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 .
Claim Objections
Claims 19 and 20 are objected to because of the following informalities.
Claim 19 and 20 each recite “the cover layer and the carrier layers,” which appears to contain a typographical error. The examiner suspects the intent of the applicant was to recite this portion of each claim as “the cover layer and the carrier layer” and will be examined on the merits as such.
Appropriate correction is required.
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 7 and 14 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 7 and 14 each recite “the functional material in the cover layer is 20% to 60% or 30% or 40% or 50%.” However, the scope of the claims is unclear because there is no basis recited for these percentages.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 2, 6-11 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over WO 2008/149127 A1 (hereinafter “Lamb”), and further in view of United States Patent Application Publication No. US 2020/0247096 (hereinafter “Woodbridge”).Regarding claims 1 and 2 Lamb teaches a fabric (textile) comprising a first layer (cover layer) 2, a second layer (carrier layer) 3, and an intermediate layer (intermediate layer) 7 between the first or inner layer 2 and the second or outer layer 3 (abstract; page 2, 5th paragraph; and page 5, 2nd full paragraph and last paragraph), which corresponds to a carrier layer with an inner side T, an intermediate layer, and a cover layer with an inner side D, wherein the intermediate layer is arranged between the carrier layer and the cover layer and is connected to the inner side T of the carrier layer and is connected to the inner side D of the cover layer. Lamb teaches the first or inner layer (cover layer) 2 includes a phase change material (functional material) (hereinafter “PCM”) that provides a cooling effect by storing and releasing heat by changing the PCM from a solid to a liquid phase and vice versa, and comprises a fabric (base material formed as a yarn or as a fiber) (paragraph bridging pages 4-5; page 5, 1st full paragraph; and page 6, 2nd paragraph). Lamb does not explicitly teach the PCM (functional material) is formed as a yarn or as a fiber having a cooling medium as a further component embedded in said yarn or fiber, which is integrated in the cover layer. Woodbridge teaches a laminate comprising a PCM which acts as a temperature moderator by storing heat by causing a change in the state or phase of the material, for example from a solid to a liquid (paragraph [0071]). Woodbridge teaches the PCM may be applied to suitably absorbent fibers; such as, any synthetic or natural fiber able to absorb the PCM, where the PCM layer may thus be a layer of absorbent fibers bearing PCM (paragraph [0082]), which corresponds to the PCM (functional material) is formed as a yarn or as a fiber which has a cooling medium as a further component embedded therein and being integrated in a layer. Lamb and Woodbridge are analogous inventions in the field of PCMs. It would have been obvious to one skilled in the art at the time of the invention to substitute the PCM of the first or inner layer (cover layer) 2 of Lamb with the PCM absorbed fiber of Woodbridge motivated by the desire to form a conventional PCM for implementing a cooling effect mechanism in a layer of a laminate, comprising a PCM absorbed fiber (functional material formed of a yarn or fiber having a cooling medium as a further component embedded therein) known in the art as being functionally equivalent and predictably suitable for use in forming such a PCM component. See MPEP §2144.06(II). The combination of Lamb and Woodbridge corresponds to the claimed feature requiring the functional material formed as a yarn or fiber having a cooling medium as a further component embedded which is integrated in the cover layer.Regarding claim 6 In addition, Lamb teaches the fabric construction is relatively light in weight (page 2, 2nd paragraph). Lamb also teaches the intermediate layer (intermediate layer) 7 provides the fabric with impact resistance (page 3, last paragraph). Lamb does not explicitly teach the intermediate layer has a basis weight of at most 200 g/m2. It would have been obvious to one having ordinary skill in the art at the time of the invention to determine an appropriate basis weight for the intermediate layer using nothing more than routine experimentation to achieve a desired balance between a reduction of weight of the fabric construction and sufficient impact resistance of the intermediate layer. It has been held where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art unless such a range is shown to be critical. Please see MPEP § 2144.05(II)(A).Regarding