DETAILED ACTION
Claims 1-8, 11, 28-31, 41, 80-83, 87, and 105 were subject to restriction requirement on 07/24/2025.
Applicant elected Group I, claims 1-7, 11, 28-31, 80-83, and 87, without traverse, added new claims 107 and 108 on 10/23/2025.
Claims 1-7, 11, 28-31, 80-83, 87, 105, and 107-108 are pending, of which claim 15 is withdrawn.
Claims 1-7, 11, 28-31, 80-83, 87, and 107-108 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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-7, 11, 28-31, 80-83, and 87, in the reply filed on 10/23/2025 is acknowledged.
Claim Rejections - 35 USC § 112
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 29 is 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 29 recites, “the fabric has a basis weight of about 2 or 4.5 ounces per square yard (osy) to about 10 osy or 15” in lines 1-2. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 29 recites the broad recitation about 2 to about 15 osy, and the claim also recites about 4.5 to about 1 osy which is the narrower statement of the range/limitation. The claim is considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim 31 recites, “the fabric is flame resistant and/or has improved flame resistant compared to a control fabric” in lines 1-2. What is the control fabric? Does any fabric read on control fabric in this claim? The Examiner will interpret any control fabric reading on the claim.
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.
Claim 108 is 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.
Claim 108 requires, “the plurality of yarns comprise single-ply yarns” in line 1. Claim 108 depends from claim 1, which requires “the fabric comprises a plurality of yarns… the fabric comprises single-ply yarns” in lines 1-2 and 11. Therefore, claim 108 does not further limit claim 1 as claim 1 requires a plurality of yarns and single-ply yarns. Applicant may cancel the claim, amend the claim to place the claim in proper dependent form, rewrite the claim in independent form, or present a sufficient showing that the dependent claim 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.
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, 28-29, 31, 82-83, 87, and 108 are rejected under 35 U.S.C. 103 as being unpatentable over Hines, Jr. et al. (US 2017/0198423) (Hines, Jr., Jr.) in view of Adams et al. (US 2020/0308735) (Adams).
Regarding claims 1-4, 28, and 108
Hines, Jr. teaches a fire resistant fabric comprising a plurality of spun yarns, wherein each yarn comprises meta-aramid fibers, para-aramid fibers, and anti-static fibers. The fabric comprises about 44% by weight to about 80% by weight of meta-aramid fiber, less than 2% by weight of anti-static fiber, and about 5% by weight to about 15% by weight of para-aramid fibers. See, e.g., abstract and paragraphs [0016-0025], [0035], [0040-0044], [0053-0061]. Given the spun yarns do not require multiple plies twisted together, it follows the spun yarn is a single-ply yarn.
Hines, Jr. does not explicitly teach the presence of modacrylic fibers.
With respect to the difference, Adams teaches a flame resistant fabric comprising yarns comprising a blend of aramid fibers (meta-aramid, para-aramid or both) and modacrylic fibers. The modacrylic fibers are significantly less expensive than the aramid fibers, thus help contain the cost of the fabric. The percentage of modacrylic fibers in the fiber blend of the yarn is up to 2 times the percentage of aramid fibers in the blend. The yarns include approximately 40-90% modacrylic fibers. See, e.g., abstract and paragraphs [0024] and [0026].
Adams and Hines, Jr. are both drawn to flame resistant fabrics.
In light of the motivation as provided by Adam, it therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to include 40 to 90% by weight of modacrylic fibers in the spun yarn of Hines, Jr., in order to reduce the cost of the fabric, and thereby arrive at the claimed invention.
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).
Regarding claim 29
Hines, Jr. further teaches the fabric possesses a basis weight or preferably less than about 6 osy. Paragraph [0072].
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).
Regarding claim 31
Given Hines, Jr. in view of Adams is drawn to flame resistant fabrics, it follows the fabric is flame resistant and/or has improved flame resistance compared to a control fabric, i.e., a fabric comprising no flame resistant fibers.
