DETAILED ACTION
Response to Amendments
This Office Action is in response to the amendment filed 03/11/2026. Claims 1-19 are acknowledged as pending with claims 1, 3, 4, and 6 being currently amended and claims 10-19 being new.
The rejections under 35 U.S.C. 112(b) and 102 are withdrawn as having been overcome by the amendment. New rejections necessitated by the amendment are presented below.
Response to Arguments
Applicant’s arguments with respect to the rejections under 35 U.S.C. 102 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior art rejection of record for any teaching or matter specifically challenged in the argument.
Applicant's arguments filed 03/11/2026 with respect to the rejections under 35 U.S.C. 103 have been fully considered but they are not persuasive.
Regarding the rejections under 35 U.S.C. 103, applicant argues that the superiority of a property shared with the prior art is evidence of nonobvious. Nevertheless, it should be emphasized that applicants have the burden of explaining the data in any declaration they proffer as evidence of non-obviousness and identifying the cause of the unexpectedly superior activity or property compared to the prior art. See MPEP 716.02(b). Merely presenting the data (as depicted in Tables 1 and 2) does not constitute sufficient support for the assertion of unexpected results. Applicant additionally states that the prior art does not address a change in sleep quality due to the inclusion of diamond and platinum nanoparticles. As discussed below, the combination of Vissman et al. and Fujimura et al. discusses the use of such particles for sleep quality improvement.
Therefore, the arguments are not persuasive and the rejection is maintained.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 2-3 and 7-8 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claims 2 and 7 recite the limitation, "the nanoparticles are diamond nanoparticles and platinum nanoparticles", further, claims 3 and 8 recite the limitation, "wherein the quality of sleep is improved compared to a garment that does not comprise the nanoparticles, by at least one of an improvement of sleep efficiency, a decrease in the number of nocturnal awakenings, and shortening of a duration of a nocturnal awakening". These limitations are recited verbatim in claim 1. As a result, claims 2-3 and 7-8 do not further limit the subject matter of the claim 1 which they depend from. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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) 1-3, 5-8, 10-11, 13-16, and 18-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Vissman et al. (US 9,833,509), in view of Fujimura et al. (US 2010/0200800).
Regarding claim 1, Vissman et al. teaches a garment (Figs. 1-2; Col. 13, lines 27-61) for improving a quality of sleep (Figs. 36 and 37; Col. 62, lines 8-14, section titled “Example 36: Effect of Far-Infrared Emitting Bioceramic Apparel on Human Subjects Undertaking a Pilates Exercise Regimen”; Col. 63, lines 56-57 and Col. 64, lines 1-22), the garment comprising nanoparticles (Abstract; Fig. 1; Col. 34, lines 46-67; Col. 10, lines 21-34, wherein “the granularity of a bioceramic composition ranges from about 100 nanometers to about 0.1 micrometers”),
wherein the garment is configured to improve the quality of sleep, compared to a garment that does not comprise the nanoparticles (Col. 62, lines 15-23, “placebo group wore a sham far-infrared emitting ceramic shirt (no bioceramics)), by at least one of an improvement of sleep efficiency (Col. 63, lines 56-57 and Col. 64, lines 1-22), a decrease in the number of nocturnal awakenings, shortening of a duration of a nocturnal awakening, and a decrease in a REM sleep ratio.
Vissman et al. fails to teach the garment comprising a fiber containing dispersed therein at least two kinds of nanoparticles comprising diamond nanoparticles and platinum nanoparticles, wherein the diamond nanoparticles and the platinum nanoparticles emit far-infrared radiation and cause electron transfer based on plasmon resonance.
In the same field of endeavor, Fujimura et al. teaches a garment comprising a fiber containing dispersed therein at least two kinds of nanoparticles comprising diamond nanoparticles and platinum nanoparticles (paras. 0001, 0027-0029, and 0048-0049),
wherein the diamond nanoparticles and the platinum nanoparticles emit far-infrared radiation and cause electron transfer based on plasmon resonance (paras. 0006 and 0031, see MPEP 2112.01-when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent).
Therefore, it would have been obvious to someone of ordinary skill in the art, before the effective filing date of the claimed invention, to have simply substituted the bioceramics of Vissman et al. with the fiber containing dispersed therein diamond and platinum nanoparticles that emit far-infrared radiation and cause electron transfer of Fujimura et al. This substitution would improve the garment engineered to enhance sleep by incorporating dual nanoparticles synthesized to induce a warming effect, thereby offering a more comfortable sleep experience for a user (Fujimura et al., para. 0062).
Regarding claim 2, as best understood in light of the rejections under 35 U.S.C. 112(d) above, Vissman et al., in view of Fujimura et al., teaches the garment according to claim 1 as stated above wherein at least two kinds of the nanoparticles are diamond nanoparticles and platinum nanoparticles (Fujimura et al., (paras. 0001, 0027-0029, and 0048-0049).
