DETAILED ACTION
Claims 1-7 and 9-15 were rejected in the Office Action mailed 05/29/2025.
Applicant filed a response and amended claims 1 and 7 on 08/29/2025.
Claims 1-15 are pending, of which claim 8 is withdrawn.
Claims 1-7 and 9-15 are rejected.
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 .
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.
Claims 1-7 and 10-15 are rejected under 35 U.S.C. 103 as being unpatentable over Arvidson et al. (US 2013/0115839) (Arvidson) in view of Compton et al. (US 2013/0213208) (Compton) and Clerici (US 2018/0245887).
Regarding claims 1-2 and 12-13
Arvidson teaches a fibrous composite material for a ballistic resistant article comprising a first outer polymer film, a first fibrous layer in contact with the first outer polymer film, a central polymer film in contact with the first fibrous layer, a second fibrous layer in contact with the central polymer film, and a second outer polymer film in contact with the second fibrous layer. The first and second fibrous layer comprise a single ply of non-woven, non-overlapping fibers that are aligned in a unidirectional, substantially parallel array. The first and second fibrous layer are cross-plied at 0°/90°. Each of the single ply fibrous layers comprise fibers that are coated with a polymeric matrix material.. See, e.g., abstract, paragraphs [000-0014], [0023-0026], [0032-0033], [0039], [0041-0043], [0057] and FIG. 1.
Arvidson does not explicitly teach the inner polymeric film has a tensile modulus of at least 0.75 GPa (A) or the tensile strength of the first and second high-performance fibers (B).
With respect to the difference, Compton (A) teaches a ballistic-resistant composite comprising a plurality of ballistic fabric layers and a plurality of distinct films. The distinct film possesses an initial tensile modulus of at least 150,000 psi (i.e., about 1 GPa). The initial tensile modulus enhances the ballistic-resistant performance of the composite assembly. See, e.g., abstract and paragraphs [0001], [0079-0080], [0084], [0086], [0091], [0094], and [0118].
Compton and Arvidson are analogous art as they are both drawn to ballistic articles comprising composites.
In light of the disclosure of Compton, it therefore would have been obvious to one of ordinary skill in the art to use a film possessing an initial tensile modulus of at least about 1 GPa as the polymer films of Arvidson, in order to produce a ballistic article with predictable success, as Compton teaches its polyester film is suitable for a ballistic article, in addition to enhancing the ballistic-resistant performance of the composite material, and because it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability and desired characteristics, and thereby arrive at the claimed invention. In re Leshin, 227 F.2d 198 (CCPA 1960).
With respect to the difference, Clerici (B) teaches a ballistic resistant article comprising monolayers of unidirectionally oriented high-strength fibers having a tensile strength of at least 1.2 GPa. Using high strength fibers having a tensile strength of at least 1.2 GPa gives the sheets an even better ballistic performance. See, e.g., abstract and paragraphs [0001-0002], [0011-0014], [0017-0018], [0027], [0030],
Clerici and Arvidson in view of Compton are analogous art as they are both drawn to ballistic articles.
In light of the motivation as provided by Clerici, it therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to ensure the fibers of Arvidson in view of Compton are possess a tensile strength of at least 1.2 GPa, i.e., high-performance fibers, in order to ensure an even better ballistic performance, and thereby arrive at the claimed invention.
Although there is no disclosure that the test method of Clerici is in conformity with ASTM D882, given that Clerici discloses tensile strength as the presently claimed and the absence of evidence of the criticality of how tensile strength is measured, it is the examiner's position that the tensile strength disclosed by Clerici meets the claim limitation.
Regarding claims 3-4
Arvidson in view of Compton and Clerici teaches all of the limitations of claim 1 above. Arvidson further teaches particularly suitable fibers material for the fibrous layers include ultra-high molecular weight polyethylene fibers. Paragraph [0033].
Regarding claim 5
Arvidson in view of Compton and Clerici teaches all of the limitations of claim 1 above. Arvidson further teaches the polymer films are preferably very thin, having preferred thicknesses of form about 5 to 25 micron. Paragraph [0063].
Regarding claim 6
Arvidson in view of Compton and Clerici teaches all of the limitations of claim 1 above. Arvidson further teaches suitable polymer for the polymer film include polyethylene, polyamides, and polyesters. Paragraph [0057]. Compton further teaches suitable materials of the distinct film possessing an initial tensile modulus of at least about 1 GPa include polyethylene, polyamides, and polyesters. Paragraph [0046-0047], [0069-0070], and [0079-0080].
It therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to use polyethylene, polyamide, or polyester as the material of the polymer films of Arvidson in view of Compton and Clerici, in order to produce a ballistic article with predictable success, and because it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability and desired characteristics, and thereby arrive at the claimed invention. In re Leshin, 227 F.2d 198 (CCPA 1960).
Regarding claim 7
Arvidson in view of Compton and Clerici teaches all of the limitations of claim 6 above. Arvidson further teaches suitable polymer for the polymer film includes polyester. Paragraph [0057]. Compton further teaches suitable materials of the distinct film possessing an initial tensile modulus of at least about 1 GPa includes polyesters including poly(ethylene terephthalate) (“PET”), poly(butylene terephthalate) (“PBT”), and poly(ethylene naphthalate) (“PEN”) . Paragraphs [0079-0080] and [0084].
It therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to use PET, PBT, or PEN as the material of the polymer films of Arvidson in view of Compton and Clerici, in order to produce a ballistic article with predictable success, and because it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability and desired characteristics, and thereby arrive at the claimed invention. In re Leshin, 227 F.2d 198 (CCPA 1960).
Regarding claims 10-11
Arvidson in view of Compton and Clerici teaches all of the limitations of claim 1 above. Arvidson further teaches the matrix material comprise polyurethane. Paragraphs [0045-0048].
Regarding claim 14
Arvidson in view of Compton and Clerici teaches all of the limitations of claim 12 above. Arvidson further teaches suitable polymer for the polymer film includes polyurethane. Paragraph [0057].
It therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to use polyurethane as the material of the outer polymer films of Arvidson in view of Compton, in order to produce a ballistic article with predictable success, and because it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability and desired characteristics, and thereby arrive at the claimed invention. In re Leshin, 227 F.2d 198 (CCPA 1960).
Regarding claim 15
Arvidson in view of Compton and Clerici teaches all of the limitations of claim 1 above. Arvidson further teaches clothing comprising the composite material. Paragraph [0065].
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Arvidson et al. (US 2013/0115839) (Arvidson) in view of Compton et al. (US 2013/0213208) (Compton) and Clerici (US 2018/0245887), as applied in claim 1 above, and further in view of Lampo et al. (US 2014/0216652) (Lampo).
Regarding claim 9
Arvidson in view of Compton and Clerici teaches all of the limitations of claim 1 above. Arvidson further teaches the polymer films inhibits liquid wicking. Paragraph [0008].
With respect to the difference, Lampo teaches a ballistic-resistant article comprising a film that provides waterproofness and resistant against penetration of toxic chemicals. The film provides protection to underlying ballistic-resistant components. See, e.g., abstract and paragraphs [0008] and [0034-0035].
Lampo and Arvidson in view of Compton and Clerici are analogous art as they are both drawn to ballistic-resistant articles.
In light of the motivation as provided by Lampo, it therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the polymer films of Arvidson in view of Compton and Clerici, to ensure they are waterproof, in order to provide protection to underlying components and ensure a low weight of the fabrics after being submerged in water, and thereby arrive at the claimed invention.
Response to Arguments
The previous rejection of claims 1-7 and 9-15 are substantially maintained. Any modification to the rejection is in response to the amendment of claim 1.
In view of the amendments, the previous claim objection is withdrawn.
In view of the response on page 6 of the remarks filed 08/29/2025, the previous 35 U.S.C. 112(b) rejection is withdrawn.
Applicant's arguments filed 08/29/2025 have been fully considered but they are not persuasive, as set forth below.
Applicant primarily argues the present invention is concerned with composites that can be used in various end uses as recited in claim 15. The purpose of the claimed invention is therefore to provide a lightweight composite with improved mechanical performance, in particular improved tensile strength. Conversely, Arvidson is concerned with a material with improved liquid resistance to maintain ballistic performance. Remarks, page 7.
The Examiner respectfully disagrees, as follows:
Firstly, the present invention being used for a different purpose does not make the claims patentable over the prior art. The fact remains, for the reasons set forth in the Office Action mailed 05/29/2025 and for the reasons set forth above, the prior art reads on the claims 1-7 and 9-15.
Secondly, Arvidson teaches its ballistic article is used in garments, which reads on claim 15 and the list of end uses recited on page 7. While Arvidson may be concerned with a different problem, i.e., improved liquid resistance, Arvidson still reads on the lightweight composite.
Applicant further argues Arvidson fails to teach the inner polymeric film has a tensile modulus of at least 0.75 GPa. Remarks, page 7-8.
The Examiner respectfully disagrees, as follows:
One cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant primarily argues that Arvidson does not expressly teach the claimed tensile modulus of the inner polymeric film. This argument merely agrees with the basis for the rejection under 35 U.S.C. 103(a), which admits that Arvidson does not disclose the entire claimed invention. Rather, Compton is relied upon to teach claimed elements missing from Arvidson. See pages 4-5 of the Office Action mailed 05/29/2025.