Regarding claim 82
Hines, Jr. further teaches the fabric possesses a tear strength in the warp or fill directions of at least about 6.5 lbf. Paragraphs [0117] and [0120].
Although there is no disclosure that the test method of Hines, Jr. is in conformity with ASTM D2261, given that Hines, Jr. discloses tear strength as the presently claimed and the absence of evidence of the criticality of how tear strength is measured, it is the examiner's position that tear strength disclosed by Hines, Jr. meets the claim limitation.
Given that the material and structure of the flame resistant fabric of the Hines, Jr. in view of Adams is substantially identical to the material and structure as used in the present invention, and given the fabric of Adam possesses a tear strength in the warp or fill direction of at least about 6.5 lbf, as set forth above, it is clear that the flame resistant fabric of Hines, Jr. in view of Adam would intrinsically have a tear strength in the warp and fill directions of at least about 6.5 lbf, as presently claimed.
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01 (I).
Regarding claim 83
Hines, Jr. further teaches the fabric possesses a tensile strength in the warp and fill directions of at least about 85 lbf. Paragraphs [0116] and [0120].
Although there is no disclosure that the test method of Hines, Jr. is in conformity with ASTM D5034, given that Hines, Jr. discloses tensile strength as the presently claimed and the absence of evidence of the criticality of how tensile strength is measured, it is the examiner's position that tensile strength disclosed by Hines, Jr. meets the claim limitation.
Given that the material and structure of the flame resistant fabric of the Hines, Jr. in view of Adams is substantially identical to the material and structure as used in the present invention, and given the data in Hines, Jr. possesses a tensile strength in the warp and fill direction of at least about 85 lbf, as set forth above, it is clear that the flame resistant fabric of Adams in view of Zhu would intrinsically have a tensile strength in the warp and fill directions of at least about 85 lbf, as presently claimed.
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01 (I).
Regarding claim 87
Hines, Jr. further teaches the fabric possesses an arc rating of 10. Paragraphs [0119-0120].
Although there is no disclosure that the test method of Hines, Jr. is in conformity with NFPA 70E, given that Hines, Jr. discloses arc rating as the presently claimed and the absence of evidence of the criticality of how tensile strength is measured, it is the examiner's position that arc rating disclosed by Hines, Jr. meets the claim limitation.
Given that the material and structure of the flame resistant fabric of the Hines, Jr. in view of Adams is substantially identical to the material and structure as used in the present invention, and given the data in Hines, Jr. possesses an arc rating of 10 cal/cm2, as set forth above, it is clear that the flame resistant fabric of Adams in view of Zhu would intrinsically have an arc rating of 1 or more cal/cm2, as presently claimed.
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01 (I).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Hines, Jr. et al. (US 2017/0198423) (Hines, Jr.) in view of Adams (US 2020/0308735), as applied in claim 1 above, and further in view of Emery et al. (US 9,706,804) (Emery).
Regarding claim 7
Hines, Jr. in view of Adams teaches all of the limitations of claim 1 above, however does not explicitly teach the modacrylic fibers are fiber dyed.
With respect to the difference, Emery teaches a flame resistant fabric comprising a plurality of flame resistant yarns. The flame resistant yarns comprise flame resistant fibers such as modacrylic fibers. The flame resistant fibers are solution dyed. It is believed solution dyeing flame resistant fibers produces fibers with lower flame shrinkage than natural flame resistant fibers because of higher crystallinity. Lower shrinkage may contribute to a larger insulation air gap and better performance. See, e.g., abstract and col. 1, lines 20-45, col. 2, line 64 – col. 3, line 16, and col. 4, lines 54-64.
Emery and Hines, Jr. in view of Adams are analogous art as they are both drawn to flame resistant garments comprising modacrylic fibers.
