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 .
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.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on November 19, 2025 has been entered.
Status of Claims
This action is in reply to the communication filed on November 19, 2025.
Claims 1 and 13 have been amended and are hereby entered.
Claims 1 and 17 are currently pending and have been examined.
Information Disclosure Statement
The references provided in the Information Disclosure Statement filed on February 12, 2025 have been considered. A signed copy of the corresponding 1449 form has been included with this office action.
Response to Amendments
Applicant’s amendments to the claims, filed November 19, 2025, caused the withdrawal of the rejection of claims 1 – 17 under 35 U.S.C. 112(a) as failing to comply with the written description requirement as set forth in the office action filed September 16, 2025.
Applicant’s amendments to the claims, filed November 19, 2025, caused the withdrawal of the rejection of claims 1 – 17 under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention as set forth in the office action filed September 16, 2025.
Applicant’s amendments to the claims, filed November 19, 2025, caused the withdrawal of the rejection of claims 1 – 8, 10 – 12, and 17 under 35 U.S.C. 103 as being unpatentable over Vitarana as set forth in the office action filed September 16, 2025.
Applicant’s amendments to the claims, filed November 19, 2025, caused the withdrawal of the rejection of claim 9 under 35 U.S.C. 103 as being unpatentable over Vitarana in view of Lilley as set forth in the office action filed September 16, 2025.
Applicant’s amendments to the claims, filed November 19, 2025, caused the withdrawal of the rejection of claims 13 – 16 under 35 U.S.C. 104 as being unpatentable over Vitarana and further in view of Bailey-Woods as set forth in the office action filed September 16, 2025.
Response to Arguments
Applicant’s arguments with respect to claims 1 – 17 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1 – 8, 10 – 12 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Vitarana (US20230010185A1).
As per claims 1, 2, 4 – 7, Vitarana teaches:
An apparatus material comprising a first layer, an interior layer and a second layer, the interior layer having a three-dimensional structure, wherein the first layer is connected to the second layer by the three-dimensional structure of the interior layer ([0059]: “FIG. 3 depicts a fabric 200 having plural fabric regions, each fabric region formed from a first surface layer 210 formed from a first set of yarns, a second surface layer 220 formed from a second set of yarns, and a set of spacer yarns 230 between the first and second surface layers 210, 220 in the form of tuck stitches 235.” The first surface layer is interpreted as the claimed first layer, the second surface layer is interpreted as the claimed second layer and the set of spacer yarns is interpreted as the claimed interior layer.
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The interior layer formed from a plurality of synthetic fibers (Vitarana teaches that the fabric is formed from thermoplastic polymer materials (Abstract), which is interpreted as the claimed synthetic fibers. As the synthetic fibers are made of a synthetic polymer they are interpreted as being constructed from a synthetic material as required by claim 7.)
The first layer, interior layer, and second layer being non-retentive of liquid (In [0060], Vitarana teaches that the yarns made be wicking or water-repellent to prevent the fabric from being wet or saturated with moisture. This is interpreted as the claimed non-retentive of liquid.)
The interior layer having a melting point higher than melting points of the first layer and the second layer (In [0059], Vitarana teaches that the first and second surface layers may be formed from a single main yarn material. Vitarana teaches that the main yarns may be selected from elastic properties ([0062]). Vitarana further teaches that the spacer yarns may be formed from expandable swellable materials ([0062]). Therefore, Vitarana teaches using different materials for the interior layer than the outer layers. As there are only three options- that the materials have the same melting point, the inner layer has a higher melting point than the outer layers, or the outer layers have a higher melting point than the inner material, it would have been obvious to a person of ordinary skill to have selected materials and arrived at the claimed material relationship.)
Wherein the three-dimensional structure maintains a uniform thickness between the first layer and the second layer (Vitarana shows in Figure 3 and Figure 4, and teaches in [0052] that the thickness of the fabric is constant, i.e. flat without any variation in fabric properties.)
While Vitarana does not specifically teach a seam disposed around a perimeter of the material as claimed, Vitarana teaches that the fabric or textile material is suitable for use in garments such as shoulder pads ([0002]). These garments commonly have seams as a finishing effect and to connect them to other portions of the garment. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a seam disposed around a perimeter of the material, motivated by the desire to predictably connect the fabric to the rest of the garment.
As per claims 2 and 4 – 6, Vitarana teaches:
Wherein any of the first, second or interior layers are constructed of at least one textile formed by a weaving process. (Vitarana teaches that the fabric may be formed by knitting ([0005]). These fabrics are interpreted as claimed one textile as required by claim 2. As all the layers are formed by a weaving process, as interpreted with the specification and made of record previously (i.e. any fabric forming process), the first, second, and interior layers are formed by a weaving process as required by claims 4 – 6.)
As per claim 3, Vitarana teaches:
Wherein the at least one textile is a synthetic material, selected from a group consisting of at least one of polyester, nylon, spandex, polypropylene, polytetrafluoroethylene, and/or aramid fibers ([0066]: “Examples of thermoplastic materials that may be used herein include, but are not limited to, polyesters, nylons, polypropylenes, thermoplastic polyurethanes (TPU), acrylics, blends thereof, and combinations thereof.”)
