DETAILED ACTION
Claims 1-6 and 20 were rejected in the Office Action mailed 10/01/2025.
Applicant filed an after final amendment on 11/19/2025, which was not entered on 12/12/2025.
Applicant filed a request for continued examination and amended claim 1 on 12/29/2025
Claims 1-6, 8-10, 14-15, and 20 are pending, of which claims 8-10 and 14-15 are withdrawn.
Claims 1-6 and 20 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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 12/29/2025 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.
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, 5, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Nagahashi et al. (JP2011256495) (Nagahashi) in view of Zhang et al. (US 2006/0148356) (Zhang), Andriyani et al. AU2018204530) (Andriyani), and Emden et al. (US 2008/0096001) (Emden).
The Examiner has provided a machine translation of Nagahashi et al. (JP2011256495) (Nagahashi) and Andriyani et al. AU2018204530) (Andriyani). Citations to these references may be found in the provided machine translations.
Regarding claims 1 and 20
Nagahashi teaches a water absorptive fabric and a garment, such as underwear, comprising the water absorptive fabric. The water absorptive fabric is a double knit fabric, also known as an interlock knit fabric, including a surface layer and a rear surface layer. The water absorptive fabric instantaneously absorbs water when water droplets are dropped on the rear surface layer and moves and diffuses the water to the surface layer. In other words, the water absorptive fabric is a moisture wicking layer. The surface layer is composed of hydrophilic yarn and the rear surface layer is composed of hydrophobic and hydrophilic yarn. The rear surface layer is the surface adjacent to the skin of a wearer. See, e.g., abstract and paragraphs [0001], [0007], [0011-0012], [0022], and [0024-0026] and claim 1. Given the fabric is an interlock knit fabric and the surface layer comprises only hydrophilic yarn, it follows the surface layer forms an interlock utilizing only hydrophilic yarns.
Nagahashi does not explicitly teach the double knit fabric is constructed of cotton yarn (A), the rear surface layer possessing an eyelet mesh (B), or the presence of an interlocking yarn interlocking the surface and rear surface layer (C).
With respect to the difference, Zhang (A) teaches a quick-drying pure cotton fabric whose two faces have different properties: hydrophilicity and hydrophobicity. The cotton fabric is a double knit fabric constructed from yarn, wherein a first surface of the knit fabric utilizes both hydrophilic and hydrophobic yarns and the second surface of the knit fabric utilizes only hydrophilic yarns. The hydrophobic yarns and hydrophilic yarns both comprise cotton. Using 100% pure cotton material allows for a very good hand feel and superior comfort when worn. See, e.g., abstract and paragraphs [0001], [0010-0011], [0013], [0015-0017], and [0038].
Zhang and Nagahashi are analogous art as they are both drawn to double knit fabric providing surfaces with different properties.
It therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to use cotton to form the hydrophilic yarn and the hydrophobic yarn of Nagahashi, in order to provide very good hand feel and superior comfort to when worn, and thereby arrive at the claimed invention.
With respect to the difference, Andriyani (B) teaches an innermost layer for clothing is a knitted open construction to increase air permeability in order to enhance wicking properties. The knitted open construction is an eyelet mesh stitch. See, e.g., abstract and page 3, lines 3-8 and page 4, lines 16-23.
Andriyani and Nagahashi in view of Zhang are analogous art as they are both drawn to wicking layers for clothing.
In light of the motivation as provided by Andriyani, it therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to use an eyelet mesh stitch as the rear surface layer of the double knit fabric of Nagahashi in view of Zhang, in order to enhance the wicking properties of the innermost layer of clothing, and thereby arrive at the claimed invention.
With respect to the difference, Emden (C) teaches a breathable fabric for producing clothing, such as underwear. The fabric is a double-knit fabric comprising a binder yarn, corresponding to an interlocking yarn, integrally knitted with both fabrics binding them together. The binder yarn makes the fabric lighter and reduces the pockets of air in the fabric. The binder yarn is elastane and adds flexibility. See, e.g., abstract and paragraphs [0001], [0033-034], [0072-0073], [0080-0082], [0134], [0160], and [0173].