In light of the motivation as provided by Emery, it therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to solution dye the flame resistant fibers, including the modacrylic fibers, of Hines, Jr. in view of Adams, in order to lower shrinkage and provide a larger insulation air gap and better performance, and thereby arrive at the claimed invention.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Hines, Jr. et al. (US 2017/0198423) (Hines, Jr.) in view of Adams (US 2020/0308735), as applied in claim 1 above, and further in view of Nakano et al. (US 2019/0029335) (Nakano).
Regarding claim 11
Hines, Jr. in view of Adams teaches all of the limitations of claim 1 above, however does not explicitly teach the amount of single-ply yarns in the fabric.
With respect to the difference, Nakano teaches a flame resistant fabric for flame resistant garments. Using a mixture of single-ply yarn and two-ply yarn to form the fabric can maintain strength while reducing the weight per unit, which is preferable. See, e.g., abstract and paragraphs [0013] and [0050].
Nakano and Hines, Jr. in view of Adams are analogous art as they are both drawn to flame resistant garments comprising modacrylic fibers.
In light of the motivation as provided by Nakano, 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 mixture of single-ply yarn and two-ply yarn to form the flame resistant fabric of Hines, Jr. in view of Adams, such that the amount of single-ply yarns overlaps 10-60% of the fabric, in order to balance maintaining the strength of the fabric while reducing the weight per unit, and thereby arrived at the claimed invention.
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).
Claim 30 is rejected under 35 U.S.C. 103 as being unpatentable over Hines, Jr. et al. (US 2017/0198423) (Hines, Jr.) in view of Adams (US 2020/0308735), as applied in claim 1 above, and further in view of Li et al. (US 20210285133) (Li).
Regarding claim 30
Hines, Jr. in view of Adams teaches all of the limitations of claim 1 above, including the use of a woven fabric. Paragraph [0046]. However, Hines, Jr. does not explicitly teach the picks per inch of the fabric.
With respect to the difference, Li teaches a flame resistant woven textile for forming flame resistant garments. The textile preferably has a warp direction and a weft direction between 30 and 70 picks per inch. See, e.g., abstract and paragraphs [0003], [0010], [0019],
Li and Hines, Jr. in view of Adams are analogous art as they are both drawn to flame resistant garments.
In light of the motivation as provided by Li, it therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to ensure the fabric of Hines, Jr. in view of Adams possesses about 30 to about 70 picks per inch, in order to produce a flame resistant fabric for a flame resistant garment with predictable success and as Li teaches between 30 and 70 picks per inch is preferable for a flame resistant fabric, and thereby arrive at the claimed invention.
Claim 80 is rejected under 35 U.S.C. 103 as being unpatentable over Hines, Jr. et al. (US 2017/0198423) (Hines, Jr.) in view of Adams (US 2020/0308735), as applied in claim 1 above, and further in view of McKee et al. (US 2004/0029473) (McKee).
Regarding claim 80
Hines, Jr. in view of Adams teaches all of the limitations of claim 1 above, including the use of a woven fabric. Paragraph [0046]. However, Hines, Jr. does not explicitly teach the seam slippage in the warp or fill direction.
With respect to the difference, McKee teaches a flame resistant fabric for forming flame resistant garments. A higher seam slippage will enhance product durability and an exemplary industry specific for a fabric to be used in an industrial garment would be 30 lb in each direction. McKee teaches the flame resistant fabric possesses a seam slippage greater than 50 lb as measured according to ASTM D434.
See, e.g., abstract and paragraphs [0001], [0005], [0051], [0161], and [0203-0205].
McKee and Hines, Jr. in view of Adams are analogous art as they are both drawn to fire resistant garments.
In light of the motivation as provided by McKee, it therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to ensure the flame resistant fabric of Hines, Jr. in view of Adams possesses a seam slippage in the warp and fill direction of greater than 30 lbf, including greater than 50 lbf, in order to enhance product durability, and thereby arrive at the claimed invention.
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).
Claim 81 is rejected under 35 U.S.C. 103 as being unpatentable over Hines, Jr. et al. (US 2017/0198423) (Hines, Jr.) in view of Adams (US 2020/0308735), as applied in claim 1 above, and further in view of Zhu (US 2013/0055491).