Applicant further argues it was surprisingly found that the achieved tensile strength of the composite is higher than the expected contribution of the polymeric film. The inner polymeric film locates between two monolayers with fibers unexpectedly yields a high strength of the composite. Remarks, pages 8-9.
The Examiner respectfully disagrees, as follows:
Overcoming a rejection based on unexpected results requires the combination of three different elements: (i) the results must fairly compare with the closest prior art in an affidavit or declaration under 37 CFR 1.132, (ii) the claims must be commensurate in scope, and (iii) the results must truly be unexpected. MPEP 716.02. It is Applicants’ burden to explain why their proffered results are considered to be unexpected, are considered to be commensurate in scope with the claimed subject matter, and are considered to be the consequence of a comparison to the closest prior art. See, e.g., In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972).
Firstly, the results must fairly compare with the closest prior art in an affidavit or declaration under 37 CFR 1.132.
Secondly, the data does not provide support for the claimed range. Applicant has provided no data outside of the claimed range to compare to.
Thirdly, the data is not commensurate in scope with the claim. Claim 1 broadly recites any type of polymeric film, while the data specifically uses a PEN, PET, or Tedlar film. Claim 1 broadly recites any type of high-performance fiber and any type of matrix material, while the data specifically uses an UHMWPE fiber and PUR matrix.
Applicant further argues Compton does not teach the use of a film with a tensile strength of at least 0.75 GPa. Instead, Compton teaches the films should stretch relatively easily at the initial impact of a projectile to adopt the shape of the impact without fracturing. This attribute is believed to be reflected by the film having a relatively low initial tensile modulus. Therefore, Compton teaches away from films with high initial modulus. Remarks, page 10.
The Examiner respectfully disagrees, as follows:
Firstly, Compton teaches in paragraph [0092] each distinct film has an initial tensile modulus of at least 150,000 psi (i.e., about 1 GPa). Following paragraph [0092], paragraph [0094] states: “Applicants believe that the distinct films of the plurality of distinct films may enhance the ballistic-resistance performance of the composite assembly when the distinct films start to stretch relatively easily at the initial impact of the projectile bullet to adopt the shape of the impact without fracturing. This attribute is believed to be reflected by the distinct film having a relatively low initial tensile modulus.” The fact remains Compton teaches an initial tensile modulus of at least 150,000 psi and attributes the initial tensile modulus to an enhanced ballistic resistant performance. Terms such as “low” and “high” are relative terms. Applicant has assigned 150,000 psi as a “high” tensile modulus, however this is subjective, not absolute. The fact remains Compton teaches the distinct film possessing the initial tensile modulus of at least 150,000 psi and states the film is capable of enhancing ballistic-resistance performance. There is no teaching or statement in Compton that a film possessing a tensile modulus of at least 150,000 psi is considered to have a high tensile modulus or incapable of providing the enhanced ballistic resistance performance.
Secondly, Compton does not criticize, discredit, or otherwise discourage a film possessing a tensile modulus of at least 150,000 psi and the prior art references do not expressly exclude their combination. See MPEP 2123. Therefore, Compton does not teach away from a film possessing a tensile modulus of at least 150,00 psi.
Applicant further argues selecting the value 150,000 form paragraph [0091] of Compton can only be done by hindsight. Applicant argues one of ordinary skill in the art prompted with the teaching of Compton would choose a film with a low initial modulus, but at least 800 psi, and would not be motivated to select a film with a value of 108778 psi, relating to 0.75 GPa. Remarks, pages 10-11.
The Examiner respectfully disagrees, as follows:
Firstly, in response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Further, it is the Examiner’s position that hindsight was not used given that the motivation to combine Compton with Arvidson comes from Compton itself, namely, in order to enhance ballistic resistance performance, as set forth above and on page 5 of the Office Action mailed 05/29/2025.
The fact remains Compton teaches an initial tensile modulus of at least 150,000 psi and attributes the initial tensile modulus to an enhanced ballistic resistant performance. Therefore, one of ordinary skill in the art would look to Compton to modify the tensile modulus of the film of Arvidson.
Conclusion
Applicant's amendment necessitated any new grounds 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTINE X NISULA whose telephone number is (571)272-2598. The examiner can normally be reached Mon - Fri 9:30 - 5:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Marla McConnell can be reached at (571) 270-7692. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/C.X.N./Examiner, Art Unit 1789
/MARLA D MCCONNELL/Supervisory Patent Examiner, Art Unit 1789