Emden and Nagahashi in view of Zhang and Andriyani are analogous art as they are both drawn to wicking layers for clothing.
In light of the motivation as provided by Emden, 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 binder yarn comprising elastane to integrally knit the surface layer and rear surface layer of Nagahashi in view of Zhang and Andriyani, in order to produce a lighter fabric with reduced pockets of air and add flexibility, and thereby arrive at the claimed invention.
Since the material of the binder yarn, corresponding to the interlocking yarn, of Nagahashi in view of Zhang, Andriyani, and Emden is elastane, it follows the elastane yarn provides the water absorptive fabric at least one-way stretch. Since the binder yarn integrally knits the surface layer and the rear surface layer, it follows the technical front and technical back are interlocked by the binder yarn.
Given rear surface layer of the absorptive fabric of Nagahashi in view of Zhang, Andriyani, and Emden is an eyelet mesh, it follows the eyelet openings are formed by a tuck stitch being held in a repeated pattern to expose the underlying hydrophilic yarns of the surface layer and wicks moisture away from the surface layer (i.e., through increased air permeability). It is noted the limitation, “formed by a tuck stitch being held in a repeated pattern” is a product-by-process limitation. It is noted that the present claims are drawn to a product and not drawn to a method of making. Absent evidence of criticality regarding the presently claimed process and given that Nagahashi in view of Zhang, Andriyani, and Emden meets the requirements of the claimed product (i.e., eyelet mesh), Nagahashi in view of Zhang, Andriyani, and Emden clearly meets the requirements of the present claim.
The rear surface layer of Nagahashi in view of Zhang, Andriyani, and Emden corresponds to a technical face and the surface layer of Nagahashi in view of Zhang, Andriyani, and Emden corresponds to a technical back.
Regarding claim 5
Nagahashi in view of Zhang, Andriyani, and Emden teaches all of the limitations of claim 1 above, including the rear surface layer comprises hydrophilic and hydrophobic yarn. It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to choose a hydrophobic yarn to form the held tuck stitch of Nagahashi in view of Zhang, Andriyani, and Emden from a finite number of identified, predictable solutions for material to form the held tuck stitch (i.e., either hydrophilic yarn or hydrophobic yarn is used to form the held tuck stitch), and thereby arrive at the claimed invention.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Nagahashi et al. (JP2011256495) (Nagahashi) in view of Zhang et al. (US 2006/0148356) (Zhang), Andriyani et al. AU2018204530) (Andriyani), and, as applied in claim 1 above, and further in view of Convert et al. (WO2013144490) (Convert).
The Examiner has provided a machine translation of Convert et al. (WO2013144490) (Convert). Citations to these references may be found in the provided machine translations.
Regarding claim 2
Nagahashi in view of Zhang, Andriyani, and Emden teaches all of the limitations of claim 1 above. Nagahashi does not explicitly teach the elastane ahs odor absorption properties.
With respect to the difference, Convert teaches a double knit fabric comprising a central layer arranged between an inner and outer layer. The central layer comprises one or more antibacterial and/or antifungal treated elastic yarns. The elastic threads are preferably made of elastane. The double knit fabric functions by wicking sweat from the inner layer, through the central layer, and transporting the sweat to the outer layer. Sweat absorbed by the inner layer contacts the antibacterial and/or antifungal treated elastic yarns. Bacteria and/or fungi in the sweat is destroyed or prevented from proliferating, therefore odor and stains are prevented. Therefore, lifespan of the fabric is improved and washing is delayed. See, e.g., abstract and paragraphs [0015], [0017], [0019-0020], [0023-0026], [0030-0031], [0050], and [0052].
Convert and Nagahashi in view of Zhang, Andriyani, and Emden are analogous art as they are both drawn to wicking layers comprising double knit fabrics.
