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
The response filed on August 7, 2026, has been entered. Claims 1 – 35 has been canceled. Claims 36 – 44, 46, 49, and 50 have been amended and no new claims have been added. Therefore, claims 36 – 50 are pending.
The 35 USC 103 rejection over Emden (2008/0096001) is withdrawn due to the amendments to the claims.
Priority
The limitations drawn to yarn size of the face elastic yarns being greater than the yarn size of the back elastic yarn and the connecting elastic yarn were not taught in the parent Application, 18/164,113. Additionally, the parent applicant did not teach that the fabric exhibits little or no bagging when wet. Further, while 18/164,113 discloses details about the moisture regain of the face and back layer, the parent application does not teach the same scope as recited in the claims, a “first face yarn has a maximum moisture regain of less than 5.5 weight percent”, a “ minimum moisture regain of the first back yarn is at least 7.5 weight percent”, or a “minimum moisture regain of the first back yarn is at least 6.0 weight percent”. Thus, these features are not supported by the parent application. Therefore, the claims with these features, claims 36 – 50, are given a priority date of November 20, 2024, when the present application was filed.
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 36 – 50 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.
The phrase “exhibits little or no bagging or puckering” in claim 36 is indefinite. It is not clear at what point bagging or puckering in a fabric is no longer considered a little puckering and would be out of scope with the claim? How is puckering measured and how much puckering can be present in a fabric that exhibits a “little”? It is unclear what level of puckering is allowed to read on the claim. Claim 50 is similarly rejected. Claims 37 – 49 are rejected due to their dependency on claim 36.
The phrase “a maximum moisture regain of less than 5.5 weight percent” in claim 41 is indefinite. The language used to define the range in this claim is awkward? Is this the same as saying “the moisture regain is less than 5.5 weight precent” or the maximum moisture regain is 5.5 weight percent? Why use both methods? Can the amount be equal to 5.5% weight percent? Claim 50 is similarly rejected.
The phrase “a minimum moisture regain of the first back yarn is at least 7.5 weight percent” in claim 44 is indefinite. Is this the same as saying “a minimum moisture regain of 7.5 weight percent” or “ a moisture regain of the first back yarn is at least 7.5 weight percent”? Why use both methods? Can the moisture regain equal 7.5%?
The phrase “a minimum moisture regain of the first back yarn is at least 6.0 weight percent” in claim 50 is indefinite. Is this the same as saying “a minimum moisture regain of 6.0 weight percent” or “ a moisture regain of the first back yarn is at least 6.0 weight percent”? Why use both methods? Can the moisture regain equal 6.0%?
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.
Claim(s) 36 – 50 is/are rejected under 35 U.S.C. 103 as being unpatentable over Amin et al. (2022/0339904) in view of Emden et al.
Amin et al. discloses a knit spacer fabric including a first layer formed from yarns having been treated with a durable water repellant (DWR) and a second knit layer formed from yarns with a wicking finish, wherein the first layer and the second layer are interconnected by tie yarns (abstract). The DWR treated yarn would be equivalent to the claimed hydrophobic yarn and the wicking treated yarn would be equivalent to the claimed hydrophilic yarn. The fabric can be formed into a garment (abstract). The first yarn can have a denier of from about 20 D to 60 D (paragraph 37). The second yarn can also have a size ranging from 20 D to 60 D (paragraph 39).
Additionally, Amin et al. teaches that the yarn can be made from polyester treated with a DWR finish (paragraph 37). It is known in the art that polyester fibers are generally hydrophobic with a moisture regain of about 0.4% to 0.6%. Adding a DWR finish to polyester, which makes a fiber more repellent to water and therefore, it is which makes a fiber more hydrophobic and have a moisture regain of less than 5.5%.
The second yarn is a polyester yarn treated with a wicking finish (paragraph 39).
Further, the face layer and the back layer can further include a bare elastic yarn plated with the face yarn, i.e., the first layer, and back yarn, i.e., the second yarn (paragraphs 48 and 49). The elastic yarn in the first layer and the second layer can have a denier of 15 D to 40 D (paragraphs 37 and 39). The elastic connecting yarn can be a single filament of elastane having a denier of 10D to 45D (paragraph 31). Amin et al. further teaches that the denier size can be changed to enhance or customize the stretch and recovery properties of the fabric (paragraph 41). For instance, using a relatively higher denier can contribute to a tight knit construction (paragraph 41). While, Amin et al. fails to teach a specifically using a larger denier elastic yarn in the elastic face yarn, it would have been obvious to one having ordinary skill in the art at the time the invention was made to change the denier size of the elastic yarns to enhance the fabric properties, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215. Further, a fabric with similar knit structure using combination of similar sized yarns would result in a fabric with little or no bagging or puckering since the properties of the knit fabric are a result of the knit structure.
Additionally, Amin et al. fails to teach using natural fibers as the hydrophilic layer. Emden et al. is drawn to wicking fabrics made with hydrophilic and hydrophobic yarns. ). The wicking fibers are inherently hydrophilic yarns or yarns that have been rendered hydrophilic by a hydrophilic additive, coating, or treatment (paragraph 34). The wicking fibers can include cotton yarns or cellulosic man-made fibers or polyamide or polyester fibers which have been rendered hydrophilic by a treatment (paragraph 44, 46, and 65). Thus, it would have been obvious to one having ordinary skill in the to substitute cotton or cellulosic man-made fibers for the wicking treated polyester fibers of Amin et al., since Emden et al. teaches that the fibers can both be used as fibers in a wicking layer of a moisture management fabric.
Additionally, it is noted that it is know in the art that cotton fibers have a moisture regain of 7 – 11% and man-made cellulose fibers such as rayon have moisture regain properties of greater than 11%. Thus, the fibers would have moisture regain properties greater than 7.5%. Thus, claims 36, 38 – 44, 48, and 50 are rejected.
With regards to claim 37 reciting that the knit construction is a full-feeder construction, this is considered to mean that the elastane yarns are knit on every course. As shown in Figures 4 and 5A show that the elastic yarns are knit with the face or back yarn on every needle. Thus, the construction would be full feeder on the face and back surface. Therefore, claim 37 is rejected.
Amin et al. fails to teach the patterns used to make the double-knit spacer fabric. Emden et al. teaches that the fabric may have a double-knit structure selected from, for example: a double jersey jacquard, double pique, or double twill knits, or double jersey or birds eye knit or interlock or piquette (paragraph 77). These include known weft knit patterns. Thus, it would have been obvious to use various double knit structures including jersey and pique knit patterns, in the fabric of Amin et al., Emden et al. discloses these are known patterns for knit spacer fabrics used in moisture management clothes. Further, it would have been obvious to use double knit structures having yarns that form zig-zag pattern between the face and back layer. Therefore, claims 45 – 47 and 49 are rejected.
Response to Arguments
Applicant’s arguments with respect to claim(s) 36 - 50 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.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
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jlj
September 22, 2026
/JENNA L JOHNSON/Primary Examiner, Art Unit 1789
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