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 .
Response to Amendment/Arguments
The Office has carefully considered Applicant’s amendments and accompanying remarks dated 02/11/25. Applicant’s amendments to the claims have been entered and are made of record. The pending claims are 1-7, 9 and 11-23, with claim 21 drawn to a non-elected invention. Applicant has cancelled claims 8 and 10.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-7, 9, 11-20 and 22-23 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. All previously made rejections are withdrawn in light of Applicant’s remarks and amendments. Applicant’s amendments to the claims overcome the 112-2nd rejections which are also withdrawn.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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) 1-7, 9, 11-20 and 22-23 is/are rejected under 35 U.S.C. 103 as being unpatentable over USPUB 20200367584A1 issued to Truesdale et al. further evidence by https://bolgerohearn.com.
Regarding modified Claim 1, where Applicant now seeks a protective garment comprising: a fabric material comprising a woven fabric, a knitted fabric, a nonwoven fabric, or combinations thereof, the fabric material including a water resistant treatment, the water resistant treatment comprising; a water repellent, the water repellent having a mean bio-based carbon content from 25% to 80%, the bio-based carbon being plant- derived; and a curing extender, the water resistant treatment including the curing extender and the water repellent at a weight ratio of from 1:2 to 1:25; wherein the fabric material contains fluorine in an amount less than 500 ppm, and wherein the fabric material displays a water absorbency of less than 15% after five laundry cycles; Applicant is directed to the teachings of Truesdale et al., disclose fabrics made into protective garments that are exhibit water repellency, abrasion resistance, and optionally flame resistance. The fabrics include a plurality of fibers (such as flame resistant fibers) and a finish that imparts water repellency and abrasion resistance to the fibers. The fabrics are free or substantially free from fluoropolymers [abstract, ¶ 0010, 0014].
At ¶¶ 0006, 0007, 0011, 0050- the instant reference teaches that the water repellant and flame resistant fabric as described herein comprises a plurality of spun yarns comprising a plurality of flame resistant fibers and a finish that imparts water repellency and abrasion resistance to the fabric. The plurality of flame resistant fibers are inherently flame resistant fibers comprising at least one of meta-aramid fibers, para-aramid fibers, polybenzimidazole fibers, polybenzoxazole fibers, melamine fibers, polyimide fibers, polyimideamide fibers, modacrylic fibers, and FR rayon fibers.
At ¶¶ 0009 and 0039, the instant reference teaches the fabric can comprise a plain weave, a rip-stop, a twill weave, a sateen weave, or a knitted fabric. Optionally, the fabric is stretch or non-stretch. The fabric can have a weight of less than about 8.0 osy.
At ¶¶ 0006, 0007, the instant reference teaches that the finish comprises a water repellent agent selected from the group consisting of a hydrocarbon-based polymer, a silicone-based polymer, a urethane-based polymer, and an acrylic-based polymer, and a polymeric abrasion resistance aid. The finish is substantially free from alkylfluoropolymers. In some examples, the polymeric abrasion resistance aid comprises an acrylic polymer. The finish can further comprise at least one of an alkoxylated fatty amine or derivative thereof, a melamine formaldehyde resin, an N-methylol stearamide, or combinations thereof.
