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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on June 1, 2026, has been entered.
Drawings
The drawings were received on June 1, 2026. These drawings are acceptable. Note that the Replacement Drawings appear to be identical to the originally submitted Drawings.
Specification
Applicant’s amendments to the specification of June 1, 2026, are noted and entered.
Claim Rejections - 35 USC § 112
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 1-7, 9, and 12-19 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 enablement requirement. The claims contain subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention. A number of factors must be considered in assessing the enablement of an invention, including the following: the breadth of the claims, the amount of experimentation necessary, the guidance provided in the specification, working examples provided, predictability, and the state of the art. See In re Wands, 858 F.2d 731, 8 USPQ2d 1400 (Fed. Cir. 1988).
Regarding claims 1-7, 9, and 12-19, each of claims 1 and 12 recite a first layer and second layer or two or more layers made solely from knit fabric, the knit fabric of the first and the knit fabric of the second layer or the fabric having a 40 cal/cm2 or greater arc rating, wherein the first layer is oriented in a first direction, and the second layer is oriented in a second direction different than the first direction. Other than a knit fabric, Applicant’s lone disclosure regarding the structure and composition and properties of the claimed outerwear is recited at paragraph 0023, reciting that garments are made from any material which has been tested and approved for arc flash including para-aramid, modacrylic, treated cotton, spandex, or combinations thereof. Claims 7 and 18 similarly recites that the layers comprise para-aramid, modacrylic, treated cotton, lyocell, spandex, or combinations thereof. Note also that Applicant included “lyocell” in the amendments of March 6, 2026, but the recitation of lyocell constitutes new matter as it not recited in the specification as originally filed. Additionally, lyocell is also not known in the art as being heat/fire/flame/arc resistant.
Applicant’s specification does not provide any guidance as to the properties or the composition of the fabric, such as basis weight, density, thickness, knit density, fiber denier, and weight or volume amounts of the fibers, nor any guidance as to how or whether any properties or composition of the fabric predictably influences the arc rating as claimed. Additionally, note that although Applicant’s specification and claims recite “treated cotton”, no information is provided as to how to treat the cotton or what treatment is provided, nor is any information provided regarding spandex, which is not known in the art as being heat/fire/flame/arc resistant.
Additionally, although Applicant’s specification recites first and second layers for an arc rated article of outerwear but does not provide any manner of adhering, bonding, combining, or laminating the layers together, such that the outerwear is capable of use as claimed. Applicant’s specification does not provide any working examples.
The claimed invention is directed to a layered knit structure having an arc rating of 40 cal/cm2 or greater, without providing a manner of forming the claimed structure. Applicant’s specification does not provide a baseline of knit materials or manner to predictably increase the arc rating to a potentially limitless degree. Applicant’s specification only provides that the fabric is knit and “portions” are made from materials, some of which are not known to provide protection from arc flashes, and at least one which is not set forth in the specification but claimed. Applicant’s specification recites a garment which meets ASTM F1959/F1959M-12, ASTM F1506-10a, and ASTM F2178-17b without providing any guidance as to how one of ordinary skill can meet such standards. Applicant is, in essence, providing a desire for a knit structure with some known arc flash resistant materials, and a desire to meet a standard, without providing a manner for one of ordinary skill to actually form the claimed material. One of ordinary skill would be required to discover a manner of taking “portions” of a knit, and transform it into a structure to meet the claimed arc rating of 40 cal/cm2 or greater. Absent any guidance regarding at least the properties of the fabric, such as basis weight, density, thickness, knit density, fiber denier, and weight or volume amounts of the fibers, Applicant is requiring one of ordinary skill to invent the claimed invention simply by starting with two knit layers and some known arc flash resistant materials, and arrive at an arc flash rating meeting at least three standards. Such request is beyond the level of ordinary skill and therefore, the claimed invention fails to comply with the enablement requirement, as the claims contain subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
Claims 7 and 18 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.
Regarding claims 7 and 18, the claims recite layers made from fabric comprising lyocell. Applicant’s specification does not recite lyocell. Therefore, the recitation of lyocell constitutes new matter.
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 1-7, 9, and 12-19 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.
Regarding claims 1-7, 9, and 12-19, claim 1 recites the knit fabric of the first layer and the knit fabric of the second layer having a 40 cal/cm2 or greater arc rating, and claim 12 recites two or more layer made solely from knit fabric, the fabric having a 40 cal/cm2 or greater arc rating. It is unclear if the claims are requiring each of the knit fabrics or fabric layers to have the claimed arc rating, or if the claims are requiring the layers collectively to have the claimed arc rating.
Additionally, claims 1 and 12 recite that the first layer and the second layer or the two or more layers are configured to allow the article of outerwear to stretch as needed to enhance the comfort of the wearer. The claimed layers are not recited as having stretch properties. It is unclear if the structure of the layers or the composition of the layers is configured as claimed, including whether the layers are actually required to have stretch properties.
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.
Claims 1-7, 9, and 12-19 are rejected under 35 U.S.C. 103 as being unpatentable over USPN 7,182,991 to Hirschmann in view of US Pub. No. 2015/0322598 to Stanhope and US Pub. No. 2017/0176146 to Böhringer.
