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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 2/11/2026 has been entered.
Affidavit or Declaration under 37 CFR 1.132
The Declaration under 37 CFR 1.132 filed 2/11/2026 is insufficient to overcome the rejection of claims 1-17 based upon the 35 USC 103 over Stark as set forth in the last Office action because: The declaration evidence is not commensurate with the scope of the claims. The declaration presents that at 15 wt % polyurethane in N,N dimethylacetamide and 80:20 wt% ratio between particles and the polyurethane and the viscosity of 868.7 the spraying is easy and dispersion stays on the sprayed side of the fabric. The claims are broader in scope and require a viscosity of 400-1500 mPas and do not limit the composition to 15 wt% polyurethane and do not limit the particles to 80:20 wt% ratio with polyurethane and do not limit the viscosity to 868.7. Claim 6 lists polymers include polyurethane but does not limit the polymers to only polyurethane. As Stark teaches the same amount of diluent, at least 40%, it is reasonable to presume that the viscosity of Stark is the same as claimed.
Claim Rejections - 35 USC § 103
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.
Claims 1-16 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Stark et al (WO 2017097778 cited as US 20180371687) in view of in view of Bacino (WO 2017031432).
Stark is directed to waterproof and breathable porous membranes. The invention relates to manufacturing processes for waterproof and breathable porous polymer membranes by coating a substrate with a dispersion comprising polymer, coated particles and diluent and removing the particles by dissolution, wherein the particles are made of organic salts, metal salts or metal oxides and the coating material is selected from carboxylic acids and alkoxy silanes (ABST).
Stark teaches a method of making a membrane with a pore size of 5 to 2000 nm [0079].
Stark teaches the membrane is produced by coating onto a shaped substrate and therefore equated with a three-dimensional (ABST), [0074]. Stark teaches the membrane is attached to a substrate or can also be peeled off the substrate [0052]. Stark teaches the substrate can be woven fabric. Woven fabric is equated with a 3D flexible substrate. A woven has three dimensions and texture that is equated with 3D.
Stark teaches a dispersion as claimed, of diluents in amounts of at least 40 wgt % to 65 wgt % [0043].
Stark teaches polymers dissolved in the diluent [0014].
Stark teaches coated or uncoated particles (ABST), [0014], [0035]. The particles are made (premanufactured) [0041] with a particle size of 5 to 10000 and 5 to 1000 [0061] made from metal salts or metal oxides [0061] coated with carboxylic acid or silanes [0063]-[0064].
The steps provided by Stark are (a1), (a2), (b), (c), (d), (e), (f) including dispersion of the coated particles, diluents, polymer and optional additives; the dispersion is applied to the substrate; solvent evaporation; crosslinking steps; salt phase/oxide phase; removing the particles by dissolution; the membrane is removed or peeled from the substrate [0039]-[0052].
Stark teaches the membrane forms shaped articles and that is equated 3D structure. The membranes are shaped and have a length, width and thickness.
Stark does not teach the viscosity of the solution is 400-1500 mPas. Stark teaches a comparatively high amount of diluent ensures low viscosity and thereby thin film formation [0043]. Stark teaches the amount of diluent is at least 40 wt% and 60 wt%, 65 wt% and Applicant claims at least 40wt%. As Stark teaches the same materials a composition of diluents and polymers and particles, it is reasonable to presume the measured viscosity is inherent to Stark. Stark discloses the size of the pores can be 5-2000 nm and the pore size distribution may be precisely adjusted due to the starting materials [0111]. Stark teaches it is known to optimize the pore size with starting materials which would inherently change the viscosity. Stark teaches the pore size and composition of the starting materials that overlaps the claimed ranges and therefore the viscosity would be inherently present.
Stark differs and does not measure the solubility of the polymer in the solvent.
As Stark teaches the same solvents as claimed it is reasonable to presume that the solubility of the solvent is inherent to Stark.
When the reference discloses all the limitations of a claim except a property or function, and the examiner cannot determine whether or not the reference inherently possesses properties which anticipate or render obvious the claimed invention the examiner has basis for shifting the burden of proof to applicant as in In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980). See MPEP § 2112- 2112.02
Stark teaches the dispersion step (a) is applied to the substrate by using conventional printing or coating methods such as spraying, painting, roll to roll processes or dip-coating [0046].