Further at ¶¶ 0015-0017, the instant reference teaches that the finish compositions described herein include a water repellent agent selected from the group consisting of a hydrocarbon-based polymer, a silicone-based polymer, a urethane-based polymer, and an acrylic-based polymer. The finish composition also includes a polymeric abrasion resistance aid. Examples of suitable water repellent agents include, but are not limited to, hydrocarbon-based polymers, such as Altopel F3 and Altopel M-213-SP (available from Bolger & O'Hearn), Ruco Dry ECO Plus (a cationic hyperbranched and linear polymer available from Rudolph Group), Repellan HY-N (a cationic blend of paraffin and melamine commercially available from Pulcra Chemicals), Evo Protect DTE (a quaternary ammonium compound, paraffin dispersion available from DyStar), and Fibropel NF-22 (a hydrocarbon commercially available from FibroChem LLC); silicone-based polymers, such as Wacker CT 303 (available from Wacker Silicones), Dowsil Z-6689 (available from Dow Consumer Group and from HiTech Group), Barpel FF (available from Apollo Chemical), and NEOSEED NR-8000 (commercially available from NICCA USA); urethane-based polymers, such as Zelan R-3 (an alkyl urethane commercially available from Huntsman Chemical) and RucoPur SLR (a cationic polyurethane commercially available from Rudolph Group); and acrylic-based polymers, such as Phobotex RSY (an acrylic copolymer and paraffin wax dispersion commercially available from Huntsman Chemical). Optionally, the urethane polymers for use as water repellent agents can have relatively high elongation values (e.g., 300% or greater, such as 500% or greater). Several of these listed are plant based. [Altopel F3 and Altopel M-213-SP, Repellan HY-N, Smart Repel, Arkophob FFR, Zelan R-3, RucoPur SLR, Phobotex RSY]. https://bolgerohearn.com. Shows that Altopel F3 is plant based.
Other suitable water repellent agents for use herein include other non-fluorine based water repellents such as Smart Repel products (e.g., SmartRepel Hydro PM and SmartRepel Hydro AM) and Arkophob FFR, each commercially available from Archroma; other Repellan products (e.g., Repellan V5), commercially available from Pulcra Chemicals; NEOSEED NR-7080, an acrylic commercially available from NICCA USA; and Nonax products (commercially available from Pulcra Chemicals).
At ¶ 0022, the instant reference teaches that the finish compositions can also include one or more of the following additional components: polymer extenders and other crosslinkers, silicone softeners, pH controllers, polyethylenes, wetting agents, complexing agents, sewing/abrasion polymeric acids, alkoxylated fatty amines or derivatives thereof, melamine formaldehyde resins, N-methylol stearamides, and/or flame retardant additives. Suitable polymer extenders and crosslinkers include, but are not limited to, Phobol Extender XAN (a blocked isocyanate crosslinker available from Huntsman), Evo Protect XL (a modified polyisocyanate crosslinker available from DyStar), NK ASSIST FU (an aromatic blocked-isocyanate crosslinker available from NICCA USA), and RucoLink XCR (available from Rudolph Group). See also ¶¶ 0027-0029 and 0031.
At ¶ 0026, the instant reference teaches that the finish composition is free or substantially free from alkylfluoropolymers. As used herein, the term “substantially free” from an indicated component (e.g., substantially free from alkylfluoropolymers) means that the finish composition can include less than 1%, less than 0.1%, less than 0.01%, less than 0.001%, or less than 0.0001% of the component (e.g., alkylfluoropolymer) based on the weight of the finish composition.
At ¶¶ 0006, 0008, 0009, 0033-0034, 0041-0044; the instant reference teaches that the fabric, before laundering and after being laundered five times in accordance with AATCC test method 135 (2018), has an abrasion resistance of at least about 500 cycles before a first thread break when tested in accordance with ASTM test method D3884 (2017) (H-18, 500 g on each wheel) and a water absorption of less than or equal to 15.0% as determined by NFPA 1971, 8.26 (2018). The abrasion resistance of the fabrics described herein can be at least about 700 cycles before a first thread break (e.g., at least about 800 cycles before a first thread break or at least about 1000 cycles before a first thread break).
At ¶ 0051, the instant reference teaches that the fabric can be made into any garments that may be worn by a firefighter, rescue worker, military, electrical worker, petrochemical worker, or other individual to provide thermal or another type of protection. Such garments include, but are not limited to, shirts, pants, jackets, coveralls, vests, t-shirts, underwear, gloves, liners for gloves, hats, helmets, boots, and the like.