claim 7 In addition, Lamb teaches the PCM (functional material) acts to absorb, store and release heat (paragraph bridging pages 4-5). The combination of Lamb and Woodbridge does not explicitly teach the proportion of the PCM (functional material in the cover layer) is 20% to 60% or 30% or 40% or 50% with the balance being the base material. It would have been obvious to one having ordinary skill in the art at the time of the invention to determine an appropriate proportion of the PCM (functional material) in the first layer (cover layer) 2, from the combination of Lamb and Woodbridge, using nothing more than routine experimentation to achieve a desired heat absorbing capacity of the first layer (cover layer) 2. It has been held where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art unless such a range is shown to be critical. Please see MPEP § 2144.05(II)(A).Regarding claim 8 Regarding the heat capacity of the PCM (functional material), although the prior art does not explicitly disclose the PCM (functional material) has a specific heat absorption of at least 50 J/g, the claimed property is deemed to naturally flow from the structure in the prior art since the combination of Lamb and Woodbridge teaches an invention with an identical and/or substantially identical structure and/or chemical composition as the claimed invention. See MPEP §2112.Regarding claim 9 In addition, Lamb teaches the fabric construction is relatively light in weight (page 2, 2nd paragraph). Lamb also teaches the PCM in the first or inner layer (cover layer) 2 acts to absorb, store and release heat (paragraph bridging pages 4-5). Lamb does not explicitly teach the first or inner layer (cover layer) 2 has a basis weight of at most 230 g/sqm to 290 g/sqm or 250 g/sqm or 270 g/sqm. It would have been obvious to one having ordinary skill in the art at the time of the invention to determine an appropriate basis weight for the first or inner layer (cover layer) 2 using nothing more than routine experimentation to achieve a desired balance between a reduction of weight of the fabric construction and sufficient heat absorbing capacity of the first layer (cover layer) 2. It has been held where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art unless such a range is shown to be critical. Please see MPEP § 2144.05(II)(A).Regarding claim 10 In addition, Lamb teaches the fabric (textile) construction is relatively light in weight (page 2, 2nd paragraph). Lamb also teaches the intermediate layer (intermediate layer) 7 provides the fabric with impact resistance (page 3, last paragraph), the PCM in the first or inner layer (cover layer) 2 acts to absorb, store and release heat (paragraph bridging pages 4-5), and the second layer (carrier layer) 3 absorbs moisture to maintain the comfort of a user (page 4, 6th paragraph; and abstract). Lamb does not explicitly teach the fabric (textile) has a basis weight of at most 400 g/sqm to 600 g/sqm or 485 g/sqm or 550 g/sqm. It would have been obvious to one having ordinary skill in the art at the time of the invention to determine an appropriate basis weight for each of: the intermediate layer (intermediate layer) 7; the first or inner layer (cover layer) 2; the second layer (carrier layer) 3; and the resulting overall fabric (textile) using nothing more than routine experimentation to achieve a desired balance between: a desired reduction of the weight of the fabric construction; and sufficient impact resistance, heat absorbing capacity, and moisture absorption of the fabric (textile). It has been held where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art unless such a range is shown to be critical. Please see MPEP § 2144.05(II)(A).
Regarding claim 11 In addition, Lamb teaches the fabric (textile) may be made up into (a use of the textile for the manufacture of) an item selected from the group comprising an item of apparel, footwear, insoles, fashion or clothing accoutrements, duvets, bedding, mattresses, pillows, mattress pads, sleeping bags, protective item of clothing, a shoe insole, a helmet for use in sport, a seat cover, a protective jacket, a kerchief, a pair of gloves, tights, underclothes, a pair of socks, a headband, a wrist band, and the like (page 1, 1st paragraph; and page 3, 3rd paragraph).Regarding claim 19 As previous mentioned, Lamb teaches a fabric (textile) comprising a first layer (cover layer) 2, a second layer (carrier layer) 3, and an intermediate layer (intermediate layer) 7 between the first or inner layer 2 and the second or outer layer 3 (abstract; page 2, 5th paragraph; and page 5, 2nd full paragraph and last paragraph), which corresponds to the cover layer and the carrier layer are each outer layers of the textile.
