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 § 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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 5-7, 10-15, and 17, 18 and 20 is/are rejected under 35 U.S.C. 102a(1) as being anticipated by US 6062272 (Waite).
Regarding claim 1, ‘272 discloses: a terry towel comprising: an upper surface formed from a first pile yarn; a lower surface formed from a second pile yarn; an intermediate layer formed from a plurality of weft yarns and a plurality of warp yarns intertwined with the plurality of weft yarns, the intermediate layer being juxtaposed between the upper and lower surfaces [‘272 discloses a terry woven towel; and in par. 5 states, “Towels are generally woven on looms to include a ground fabric and an extra set of warp or filling yarns. The yarns of this extra set are interlaced with the ground warp and filling yarns to form a plurality of loops or cut ends which extend outwardly from one or both surfaces of the ground fabric to form a pile.”; this teaching inherently includes an upper surface of 1st pile yarns; a lower surface of 2nd pile yarn; and intermediate/ground fabric layer juxtaposed between upper and lower surfaces] wherein each of the plurality of weft yarns and the plurality of warp yarns comprises at least 25% polyester, and the remaining amount comprises cotton, such that a composition for each of the plurality of weft yarns and the plurality of warp yarns is different from at least one of composition of the first pile yarn and composition of the second pile yarn [‘272 discloses explicitly in the abstract: “A pile towel construction having quick-dry properties and good absorption characteristics is described. The towel includes a substantially all-cotton pile and a ground fabric which includes moisture-transporting polyester fibers. The towel desirably includes from about 10% to about 50% moisture-transporting polyester fibers. In one embodiment of the invention, the moisture-transporting fibers are provided in only one set of the ground fabric-forming yarns, such as the weft, while the other set of yarns forming the ground fabric is made from conventional polyester.” This citation discloses the ground fabric as 100% polyester and both pile surfaces as substantially all-cotton. The claim term “polyester” is in an open-ended/comprising type claim and further the term “polyester” encompasses any known form of polyester; including both “moisture transporting polyester” and “conventional polyester”.].
Regarding claim 5, ‘272 discloses: wherein a percentage of polyester in the composition for each of the plurality of weft yarns and the plurality of warp yarns is greater than at least one of a percentage of polyester in the first pile yarn composition and a percentage of polyester in the second pile yarn composition [‘272 discloses ground fabric 100% polyester in abstract and both pile surfaces as 100% cotton in abstract ].
Regarding claim 6, ‘272 discloses: at least one of the first pile yarn composition and the second pile yarn composition is 100% cotton [‘272 discloses ground fabric as potentially 100% polyester in the abstract and both pile surfaces as 100%/ “all-cotton” cotton in the abstract].
Regarding claim 7, ‘272 discloses: the intermediate layer composition for each of the plurality of weft yarns and the plurality of warp yarns is 100% polyester [‘272 discloses explicitly in the abstract: “A pile towel construction having quick-dry properties and good absorption characteristics is described. The towel includes a substantially all-cotton pile and a ground fabric which includes moisture-transporting polyester fibers. The towel desirably includes from about 10% to about 50% moisture-transporting polyester fibers. In one embodiment of the invention, the moisture-transporting fibers are provided in only one set of the ground fabric-forming yarns, such as the weft, while the other set of yarns forming the ground fabric is made from conventional polyester.” This citation discloses the ground fabric as 100% polyester and both pile surfaces as substantially all-cotton. The claim term “polyester” is in an open-ended/comprising type claim and further the term “polyester” encompasses any known form of polyester; including both “moisture transporting polyester” and “conventional polyester”.].
Regarding claim 10, ‘272 discloses: a terry towel composition is 20% polyester and 80% cotton by weight [‘272 states in par. 30, “In one form of the invention, the towel includes at least about 10% of the moisture-transporting polyester fibers, and preferably at least about 14%; in a particularly preferred form of the invention, the towel includes at least about 30% moisture-transporting polyester fibers. Because it is desirable to make the pile from substantially all cotton fibers and the pile typically forms a substantial part of the overall towel, the moisture-transporting fibers generally comprise about 50% or less of the overall towel construction.”; 20% polyester is a datapoint within the disclosed range].