Stark teaches the water vapor transmission rate is suitable to measure permeability [0025] and is at least 500 g/m2, 700 g/m2 [0079] which meets the claim limitation.
Stark teaches a coating fabric and a fabric has 3 dimensions, length, height, width and would be inherently flexible as fabrics are pliable and conform to the body.
Stark is not specific with regard to the membrane being seamless.
Bacino teaches a conformable seamless three dimensional article and methods therefore. Bacino teaches waterproof, breathable garments that eliminate the need for waterproof seam tape (ABST). Bacino teaches a seamless conformed film having a first side and a second side [0009]. Bacino teaches the second component of a textile [0016]. The garments can be gloves, hats, shirts, jackets, vests, leg coverings [0018]. The seamless garment is made by positioning a textile on a mold and stretching the ePTFE film material over the textile and mold to form a seamless garments [0021].
It would have been obvious to one of ordinary skill in the art before the effective filing date to produce a seamless garment motivated to produce a waterproof garment without the use of sealing tape to cover the seams.
As to claim 2, Stark teaches suitable methods of spraying, coating, dip-coating or printing [0046].
As to claim 3, Spark differs and does not teach a method that does not involve a closing step by bonding, sewing, welding, gluing, knitting, stitching.
Spark does not involve a phase separation step, Spark teaches the pores are formed after application of the liquid membrane (step f), a coating step (b) is selected from spraying or printing and the dissolution (f) is performed in 90 minutes or less [0050].
Bacino teaches a conformable seamless three dimensional article and methods therefore. Bacino teaches waterproof, breathable garments that eliminate the need for waterproof seam tape (ABST). Bacino teaches a seamless conformed film having a first side and a second side [0009]. Bacino teaches the second component of a textile [0016]. The garments can be gloves, hats, shirts, jackets, vests, leg coverings [0018]. The seamless garment is made by positioning a textile on a mold and stretching the ePTFE film material over the textile and mold to form a seamless garments [0021].
It would have been obvious to one of ordinary skill in the art before the effective filing date to produce a seamless garment motivated to produce a waterproof garment without the use of sealing tape to cover the seams.
As to claim 4, Stark teaches the membrane is used for outdoor clothing [0069], [0106].
As to claim 5, Stark teaches the metal salts for the particles and coating materials as claimed [0061]-[0063], the diluents are solvents with evaporation temperatures typically below 200°C [0047], substrates are polymer materials, glasses metal ceramic and paper and textiles [0068]-[0069].
Stark teaches shaped articles but is not specific with regard to the shape.
Bacino teaches a conformable seamless three dimensional article and methods therefore. Bacino teaches waterproof, breathable garments that eliminate the need for waterproof seam tape (ABST). Bacino teaches a seamless conformed film having a first side and a second side [0009]. Bacino teaches the second component of a textile [0016]. The garments can be gloves, hats, shirts, jackets, vests, leg coverings [0018].
It would have been obvious to one of ordinary skill in the art before the effective filing date to produce a 3 dimensional article such as a gloves, hats, shirts and leggings motivated to produce a waterproof garment that is seamless and does not require sealing tape on the seams.
As to claim 6, Stark teaches the soluble polymers can be one of polyurethanes, polyolefins, polyamides [0057].
As to claim 7, Stark teaches the
thickness of the membrane 30-60 micron [0089];
porosity of 10-90%, 55-60% [0079]; which overlaps 30-80%;
poremouth size of 5-2000 nm [0079]; which is within the range of 5 to 10000 nm;
water column of at least 4.8 m and
WVTR of 500 g/m2 per day; water contact angle of at least 50 degrees [0084];
can be built up to multiple layer which would be obvious over 1-4 or 1-20 [0089].
Stark teaches the features that overlap in range and overlapping ranges are obvious over the prior art.
As to claim 8, Stark teaches the composition of the dispersion includes: 40-99% diluents; 1-20 wt% polymer; 0.5-40% coated particles; 0-5 wt % additives [0091].
Stark teaches the amount of coating material is 1-10% by weight of the coated particle (claim 7).
As the amount of coating material and dyes include 0%, and therefore not required by the claim.
Stark teaches the compositions that overlap in range and overlapping ranges are obvious over the prior art.
As to claim 9, Stark is directed to a porous polymer membrane according to claim 1 as noted under claim 1.
Stark teaches the pore sizes are 5-2000 nm [0111]. As the claim indicates the additional requirements are optional, the next set of limitations are not required by the claim.
