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 .
Election/Restrictions
Applicant’s election without traverse of Group 1, claims 1–4, 6, 7, 10, 11, 13–15, 17, 18, 21, and 23 in the reply filed on 11/11/2025 is acknowledged.
Claims 26–28 and 30 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 11/11/2025.
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 13, 17, and 23 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. Claims 13 and 23 are indefinite because they depend from cancelled claims. Claim 17 is rejected as it depends from itself.
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) 1–4, 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 or diameter of the dots is a result-effective variable as the size and coverage of the dots are inversely proportional to the breathability and hand of the finally formed laminate. 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.
Conclusion
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer Boyd can be reached at 571.272.7783. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MATTHEW D MATZEK/Primary Examiner, Art Unit 1786