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, 6, 8, 11, 13, 14, 17 and 20 is/are rejected under 35 U.S.C. 102a(1) as being anticipated by US 3721274 (Sherrill et al.).
Regarding claim 1, ‘274 discloses: a terry towel [terry woven structure shown in fig. 2 and towel structure shown in fig. 1] comprising: an upper surface formed from a first pile yarn [12, fig. 2];
a lower surface formed from a second pile yarn [13, fig. 2];
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 [ground fabric woven from warp 10 and weft/filling 11, fig. 2, par. 3 Description];
wherein each of the plurality of weft yarns [11] and the plurality of warp yarns [10] comprises: at least 25% polyester [explicitly disclosed in par. 3 “According to the invention, each ground warp yarn 10 should contain within the range of about 35-65 percent polyester staple fibers with the remaining fibers being cellulosic; preferably cotton.”];
and at least 60% cotton [explicitly disclosed in par. 3 “According to the invention, each ground warp yarn 10 should contain within the range of about 35-65 percent polyester staple fibers with the remaining fibers being cellulosic; preferably cotton. Although it is not essential, for best results it is preferred that each ground filling yarn 11 also contains about 35-65 percent polyester staple fibers with the remaining fibers thereof being cellulosic; preferably cotton.”; claimed ‘at least 25% polyester’ and ‘at least 60% cotton’ are data points within the ranges recited above and therefore are fully disclosed/anticipated], 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 a composition of the first pile yarn and a composition of the second pile yarn [par. 4 discloses, “The opposed pile faces of the towel T are formed from respective terry warp yarns 12 and 13 of cellulosic fibers which fibers may be of the same type for both terry warps or of different types. In accordance with the invention, it is preferred that the terry warp yarns 12 are composed of cotton fibers and that the terry warp yarns 13 are composed of rayon staple fibers, for reasons to be later explained.”; this recitation discloses explicitly different composition for the ground warp and weft yarns than both of the upper and lower pile yarns].
Regarding claim 5, ‘274 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 [par. 4 discloses, “The opposed pile faces of the towel T are formed from respective terry warp yarns 12 and 13 of cellulosic fibers which fibers may be of the same type for both terry warps or of different types. In accordance with the invention, it is preferred that the terry warp yarns 12 are composed of cotton fibers and that the terry warp yarns 13 are composed of rayon staple fibers, for reasons to be later explained.”; this recitation discloses no polyester in either of the upper and lower pile yarns].
Regarding claim 6, ‘274 discloses: at least one of the first pile yarn composition and the second pile yarn composition is 100% cotton [par. 4 discloses, “The opposed pile faces of the towel T are formed from respective terry warp yarns 12 and 13 of cellulosic fibers which fibers may be of the same type for both terry warps or of different types. In accordance with the invention, it is preferred that the terry warp yarns 12 are composed of cotton fibers…”; 100% cotton for both 12 and 13 is disclosed].
Regarding claim 8, ‘274 discloses: the composition for each of the plurality of weft yarns and the plurality of warp yarns is 40% polyester and 60% cotton [explicitly disclosed in par. 3 “According to the invention, each ground warp yarn 10 should contain within the range of about 35-65 percent polyester staple fibers with the remaining fibers being cellulosic; preferably cotton. Although it is not essential, for best results it is preferred that each ground filling yarn 11 also contains about 35-65 percent polyester staple fibers with the remaining fibers thereof being cellulosic; preferably cotton.”; claimed ‘40% polyester’ and ‘60% cotton’ are data points within the ranges recited above and therefore are fully disclosed/anticipated].
