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 .
Claims 1 – 20 are pending. As set forth in the Examiner Interview Summary mailed on May 26, 2026, a restriction requirement was made between Group I, claims 1 – 14, Group II, claims 15 – 18, and Group III, claim 19 – 20. During a telephone conversation with John Wright, an election of Group I, claims 1 – 14, was made without traverse. The election requirement is set forth below, and claims 1 – 14 are further examined on the merits.
Election/Restriction
Restriction to one of the following inventions is required under 35 U.S.C. 121:
I. Claims 1 - 14, drawn to a thermal fabric, classified in D04B 1/14.
II. Claims 15 - 18, drawn to a battery pack of an electric vehicle, classified in H01M 50/209.
III. Claims 19 - 20, drawn to a method of constructing a thermal fabric, classified in D04B 21/00.
The inventions are independent or distinct, each from the other because:
Inventions I and II are related as mutually exclusive species in an intermediate-final product relationship. Distinctness is proven for claims in this relationship if the intermediate product is useful to make other than the final product, and the species are patentably distinct (MPEP § 806.05(j)). In the instant case, the intermediate product is deemed to be useful as a cooling device used in garments or bedding and the inventions are deemed patentably distinct because there is nothing of record to show them to be obvious variants.
Inventions III and Inventions I and II are related as process of making and product made. The inventions are distinct if either or both of the following can be shown: (1) that the process as claimed can be used to make another and materially different product or (2) that the product as claimed can be made by another and materially different process (MPEP § 806.05(f)). In the instant case, the knitting process can form the overlying layers at the same time the coolant conduit is captured between in a single step, as recited in claim 18, or preformed layers of knit fabrics, can be joined together by a knitting step when the coolant conduit is captured between the knit layers.
Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply:
The different inventions would require a different field of search and have acquired a separate status as shown by their separate classifications.
Applicant is advised that the reply to this requirement to be complete must include (i) an election of an invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention.
The election of an invention may be made with or without traverse. To reserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
During a telephone conversation with John Wright on April 1, 2026 a provisional election was made without traverse to prosecute the invention of Group I, claims 1 - 14. Affirmation of this election must be made by applicant in replying to this Office action. Claims 15 – 20 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must include all the limitations of an allowable product/apparatus claim for that process invention to be rejoined.
In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an otherwise proper restriction requirement between product/apparatus claims and process claims may be maintained. Withdrawn process claims that are not commensurate in scope with an allowable product/apparatus claim will not be rejoined. See MPEP § 821.04. Additionally, in order for rejoinder to occur, applicant is advised that the process claims should be amended during prosecution to require the limitations of the product/apparatus claims. Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01.
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 1 – 14 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.
The phrase “generally planar” in claim 1 is indefinite. It is unclear how an object is “generally” planar. The term “planar” is meant to define a two-dimensional structure and lines or points which are lying within said two-dimensional structure. The applicant recites that the wall is “generally” planar and includes a plurality of knit layers and cooling conduits within a planar structure. These features suggest that the structure has depth and would not be planar. Is the applicant intending the phrase to mean flat or level? For purposes of examination, the term is interpreted as referencing a flat fabric structure, before it has been bent or molded. Claims 2 – 14 are rejected due to their dependency on claim 1.
Claim 2 is indefinite since it claims a planar structure as well as a structure with walls that a perpendicular and transverse to each other. Claim 2 requires the at least generally planar structure includes different wall portions and said wall portions are defined as parallel or transverse to each other. It is unclear if the applicant intends to claim the structure as a flat material or a shaped material. If the fabric is flat, then the walls are drawn to a shape that the flat fabric can be formed into. Thus, the walls and the specific wall orientations are to a form that the fabric is capable of forming and not the shape of the claimed fabric. Further, if the fabric is flat, prior to walls being formed, then the claim does not recite any structural features that distinguish the first wall from the second and third wall. Prior to bending the fabric what features distinguish the second wall from the first or third wall. Where does one wall end and another wall begin. The claim does not recite limitations directly related to the flat fabric, but only limitations that the fabric is capable of forming. Claims 3, 4, 7, 8, 9, and 10 are similarly rejected since claims are reciting a shape of the folded walls and not specific how those features translate to the claimed flat fabric. Claims 3 – 14 are rejected due to their dependence on claim 2. For purpose of examination, the claims are drawn to the features of the flat fabric and only require the ability to be folded into the claimed shape.