Truesdale et al., teach the bio based plant but do not teach the percent or the water resistant treatment including the curing extender and the water repellent at a weight ratio of from 1:2 to 1:25. It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have the water repellent has a mean bio-based carbon content of at least about 30% or the ratio of the curing extender and the water repellent at a weight ratio to be from 1:2 to 1:25 , since it has been held that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges that would be discovered through routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, would be deemed through routine experimentation and as such is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions. See also KSR Int'l Co. V. Teleflex Inc., 550 U.S. 398, 416 (2007). Having the water repellent has a mean bio-based carbon content of at least about 30%, the more the amount the more it would make for recyclability.
Regarding Claim 2, where Applicant now seeks a protective garment as defined in claim 1, wherein the water repellent has a mean bio-based carbon content of at least about 30%; Truesdale et al., teach the bio based plant but do not teach the percent. It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have the water repellent has a mean bio-based carbon content of at least about 30%, since it has been held that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges that would be discovered through routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, would be deemed through routine experimentation and as such is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions. See also KSR Int'l Co. V. Teleflex Inc., 550 U.S. 398, 416 (2007). Having the water repellent has a mean bio-based carbon content of at least about 30%, the more the amount the more it would make for recyclability.
Regarding Claims 3-7, at ¶¶ 0015-0017, the instant reference teaches that the finish compositions described herein include a water repellent agent selected from the group consisting of a hydrocarbon-based polymer, a silicone-based polymer, a urethane-based polymer, and an acrylic-based polymer. The finish composition also includes a polymeric abrasion resistance aid. Examples of suitable water repellent agents include, but are not limited to, hydrocarbon-based polymers, such as Altopel F3 and Altopel M-213-SP (available from Bolger & O'Hearn), Ruco Dry ECO Plus (a cationic hyperbranched and linear polymer available from Rudolph Group), Repellan HY-N (a cationic blend of paraffin and melamine commercially available from Pulcra Chemicals), Evo Protect DTE (a quaternary ammonium compound, paraffin dispersion available from DyStar), and Fibropel NF-22 (a hydrocarbon commercially available from FibroChem LLC); silicone-based polymers, such as Wacker CT 303 (available from Wacker Silicones), Dowsil Z-6689 (available from Dow Consumer Group and from HiTech Group), Barpel FF (available from Apollo Chemical), and NEOSEED NR-8000 (commercially available from NICCA USA); urethane-based polymers, such as Zelan R-3 (an alkyl urethane commercially available from Huntsman Chemical) and RucoPur SLR (a cationic polyurethane commercially available from Rudolph Group); and acrylic-based polymers, such as Phobotex RSY (an acrylic copolymer and paraffin wax dispersion commercially available from Huntsman Chemical). Optionally, the urethane polymers for use as water repellent agents can have relatively high elongation values (e.g., 300% or greater, such as 500% or greater). Several of these listed are plant based. [Altopel F3 and Altopel M-213-SP, Repellan HY-N, Smart Repel, Arkophob FFR, Zelan R-3, RucoPur SLR, Phobotex RSY].
Other suitable water repellent agents for use herein include other non-fluorine based water repellents such as Smart Repel products (e.g., SmartRepel Hydro PM and SmartRepel Hydro AM) and Arkophob FFR, each commercially available from Archroma; other Repellan products (e.g., Repellan V5), commercially available from Pulcra Chemicals; NEOSEED NR-7080, an acrylic commercially available from NICCA USA; and Nonax products (commercially available from Pulcra Chemicals).
