DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16th, 2013, is being examined under the first inventor to file provisions of the AIA .
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 1-10 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 claim 1, a recitation of physical properties (i.e. having L*, a*, and b* values meeting the claimed expression), without setting forth structural or chemical characteristics of polyethylene fiber other than having a pigment.
According to Ex parte Slob, 157 USPQ 172:
“Claims merely setting forth physical characteristics desired in article, and not setting forth specific compositions which would meet such characteristics, are invalid as vague, indefinite, and functional since they cover any conceivable combination of ingredients presently existing or which might be discovered in the future and which would impart desired characteristics…”
The inquiry is to determine whether the claims set out and circumscribe a particular area with a reasonable degree of precision and particularity, and the definiteness of the claim language employed must be analyzed, not in a vacuum, but always in light of the teachings of the prior art and of the particular application disclosure as it would be interpreted by one possessing an ordinary level of skill in the pertinent art. In re Moore, 439 F.2d 1232, 1235, 169 USPQ 236, 238 (CCPA 1971).
Claims 1-2 and 4-10 only describe the properties of the yarn (or fabric) without describing the structure or chemical characteristics of the invention. Applicant only claims the characteristic properties of color instead of claiming any substantial structure or composition comprising such properties. Conceivably, any melt/dope-dyed polyethylene fiber known at the time of conception or later invented comprising, for example, the 1 wt% indigo-colored blue fiber of Orloff et al. (U.S. Patent No. 4,309,323) [col. 1, lines 48-53; col. 2, lines 8-20; col. 3, lines 10-20; col. 4, lines 3-9; col. 6, lines 1-12], could comprise the claimed fiber.
For the foregoing reasons, the claims circumscribe an area of protection which exceed the reasonable degree of precision and particularity as set forth in Moore. Accordingly, claims 1-2 and 4-10 are indefinite for failing to identify a structure which can meet the claim limitations and for reciting only the desired properties of the polyethylene fiber comprising the pigment.
Further regarding claim 1, the last two lines read confusingly due to the placement of “respectively” it seems that L*, a*, and b* are respective to maximum, minimum, and average values rather than maximum, minimum, and average values being respective to Cmax, Cmin, and Caver. It is recommended that the last two lines of claim 1 instead read “wherein Cmax, Cmin, and Caver represent maximum, minimum, and average values, respectively, of any one of selected from L*, a*, and b*”.
Claim Rejections - 35 USC § 102/103
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
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 1-10 are rejected under 35 U.S.C. 102(a)(1) as anticipated by Kaiga et al. (JP 2019-099954 A) (hereinafter “Kaiga”), OR, in the alternative, claims 1-10 are rejected under 35 U.S.C. 103 as obvious over Kaiga optionally in view of Sakakura et al. (JP 2003-301324 A) (hereinafter “Sakakura”),
wherein claims 5-7 are evidenced by or are optionally (further) in view of Lee et al. (KR 10-2092934 B1) (hereinafter “Lee”) {using U.S. Pub. No. 2022/0049378 A1 as a translation document} AND/OR wherein claim 4-5 and 9-10 are optionally (further) in view of Kim et al. (KR 2020-0036171 A) (hereinafter “Kim”).
Regarding claims 1-2 and 8, Kaiga teaches a colored/pigmented/dope-dyed polyethylene fiber, formed into a functional woven or knitted fabric having excellent cut resistance usable for a glove or vest [0029, 0031] and replacing ultra-high molecular weight polyethylene fibers [0024], wherein when the colored pigment is an azo pigment the fiber comprises an L* value range of 67 to 77 [0018], which gives an expression value {(10/72) x100} of 13.9 and an estimated standard deviation {10/4} of 2.5, wherein “when, as by a recitation of ranges or otherwise, a claim covers several compositions, the claim is anticipated if one of them is in the prior art" Titanium Metals Corp. v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985). See MPEP 2131.03 I.
