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 .
This office action is in response to applicant’s amendments filed November 6, 2025.
Claims 1-17 and 20 are pending. Claims 1,5,11 and 13 have been amended. Claims 18 and 19 have been cancelled.
The rejection of claims 5 and 13 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, are withdrawn in view of applicant’s amendments.
Claims 1-17 and 20 stand rejected under 35 U.S.C. 103 as being unpatentable over Cha (US 2018/0142156) for the reasons set forth below.
Claims 1-17 and 20 stand rejected under 35 U.S.C. 103 as being unpatentable over Cha (US 2018/0142156) in view of JP 7193912B2 and Yoshidi (JP 2014201858A) for the reasons set forth below.
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 11-17 and 20 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 11 recites “components” but doesn’t define what is included in “components”. For examination purposes the examiner interpreted the “components” to be the ZnO, scouring agent, dye, leveling agent, dispersing agent, and surfactant. Claims 12-17 and 20 are also rejected for being dependent upon claim 11 and inheriting the same deficiency.
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 11-17 and 20 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. Claim 11 recites “at least 130°C” which is new matter. Applicant only has basis for 130°C not the range of 130°C and values higher based on the applicant’s specification paragraph [0077]. No range is taught in applicant’s specification rather just “heated to 130°C at a rate of 1.6°C per minute” which does not provide basis for “heating the fabric and components to a temperature of at least 130°C”. Claims 12-17 and 20 are also rejected for being dependent upon claim 11 and inheriting the same deficiency.
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 1-17 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Cha (US 2018/0142156).
Cha teaches synthetic fibers and fabrics (paragraphs 0211,0216,0233) comprising polymers, ZnO, leveling agents, dispersants, dyes, borax (scouring agents) and surfactants (paragraphs 0176, 0178, 0176,0178,0180,0188,0195,0199,0233-0234,0244,0245,0249). Cha teaches incorporating the composition by spraying, dipping or impregnating the fabric or combining the materials in the polymer melt and extruding into a fiber which can be used for fabrics (paragraphs 0135,0211,0233,0216). Cha teaches synthetic polymers to make the fibers and fabrics such as polystyrene, polyester, polyamide, polyurethane or polyolefin, which meets applicant’s example of sustainable product as indicated in paragraph 0002 of applicant’s specification, (paragraph 0150,0156,0202,0210-0211,0216).
Cha does not teach all the claimed components in a single embodiment but one of ordinary skill in the art can arrive at the claimed fabrics by selecting from the teachings of Cha. Cha does not teach jet treating a in a jet dyeing machine and heating the fabric and components to a temperature of at least 130°C.
It would have been obvious to one of ordinary skill in the art at the time the invention was made to select the instantly claimed components to incorporate into the fabrics of Cha as Cha teaches the claimed components are effective in producing flame retardant articles. Cha teaches ZnO, leveling agents, dispersants, dyes, borax (low foaming scouring agents) and surfactants as conventional components useful for coloring and dispersing dyes and flame retardants into polymer melts before extrusion into fibers or for application to already made fabrics by spraying, impregnation or dipping. Selecting known conventional components for effectively producing flame retardant fabrics is obvious.
It would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the fabrics of Cha by selecting 1 kg of fabric and incorporating 10g dye, 5g leveling agent, 30 g dispersing agent, 10 g scouring agent and 30 g surfactant into the fabric as these quantities can all be determined through routine experimentation based on the desired amount of fabric to be treated or prepared. The amount of dye would determine the color level of the end product and is a design choice. The amounts of the leveling agent, dispersing agent, scouring agent and surfactant directly impact the penetration of the dye as well as even application of the dye into the fabric so as to provide uniform deep coloring. These amounts are all within routine skill in the art to adjust through routine experimentation to produce a uniformly dyed fabric of a chosen color with good color build up and penetration into the fabric for a durable dyeing.
The limitation “being treated in a jet dyeing machine to incorporate the ZnO, scouring agent, dye, leveling agent, dispersing agent, and surfactant into the fabric, wherein the jet dyeing machine treatment includes heating the fabric and components to a temperature of at least 130°C” is a product by process limitation. Cha teaches a fabric treated with the claimed ZnO, dyes, dispersants, leveling agents, surfactants and scouring agents. Applicant has not demonstrated the criticality of the method of application of the compounds in a jet dyeing machine. Since the same fabric is produced comprising the same components, the burden shifts to applicant to demonstrate the process of making the fabric materially affects the invention. Cha clearly teaches incorporating the composition by spraying, dipping or impregnating the fabric or combining the materials in the polymer melt and extruding into a fiber which can be used for fabrics. Any difference imparted by the product by process limitations would have been obvious to one having ordinary skill in the art at the time the invention was made because where the examiner has found a substantially similar product as in the applied prior art, the burden of proof is shifted to the applicant to establish that their product is patentably distinct, not the examiner to show the same process of making, see In re Brown, 173 USPQ 685 and In re Fessmann, 180 USPQ 324. Burden is on applicants to show product differences in product by process claims, see In re Thorpe, 227 USPQ 964 (Fed. Cir. 1985); In re Best, 195 USPQ 430 (CCPA 1977); In re Fessman, 180 USPQ 324 (CCPA 1974); In re Brown, 173 USPQ 685 (CCPA 1972).
