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 § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 20, 21, 32 and 33 and the dependent claims 22-25, 27 and 28 and dependent claims 74-79 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 20, 21, 32, 33 as currently dependent on claim 18 and claim 30 respectively, are not described in the specification. The embodiment with claim 18 (claim 30) requires a variation of DPF from adjacent segments of 10-40%. Claims 20 and 21, (32, 33) limit the first and second average denier variation to less than 10% and less than 5% respectively along their lengths. Depending on the interpretation of first average denier per filament and second average denier per filament each vary less than 10% along their respective lengths, claims 20 and 21 (claims 32, 33) are outside of the range of claim 18 (claim 30).
The specification discloses different embodiments. One embodiment produces three filaments from the 3 pumps and 3 extruders and 3 spinnerets wherein each filament has a different average denier. The average denier per filament of the first group of filaments vary less than 10% along the length of the filament and the average denier per filament of the second group of filaments vary less than 10% along the lengths of the filament [0005], [0021], [0033], [0076].
The specification, [0078] discloses that the DPF of each filament is constant along its length and/or varies less than 10% or less than 5%. The specification also discloses that [0079] “in some implementations of the first, second, and/or the third aspect, each filament in the first group of filaments and/or the second group of filaments have a wavelike axial cross-sectional shape along the lengths of the filaments. Wavelike refers to a change in the DPF of the filament in different segments along the length of the filament.”
As written, the specification is not disclosing that the implementations with DPF that is constant or only varies less than 10% or 5% and then the DPF varies 10-40%.
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The specification does not disclose, define or explain an embodiment wherein the first and second group of filaments simultaneously has less than 10% variation along the length of the filament and the DPF varies 10-40% along the length in a wavelike axial cross-sectional shape. The specification does not define the measurement of variation of less than 10%, 5% such that one of ordinary skill in the art would understand the scope and further would not understand the scope in combination with a DPF variation of segments of 10-40%
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 20, 21, 32 and 33 and the dependent claims 22-25, 27 and 28 and dependent claims 74-79 are 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.
Claims 20, 21 are dependent on claim 18 and claims 32, 33 are dependent on claim 30. Claims 20, 21 and 32, 33 recite the first average denier per filament and the second average denier per filament vary less than 10% along the lengths of the filaments (claim 20) and less than 5% along the lengths of the filaments (claim 21). As amended, claims 20, 21, 32, 33 recite that the variation of 10%, 5% is along the length of each filament.
However as claim 18 (claim 30) were amended to require a difference, i.e. variation in DPF between segments of 10-40%, it is not clear what measure claims 20, 21, 32 and 33 are reciting. Claims 21, 21, 32, and 33 are not clear as it is not clear how the first average denier and second average denier per filament each vary less than 10%, 5% along their respective length while also having a plurality of segments of different DPF such that the difference in DPFs between adjacent segments is between 10% to 40%.
Wherein, as noted in the 112(a), the specification discloses different implementations, possibly claims 21, 22, 32, 33 are not the same embodiment as now claimed in claims 18 and 30 respectively. For purposes of examination, claims 21, 22, 32, and 33 variation along the length is interpreted as a measured property of the wavelike filament.
In cases where the claim is indefinite but also may be improperly dependent, a rejection under 112(b) is proper.
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 18-24, 30-33, 74-76 are rejected under 35 U.S.C. 103 as being unpatentable over Ruddell et al (US3852948) in view of Buzano (US3587221).
Ruddell is directed to yarns, tows and fibers having differential shrinkability. Ruddell teaches differentially shrinkable tow of continuous filaments in which the filaments vary longitudinally thereof in latent shrinkage characteristic between predetermined minimum and maximum limits. The tow is converted into staple fiber lengths and spun into yarn (ABST).
Ruddell teaches a continuous filament bulked yarn which is equated with a BCF (col. 2, lines 12-17). Ruddell shows the filaments in Figs. 8-12 wherein the filaments have longitudinal variation characteristic (col. 2, lines 49-68; col. 17, lines 34-53). Ruddell teaches the filaments in the yarns are blends of different deniers, example 9 teaches a blend of 3 denier per filament and a 6 denier per filament yarn. Ruddell teaches a blend of different denier filaments. Ruddell is not specific with regard to a first average DPF and second average DPF (col. 11, lines 30-53). As Ruddell teaches a first denier and a second denier, these denier are equated with average deniers.
Ruddell teaches the filaments vary longitudinally and shows segments in Figs. 8-12 (col. 2, lines 49-68). Ruddell is not specific with regard to different DPFs along the length of the filaments such that the difference in DPFs between adjacent segments is between 10% to 40%.
