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 .
Examiner’s Comments
The Examiner has cited particular columns and line numbers, paragraphs, or figures in the references as applied to the claims for the convenience of the Applicant. Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages and figures may apply as well. It is respectfully requested from the applicant, in preparing the responses, to fully consider the references in entirety as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the Examiner.
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 is relied upon, and the rationale supporting the rejection, would be the same under either status.
Status of the Claims
Claims 1, 6, 8, 10, 12, 13, 15-17, 21, 28, 30, 31, 38-40, 42, 45, 49, and 51 are pending for review in this Office Action.
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, 6, 8, 10, 12, 13, 15-17, 21, 28, 30, 31, 38-40, 42, 45, 49, and 51 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.
Claim 1, recites the term "preferably," this renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Dependent claims 6, 8, 10, 12, 13, 15-17, 21, 28, 30, 31, 38-40, 42, 45, 49, and 51 are objected to as being dependent on a rejected base claim.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 6, 8, 10, 12, 13, 15-17, 21, 28, 30, 31, 38-40, 42, 45, 49, and 51 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims of 1, 4-5, 7-10, 15, 17, 19, 23, 25-26, 28, 31, 35, 37, 44, 46 and 57 of copending Application No. 18/706,107 [USPUB 20260028759]. Although the claims at issue are not identical, they are not patentably distinct from each other because the embodiment of the instant claims would be rendered obvious by the embodiments of claims 1, 4-5, 7-10, 15, 17, 19, 23, 25-26, 28, 31, 35, 37, 44, 46 and 57 of copending Application No. 18/706,107. Both the instant application and 18/706,107 require one or more permeable facing layers, a fibrous lofted nonwoven, hydrophilic fibers, vertical orientation within the same ranges, carded and lapped material, made into the same types of articles having the same properties of wearability, compression, resilience and wicking.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Rejections - 35 USC § 102
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 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)(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.
Claim(s) 1, 6, 8, 10, 12, 13, 15-17, 21, 28, 30, 31, 38-40, 42, 45, 49, and 51 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by WO 2019/126506 A1 issued to Thompson et al., [Assignee is Zephyros Inc 27 June 2019 (2019-06-27].
The applied reference has a common assignee with the instant application. Based upon the earlier effectively filed date of the reference, it constitutes prior art under 35 U.S.C. 102(a)(2). This rejection under 35 U.S.C. 102(a)(2) might be overcome by: (1) a showing under 37 CFR 1.130(a) that the subject matter disclosed in the reference was obtained directly or indirectly from the inventor or a joint inventor of this application and is thus not prior art in accordance with 35 U.S.C. 102(b)(2)(A); (2) a showing under 37 CFR 1.130(b) of a prior public disclosure under 35 U.S.C. 102(b)(2)(B) if the same invention is not being claimed; or (3) a statement pursuant to 35 U.S.C. 102(b)(2)(C) establishing that, not later than the effective filing date of the claimed invention, the subject matter disclosed in the reference and the claimed invention were either owned by the same person or subject to an obligation of assignment to the same person or subject to a joint research agreement.
Regarding Claim 1, where Applicant seeks that an article comprising:
one or more optional permeable facing layers;
a body of fibrous absorbing material, wherein the body comprises a fibrous lofted nonwoven material;
wherein the fibrous absorbing material is adapted to be situated adjacent to a surface having or producing moisture;
wherein at least a portion of fibers of the fibrous lofted nonwoven material have a generally vertical orientation relative to the surface having or producing moisture, wherein the fibers having a generally vertical orientation have a general visible trend preferably forming an angle of about 45 degrees to about 135 degrees;
wherein the article is capable of absorbing and/or transferring moisture, is permeable, and is resilient,
wherein the article is wearable or adapted to be used with a wearable item and wherein the surface having or producing moisture is skin and/or hair of a body or a garment wetted with moisture; and
wherein the article is dry to the touch at the surface having or producing moisture before the entire article has dried; Applicant is directed to the entire reference of
Thompson et al., who disclose making articles including one or more moisture wicking layers and one or more fibrous layers. The fibrous layers may be oriented generally perpendicularly to a surface having or producing moisture (thereby meeting the limitation of vertical orientation have a general visible trend preferably forming an angle of about 45 degrees to about 135 degrees).
