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 .
Response to Amendment
1. Applicant’s amendments and accompanying remarks filed 4/3/26 have been fully considered and entered. Claims 1, 6 and 8 have been amended. Claims 2, 7 and 10 have been canceled. Applicant’s arguments with respect to the rejection(s) of claim(s) 1, 3-6, 8-9 and 11 made under KR 20200002119 A in view of US 20040121150 A1 issued to Johnson et al., have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made under US 20040121150 A1 issued to Johnson et al., in view of KR 20200002119 A.
Claim Rejections - 35 USC § 103
2. 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.
3. Claims 1, 3-6, 8-9 and 11 is/are rejected under 35 U.S.C. 103 as being obvious over US 20040121150 A1 issued to Johnson et al., in view of KR 20200002119 A.
The published patent application issued to Johnson et al., teach forming multi-filament yarns and fabrics from multi-lobal filaments having in inner radius and outer radius as set forth in claim 2 (see figure 1, 1a,1b and 1c and paragraphs 0009, 0032). With specific regard to the claimed shape ratio (R2/R1 of 1.2 to 5.0), Johnson et al., disclose that the filament has an inner ratio and outer ratio but fails to explicitly teach the claimed ratio; however, it would be within the skill of ordinary worker in the art to optimize the shape ratio as function of desired wicking and absorbing properties. Absent a clear and convincing showing of unexpected results demonstrating the criticality of the claimed shape ratio range, 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). Said multi-lobal filaments can be made from polyolefins such as polyethylene (paragraph 0041). The Examiner is of the position that the lobes as shown in figures 1 and 1a-1c meet the limitations of the claimed protrusions. Said multi-lobal filaments further exhibit moisture transport/wicking properties (paragraph 0060). Johnson et al., specifically teach that wicking refers to the capillary movement of water through or along the fibers. The ability of the fibers to wick, therefore, increases the ability of the fabric to absorb water and move it away from the body. It has been particularly found that the fabrics using microfibers of the present invention have higher wicking rates than fabric of round microfibers of comparable dpf (paragraph 0065). The Examiner is of the position that the multi-lobal fibers of Johnson et al., would have the properties of “sweat absorbing and quick drying” as set forth in claim 11.
Johnson et al., teach that the multi-lobal fibers and yarns can be made from polyethylene.
Johnson et al., fails to teach the claimed polyethylene.
The published KR document teach a cooling fabric which can provide a user with cooling effects or coldness as well as soft texture. The published KR document further teach a polyethylene yarn for the same, and a manufacturing method thereof. Said cooling fabric comprises: a plurality of wefts; and a plurality of warps, each of the wefts and warps has tensile strength of 3.5-8.5 g/de, tensile modulus of 15-80 g/de, break elongation of 14-55%, and crystallinity of 55-85% (see abstract). The published KR document further teach polydispersity Index (PDI) is 5.5 to 9 (see description). The published KR document teach that the polyethylene yarn may have a circular cross section or a non-circular cross section (see description). The published KR document teach that the polyethylene is a high-density polyethylene (HDPE) having a density of 0.941 to 0.965 g / cm .sup.3 (see description). The published KR document further teach that the HDPE may have a Melt Index (MI) of 1 to 25 g / 10min at 190° C (see description).
Therefore, motivated by the desire to produce a wicking/moisture absorbing performance apparel fabric that also exhibits cooling effects and has a soft texture it would have been obvious to one of ordinary skill in the art at the time the invention was made to form the polyethylene multi-lobal fibers and yarns of Johnson et al., with the specific polyethylene taught and disclosed in the published KR document. Johnson et al., specifically teach forming performance type fabrics (paragraph 0051). The Examiner is of the position that a worker of ordinary skill in the art would be motivated to form/provide performance apparel that also exhibits cooling effects and has a soft texture.
With regard to claims 6 and 8-9, the combination of the cited prior art does not specifically teach the claimed cooling sensation, heat flux, moisture absorption and/or drying rate. However, it is reasonable to expect that the claimed cooling sensation, heat flux, moisture absorption and/or drying rate properties would be exhibited once the fabric of the combination of prior art is provided. Support for said presumption is found in the use of like materials such as the claimed polyethylene polymer and the use of like processes such as manufacturing multi-lobal filaments, yarns and fabrics which would result in the claimed cooling sensation, heat flux, moisture absorption and/or drying rate features. The burden is shifted to Applicant to prove otherwise.
The Patent and Trademark Office can require applicants to prove that prior art products do not necessarily or inherently possess characteristics of claimed products where claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes; burden of proof is on applicants where rejection based on inherency under 35 U.S.C. § 102 or on prima facie obviousness under 35 U.S.C. § 103, jointly or alternatively, and Patent and Trademark Office’s inability to manufacture products or to obtain and compare prior art products evidences fairness of this rejection, In re Best, Bolton, and Shaw, 195 USPQ 431 (CCPA 1977).
Conclusion
4. THIS ACTION IS MADE FINAL. 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 LYNDA SALVATORE whose telephone number is (571)272-1482. The examiner can normally be reached M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Marla McConnell can be reached at 571-270-7692. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LYNDA SALVATORE/Primary Examiner, Art Unit 1789
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