Regarding claim 11, ‘272 discloses: the composition for each of the plurality of weft yarns and the plurality of warp yarns is different from both of the first pile composition and the second pile composition [‘272 discloses ground fabric as potentially 100% polyester in the abstract and both pile surfaces as all-cotton par. 19].
Regarding claim 12, ‘272 discloses: the composition for the plurality of weft yarns are 25% polyester and 75% cotton [it is noted that ‘weft yarns’ do not form a part of the pile/upper/lower surface composition they are only present in the intermediate layer of instantly claimed textile; ‘272 states in pars. 30-31, “In one form of the invention, the towel includes at least about 10% of the moisture-transporting polyester fibers, and preferably at least about 14%; in a particularly preferred form of the invention, the towel includes at least about 30% moisture-transporting polyester fibers. Because it is desirable to make the pile from substantially all cotton fibers and the pile typically forms a substantial part of the overall towel, the moisture-transporting fibers generally comprise about 50% or less of the overall towel construction.
Within the above-stated parameters, where the ground fabric is made from less than substantially 100% moisture-transporting fibers, the remainder of the fibers used to make up the ground fabric are preferably either cotton, conventional polyester, or a combination thereof. It is particularly preferred that all-cotton be used for the rest of the ground fabric since, as noted above, the use of more than an insubstantial amount of conventional polyester can have a negative impact on the absorptiveness of the towel.”; 25% polyester and the remaining 75% being cotton is a datapoint within the disclosed range.”].
Regarding claim 13, ‘272 discloses: the composition for the plurality of weft yarns are 40% polyester and 60% cotton [it is noted that ‘weft yarns’ do not form a part of the pile/upper/lower surface composition they are only present in the intermediate layer of instantly claimed textile; ‘272 states in pars. 30-31, “In one form of the invention, the towel includes at least about 10% of the moisture-transporting polyester fibers, and preferably at least about 14%; in a particularly preferred form of the invention, the towel includes at least about 30% moisture-transporting polyester fibers. Because it is desirable to make the pile from substantially all cotton fibers and the pile typically forms a substantial part of the overall towel, the moisture-transporting fibers generally comprise about 50% or less of the overall towel construction.
Within the above-stated parameters, where the ground fabric is made from less than substantially 100% moisture-transporting fibers, the remainder of the fibers used to make up the ground fabric are preferably either cotton, conventional polyester, or a combination thereof. It is particularly preferred that all-cotton be used for the rest of the ground fabric since, as noted above, the use of more than an insubstantial amount of conventional polyester can have a negative impact on the absorptiveness of the towel.”; 40% polyester and the remaining 60% being cotton is a datapoint within the disclosed range.”].
Regarding claim 14, ‘272 discloses: wherein both of the first pile yarn composition, and the second pile yarn composition and are each 100% cotton [‘272 discloses both pile surfaces as 100%/ “all-cotton” cotton in the abstract].
Regarding claim 15, ‘272 discloses: the composition of the plurality of weft yarns are 100% polyester [par. 31 states, “at least one of the ground fabric-forming yarn sets (i.e., the warp or the weft) is made from substantially 100% moisture-transporting polyester fibers.”].
Regarding claim 17, ‘272 discloses: the composition for the plurality of warp yarns are 65% polyester and 35% cotton [it is noted that ‘warp yarns’ do not form a part of the pile/upper/lower surface composition they are only present in the intermediate layer of instantly claimed textile; ‘272 states in pars. 30-31, “In one form of the invention, the towel includes at least about 10% of the moisture-transporting polyester fibers, and preferably at least about 14%; in a particularly preferred form of the invention, the towel includes at least about 30% moisture-transporting polyester fibers. Because it is desirable to make the pile from substantially all cotton fibers and the pile typically forms a substantial part of the overall towel, the moisture-transporting fibers generally comprise about 50% or less of the overall towel construction.