The fibrous layers may be formed by a vertical lapping process. The article may remove the moisture from the surface having or producing moisture. The article may be a wearable item. The surface having or producing moisture may be skin of a user’s or wearer’s body. The article may pull moisture from a user’s skin, through the article, and onto an exterior surface of the article. The one or more fibrous layers may be sandwiched between two moisture wicking layers. A moisture wicking layer may be adapted to contact the surface having or producing moisture (such as that from skin of a body). An outer moisture wicking layer may face away from the surface having or producing moisture. The article, or layers thereof, may be permeable or breathable to encourage and/or facilitate evaporation of the moisture. One or more of the moisture wicking layers may transfer moisture to the one or more fibrous layers. [abstract, ¶ 0007, claims 1-3; Figures]. The article is capable of absorbing and/or transferring moisture, is permeable and is resilient [¶¶ 0007 and 0053-0054]. Thompson et al., teach the fibers are vertical and thus 90 degrees to the surface having or producing moisture) and the fibers having a generally vertical orientation have a visible general trend forming an angle in the claimed range [Abstract, ¶ 0042 and claim 8].
The fibers of the one or more fibrous layers may have a non-circular cross-section. Fibers of the one or more fibrous layers may have a cross-section having a plurality of lobes and/or deep grooves. The type and/or orientation of the fibers of the one or more fibrous layers may create a capillary effect to pull the moisture away from the surface. [¶ 008]. At ¶ 0040-0045, the instant reference teaches the moisture transport/wicking directions and layers associated with the composite. Regarding that the article is dry to the touch at the surface having or producing moisture before the entire article has dried. This is inherent to the structure and layers as the reference teaches wicking the moisture in a given direction at ¶ 0040-0045.
At ¶ 019, Thompson et al. teach a wide range of applications, such as in clothing, medical materials, protective gear, and animal accessories. For example, the materials may be used in athletic clothing and accessories, protective equipment, animal accessories, and medical applications, to name a few. Athletic clothing and accessories may include, but are not limited to, sports bras, biking shorts and pants, sweat bands, headbands, shirts, pants, jackets, socks, gloves, hats, and the like. Medical materials may include braces or gauze. Protective gear may include helmet liners and cushions, headgear, knee pads, elbow pads, shin guards, shoulder and chest pads, hockey pants, and the like. The materials described herein may be used for any sport padding where moisture, such as sweat, must be transported and/or dissipated while maintaining a desired or required level of protective padding. Other wearable items may include backpacks (e.g., straps or padding contacting a wearer’s back), vests (e.g., protective vests), or other items that provide cushioning, insulation, and/or moisture wicking properties. Animal accessories may include pet harnesses, saddles, saddle pads, horse blankets, and the like. These materials may also find use in technologies outside of wearable items, such as in car seats (e.g., car seat cushions), bike seats, mattress pads, mattresses, pillows or pillow cases, and the like, where a user may contact the item, thereby still requiring a cooling effect, insulative effect, or moisture wicking properties.
At ¶¶ 0006, 0009 and 0023, the instant reference teaches that the fibrous layers have a high loft and are resilient.
At ¶¶ 0021, the instant reference teaches that the article can be sandwiched between two moisture wicking layers, or provided on one side of a moisture wicking layer. A permeable facing layer can be provided on the article.
Regarding Claim 6, where Applicant seeks that the article of claim 1, wherein the body of fibrous absorbing material has one or more compressed portions where the fibers have a generally non-vertical orientation and one or more lofted portions where the fibers have a generally vertical orientation; Applicant is directed to ¶0059, where the fibers have a generally vertical orientation prior to any compression operation.
Regarding Claim 8, where Applicant seeks that the article of claim 6, wherein the lofted portion is adapted to be positioned adjacent to the surface having or producing moisture and the compressed portion is adapted to be positioned away from the surface having or producing moisture; Applicant is directed to ¶¶ 0021-0024.
Regarding Claim 10, where Applicant seeks that the article of claim 6, wherein the compressed portion is adapted to be positioned adjacent to the surface having or producing moisture and the lofted portion is adapted to be positioned away from the surface having or producing moisture; Applicant is directed to ¶¶ 0021-0024.
Regarding Claim 12, where Applicant seeks that the article of claim 1, wherein the fibrous absorbing material includes hydrophilic fibers; Applicant is directed to ¶ 0031.