Regarding claim 3, as best understood in light of the rejections under 35 U.S.C. 112(d) above, Vissman et al., in view of Fujimura et al., teaches the garment according to claim 1 as stated above wherein the quality of sleep is improved (Vissman et al., Figs. 36 and 37; Col. 62, lines 8-14, section titled “Example 36: Effect of Far-Infrared Emitting Bioceramic Apparel on Human Subjects Undertaking a Pilates Exercise Regimen”; Col. 63, lines 56-57 and Col. 64, lines 1-22) compared to a garment that does not comprise the nanoparticles (Vissman et al., Col. 62, lines 15-23, “placebo group wore a sham far-infrared emitting ceramic shirt (no bioceramics)), by at least one of an improvement of sleep efficiency (Vissman et al., Col. 63, lines 56-57 and Col. 64, lines 1-22), a decrease in the number of nocturnal awakenings, and shortening of a duration of a nocturnal awakening.
Regarding claim 5, Vissman et al., in view of Fujimura et al., teaches the garment according to claim 1 as stated above wherein the garment is sleepwear (Vissman et al., Col. 14, lines 54-58, where shirts and pants may be considered sleepwear).
Regarding claim 6, Vissman teaches a method for improving a quality of sleep (Abstract; Col. 62, lines 12-23), the method comprising wearing a garment including nanoparticles (Col. 62, lines 16-23; Figs. 1-2; Col. 34, lines 46-67; Col. 10, lines 21-34, wherein “the granularity of a bioceramic composition ranges from about 100 nanometers to about 0.1 micrometers”),
wherein the method improves the quality of sleep, compared to a garment that does not comprise the nanoparticles (Col. 62, lines 15-23, “placebo group wore a sham far-infrared emitting ceramic shirt (no bioceramics)), by at least one of an improvement of sleep efficiency (Col. 63, lines 56-57 and Col. 64, lines 1-22), a decrease in the number of nocturnal awakenings, shortening of a duration of a nocturnal awakening, and a decrease in a REM sleep ratio.
Vissman et al. fails to teach the garment comprising a fiber containing dispersed therein at least two kinds of nanoparticles comprising diamond nanoparticles and platinum nanoparticles, wherein the diamond nanoparticles and the platinum nanoparticles emit far-infrared radiation and cause electron transfer based on plasmon resonance.
In the same field of endeavor, Fujimura et al. teaches a garment including a fiber containing dispersed therein at least two kinds of nanoparticles comprising diamond nanoparticles and platinum nanoparticles (paras. 0001, 0027-0029, and 0048-0049),
wherein the diamond nanoparticles and the platinum nanoparticles emit far-infrared radiation and cause electron transfer based on plasmon resonance (paras. 0006 and 0031, see MPEP 2112.01-when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent).
Therefore, it would have been obvious to someone of ordinary skill in the art, before the effective filing date of the claimed invention, to have simply substituted the bioceramics of Vissman et al. with the fiber containing dispersed therein diamond and platinum nanoparticles that emit far-infrared radiation and cause electron transfer of Fujimura et al. This substitution would improve the garment engineered to enhance sleep by incorporating dual nanoparticles synthesized to induce a warming effect, thereby offering a more comfortable sleep experience for a user (Fujimura et al., para. 0062).
Regarding claim 7, as best understood in light of the rejections under 35 U.S.C. 112(d) above, Vissman et al., in view of Fujimura et al., teaches the method according to claim 6 as stated above wherein at least two kinds of the nanoparticles are diamond nanoparticles and platinum nanoparticles (Fujimura et al., (paras. 0001, 0027-0029, and 0048-0049).
Regarding claim 8, as best understood in light of the rejections under 35 U.S.C. 112(d) above, Vissman et al., in view of Fujimura et al., teaches the method according to claim 6 as stated above wherein the quality of sleep is improved (Vissman et al., Figs. 36 and 37; Col. 62, lines 8-14, section titled “Example 36: Effect of Far-Infrared Emitting Bioceramic Apparel on Human Subjects Undertaking a Pilates Exercise Regimen”; Col. 63, lines 56-57 and Col. 64, lines 1-22) compared to a garment that does not comprise the nanoparticles (Vissman et al., Col. 62, lines 15-23, “placebo group wore a sham far-infrared emitting ceramic shirt (no bioceramics)), by at least one of an improvement of sleep efficiency (Vissman et al., Col. 63, lines 56-57 and Col. 64, lines 1-22), a decrease in the number of nocturnal awakenings, and shortening of a duration of a nocturnal awakening.
Regarding claim 10, Vissman et al., in view of Fujimura et al., teaches the garment according to claim 1 as stated above wherein a content of the platinum nanoparticles in the garment is 1/1000 to 1 times a content of the diamond nanoparticles (Fujimura et al., para. 0012).
