances that any statements or representations made are correct, as provided by 35 U.S.C. 24 and 18 U.S.C. 1001"
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 15-17 and 20-28 are rejected under 35 U.S.C. 103 as being unpatentable over Ly (US Pub. 2020/0009828) in view of WO2009/048504 to Smith (“Smith”) and further in view of JP2014-100843 to Sakashita et al. (“Sakashita”, see English translation attached).
Regarding independent claim 15 and claim 22, Ly teaches a down-proof baffle (the composite fabric baffle of Ly, Fig. 3A, para [0006] [0007] [0039]-[0046] [0048]) having a baffle shell (shell 330) formed from the composite material (Fig. 3A, Fig. 3B, para [0039]-[0046]), wherein the composite material comprises (the multilayer composite fabric material, para [0006] [0007] [0039]-[0046]):
- a membrane (the membrane 320, Fig. 3A, para [0039]-[0044]),
- the face layer (the upper layer 330, Fig. 3A, para [0039]-[0044]) disposed adjacent a first side of the membrane (Fig. 3A, the upper layer 330 is located adjacent to the first/upper side of the membrane 320, and is considered meeting the claimed limitations); and
- the backer layer (the lower layer 330, Fig. 3A, para [0039]-[0044]) disposed adjacent a second side of the membrane opposite the face layer (the lower layer 330 is located adjacent to the second/down side of the membrane 320 and is opposite to the face layer, and is considered meeting the claimed limitations).
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Ly teaches its composite material exhibits an air permeability of 0 to 5 CFM as measured using ASM D737 (para [0045]), which range overlaps with the instantly claimed range of greater than 0.25 cfm as measured using ASM D737. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05.
Ly does not specifically teach its backer layer effects the down proofing.
Smith teaches a multilayer composite fabric suitable for making protective garments (page 1, first para, page 6, second para) that includes a down-proof woven textile layer, i.e., effects down proofing (page 18, fifth para).
It would have been obvious to one of ordinary skill in the art to modify Ly in view the teachings of Smith, to select and include the down-proof woven textile layer as taught by Smith as the backer layer of the composite fabric of Ly, for the obvious benefit of providing the composite fabric with improved down proofing properties as taught by Smith, which would have arrived at a satisfactory baffle with improved down proofing properties.
Modified Ly does not specifically teach it’s the composite material’s water resistance and the moisture vapor transmission rate, and the specific fabric weight as claimed in instant claim 15 and claim 22.
Sakashita teaches a moisture-permeable waterproof composite fabric having a water resistance of at least 8000 mm H2O as measured by JISL 1092 (equivalent to AATCC 127) (para [0019] [0034]), which range overlaps with the instantly claimed range of hydrostatic water resistance of greater than 9000 mm. Sakashita teaches its moisture-permeable waterproof composite fabric has a moisture permeability of 8000 g/m2/day or more (i.e., equivalent to g/sqm/24hr) according to JIS L1099 A-1 method (para [0019], [0034]), which range overlaps with the instantly claimed range of greater than 8000 g/sqm/24hr. Sakashita teaches its moisture-permeable waterproof composite fabric comprising a base layer of warp knitted fabric of polyester or polyamide (nylon) adhesively laminated to a nanofiber layer produced via electrospinning (para [0040, 0042, 0059]), of which the fabric weight between 30 and 300 gsm (para [0030], [0039], [0051]), which range overlaps with the instantly claimed range of less than 200 gsm of claim 1, and which range overlaps with the instantly claimed range of between 90 gsm to 200 gsm of instant claim 22. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). MPEP 2144.05.
It would have been obvious to one of ordinary skill in the art to modify Ly in view the teachings of Rock, to select suitable composite fabric having suitable water resistance property and having suitable moisture vapor transmission rate (MVTR) and suitable fabric weight as taught by Sakashita (as discussed above, with overlapping ranges, respectively) depending on the intended end applications of the composite material, which would have arrived at a satisfactory baffle that meets the instantly claimed limitations. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.05.
Regarding claims 16 and 23, Ly teaches suitable material for the face layer (layer 330) includes nylon, polyester, cotton, wool (para [0044]), meeting the claimed limitation.
Regarding claims 17 and 24, Ly teaches suitable material for the backer layer (the other layer 330) includes nylon, polyester, elastane, cotton, wool (para [0044]), meeting the claimed limitation.
Regarding claims 20 and 27, in the down-proof baffle of Ly, Ly teaches the membrane (the spacer membrane 320, Fig. 3A) is connected/coupled to the face layer (the upper layer 330, see Fig. 3A, para [0039]-[0041]), meeting the claimed limitations.
Regarding claims 21 and 28, Ly teaches the down-proof baffle is configured to hold an insulative material (see Fig. 3A, para [0045] [0046], the hold insulation material in the cavity 340), meeting the claimed limitations.
Claim(s) 18-19 and 25-26 are rejected under 35 U.S.C. 103 as being unpatentable over Ly in view of Smith and Sakashita as applied to claims 15 and 22 above, further in view of JP2000073275 to Manabu et al. (“Manabu”).
The limitations of claims 15 and 22 are taught by Ly and Smith and Sakashita as discussed above.
Regarding claims 18-19 and 25-26, modified Ly does not teach the face layer and/or the backer layer (the upper layer 330 and the lower layer 330, Fig. 3A, para [0039]-[0044]) comprises dissolvable yarns.
Manabu teaches a composite fabric (para [0001]). Manabu teaches it is known in the art that a composite fabric yarn using a dissolvable fiber yarn in a core to form a fabric, and then dissolving the dissolvable fiber yarn in the core to impart elasticity (para [0005]).
It would have been obvious to one of ordinary skill in the art to modify the modified Ly in view the teachings of Manabu, to select suitable fabric material for the face layer and/or the backer layer (the upper layer 330 and the lower layer 330, Fig. 3A, para [0039]-[0044]) of the composite fabric of Ly, such as using fabric that comprises dissolvable yarns as taught by Manabu, for the benefit of fabric with improved elasticity as taught by Manabu (para [0005]), which would have arrived at a satisfactory baffle that meets the instantly claimed limitations, of claims 18-19. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.05.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to YAN LAN whose telephone number is (571)270-3687. The examiner can normally be reached Monday - Friday 7AM-4PM.
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/YAN LAN/ Primary Examiner, Art Unit 1782