Claims 3-5 and 12-16 are rejected under 35 U.S.C. 103 as being unpatentable over Lamb and Woodbridge as applied to either claim 1 or 2 above, and further in view of United States Patent Application Publication No. US 2019/0062964 (hereinafter “Heiner”).Regarding claims 3, 4 and 12 The limitations of claims 1 and 2 have been set forth above. In addition, Lamb teaches the intermediate layer (intermediate layer) 7 is impact resistant so that on impact, the force of a blow is absorbed and is not transmitted to a wearer (page 5, last paragraph). Lamb does not explicitly teach: the intermediate layer (intermediate layer) 7 is designed as a spacer fabric and forms a pile filament structure consisting of a plurality of filaments arranged at a distance "a" with a longitudinal axis L, which are aligned with respect to the longitudinal axis L in a direction Q transverse to the inner side T and transverse to the inner side D; and the filaments of the intermediate layer form an angle β with the inner side T and/or with the inner side D, with 80° < β < 100°. Heiner teaches a knitted spacer fabric 10 comprising a first layer 11, a second layer 12, and connection threads (plurality of filaments) 21 which connect the first and second layers 11, 12 arranged at a distance from one another in a height direction H (layer designed as a spacer fabric and forms a pile filament structure consisting of a plurality of filaments) (abstract; and Figures 3-4). Heiner teaches the number and arrangement of the connection threads 21 per unit of area in a plane spanned by the longitudinal direction L and the transverse direction Q can vary in order to achieve the desired compressive strength of the knitted spacer fabric in the height direction H (paragraph [0043]). Heiner also teaches the density and arrangement of the spacer/connection threads can be varied in order to adjust the compressive strength of the spacer fabric (paragraph [0019]). Heiner illustrates the connection threads (plurality of filaments) 21 are arranged at a distance with a longitudinal axis, which are aligned with respect to the longitudinal axis in a direction transverse (angle of 90°) to upper and lower surfaces of the spacer fabric 10 (same orientation as an inner side T and an inner side D) (Figures 3-4), which also corresponds to the filaments of the intermediate layer forming an angle β with the inner side T and/or the inner side D, with β = 90°, which falls within the claimed range. Lamb and Heiner are analogous inventions in the field of impact resistant materials. It would have been obvious to one skilled in the art at the time of the invention to modify the intermediate layer 7 of Lamb with the spacer fabric of Heiner to provide an impact resistant material capable of having its compressive strength, and therefore its impact resistance, tailored to a desired level.Regarding claim 5 In addition, Heiner teaches the connection threads 21 (filaments of the intermediate layer) are arranged such that they do not cross or pass through a predetermined separation space (parallel to each other) (paragraph [0017]).Regarding claim 13 In addition, Heiner teaches the connection threads 21 (filaments of the intermediate layer) are arranged such that they do not cross or pass through a predetermined separation space (parallel to each other) (paragraph [0017]). Lamb also teaches the fabric construction is relatively light in weight (page 2, 2nd paragraph). Lamb also teaches the intermediate layer (intermediate layer) 7 provides the fabric with impact resistance (page 3, last paragraph). Lamb does not explicitly teach the intermediate layer has a basis weight of at most 200 g/m2. It would have been obvious to one having ordinary skill in the art at the time of the invention to determine an appropriate basis weight for the intermediate layer using nothing more than routine experimentation to achieve a desired balance between a reduction of weight of the fabric construction and sufficient impact resistance of the intermediate layer. It has been held where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art unless such a range is shown to be critical. Please see MPEP § 2144.05(II)(A).Regarding claim 14 In addition, Lamb teaches the PCM (functional material) acts to absorb, store and release heat (paragraph bridging pages 4-5). The combination of Lamb and Woodbridge does not explicitly teach the proportion of the PCM (functional material in the cover layer) is 20% to 60% or 30% or 40% or 50% with the balance being the base material. It would have been obvious to one having ordinary skill in the art at the time of the invention to determine an appropriate proportion of the PCM (functional material) in the first layer (cover layer) 2, from the combination of Lamb and Woodbridge, using nothing more than routine experimentation to achieve a desired heat absorbing capacity of the first layer (cover layer) 2. It has been held where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art unless such a range is shown to be critical. Please see MPEP § 2144.05(II)(A). Regarding the