However, Stark does teach the:
thickness is 0.01-1000 micron [0114];
the poremouth is 5-2000nm and
porosity of 10-90% such as 55-60%;
water column of at least 4.8 m and
WVTR of at least 500 g/m2 per day [0079].
Stark teaches the articles can be clothing garments [0122]. Clothing garments have 3 dimensional shapes.
Stark is silent with respect to a single piece structure without visible assembly artifacts.
Bacino teaches seamless garments.
As to claim 10, Stark teaches woven or nonwoven textile as substrate [0121]. The membrane is self-supporting and connected to the textile by gluing welding or sewing [0121].
As to claim 11, Stark teaches the textile and membrane and is made by the method as noted under claim 1 with the pore sizes/thickness/porosity/water column and WVTR of claim 9.
As to claim 12, Stark teaches a textile that are clothing such as coats, jackets, trousers, underwear [0122]. Stark teaches multilayer materials [0052].
Stark teaches the pore sizes are 5-2000 nm [0111].
Stark is not specific with regard to seamless garment.
Bacino teaches a conformable seamless three dimensional article and methods therefore. Bacino teaches waterproof, breathable garments that eliminate the need for waterproof seam tape (ABST). Bacino teaches a seamless conformed film having a first side and a second side [0009]. Bacino teaches the second component of a textile [0016]. The garments can be gloves, hats, shirts, jackets, vests, leg coverings [0018].
It would have been obvious to one of ordinary skill in the art before the effective filing date to produce a 3 dimensional article such as a gloves, hats, shirts and leggings motivated to produce a waterproof garment that is seamless and does not require sealing tape on the seams.
As to claim 13, Stark teaches the membrane is produced by the dispersion of step (a) is applied to a substrate (6), e.g. by using conventional printing or coating methods. This results in a coated particle/polymer film (4) on said substrate (6) further containing diluent. Suitable methods are known in the field and include spraying, painting, roll-to-roll processes, dip-coating [0046].
Stark is silent with regard to a shoe.
Bacino teaches the garments can be booties or shoe inserts [0061].
As to claim 14, Stark teaches a textile that are clothing such as coats, jackets, trousers, underwear [0122]. The clothing is cited as outdoor clothing [0069]. The clothing is equated with sports clothing.
Bacino teaches the garments can be booties or shoe inserts [0061].
As to claim 15, Stark teaches a porous membrane made from a dispersion and therefore the use of the dispersion for a porous membrane. Stark is not specific with regard to seamless.
Bacino teaches membranes that are seamless.
It would have been obvious to one of ordinary skill in the art before the effective filing date to produce a 3 dimensional article such as a gloves, hats, shirts and leggings motivated to produce a waterproof garment that is seamless and does not require sealing tape on the seams.
As to claim 16, Stark teaches woven or nonwoven textile as substrate [0121]. The membrane is self-supporting and connected to the textile by gluing welding or sewing [0121].
Stark teaches a dispersion as claimed, of diluents in amounts of at least 40 wgt % to 65 wgt % [0043].
Stark teaches polymers dissolved in the diluent [0014].
Stark teaches coated or uncoated particles (ABST), [0014], [0035]. The particles are made (premanufactured) [0041] with a particle size of 5 to 10,000 and 5 to 1,000 [0061] made from metal salts or metal oxides [0061] coated with carboxylic acid or silanes [0063]-[0064].
The steps provided by Stark are (a1), (a2), (b), (c), (d), (e), (f) including dispersion of the coated particles, diluents, polymer and optional additives; the dispersion is applied to the substrate; solvent evaporation; crosslinking steps; salt phase/oxide phase; removing the particles; the membrane is removed or peeled from the substrate [0039]-[0052].
Stark teaches the membrane forms shaped articles and that is equated 3D structure. The membranes are shaped and have a length, width and thickness.
Stark does not teach the viscosity of the solution is 400-1500 mPas. Stark teaches a comparatively high amount of diluent ensures low viscosity and thereby thin film formation [0043]. As Stark teaches the same materials a composition of diluents and polymers and particles, it is reasonable to presume the measured viscosity is inherent to Stark.
Stark differs and does not measure the solubility of the polymer in the solvent.
As Stark teaches the same solvents as claimed it is reasonable to presume that the solubility of the solvent is inherent to Stark.