Further regarding claims 1-7 and 9-10, Kaiga further teaches the colored polyethylene fiber/yarn as having a weight-average molecular weight of 300,000, Mw/Mn of 4.0 or less, and 0.5 to 10 of a masterbatch containing a pigment having an overall stretching ratio most preferably 10 times or more and 20 times or less, wherein it is suspected that a lower Mw/Mn leads to a lower draw ratio and also lower strength of fiber, and providing a cut index greater than 5.0 [0011-0014, 0026-0028], wherein Examples 1-3 comprising a high-density polyethylene having a weight-average molecular weight of 115,000 and a Mw/Mn ratio of 2.8 at a take-up speed of 250 m/min and a first stretch ratio of 2.5x and a second stretch of 3.9x, wherein the HDPE is melt-blended with 1.5 wt% of masterbatch of a low-density polyethylene containing an azo pigment for a fiber-level pigment content of 0.5%, with 3.0 wt% of masterbatch of a low-density polyethylene containing an azo pigment for a fiber-level pigment content of 1.0%, and with 1.0 wt% of masterbatch of a low-density polyethylene containing a phthalocyanine pigment for a fiber-level pigment content of 0.3%, respectively, having L*/a*/b* values of 72/33/55, 69/35/58, and 52/-12/-40 (taken along a wound-up fiber/yarn), respectively, having the tensile/elastic moduli is 323, 310, and 324 cN/dtex, respectively, and a tensile strength of 13.2, 12.9 and 12.7 cN/dtex (about 15, 14.6, and 14.4 g/d), respectively [0026, 0035, 0037, 0044-0048, 0052], wherein a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap (tensile modulus) but are close enough that one skilled in the art would have expected them to have the same properties. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed. Cir. 1985). See MPEP 2144.05.
Although the prior art does not disclose the expression as claimed for at least L*, a*, or b*, crystallinity, melt index, or a dry heat shrinkage rate for the yarn and a cooling coefficient or thermal conductivity for the functional fabric, the claimed properties are deemed to be inherent to the structure in the prior art since Kaiga teaches an invention with a substantially similar method of making, structure, and chemical composition as the claimed invention. Products of identical method of making, structure, and composition cannot have mutually exclusive properties. The burden is on the Applicants to prove otherwise.
Further regarding claims 1-2, in the event that it would not have been inherent to the formed yarn of Kaiga or obvious over Kaiga alone to provide yarns comprising L*, a*, or b* values meeting the expression as claimed:
Sakakura teaches that while conventionally polyolefin fibers, such as polyethylene and polypropylene, are not inherently “dyeable” and as such are dope-dyed via pigment inclusion, which can lead to uneven distribution of pigment along the length of the fiber/yarn forming streaks during weaving or knitting processes, which is significantly improved by melt-blending [0002-0003, 0018], wherein optimizing the melt flow rate, the mixing ratio of the polymer to the masterbatch polymer of the same type containing the pigment, and the extrusion processing elements provides the desired uniformity [0016-0020] uniformity is measured by using 20 samples arbitrarily along the length ΔL* value of more than 0.8 would lead to noticeable streaking and with a color difference of 1.59 being clearly visible to the naked eye [0007, 0009, 0025], wherein ΔL* for examples 1-6 are in the range of 0.33 to 0.69 wherein the given Lmax* and Lmin* values provide calculated values for the claimed expression as being in the range of about 1.1 to 2.6 and an approximate standard deviation of 0.08 to 0.17.
It would have been obvious to one of ordinary skill in the art at the time of invention to provide a melt-blended polyolefin fiber having values for L* (and obviously a* and b*) along the length that would that would inherently or optimizably as a result effective variable satisfy the claimed expression. One of ordinary skill in the art would have been motivated to optimize and quantify/measure the uniformity of the melt-blended pigment color along the yarn length in order to prevent streaking and/or color change visible to the human eye.
