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 the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-22 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 1, 13, and 22 recite “inner layer is hydrophilic” and “first yarn is hydrophilic”. Applicant has not pointed to support for such an amendment nor has The Office found support in the specification as originally filed. While its appears support exists for the inner layer and/or first yarn to be semi-hydrophilic or hydrophobic, support for the inner fabric or first yarn being hydrophilic does not exist. Also it is noted that a moisture regain of 0.2-6% would not be consistent with hydrophilicity. Applicant is advised to point to support for such a limitation or to amend or cancel the claims.
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 1-22 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.
Claims 1, 13, and 22 recite “inner layer is hydrophilic” and “first yarn is hydrophilic”. Applicant has not pointed to support for such an amendment nor has The Office found support in the specification as originally filed. While its appears support exists for the inner layer and/or first yarn to be semi-hydrophilic or hydrophobic, support for the inner fabric or first yarn being hydrophilic does not exist. Also it is noted that a moisture regain of 0.2-6% would not be consistent with hydrophilicity. Applicant is advised to point to support for such a limitation or to amend or cancel the claims.
Claim 20 recites composite blend of a synthetic polymer is plaited with an elastane. It is unclear how a composite blend of a synthetic polymer is plaited with an elastane and still considered a blend. For purposes of examination, the cited art is considered to meet the present claim limitations. Applicant is advised to delete or clarify this limitation.
Claim 21 recites outer layer is a composite blend of a natural fiber plaited with an elastane or a blend of natural fiber and synthetic fiber. It is unclear how a composite blend of a synthetic polymer is plaited with an elastane and still considered a blend. Further, it is unclear from the claim if Applicant is intended to claim the outer layer is a composite blend of a natural fiber plaited with an elastane or plaited with a blend of natural fiber and synthetic fiber or if Applicant is intended to claim the outer layer is a composite blend of a natural fiber with a synthetic fiber. For purposes of examination, the cited art is considered to meet the present claim limitations. Applicant is advised to delete or clarify this limitation.
Claim Rejections - 35 USC § 102/103
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.
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 1-2, 4 and 7-22, are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zhou et al. (CN 106192177).
Regarding claims 1, 13 and 22, Zhou et al. teach an article of apparel comprising a fabric with moisture management function with an inner layer comprising a first yarn (taught by Zhou as inner layer with third yarn) forming the inner layer [Abstract]. The inner layer and first yarn is hydrophilic or hydrophobic with a first moisture regain (taught to contain polyamide with cotton) in the claimed range [0014]. Zhou et al. teach “ the third yarn is a cotton fiber type blended yarn, which is a blended yarn of cotton fiber and one or two of the following fibers: polyamide ester fiber, polyamide fiber, and polyacrylonitrile fiber, wherein cotton fiber accounts for 70-90% by weight percentage.”. Given the present claim states the inner layer is a hydrophilic layer and given Zhou et al. teach blends of various yarn in various percentages which would encompass the claimed range, the claimed moisture regain is taught by Zhou et al. Further, Zhou et al. teach the moisture regain of the inner layer as a results effective variable in order to affect the moisture absorption of the entire fabric (all layers) and as it works in tandem with the other layers. The statement in Zhou of standard moisture regain being 8.5% is referring to the moisture regain of an all cotton layer and Zhou et al. is in no way limited to such. Therefore, the claimed moisture regain is obvious over Zhou et al. as it would have been obvious to one of ordinary skill in the art to arrive at the claimed moisture regain through routine experimentation. The fabric also has an outer layer comprising a second yarn forming the outer layer [Abstract]. The outer layer is hydrophilic with a second moisture regain [0010]. The second moisture regain of the outer layer is greater than the first moisture regain of the inner layer so as to act to pull moisture through the inner layer and push the moisture through the outer layer [0034]. The second yarn is a combination of a core-bicomponent yarn and an outer sheath yarn surrounding the core bicomponent yarn [0035].
Regarding claim 2, the at least one outer sheath yarn is spun around the core bicomponent yarn and extends along the length of the core bicomponent yarn [0035].
Regarding claim 4, the synthetic filament is made of a material that includes polyester among others and the natural staple yarn is made of a material that includes wool among other materials [0021].
Regarding claim 7, the outer sheath comprises two natural staple yarns [0039].
Regarding claims 8-10, Zhou et al. are silent regarding the claimed indigo dyeing. However, even if Zhou does not disclose the claimed pre-dyeing, it is noted that “[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) . Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP 2113.
Therefore, absent evidence of criticality regarding the presently claimed indigo dyeing and given that Zhou meets the requirements of the claimed fabric, Zhou clearly meet the requirements of present claims fabric.
Regarding claims 11-12, Zhou et al. teach the moisture regain of the fibers of the outer layer is much greater than the moisture regain of the fibers of the inner layer and given Zhou et al. teach such similar fibers made of such composition, the claimed first moisture regain of the inner layer, the second moisture regain of the outer layer and the difference between the second moisture regain and the first moisture regain is in the claimed range and in the alternative would have been obvious to have the claimed moisture regains in order to affect the moisture absorption and transport from one side of the fabric to the other side of the fabric and arrive at the claimed invention.
Regarding claim 14, the combined core bicomponent yarn and the outer sheath yarn is knitted with the second yarn forming the outer layer.
