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 Arguments
Applicant's arguments filed 27 March 2026 have been fully considered but they are not persuasive.
In response to Applicant’s argument that Holcombe discloses the hydrophilic yarns as not part of the inner face, it is noted that while Holcombe defines the inner face of the fabric in a specific way, the structure shown by Holcombe in figure 1 still anticipates the claims as presently written regardless of what Holcombe indicates to be a face. Holcombe discloses that the hydrophilic yarns 12 are exposed to the inner face 10 such that liquid can contact them as it flows through the inner face following arrows 30, as shown in figure 1 and described in paragraph [0122]. The terms “technical face” and “inner face” do not have clear technical definitions in the art, and therefore are given their broadest reasonable interpretations. The hydrophilic fibers 12 of Holcombe are considered to be part of the technical face of the fabric because they are exposed to a portion of the inner side of the fabric, as shown in figure 1, and are capable of contacting fluid exposed to the inner side and wicking the fluid through to the outer side 20, or technical back, of the fabric, as disclosed in paragraph [0122].
In response to Applicant’s argument that Holcombe does not disclose eyelet openings on the technical face, but only on the back, of the fabric, it is noted that Holcombe shows in figure 1 openings on the face 10 of the fabric where arrows 30 indicate fluid is able to enter. Holcombe therefore discloses openings on both the face and the back of the fabric, and anticipates the claims as presently written.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-3 and 5 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Holcombe et al. (2007/0093162).
With respect to claim 1, Holcombe discloses a moisture wicking layer, as shown in figure 1, for incorporation into a gusset of a protective garment, as disclosed in paragraph [0116]. The moisture wicking layer is a double knit fabric constructed from yarn, as disclosed in paragraph [0137], wherein a first portion of the yarns are hydrophilic and a second portion of the yarns are hydrophobic, as disclosed in paragraph [0007], where by a technical face 10 of the fabric forms an eyelet mesh, as shown in figure 1, utilizing both hydrophobic and hydrophilic fibers, as disclosed in paragraph [0123]. A technical back 20 of the fabric forms an interlock, as shown in figure 1, utilizing only hydrophilic yarns, as disclosed in paragraph [0123]. The hydrophobic yarns 11 are only outwardly present to the technical face 10 of the fabric, as shown in figure 1. The technical face 10 forms eyelet openings 13 formed by a tuck stitch being held in a repeated pattern, as shown in figure 1, to expose the underlying hydrophilic yarn 12 of the technical back 20 to wick moisture 30 away from the technical face 10.
With respect to claim 2, the moisture wicking layer comprises an absorbent cotton yarn, as disclosed in paragraphs [0017] and [0134].
With respect to claim 3, approximately 25% of the cotton yarn is chemically treated to make it hydrophobic, as disclosed in paragraphs [0027] and [0036].
With respect to claim 5, the tuck stitch being held is the hydrophobic yarn 11, as shown in figure 1.
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) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Holcombe et al. (2007/0093162).
With respect to claim 4, Holcombe discloses all aspects of the claimed invention with the exception of the technical face being a 2 course repeat of 1 course hydrophilic yarn x 1 course hydrophobic yarn. The present claim is drawn to an article of manufacture, a moisture wicking layer, and not the process of manufacture (i.e. the knitting pattern), and therefore the claim is considered to comprise a product-by-process limitation. Holcombe discloses the claimed final product, a moisture wicking layer having a technical face having both hydrophobic and hydrophilic yarns. The knitting pattern does not provide an obvious difference to the structure or function of the layer. It would therefore have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to make the technical face of Holcombe with a 2 course repeat of 1 course hydrophilic yarn x 1 course hydrophobic yarn, since it has been held that the claim recites only process limitations, it is the patentability of the product and not of the process that must be established (see MPEP 2113).
Claim(s) 6, 8, 10, 14, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yip et al. (11,154,431) in view of Holcombe et al. (2007/0093162).
With respect to claim 6, Yip discloses a gusset 11 for a protective garment 10, as shown in figure 1, comprising a moisture wicking layer 24, a moisture absorbing layer 26, and a moisture impermeable layer 28, as shown in figure 3.
Yip discloses all aspects of the claimed invention with the exception of the moisture wicking layer being the layer according to claim 1. Holcombe discloses the moisture wicking layer according to claim 1, as described in the rejection of claim 1 above. Holcombe teaches that the moisture wicking layer according to claim 1 achieves improved wicking to keep the wearer of an undergarment dry and comfortable. It would therefore have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to provide the gusset of Yip with the moisture wicking layer of Holcombe to keep the wearer of the garment dry and comfortable.
With respect to claim 8, Yip discloses the moisture absorbing layer includes a terry fabric knit made from synthetic fibers, as disclosed in column 11, lines 16-20. Terry fabric inherently comprises sinker loops and plush loops on at least one side. Yip discloses all aspects of the claim with the exception of the plush loops being made from fibers treated with a hydrolyzing enzyme that splits them into fibrils. The present claim is drawn to an article of manufacture, a gusset, and not the process of manufacture, and therefore the claim limitation is considered to comprise a product-by-process limitation. Yip discloses the claimed final product, a moisture absorbing layer having plush loops made from synthetic fibers. It would therefore have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to treat the fibers of Yip with a hydrolyzing enzyme that splits them into fibrils, since it has been held that the claim recites only process limitations, it is the patentability of the product and not of the process that must be established (see MPEP 2113).
With respect to claim 10, Yip discloses laminating the moisture absorbing layer 26 with a moisture impermeable sheet 28, as shown in figure 3.
With respect to claim 14, Yip discloses the gusset according to claim 6, and further discloses the moisture impermeable layer 28 includes a base fabric knit laminated with a polyurethane sheet, as disclosed in column 11, lines 54-61.
With respect to claim 20, Yip discloses a garment 10 comprising the gusset 11 of claim 6, as shown in figure 1 and described in the rejection of claim 6 above.
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yip et al. (11,154,431) in view of Holcombe et al. (2007/0093162), and further in view of Yamamoto et al. (2005/0159721).
With respect to claim 15, modified Yip discloses all aspects of the claimed invention with the exception of the base fabric knit being a polyester jersey. Yip discloses in column 11, lines 56-58, that the base fabric knit is polyester, but does not disclose a jersey fabric.
Yamamoto teaches the use of polyester jersey as the base fabric knit of the moisture impermeable layer of a gusset for an protective garment, as disclosed in paragraph [0066]. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to make the base knit polyester fabric of Yip a polyester jersey, as taught by Yamamoto, to achieve the predictable result of using a known material in a known product.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LYNNE ANDERSON whose telephone number is (571)272-4932. The examiner can normally be reached Monday-Friday 10-6.
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/CATHARINE L ANDERSON/Primary Examiner, Art Unit 3781
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