Regarding Claim 13, where Applicant seeks that the article of claim 12, wherein layers of the fibrous absorbing material are arranged based on their hydrophilic properties, and wherein the layers are arranged from least hydrophilic to most hydrophilic, wherein the least hydrophilic layer is adapted to be positioned adjacent the surface having or producing moisture; Applicant is directed to ¶¶ 0021-0024, the fibrous absorbing material is adapted to be located between the surface having or producing moisture and an opposing surface.
Regarding Claim 15, where Applicant seeks that the article of claim 1, comprising an A-surface facing material, the body of fibrous absorbing material, and a B-surface facing material, wherein the A-surface facing material is adapted to be positioned adjacent the surface having or producing moisture; Applicant is directed to ¶¶ 0021-0024, and 0048 where the instant reference teaches that the fibrous absorbing material is adapted to be located between the surface having or producing moisture and an opposing surface.
Regarding Claim 16, where Applicant seeks that the article of claim 15, wherein the A-surface facing material is less hydrophobic than the body of fibrous absorbing material; Applicant is directed to ¶ 0040-0045, where the instant reference teaches the moisture transport/wicking directions.
Regarding Claim 17, where Applicant seeks that the article of claim 15, wherein the B-surface facing material is more hydrophobic than the body of fibrous absorbing material; Applicant is directed to ¶ 0040-0045, where the instant reference teaches the moisture transport/wicking directions.
Regarding Claim 21, where Applicant seeks that the article of claim 1, wherein fluid is exchanged within the article by expelling the fluid from the article upon compression and drawing in new fluid upon recovery; Applicant is directed to ¶ 0040-0045, where the instant reference teaches the moisture transport/wicking directions.
Regarding Claim 28, where Applicant seeks that the article of claim 1, wherein the lofted nonwoven material is a carded and lapped material, and wherein the lapped material is a vertically lapped or rotary lapped material; Applicant is directed to ¶¶ 0032 and 0037.
Regarding Claim 30, where Applicant seeks that the article of claim 1, wherein the lofted nonwoven material is or includes an air laid material; Applicant is directed to ¶ 0039, where the instant reference teaches that the fibrous layers may be formed by an air laying process. This air laying process may be employed instead of carding and/or lapping.
Regarding Claim 31, where Applicant seeks that the article of claim 1, wherein formation of the lofted nonwoven material is free of air laying processes and/or wherein the lofted nonwoven material is free of an air laid material; Applicant is directed to ¶ 0039, where the instant reference teaches that the fibrous layers may be formed by an air laying process. This air laying process may be employed instead of carding and/or lapping. Air laying is not required.
Regarding Claim 38, where Applicant seeks that the article of claim 1, wherein the fibrous absorbing material wicks moisture away from the surface having or producing moisture in a generally vertical direction generally transverse to the surface having or producing moisture; Applicant is directed to ¶ 0040-0045, where the instant reference teaches the moisture transport/wicking directions.
Regarding Claim 39, where Applicant seeks that the article of claim 1, wherein the fibrous absorbing material wicks moisture in a transverse direction generally parallel to the surface having or producing moisture toward an extended portion; Applicant is directed to ¶ 0040-0045, where the instant reference teaches the moisture transport/wicking directions.
Regarding Claim 40, where Applicant seeks that the article of claim 39, wherein evaporation of moisture absorbed by the fibrous absorbing material occurs from multiple directions at the extended portion; Applicant is directed to ¶ 0040-0045, where the instant reference teaches the moisture transport/wicking directions.
Regarding Claim 42, where Applicant seeks that the article of claim 1, wherein the article is adapted to be used with a backpack, wherein the article is positioned at a back contact portion, a side panel, a strap, a waist harness, or any combination thereof of the backpack; Applicant is directed to ¶ 0019.
Regarding Claim 45, where Applicant seeks that the article of claim 1, wherein the article is adapted to be used with a sporting pad or helmet; Applicant is directed to ¶ 0019.
Regarding Claim 49, where Applicant seeks that the article of claim 1, wherein the article is adapted to be used with an article of footwear; Applicant is directed to ¶ 0019.
Regarding Claim 51, where Applicant seeks that the article of claim 1, wherein the article is adapted to be used in a garment or vest; Applicant is directed to ¶ 0019.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. USPUB 2004/0180177 teaches an article comprising a fibrous absorbing material with facing layers.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Arti Singh-Pandey whose telephone number is (571)272-1483. The examiner can normally be reached Monday-Thursday 8:30-5:00 and 8:00-10:00.
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/Arti Singh-Pandey/
Primary Patent Examiner
Art Unit 1759
asp
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