Regarding claim 15, the fabric is a weft or warp knitted fabric or woven [0009, 0033-0034 and 0054].
Regarding claim 16, the fabric is the weft or warp knitted fabric and has a warp knit construction [Fig. 2].
Regarding claim 17, the combined core bicomponent with at least one outer sheath yarn is single spun yarn [Example 1].
Regarding claim 18, at least one of the inner layer or outer layer includes a fabric wash or mechanical finish [0025-0031].
Regarding claim 19, the inner layer further comprises a third yarn (middle layer yarn) joined with the first yarn and the outer layer comprises a fourth yarn (core yarn) joined together with the second yarn (sheath or wrap yarn) wherein the combined core bicomponent yarn with at least one outer sheath yarn comprises the fourth yarn.
Regarding claim 20, the inner layer comprises a synthetic polymer (inner layer yarn is comprised of synthetic polymer and cotton) plaited with elastane (middle layer yarn is plaited with inner layer) [0038, 0041 and Ex. 1].
Regarding claim 21, the outer layer is a composite blend of a natural fiber (outer fiber sheath yarn) plaited with an elastane (middle layer yarn is plaited with the outer fiber yarn) or a blend of natural fiber with a synthetic fiber [0009 and 0041].
Claims 3, 5-6, 11-12 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Zhou et al. (CN 106192177).
Regarding claim 3, the core bicomponent yarn comprises a synthetic fiber and the outer sheath yarn comprises a natural staple yarn [0021]. Given the limited number of choices. It would have been obvious to one of ordinary skill to arrive at the synthetic fiber being filament and in order to affect the strength of the core as is known in the art.
Regarding claims 5-6, Zhou et al. are silent regarding the at least one outer sheath comprises synthetic filament or synthetic staple. However, it would have been obvious to one of ordinary skill in the art to use synthetic filament or synthetic staple including polyester, nylon, polypropylene, polyurethane, acrylic or TPEE in the outer sheath in a blend in order to affect the layer properties as is known in the art and arrive at the claimed invention.
Regarding claims 11-12, Zhou et al. teach the moisture regain of the fibers of the outer layer is much greater than the moisture regain of the fibers of the inner layer and given Zhou et al. teach such similar fibers made of such composition, the claimed first moisture regain of the inner layer, the second moisture regain of the outer layer and moisture regain gradient is in the claimed range and in the alternative would have been obvious to have the claimed moisture regains in order to affect the moisture absorption and transport from one side of the fabric to the other side of the fabric and arrive at the claimed invention.
Regarding claim 16, the fabric is knit from a warp knit construction [Fig. 2]. In the alternative, it would have been more than obvious to use one of the claimed knit constructions as they are well known in the art.
Claims 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over Zhou et al. (CN 106192177) in view of Hubsmith (PG Pub. 2012/0047624).
Regarding claims 8-10, Zhou et al. are silent regarding the claimed indigo dye. However, Hubsmith teach indigo dyeing of fabric (which would include dyeing of the second yarn and the at least one outer sheath yarn) in order to achieve UV blocking. Hubsmith silent regarding the outer sheath being pre-dyed, but it would have been more than obvious to pre-dye the outer sheath in only in order to save money on dyeing. Further, even if Hubsmith does not disclose the claimed pre-dyeing, it is noted that “[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) . Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP 2113.
Therefore, absent evidence of criticality regarding the presently claimed pre-dyeing and given that the previous combination meets the requirements of the claimed fabric, the previous combination clearly meet the requirements of present claims fabric.
It would have been obvious to one of ordinary skill in the art to use the indigo dyeing of the fabric of Hubsmith in Zhou et al. in order to provide UV blocking and arrive at the claimed invention.
Art Not Used but Relevant
PG Pub. 2003/0181118 teaches moisture management fabric with layers.
Response to Arguments
Applicant's arguments filed 08/05/2025 have been fully considered but they are not persuasive. The statement in Zhou of standard moisture regain being 8.5% is referring to the moisture regain of an all cotton layer and Zhou et al. is in no way limited to such.
Applicant argues Zhou teaches a moisture regain of 8.5% for the inner layer. Zhou et al. teach “ the third yarn is a cotton fiber type blended yarn, which is a blended yarn of cotton fiber and one or two of the following fibers: polyamide ester fiber, polyamide fiber, and polyacrylonitrile fiber, wherein cotton fiber accounts for 70-90% by weight percentage.”. Given the present claim states the inner layer is a hydrophilic layer and given Zhou et al. teach blends of various yarn in various percentages which would encompass the claimed range, the claimed moisture regain is taught by Zhou et al. Further, Zhou et al. teach the moisture regain of the inner layer as a results effective variable in order to affect the moisture absorption of the entire fabric (all layers) and as it works in tandem with the other layers. Therefore, the claimed moisture regain is obvious over Zhou et al. as it would have been obvious to one of ordinary skill in the art to arrive at the claimed moisture regain through routine experimentation.
Applicant is invited to amend the claims over the cited art.
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 SHAWN MCKINNON whose telephone number is (571)272-6116. The examiner can normally be reached Monday thru Friday generally 8:00am-5:00pm EST.
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/Shawn Mckinnon/Examiner, Art Unit 1789