heat capacity of the PCM (functional material), although the prior art does not explicitly disclose the PCM (functional material) has a specific heat absorption of at least 50 J/g, the claimed property is deemed to naturally flow from the structure in the prior art since the combination of Lamb and Woodbridge teaches an invention with an identical and/or substantially identical structure and/or chemical composition as the claimed invention. See MPEP §2112.Regarding claim 15 In addition, Lamb teaches the fabric construction is relatively light in weight (page 2, 2nd paragraph). Lamb also teaches the intermediate layer (intermediate layer) 7 provides the fabric with impact resistance (page 3, last paragraph), the PCM in the first or inner layer (cover layer) 2 acts to absorb, store and release heat (paragraph bridging pages 4-5), and the second layer (carrier layer) 3 absorbs moisture to maintain the comfort of a user (page 4, 6th paragraph; and abstract). Lamb does not explicitly teach: the first or inner layer (cover layer) 2 has a basis weight of at most 230 g/sqm to 290 g/sqm or 250 g/sqm or 270 g/sqm; and/or the fabric (textile) has a basis weight of at most 400 g/sqm to 600 g/sqm or 485 g/sqm or 550 g/sqm. It would have been obvious to one having ordinary skill in the art at the time of the invention to determine an appropriate basis weight for each of: the intermediate layer (intermediate layer) 7; the first or inner layer (cover layer) 2; the second layer (carrier layer) 3; and the resulting overall fabric (textile) using nothing more than routine experimentation to achieve a desired balance between: a desired reduction of the weight of the fabric construction; and sufficient impact resistance, heat absorbing capacity, and/or moisture absorption of the fabric (textile). It has been held where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art unless such a range is shown to be critical. Please see MPEP § 2144.05(II)(A).Regarding claim 16 In addition, Lamb teaches the fabric (textile) may be made up into (a use of the textile for the manufacture of) an item selected from the group comprising an item of apparel, footwear, insoles, fashion or clothing accoutrements, duvets, bedding, mattresses, pillows, mattress pads, sleeping bags, protective item of clothing, a shoe insole, a helmet for use in sport, a seat cover, a protective jacket, a kerchief, a pair of gloves, tights, underclothes, a pair of socks, a headband, a wrist band, and the like (page 1, 1st paragraph; and page 3, 3rd paragraph).
Claims 17, 18 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Lamb, Woodbridge and Heiner as applied to claim 3 above, and further in view of United States Patent Number 9,261,334 (hereinafter “Saint”).Regarding claim 17 The limitations for claim 3 have been set forth above. In addition, the combination of Lamb, Woodbridge, and Heiner does not explicitly teach the intermediate layer is interwoven with the carrier layer and the cover layer, wherein the textile is elastic vertically in the direction of the longitudinal axis L whereby air trapped in the intermediate layer is displaceable by movement that causes higher temperature air to be moved to lower temperature points. Saint teaches quasi 3D fabrics are less susceptible to damage and delamination of layers due to the presence of connecting fibers between layers to effectuate greater levels of strength between individual structures. In other words, with 3D fabrics, there are multiple layers that are fused together in some manner, but still highly susceptible to delamination during a shearing event. Quasi 3D structures include multiple layers but are actually configured such that a middle layer includes fibers that are integrated (interwoven) within both the upper and lower layer. This outlay then creates far greater strength for the overall fabric as the chances of layer separation are drastically reduced (column 3, lines 18-30). It would have been obvious to a person having ordinary skill in the art at the time of the invention to modify the fabric (textile) of Lamb with fibers being integrated (interwoven) between the intermediate layer (intermediate layer) 7 and both the first layer (cover layer) 2 and the second layer (carrier layer) 3, as taught by Saint, to improve: (i) the strength for the overall fabric; and/or delamination resistance between layers. Regarding the physical behavior of the fabric (textile), although the prior art does not explicitly disclose the textile is elastic vertically in the direction of the longitudinal axis L whereby air trapped in the intermediate layer is displaceable by movement that causes higher temperature air to be moved to lower temperature points, the claimed properties/functions are deemed to naturally flow from the structure in the prior art since the combination of Lamb, Woodbridge, Heiner, and Saint teaches an invention with an identical and/or substantially identical structure and/or chemical composition as the claimed invention. See MPEP §2112.Regarding claim 18 As previously mentioned, Heiner teaches