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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 04/29/2026 has been entered.
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 1-22 are rejected under 35 U.S.C. 103 as being unpatentable over 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 semi-hydrophilic with a first moisture regain (taught to contain polyamide with cotton) taught as 5.26 as admitted by Applicant in the Remarks dated 04/29/2026 [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.” It is apparent, however, that the instantly claimed first moisture regain and that taught by Zhou et al. are so close to each other that the fact pattern is similar to the one in In re Woodruff , 919 F.2d 1575, USPQ2d 1934 (Fed. Cir. 1990) or Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed.Cir. 1985) where despite a “slight” difference in the ranges the court held that such a difference did not “render the claims patentable” or, alternatively, that “a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough so that one skilled in the art would have expected them to have the same properties”.
In light of the case law cited above and given that there is only a “slight” difference between the first moisture regain disclosed by Zhou et al. and the first moisture regain disclosed in the present claims and further given the fact that no criticality is disclosed in the present invention with respect to the first moisture regain, it therefore would have been obvious to one of ordinary skill in the art that the first moisture regain disclosed in the present claims is but an obvious variant of the first moisture regain disclosed in Zhou et al., and thereby one of ordinary skill in the art would have arrived at the claimed invention.
Given the present claim states the inner layer is a semi-hydrophilic layer and given Zhou et al. teach blends of various yarn in various percentages, 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].
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. Further, it is noted that Zhou et al. states “The outer layer of the first yarn is mainly composed of regenerated cellulose fiber, wool or cashmere fiber, hemp fiber and silk fiber, with standard moisture regain of 13%, 15%, 12% and 11% respectively, which is much greater than the standard moisture regain of 8.5% of the inner layer of the third yarn cotton fiber. This difference in hygroscopicity creates differential moisture absorption between the outer and inner layers of the fabric.” The difference between the inner and outer layers is therefore clearly taught as greater than 3% and also Zhou et al. teach motivation to create a larger difference between the inner and outer layers for moisture regain in order to improve differential moisture absorption between the layers and therefore teaches it as a results effective variable and it would have been obvious to one of ordinary skill in the art to also arrive at the claimed difference in moisture regain between the layers through routine experimentation. It is moreover reiterated, 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.
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 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 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 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 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 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 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]. 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.
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 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 04/29/2026 have been fully considered but they are not persuasive. Applicant argues Zhou et al. does not teach the newly amended limitations of the first moisture regain being 0.2-5.25% or the difference in moisture regains between the outer and inner layers.
The inner layer and first yarn is semi-hydrophilic with a first moisture regain (taught to contain polyamide with cotton) taught as 5.26 as admitted by Applicant in the Remarks dated 04/29/2026 [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.” It is apparent, however, that the instantly claimed first moisture regain and that taught by Zhou et al. are so close to each other that the fact pattern is similar to the one in In re Woodruff , 919 F.2d 1575, USPQ2d 1934 (Fed. Cir. 1990) or Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed.Cir. 1985) where despite a “slight” difference in the ranges the court held that such a difference did not “render the claims patentable” or, alternatively, that “a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough so that one skilled in the art would have expected them to have the same properties”.
In light of the case law cited above and given that there is only a “slight” difference between the first moisture regain disclosed by Zhou et al. and the first moisture regain disclosed in the present claims and further given the fact that no criticality is disclosed in the present invention with respect to the first moisture regain, it therefore would have been obvious to one of ordinary skill in the art that the first moisture regain disclosed in the present claims is but an obvious variant of the first moisture regain disclosed in Zhou et al., and thereby one of ordinary skill in the art would have arrived at the claimed invention.
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. Further, it is noted that Zhou et al. states “The outer layer of the first yarn is mainly composed of regenerated cellulose fiber, wool or cashmere fiber, hemp fiber and silk fiber, with standard moisture regain of 13%, 15%, 12% and 11% respectively, which is much greater than the standard moisture regain of 8.5% of the inner layer of the third yarn cotton fiber. This difference in hygroscopicity creates differential moisture absorption between the outer and inner layers of the fabric.” The difference between the inner and outer layers is therefore clearly taught as greater than 3% and also Zhou et al. teach motivation to create a larger difference between the inner and outer layers for moisture regain in order to improve differential moisture absorption between the layers and therefore teaches it as a results effective variable and it would have been obvious to one of ordinary skill in the art to also arrive at the claimed difference in moisture regain between the layers through routine experimentation. It is moreover reiterated, 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, it is abundantly clear the present claims are obvious over the cited art. Applicant is invited to amend the claims over the cited art.
Conclusion
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/Shawn Mckinnon/Examiner, Art Unit 1789
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