Ruddell teaches the yarns are used as carpet yarn as the filaments produced a yarn of higher bulk.
Per claim 30, directed to a carpet comprising a pile formed of the BCF yarn, as Ruddell teaches the BCF yarn for carpet and the claim does not require any additional structural limitation of the carpet, Ruddell teaches the claimed carpet having a pile of a BCF yarn.
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Buzano is directed to variable denier yarn. Buzano teaches a synthetic thermoplastic material in which each filament comprises at least three types of zones of different diameter, fine zones having the highest crystallinity and greatest molecular orientation, thick zones of lower crystallinity and lower molecular orientation, and intermediate zones of means diameter between the extreme diameters of the fine and thick zones respectively and also of intermediate crystallinity and molecular orientation, the filaments furthermore possessing transverse grooves of attenuated relief at least in the thickest zones, and a nonspiral three-dimensional crimp and a high apparent volume (col. 1 and 2, lines 67-75, 1-5).
Buzano teaches the difference in denier provides for a textured yarn with high apparent volume having three-dimensional nonspiral crimp and high dimensional stability (col. 1, 1-6).
Buzano teaches the yarn of Fig. 2 has a diameter (a) of fine parts that is 30 micron, diameter (b) of intermediate being 36 micron and thick diameter (c) of 50 micron (col. 4, lines 23-26).
The fibers are made of polyester and therefore the micron diameter can be converted to denier. A 30 micron fiber is 8 denier (calculated with a density of PET of 1.2 gm/cc); 36 micron is about 11 denier; 50 micron is about 22 denier.
The difference between the fine to intermediate is 11-8/11 = 27% change.
Fine to thick is 22-8/22 = 63%
Intermediate to thick is 22-11/22 = 50%
Buzano teaches a change in denier that ranges from 27% to 63% and overlaps the claimed range.
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As to claims 18 and 30, it would have been obvious to one of ordinary skill in the art before the effective filing date to combine different denier filaments that have variable denier along the longitudinal direction motivated to produce a bulking yarn with three-dimensional nonspiral crimp.
As to claim 19 and 31, Ruddell teaches the first and second filament deniers are 3 and 6 (col. 11, lines 30-53) which is within the claimed range of 2 to 25.
As to claims 20, 21, 32, 33, Ruddell and Buzano do not measure the variation along the fiber length. As Ruddell in view of Buzano teach the same structure and substantially the same method of making a wavelike filament, it is reasonable to presume that the property of variation along the length is inherent to the Ruddell and Buzano. 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
As to claims 22 and 74, Ruddell teaches groups of filaments which vary longitudinally. Ruddell teaches different denier filaments are blended into a yarn. Ruddell does not specifically teach a wavelike axial cross-sectional shape, however Fig. 8-12 show a structure that is wavelike and equated with wavelike.
Additionally, Buzano shows a wavelike structure.
As to claims 23, 24, 75 and 76, Ruddell teaches a 3 denier group of filaments and a 6 denier group of filaments in Example 9 as noted above wherein the second filament is at least 1.5 times larger than the first filament.
Claim 25, 27, 77 and 78 are rejected under 35 U.S.C. 103 as being unpatentable over Ruddell et al (US3852948) in view of Buzano (US3587221) and in further view of Aneja (US 6013368).
As to claims 25 and 77, Ruddell teaches the filaments are blended together in proportions of 60 percent (0-10 percent shrinkage fiber) and 40 percent (10-18 percent shrinkage fiber) which is not in the claimed range of 2-33% for the first group (larger denier).
Aneja teaches based on the amount of fiber of higher and lower dpf these may be calculated on the basis of relative numbers or relative weights of fibers. In example 2 the light:heavy is number ratio of 2:1; 4:1 and in example 2A the ratio of light:heavy is 10.5:1. The ranges overlap the amounts of 2% to 33% as 2:1 is about 33% heavy filaments, 4:1 is 20% heavy filaments and 10.5:1 is about 8% heavy filaments.
It would have been obvious to one of ordinary skill in the art before the effective filing date to employ the amounts of first and second filaments motivated to achieve the desired bulkiness and hand-feel.
As to claims 27 and 78, Ruddell teaches the same round cross-sectional shape in both the first denier and second denier filaments.
Claims 28 and 79 is rejected under 35 U.S.C. 103 as being unpatentable over Ruddell et al (US3852948) in view of Buzano (US3587221) and Aneja (US 6013368) and in further view of Hagen et al (US 5512367).
