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 .
Response to Amendment
The amendment dated 9/29/2025 has been considered and entered into the record. The instant claims have been amended to overcome the previous indefinite rejection. Independent claim 1 has been amended to require at least one foreign matter comprising at least one of an optical brightener, a matting agent, and an antimicrobial substance. This amendment overcomes the previous rejection based upon Eltz. As such, the anticipatory rejection is hereby withdrawn. New grounds of rejection are set forth below.
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.
Claim(s) 1–3, 7, 9, and 13–20 are rejected under 35 U.S.C. 103 as being unpatentable over Eltz (US 5,609,676) in view of Vegad (US 2007/0243380 A1).
Eltz teaches a process of recycling dyed cellulosic waste, wherein the recycled material is colored waste textiles comprising cellulose. Eltz abstract, 1:21–34, 58–62. In the process set forth in Eltz, the waste textiles, and optionally wood pulp, are dissolved and then molded into viscose fibers and the formation of two- or three-dimensional articles that do not require a bleaching procedure. Id. at abstract, 1:3–20, 5:1–13. The waste textiles are preferably sorted by color prior to recycling. Id. at 4:28–32.
Eltz fails to teach the presence of at least one foreign matter in a starting material, wherein the foreign matter comprises at least on of a group which consists of an optical brightener, a matting agent, and an antimicrobial substance.
Vegad teaches the formation of antimicrobial lyocell fibers through the addition of silver chloride-coated titanium dioxide particles. Vegad abstract. The particles can be added the fiber spinning solution or to a precursor or ingredient of that solution. Id. ¶ 23.
Accordingly, it would have been obvious to one of ordinary skill in the art to have modified the waste of Eltz prior to recycling to include the antimicrobial particles of Vegad motivated by the desire to make the molded article of Eltz antimicrobial.
Claims 13–20 are directed to product-by-process claims, wherein the product formed is rendered obvious by Eltz and Vegad and not result in materially different product. For example, the recycled material comprising cellulose and dye do not contain non-cellulosic fibers, metals, cross-linkers and the disclosed process does not involve a bleaching procedure. As such, the recycled and molded viscose product of Eltz would be materially the same as that of the claimed invention.
“[E]ven 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, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985)
Once the Examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to Applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product. In re Marosi, 218 USPQ 289, 292.
Claim(s) 4–6, 11, and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Eltz (US 5,609,676) in view of Abe (US 2020/0048802 A1).
Eltz teaches a process of recycling dyed cellulosic waste, wherein the recycled material is colored waste textiles comprising cellulose. Eltz abstract, 1:21–34, 58–62. In the process set forth in Eltz, the waste textiles, and optionally wood pulp, are dissolved and then molded into viscose fibers and the formation of two- or three-dimensional articles that do not require a bleaching procedure. Id. at abstract, 1:3–20, 5:1–13. The waste textiles are preferably sorted by color prior to recycling. Id. at 4:28–32.
Eltz fails to teach a viscose fiber material comprising elastane or polyester or their respective mass percentages in the fiber material.
Abe teaches a fiber structure for use in a garment comprising viscose fibers, polyester filament yarn at levels of more than 10 mass percent and less than 45 mass percent and elastane fiber in an amount of more than 3 mass percent and less than 15 mass percent of the fiber structure. Abe abstract. ¶¶ 20, 41. The viscose fiber is a regenerated which is spun by a viscose method. Id. ¶ 25.
It would have been obvious to one of ordinary skill in the art to have used the fiber composition in Abe in molding the cellulose material in Eltz motivated by the desire to select a particular cellulosic waste material.
Claim(s) 8 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Eltz and Vegad as applied to claim 1 above, and further in view of Firgo (US 5,601,767).
Eltz fails to teach the regeneration of lyocell fibers.
Firgo teaches that it is well known to use as an alternative to the viscose process, a different cellulosic regeneration process that makes lyocell fibers. Firgo at abstract, 1:9–30.
As such, it would have been obvious to one having ordinary skill in the art at the time the invention was made to substitute the viscose regeneration process with that of making lyocell fibers as Firgo teaches the functional equivalency cellulosic regeneration processes. Simple substitution of one known element for another to obtain predictable results is obvious. KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007).
Furthermore, Firgo teaches the homogenization of cellulosic suspension when making the regenerated fibers. See Firgo at 1:49–58, 2:5–14. Accordingly, it would have been obvious to one of ordinary skill in the art to have homogenized the dye in the regeneration process set forth in Firgo motivated by the desire to make a consistently colored cellulose material. See Eltz at 4:28–31.
Response to Arguments
Applicant's arguments filed 9/29/2025 have been fully considered but they are not persuasive.
Applicant argues that Abe discloses yarns and textiles comprising fiber mixtures of quality, but contain no foreign matter. Furthermore, Applicant contends that a yarn is not a molded body and as such the combination of Eltz and Abe does not result in the claimed invention of cellulose and foreign matter combined in a common solid body composite. This argument is not persuasive because the rejection set forth above does not rely upon a bodily incorporation of Abe’s teachings into Eltz. Instead, the Examiner relies upon what would have been suggested by the prior art as whole. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., Inc., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Here, Abe teaches combining different materials and their weights for use in a garment, wherein polyester and elastane are added to viscose with the motivation to modify Eltz to form a particular fabric composition. Abe abstract. ¶¶ 20, 41.
Conclusion
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 MATTHEW D MATZEK whose telephone number is (571)272-5732. The examiner can normally be reached M-F 9:30-6.
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/MATTHEW D MATZEK/Primary Examiner, Art Unit 1786