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 .
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-4 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites, “the polyvinyl alcohol modified fish scale protein peptide powder is made by wraping fish scale protein peptide powder with polyvinyl alcohol” in lines 14-15. There is no support in the specification for this limitation. The specification states the PVA-modified fish scale protein peptide powder is made such that the PVA crosslinks with and wraps the fish scale protein peptide powder, as discussed in paragraph [0013]. There is no embodiment where the PVA-modified fish scale protein peptide powder is made only by wrapping the fish scale protein peptide powder with polyvinyl alcohol.
Regarding dependent claims 2-4, these claims do not remedy the deficiencies of parent claim 1 noted above, and are rejected for the same rationale.
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-4 and 6 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites, “the polyvinyl alcohol modified fish scale protein peptide powder is made by wraping fish scale protein peptide powder with polyvinyl alcohol” in lines 14-15. Firstly, it appears claim1 includes a typographical error and “wraping” should read “wrapping” in line 15.
Regarding dependent claims 2-4 and 6, these claims do not remedy the deficiencies of parent claim 1 noted above, and are rejected for the same rationale.
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, 4, and 6 rejected under 35 U.S.C. 103 as being unpatentable over Wang et al. (CN216864642U) (Wang) in view of Zhang et al. (CN114214747A) (Zhang) and Chen et al. (CN102978740A) (Chen).
Regarding claims 1 and 4
Wang teaches a double sided weft knitted fabric made of collagen nylon filament yarn and a spandex yarn. The presence of a collagen nylon fiber imparts skin-friendly function to the fabric. See, e.g., abstract and paragraphs [0001-0005], [0007], [0034], [0038], and [0062].
Wang does not explicitly teach the presence of a fish scale protein nylon drawn textured yarn made from PVA-modified fish scale protein peptide powder.
With respect to the difference, Zhang teaches a drawn textured yarn (DTY) comprising fish scale collagen peptide modified nylon 6 masterbatch. The fish scale collagen peptide modified nylon 6 DTY possesses a denier of 20D and a yarn count of 24F. The amount of collagen peptide powder in the masterbatch is 10-25% by mass. The amount of nylon-6 in the masterbatch is 72.5-89%. The fish scale collagen peptide modified nylon DTY yarn supports and promotes energy-saving, environmental protection, and efficient and economical utilization of resources. The fish scale collagen peptide nylon 6 masterbatch performs excellently with respect to mechanical properties and can provide a new material option for bio-based nylon 6 yarn. See, e.g., abstract and paragraphs [0002], [0006-0008], [0015-0016], [0068-0075], FIG. 3, and Tables 4-5.
Zhang and Wang are analogous art as they are both drawn to textiles made from a collagen nylon yarn.
In light of the motivation as provided by Zhang, it therefore would have been obvious to one of ordinary skill in the art to use the fish scale collagen peptide modified nylon draw texture yarn comprising 10-25% by mass of collagen peptide powder and 72.5-89% by mass of nylon-6 as the collagen nylon yarn of Wang, as Zhang teaches the fish scale protein nylon 6 masterbatch performs excellently and can provide a new material option for a bio-based nylon 6, and thereby arrive at the claimed invention.
With respect to the difference, Chen teaches a polyvinyl alcohol-modified collagen fiber for use in clothing applications. The polyvinyl alcohol-modified collagen fiber comprises 5-60 parts by weight of collagen and 40-95 parts by weight of polyvinyl alcohol. The polyvinyl alcohol-modified collagen fiber is formed by stirring a mixed solution of the collagen and the polyvinyl alcohol and adding a boric acid crosslinker. The polyvinyl alcohol-modified collagen fiber possesses high strength and high modulus. See, e.g., abstract and paragraphs [0006-0013] and [0062-0068].
Chen and Wang in view of Zhang are analogous art as they are both drawn to collagen fibers for clothing.
In light of the motivation as provided by Chen, it therefore would have been obvious to one of ordinary skill in the art to use polyvinyl alcohol to modify the fish scale collagen peptide of Wang in view of Zhang, such that the polyvinyl alcohol modified fish scale collagen peptide contains 40-95 parts by weight of polyvinyl alcohol and 5-60 parts by weight of collagen peptide, in order to provide high strength and high modulus, and thereby arrive at the claimed invention.
Regarding the limitation, “the polyvinyl alcohol modified fish scale protein peptide powder is made by wrapping fish scale protein peptide powder with polyvinyl alcohol” in lines 14-15, it should be noted that even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same or an obvious variant from a product of the prior art, the claim is unpatentable even though a different process made the prior product. In re Thorpe, 227 USPQ 964,966 (Fed. Cir. 1985).
In view of paragraphs [0013], [0018], and [0025] of Applicant’s specification, it appears the polyvinyl alcohol modified fish scale protein peptide powder is made by wrapping fish scale protein peptide powder with polyvinyl alcohol by mixing an aqueous solution of PVA with an aqueous solution of the fish scale protein peptide powder and then adding a boric acid solution.