The term “first hinge regions” in claim 4 is indefinite. Does the region have a structural feature to distinguish the “hinge region” portion of the fabric from the walls? All fabrics are flexible and bendable to wrap around various shape objects. Anywhere the fabric bends can be considered a type of hinge. Is the hinge region a seam or region where a bond is used to join together different pieces of fabrics? For purposes of examination, anywhere a fabric can be bent would be considered a hinge region. Claims 6 and 10 are similarly rejected. Claims 5 – 14 are rejected due to their dependence on claim 4.
The phrase “the third wall portion has opposite free ends” in claim 8 is indefinite. First, as set forth above, it is unclear where the third wall ends or begins. Thus, it is unclear how to determine which ends are opposite said third wall. How are the opposite free ends defined. And how are portions of the first or second wall extending beyond said opposite free ends? The term “end” implies that the fabric ends and doesn’t continue beyond that point. If the free ends aren’t the end of the fabric, what are the free ends the end of? Claims 9 and 11 are similarly rejected. Claims 9 – 14 are rejected due to their dependency on claim 8.
The term “cover portion” in claim 8 is indefinite. It is unclear what constitutes a “cover portion”? The claim recites that the cover portion is part of the first and second walls and extends beyond the free ends? Is the cover portion formed from the same material as the flat fabric that forms the walls? In the flat form of the fabric what distinguishes the cover portion from the walls? Claims 9 – 14 are similarly rejected.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by CN 112011889 A.
CN 112011889 A is drawn to a warp knit spacer fabric comprising a surface layer, a bottom layer and a temperature control pipeline between the surface layer and the bottom layer (abstract). The bottom and surface layer are equivalent to the applicant’s knit layers and the temperature control pipeline corresponds to the claimed coolant conduit. It is noted that the translation does suggest that the structure is woven in places. However, based on the fabric structure shown in the figures and the method of making involving a warp knitting device and knitting needles, the reference to woven structures is considered a translation error. Further, the pipeline is shown being laid in the knit structure in a serpentine fashion going back and forth across the fabrics in generally parallel rows. Thus, claim 1 is anticipated by CN 112011889 A.
Claim Rejections - 35 USC § 103
Claim(s) 2 – 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over CN 112011889A in view of Richardson (US 9,492,314) or Ono (JP H11335909 A).
The features of CN 112011889 A have been set forth above. CN 112011889 A fails to teach the fabric is shaped into various end product. As noted above, the claims positively claim a flat fabric that is capable of being folded or bent to form a shaped final product. With regards to the features requiring the wall elements, hinge elements, free ends portions, cover portions, etc. the claims fail to recite specific features that distinguish one part of the knit fabric with internal coolant conduits from another in the flat form. Thus, the prior art needs to teach that the fabric can be folded or bent into a shape that could have those sections. Richardson is drawn to composites used in temperature control systems that control heat or cool people or objects (abstract). Items that can be heated or cooled include food or beverage containers or other items which need temperature control (column 2, line 60 – column 3, line 8). Further, Richardson discloses that the composite can be configures in rectangular or polygon shapes or even more complex shapes such as a vest (column 7, line 60 – column 8, line 5). Additionally, Figure 11 shows that cooling pad can be wrapped around cylinder or block shaped objects (column 8, lines 36 – 46). Further, Ono is drawn to fabrics with piping for cooling or heating. As shown in Figures 1 - 16, the tubing can be added in various configurations to be used in clothing, shoes, gloves, futons, and sleeping bags. The composite material takes various configurations that confirm to or wrap around the item to be cooled. Thus, it would be obvious to one having ordinary skill in the art that the warp knit cooling fabric of CN 112011889A can be formed into different shaped cooling products as shown by Richardson and Ono, to be used as a cooling product that cools people or objects in various uses. Thus, claims 2 – 14 are rejected.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Additional prior art noted by the examiner includes Olmo (US 3,529,310), McCartney (US 5,996,378), and Boegelein (WO 03/009788).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jenna Johnson whose telephone number is (571)272-1472. The examiner can normally be reached Monday, Wednesday, and Thursday, 10am - 4pm.
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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jlj
July 11, 2026
/JENNA L JOHNSON/Primary Examiner, Art Unit 1789
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