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 .
Election/Restrictions
Claims 12-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected inventions, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 8/22/2025.
Applicant traverses the election/restriction on the grounds that the burden to the Applicant for filing additional applications is greater than the burden on the Examiner for examining all groups of claims. This is not the standard by which election/restriction is made and is not persuasive. The inventions are separate and distinct as the current record suggests.
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.
Claims 1-9 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Frankosky et al. (USP 5225242).
Claim 1: Frankosky et al. teach (i) a plurality of continuous matrix fibers (col. 1, lines 60-65) comprising a first polymeric material including a first polymer component (col. 1, line 57), wherein the first polymer component comprises a first recycled- polyester (there is no difference in chemical structure from the claimed “recycled polyester” with respect to the disclosed polyester, they’re both polyester), wherein the first polymeric material has a first melting point; and (ii) a plurality of binder fibers (col. 1, lines 59-61) having an irregular cross-section randomly dispersed throughout the plurality of matrix fibers (col. 2, lines 1-5, hot rolling causes deformation of the bicomponent fibers resulting in irregularity), the plurality of binder fibers comprising a second polymeric material including a second polymer component (col. 1, lines 59-62), wherein the second polymeric material has a second melting point that is less than the first melting point (col. 1, lines 59-62).
Frankosky et al. call the batting a “continuous batt” but do not stipulate that the fibers are continuous. However, given that the batt is intended to be continuous and it is intended to be soft against a wearer’s body, one of ordinary skill in the art would understand that continuous fibers would be appropriate for use as the polyester fiberfill (col. 1, lines 40-51). It is also known continuous fibers are a typical fiber type and the selection of a material recognized for its intended use in the art is obvious.
Claim 2: the mix is 70-96% by weight of polyester fiberfill and 4-30% by weight of binder fiber (col. 2, lines 27-30).
Claim 3: the continuous matrix fibers are nanocomponent as there is no additional component or multicomponent structure described.
Claim 4: In the examples, the matrix fiber is the polyester is polyethylene terephthalate (i.e. PET), but in a staple form (Example 2). However, the rest of the disclosure does not specify the type of fiber length and it is understood that given that fibers are either continuous or staple, the disclosure reasonably conveys both to a POSITA. As such, choosing PET to be the matrix fiber in the disclosure including in a continuous form would have been obvious to one of ordinary skill in the art the time of the invention as the selection of a known material, which is based upon its suitability for the intended use, is within the ambit of one of ordinary skill in the art. See In re Leshin, 125 USPQ 416 (CCPA 1960) (see MPEP § 2144.07). They do not recite that it is “recycled” or “virgin”. However, there is no different in chemical structure from a “recycled” or “virgin” PET as they are both PET.
Claim 5: Frankosky et al. do not teach the aspect ratio of the fibers. The aspect ratio describes the shape of the fiber. Frankosky et al. teach that the matrix fibers may be of various types of cross-section shapes (col. 3, lines 1-10). Choosing a specific aspect ratio, i.e. shape and proportion of the fibers, would have been obvious to a POSITA at the time of the invention as routine experimentation would determine the optimal fiber shape. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Claim 6: the matrix fibers are multi-lobal (col. 3, lines 1-10).
Claim 8: “post-consumer waste” does not further limit the structure of the material. The final material is still polyester. As such, Claim 8 is met by the polyester limitation in Frankosky et al. The origin of the material is not limiting to the material itself.
Claim 7: Frankosky et al. teach that the dtex is 5 and the dpf is 4 (col. 6, lines 28-30). While they do not teach the average cross-section in microns and dtex is not always directly related to a cross-section length, it is known that the size of the fiber, i.e. cross section and dtex are result effective variables that are routinely optimized to control various properties of a material. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The discovery of an optimum value of a known result effective variable, without producing any new or unexpected results, is within the ambit of a person of ordinary skill in the art. See In re Boesch, 205 USPQ 215 (CCPA 1980) (see MPEP § 2144.05, II.).
Claims 9: Frankosky et al. teach that the binder fibers are nanocomponent (col. 3, lines 12-14).
Claim 11: Frankosky et al. do not stipulate what type of fibers the bicomponent fibers are. However, given that fibers are either continuous or staple, it is understood that the claim is met in any disclosure of the bicomponent fiber.
Claims 10 are rejected under 35 U.S.C. 103 as being unpatentable over Frankosky et al. (USP 5225242) in view of Matsunaga et al. (USP 5646077).
Claim 10: Frankosky et al. do not teach that the material of the nanocomponent binder fiber.
Matsunaga et al. teaches a binder fiber for a nonwoven web comprising a nanocomponent fiber wherein the nanocomponent fiber (col. 3, lines 1-6) is made of polyethylene terephthalate (col. 2, lines 39-41). This is a common material for a nanocomponent binder fiber. the selection of a known material, which is based upon its suitability for the intended use, is within the ambit of one of ordinary skill in the art. See In re Leshin, 125 USPQ 416 (CCPA 1960) (see MPEP § 2144.07).
Response to Arguments
Applicant's arguments filed 1/16/2026 have been fully considered but they are not persuasive.
Applicant argues that the Examiner has misinterpreted Frankosky and that Frankosky does not teach the claimed irregular shape binder fibers.
In the rejection above, the Examiner cites “col. 2, lines 1-5, hot rolling causes deformation of the bicomponent fibers resulting in irregularity” as teaching the irregularity. This interpretation is taken in light of Applicant’s specification, in particular [0044] which states hat the irregular cross-sections of the binder fibers are formed by “at least partially melt[ing] and at least partially flow[ing]” of the binder fibers to form irregular cross-sections. [0044] also states “ As shown in Figure lA, the plurality of binder fibers 20 each have an irregular cross-section along the length to the fibers where the second polymer has partially melted and flowed or spread-out to interact or contact multiple matrix fibers prior to being re-solidified and forming a network of bonds with the matrix fibers.” As such, it is interpreted that since Frankosky’s disclosure of hot rolling binder fibers which melts the fibers to perform the intended function of binding also results in the same “irregular” structure as claimed.
Frankosky intends for the binder fibers to bind the material. One of ordinary skill in the art would obviously conclude that the binder fibers are distributed among the matrix fibers in order to allow for even binding. The presence of resin in addition to the heat rolling is irrelevant as the heat is intended to melt the fibers.
Applicant argues that there is no motivation for Franksoky to modify the fiber shape. However, whether Frankosky recognizes the benefit or natural result or not, they teach the same process as Applicant discloses which results in irregular binder fiber cross-section. As such, the prior art teaches the structure whether or not it is the focus of the prior art. MPEP 2144.01, “[I]n considering the disclosure of a reference, it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom.” In re Preda, 401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968). And further, “It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.” See, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006).
As such, Applicant’s arguments are not persuasive.
Conclusion
THIS ACTION IS MADE FINAL. 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 ALLISON FITZSIMMONS whose telephone number is (571)270-1767. The examiner can normally be reached M-F 9:30 am - 2:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Benjamin Lebron can be reached at (571)272-0475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ALLISON FITZSIMMONS
Primary Examiner
Art Unit 1773
/ALLISON G FITZSIMMONS/ Primary Examiner, Art Unit 1773