a knitted spacer fabric 10 comprising a first layer 11, a second layer 12, and connection threads (plurality of filaments having a volume F of the filaments) 21 which connect the first and second layers 11, 12 arranged at a distance from one another in a height direction H (abstract; and Figures 3-4). Heiner teaches the number and arrangement of the connection threads 21 (which also corresponds to a volume F of the filaments) per unit of area in a plane spanned by the longitudinal direction L and the transverse direction Q can vary in order to achieve the desired compressive strength of the knitted spacer fabric in the height direction H (paragraph [0043]). Heiner also teaches the density and arrangement of the spacer/connection threads can be varied in order to adjust the compressive strength of the spacer fabric (paragraph [0019]). Heiner teaches a predetermined separation space (remaining air volume U) 25 between adjacent connection threads 21 (paragraph [0052] and Figure 4). The spacer fabric disclosed by Heiner corresponds to an intermediate layer having a volume V made up of a volume F of filaments and remaining air volume U. Heiner does not explicitly teach a ratio F/U is between 0.01 to 0.1. Absent a showing of criticality with respect to the ratio of the volume F of the filaments to the remaining air volume U (F/U ratio) (a result-effective variable), it would have been obvious to a person of ordinary skill in the art at the time of the invention to determine an appropriate density, arrangement, and number of connection threads (corresponding to the volume F of the filaments, and subsequently corresponding to an overall relative volume, including a F/U ratio) through routine experimentation in order to achieve the desired compressive strength of the spacer fabric (intermediate layer). It has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. Please see MPEP § 2144.05(II)(B).Regarding claim 20 As previous mentioned, Lamb teaches a fabric (textile) comprising a first layer (cover layer) 2, a second layer (carrier layer) 3, and an intermediate layer (intermediate layer) 7 between the first or inner layer 2 and the second or outer layer 3 (abstract; page 2, 5th paragraph; and page 5, 2nd full paragraph and last paragraph), which corresponds to the cover layer and the carrier layer are each outer layers of the textile.
Response to Arguments
Applicant’s arguments, see pages 6-7, filed 12 May 2026, with respect to the rejection of claims 4, 5, 10, 15 and 16 under 35 U.S.C. 112(b) have been fully considered and are persuasive. The rejection of claims 4, 5, 10, 15 and 16 under 35 U.S.C. 112(b) has been withdrawn.
Applicant's arguments filed 12 May 2026 have been fully considered but they are not persuasive.
The applicant stated that claims 7 and 14 have been amended to define that the balance of the material in the cover layer is the base material. However, this amendment fails to overcome the previous rejection because the basis of the percentages are not defined. In other words, claims 7 and 14 each recite percentages and the basis of these percentages are not defined (e.g., wt%, vol%, etc.).
The applicant highlighted Figure 2 from Lamb and argued Lamb teaches away from the intermediate layer being arranged between the carrier layer and the cover layer. The examiner respectfully submits that this argument is not commensurate in scope with the rejection of record. The examiner does not rely on Figure 2 from Lamb to meet the limitation in question. For the sake of clarity, the examiner wishes to emphasize Lamb’s teaching of an embodiment where the fabric (textile) may include three layers including a first layer, a second layer, and a layer intermediate the first and second layers, this configuration is also described as including an intermediate layer 7 between the inner and outer layers (page 2, 5th paragraph, and page 5, last paragraph). Moreover, Lamb identifies the intermediate layer may be impact resistant, which also corresponds to the later identified intermediate layer 7. See page 2, 5th-6th paragraphs and page 5, last paragraph.
The applicant argued Woodbridge’s phase change material layer is a phase change material absorbed fiber and not formed from two materials. The examiner respectfully disagrees and contends that the phase change material is a first material (or functional material), and the fibers which absorb the phase change material is a second material (or base material).
Regarding new claims 17-20, these claims are considered to be obvious for at least the same reasons above, in addition to the discussion provided in the updated rejection of record.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIAN HANDVILLE whose telephone number is (571)272-5074. The examiner can normally be reached Monday through Thursday, from 9 am to 4 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Veronica Ewald can be reached at (571) 272-8519. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRIAN HANDVILLE/Primary Examiner, Art Unit 1783
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