Regarding claim 81
Hines, Jr. in view of Adams teaches all of the limitations of claim 1 above. However, Hines, Jr. does not explicitly teach the fabric has a shrinkage in length and/or width direction after 25 launderings of less than about 3%, as measured in accordance with TM AATCC 135, method 3, IV or V, A, iii.
With respect to the difference, Zhu teaches a flame resistant fabric for forming flame resistant garments. Using para-aramid and crystalline meta-aramid fibers in the fabrics and garments results in significantly reduced laundry shrinkage. Preferred fabrics for forming flame resistant garments demonstrate a shrinkage of 5 percent or less after 25 wash cycles. See, e.g., abstract and paragraphs [0002], [0034], [0045], and [0051].
Zhu and Hines, Jr. in view of Adams are analogous art as they are both drawn to flame resistant garments.
In light of the motivation as provided by Zhu, 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 fabric of Hines, Jr. in view of Adams, such as by using crystalline meta-aramid fibers in the fabric, in order to ensure the fabric possesses a shrinkage of 5% or less after 25 washes as this is preferable for a fabric forming a flame resistant garment, and thereby arrive at the claimed invention.
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).
Although there is no disclosure that the test method of Adams II is in conformity with AATCC 135, given that Adams II discloses shrinkage as the presently claimed and the absence of evidence of the criticality of how shrinkage is measured, it is the examiner's position that shrinkage disclosed by Adams II meets the claim limitation.
Claim 107 is rejected under 35 U.S.C. 103 as being unpatentable over Hines, Jr. et al. (US 2017/0198423) (Hines, Jr.) in view of Adams (US 2020/0308735), as applied in claim 1 above, and further in view of Sato et al. (US 2018/0371647) (Sato).
Regarding claim 81
Hines, Jr. in view of Adams teaches all of the limitations of claim 1 above. However, Hines, Jr. does not explicitly teach the modacrylic fiber comprising antimony.
With respect to the difference, Sato teaches a flame resistant fabric for forming flame resistant garments. The flame resistant fabric comprises modacrylic fibers. The modacrylic fibers contain antimony in order to ensure excellent production stability and favorable flame retardance. See, e.g., abstract and paragraphs [0013], [0020], [0025-0026], and [0075].
Sato and Hines, Jr. in view of Adams are analogous art as they are both drawn to flame resistant garments.
In light of the motivation as provided by Sato, it therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to use modacrylic fibers comprising antimony as the modacrylic fibers of Hines, Jr. in view of Adams, in order to ensure excellent production stability and favorable flame retardance, and thereby arrive at the claimed invention.
Claims 1-3, 5-6, 28-29, 31, 82-83, 87, and 108 are rejected under 35 U.S.C. 103 as being unpatentable over Adams et al. (US 2020/0308735) (Adams) in view of Zhu (US 2018/0057978).
Regarding claims 1 and 108
Adams teaches a flame resistant fabric comprising a first group of yarns (“first yarns”) and a second group of yarns. The first yarns are spun yarns comprising a single yarn. The first yarns comprise a blend of meta-aramid, para-aramid, and modacrylic fibers. The fiber blend of the overall fabric includes 25-65% modacrylic fibers and 5-25% aramid fibers. See, e.g., abstract and paragraphs [0023-0024], [0026], [0038], and [0059].
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).
Adams does not explicitly teach the amount of meta-aramid fibers and para-aramid fibers in the blend.
With respect to the difference, Zhu teaches a fiber blend for forming flame-resistant garments comprising modacrylic, meta-aramid, and para-aramid fibers. When both meta-aramid and para-aramid fibers are present in the blend, the ratio of meta-aramid fiber to para-aramid fiber in the fabric preferably ranges from 95:5 to 1:1. See, e.g., abstract and paragraphs [0001], [0038], and [0047]. Therefore, the amount of meta-aramid fibers ranges from about 2.5 to about 24% by weight and the amount of para-aramid fibers ranges from about 0.25 to about 12.5% by weight.