Regarding claims 1-7, 9, and 12-19, Hirschmann teaches a fabric structure that employs a napped fabric to protect a subject from an arc flash (Hirschmann, Abstract), for use in arc flash protective garments (Id., column 2 lines 20-23). Hirschmann teaches that arc flash suits with moderate to high arc ratings of protection from 25 cal/cm2 to over 100 cal/cm2 are comprised of multiple layers of FR fabrics (Id., column 1 line 64 to column 2 line 5). Hirschmann teaches that materials with which the fabric layers can be composed include para-aramid fibers and flame retardant treated cotton fibers (Id., column 4 lines 12-21). Hirschmann teaches that the fabrics may comprise two or more layers of FR fabric (Id., column 3 lines 4-15, Figs. 1-7, Examples A-F). Hirschmann teaches Examples where arc thermal performance values are linear, such as a 15.9 oz/yd2 fabric structure having an ATPV of 44 or 61 cal/cm2, based on napping (Id., Examples A-F).
Hirschmann teaches that the fabric layers comprise a weave structure, but does appear to teach the claimed knit fabrics and the claimed orientation.
Regarding the claimed knit fabrics, Stanhope teaches flame resistant fabrics including inherently flame resistant fibers first yarns, such as para-aramid, and second yarns which may include wool and modacrylic fibers or other inherently flame resistant fibers (Stanhope, Abstract, paragraphs 0010, 0029-0037). Stanhope teaches that the fabric may be a knit or woven fabric (Id., Abstract, paragraph 0009), which may be napped (Id., paragraph 0017). Stanhope teaches that the fabrics have both flash fire and arc protection (Id., paragraphs 0022, 0026). Stanhope teaches that the fabric has a weight of about 5 to about 16 oz/yd2 (Id., paragraph 0044), such as a fabric having a weight of 10 osy and an ATPV of 23 cal/cm2 (Id., paragraphs 0050-0053).
Hirschmann establishes a multilayer fabric structure for arc flash protection, comprising fibers such as aramid fibers, wherein arc thermal performance values are linear. Hirschmann establishes a fabric structure having a basis weight of 15.9 oz/yd2 fabric structure and having an ATPV of 44 or 61 cal/cm2, when napped, wherein high arc ratings of protection from 25 cal/cm2 to over 100 cal/cm2 are known to comprise multiple layers of FR fabrics. Similarly, Stanhope teaches a flame resistant fabric for arc flash protection, comprising fibers such as para-aramid. Stanhope establishes that the fabrics may comprise either a knit or woven structure, which may be napped, having a weight of about 5 to about 16 oz/yd2. Based on the combined teachings of the prior art, one of ordinary skill would recognize that increasing the fabric structure weight by increasing the weight of the layers, predictably increases the arc thermal performance values.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the arc flash protection garment of Hirschmann, and substituting the woven fabric layers of Hirschmann with knit fabric layers having arc ratings as claimed by increasing the basis weight, as taught by Stanhope, motivated by the desire of forming a conventional arc flash protection garment having a structure known in the art as being functionally equivalent and predictably suitable for similar arc flash protection fabrics, and having the desired properties where increased arc thermal protection is required.
Regarding the claimed orientation, Böhringer teaches protective clothing having preferably textile fragment protection equipment, comprising outerwear (Böhringer, Abstract), including at least one knitted textile fabric (Id., paragraph 0087), in particular a warp-knitted fabric and/or weft-knitted fabric (Id., paragraph 0091). Böhringer teaches that the knitted fabric material may comprise fire and/or flame-retardant properties (Id., paragraph 0104). Böhringer teaches that the clothing may include a plurality of plies of the knitted textile fabric (Id., paragraph 0134), wherein at least two successive plies are arranged and/or aligned at an angle in the range of 45º to 90º (Id., paragraph 0136). Böhringer teaches that forming the knitted fabric improves the wearing comfort and properties of the clothing (Id., paragraph 0091). Note that a warp-knitted fabric and a weft-knitted fabric would be structurally similar to the claimed warp fibers in a layer being oriented perpendicular to the warp fibers in another layer.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the arc flash protection garment of the prior art combination, wherein the knit fabrics comprise a warp and a weft-knitted fabric which are oriented as claimed, as taught by Böhringer, motivated by the desire of forming a conventional garment having a structure and knit fabric orientation known in the art to predictably improve properties including comfort.
Regarding the layers being configured as claimed, as set forth above, it is unclear exactly what is required. However, since the prior art combination teaches a substantially similar structure and composition as claimed, it is reasonable for one of ordinary skill to expect that the invention of the prior art combination is configured as claimed.
Regarding claims 2-4 and 13-15, since the prior art combination teaches a substantially similar structure and composition and properties as claimed, it is reasonable for one of ordinary skill to expect that the claimed properties naturally flow from the structure of the prior art combination. Products of identical structure cannot have mutually exclusive properties. The burden is on Applicants to prove otherwise.
Regarding claims 5, 6, 16, and 17, the prior art combination teaches that applications of the fabric structures include arc protective blankets, suits, gloves, hoods, etc. (Hirschmann, column 4 lines 22-27). Additionally, it is reasonable for one of ordinary skill to expect that suitable arc protective suits include coats, jackets or bibs, as one of ordinary skill would recognize suitable garments to be worn while performing work. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the arc flash protection garment of the prior art combination, formed into a coat, jacket or bib, to predictably protect the portions of the wearer while performing work.
Regarding claims 9 and 19, the prior art combination teaches that multiple layers comprise the same fabric (Hirschmann, Example F).
Response to Arguments
Applicant’s arguments have been considered but are moot based on the new ground of rejection.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PETER Y CHOI whose telephone number is (571)272-6730. The examiner can normally be reached M-F 9:00 AM - 3:00 PM.
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/PETER Y CHOI/ Primary Examiner, Art Unit 1786