Since Wang in view of Zhang and Chen uses substantially identical material and a substantially identical method as the present invention, it is the Examiner’s opinion the polyvinyl alcohol-modified fish scale collagen peptide possesses the structure of the polyvinyl alcohol wraps the fish scale collagen peptide.
Regarding the limitation, “a surface of the polyvinyl alcohol modified fish scale protein peptide powder is porous” in lines 15-16, it is noted the present claims are drawn to a skin-friendly fish scale protein modified nylon-spandex fabric. Limitations regarding the structure of an intermediate product are not germane to the present claim, especially as the polyvinyl alcohol modified fish scale protein powder is melted to form the masterbatch in view of paragraphs [0020-0025] of Applicant’s specification.
Although Wang in view of Zhang and Chen does not explicitly teach the claimed spinning process of the fish scale protein nylon DTY and the process of making the fish scale protein masterbatch, as presently claimed, it is noted that the present claims are drawn to a product and not drawn to a method of making. Thus, “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”, In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP 2113.
It appears the structural limitations required by the spinning process of the fish scale protein nylon DTY and the process of making the fish scale protein masterbatch, in view of Applicant’s specification, include the following:
The amount of fish scale protein peptide powder is about 0.4 to 3.4% by weight in the yarn.
(amount of fish scale protein peptide in the PVA-modified fish scale protein peptide powder)*(amount of PVA-modified fish scale protein peptide powder in the fish scale protein masterbatch)*(dosage of the fish scale protein masterbatch)*100 = amount of fish scale protein peptide in the yarn
First end point: 0.3*0.15*0.08*100=0.36=~0.4%
Second end point: 0.55*0.25*0.25*100=3.43=~3.4%
The amount of polyvinyl alcohol is about 0.5 to 4.4% by weight in the yarn.
(amount of polyvinyl alcohol in the PVA-modified fish scale protein peptide powder)*(amount of PVA-modified fish scale protein peptide powder in the fish scale protein masterbatch)*(dosage of the fish scale protein masterbatch)*100 = amount of polyvinyl alcohol in the yarn
First end point: 0.45*0.15*0.08*100=0.54=~0.5%
Second end point: 0.70*0.25*0.25*100=4.375=~4.4%
The amount of polyamide 6 is about 91 to 96.3% by weight in the yarn.
(amount of polyamide 6 in the fish scale protein masterbatch)*(dosage of the fish scale protein masterbatch)*100 + amount of polyamide 6 slices added to strew extruder = amount of polyamide 6 in the yarn
First end point: 0.75*0.08*100+85=91
Second end point: 0.85*0.25*100+75=96.25=~96.3
Wang in view of Zhang and Chen teaches the following amount of each component in the yarn:
The amount of fish scale collagen peptide is about 0.5 to 15% the yarn.
(amount of fish scale collagen peptide in the PVA-modified fish scale collagen peptide)*(amount of fish scale collagen peptide masterbatch in yarn)*100=amount of fish scale collagen peptide in yarn
First end point: 0.05*0.1*100=0.5%
Second end point: 0.6*0.25*100=15%
The amount of polyvinyl alcohol is about 4 to 23.4% by weight in the yarn.
(amount of polyvinyl alcohol in the PVA-modified fish scale collagen peptide)*(amount of fish scale collagen peptide masterbatch in yarn)*100=amount of polyvinyl alcohol in yarn
First end point: 0.4*0.1*100=4%
Second end point: 0.95*0.25*100=18.75=~23.4%
The amount of polyamide 6 is about 72.5 to 89% by weight in the yarn.
The amount of fish scale collagen peptide and polyvinyl alcohol taught by Wang in view of Zhang and Chen overlaps the amount in the claimed fish scale protein nylon DTY. It should be noted that 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). The existence of overlapping or encompassing ranges shifts the burden to Applicant to show that his invention would not have been obvious. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003).
The amount of polyamide 6 taught by Wang in view of Zhang and Chen falls outside of the amount in the claimed fish scale protein nylon DTY in claim 1. While the range of polyamide 6 in claim 1 and the prior art range does not overlap, a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985). See MPEP 2144.05. It is the Examiner’s opinion the fish scale protein nylon DTY of Wang in view of Zhang and Chen would have the same properties as the claimed fish scale protein nylon DTY as the amount of fish scale collagen peptide and the amount of polyvinyl alcohol falls within the range recited in claim 1.
Absent evidence of criticality regarding the presently claimed process and given that Wang in view of Zhang and Chen meets the requirements of the claimed product, including the amount of fish scale collagen peptide and polyvinyl alcohol in the yarn, Wang in view of Zhang and Chen clearly meets the requirements of the present claim.
Regarding claim 6
Wang in view of Zhang and Chen teaches all of the limitations of claim 1 above.