Regarding modified claim 9, where Applicant seeks a protective garment as defined in claim 1, wherein the curing extender comprises a dialkylprazole compound or a blocked isocyanate; Applicant is directed to ¶ 0022, where the instant reference teaches that the finish compositions can also include one or more of the following additional components: polymer extenders and other crosslinkers, silicone softeners, pH controllers, polyethylenes, wetting agents, complexing agents, sewing/abrasion polymeric acids, alkoxylated fatty amines or derivatives thereof, melamine formaldehyde resins, N-methylol stearamides, and/or flame retardant additives. Suitable polymer extenders and crosslinkers include, but are not limited to, Phobol Extender XAN (a blocked isocyanate crosslinker available from Huntsman), Evo Protect XL (a modified polyisocyanate crosslinker available from DyStar), NK ASSIST FU (an aromatic blocked-isocyanate crosslinker available from NICCA USA), and RucoLink XCR (available from Rudolph Group). See also ¶¶ 0027-0029 and 0031.
Regarding Claim 11, where Applicant seeks a protective garment as defined in claim 1, wherein the water resistant treatment does not form a continuous coating on a surface of the fabric material; The instant reference teaches that a variety of methodologies can be used to apply the finish to the untreated fabric. These methodologies include, but are not limited to, spray application, padding, roll coating, applying a foam finish, and combinations thereof. Any of these could create a discontinuous coating.
Regarding modified Claim 12, where Applicant seeks a protective garment as defined in claim 1, wherein the fabric material displays a spray rating of at least 80 after 25 laundry cycles and displays a water absorption of less than about 5% after 25 laundry cycles; With regards to requirements of a spray rating of at least 80 after 25 laundry cycles and displays a water absorption of less than about 5% after 25 laundry cycle, it is the position of the Office that the claimed resultant properties as desired in the aforesaid claims, would be inherent if not obvious to the composite of Truesdale et al. It is reasonable to presume so, as support for said presumption is found in the use of like materials (i.e. same fibers, same weave, same coating same final end use). The burden is upon Applicant to prove otherwise. In re Fitzgerald 205 USPQ 594. In addition, the presently claimed properties as set forth above, it would obviously have been present once the Truesdale et al. product is provided. Note In re Best, 195 USPQ at 433, footnote (CCPA 1977) as to the providing of this rejection made above under 35 USC 102. Reliance upon inherency is not improper even though rejection is based on Section 103 instead of Section 102. In re Skoner, et al. (CCPA) 186 USPQ 80.
Regarding modified Claim 13, where Applicant seeks a protective garment as defined in claim 1, wherein the fabric material comprises greater than 50% by weight inherently flame resistant fibers; Applicant is directed to ¶¶ 0006, 0007, 0011, 0050- the instant reference teaches that the plurality of flame resistant fibers are inherently flame resistant fibers comprising at least one of meta-aramid fibers, para-aramid fibers, polybenzimidazole fibers, polybenzoxazole fibers, melamine fibers, polyimide fibers, polyimideamide fibers, modacrylic fibers, and FR rayon fibers. As no additional fibers are needed, greater than 50% is met.
Regarding Claim 14, where Applicant seeks a protective garment as defined in claim 13, wherein the inherently flame resistant fibers contained in the fabric material comprise para-aramid fibers, meta-aramid fibers, polybenzimidazole fibers, poly(p-pheylene-2,6- bezobisoxazole fibers or mixtures thereof; Applicant is directed to ¶¶ 0006, 0007, 0011, 0050- the instant reference teaches that the plurality of flame resistant fibers are inherently flame resistant fibers comprising at least one of meta-aramid fibers, para-aramid fibers, polybenzimidazole fibers, polybenzoxazole fibers, melamine fibers, polyimide fibers, polyimideamide fibers, modacrylic fibers, and FR rayon fibers.
Regarding Claim 15, where Applicant seeks a protective garment as defined in claim 13, wherein the inherently flame resistant fibers contained in the fabric material comprise a mixture of aramid fibers and polybenzimidazole fibers; Applicant is directed to ¶¶ 0006, 0007, 0011, 0050- the instant reference teaches that the plurality of flame resistant fibers are inherently flame resistant fibers comprising at least one of meta-aramid fibers, para-aramid fibers, polybenzimidazole fibers, polybenzoxazole fibers, melamine fibers, polyimide fibers, polyimideamide fibers, modacrylic fibers, and FR rayon fibers.
