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 .
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 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.
DETAILED ACTION
The present application, filed on July 5, 2026, in which claims 1-18 were presented for examination, of which claims 8-9, 11-12, and 15-16 were withdrawn due to being drawn to a non-elected embodiment, are being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Applicant's election with traverse of Species IV, in the reply filed on July 5, 2026 is acknowledged. The traversal is on the ground(s) that “The Office alleges that "currently, no claim is generic." Office Action, page 4. Applicant respectfully disagrees. Independent Claim 1 recites a precise flyknit fabric wherein "each of the knit units has a number of knitting needles in the range of 7 to 20, each of the knit units has a number of knit rows in the range of 12 to 40..." The variations identified by the Office as Species I through VI correspond to the narrower ranges in claims 8 to 12, respectively, and contain limitations on the number of knitting needles and the number of knit rows. However, these limitations (e.g., in claim 8, the number of knitting needles in the range of 7 to 10, and the number of knit rows in the range of 12 to 20) all fall completely within the broad numerical ranges of claim 1. Therefore, claim 1 is inherently a generic claim that reads on all Species 1-VI. Applicant respectfully requests that upon finding generic claim 1 allowable, the restriction requirement among Species 1-VI be withdrawn, and all dependent claims (including those directed to non-elected species) be rejoined and examined […]Independent Claim 15 explicitly recites "A manufacturing method for the precise flyknit fabric according to claim 1..." The method of claim 15 is specifically adapted to manufacture the fabric of claim 1, sharing the same special technical features (e.g., forming the knit units comprising the first knit part and/or second knit part). Therefore, under the rules of Unity of Invention applicable to National Stage applications, the product of claim 1 and its manufacturing method of claim 15 clearly share a single general inventive concept. Applicant respectfully requests that Species VII (Claims 15- 16) be rejoined and examined along with the elected product species.” This is not found persuasive because the identified species are directed to patentably distinct embodiments falling within different subranges of the claimed parameters, and examination of one species would not require examination of the others. Accordingly, claim 1 is not treated as a generic claim requiring withdrawal of the restriction requirement. The restriction requirement between Species I-VI is therefore maintained. Although claims 15-16 are directed to a method of manufacturing the fabric recited in claim 1, the recitation of a process for making the claimed product does not, by itself, require examination of the product and process claims together. The product and process constitute distinct inventions requiring separate examination, and distinct manufacturing methods that are not obvious for examination within an apparatus claim. Examination of the process claims would require a search and consideration of prior art different from that required for the product claims. Accordingly, the restriction requirement between the product/apparatus claims and the process/manufacturing method claims is maintained.
The requirement is still deemed proper and is therefore made FINAL.
Specification
The use of the term “flyknit”, which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
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.
Claims 1-7,10, and 13-14 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 1-7,10, and 13-14 contain the trademark/trade name “flyknit”. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe a knitted fabric and, accordingly, the identification/description is indefinite.
Regarding claim 1, the limitation “a first knit part/and a second knit part” in line: 5 is indefinite because it is unclear what the metes and bounds are that the Applicant is trying to claim. Examiner assumes the limitation should read as “a first knit part and/or a second knit part”.
Regarding claim 5, the limitation “wherein when the first yarns are transparent yarns, the second yarns are transparent yarns or colored yarns; and when the first yarns are colored yarns, the second yarns are transparent yarns” is indefinite, because with how it is written the yarns seem to change color and/or transparency. It is unclear if the yarns are changing color and/or transparency, or if the limitations are attempting to be interpreted as conditions. Examiner assumes the limitation should be understood as “wherein when the first yarns are transparent yarns, the second yarns are transparent yarns or colored yarns; or when the first yarns are colored yarns, the second yarns are transparent yarns”
Regarding claim 6, the limitation “wherein at least one of the third yarns, the fourth yarns and the fifth yarns is a transparent yarn” is indefinite because the term “at least one of” is proceeded with “and” instead of “and/or” since one of the yarns can be selected.
Claim Rejections - 35 USC § 103
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 1-2, 4-5, 10, and 13-14 are rejected under 35 U.S.C. 103 as being unpatentable over Bartys et al. “Bartys” (US Patent 11,624,134) as best understood.
Regarding claim 1, Bartys discloses a precise flyknit fabric (132, Fig. 1-6), comprising an integrally knit fabric body (as shown in Fig. 6), wherein the fabric body comprises several knit units (shown as POD and labeled sections in Fig. 6), each of the knit units has a size (“POD” as shown in Fig. 6) of 1 square centimeter, each of the knit units has a number of knitting needles in the range of 7 to 20 (Col. 13, lines: 49-54 and 64-66, examiner notes there are 16 wales, which corresponds to 16 needles, which falls within the Applicants claimed range), each of the knit units has a number of knit rows in the range of 12 to 40 (Col. 13, lines: 64-66, examiner notes there are 16 courses/rows, which falls within the Applicants claimed range), and the knit units each comprise a first knit part (combination of 154 and 156)/and a second knit part (158).