It should be noted that even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same or an obvious variant from a product of the prior art, the claim is unpatentable even though a different process made the prior product. In re Thorpe, 227 USPQ 964,966 (Fed. Cir. 1985). The burden has been shifted to the Applicant to show unobvious differences between the claimed product and the prior art product. In re Marosi, 218 USPQ 289,292 (Fed. Cir. 1983). For the reasons set forth in item #10 above, it is the Examiner’s opinion Wang in view of Zhang and Chen teaches a fish scale protein nylon drawn textured yarn meeting the structural requirements of the claims 1 and 6.
Claims 2-3 are rejected under 35 U.S.C. 103 as being unpatentable over Wang et al. (CN216864642U) (Wang) in view of Zhang et al. (CN114214747A) (Zhang) and Chen et al. (CN102978740A) (Chen), as applied in claim 1 above, and further in view of Liu et al. (CN109097900A) (Liu)
Regarding claim 2
Wang in view of Zhang and Chen teaches all of the limitations above, including the fabric being a double sided weft knit fabric, as discussed above. However, Wang in view of Zhang and Chen does not explicitly teach using Z-twisted and S-twisted yarns or the spandex yarn as a spacer yarn.
With respect to the difference, Liu teaches weft knit fabric having a double-sided sandwich structure, upper and lower yarns of the fabric are made of S-twisted and Z-twisted upper and lower yarns. Using S-twisted and Z-twisted upper and lower yarns improves the weft skew of the fabric surface and makes the fabric more uniform as well as provides excellent touch and anti-pilling performance. The intermediate yarn, or the spacer yarn, is made from spandex yarn. Using a spandex yarn possessing a denier of 30D as the intermediate yarn allows for excellent vertical and horizontal elasticity and stretch recovery. See, e.g., abstract and paragraphs [0004], [0006-0007], [0011-0013], and [0019].
Liu and Wang in view of Zhang and Chen are analogous art as they are both drawn to double structured weft knit fabrics for clothing.
In light of the motivation as provided by Liu, it therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to use a double-sided sandwich structure comprising Z-twisted and S-twisted fish scale collagen peptide nylon DTY as the upper and lower yarns of the fabric and a spandex yarn possessing 30D as the intermediate yarn of the weft knit fabric of Wang in view of Zhang and Chen, in order to improve weft skew, make the fabric more uniform, provide excellent touch and anti-pilling performance, and allow for excellent vertical and horizontal elasticity and stretch recovery, and thereby arrive at the claimed invention.
Regarding claim 3
Wang in view of Zhang, Chen, and Liu teaches all of the limitations of claim 2 above, including the fish scale collagen peptide modified nylon 6 DTY possesses a denier of 20D and a yarn count of 24F and the spandex yarn possesses a denier of 30 D, as discussed above.
Response to Arguments
In view of the amendments to the claims, the previous 35 U.S.C. 112(b) and 35 U.S.C. 112(d) rejections are withdrawn. However, the amendments to the claims necessitate a new set of 35 U.S.C. 112(a) and 35 U.S.C. 112(b) rejections.
It is agreed the previous 35 U.S.C. 103 rejection does not meet the presently claimed. Therefore, the previous 35 U.S.C. 103 rejection is withdrawn. However, the amendment necessitates a new set of rejections, as set forth above.
Applicant' s arguments with respect to Ye (CN101008110A) have been considered but are moot because the new ground of rejection does not rely on this reference.
Applicant's remaining arguments filed 10/24/2025 have been fully considered but they are not persuasive, as set forth below.
Applicant primarily argues a PVA-fish scale protein mixed solution does not meet the presently claimed as the relationship between PVA and collagen is a two-component parallel relationship, which is completely different from the encapsulation relationship between PVA and fish scale protein peptide powder in the present invention. This results in a different fiber structure. Applicant further argues Remarks, pages 5-6.
The Examiner respectfully disagrees, as follows:
Regarding the limitation, “the polyvinyl alcohol modified fish scale protein peptide powder is made by wrapping fish scale protein peptide powder with polyvinyl alcohol” in lines 14-15, it should be noted that even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same or an obvious variant from a product of the prior art, the claim is unpatentable even though a different process made the prior product. In re Thorpe, 227 USPQ 964,966 (Fed. Cir. 1985).
In view of paragraphs [0013], [0018], and [0025] of Applicant’s specification, it appears the polyvinyl alcohol modified fish scale protein peptide powder is made by wrapping fish scale protein peptide powder with polyvinyl alcohol by mixing an aqueous solution of PVA with an aqueous solution of the fish scale protein peptide powder and then adding a boric acid solution.
Chen teaches the polyvinyl alcohol-modified collagen fiber is formed by stirring a mixed solution of the collagen and the polyvinyl alcohol and adding a boric acid crosslinker. Paragraphs [0006-0013]. Since Chen teaches substantially identical material and substantially identical process as the present invention, including mixing an aqueous solution of PVA with an aqueous solution of collagen and then adding boric acid solution, it follows Chen teaches polyvinyl alcohol modified collagen, wherein the polyvinyl alcohol wraps the collagen.
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.
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/C.X.N./Examiner, Art Unit 1789
/MARLA D MCCONNELL/Supervisory Patent Examiner, Art Unit 1789