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 .
Examiner Notes
Claims 1, 3-8, 10-15, 17, 19-20, and 22-28 are currently pending of which claims 22-28 are withdrawn. Claims 1, 3-4, 7-8, 10, 13, and 15 have been amended and claims 2 and 18 have been cancelled.
Information Disclosure Statement
The information disclosure statement(s) (IDS) submitted on 09/02/2025 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the IDS is being considered by the examiner.
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, 3-8, 10-15, 17, 19, and 20 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.
Claim 1 recites the broad range of the substrate having at least one layer and a narrow range of the substrate having at least two layers. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claims 3-8, 10-15, 17, 19, and 20 are rejected as being dependent upon indefinite claim 1.
Claim 8 recites that the first top layer comprises non-woven electrospun nanofibers or wet-spun fibers, however claim 1 from which claim 8 depends requires the first top layer to be a woven layer. Woven and non-woven layers are mutually exclusive structures. It is unclear if the first top layer is a woven layer of threads, a nonwoven layer of fibers, or attempting to claim both woven threads and non-woven fibers, in the same layer (which does not appear to be supported by the specification).
For sake of further examination, claim 8 will be viewed as claiming an alternative structure i.e., when the first top layer comprises the non-woven fibers, it does not require the woven threads.
Claim 10 is rejected as being dependent upon indefinite claim 8.
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.
Claims 1, 4-6, 12, and 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Bullock et al. (US 2007/0014979) in view of Conolly (US 2012/0288662) and Ou et al. (US 2005/0192366) incorporated by reference in Bullock.
Regarding claim 1, Bullock discloses a substrate (0009) comprising a fiber-reinforced aerogel layer (instant second bottom layer) interwoven with a fiber-containing material layer (instant first top layer; 0010). Bullock teaches the fiber-containing material layer may be woven fabric (0021). Bullock further teaches that the aerogel material may be prepared via sol-gel process (0013) and thus would comprise aerogel particles.
Bullock does not disclose the fiber-containing material including threads embedded with metallic particles.
Conolly, in the analogous field of thermally insulating apparel (0002), teaches a textile fiber comprising a metal powder coating fibers (0035), a person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the fiber-containing material layer of Bullock to include metal powder embedded on the fiber surfaces, as taught by Conolly, to provide a heat reflective surface of the layer (0035).
Given Bullock teaches the aerogel layer provides for thermal insulation (0013) and Conolly teaches that the metallic powder is designed to reflect heat back to the body (0035) the aerogel particles have an average pore size selected to control conducted and convected thermal energy and the metallic particles have an average particle size and density selected to block or reflect infrared radiation as claimed.
Regarding claim 4, Bullock does not teach the fiber-containing layer further comprising phase change material.
Conolly however teaches an insulation layer further comprising particles including phase change materials (0031).
While not expressly teaching the material “for absorbing conducted thermal energy” the recitation is merely an intended use. Applicants attention is drawn to MPEP 2111.02 which states that intended use statements must be evaluated to determine whether the intended use results in a structural difference between the claimed invention and the prior art. Only if such structural difference exists, does the recitation serve to limit the claim. If the prior art structure is capable of performing the intended use, then it meets the claim.
It is the examiner' s position that the intended use recited in the present claims does not result in a structural difference between the presently claimed invention and the prior art and further that the prior art structure is capable of performing the intended use. Given that Connolly disclose phase change material as presently claimed, it is clear that the phase change material would be capable of performing the intended use, i.e., for absorbing conducted thermal energy, presently claimed as required in the above cited portion of the MPEP.
Regarding claim 5, Bullock teaches the aerogel particles including silica, alumina, titania, and zirconia (0013).
Regarding claim 6, Conolly teaches the powder including silver or aluminum (0035).
Regarding claim 12, Ou, incorporated by reference in Bullock, teaches aerogel particles having a density less than 0.03 g/cc (0076) and average pore size from about 2 to about 80 nm (Fig. 6, 8, and 12), overlapping the claimed density from 0.0001 to 900 g/cc and pore size from 1 to 100,000 nm.
Regarding claim 14, Bullock teaches that a functional layer(s) may be provided in the structure but does not expressly teach attachment to a top and bottom surface of the laminate.
Connolly teaches a laminate comprising an outer material (10) and bottom conductive/wicking layer (80).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the laminate of Bullock to include an outer material layer and conductive/wicking layer, as taught by Connolly, as the outer layer is durable and forms an exterior shell (0025) and the bottom layer aids in the transfer of heat across the body to equalize hot and cold areas (0037).
Regarding claim 15, Bullock teaches addition of a functional layer within the laminate structure which can be needled punched so that the fibers remain intermixed (0024).
Bullock does not teach the functional layer being a fabric.
Connolly teaches a fabric layer (50) provided between the insulation layer and reflective layer (0034, Fig. 1).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the laminate of Bullock to include a fabric layer between the aerogel and metallized fibers, as taught by Connolly, to provide protection (0034).
Claims 3 and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Bullock in view Conolly as applied to claim 1 above and further in view of Salyer (US 5,885,475).
Regarding claims 3 and 19-20, modified Bullock discloses the limitations of claim 1 as discussed above. Bullock teaches addition of a functional layer within the laminate structure which can be needled punched so that the fibers remain intermixed (0024). However, Bullock does not disclose this layer being woven from a second set of threads embedded with a phase change material for absorbing conducted thermal energy.
