DETAILED ACTION
In Reply filed on 02/17/2026, claims 1-12 are pending. Claims 1-6 and 8-12 are withdrawn based on the restriction requirement. Claim 7 is considered in the current Office 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 .
Status of Previous Objections/Rejections
Previous objection to the specification is withdrawn based on the Applicant’s amendment.
Previous 35 USC 102 rejections are maintained in view of Applicant’s argument and amendment.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Interpretation
The Examiner wish to point out that product-by process claims are not limited to the manipulations of the recited steps, only the structure implied by the steps. "[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 this case, once a product appearing to be substantially identical is found and a prior art rejection is made, the burden shifts to the Applicant to show an nonobvious difference. See MPEP 2113 (I)-(III).
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 7 is rejected under 35 U.S.C. 102(a)(1) as anticipated by CN111254581 (“Li et al” hereinafter Li), as provided in the IDS dated 11/01/2023 and machine translation provided in Office Action dated 07/02/2025.
Regarding Claim 7, Li teaches a fabric made by the method of claim 1 (Figure 2 and abstract, nanofiber membrane is formed as final product comprises of polymer such as nylon 6, page 1, line 45, which is a known type of yarn, and heating and melting the skeleton, page 1, lines 53-54, which is an example of filament due to lack of specific definition from the instant application. Thus, the fabric made by Li comprises of a polymer and a filament and the claimed fabric appears to be the same or similar to that of 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, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). Furthermore, "[b]ecause validity is determined based on the requirements of patentability, a patent is invalid if a product made by the process recited in a product-by-process claim is anticipated by or obvious from prior art products, even if those prior art products are made by different processes." Amgen Inc. v. F. Hoffmann-La Roche Ltd., 580 F.3d 1340, 1370 n. 14, 92 USPQ2d 1289, 1312, n. 14 (Fed. Cir. 2009). See also Biogen MA Inc. v. EMD Serono, Inc., 976 F.3d 1326, 1334, 2020 USPQ2d 11129 (Fed. Cir. 2020). See MPEP 2113 (I).
Response to Arguments
Applicant's arguments filed 02/17/2026 have been fully considered but they are not persuasive.
The Applicant argues the new languages included in the amended claim 1 was not anticipated by Li, thus, claim 7 should be allowable. Furthermore, as further persuasive support for these aforesaid amendments, a copy of correspondence with the United Kingdom Intellectual Property Office is attached herewith for support, indicating that the UK Office believes these amendments are sufficient to grant approval in that office.
The Examiner respectfully disagreed. Firstly, claim 7 is elected and is directed to an fabric product. 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. See MPEP 2113(I). In other words, current amendment to claim 1 does not change the structure of the final product of claim 7 and the scope of the invention remains the same which is a fabric product comprises of a yarn and a filament materials layered in parallel array or in desired shape. The fabric disclosed by Li also discloses a nanofiber membrane fabric formed as final product comprises of polymer such as nylon 6 (page 1, line 45, which is a known type of yarn) and heating and melting the skeleton (page 1, lines 53-54), which is equivalent to filament. The Applicant fails to point out the nonobvious difference between the claimed fabric and the fabric of prior art. Thus, the fabric made by Li comprises of a polymer and a filament and the claimed fabric appears to be the same or similar to that of the prior art and the rejection is maintained. Secondly, allowability of an application is not bound by the results of other Office Action (see MPEP 1852) as guideline and patentability of application varies from country to country. Thus, Foreign Office Action functions as additional references but does not impact the patentability of the application.
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 XINWEN (Cindy) YE whose telephone number is (571)272-3010. The examiner can normally be reached Monday - Thursday 8:30 - 17:00.
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XINWEN (CINDY) YE
Examiner
Art Unit 1754
/MATTHEW J DANIELS/ Primary Examiner, Art Unit 1742
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