Claims 1-17 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Cha (US 2018/0142156) in view of JP 7193912B2 and Yoshidi (JP 2014201858A).
Cha is relied upon as set forth above.
Cha does not teach applying the composition in a jet dyeing machine and heating the fabric and components to a temperature of at least 130°C.
JP 7193912B2 teaches it is effective to apply scouring agents, dispersing agents, leveling agents, water absorbing agents which are surfactants such as dialkyl sulfosuccinates and dyes in a jet dyeing machine at 135°C (paragraph 0114, 0040) to polyester fabrics (paragraphs 0065).
Yoshidi teaches it is known and effective to apply zinc oxides and dyeing agents to fabrics containing polyesters or polyamides by exhaustion, padding, sprayiong and immersion using a jet dyeing machines (page 10, paragraph 3; page 6, paragraph 3).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to apply the dyes, ZnO, scouring agents, leveling agents, surfactants and dispersing agents to fabrics by jet dyeing as JP 7193912B2 teaches it is effective to apply scouring agents, dispersing agents, leveling agents, surfactants and dyes to similar fabrics in a jet dyeing machine at 135°C and Yoshidi teaches it is known and effective to apply zinc oxides and dyeing agents to similar fabrics in jet dyeing machines. Trying a known method effective for durable and absorptive application of the same components to the same fabrics is obvious to one of ordinary skill in the art to achieve the predictable result of efficiently applying chemical compositions to fabric to produce a treated fabric.
Response to Arguments
Applicant’s arguments with respect to the rejections above have been considered but are not persuasive. The limitation “being treated in a jet dyeing machine to incorporate the ZnO, scouring agent, dye, leveling agent, dispersing agent and surfactant into the fabric, wherein the jet dyeing machine treatment includes heating the fabric and components to a temperature of at least 130°C” is a product by process limitation. Cha teaches a fabric treated with the claimed ZnO, dyes, dispersants, leveling agents, surfactants and scouring agents by spraying, dipping or impregnating the fabric or combining the materials in the polymer melt and extruding into a fiber which can be used for fabrics. Applicant has not demonstrated the criticality of the method of application of the compounds in a jet dyeing machine. Since the same fabric is produced comprising the same components, the burden shifts to applicant to demonstrate the process of making the fabric materially affects the invention. Cha clearly teaches incorporating the composition by spraying, dipping or impregnating the fabric or combining the materials in the polymer melt and extruding into a fiber which can be used for fabrics and JP 7193912B2 and Yoshida both teaches applying similar components in heated jet dyeing processes with multiple components added in a single jet dyeing session. JP 7193912B2 further teaches temperatures such as 135°C are effective for heating to provide an effectively treated fabric. Yoshidi teaches it is known and effective to apply zinc oxides and dyeing agents to fabrics containing polyesters or polyamides by exhaustion, padding, spraying and immersion using a jet dyeing machines is effective, demonstrating the function equivalence of the impregnation methods. Any difference imparted by the product by process limitations would have been obvious to one having ordinary skill in the art at the time the invention was made because where the examiner has found a substantially similar product as in the applied prior art, the burden of proof is shifted to the applicant to establish that their product is patentably distinct, not the examiner to show the same process of making, see In re Brown, 173 USPQ 685 and In re Fessmann, 180 USPQ 324. Burden is on applicants to show product differences in product by process claims, see In re Thorpe, 227 USPQ 964 (Fed. Cir. 1985); In re Best, 195 USPQ 430 (CCPA 1977); In re Fessman, 180 USPQ 324 (CCPA 1974); In re Brown, 173 USPQ 685 (CCPA 1972). Applicant’s arguments that jet dyeing is critical and inherently produces different effects than other methods such as spraying and immersing is not persuasive as Yoshida teaches these alternative methods produce similarly treated fabrics to those produces by treating fabric in a jet dyeing machine. Applicant has provided no experimental data commensurate in scope with the claims indicating the jet dyeing machine and heating temperature are critical. Accordingly, substituting one art recognized effective method for treating fabrics with similar components for another equally effective art recognized method is obvious absent a showing of unexpected results. The prior art all teach combining several treatment components and applying them to the fabrics simultaneously in a single treatment, so applying all the components in one jet dyeing operation is obvious to save time.
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 AMINA S KHAN whose telephone number is (571)272-5573. The examiner can normally be reached Monday-Friday, 9am-5:30pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Angela Brown-Pettigrew can be reached on 571-272-2817. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AMINA S KHAN/Primary Examiner, Art Unit 1761