When the reference discloses all the limitations of a claim except a property or function, and the examiner cannot determine whether or not the reference inherently possesses properties which anticipate or render obvious the claimed invention the examiner has basis for shifting the burden of proof to applicant as in In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980). See MPEP § 2112- 2112.02
Stark teaches woven or nonwoven textile as substrate [0121]. The membrane is self supporting and connected to the textile by gluing welding or sewing [0121].
Stark teaches the
thickness of the membrane 30-60 micron [0089];
porosity of 10-90%, 55-60% [0079];
poremouth size of 5-2000 nm [0079];
water column of at least 4.8 m and
WVTR of 500 g/m2 per day; water contact angle of at least 50 degrees [0084];
Stark is not specific with regard to the membrane being seamless.
Bacino teaches a conformable seamless three dimensional article and methods therefore. Bacino teaches waterproof, breathable garments that eliminate the need for waterproof seam tape (ABST). Bacino teaches a seamless conformed film having a first side and a second side [0009]. Bacino teaches the second component of a textile [0016]. The garments can be gloves, hats, shirts, jackets, vests, leg coverings [0018]. The seamless garment is made by positioning a textile on a mold and stretching the ePTFE film material over the textile and mold to form a seamless garments [0021].
It would have been obvious to one of ordinary skill in the art before the effective filing date to produce a seamless garment motivated to produce a waterproof garment without the use of sealing tape to cover the seams.
As to claim 17, Stark teaches the particle size is 5-10000 nm [0061] which overlaps the claimed range of 2000-8000 nm. Stark differs and does not measure the solubility of the polymer in the solvent.
As Stark teaches the same solvents as claimed it is reasonable to presume that the solubility of the solvent is inherent to Stark.
When the reference discloses all the limitations of a claim except a property or function, and the examiner cannot determine whether or not the reference inherently possesses properties which anticipate or render obvious the claimed invention the examiner has basis for shifting the burden of proof to applicant as in In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980). See MPEP § 2112- 2112.02
Response to Arguments
Applicant’s amendments and arguments, with respect to 112(d) over claim 12 has been fully considered and are persuasive. The 35 USC 112(d) of claim 12 has been withdrawn.
Applicant's amendments and arguments filed 2/11/2026 have been fully considered but they are not persuasive. Applicant presented a Rule 1.132 Declaration to present evidence of an unexpected result of the viscosity range of 400-1500 mPas. The evidence is not persuasive because the evidence is not commensurate with the scope of the claims. As noted above, the declaration presents that at 15 wt % polyurethane in N,N dimethylacetamide and 80:20 wt% ratio between particles and the polyurethane and the viscosity of 868.7 the spraying is easy and dispersion stays on the sprayed side of the fabric. The claims are broader in scope and require a viscosity of 400-1500 mPas and do not limit the composition to 15 wt% polyurethane and do not limit the particles to 80:20 wt% ratio with polyurethane. Claim 6 lists polymers include polyurethane but does not limit the polymers to only polyurethane. As Stark teaches the same amount of diluent, at least 40%, it is reasonable to presume that the viscosity of Stark is the same as claimed. Further the evidence did not present that the unexpected result of a dispersion that stays on the sprayed side having an even aspect across the entire claimed range of 400 to 1500 mPas.
Applicant argues the 35 USC 103 rejection over Stark in view of Bacino do not teach or suggest the features of “said polymer membrane is 3-dimensional and seamless” and “a liquid membrane dispersion having a viscosity of 400-1500 mPas”. Applicant notes that “attached to the 3-dimensional flexible substrate” is to be construed as the membrane is in direct contact with the 3-dimensional flexible and there is no adhesive.
Stark teaches such a membrane as the dispersion is sprayed onto the fabric substrate.
Applicant argues that Examiner asserts that Stark teaches 3D membranes, however Applicant respectfully traverses the Examiners assertion and submits that the membranes described by Stark are not 3D. Applicant states that a 3D membrane differs from a 2D membrane through its structure through its structure. Specifically, a 2D membrane has a flat structure, while at a 3D membrane has a non-flat structure.
Applicant’s arguments are not commensurate with the scope of the claims. Applicant has not claimed a non-flat structure. Applicant’s composition, method of applying to the substrate via a dispersion are the same as Stark, the article made would be the same and equated with a 3D membrane. Stark teaches the substrate is a woven or non-woven textile material and a woven or non-woven is inherently a 3D substrate. Fabrics have texture and would inherently be non-flat. Non-flat is a relative term and would not explicitly In the absence of limitation that further limits 3-D or non-flat (if claimed), the invention is obvious over Stark.
