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 .
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, 6, 7, 10, 12, 13, 16, and 17 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.
Regarding claims 1, 6, 7, 10, 12, 13, 16, and 17, claim 1 recites that the substrate and the porous membrane “each comprise the same material or the same type of material.” It is unclear what the scope of “the same type of material” necessarily entails. For example, it is unclear what manner the material is the “same type.”
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 7 and 10 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Regarding claims 7 and 10, the claims recite that the polymeric material is or comprises a thermoplastic polymer, and that the polymeric material is or comprises a copolymer. The claims are each dependent from claim 1, which recites that the polymeric material comprise polymethylpentene or an α-polyolefin as claimed. Since claims 7 and 10 recite that the polymeric material “is” a thermoplastic polymer or “is” a copolymer, the claims each appear to improperly broaden the scope of the claim from which they depend.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claims 1, 6, 7, 10, 13, and 17 are rejected under 35 U.S.C. 103 as obvious over US Pub. No. 2005/0020161 to Dummer in view of USPN 9,783,914 to Stokes.
Regarding claims 1, 6, 7, 10, 13, and 17, Dummer teaches a waterproof, breathable, recyclable, layered composite having at least one layer of a woven or knitted fabric, and an elastomeric waterproof film or coating of the same polymer (Dummer, Abstract), such as polyesters, nylon, polyolefins or polyurethanes (Id., paragraphs 0003, 0013). Dummer teaches that substantially all layers of the composite fabric are substantially comprised of one polymer type (Id., paragraph 0013), wherein the polymers include polyolefins for each of the fabric layer and the elastomeric coating or film (Id., paragraph 0013, claims 1-5). Dummer teaches that “breathable” refers to a film capable of transporting water vapor, such as a microporous structure (Id., paragraph 0016).
Regarding the substrate and membrane being made from or comprising the same material or same type of material, as set forth above, it is unclear exactly what is claimed. However, Dummer teaches that the film and the fabric can be made of the same polymer. Additionally, although Dummer teaches that suitable polymers include polyolefins, Dummer does not appear to teach the claimed polymeric material.
Stokes teaches novel, improved, or modified porous membranes, fibers, and products made from such membranes for use in textile materials, garments, products, and/or textile related applications (Stokes, Abstract), including wovens, nonwovens, knits, laminates, and composites (Id., column 3 lines 23-64). Stokes teaches that the microporous membranes and fibers are made of one or more copolymers, such as block or impact copolymers, or of at least one polyolefin combined with at least one copolymer (Id., Abstract, column 2 lines 37-62). Stokes teaches that the microporous membranes and fibers are comprised of a polyolefin in combination with one or more block copolymers such as impact copolymers, where the polyolefins in the copolymers include polypropylene, poly 1-butene, poly-4-methyl-1 pentene, and/or blends, mixtures or combinations thereof (Id., column 2 line 37 to column 3 line 22). Stokes teaches that tailoring the choice of composition, in the chemical structure of the polymeric blend or composition, can influence performance properties such as hand, drape, ‘quietness’ with movement, and surface coefficient of fiction, producing membranes, fibers, layers, composites, laminates, or textiles with better hand, softer drape, quieter movement, and/or lower coefficient of friction (Id.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the composite of Dummer, wherein each of the fabric and film comprise the same polyolefin polymer, such as a polypropylene, polybutene or polymethylpentene copolymer, as taught by Stokes, motivated by the desire of forming a conventional composite comprising polyolefin copolymers known in the art as being predictably suitable for forming fabric and membrane composites having improved properties, such as hand, drape, and lower coefficient of friction, such that the entire composite is recyclable. Note that since the polymer of the prior art is substantially similar as claimed, the polymeric material appears to be inherently hydrophobic.
Regarding claims 6, 7, and 10, the prior art combination teaches that substantially all layers of the composite fabric are substantially comprised of one polymer type (Dummer, paragraph 0013), wherein the polymers include polyolefins for each of the fabric layer and the elastomeric coating or film (Id., claims 1-5). The prior art combination teaches that the polyolefins are thermoplastic polymers (Stokes, column 4 lines 14-46). Note that the prior art combination does not require the polymers to comprise fluorine.
Regarding claim 13, the prior art combination teaches a waterproof film or coating with a microporous structure of a monolithic structure (Dummer, paragraph 0016).
Claim Rejections - 35 USC § 103
Claims 12 and 16 are rejected under 35 U.S.C. 103 as obvious over Dummer in view of Stokes, as applied to claims 1, 6, 7, 10, 13, and 17 above, and further in view of US Pub. No. 2005/0266228 to Jain.
Regarding claims 12 and 16, the prior art combination does not appear to teach the claimed zeolite or the porosity or pore size of the membrane. However, Jain teaches a protective covering for clothing comprising at least one microporous film attached to a functional layer (Jain, Abstract, paragraphs 0001, 0032). Jain teaches that microporous films allow the covering to maintain contiguous air passages and maximizes moisture vapor transport (Id., paragraph 0017). Jain teaches that the functional layer comprises at least one functional material with one or more of adsorptive, absorptive, reactive, and catalytic properties that inhibit the passage of harmful chemical or biological agents (Id., paragraphs 0034, 0040). Jain teaches that the functional layer may comprise a knit including polyester or nylon (Id., paragraph 0040). Jain teaches that functional materials include zeolite (Id., paragraph 0035). Jain teaches that the breathable microporous films should have an average pore diameter less than 10 micrometers and a pore volume of 10% to 95% (Id., paragraph 0041), wherein suitable films include polyamide and polyesters (Id., paragraph 0042).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the composite of the prior art combination, wherein the composite includes a zeolite functional material and wherein the breathable film comprises a pore size or porosity, such as within the claimed ranges, as taught by Jain, motivated by the desire of forming a conventional breathable composite having improved functional properties and a film properties known in the art as being predictably suitable for clothing applications.
Response to Arguments
Applicant's arguments filed November 5, 2025, have been fully considered but they are not persuasive. Regarding the 35 U.S.C. 112 rejections, Applicant argues that a person of ordinary skill in the art would understand “the same material or the same type of material” to indicate that the substrate and porous membrane comprise the same polymeric material and/or the same type of polymeric material, from the identified classes of polymeric material. Examiner respectfully disagrees. Although the claim sets forth the material comprising a polymeric material, the specification provides no guidance as to what the “same type of material” necessarily entails, nor does the claim limit the “type” to a specific feature or composition.
Applicant’s remaining arguments are moot in view of the new grounds of rejection.
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 PETER Y CHOI whose telephone number is (571)272-6730. The examiner can normally be reached M-F 9:00 AM - 3:00 PM.
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/PETER Y CHOI/Primary Examiner, Art Unit 1786