Regarding claim 16, where Applicant seeks a protective garment as defined in claim 1, wherein the fabric material is comprised of spun yarns and multifilament yarns; Applicant is directed to ¶¶ 0006, 0007, 0011, 0050- the instant reference teaches that the water repellant and flame resistant fabric as described herein comprises a plurality of spun yarns comprising a plurality of flame resistant fibers and a finish that imparts water repellency and abrasion resistance to the fabric.
Regarding claim 17, where Applicant seeks a protective garment as defined in claim 1, wherein the protective garment is a single fabric layer garment, the single fabric layer being the fabric material; Applicant is directed to ¶ 0051, where the instant reference teaches that a multilayer or a single layer garment can be created.
Regarding modified Claim 18, where Applicant seeks a protective garment as defined in claim 1, wherein the fabric material has a basis weight of from about 5 osy to about 8.5 osy and exhibits an abrasion resistance of greater than 90,000 cycles when tested according to ASTM D4966 Test Method; Applicant is directed to ¶ 0009 for the osy of about 8 which overlaps with Applicant’s claimed range. With regards to requirements of testing against the specific standards when tested according to ASTM D4966 Test Method to have an abrasion resistance of greater than 90,000 cycles, it is the position of the Office that the claimed resultant properties as desired in the aforesaid claims, would be inherent if not obvious to the composite of Truesdale et al. It is reasonable to presume so, as support for said presumption is found in the use of like materials (i.e. same fibers, same weave, same coating same final end use). The burden is upon Applicant to prove otherwise. In re Fitzgerald 205 USPQ 594. In addition, the presently claimed properties as set forth above, it would obviously have been present once the Truesdale et al. product is provided. Note In re Best, 195 USPQ at 433, footnote (CCPA 1977) as to the providing of this rejection made above under 35 USC 102. Reliance upon inherency is not improper even though rejection is based on Section 103 instead of Section 102. In re Skoner, et al. (CCPA) 186 USPQ 80.
Regarding Claim 19, where Applicant seeks a protective garment as defined in claim 1, wherein the protective garment comprises a lab coat or a medical garment; Applicant is directed to ¶ 0051, where the instant reference teaches that the fabric can be made into any garments that may be worn by a firefighter, rescue worker, military, electrical worker, petrochemical worker, or other individual to provide thermal or another type of protection. Such garments include, but are not limited to, shirts, pants, jackets, coveralls, vests, t-shirts, underwear, gloves, liners for gloves, hats, helmets, boots, and the like.
Regarding Claim 20, where Applicant seeks a protective garment as defined in claim 1, wherein the protective garment comprises a public service uniform or a fire service garment; Applicant is directed to ¶ 0051, where the instant reference teaches that the fabric can be made into any garments that may be worn by a firefighter, rescue worker, military, electrical worker, petrochemical worker, or other individual to provide thermal or another type of protection. Such garments include, but are not limited to, shirts, pants, jackets, coveralls, vests, t-shirts, underwear, gloves, liners for gloves, hats, helmets, boots, and the like.
Regarding new claim 22, where Applicant seeks a protective garment as defined in claim 3, wherein the acrylate is an alkyl acrylate, and the water repellent has a mean bio-based content from 25% to 50%; Applicant is directed to see rationale set forth above for claims 3-7.
Regarding new claim 23, where Applicant seeks a protective garment as defined in claim 4, wherein: the hyperbranched hydrocarbon polymer has a dendritic structure; the hyperbranched hydrocarbon polymer includes water repellent end groups; and the hyperbranched hydrocarbon polymer is cationic: Applicant is directed to see rationale set forth above for claims 3-7.
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.
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/Arti Singh-Pandey/
Primary Patent Examiner
Art Unit 1759
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