Zhu and Adams are analogous art as they are both drawn to flame resistant garments comprising a fiber blend of modacrylic and aramid fibers.
In light of the motivation as provided by Zhu, 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 ratio of meta-aramid fiber to para-aramid fiber in the fabric of Adams from 95:5 to 1:1, as Zhu teaches this is a preferable range for forming a blend for a fire resistant garment, and thereby arrive at the claimed invention.
Regarding claims 2-3
As discussed in claim 1 above, Adams teaches the flame resistant fabric includes 25-65% modacrylic fibers and 5-25% aramid fibers. Paragraph [0038].
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).
Regarding claims 5-6
Adams in view of Zhu teaches all of the limitations of claim 1 above, including 25-65% by weight modacrylic fibers, 2.5-24% by weight of meta-aramid fibers, and 0.25-12.5% by weight para-aramid fibers. Adams does not explicitly teach the presence of anti-static fibers.
With respect to the difference, Zhu teaches a fiber blend for forming flame-resistant garments comprising modacrylic, meta-aramid, para-aramid, and anti-static fibers. The anti-static fibers are present in an amount of 1 to 3% by weight. See, e.g., abstract and paragraphs [0001], [0020], [0022], [0038], and [0047].
Zhu and Adams are analogous art as they are both drawn to flame resistant garments comprising a fiber blend of modacrylic and aramid fibers.
In light of the motivation as provided by Zhu, it therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to add antistat fibers to the first yarn’s fiber blend of Adams, such that the fabric possesses 1 to 3% by weight of antistat fibers, in order to provide antistatic properties to the fabric, and thereby arrive at the claimed invention.
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).
Regarding claim 28
Adams in view of Zhu teaches all of the limitations of claim 1 above, including 25-65% by weight modacrylic fibers and 2.5-24% by weight of meta-aramid fibers. Therefore, the weight ratio of modacrylic fibers and meta-aramid fibers is about 1.04:1 to 26:1.
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).
Regarding claim 29
Adams further teaches the fabric possesses a basis weight in the range of 5 to 7 osy. Paragraph [0051].
Regarding claim 31
Given Adams in view of Zhu is drawn to flame resistant fabrics, it follows the fabric is flame resistant and/or has improved flame resistance compared to a control fabric, i.e., a fabric comprising no flame resistant fibers.
Regarding claim 82
Adams further teaches the fabric possesses a tear strength in the warp and fill directions of at least about 6.5 lbf. See Fabrics 1-5 in Table 1 and Paragraph [0054].
Although there is no disclosure that the test method of Adams is in conformity with ASTM D2261, given that Adams discloses tear strength as the presently claimed and the absence of evidence of the criticality of how tear strength is measured, it is the examiner's position that tear strength disclosed by Adams meets the claim limitation.
Given that the material and structure of the flame resistant fabric of the Adams in view of Zhu is substantially identical to the material and structure as used in the present invention, and given the data in Adam shows each fabric possesses a tear strength in the warp and fill direction of at least about 6.5 lbf, as set forth above, it is clear that the flame resistant fabric of Adams in view of Zhu would intrinsically have a tear strength in the warp and fill directions of at least about 6.5 lbf, as presently claimed.
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01 (I).
Regarding claim 83
Adams further teaches the fabric possesses a tensile strength in the warp and fill directions of at least about 85 lbf as measured according to D5034. See Fabrics 2 and 3 in Table 1 and Paragraph [0054].
Given that the material and structure of the flame resistant fabric of the Adams in view of Zhu is substantially identical to the material and structure as used in the present invention, and given the data in Adam shows each fabric possesses a tensile strength in the warp and fill direction of at least about 85 lbf, as set forth above, it is clear that the flame resistant fabric of Adams in view of Zhu would intrinsically have a tensile strength in the warp and fill directions of at least about 85 lbf, as presently claimed.
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.01 (I).