Bartys does not explicitly disclose each of the knit units has a size of 1 square centimeter.
It would have been obvious to one having ordinary skill in the art at the time the
invention was made to have the size of each knit unit to be 1 square centimeter, since the claimed value is merely an optimum or workable value, in order to achieve an optimal configuration. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable range involves
only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 2, Bartys discloses wherein the first knit part comprises: a first face layer (154) comprising first yarns (Col. 8, lines: 26-28, Col. 6, lines: 3-4, as shown in Fig. 6-7B) knit to form the first face layer (as shown in Fig. 3); and a first bottom layer (156) comprising second yarns (Col. 8, line: 65-Col. 9, line: 8, as shown in Fig. 6-7B) knit to form the first bottom layer (as shown in Fig, 3); and the first face layer and the first bottom layer constitute the first knit part (as shown in Fig. 3).
Regarding claim 4, Bartys discloses wherein the second yarns are transparent yarns (Col. 12, lines: 56-57).
Regarding claim 5, Bartys discloses wherein when the first yarns are colored yarns (Col. 9, lines: 4-8, one of ordinary skill in the art would recognize since the second yarn has different properties from the first yarn, it is capable of being a non transparent yarn, which would result in a different color from the second yarn), the second yarns are transparent yarns (Col. 12, lines: 56-57).
Regarding claim 10, Bartys discloses wherein each of the knit units has the number of knitting needles in the range of 15 to 20 (Col. 13, lines: 49-54 and 64-66, examiner notes there are 16 wales, which corresponds to 16 needles, which falls within the Applicants claimed range).
Bartys does not explicitly disclose the number of knit rows in the range of 30 to 40.
It would have been obvious to one having ordinary skill in the art at the time the
invention was made to have the number of knit rows in the range of 30 to 40, since the claimed value is merely an optimum or workable range, in order to achieve an optimal configuration. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable range involves
only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 13, Bartys discloses wherein individual layers in the knit units have a denier number of 20 D to 500 D or equivalent units in metric or imperial systems (Col. 9, lines: 22-24 and 35-37).
Regarding claim 14, Bartys discloses wherein the knit units have an elongation of 110% to 220% (Col. 8, lines: 39-44, examiner notes a yarn that the knit unit comprises as an elongation of 180% to 250% which falls within the Applicants claimed range).
Claims 3, 6, and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Bartys in view of Podhajny (US Patent 8,959,959) as best understood.
Regarding claim 3, Bartys discloses wherein the second knit part (158) comprises: a second face layer (158a) comprising third yarns (Col. 12, lines: 17-22) knit to form the second face layer (as shown in Fig. 3); a second bottom layer (158b) comprising fourth yarns (Col. 12, lines: 17-22) knit to form the second bottom layer (as shown in Fig. 3).
Bartys does not disclose an intermediate support layer
However, Podhajny teaches yet another knitted structure, wherein Podhajny teaches an intermediate support layer (1205 and 1206) knit between the second face layer (1201) and the second bottom layer (1204) and comprising fifth yarns (yarns of 1205 and 1206) knit to form the intermediate support layer (as shown in Fig. 12).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the second part of Bartys, by incorporating an intermediate support layer as taught by Podhajny, wherein with this combination one of ordinary skill in the art would recognize the following limitation is met “the second face layer, the second bottom layer and the intermediate support layer constitute the second knit part” since the intermediate support layer of Podhajny is incorporated with the second face and bottom layer of Bartys, in order to enhance the structural integrity of the fabric.
Regarding claim 6, Bartys in view of Podhajny disclose wherein at least one of the fifth yarns (yarns of 1205 and 1206 of Podhajny) is a transparent yarn (Col. 9, lines: 15-17).
Regarding claim 7, Bartys in view of Podhajny disclose wherein when the third yarns are transparent yarns, the fourth yarns are transparent yarns and/or colored yarns, and the fifth yarns are transparent yarns and/or colored yarns (Col. 9, lines: 15-17, Col. 17, lines: 20-26, examiner notes the yarns that form the structure of Fig. 12 are formed from transparent yarns).
Conclusion
The prior art made of record and not relied upon is considered pertinent (See PTO-892) to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAKOTA MARIN whose telephone number is (571)272-3529. The examiner can normally be reached Mon.-Fri., 9:00AM-6:00PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, ALISSA TOMPKINS can be reached at (571) 272-3425. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DAKOTA MARIN/Examiner, Art Unit 3732
/ALISSA J TOMPKINS/Supervisory Patent Examiner, Art Unit 3732
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