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 .
Response to Amendment
The amendment dated 4/9/2026 has been considered and entered into the record. Claims 13, 17, and 23 have been amended to overcome the previous indefinite rejection. Claims 1–4, 6, 7, 10, 11, 13–15, 17, 18, 21, and 23 remain pending and are examined below. Claims 26–28 and 30 are withdrawn from consideration.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1–4, 7, 10, 11, 13–15, 17, 18, 21, and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Panse (US 2009/0246485 A1) in view of Dutta (US 5,529,830).
Panse teaches the formation of a textile composite laminate comprising an outer textile layer 10 that includes a flammable, meltable material; an intermediate layer comprising a heat reactive polymer resin material and expandable graphite; and a barrier layer 30. Panse abstract, ¶¶ 23, 42, Fig. 2. The expandable graphite has an expansion of at least 900 microns at 280oC as measured according to the TMA expansion test. Id. ¶¶ 5, 28. The heat reactive polymer resin material may further comprise heat retardant materials. Id. ¶ 31.
Panse fails to teach that the laminate is configured to be stretched an amount of at least 10% by a stretching force and to recover at least 80% of the amount stretched when the stretching force is released.
Dutta teaches the formation of a stretchable layered fabric laminate with excellent stretch and recovery properties and is useful in the manufacture of form-fitting articles of protective clothing. Dutta abstract. The fabric laminate is capable of stretching at least 10% and recovering at least 80% of the amount stretched when the stretching force is removed. Id. at 3:21–29. The fabric laminate may comprise a substantially inelastic (i.e., less than 5% elasticity) barrier layer 5 having a corrugated structure that is laminated to at least one side of an elastic fabric. Id. at 3:10–28, Fig. 2A. The elastic fabric may be made from elastane fibers. See id. at 10:40–54.
It would have been obvious to one of ordinary skill in the art to have modified the textile composite of Panse to have an elastic textile layer comprising elastane and having the stretch and recovery properties of Dutta motivated by the desire to create form-fitting articles. Additionally, it would have been obvious to have used the inelastic, corrugated barrier layer of Dutta in the barrier layer of Panse to create a waterproof barrier that can be extended due to its corrugation. See Panse ¶ 25, Dutta at 5:5–29.
Claim 4 is rejected as the textile composite laminate of Panse may further comprise a backer layer 50, wherein the backer layer may comprise aramid or flame-resistant cotton. Panse ¶¶ 22, 26 Fig. 4.
Although Panse and Dutta fail to explicitly teach the claimed feature of having a dry peel strength in the range of from about 5 to about 25 Newtons as measured in DIN 54310, it is reasonable to presume that said property is inherent to the combined teachings of Panse and Dutta. Support for said presumption is found in the use of like materials (i.e. a laminate comprising textile, barrier, and intermediate layers of the claimed composition and elasticity). The burden is upon Applicant to prove otherwise. In re Fitzgerald 205 USPQ 594. In addition, the presently claimed property of a dry peel strength in the range of from about 5 to about 25 Newtons as measured in DIN 54310 would obviously have been present one the prior art product is provided. Reliance upon inherency is not improper even though rejection is based on Section 103 instead of Section 102. In re Skoner, 517 F.2d 947 (CCPA 1975).
The heat reactive material of the intermediate layer of Panse may be applied discontinuously in the form of dots to cover less than 100 percent of the outer textile layer to improve breathability and hand of the laminate. See Panse ¶¶ 36-40. In the same way, the size, and diameter of the dots are result-effective variables as the size and coverage of the dots are inversely proportional to the breathability and hand of the finally formed laminate. See id. Consequently, absent a clear and convincing showing of unexpected results demonstrating the criticality of the claimed dot diameter, it would have been obvious to one of ordinary skill in the art to optimize this result-effective variable by routine experimentation. In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977).
Claim 14 is rejected as the heat reactive polymer resin-expandable graphite mixture covers greater than about 25% of the meltable textile layer. Panse ¶¶ 38–39.