Regarding claim 87
Adams further teaches the fabric achieves a NFPA 70E PPE Category 2 protection (8 cal/cm2). Paragraphs [0015], [0018], [0056], and Table 1.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Adams et al. (US 2020/0308735) (Adams) in view of Zhu (US 2018/0057978), as applied in claim 1 above, and further in view of Emery et al. (US 9,706,804) (Emery).
Regarding claim 7
Adams in view of Zhu teaches all of the limitations of claim 1 above, however does not explicitly teach the modacrylic fibers are fiber dyed.
With respect to the difference, Emery teaches a flame resistant fabric comprising a plurality of flame resistant yarns. The flame resistant yarns comprise flame resistant fibers such as modacrylic fibers. The flame resistant fibers are solution dyed. It is believed solution dyeing flame resistant fibers produces fibers with lower flame shrinkage than natural flame resistant fibers because of higher crystallinity. Lower shrinkage may contribute to a larger insulation air gap and better performance. See, e.g., abstract and col. 1, lines 20-45, col. 2, line 64 – col. 3, line 16, and col. 4, lines 54-64.
Emery and Adams in view of Zhu are analogous art as they are both drawn to flame resistant garments comprising modacrylic fibers.
In light of the motivation as provided by Emery, it therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to solution dye the flame resistant fibers, including the modacrylic fibers, of Adams in view of Zhu, in order to lower shrinkage and provide a larger insulation air gap and better performance, and thereby arrive at the claimed invention.
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Adams et al. (US 2020/0308735) (Adams) in view of Zhu (US 2018/0057978), as applied in claim 1 above, and further in view of Nakano et al. (US 2019/0029335) (Nakano).
Regarding claim 11
Adams in view of Zhu teaches all of the limitations of claim 1 above, however does not explicitly teach the amount of single-ply yarns in the fabric.
With respect to the difference, Nakano teaches a flame resistant fabric for flame resistant garments. Using a mixture of single-ply yarn and two-ply yarn to form the fabric can maintain strength while reducing the weight per unit, which is preferable. See, e.g., abstract and paragraphs [0013] and [0050].
Nakano and Adams in view of Zhu are analogous art as they are both drawn to flame resistant garments comprising modacrylic fibers.
In light of the motivation as provided by Nakano, 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 mixture of single-ply yarn and two-ply yarn to form the flame resistant fabric of Adams in view of Zhu, such that the amount of single-ply yarns overlaps 10-60% of the fabric, in order to balance maintaining the strength of the fabric while reducing the weight per unit, and thereby arrived at the claimed invention.
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).
Claim 30 is rejected under 35 U.S.C. 103 as being unpatentable over Adams et al. (US 2020/0308735) (Adams) in view of Zhu (US 2018/0057978), as applied in claim 1 above, and further in view of Li et al. (US 20210285133) (Li).
Regarding claim 30
Adams in view of Zhu teaches all of the limitations of claim 1 above, including the use of a woven fabric. Paragraph [0046]. However, Adams does not explicitly teach the picks per inch of the fabric.
With respect to the difference, Li teaches a flame resistant woven textile for forming flame resistant garments. The textile preferably has a warp direction and a weft direction between 30 and 70 picks per inch. See, e.g., abstract and paragraphs [0003], [0010], [0019],
Li and Adams in view of Zhu are analogous art as they are both drawn to flame resistant garments.
In light of the motivation as provided by Li, it therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to ensure the fabric of Adams in view of Zhu possesses about 30 to about 70 picks per inch, in order to produce a flame resistant fabric for a flame resistant garment with predictable success and as Li teaches between 30 and 70 picks per inch is preferable for a flame resistant fabric, and thereby arrive at the claimed invention.
Claim 80 is rejected under 35 U.S.C. 103 as being unpatentable over Adams et al. (US 2020/0308735) (Adams) in view of Zhu (US 2018/0057978), as applied in claim 1 above, and further in view of McKee et al. (US 2004/0029473) (McKee).