As to claims 28 and 79, Ruddell and Buzano teaches round cross-sectional fiber and differ and do not teach a mixture of two different cross-sectional shapes. Aneja teaches scalloped-oval shaped filaments but does not teach a combination of different shapes.
Hagen is directed to a mixed cross-section carpet yarn. Hagen teaches a blend of fibers selected from triangular trilobal and hollow pentagonal fibers (ABST). Hagen teaches the present invention provides a blend of fibers comprising about 51 to 90% by weight of triangular trilobal fibers (component (a)) having a denier per filament of less than about 22 and about 10 to 49% by weight of pointed lobe trilobal fibers (component (b)) having a denier per filament of about 18 to 36 (col. 3, lines 1-6).
Hagen teaches the yarn is a bulked continuous filament (BCF) (col. 6, lines 23-29).
Hagen teaches the two filaments are different cross-sectional shapes, one being triangular trilobal and the other hollow pentagonal fibers.
It would have been obvious to one of ordinary skill in the art before the effective filing date to combine different denier and different shaped filaments in the yarn motivated to produce a bulked continuous filament yarn with sufficient bulk for carpet.
Response to Arguments
Applicant’s amendments and arguments, with respect to the objection to the specification have been fully considered and are persuasive. The Objection to the Specification has been withdrawn.
Applicant amended claims 20 and 21 and stated the amendment should remedy any perceived indefiniteness.
Applicant’s amendments and arguments with respect to claims 20 and 21 do not resolve the 112(b) rejections. As Applicant has also amended claim 18, claim 20 and 21 continue to be rejected under 112(b) and could be rejected under 112(d) depending on the interpretation of the average denier per filament vary less than 10% along their respective lengths. Claim 18 requires the dpf varies 10-40% between adjacent segments. It is not clear what Applicant is measuring. Claims 20 and 21 are outside of the range of claim 18 if the dpf variation is the same measure. If the variation in dpf is not the same measure, then measure of variation in claims 20 and 21 is not clear nor understood. Clarification is required. A 112(a) is also provided as it is not clear where the specification discloses the combination of claim 18 variation of DPF of 10-40% as well as a variation of less than 10%, 5%.
Applicant’s amendments and arguments, with respect to 35 USC 102 rejections over claims 18 and 30 over Hagen; claims 18 and 19 over Aneja; claims 18 over Rodini; claims 18 and 19 over Blackmon have been fully considered and are persuasive. The 35 USC 102 rejection have been withdrawn.
Applicant’s amendments and arguments, with respect to 35 USC 103 rejections of claims 19-21 and 31-33 over Hagen are withdrawn in view of the amendments. Hagen does not teach or suggest segments with different DPF along the length of the filament.
Applicant’s amendments and arguments with regard to Negishi are persuasive.
Applicant argues that Negishi’s “degree of variability” is an indicator of the difference of DPF at a specific cross-section of the yarn such as at locations n(1), n(2) or n(3) as shown in Fig. 2 of Negishi. Negishi col. 5, lines 13-32 defines the cross-sections of the filaments at any of those locations (e.g. n(1) location) varies by between 7% and 30%. This cannot be considered as a variation of the average DPF along any filament in Negishi.
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Wherein Negishi measures the variation (V) of the cross-sectional area (S), Negishi is not measuring the denier. Additionally, Negishi for Fig. 2, the measures n(1), n(2) and n(3) etc. are measures for the yarn which is a combination of the filaments of Fig. 1. Negishi does show a filament that has different segments that have different cross-sectional areas as claimed. And the cross-sectional area of a fiber can be related to the denier via a calculation with the density of the polymer in the fiber. The linear density, diameter and cross-sectional area are related for the density of the fiber. While the variability is based on the sectional areas which are presumed cross-sectional area and therefore proportional to the DPF. Negishi does not disclose the diameter, cross-sectional area, nor DPF for each segment and therefore does not teach the variation in a change in DPF. Negishi provides a different measure of variability. Negishi does not teach the variability is 10-40% DPF along the length of the fiber.
The rejections including Negishi and withdrawn in view of the amendments.
New grounds of rejection are presented in this office action.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Buzano (US3691748) is directed to textured polyethylene terephthalate yarns that have variable denier, however the variation of denier is greater than 10-40%.
Gupta et al (WO 2018225001) is directed to a texturized multifilament yarn with varying denier along the length of the filament.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER A STEELE whose telephone number is (571)272-7115. The examiner can normally be reached 9-5:30.
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/JENNIFER A STEELE/Primary Examiner, Art Unit 1789