Salyer, in the analogous field of thermally insulating material (abstract), discloses a phase change material integrally incorporated into the structure of a fiber (column 1, lines 10-15). Salyer teaches the fiber absorbing thermal energy (column 3, lines 65-67). Salyer teaches that the fiber may be formed into longer fibers/threads and woven into a fabric (column 9, lines 55-60).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the functional layer of Bullock to include woven threads embedded with a phase change material as taught by Salyer, to provide both wear and thermal comfort features (column 10, lines 10-15).
Regarding claim 7, Salyer teaches the phase change material includes polyethylene glycol (column 3, lines 25-30).
Claims 8 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Bullock in view Conolly as applied to claim 1 above and further in view of Kolmes et al. (US 2009/0301139).
Regarding claims 8 and 10, modified Bullock discloses the limitations of claim 1 as discussed above. Bullock teaches the fiber-containing material layer including a non-woven (0021).
Bullock does not teach that fibers are electrospun or wet-spun however this includes product by process language. The above arguments establish a rationale tending to show the claimed product is the same as what is taught by the prior art. “[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, 227 USPQ 964,966). 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 different between the claimed product and the prior art product. In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir. 1983), MPEP 2113.
Bullock further does not teach the fiber composition comprising a biodegradable polymer or co-polymer such as polyethylene glycol-based polyurethane.
Kolmes, in the analogous field of textile fabrics (0002), teaches fibers made from copolymers including polyurethane and polyethylene glycol (0030).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the fibers of modified Bullock to comprise polyurethane and polyethylene glycol copolymer as taught by Kolmes, to provide a lightweight flexible textile (0028).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Bullock in view of Conolly as applied to claim 1 above and further in view of Ozden et al. (US 2020/0063296).
Regarding claim 11, modified Bullock discloses the limitations of claim 1 as discussed above. Conolly does not teach a suitable density or particle size for the metallic powder.
Ozden, in the analogous field of textile fabrics (0001) teaches a woven fabric (0021) comprising composite threads embedded with metallic particles (0030). Ozden teaches metal particles present 1 to 50% by weight (0031), overlapping the claimed density from 0.1 to 90 wt%. Ozden teach particle size of 0.1 to about 250 nm (0030), overlapping the claimed size from 1 nm to 200 µm.
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the metallic particles of modified Bullock to have a density and size as taught by Ozden, to provide conductivity to the fibers (0030).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have selected the overlapping portion of the ranges disclosed by the reference because overlapping ranges have been held to be a prima facie case of obviousness, In re Wertheim, 191 USPQ 90, In re Woodruff, 16 USPQ2d 1934, and In re Peterson, 65 USPQ2d 1379. MPEP 2144.05.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Bullock in view of Conolly as applied to claim 1 above and further in view of Holland (US 4,147,829).
Regarding claim 13, modified Bullock discloses the limitations of claim 1 as discussed above. Bullock does not teach the top layer comprising at least one coloring dye.
Holland, in the analogous field of heat reflective textiles (column 1, lines 30-35) comprising an outer layer which colored or dyed (column 2, lines 20-25).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the fiber-containing material layer of modified Bullock to be colored or dyed, as taught by Holland, to provide a color the layer (column 2, lines 20-25).
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Bullock in view of Conolly as applied to claim 1 above and further in view of Morrison (US 2004/0062910).
Regarding claim 17, modified Bullock discloses the limitations of claim 1 as discussed above. Bullock does not teach the substrate comprising fluid flow channels.
Morrison, in the analogous field of fabrics (0001), teaches a fabric comprising one or more channels for preferential fluid flow (0010).
A person of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious for the laminate of modified Bullock to include channels for fluid flow, as taught by Morrison, to improve cooling efficiency (0016).
Response to Arguments
Applicants amendments filed 12/03/2025 have been entered. Accordingly, the 35 U.S.C. 112(b) rejections of claims 7-8, 10, 15, and 18 and 35 U.S.C. 112(d) rejection of claim 18 are withdrawn. However, due to the amendments new 35 U.S.C. 112(b) rejections have been made.
Applicant’s arguments over Fricke have been fully considered but are moot in light the amendments filed 12/03/2025.
Applicant’s arguments over Buckley in view of Ozden have been fully considered and are persuasive. Thus the rejection has been withdrawn.
Applicant’s arguments over Bullock in view of Conolly which remain pertinent to the updated grounds of rejection have been fully considered but they are not persuasive.
Applicant argues that Bullock does not disclose threads embedded with metallic particles, or a woven layer configured to reflect infrared radiation.
The examiner agrees Bullock does not teach threads embedded with metallic particles. This feature is taught by Connolly. Please note, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Bullock teaches that the layer may be woven and in combination with the threads of Connolly, would be configured to reflect infrared radiation as claimed.
Applicant argues that the aerogel layer of Bullock is a monolithic aerogel matrix not a particulate aerogel layer as not claimed.
Bullock teaches that the aerogel layer may be formed via sol-gel process (0013), thus is necessarily a particulate layer. Further Ou, incorporated by reference in Bullock teaches particles (0021).
Applicant argues that Conolly teaches metallic components which are surface coatings or bonding additives not particles embedded within the woven threads themselves and that the aerogel is a bulk foam or polymer composite rather than provided as discrete particles as claimed.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., particles embedded within the threads themselves) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Conolly teaches a metallic coating, made of particles, which would be embedded on the surface of the fibers. The claims do not require discrete particles embedded within the threads themselves as argued. It is further noted that Conolly is not used for a teaching of the aerogel, the aerogel is taught in Bullock.
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 ALICIA WEYDEMEYER whose telephone number is (571)270-1727. The examiner can normally be reached M-Th 9-4.
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/ALICIA J WEYDEMEYER/Primary Examiner, Art Unit 1781