As per claim 8, Vitarana teaches:
Wherein the plurality of synthetic fibers are constructed from nylon and polyester ([0066]: “Examples of thermoplastic materials that may be used herein include, but are not limited to, polyesters, nylons… blends thereof, and combinations thereof.”)
As per claim 10, Vitarana teaches:
Wherein the apparatus material comprises moisture wicking capabilities as a function of one or more open spaces defined by the three-dimensional structure (No particular amount of moisture wicking capability is claimed. Vitarana teaches the same structure claimed, with open spaces defined by the three-dimensional structure, therefore it is interpreted as comprising moisture wicking capabilities. Furthermore, Vitarana teaches that a wicking yarn may be used on an exterior surface that is intended to be in contact with the body of a wearer to assist with wicking moisture and improve breathability ([0060]).)
As per claim 11, Vitarana teaches:
Wherein the apparatus is a breathable material (No particular amount of breathability is claimed. Vitarana teaches the same structure claimed, therefore it is interpreted as being a breathable material as claimed. Furthermore, Vitarana teaches that a wicking yarn may be used on an exterior surface that is intended to be in contact with the body of a wearer to assist with wicking moisture and improve breathability ([0060]).)
As per claim 12, the limitation “forms a chest piece for a blazer is interpreted as an intended use that does not further limit the claimed invention. The Courts have held that if the prior art structure is capable of performing the intended use, then it meets the claim. See In re Casey, 152 USPQ 235 (CCPA 1967); and In re Otto, 136 USPQ 458, 459 (CCPA 1963). The Courts have held that it is well settled that the recitation of a new intended use, for an old product, does not make a claim to that old product patentable. See In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed. Cir. 1997) (see MPEP § 2114).
As per claim 17, Vitarana teaches:
Wherein the first layer further comprises one or more spaces, the one or more spaces allowing air to freely circulate between the first layer, the interior layer, and the second layer (Vitarana teaches that the individual fabric layers can be formed by knitting ([0005]). As the fabric layers are not films, there will necessarily be some amount of space in the textile to allow air to freely circulate as claimed.)
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Vitarana (US20230010185A1) as applied to claims 1 – 8, 10 – 12 and 17 above, and further in view of Lilley (US20220090328A1).
As per claim 9, Vitarana teaches:
Wherein each of the plurality of synthetic fibers has a length in a range of 1 – 10 mm
Lilley teaches a multi-layered web (Abstract). The middle layer of the web includes three-dimensional fibers (Abstract). This is similar to the structure of Vitarana. Lilley teaches that the three-dimensional fibers may be of a synthetic material ([0010]). Lilley teaches that these fibers may have a length of greater than about 5 mm ([0056]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to choose a length of synthetic fibers for the spacer layer of Vitarana, such as the claimed range because Vitarana does not limit the size of the fibers and Lilley teaches that the claimed length was a known length of synthetic fibers for fibers in a middle, three-dimensional layer of a multi-layered web. The selection of a known material, which is based upon its suitability for the intended use, is within the ambit of one of ordinary skill in the art. See In re Leshin, 125 USPQ 416 (CCPA 1960), Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945), and MPEP § 2144.07.
Claims 13 – 16 are rejected under 35 U.S.C. 103 as being unpatentable over Vitarana (US20230010185A1) as applied to claims 1 – 8, 10 – 12 and 17 above, and further in view of Bailey-Woods (US20140137309A1).
As per claims 13, 15 and 16, the teachings of Vitarana with respect to the apparatus material above are incorporated herein. Vitarana teaches that the fabric is useful as shoulder pads ([0002]). Vitarana does not specifically teach:
A blazer comprising a lining, a canvas and an apparatus material
The second layer of the apparatus material abutting at least one of the lining or the canvas
Bailey-Woods teaches a suit jacket with multiple layers ([0002]). Bailey-Woods teaches that there may be a lining located on the interior of the garment ([0011]). Bailey Woods teaches that there is a canvas chest piece in the garment ([0050]) and that in one arrangement, a shoulder pad is located between the chest piece and the other layer, and in another arrangement, the chest piece is located between the outer layer and the shoulder pad ([0050]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the fabric of Vitarana as the shoulder pad in the suit jacket of Bailey-Woods because Vitarana teaches the fabric is suitable as use for a shoulder pad. The selection of a known material, which is based upon its suitability for the intended use, is within the ambit of one of ordinary skill in the art. See In re Leshin, 125 USPQ 416 (CCPA 1960), Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945), and MPEP § 2144.07. As the claimed second layer is not specified by material or composition, either layer of the fabric of Vitarana can be interpreted as the second layer and since the structure of Baily-Woods has the canvas chest piece next to the should pad, the prior art combination reads on the claims wherein the second layer of the apparatus material abuts the canvas.
As per claim 14, as the blazer is capable of being put in water with soap, it is interpreted as being “washable” as claimed.
Conclusion
All claims are rejected.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNA N CHANDHOK whose telephone number is (571)272-5780. The examiner can normally be reached on Monday through Friday from 6:30 - 3:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Marla McConnell can be reached on 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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/JENNA N CHANDHOK/Primary Examiner, Art Unit 1789
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