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 .
Restriction to one of the following inventions is required under 35 U.S.C. 121:
I. Claims 1 - 11, drawn to a method of making a knit fabric, classified in D06C 7/00.
II. Claims 12 - 20, drawn to a treated knit fabric, classified in D04B 1/12.
The inventions are independent or distinct, each from the other because:
Inventions I and II are related as process of making and product made. The inventions are distinct if either or both of the following can be shown: (1) that the process as claimed can be used to make another and materially different product or (2) that the product as claimed can be made by another and materially different process (MPEP § 806.05(f)). In the instant case, the product can be made by using levels of shrinkage.
Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply:
The inventions have acquired a separate status in the art in view of their different classification and the inventions require a different field of search (e.g., searching different classes /subclasses or electronic resources, or employing different search strategies or search queries).
Applicant is advised that the reply to this requirement to be complete must include (i) an election of an invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention.
The election of an invention may be made with or without traverse. To reserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
During a telephone conversation with Kyle Vos Strache on November 6, 2025 a provisional election was made without traverse to prosecute the invention of Group II, claims 12 – 20. Affirmation of this election must be made by applicant in replying to this Office action. Claims 1 – 11 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must include all the limitations of an allowable product/apparatus claim for that process invention to be rejoined.
In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an otherwise proper restriction requirement between product/apparatus claims and process claims may be maintained. Withdrawn process claims that are not commensurate in scope with an allowable product/apparatus claim will not be rejoined. See MPEP § 821.04. Additionally, in order for rejoinder to occur, applicant is advised that the process claims should be amended during prosecution to require the limitations of the product/apparatus claims. Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01.
Drawings
The drawings are objected to because the stitch diagram in Figure 8 is incomplete. On the top portion of the diagram, course 2, 5, and 7, are incomplete since the picture does not show any lines connecting together the tuck stitches to other tuck stitches or the knit loops to other knit loops. Further, there seems to be an extra line between course 4 and 5. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 12 – 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.
The phrase describing the knit structure as having “a plurality of concave portions forming a sinusoidal shape in facing opposition to a plurality of opposing convex portions, the concave portions and the opposing convex portions defining void spaces having a substantially double convex cross section in claim 12 is indefinite. The applicant is using contradicting terms to described the claimed shape. First a sinusoidal shape drawn as follows:
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While convex, concave and double convex shapes are defined as follows:
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The cross-sections shown in Figures 2 and 4 are not equivalent to sinusoidal shapes since the curve is not open on the opposite side of the peak or valley. Further, the cross-section are not considered to be concave shapes because concave requires the curved region indent into the center of the material. A double convex structure is defined as having two opposite convex portions, i.e., two outward curving spherical surfaces. Based on the contradicting shapes of a convex material, concave material, sinusoidal material, and double convex material the knit structure cannot have all the claimed features. It can only one shape.
Claim 20 is similarly rejected since it described the shape as being having opposite concave and convex portions and also being double convex. Claims 12 – 19 are rejected due to their dependency on claim 12. For purposes of examination the figure show that the knit fabric shrinks to form opposite convex portions resulting in a plurality of abutting double convex portions.
The term “knit transition zone” in claim 18 is indefinite. The term “knit transition zone” is not clearly defined in the disclosure. What features are required by the transition zone? Does it need to be a certain type of knit pattern or does it just need to be a different knit pattern than the pattern that came before it? For purposes of examination, any change is knitting pattern from a previous pattern would be considered a transition zone.
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.
Claim(s) 12 – 16, 18, and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kosui et al. (EP 2 584 080) in view of Day et al. (4,923,724), and Rock et al. (2011/0177294).
Kosui et al. is drawn to a knit fabric with convex portions on one or both sides of the fabric (paragraph 1). As shown in figure 3, the fabric includes multiples courses of yarns joined together to form the knitted fabric. The pattern includes yarns knit with combinations of tuck stitches and knit loops (paragraph 8). Further, the fabric can be knitted with convexities on both surfaces (paragraph 10). The fabric can also include thin portions surrounding the convexities (paragraph 11). According to Kosui et al., the stitches are knitted on every other stitch in the fabric (paragraph 22). This is shown in Figure 3, in S1 – S4. Each loop stitch is shown as an open circle, the string then passes a dot, which represents a needle in the machines, before forming another loop stitch. Each of these skipped needles is a miss stitch. While Kosui et al. discloses a spacer fabric with convex regions on both surfaces, Kosui et al. fails to teach that the convex regions are directly opposite each other.