Further regarding claims 5-7 and 9-10, Lee evidences/teaches a high-density polyethylene yarn that provides cut resistant fabrics, improved over prior art ultra-high molecular weight polyethylene fibers, wherein the cut resistance is provided by a weight average molecular weight is 80,000 to 180,000, a Mw/Mn (polydispersity) is more than 5 and less than 9, which leads to a tensile modulus of 100 to 250 g/d (about 88 to 220 cN/dtex) to decrease stiffness and prevent pilling/cut resistance from decreasing, lower than a previously desired 300 g/d or greater (265 cN/dtex) and tensile strength of 11 g/d to 18 g/d providing a cut index of 5 or more [0047-0056, 0067-0068, 0078-0083], and a dry heat shrinkage at 100 °C of more than 2.5% and 6.0% or less to increase wearability and prevent deformation [0057-0058], and a melt index, generally inversely related to the molecular weight, is in the range of 0.3 to 3 g/10min which allows smooth flow through an extruder without lowering the tensile strength below 11 g/d [0078-0081], which is also imparted through a draw ratio of 8 to 20 times, preferably 10 to 15 times [0099-0102], wherein although the Mw, Mw/Mn, tensile strength, and tensile modulus ranges may be only partially overlapping with those of Kaiga, the teachings evidence that the dry heat shrinkage and melt flow index should be inherently within or near the claimed ranges or provide teachings that would make the claimed ranges obvious and motivated.
AND/OR
Kim teaches a soft high density polyethylene yarn improved over prior art ultra-high molecular weight polyethylene fibers [0007], wherein the softness is due to the yarn being intended for contact with user skin providing a cooling sensation due to its crystallinity of 60% or greater, preferably 60% to 85% [0028-0031, 0043, 0059], wherein a thermal conductivity is greater than or equal to 0.0001 W/cm·°C (≥0.01 W/m·k) and provides a contact cooling sensation of 0.1 W/cm2 or greater [0018, 0043, 0053], wherein the high density polyethylene comprises a weight-average molecular weight of 50,000 to 99,000, a polydispersity index (Mw/Mn) of 5.5 to 9, and a melt index of 6 to 21 g/10 min at a stretching ratio of 2.5 to 8.5 [0021-0022, 0044], which leads to a tensile modulus of greater than 15 g/d, preferably 15 to 80 g/d and a tensile strength of 4 to 6 g/d [0041-0042, 0061-0062, 0076-0077].
It would have been obvious to one of ordinary skill in the art at the time of invention to provide an alternative method of achieving high density polyethylene fibers, to replace UHMWPE fibers, while still meeting the requirements as set forth OR to adapt the colored high-density polyethylene fibers, to replace UHMWPE fibers, for an alternative use in softer apparel. One of ordinary skill in the art would have been motivated to expand options for providing cut resistance at the same level while maintaining the same draw ratio and/or desired values related to fabrics usable therefore (i.e. shrinkage at 100 °C, MFI/MFR) [Lee] OR to provide tactile softness and cooling sensations for contact with skin [Kim] AND/OR to use the above prior art in combination to provide a moderate/balanced fiber comprising properties and features in-between a high strength fiber that maintains a tactile softness with HDPE Mw, Mw/Mn, and other related values/properties extending into overlapping ranges thereof.
Claims 1-7 are rejected under 35 U.S.C. 102(a)(1) as anticipated by Choi et al. (KR 2019-0000540 A) (hereinafter “Choi”), or, in the alternative, claims 1-10 are rejected under 35 U.S.C. 103 as obvious over Choi optionally in view of Sakakura et al. (JP 2003-301324 A) (hereinafter “Sakakura”),
wherein claim 4-5 and 9-10 are optionally further in view of Lee et al. (KR 10-2092934 B1) (hereinafter “Lee”) {using U.S. Pub. No. 2022/0049378 A1 as a translation document} AND/OR Kim et al. (KR 2020-0036171 A) (hereinafter “Kim”).