Regarding claim 11, Vissman et al., in view of Fujimura et al., teaches the garment according to claim 1 as stated above wherein the diamond nanoparticles have an average particle size of 100 to 200 nm (Fujimura et al., paras. 0048 and 0053).
Regarding claim 13, Vissman et al., in view of Fujimura et al., teaches the garment according to claim 1 as stated above wherein the diamond nanoparticles are rough diamonds synthesized by a detonation method (Fujimura et al., paras. 0035-0036).
Regarding claim 14, Vissman et al., in view of Fujimura et al., teaches the garment according to claim 13 as stated above wherein the diamond particles have a specific gravity of 2.75 to 3.25
g
/
c
m
3
(Fujimura et al., para. 0037).
Regarding claim 15, Vissman et al., in view of Fujimura et al., teaches the method according to claim 6 as stated above wherein a content of the platinum nanoparticles in the garment is 1/1000 to 1 times a content of the diamond nanoparticles (Fujimura et al., para. 0012).
Regarding claim 16, Vissman et al., in view of Fujimura et al., teaches the method according to claim 6 as stated above wherein the diamond nanoparticles have an average particle size of 100 to 200 nm (Fujimura et al., paras. 0048 and 0053).
Regarding claim 18, Vissman et al., in view of Fujimura et al., teaches the method according to claim 6 as stated above wherein the diamond nanoparticles are rough diamonds synthesized by a detonation method (Fujimura et al., paras. 0035-0036).
Regarding claim 19, Vissman et al., in view of Fujimura et al., teaches the method according to claim 18 as stated above wherein the diamond particles have a specific gravity of 2.75 to 3.25
g
/
c
m
3
(Fujimura et al., para. 0037).
Claim(s) 4 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Vissman et al., in view of Fujimura et al., further in view of Nagashima et al. (US 2002/0151600).
Regarding claims 4 and 9, Vissman et al., in view of Fujimura et al., teaches the garment and method according to claims 1 or 6 as stated above. Additionally, it should be noted that when the structure recited in the combination of references is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent (see MPEP 2112.01). That being said, Vissman et al., in view of Fujimura et al., fails to specifically disclose wherein the quality of sleep is improved by at least one of an improvement of a Non-REM sleep ratio and a decrease in a REM sleep ratio.
In the same field of endeavor, Nagashima et al. teaches wherein the quality of sleep is improved by at least one of an improvement of a non-REM sleep ratio and a decrease in a REM sleep ratio (Fig. 3A; paras. 0069, 0094, and 0099).
Therefore, it would have been obvious to someone of ordinary skill in the art, before the
effective filing date of the claimed invention, to have combined the garment and method of Vissman et al., in view of Fujimura et al., with the sleep quality improved by at least one improvement of a non-REM ratio and a decrease in a REM sleep ratio of Nagashima et al. Non-REM, i.e., deep sleep, is a distinct metric that can indicate a person's sleep quality. By implementing this metric, researchers may be more aware of the user's shift toward parasympathetic predominance (Nagashima et al., paragraph 0099).
Claim(s) 12 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Vissman et al., in view of Fujimura et al., further in view of Katano (JP 2018/070492), citing to previously provided translation.
Regarding claims 12 and 17, Vissman et al., in view of Fujimura et al., teaches the garment and method according to claims 1 or 6 as stated above. Vissman et al., in view of Fujimura et al., fails to teach wherein the platinum nanoparticles have an average particle size of 100 to 200 nm.
In the same field of endeavor, Katano teaches wherein the platinum nanoparticles have an average particle size of 100 to 200 nm (page 2, para. 3, “the average particle size of platinum nanoparticles is preferably 20 to 200 nm, more preferably 100 to 200 nm”).
Therefore, it would have been obvious to someone of ordinary skill in the art, before the
effective filing date of the claimed invention, to have modified the garment and method of Vissman et al., in view of Fujimura et al., with the platinum nanoparticles having an average particle size of 100 to 200 nm of Katano. A nanoparticle with a particle size of 100 to 200 nm may maintain a dispersed and stable state when introduced to a water medium. For that reason, a nanoparticle size range is a significant consideration when engineering nanocolloids (Katano, page 2, para. 2, “you may contain the dispersion stabilizer etc. in the range which does not inhibit the effect of this invention”).
Conclusion
Applicant's amendment necessitated the new ground(s) 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 BROGAN R LANDEEN whose telephone number is (571)272-1390. The examiner can normally be reached Monday - Friday 8:30am - 6:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer Robertson can be reached at (571) 272-5001. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/B.R.L./Examiner, Art Unit 3791
/JENNIFER ROBERTSON/Supervisory Patent Examiner, Art Unit 3791
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