Within the above-stated parameters, where the ground fabric is made from less than substantially 100% moisture-transporting fibers, the remainder of the fibers used to make up the ground fabric are preferably either cotton, conventional polyester, or a combination thereof. It is particularly preferred that all-cotton be used for the rest of the ground fabric since, as noted above, the use of more than an insubstantial amount of conventional polyester can have a negative impact on the absorptiveness of the towel.”; 65% polyester and the remaining 35% being cotton is a datapoint within the disclosed range.”].
Regarding claim 18, ‘272 discloses: the composition of the plurality of weft yarns are 50% polyester and 50% cotton [it is noted that weft yarns do not form a part of the pile/upper/lower surface composition they are only present in the intermediate layer of instantly claimed textile; ‘272 states in pars. 30-31, “In one form of the invention, the towel includes at least about 10% of the moisture-transporting polyester fibers, and preferably at least about 14%; in a particularly preferred form of the invention, the towel includes at least about 30% moisture-transporting polyester fibers. Because it is desirable to make the pile from substantially all cotton fibers and the pile typically forms a substantial part of the overall towel, the moisture-transporting fibers generally comprise about 50% or less of the overall towel construction.
Within the above-stated parameters, where the ground fabric is made from less than substantially 100% moisture-transporting fibers, the remainder of the fibers used to make up the ground fabric are preferably either cotton, conventional polyester, or a combination thereof. It is particularly preferred that all-cotton be used for the rest of the ground fabric since, as noted above, the use of more than an insubstantial amount of conventional polyester can have a negative impact on the absorptiveness of the towel.”; 50% polyester and the rest cotton is a datapoint within the disclosed range.”].
Regarding claim 20 (claim 20 is simply a picture type claims incorporating the limitations of claims above they will be repeated here; the only limitation not from a prior claim is that of a ‘perimeter bounding upper/lower/intermediate layers’), ‘272 discloses: a towel (textile in ‘272 is a ‘towel’ in structure and function) comprising: an upper surface having an upper surface composition; a lower surface having a lower surface composition; an intermediate layer having an intermediate layer composition and being juxtaposed between the upper and lower surfaces; a perimeter bounding the upper and lower surfaces and the intermediate layer [‘272 discloses a terry woven towel; and in par. 5 states, “Towels are generally woven on looms to include a ground fabric and an extra set of warp or filling yarns. The yarns of this extra set are interlaced with the ground warp and filling yarns to form a plurality of loops or cut ends which extend outwardly from one or both surfaces of the ground fabric to form a pile.”; this teaching inherently includes an upper surface/composition; a lower surface/composition; intermediate/middle/inner section/composition; and a perimeter or edge bounding the textile]; wherein the intermediate layer composition is different from both of the upper surface composition and the lower surface composition [‘272 discloses ground fabric as potentially 100% polyester in par. 31 and both pile surfaces as 100% cotton par. 19]; pile yarn which at least in part contributes to the upper and lower surfaces [any woven terry/pile fabric including the fabric disclosed in ‘272 inherently requires the pile yarn to be at least in part a component of any upper and lower surface which is made up of the upper and lower pile yarns]; a plurality of weft yarns; and a plurality of warp yarns intertwined with the plurality of weft yarns; wherein the plurality of weft yarns and the plurality of warp yarns at least in part contribute to the intermediate layer [any woven terry/pile fabric including the fabric disclosed in ‘272 inherently requires a plurality of warp and weft yarns intertwined/woven with each other that at least contribute to the intermediate/ground fabric layer]; wherein the intermediate layer composition includes at least 25% polyester and a percentage of polyester in the intermediate layer composition is greater than at least one of a percentage of polyester in the upper surface composition and a percentage of polyester in the lower surface composition [the fabric of ‘272 states inpars. 30-31, “In one form of the invention, the towel includes at least about 10% of the moisture-transporting polyester fibers, and preferably at least about 14%; in a particularly preferred form of the invention, the towel includes at least about 30% moisture-transporting polyester fibers. Because it is desirable to make the pile from substantially all cotton fibers and the pile typically forms a substantial part of the overall towel, the moisture-transporting fibers generally comprise about 50% or less of the overall towel construction.