Regarding claims 1-3 and 5-8, Choi teaches a high-strength dope dyed high-density polyethylene fiber [0010, 0022], improving over prior art ultra-high molecular weight polyethylene fibers [0003] and polypropylene fibers [0004], wherein the polyethylene fiber having excellent color and UV durability as well as high-strength, flexibility, and softness [0017] comprises 95-99 wt% high-density polyethylene and 1 to 5 wt% high-density polyethylene color masterbatch comprising 5 to 20 wt% of a color pigment [0007-0009, 0024-0027, 0054], such that the multifilament yarn/fiber-level pigment weight ranges from 0.0005 to 0.01 wt% (each example inherently being within the claimed wt% range), wherein an extrusion temperature is 200-270 °C, a take-up speed is 300 to 1000 m/min, the yarn is quench cooled, and stretched at a draw ratio of 4 to 6 times [0028-0032, 0054], wherein a tensile strength of 6.0 g/d or higher is provided by a melt flow index of 0.5 to 5 g/10 min [0023, 0043-0044], wherein multiple examples comprise each of these features and also a shrinkage rate at 100 °C of 4-5% [0056-0057, Table 1] and comparative examples 3 and 5-6 comprising an alternative melt flow rate of 20 g/10 min and extrusion temperatures above and below the desired temperature range, respectively, still comprise tensile strengths of 2.0 g/d and 3-5 g/d, respectively, and heat shrinkages of 4% and 3%, respectively [0059-0062, Table 2], wherein it would have been obvious to and motivated for one of ordinary skill in the art at the time of invention form a functional fabric from the multifilament yarn formed.
Although the prior art does not disclose the expression as claimed for at least L*, a*, or b*, crystallinity, or tensile modulus for the yarn and a cooling coefficient or thermal conductivity for the functional fabric, the claimed properties are deemed to be inherent to the structure in the prior art since Choi teaches an invention with a substantially similar method of making, structure, and chemical composition as the claimed invention. Products of identical method of making, structure, and composition cannot have mutually exclusive properties. The burden is on the Applicants to prove otherwise.
Further regarding claims 1-2, in the event that it would not have been inherent to the yarn of Choi or obvious in view of Choi alone to provide yarns comprising L*, a*, or b* values meeting the expression as claimed:
Sakakura teaches that while conventionally polyolefin fibers, such as polyethylene and polypropylene, are not inherently “dyeable” and as such are dope-dyed via pigment inclusion, which can lead to uneven distribution of pigment along the length of the fiber/yarn forming streaks during weaving or knitting processes, which is significantly improved by melt-blending [0002-0003, 0018], wherein optimizing the melt flow rate, the mixing ratio of the polymer to the masterbatch polymer of the same type containing the pigment, and the extrusion processing elements provides the desired uniformity [0016-0020] uniformity is measured by using 20 samples arbitrarily along the length ΔL* value of more than 0.8 would lead to noticeable streaking and with a color difference of 1.59 being clearly visible to the naked eye [0007, 0009, 0025], wherein ΔL* for examples 1-6 are in the range of 0.33 to 0.69 wherein the given Lmax* and Lmin* values provide calculated values for the claimed expression as being in the range of about 1.1 to 2.6 and an approximate standard deviation of 0.08 to 0.17.
It would have been obvious to one of ordinary skill in the art at the time of invention to provide a melt-blended polyolefin fiber having values for L* (and obviously a* and b*) along the length that would that would inherently or optimizably as a result effective variable satisfy the claimed expression. One of ordinary skill in the art would have been motivated to optimize and quantify/measure the uniformity of the melt-blended pigment color along the yarn length in order to prevent streaking and/or color change visible to the human eye.