Applicant argues that Stark teaches the substrate may be easily removed from the porous material, e.g. by peeling off or by transfer to another substrate as a multilayer material. The removal step aims to remove the substrate to obtain an unsupported material or to transfer the porous material. Applicant states that Stark fails to teach manufacturing a membrane directly on a 3D flexible substrate.
The office action maintains that Stark teaches the membrane on the textiles [0124]-[0126] as inventive textiles with polymer membranes. So while Stark teaches you can remove the membrane, Stark also teaches embodiments that are polymer membranes on the textiles as noted in the cited paragraphs.
Applicant argues that Bacino does not overcome these deficiencies. Applicant argues that the seamless membrane of Bacino is attached by adhesive to the textile. Thus Bacino fails to teach a process for manufacturing a 3D seamless membrane directly attached to a 3D substrate.
Bacino is relied upon for teaching a seamless structure and not the attachment method. While Stark provides no reason to think that the structure of Stark is not seamless, Bacino is relied upon for teaching that it is known in the art to produce a seamless structure. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant traverses Examiner’s assertions and findings and notes that Stark merely teaches that the pore size is defined by the diameter of the coated particles [0111] and that by suitable selection of coated particles such as size, coating material and amounts) and by the selection of the process parameters (such as coating thickness, drying time) porosity and pore size distribution may be varied over a broad range. Stark is completely silent with respect to the influence of the viscosity on the pore size and the processability of the composition.
Stark teaches the dilution of the solvent to achieve thinner viscosities. Stark is merely silent with regard to the measurement of the viscosity. If there is a critical relationship between the viscosity and pore size, the burden is on applicant to provide evidence of the criticality of the claimed range.
Applicant states that the first Menand declaration evidences that the dispersions exemplified by Stark have viscosities significantly lower than 400 mPas.
As noted in response to the first declaration, the claims have broader ranges than the evidence and as the diluent is claimed to be at least 40%, Applicant’s claims are not commensurate with the scope of the evidence and Stark reasonably overlaps the claimed invention. If there is a critical relationship between the viscosity and pore size, the burden is on applicant to provide evidence of the criticality of the claimed range.
Applicant states that Examiners argument that a higher pore size is directly connected to a higher viscosity cannot be followed. Applicant states that when the difference between two compositions reside solely in the particle size, one would expect for reason such as particle surface area, Brownian motion etc. that the composition with higher particle size would have lower viscosity.
With regard to Examiners arguments, to clarify, as Stark teaches broader ranges that encompass the claimed ranges of weight percent, particles size and pore size, the claimed invention is obvious over Stark. Evidence of the criticality of the claimed ranges compared to Stark is necessary to overcome the claimed rejection. The Rule 1.132 declarations have not presented evidence that is commensurate with the scope of the claim.
Applicant states that the viscosity of the composition is highly dependent on the wgt % and nature of the diluent, polymer and particles in the composition as well as other factors and therefore the Office Action conclusion based on paragraph [0043] and materials of Stark would inherently have the same viscosity range is not correct.
Stark teaches the same materials and composition, i.e. weight percent of diluent, and Stark teaches the viscosity is achieved via the percentage of diluent and therefore reasonable to presume that the viscosity is inherently found in Stark. In the absence of a showing of the criticality of the viscosity that is commensurate in scope with the claims, i.e. a more narrow range in the claims, the rejection is maintained as Stark overlaps the claimed ranges.
Applicant further argues the declarations of Menand and states that the viscosity of the dispersion is an essential feature of the invention which ensures not only the processability of the dispersion, but also provision of a homogeneous membrane. Applicant presents further evidence from the declaration.
As noted earlier, the evidence in the Declarations is not commensurate with the scope of the claims. The claims are sufficiently broad compared to the evidence. The claims do not require the percentage of polymer nor that the polymer is polyurethane. Examiner is available for an interview to further discuss if Applicant believes this would further prosecution.
The rejection is revised per the amendments and maintained.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER A STEELE whose telephone number is (571)272-7115. The examiner can normally be reached 9-5:30.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Marla McConnell can be reached at 571-270-7692. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JENNIFER A STEELE/Primary Examiner, Art Unit 1789
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