Regarding claim 80
Adams in view of Zhu teaches all of the limitations of claim 1 above, including the use of a woven fabric. Paragraph [0046]. However, Adams does not explicitly teach the seam slippage in the warp or fill direction.
With respect to the difference, McKee teaches a flame resistant fabric for forming flame resistant garments. A higher seam slippage will enhance product durability and an exemplary industry specific for a fabric to be used in an industrial garment would be 30 lb in each direction. McKee teaches the flame resistant fabric possesses a seam slippage greater than 50 lb as measured according to ASTM D434.
See, e.g., abstract and paragraphs [0001], [0005], [0051], [0161], and [0203-0205].
McKee and Adams in view of Zhu are analogous art as they are both drawn to fire resistant garments.
In light of the motivation as provided by McKee, it therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to ensure the flame resistant fabric of Adams in view of Zhu possesses a seam slippage in the warp and fill direction of greater than 30 lbf, including greater than 50 lbf, in order to enhance product durability, and thereby arrive at the claimed invention.
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).
Claim 81 is rejected under 35 U.S.C. 103 as being unpatentable over Adams et al. (US 2020/0308735) (Adams) in view of Zhu (US 2018/0057978), as applied in claim 1 above, and further in view of Zhu (US 2013/0055491) (Zhu II).
Regarding claim 81
Adams in view of Zhu teaches all of the limitations of claim 1 above. However, Adams does not explicitly teach the fabric has a shrinkage in length and/or width direction after 25 launderings of less than about 3%, as measured in accordance with TM AATCC 135, method 3, IV or V, A, iii.
With respect to the difference, Zhu II teaches a flame resistant fabric for forming flame resistant garments. Using para-aramid and crystalline meta-aramid fibers in the fabrics and garments results in significantly reduced laundry shrinkage. Preferred fabrics for forming flame resistant garments demonstrate a shrinkage of 5 percent or less after 25 wash cycles. See, e.g., abstract and paragraphs [0002], [0034], [0045], and [0051].
Zhu II and Adams in view of Zhu are analogous art as they are both drawn to flame resistant garments.
In light of the motivation as provided by Zhu II, 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 fabric of Adams in view of Zhu, such as by using crystalline meta-aramid fibers in the fabric, in order to ensure the fabric possesses a shrinkage of 5% or less after 25 washes as this is preferable for a fabric forming a flame resistant garment, and thereby arrive at the claimed invention.
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).
Although there is no disclosure that the test method of Zhu II is in conformity with AATCC 135, given that Zhu II discloses shrinkage as the presently claimed and the absence of evidence of the criticality of how shrinkage is measured, it is the examiner's position that shrinkage disclosed by Zhu II meets the claim limitation.
Claim 107 is rejected under 35 U.S.C. 103 as being unpatentable over Adams et al. (US 2020/0308735) (Adams) in view of Zhu (US 2018/0057978), as applied in claim 1 above, and further in view of Sato et al. (US 2018/0371647) (Sato).
Regarding claim 81
Adams in view of Zhu teaches all of the limitations of claim 1 above. However, Adams does not explicitly teach the modacrylic fiber comprising antimony.
With respect to the difference, Sato teaches a flame resistant fabric for forming flame resistant garments. The flame resistant fabric comprises modacrylic fibers. The modacrylic fibers contain antimony in order to ensure excellent production stability and favorable flame retardance. See, e.g., abstract and paragraphs [0013], [0020], [0025-0026], and [0075].
Sato and Adams in view of Zhu are analogous art as they are both drawn to flame resistant garments.
In light of the motivation as provided by Sato, it therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to use modacrylic fibers comprising antimony as the modacrylic fibers of Adams in view of Zhu, in order to ensure excellent production stability and favorable flame retardance, and thereby arrive at the claimed invention.
Conclusion
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/C.X.N./Examiner, Art Unit 1789
/MARLA D MCCONNELL/Supervisory Patent Examiner, Art Unit 1789