Within the above-stated parameters, where the ground fabric is made from less than substantially 100% moisture-transporting fibers, the remainder of the fibers used to make up the ground fabric are preferably either cotton, conventional polyester, or a combination thereof. It is particularly preferred that all-cotton be used for the rest of the ground fabric since, as noted above, the use of more than an insubstantial amount of conventional polyester can have a negative impact on the absorptiveness of the towel.”; therefore the percentage of polyester in the intermediate layer is different than the percentage of polyester in at least one of the upper/lower layers because the piles are all-cotton; the disclosure also states the ground fabric is potentially 100% polyester disclosing “at least 25%” polyester].
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.
In the alternative to 102 rejection above: Claim(s) 8, 10, 12, 13, 17 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 6062272 (Waite).
If not conceded as fully disclosed by ‘272 above these claims can also be addressed by instant rejection.
As an alternative interpretation the exact claimed ranges of polyester to cotton in the claimed fabric are not explicitly disclosed by ‘272.
‘272 as noted above does fully disclose all claimed structural arrangements and does disclose required difference of composition between intermediate layer and upper/lower layers. Including use of all cotton pile/upper/lower surfaces combined with ground fabric including polyester yarns.
‘272 further explicitly teaches, “The absorbent towel of the present invention has quick-drying capabilities which are provided by incorporating moisture-transporting polyester fibers into the ground fabric of a pile fabric construction.
As discussed above, conventional towels and pile fabrics for producing towels and like articles generally include a woven ground fabric and a plurality of pile yarns extending outwardly from the fabric, because the towels are typically made from substantially all cotton fibers or to include a small percentage of polyester in the ground fabric, moisture absorbed by the pile yarns is transferred to underlying regions of the ground fabric, where it remains until it is evaporated from the towel. As a result, certain areas of a towel can be saturated or even over-saturated, while other areas of the towel remain dry.
In contrast, the towels of the present invention, through the use of a modified ground fabric construction, allow for the transport and distribution of moisture across the width of the ground fabric, and therefore across the width of the overall towel. Because the moisture is spread across a greater surface area of the ground fabric (and thus dispersed more thinly), it can be evaporated more quickly. As a result, the towel can dry more quickly than conventional all- or substantially all-cotton towels.[pars 22-24]”.
Arguably the exact claimed compositional ranges of instant claims are not disclosed.
However, ‘272 states in pars. 30-31, “In one form of the invention, the towel includes at least about 10% of the moisture-transporting polyester fibers, and preferably at least about 14%; in a particularly preferred form of the invention, the towel includes at least about 30% moisture-transporting polyester fibers. Because it is desirable to make the pile from substantially all cotton fibers and the pile typically forms a substantial part of the overall towel, the moisture-transporting fibers generally comprise about 50% or less of the overall towel construction.
Within the above-stated parameters, where the ground fabric is made from less than substantially 100% moisture-transporting fibers, the remainder of the fibers used to make up the ground fabric are preferably either cotton, conventional polyester, or a combination thereof. It is particularly preferred that all-cotton be used for the rest of the ground fabric since, as noted above, the use of more than an insubstantial amount of conventional polyester can have a negative impact on the absorptiveness of the towel.”.
The explicit teachings above establish that the prior art fully recognizes the use of varying amounts of polyester fiber in the composition of a ground fabric of a cotton pile/polyester ground towel fabric to produce a cotton pile/polyester ground towel that allows for the transport and distribution of moisture across the width of the ground fabric, and therefore across the width of the overall towel.