In light of the motivation as provided by Convert, it therefore would have been obvious to one of ordinary skill in the art before the effective filing date to use antibacterial and/or antifungal treated elastane yarns as the binder yarns of Nagahashi in view of Zhang, Andriyani, and Emden, in order to provide the water absorptive fabric the ability to prevent odor (i.e., odor absorption) and stains in addition to improving lifespan of the fabric, and thereby arrive at the claimed invention.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Nagahashi et al. (JP2011256495) (Nagahashi) in view of Zhang et al. (US 2006/0148356) (Zhang), Andriyani et al. AU2018204530) (Andriyani), Emden et al. (US 2008/0096001) (Emden), and Convert et al. (WO2013144490) (Convert), as applied in claim 2 above, and further in view of Holcombe et al. (US 2007/0093162) (Holcombe).
Regarding claim 3
Nagahashi in view of Zhang, Andriyani, Emden, and Convert teaches all of the limitations of claim 2 above. Nagahashi teaches the hydrophobic yarn is made hydrophobic by chemical treatment. Paragraphs [0018-0019]. However, Nagahashi does not teach the amount of cotton yarn chemically treated to make it hydrophobic.
With respect to the difference, Holcombe teaches fabric with improved wicking of liquid from an inner face to an outer face. The ratio of hydrophilic to hydrophobic yarns on a mass basis ranges from 60:40 to 80:20. Managing the ratio of hydrophobic to hydrophilic yarns optimizes the wicking behavior and liquid storage capacity of the fabric. See, e.g., abstract and paragraphs [0035-0036], [0039], [0047], and [0116].
Holcombe and Nagahashi in view of Zhang, Andriyani, Emden, and Convert are analogous art as they are both drawn to wicking fabrics for clothing.
Although there are no disclosures on the amounts of hydrophobic yarn as presently claimed, it has long been an axiom of United States patent law that it is not inventive to discover the optimum or workable ranges of result-effective variables by routine experimentation. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003) ("The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages."); In re Boesch, 617 F.2d 272, 276 (CCPA 1980) ("[D]iscovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art."); In re Aller, 220 F.2d 454, 456 (CCPA 1955) ("[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation."). "Only if the 'results of optimizing a variable' are 'unexpectedly good' can a patent be obtained for the claimed critical range." In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (quoting In re Antonie, 559 F.2d 618, 620 (CCPA 1977)).
At the time of the invention, it would have been obvious to one of ordinary skill in the art to vary the amounts of hydrophobic cotton yarn, including over the amounts presently claimed, in order to optimize the wicking behavior and liquid storage capacity, and thereby arrive at the claimed invention.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Nagahashi et al. (JP2011256495) (Nagahashi) in view of Zhang et al. (US 2006/0148356) (Zhang), Andriyani et al. AU2018204530) (Andriyani), and Emden et al. (US 2008/0096001) (Emden), as applied in claim 1 above, and further in view of Xing et al. (US 2019/0234013) (Xing).
Regarding claim 4
Nagahashi in view of Zhang, Andriyani, and Emden teaches all of the limitations of claim 1 above. Nagahashi does not explicitly teach the rear surface layer is a 2 course repeat of 1 course hydrophilic yarn x 1 course hydrophobic yarn.
With respect to the difference, Xing teaches a fabric with improved moisture control. The fabric comprises an inner surface with hydrophobic and hydrophilic regions, where the hydrophilic regions can form a pattern, allowing moisture to collect and move through the pattern, and the hydrophobic regions prevent the whole inner surface from becoming moist. The pattern reduces cling to the wearer and facilitates quicker drying. Each course of the inner layer alternates hydrophobic and hydrophilic yarns to produce a pattern. See, e.g., abstract and paragraphs [0016], [0040], and [0096].
Xing and Nagahashi in view of Zhang, Andriyani, and Emden are analogous art as they are both drawn to moisture managing fabrics for clothing.
