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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 December 16, 2025, has been entered.
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 11 and 21 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.
Regarding claims 11 and 21, each claim recites that the fabric consists essentially of polyamide, wherein consists essentially is defined as being at least 90% by weight polyamide. The claims are dependent from amended claims 1 and 16 respectively, which recite essentially the same limitations. Therefore, claims 11 and 21 fail to further limit the subject matter of the claims from which they depend.
Applicant may cancel the claims, amend the claims to place the claims in proper dependent form, rewrite the claims in independent form, or present a sufficient showing that the dependent claims comply 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.
Claims 1, 5-7, 9-14, 16-18, and 20-22 are rejected under 35 U.S.C. 103 as being unpatentable over US Pub. No. 2005/0075028 to Rock in view of DE 102007002560 to Loeschner, as evidenced by the English translation.
Regarding claims 1, 5-7, 9-14, 16-18, and 20-22, Rock teaches a composite fabric garment including a first garment portion and a second garment portion, wherein the first garment portion is formed of a first composite fabric having first inner and outer fabric layers and a first intermediate layer disposed between and boded to at least one of the first inner and outer fabric layers, the first intermediate barrier layer being breathable and substantially impermeable to wind and liquid water (Rock, Abstract). Rock teaches that the second garment portion is formed of a second composite fabric formed of second inner and outer fabric layers, including a second intermediate, breathable, air-permeable barrier layer disposed between and bonded to at least one of the second inner and outer fabric layers (Id.). Rock teaches that the intermediate barrier has a high resistance to wind with relatively low CFM, in the range of about 0 CFM to about 1 CFM for enhanced thermal insulation (Id., paragraphs 0022-0024, 0055, 0067). Rock teaches that the barrier layer includes an adhesive layer or can be an adhesive, such as a polyester or a polyamide, applied at between about 0.25 oz/yd2 and about 2.5 oz/yd2 (Id., paragraphs 0065-0066, 0069). Rock teaches that the outer fabric layers are woven or knit (Id., paragraph 0064), and that the inner fabric layers are polyester or nylon (Id., paragraphs 0032, 0062), which may be velour (Id., paragraph 0022). Note that velour is ordinarily known in the art as a woven fabric.
Based on the totality of the teachings of Rock, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the composite of Rock, wherein the outer and inner fabric layers comprise only nylon, and the intermediate barrier layer and/or adhesive comprises only nylon in amounts and at a CFM, such as within the claimed ranges, including each of the fabric layers and barrier and/or adhesive only comprising a polyamide, motivated by the desire of forming a conventional composite based on the totality of the teachings of Rock.
Rock does not appear to teach that the film comprises nylon 11. However, Loeschner teaches a similar multilayer fabric web material comprising a polyamide barrier layer between a support layer and an elastomer layer, wherein the barrier layer has adhesive layers on both sides (Loeschner, Abstract). Loeschner teaches that the barrier layer is a polyamide film, such as polyamide 11 (Id., paragraph 0011). Loeschner teaches that these types of polyamide are highly effective barrier layers that optimize diffusion barrier characteristics with low thickness, combined with a reduction in the weight of the fabric (Id., paragraphs 0003, 0012).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the composite of Rock, wherein the polyamide film and/or adhesive comprises polyamide 11, as taught by Loeschner, motivated by the desire of forming a conventional composite comprising a polyamide known in the art to predictably provide highly effective barrier layers that optimize diffusion barrier characteristics with low thickness, combined with a reduction in the weight of the fabric. Note that the composite fabric comprises only polyamide which would be within the claimed amount.
The prior art combination does not appear to specifically teach the bio-based carbon content. However, Applicants’ specification only appears to indicate that the bio-based carbon content originates from bio-based sources, and does not indicate any apparent compositional or structural differentiations regarding fibers or films using bio-based carbon content and ordinary carbon content. Therefore, the limitations regarding the bio-based carbon contents are interpreted as product by process limitations, as the recitation of “bio-based carbon” only appears to denote the source of the material and does not differentiate the material itself. Absent a showing to the contrary, it is Examiner’s position that the article of the applied prior art is identical to or only slightly different than the claimed article. 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 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, 227 USPQ 964, 966 (Fed. Cir. 1985). The burden has been shifted to Applicant to show unobvious differences between the claimed product and the prior art product. In re Marosi, 218 USPQ 289 (Fed. Cir. 1983). The applied prior art either anticipated or strongly suggested the claimed subject matter. It is noted that if Applicant intends to rely on Examples in the specification or in a submitted declaration to show unobviousness, Applicant should clearly state how the Examples of the present invention are commensurate in scope with the claims and how the Comparative Examples are commensurate in scope with the applied prior art.
