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 .
Election/Restrictions
Applicant's election with traverse of Group III in the reply filed on 12/17/25 is acknowledged. The traversal is on the ground(s) that there is no lack of unity of inventions. This is not found persuasive because the invention is directed to a layered structure that is formed by different techniques to produce many different fabric combinations and garment structures, the outer layer requiring different constructions in the series of dependent claims lacks a unity of invention. The prior art to Reilly (US 2021/0059864) teaches the thermal comfort of a multi-layered/sectioned fabric due to the mesh areas of different compression, the different compression is made up of fabrics that have smaller/larger holes in the mesh construction of the fabric which affects the compression and also the user’s thermal comfort which are the claimed “thermal zones”.
The requirement is still deemed proper and is therefore made FINAL. It is noted that group II is directed to claims 1, 12-19 and 38-40 the remainder of the claims are withdrawn as being directed to non-elected groups.
Drawings
The drawings are objected to because figure 6 is a photograph and photographs are not acceptable if line drawings are possible, in this case line drawings are possible to illustrate Figure 6. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to because Figures 10A and 10B are blurry and it is hard to decipher what the legend shows and what portions the garment corresponds to different materials of the legend in the Figures. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The use of the terms Rascheltronic (paragraph 0051), Spandex (paragraph 0051), and Lycra (paragraph 0051), which are trade names or a marks used in commerce, have been noted in this application. The terms should be accompanied by the generic terminology; furthermore the terms should be entirely 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.
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: support needs to be provided for claim 18 detailing “the fifth yarn of the knitted inner liner is a 10-60 D polyester yarn and the sixth yarn of the knitted inner liner is a 10-20 D elastane yarn”.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an 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.
Claim 1, 12-19 and 38-40 and the claims that depend therefrom 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.
In regard to claim 1, it is unclear what the limitation “significantly exposed to weather elements” requires, there is no discussion in the specification as to what “significantly exposed to weather elements” is or are. Therefore, it is unclear where the first thermal zones would be located on the garment. Further, it is unclear what the limitation “greater level of thermal comfort” would require, this is arbitrary and dependent upon the user and environment, it is unclear what is required of the thermal zone to produce this level of comfort and the specification fails to define what this would be or requires.
In regard to claim 16 it is unclear what the “fifth” and “sixth” yarns are, since there is no first, second, third or fourth yarns presented. It is unclear if this claim is requiring six yarns or if the “fifth” and “sixth” yarns are just termed that and only two yarns are required. For examination purposes, the examiner is interpreting the “fifth” and “sixth” yarns as two yarns and not requiring the first through fourth yarns.
In regard to claim 18 it is unclear what “20-60 D polyester yarn” and “10-20 D elastane yarn” requires, there is no support for this in the specification. Is applicant attempting to claim the denier or yarn’s linear mass density? The specification makes no mention to denier or D, so it is unclear what is being required of the yarn in the claim. For examination purposes, the examiner is interpreting D to be denier of the yarn.
Any remaining claims are rejected depending from a rejected base claim.
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.
Claim(s) 1, 15-19 and 40 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dandapure et al. (US 2023/0172294) in view of Davis (US 8,555,414).
In regard to claim 1, Dandapure et al. teaches an article of apparel (paragraph 0003) comprising: at least one first thermal zone comprising an outer fabric layer configured to have a low moisture regain and a knitted inner liner positioned underneath and separated from the outer fabric layer so that the knitted inner liner is facing a wearer when worn (see annotated figure below and paragraph 0008).
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While Dandapure et al. teaches a fabric for use in producing sports garments (paragraph 0003). Dandapure et al. fails to teach the garment having first and second zones, wherein the at least one second thermal zones comprises a knitted fabric layer, the second thermal zone being attached to a first thermal zone/base fabric; wherein the at least one first thermal zone/base fabric is positioned in a part of the article of apparel that is significantly exposed to weather elements and is configured to provide a greater level of thermal comfort to the wearer when worn than the at least one second thermal zone.
Davis teaches a sports garment made of sections of different properties and material constructions (figure 3, column 2, lines 23-43), wherein the underarm sides of the garment are made of a knit mesh/vented portions (figure 3, identifiers 302, 304 and column 4, lines 13-20) providing greater permeability and are the second thermal zones (column 5, lines 39-55). Davis further teaches a first thermal area that is attached to the second thermal zones; the first thermal area having less permeability in the remainder of the garment (see figure 3) and provides greater thermal comfort to the user (non-vented zones: see figure 3); and wherein the at least one first thermal zone/base fabric is positioned in a part of the article of apparel that is significantly exposed to weather elements and is configured to provide a greater level of thermal comfort to the wearer when worn than the at least one second thermal zone (see figure 3).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the sports garment fabric as taught by Dandapure et al. as the base fabric in the sports garment of Davis, since the moisture management fabric of Dandapure et al. provided as a base fabric of a garment with vented side portions would provide a sports garment that provides ventilation along the sides and a base fabric that manages moisture so that the user remains comfortable and no sweat/wet marks show on the outer layer during use.
In regard to claim 15, Dandapure et al. teaches wherein an inner side of the knitted inner liner facing the wearer when worn is brushed (paragraph 0021 and 0043).