In light of the motivation as provided by Xing, 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 pattern of a 2 course repeat of 1 course hydrophilic yarn x 1 course hydrophobic yarn as the pattern of the rear surface layer of Nagahashi in view of Zhang, Andriyani, and Emden, in order to allow moisture to collect and move through the pattern, prevent the whole inner surface from becoming moist, reduce clinging of the garment to the wearer, and facilitate quicker drying, and thereby arrive at the claimed invention.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Nagahashi et al. (JP2011256495) (Nagahashi) in view of Zhang et al. (US 2006/0148356) (Zhang), Andriyani et al. AU2018204530) (Andriyani), and Emden et al. (US 2008/0096001) (Emden), as applied in claim 1 above, and further in view of Dunbar et al. (US 2014/0039432) (Dunbar).
Regarding claim 6
Nagahashi in view of Zhang, Andriyani, and Emden teaches all of the limitations of claim 1 above. Nagahashi does not explicitly teach the presence of a moisture impermeable layer.
With respect to the difference, Dunbar teaches an underwear including a multilayer leak-proof pad to wick moisture, impede bacteria, prevent leaks, and resist stain. The multilayer leakproof pad comprises an innermost wicking layer and an outer moisture impermeable layer. The moisture impermeable layer creates a leak-proof barrier preventing leakage. See, e.g., abstract and paragraphs [0008-0009], [0029], [0033], and Fig. 2.
Dunbar and Nagahashi in view of Zhang, Andriyani, and Emden are analogous art as they are both drawn to underwear comprising moisture wicking layers.
In light of the motivation as provided by Dunbar, 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 underwear of Nagahashi in view of Zhang, Andriyani, and Emden to include a moisture impermeable layer in order to create a leak-proof barrier for preventing leakage, and thereby arrive at the claimed invention.
Response to Arguments
In view of the arguments set forth on pages 6-7 regarding Convert, it is agreed the previously presented 35 U.S.C. 103 rejection does not meet the presently claimed. Therefore, the previously presented 35 U.S.C. 103 rejection is withdrawn. Upon further search and consideration, a new rejection has come to the attention of the Examiner, therefore a new set of 35 U.S.C. 103 rejections is set forth above.
Applicant's arguments filed 11/19/2025 have been fully considered but they are not persuasive, as set forth below.
Applicant primarily argues Andriyani is not relevant to a person of ordinary skill in the art in view of the cited references. There is no teaching or suggestion in Nagahashi, Zhang, Andriyani, or Convert to prompt a person of ordinary skill in the art to consider implementing this idea nor on how the person of ordinary skill would in fact implement this idea. The open mesh inner layer of Andriyani is a single layer fabric, not a double-knit (interlock) fabric. Applicant argues there is no motivation to select and combine all the specific features of Nagahashi, Zhang, and Convert with the idea taught by Andriyani (e.g., a single layer mesh fabric) or synthesize the idea of Andriyani into a new form which is compatible with a double-knit fabric. Applicant argues these steps can only be achieved by impermissible hindsight. Modifying a double layer fabric so that one face includes an eyelet mesh is not an obvious task and the cited references lack direction as to how this is achieved. Remarks, pages 8-9.
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).
It is the Examiner’s position that hindsight was not used given that the motivation to combine Andriyani with Nagahashi in view of Zhang comes from Andriyani itself, namely, in order to enhance the wicking properties of the innermost layer of clothing by increasing air permeability, as set above and on pages 4-5 of the rejection mailed 10/01/2025. As discussed in the rejection above and mailed 10/01/2025, the fact remains both Andriyani and Nagahashi are drawn to knitted fabrics possessing a wicking function for use in clothing, more specifically innerwear such as underwear and bras. Since the fabric of Nagahashi is knitted and the fabric of Andriyani is knitted, and since both fabrics are intended to form clothing, specifically innerwear, it follows one of ordinary skill in the art before the effective filing date of the invention would look to Andriyani to modify the rear surface layer, corresponding to the innermost layer, for the benefit of enhanced wicking, a desirable benefit to Nagahashi.
Secondly, 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 regarding modifying a double-knit fabric to include an eyelet mesh stitch is not obvious 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”. It is the Examiner’s opinion one of ordinary skill in the art would be capable of modifying the double knit fabric to include an eyelet mesh stitch on one of it surfaces.
Conclusion
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