Regarding claims 5-7, the prior art combination teaches constructing the fabric to provide a higher level of breathability, wherein the lower portions have relatively higher water vapor permeability (Rock, paragraphs 0055-0062), and the composite fabric has very good hydrostatic resistance (Id., paragraph 0022). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the composite of the prior art combination, and adjusting and varying the properties of the composite, including the moisture vapor transmission rate and hydrostatic head, such as within the claimed ranges, motivated by the desire of forming a conventional composite having the desired insulating properties and comfort suitable for the intended application.
Regarding claims 16-18 and 20-22, as set forth above, the prior art combination teaches and renders obvious the claimed invention, including an optional adhesive layer. Additionally, the limitations directed to the manner of forming the fabric are interpreted as product by process limitations. Absent a showing to the contrary, it is Examiner’s position that the article of the applied prior art is identical to or only slightly different than the claimed article. 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 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, 227 USPQ 964, 966 (Fed. Cir. 1985). The burden has been shifted to Applicant to show unobvious differences between the claimed product and the prior art product. In re Marosi, 218 USPQ 289 (Fed. Cir. 1983). The applied prior art either anticipated or strongly suggested the claimed subject matter. It is noted that if Applicant intends to rely on Examples in the specification or in a submitted declaration to show unobviousness, Applicant should clearly state how the Examples of the present invention are commensurate in scope with the claims and how the Comparative Examples are commensurate in scope with the applied prior art.
Claims 1, 5-7, 9-14, 16-18, and 20-22 are rejected under 35 U.S.C. 103 as being unpatentable over US Pub. No. 2005/0075028 to Rock in view of DE 102007002560 to Loeschner, as evidenced by the English translation, and “Bio-based Polyamides” to Feldmann.
Regarding claims 1, 5-7, 9-14, 16-18, and 20-22, as set forth above, the prior art combination appears to teach the claimed fibers and film with the claimed carbon content. Alternatively, Feldmann teaches that bio-based polyamides have been around since the middle of the 20th century, which can wholly or partially consist of renewable resources (Feldmann, page 94). Feldmann teaches that that completely or partially bio-based types exists, including PA 11 having a bio content of 100% (Id., page 95, Table 3.1). Feldmann teaches that the bio content has direct influence on the reduction of excess carbon dioxide emission, which shows a lower global warming potential (Id., page 95).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the composite of the prior art combination, wherein the polyamide 11 comprises a bio-based polyamide 11 having a bio content of 100%, as taught by Feldmann, motivated by the desire of forming a conventional composite formed from a polyamide known in the art to predictably reduce excess carbon dioxide emission while consisting of renewable resources.
Response to Arguments
Applicant's arguments filed December 16, 2025, have been fully considered but they are not persuasive. Applicant argues that the bio-based carbon content measured as claimed is not a product by process but a characteristic and property that is detectable in the final form. Examiner respectfully disagrees. As argued by Applicant, ASTM D26866-20 Method B is a test method that provides accurate biobased/biogenic carbon content results to materials whose carbon source was directly in equilibrium with CO2 in the atmosphere at the time of cessation or respiration or metabolism, as the method uses AMS along with Isotope Ratio Mass Spectrometry techniques to quantify the biobased content of a given product and directly discriminate between product carbon resulting from contemporary carbon input and that derived from fossil-based input. The biobased/biogenic carbon content is based on the carbon source. However, as set forth previously, the inclusion of “bio-based carbon content” does not appear to differentiate the product once formed. For example, claim 1 recites the film comprising nylon 11 with at least 15% of biobased carbon content. Nylon 11, which is established by the prior art, is ordinarily known in the art as 11-aminoundecanoic acid having a skeletal formula:
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Based on the structure above, there does not appear to be any distinction between a “biobased carbon” and the carbon set forth in the structure, regardless if it is biobased or not biobased. Additionally, Applicant’s specification does not distinguish “biobased carbon content” from non-biobased carbon content with objective and quantitative characteristics. Therefore, Applicant has not established that the recitation of biobased carbon necessarily results in a product distinguished from the material set forth in the prior art.
Additionally, as established by Feldmann, the use of polyamide 11 with a bio content of 100% was known in the art as providing a polyamide 11 formed by renewable resources with a reduction of excess carbon dioxide emission.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PETER Y CHOI whose telephone number is (571)272-6730. The examiner can normally be reached M-F 9:00 AM - 3:00 PM.
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/PETER Y CHOI/Primary Examiner, Art Unit 1786