Claims 15 and 17 are rejected as the barrier layer may comprise expanded polytetrafluoroethylene film membranes. Id. ¶¶ 25, 29, 45. Claim 18 is rejected as the moisture vapor transmission rate of the textile composite laminate is greater than 3,000 g/m2/24 hrs. Id. ¶ 46, claim 11. Claim 21 is rejected as the laminate of Panse may be positioned on the exterior of a garment. Id. ¶ 5. Claim 23 is rejected as it would have been obvious to have positioned the laminate between the interior and exterior of a garment, wherein the laminate is part of a more comprehensive protective garment.
Claim(s) 6 is rejected under 35 U.S.C. 103 as being unpatentable over Panse and Dutta as applied to claim 1 above, and further in view of Nutzel (WO 2015/166109 A1).
Panse and Dutta fail to teach the use of at least one polyhydroxy compound having a molecular weight of less than 1,000 g/mol as part of the heat reactive material.
Nutzel teaches the creation of a spray foam for fire protection, wherein flame retardants are suspended in polyols, such as glycerol. Nutzel abstract, Description. Glycerol has a molecular weight of 92 g/mol.
It would have been obvious to one of ordinary skill in the art to have suspended the flame retardant of Panse in glycerol to assist with its application.
Response to Arguments
Applicant's arguments filed 4/9/2026 have been fully considered but they are not persuasive.
Applicant argues that the applied prior art references, individually or in combination fail to teach the unique combination of properties and structural features achieved by the claimed laminate. In particular, Applicant contends that neither Panse nor Dutta disclose or suggest a laminate structure that simultaneously exhibits stretchability, high recovery, air impermeability, water vapor permeability, and no melt-dripping. This argument is unpersuasive as it is noted that the features upon which applicant relies (e.g., air impermeability and no melt-dripping) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Additionally, addressing the references of Panse and Dutton individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Furthermore, the Examiner would like to point out that the textile composite of Panse does not melt drip. See Panse ¶ 111.
Applicant next contends that the claimed dot pattern parameters are not result-effective variables, but are critical to realizing the unique balance of mechanical and protective properties. This argument is not persuasive as Panse specifically addresses the percentage of the area covered by heat-reactive dots, as well as how the coverage is to occur, is a function of desired hand, breathability, and weight, and as such establishes that the claimed dot pattern parameters are in fact result-effective variables.
Applicant then argues that Examiner has failed to establish that the properties of dry peel strength, air impermeability, and water vapor permeability are inherently present in the cited references. Regarding the claimed level of dry peel strength, the combined teachings of Panse and Dutton provide for the claimed structure and composition of claim 10 and as such it is reasonable to presume that the combined article either inherently possesses or renders obvious the claimed dry peel strength. In reference to “air impermeability” and water vapor permeability, the Examiner presumes Applicant is referring to the limitations of claim 18. Claim 18 requires a laminate having a weight in the range of from about 80 to about 240 gsm; OR wherein the laminate includes a material having an air permeability of at least 50 L/m2s as measured by DIN ISO 9237 (1995); OR wherein the laminate is liquid water impermeable and water vapor permeable to the extent of having a water vapor transmission rate of at least 2000 q/m2/24 hrs. Accordingly, to meet the requirements of claim 18, the prior must merely disclose, teach, or suggest ONE of the three recited limitation prongs. Here, Panse teaches that the textile composite may be waterproof, while also having a textile composite laminate moisture vapor transmission rate of greater than 3,000 g/m2/24 hrs. Panse ¶¶ 5, 25, 46, 50, 93, 120, claim 11. Accordingly, Panse teaches the third prong of claim 18, thereby rendering the claim unpatentable.
Conclusion
THIS ACTION IS MADE FINAL. 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 MATTHEW D MATZEK whose telephone number is (571)272-5732. The examiner can normally be reached M-F 9:30-6.
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/MATTHEW D MATZEK/Primary Examiner, Art Unit 1786
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