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 § 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.
Claims 1-3, 9, 12, 13 and 15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent Application Publication No. 2013/0101781 to Lee et al. With respect to claims 1, 3 and 12, Lee et al. ‘781 shows the claimed limitations of a fabric comprising a yarn (10, 20), wherein the yarn includes a core (11, 21), wherein the core is composed of spandex (as
described on page 2, in paragraphs 0031 & 0035), and a sheath (12, 22), wherein the sheath includes a plurality of fire-retardant fibers (as described on page 2, in paragraphs 0033 & 0036), wherein the plurality of fire-retardant fibers is spun around the core (11, 21) in a spiral manner (also as shown in Figures 1 & 2 and as described on page 2, in paragraphs 0030, 0034 & 0037), and wherein the fabric is a knit fabric (as shown in Figures 3 & 4 and as described on page 3, in paragraphs 0039 & 0040).
With respect to claims 2 and 13, the reference further discloses wherein the fire retardant fibers are rayon fibers (as described on page 2, in paragraphs 0033 & 0036). With respect to claims 9 and 15, the reference further discloses wherein the fabric and the yarn (10, 20) do not include any glass (as described on page 2, in paragraphs 0031, 0033, 0035 & 0036).
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.
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 4-6, 10, 11 and 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. ‘781 in view of U.S. Patent Application Publication No. 2012/0255128 to Sytz. With respect to claim 4, Lee et al. ‘781 does not specifically disclose a condition wherein the fabric is stretchable in a machine direction and in a cross direction. Sytz ‘128 provides the basic teaching of a fire-retardant knit fabric for “covering mattresses and/or furniture…that has 4-way stretch” (see Figures 10 & 11; page 3, paragraphs 0038 & 0042; page 4, paragraph 0045; page 5, paragraphs 0059 & 0061-0064 and page 6, paragraphs 0066 & 0067). The skilled artisan would have found it obvious before the effective filing date of the claimed invention to combine the fabric disclosed in Lee et al. ‘781 with the stretchability taught in Sytz ‘128 with a reasonable expectation of success because this would have achieved the desirable result of providing a fabric which “continuously [moves] without deterioration in the ability to shape to
the users [of the fabric] in order to provide the best sleeping surface” as taught by Sytz ‘128 (page 1, paragraph 0005 and page 3, paragraph 0042).
With respect to claims 5 and 6, Lee et al. ‘781 as modified by Sytz ‘128 does not specifically disclose conditions wherein the fabric is stretchable “5% to 75% in the machine direction” and wherein the fabric is stretchable “5% to 75% in the cross direction”. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide the fabric of Lee et al. ‘781 as modified by Sytz ‘128 with a stretchability of “5% to 75% in the machine direction” and with a stretchability of “5% to 75% in the cross direction”, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 10 USPQ 233.
With respect to claim 10, Sytz ‘128 further teaches a condition wherein the fabric conforms to standards under 16 CFR 1633 test standards (see page 3, paragraphs 0038 & 0043; page 5, paragraph 0056 and page 6, paragraphs 0072, 0074 & 0076). The skilled artisan would have found it obvious before the effective filing date of the claimed invention to combine the fabric disclosed in Lee et al. ‘781 with the standards taught in Sytz ‘128 with a reasonable expectation of success because this would have achieved the desirable result of providing an enhanced fabric construction which “[maintains] the structure of the fabric” and “[blocks]…fire from the highly volatile latex and foam [of an enclosed mattress]” as taught by Sytz ‘128 (page 3, paragraph 0043).
With respect to claims 11 and 16, Lee et al. ’781 discloses a condition wherein the fabric can be used in “bed sheets and pillow cases” (see page 3, paragraph 0041), but does not specifically disclose conditions wherein the fabric is configured for use as a component of a mattress comprising a foam core and a cap fitted over the foam core, and wherein the cap includes the fabric. Sytz ‘128 further teaches conditions wherein the fire-retardant knit fabric is configured for use as a component of a mattress comprising a foam core and a cap fitted over the foam core, and wherein the cap includes the fabric (see Figures 10 & 11; page 3, paragraphs 0038, 0042 & 0043; page 5, paragraphs 0054 & 0061 and page 6, paragraphs 0066, 0067 & 0071). The skilled artisan would have found it obvious before the effective filing date of the claimed invention to combine the fabric disclosed in Lee et al. ‘781 with the mattress construction taught in Sytz ‘128 with a reasonable expectation of success because this would have achieved the desirable result of providing “a fire barrier product that does not reduce the comfort of the foam [of the mattress] while not compromising on the safety factor ensured by government standards or regulations” as taught by Sytz ‘128 (page 3, paragraph 0038).
With respect to claim 17, Lee et al. ‘781 further discloses wherein the fire retardant fibers are rayon fibers (as described on page 2, in paragraphs 0033 & 0036). With respect to claim 18, Lee et al. ‘781 as modified by Sytz ‘128 does not specifically disclose a condition wherein a density of the core (11, 21) is “5 denier to 100 denier”. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide the fabric and yarn of Lee et al. ‘781 as modified by Sytz ‘128 with a core having a density which is “5 denier to 100 denier”, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 10 USPQ 233.
With respect to claim 19, Lee et al. ‘781 further discloses wherein the fabric and the yarn (10, 20) do not include any glass (as described on page 2, in paragraphs 0031, 0033, 0035 & 0036). With respect to claim 20, Sytz ‘128 further teaches a condition wherein the fabric conforms to standards under 16 CFR 1633 test standards (see page 3, paragraphs 0038 & 0043; page 5, paragraph 0056 and page 6, paragraphs 0072, 0074 & 0076). The skilled artisan would have found it obvious before the effective filing date of the claimed invention to combine the fabric disclosed in Lee et al. ‘781 with the standards taught in Sytz ‘128 with a reasonable expectation of success because this would have achieved the desirable result of providing an enhanced fabric construction which “[maintains] the structure of the fabric” and “[blocks]…fire from the highly volatile latex and foam [of an enclosed mattress]” as taught by Sytz ‘128 (page 3, paragraph 0043).
Claims 7, 8 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al. ‘781. With respect to claims 7 and 14, Lee et al. ‘781 does not specifically disclose a condition wherein a density of the core (11, 21) is “5 denier to 100 denier”. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide the fabric and yarn of Lee et al. ‘781 with a core having a density which is “5 denier to 100 denier”, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 10 USPQ 233.
With respect to claim 8, Lee et al. ‘781 does not specifically disclose a condition wherein the yarn (10, 20) is “5% to 90% by weight or a total weight of the fabric”. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide the fabric of Lee et al. ‘781 with a yarn which is “5% to 90% by weight of a total weight of the fabric”, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 10 USPQ 233.
Conclusion
The prior art made of record and not relied upon is considered pertinent to Applicant's disclosure: Martin et al. ‘723, Switzer et al. ‘997 and Lee et al. ‘160.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT G SANTOS whose telephone number is (571)272-7048. The examiner can normally be reached Monday-Friday 9am-11:30am and 2pm-7:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Justin C Mikowski can be reached at 571-272-8525. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ROBERT G SANTOS/Primary Examiner, Art Unit 3673