Further regarding claims 5-7 and 9-10, Lee evidences/teaches a high-density polyethylene yarn that provides cut resistant fabrics, improved over prior art ultra-high molecular weight polyethylene fibers, wherein the cut resistance is provided by a weight average molecular weight is 80,000 to 180,000, a Mw/Mn (polydispersity) is more than 5 and less than 9, which leads to a tensile modulus of 100 to 250 g/d (about 88 to 220 cN/dtex) to decrease stiffness and prevent pilling/cut resistance from decreasing, lower than a previously desired 300 g/d or greater (265 cN/dtex) and tensile strength of 11 g/d to 18 g/d providing a cut index of 5 or more [0047-0056, 0067-0068, 0078-0083], and a dry heat shrinkage at 100 °C of more than 2.5% and 6.0% or less to increase wearability and prevent deformation [0057-0058], and a melt index, generally inversely related to the molecular weight, is in the range of 0.3 to 3 g/10min which allows smooth flow through an extruder without lowering the tensile strength below 11 g/d [0078-0081], which is also imparted through a draw ratio of 8 to 20 times, preferably 10 to 15 times [0099-0102], wherein although the Mw, Mw/Mn, tensile strength, and tensile modulus ranges may be only partially overlapping with those of Kaiga, the teachings evidence that the dry heat shrinkage and melt flow index should be inherently within or near the claimed ranges or provide teachings that would make the claimed ranges obvious and motivated.
AND/OR
Kim teaches a soft high density polyethylene yarn improved over prior art ultra-high molecular weight polyethylene fibers [0007], wherein the softness is due to the yarn being intended for contact with user skin providing a cooling sensation due to its crystallinity of 60% or greater, preferably 60% to 85% [0028-0031, 0043, 0059], wherein a thermal conductivity is greater than or equal to 0.0001 W/cm·°C (≥0.01 W/m·k) and provides a contact cooling sensation of 0.1 W/cm2 or greater [0018, 0043, 0053], wherein the high density polyethylene comprises a weight-average molecular weight of 50,000 to 99,000, a polydispersity index (Mw/Mn) of 5.5 to 9, and a melt index of 6 to 21 g/10 min at a stretching ratio of 2.5 to 8.5 [0021-0022, 0044], which leads to a tensile modulus of greater than 15 g/d, preferably 15 to 80 g/d and a tensile strength of 4 to 6 g/d [0041-0042, 0061-0062, 0076-0077].
It would have been obvious to one of ordinary skill in the art at the time of invention to provide an alternative method of replacing UHMWPE fibers to optimize for strength OR to optimize for softness. One of ordinary skill in the art would have been motivated to expand options for providing cut resistance at the same level while maintaining the same draw ratio and/or desired values related to fabrics usable therefore (i.e. shrinkage at 100 °C, MFI/MFR) [Lee] OR to provide tactile softness and cooling sensations for contact with skin [Kim] AND/OR to use the above prior art in combination to provide a moderate/balanced fiber comprising properties and features in-between a high strength fiber that maintains a tactile softness with HDPE Mw, Mw/Mn, and other related values/properties extending into overlapping ranges thereof.
Conclusion
The prior art made of record and not relied upon is considered pertinent to Applicant's disclosure:
Fukushima et al. (JP 2017-150952 A) teaches a desired limit of the color change of a fiber, wherein the color difference is measured as ΔE, wherein
Δ
E
=
Δ
L
*
2
+
Δ
a
*
2
+
Δ
b
*
2
, wherein minimizing ΔE would require minimizing the expression for each of L*, a*, and b*. This could be part of the optimization process, in addition to the ΔL as recited above for Sakakura.
White et al. (Interaction of melt spinning and drawing variables on the crystalline morphology and mechanical properties of high-density and low-density polyethylene fiber) teach how one could optimize melt-spinning processing variables to achieved desired crystallinity and related mechanical properties of high-density polyethylene fibers having different levels of molecular weight.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to JEFFREY A VONCH whose telephone number is (571)270-1134. The Examiner can normally be reached M-F 9:30-6:00.
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If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s supervisor, Frank J Vineis can be reached at (571)270-1547. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JEFFREY A VONCH/Primary Examiner, Art Unit 1781 June 4th, 2026
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