In regard to claim 16, Dandapure et al. teaches wherein the knitted inner liner is a weft or warp knitted fabric comprising a fifth yarn and a sixth yarn, the fifth yarn being a synthetic polymer, a natural fiber, a regenerated cellulosic fiber, or a blend of natural or regenerated cellulosic fibers with synthetic fibers (paragraph 0043), the sixth yarn being an elastane yarn (paragraph 0043), and the knitted inner liner being configured to stretch in weft direction and/or in warp direction (knitted liner made of plaited elastane yarn is configured to stretch in the weft/warp direction: paragraph 0043).
In regard to claim 17, Dandapure et al. teaches wherein the knitted inner liner is a composite blend of a synthetic polymer plaited with an elastane (paragraph 0043).
In regard to claim 18, Dandapure et al. teaches wherein the fifth yarn of the knitted inner liner is a polyester yarn and the sixth yarn of the knitted inner liner is a 10 - 20 D elastane yarn (paragraphs 0015, 0043 and claims 17 and 18).
However, Dandapure et al. fails to teach a 20 - 60 D polyester yarn, it would have been obvious before the effective filing date to one having ordinary skill in the art and through routine experimentation to determine the proper D of the polyester yarn based upon end use, thickness of the layer, lightness in weight of the fabric/garment, and/or UV resistance desired. A polyester yarn having a 20-60 D would not destroy the garment fabric and knitted inner layer and is therefore within the range of appropriateness to apply and use in the garment fabric construction of Dandapure et al.
In regard to claim 19, Dandapure et al. teaches wherein the knitted inner liner comprises a durable water repellency (DWR) additive finishing (connecting yarn: 16 is provided with a DWR and is knitted with the inner liner: see annotated figure above and 44).
In regard to claim 40, Dandapure et al. teaches wherein the weather elements include rain, wind, snow, humidity, and temperature (paragraph 0003 and 0004).
Claim(s) 12-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dandapure et al. (US 2023/0172294) and Davis (US 8,555,414) as applied to claim 1 above, and further in view of Jain (US 2005/0014432).
Dandapure teaches the outer and inner fabric layer is woven or knitted (paragraphs 0028-0032). Dandapure et al. and Davis fail to teach the outer fabric layer is an outer woven fabric layer with an inner knitted layer.
In regard to claim 12, Jain teaches a fabric wherein the outer fabric layer is an outer woven fabric layer and the inner fabric layer is knitted thereto to create the fabric (paragraph 0039).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the outer and inner layer of Dandapure et al. and Davis to be an outer woven layer and an inner knitted layer as taught by Jain, since the inner and outer layer of Dandapure being an woven outer layer and a knitted inner layer would provide a fabric that is made by two different constructions providing an outer layer with a greater barrier to water allowing for a tight weave, while still having a loose knitted wicking inner layer for drawing moisture from the user’s body.
In regard to claim 13, Dandapure et al. teaches wherein the outer woven fabric layer further comprises at least one elastic warp yarn and at least one elastic weft yarn (woven outer layer includes woven yarns plaited with elastane which would comprising elastic yarn in the warp and weft construction, paragraphs 0008, 0016 and 0042).
In regard to claim 14, Dandapure et al. teaches wherein the outer fabric layer comprises a durable water repellency (DWR) additive finishing (paragraph 0026).
Claim(s) 38-39 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dandapure et al. (US 2023/0172294) and Davis (US 8,555,414) as applied to claim 1 above, and further in view of Baker (US 10,687,572).
Dandapure et al. and Davis fail to teach a slit formed between the outer fabric layer and the knitted inner liner to allow air to flow therebetween, wherein the slit is configured to be selectively opened and closed.
In regard to claim 38, Baker teaches a shirt garment with a back vent that forms a slit between the outer fabric layer and the inner fabric layer to allow air to flow therebetween, the outer fabric layer and the inner liner being separated and spaced apart (see figures 1 and 2, figure 2 details open configuration, column 4, lines 10-11).
It would have been obvious to one having ordinary skill in the art before the effective filing date to have provided the shirt of Dandapure et al. and Davis with the back vent, slit and overlap as taught by Baker, since the shirt of Dandapure et al. and Davis provided with a back vent would allow for more air flow and comfort to the user during wear.
In regard to claim 39, Baker teaches wherein the slit or opening is configured to be selectively opened and closed (see figures 1 vs. figure 2, column 4, lines 10-11, slit can be opened of closed).
It would have been obvious to one having ordinary skill in the art before the effective filing date to have provided the shirt of Dandapure et al. and Davis with the back vent, slit and overlap as taught by Baker, since the shirt of Dandapure et al. and Davis provided with a back vent would allow for more air flow and comfort to the user during wear.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure and can be found cited in PTO-892 form submitted herewith. The cited prior art to Xing et al. (US 2019/0234013) is of particular relevance to the claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALISSA L HOEY whose telephone number is (571)272-4985. The examiner can normally be reached M-F: 9:00-5:30 EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Clinton T Ostrup can be reached at (571)272-5559. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ALISSA L. HOEY
Primary Examiner
Art Unit 3732
/ALISSA L HOEY/Primary Examiner, Art Unit 3732