Further the MPEP 2144.05 is clear: In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In reWertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In reWoodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (The prior art taught carbon monoxide concentrations of “about 1-5%” while the claim was limited to “more than 5%.” The court held that “about 1-5%” allowed for concentrations slightly above 5% thus the ranges overlapped.); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997) (Claim reciting thickness of a protective layer as falling within a range of “50 to 100 Angstroms” considered prima facie obvious in view of prior art reference teaching that “for suitable protection, the thickness of the protective layer should be not less than about 10 nm [i.e., 100 Angstroms].” The court stated that “by stating that ‘suitable protection’ is provided if the protective layer is ‘about’ 100 Angstroms thick, [the prior art reference] directly teaches the use of a thickness within [applicant’s] claimed range.”). See also In re Bergen, 120 F.2d 329, 332, 49 USPQ 749, 751-52 (CCPA 1941) (The court found that the overlapping endpoint of the prior art and claimed range was sufficient to support an obviousness rejection, particularly when there was no showing of criticality of the claimed range).
Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of Americav.Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (Court held as proper a rejection of a claim directed to an alloy of “having 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium” as obvious over a reference disclosing alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium. “The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties.”)…
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In reAller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (Claimed process which was performed at a temperature between 40°C and 80°C and an acid concentration between 25% and 70% was held to be prima facie obvious over a reference process which differed from the claims only in that the reference process was performed at a temperature of 100°C and an acid concentration of 10%.); see also Peterson, 315 F.3d at 1330, 65 USPQ2d at 1382 (“The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.”); In reHoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969) (Claimed elastomeric polyurethanes which fell within the broad scope of the references were held to be unpatentable thereover because, among other reasons, there was no evidence of the criticality of the claimed ranges of molecular weight or molar proportions.).
In the instant scenario, the claimed ranges of polyester/cotton composition are in some instances within the disclosed ranges of polyester and cotton in ‘272 and in some instances they are merely close.
As noted above the MPEP states this alone provides evidence of prima facie obviousness.
Further, the instantly claimed fabric compositional limitations are not shown to have any critical or unexpected results in that the prior art explicitly discloses use of varying amounts of polyester to cotton in the textile provides a “quick drying” towel through the moisture dynamics created by using cotton along with polyester in a towel as noted from ‘272 above. So it is wholly expected by the skilled artisan that use of varying levels of polyester and cotton in a towel provides a “quicker” drying towel and is predictably successful.
In view of the abundance of evidence cited above, it would have been obvious to one of ordinary skill in the art prior to filing the invention to optimize the amount of polyester versus cotton in a towel textile article taught by ‘272 to arrive at the optimum drying characteristics of a towel device.
Response to Arguments
Applicant's arguments filed 11/03/2025 have been fully considered but they are not persuasive.
112 rejections have been overcome.
Assertions regarding the scope of the claim term “polyester” are incorrect.
The term “polyester” in the claims has no restriction to the types of ‘polyester’. The broadest reasonable interpretation being used by the examiner is that any known polyester material is within the term “polyester”. Assertion that “polyester” only includes explicit “conventional polyester” is incorrect and is not commensurate to the claim term. Additionally, the claim is in open or comprising type format. Any known form of polyester includes polyester in the composition so it is in the scope of the term “polyester” and fully discloses the term “polyester” present in an open/comprising type claim.
All arguments and assertions regarding “conventional polyester” are not germane to the rejection as the claim term “conventional polyester” is not present in the claims.
This is the singular argument which is unsustainable as noted above.
The rejection is considered to be proper.
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. Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT H MUROMOTO JR whose telephone number is (571)272-4991. The examiner can normally be reached M-Th 730-1730.
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, Alissa Tompkins can be reached at 571-272-3425. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ROBERT H MUROMOTO JR/Primary Examiner, Art Unit 3732