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 .
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 23-24, 29-30 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.
Claims 23 and 24 contains the limitations “brushed for surface loft and compressibility,” “dense”, “compliant”, “squishy”, “thermal insulation” , “Softness” , “Soft hand feel.” These limitations are unclear as they are relative terms or subjective in nature. In efforts to further the prosecution the limitations will be interpreted as not particularly limiting the structure of the claimed invention.
Claim 29 contains the limitations “kid sized” and “couch sized,” it is unclear as to what size this requires. In effort to further prosecution the limitation will be interpreted as requiring any size.
Claim 30 contains the limitation “stitching or quilting” in claim 21. There is insufficient antecedent basis for this limitation in the claim.
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) 21-30 is/are rejected under 35 U.S.C. 103 as being unpatentable over USPN. 11,154,104 to Liran.
Regarding Claims 21 and 24-26
Liran teaches a fabric comprising an outer shell comprising a knitted fabric formed from a yarn composition comprising 92% polyester and 8% spandex which lies within the claimed range of between 90 and 100% polyester and 5 to 10% spandex (Liran, abstract, column 7, line 59- column 8 ,line 4) and an inner filling disposed within the outer shell comprising fiber batting such as polyester (Id., column 3, lines 39-50, column 11, lines 59-67). Liran teaches that the fabric may be used as a blanket (Id., claim 17). Liran teaches that the outer shell layer is disposed on both surfaces of the composite fabric and therefore would meet the limitations of being configured for reversable use (Id., claim 1). Liran teaches that the polyester batting may be included as multiple layers which would necessarily provide thermal insulation and softness (Id., column 11, lines 44-58). Liran teaches that the composite may include stitching or quilting for securing the outer shell to the inner filling extending across multiple regions and which would necessarily inhibit migration of the polyester fiber batting (Id., column 10, line 50-column 11, lines 34).
Regarding the term “reversible comfort throw blanket,” recited in the preamble, a preamble is generally not accorded any patentable weight where it merely recites the purpose of a process or the intended use of a structure, and where the body of the claim does not depend on the preamble for completeness but, instead, the process steps or structural limitations are able to stand alone. See In re Hirao, 535 F.2d 67, 190 USPQ 15 (CCPA 1976) and Kropa v. Robie, 187 F.2d 150, 152, 88 USPQ 478, 481 (CCPA 1951). Since Liran teaches a substantially similar structure and composition as the claimed invention, which is used for an identical purpose, the invention of Liran is suitable for use as claimed.
Regarding Claims 22 and 29
Liran teaches a rectangular shape of 150x170 cm which corresponds to a “couch-sized” or “throw” blanket and 170x220 cm which corresponds to a twin-sized (“kid-sized”) blanket, but does not specifically teach 127 cm by 152 cm (Id., column 6, lines 51-61). However, It would have been obvious to one having ordinary skill in the art at the time of the invention to determine appropriate dimensions of the composite fabric using nothing more than routine experimentation to achieve workable dimensions for the desired application. It has been held where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art unless such a range is shown to be critical. Please see MPEP § 2144.05(II)(A).
Regarding Claims 23, 27 and 30
Regarding the limitations “the outer shell is brushed for surface loft and compressibility” , “sheared for creating a dense and compliant pile of the knitted fabric to yield the knitted fabric to compress and rebound in a squishy and soft hand feel manner” , “printed or dyed prior to assembly with the polyester fiber batting” and “packaged as a retail consumer textile product following completion of stitching or quilting” these limitations are product-by-process limitations. Absent a showing to the contrary, it is Examiner's position that the article of the applied prior art is identical to or only slightly different than the claimed article. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 227 USPQ 964, 966 (Fed. Cir. 1985). The burden has been shifted to Applicant to show unobvious difference between the claimed product and the prior art product. In re Marosi, 218 USPQ 289 (Fed. Cir. 1983). The applied prior art either anticipated or strongly suggested the claimed subject matter. It is noted that if Applicant intends to rely on Examples in the specification or in a submitted declaration to show unobviousness, Applicant should clearly state how the Examples of the present invention are commensurate in scope with the claims and how the Comparative Examples are commensurate in scope with the applied prior art.
Furthermore, Liran teaches brushing, sanding, dyeing, printing and packaging being applied to the fabrics (Id., column 13, lines 17-26).
Regarding Claim 28
Liran teaches the knitted fabric comprises a yarn composition comprising 92% polyester and 8% spandex which meets the limitation of about 94% polyester and about 6% spandex (Liran, abstract, column 7, line 59- column 8 ,line 4). Alternatively, it would have been obvious to one of ordinary skill to adjust, vary and optimize the range, such as within the claimed range, motivated by the desire to form a conventional fabric blanket based on the totality of the teachings of Liran.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VINCENT A TATESURE whose telephone number is (571)272-5198. The examiner can normally be reached Monday-Friday 7:30AM-4PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer Chriss can be reached at 5712727783. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/VINCENT TATESURE/Primary Examiner, Art Unit 1786
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