Day et al. is drawn to knitted tubular fabrics. Day et al. discloses knitting patterns which can be used to form a tubular, or double convex, region in the fabric (abstract). Figures 1 – 12 show that various pattern combination can be used to make the tubular portion form different patterns. Further, Figures 14 and 15 and 16 and 17 show that the stitch pattern is produces to be a mirror image of adjacent courses in the structure. The fabric produced by the pattern shown in Figure 18 teaches that it is know to make a double convex pattern with a flat portion separating the convex regions. Further, Day et al. teaches that different patterns of loops and misses repeated (column 10, lines 5 – 15). Therefore, it would be obvious to one having ordinary skill in the art to use a knit pattern with a double convex pattern, as shown by Day et al., to create the knit fabric of Kosui et al. with convex regions on both surfaces. Further, the number of courses of yarns and the spacing between the miss stitches, tuck stitches, and knit loops can be modified to control the shape and size of the convex regions. As shown in Day et al. the convex regions can be modified to create various patterns.
Kosui et al. fails to teach using heat sensitive yarns. Rock et al. discloses a knit fabric comprising a first layer and second layer with anchored regions and floating regions (paragraph 45). The fabric includes two different yarns having significantly different shrinkage performance when exposed to dry or wet heat, with a high shrinkage considered to be 10% to 60% (paragraph 48). When the fabric is exposed to heat, the high shrink fiber will shrink and the low shrink fiber will not shrink, causes the floating regions to puff out from the surface of the fabric (paragraph 51). Rock teaches that the heat sensitive fiber can be treated at a temperature between 200ºF – 450ºF, which is about 90ºC – 230ºC (Paragraph 48). Thus, it would have been obvious to one having ordinary skill in the art to use yarns with different shrinkage rates within the fabric of Kosui et al. so that the can be treated to puff out the convex regions as taught by Rock et al. Therefore, claims 12, 13, 14, and 19.
With regards to the thickness of the after shrinkage occurs, the yarns taught by Kosui et al. are knit across the width of the fabric. Thus, when one or more of the yarns are shrunk the fabric will inherently shrink in the width direction and the yarns that do not shrink will be pushed out in the thickness direction of the fabric. Hence, shrinking the fabric will inherently make the overall thickness of the fabric greater. Therefore, claim 15 is rejected. While Rock et al. teaches that the fibers can shrink by between 10% - 60% to create a puffed out void, Rock et al. fails to correlate the shrinkage level into the degree of increased thickness. However, more the double convex fabric is shrunk, the more the thickness of the fabric will be increased. Thus, it would have been obvious to one having ordinary skill in the to maximize the level of shrinkage to puff out the double convex regions to have a height increase of at least 0.5 cm, to create a fabric with better resistance to collapse and insulation properties. Therefore, claim 16 is rejected.
With regards to the knit transition zone, Kosui et al. discloses that the fabric can include thin portions surrounding the convexities (paragraph 11). These flat portions would have a different pattern than the convex region and are considered to be equivalent to the claimed knit transition zone. Thus, claim 18 is rejected.
Claim(s) 17 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kosui et al., Day et al., and Rock et al. as applied to claim 12 above, and further in view of Podhajny (8,997,529).
The features of Kosui et al., Day et al., and Rock et al. have been set forth above. Kosui et al. fails to teach using fusible fibers specifically in the composite fabric. Podhajny is drawn to composite knit fabrics (abstract). Podhajny teaches that the fabric can include fusible yarns incorporated with non-fusible yarns to form the knit fabric (column 8, lines 20 - 40). When a fusible yarn is heated and fused within the knit structure to an adjacent yarn, the process has a stiffening effect and can impart stretch resistance or stiffness (column 8, lines 20 - 40). The fused yarns can also help to limit unraveling of the knit fabric when damaged (column 8, lines 20 - 40). Thus, it would have been obvious to one having ordinary skill in the art to add a fusible yarn, as taught by Podhajny, to a knit structure like Kosui et al., which is made from non-fusible yarns, to impart stiffness, stretch resistance or a stiffening effect when the fusible yarn is treated with heat. Thus, claims 17 and 20 are rejected.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jenna Johnson whose telephone number is (571)272-1472. The examiner can normally be reached Monday, Wednesday, and Thursday, 10am - 4pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Marla McConnell can be reached at (571) 270-7692. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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jlj
December 11, 2025
/JENNA L JOHNSON/Primary Examiner, Art Unit 1789