Regarding claim 11, ‘274 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 yarn composition and the second pile yarn composition [explicitly disclosed in par. 3 “According to the invention, each ground warp yarn 10 should contain within the range of about 35-65 percent polyester staple fibers with the remaining fibers being cellulosic; preferably cotton. Although it is not essential, for best results it is preferred that each ground filling yarn 11 also contains about 35-65 percent polyester staple fibers with the remaining fibers thereof being cellulosic; preferably cotton.” And further, par. 4 discloses, “The opposed pile faces of the towel T are formed from respective terry warp yarns 12 and 13 of cellulosic fibers which fibers may be of the same type for both terry warps or of different types. In accordance with the invention, it is preferred that the terry warp yarns 12 are composed of cotton fibers and that the terry warp yarns 13 are composed of rayon staple fibers, for reasons to be later explained.”; this recitation discloses explicitly different composition for the ground warp and weft yarns than both of the upper and lower pile yarns].
Regarding claim 13, ‘274 discloses: the composition for the plurality of weft yarns is 40% polyester and 60% cotton [explicitly disclosed in par. 3 “According to the invention, each ground warp yarn 10 should contain within the range of about 35-65 percent polyester staple fibers with the remaining fibers being cellulosic; preferably cotton. Although it is not essential, for best results it is preferred that each ground filling yarn 11 also contains about 35-65 percent polyester staple fibers with the remaining fibers thereof being cellulosic; preferably cotton.”; claimed ‘40% polyester’ and ‘60% cotton’ are data points within the ranges recited above and therefore are fully disclosed/anticipated].
Regarding claim 14, ‘274 discloses: both of the first pile yarn composition and the second pile yarn composition are each 100% cotton [par. 4 discloses, “The opposed pile faces of the towel T are formed from respective terry warp yarns 12 and 13 of cellulosic fibers which fibers may be of the same type for both terry warps or of different types. In accordance with the invention, it is preferred that the terry warp yarns 12 are composed of cotton fibers…”; 100% cotton for both 12 and 13 is disclosed].
Regarding claim 17, ‘274 discloses: the composition for the plurality of warp yarns is 65% cotton and 35% polyester [explicitly disclosed in par. 3 “According to the invention, each ground warp yarn 10 should contain within the range of about 35-65 percent polyester staple fibers with the remaining fibers being cellulosic; preferably cotton. Although it is not essential, for best results it is preferred that each ground filling yarn 11 also contains about 35-65 percent polyester staple fibers with the remaining fibers thereof being cellulosic; preferably cotton.”; claimed ‘35% polyester’ and ‘65% cotton’ are data points within the ranges recited above and therefore are fully disclosed/anticipated].
Regarding claim 20, ‘274 discloses: A terry towel [T, fig. 1] comprising:
an upper surface [12, fig. 2] having an upper surface composition [inherent to 12; fig. 2];
a lower surface [13, fig. 2] having a lower surface composition [inherent to 13; fig. 2];
an intermediate layer [yarns 10 and 11; fig. 2] having an intermediate layer composition [inherent to yarns 10 and 11; fig. 2] and being juxtaposed between the upper and lower surfaces [explicitly shown and inherent to structure of the terry towel shown in fig. 2];
a perimeter bounding the upper and lower surfaces and the intermediate layer [explicitly shown and inherent to structure of the terry towel shown in fig. 1]; wherein the intermediate layer composition is different from both of the upper surface composition and the lower surface composition [explicitly disclosed in par. 3 “According to the invention, each ground warp yarn 10 should contain within the range of about 35-65 percent polyester staple fibers with the remaining fibers being cellulosic; preferably cotton. Although it is not essential, for best results it is preferred that each ground filling yarn 11 also contains about 35-65 percent polyester staple fibers with the remaining fibers thereof being cellulosic; preferably cotton.” And further, par. 4 discloses, “The opposed pile faces of the towel T are formed from respective terry warp yarns 12 and 13 of cellulosic fibers which fibers may be of the same type for both terry warps or of different types. In accordance with the invention, it is preferred that the terry warp yarns 12 are composed of cotton fibers and that the terry warp yarns 13 are composed of rayon staple fibers, for reasons to be later explained.”; this recitation discloses explicitly different composition for the ground warp and weft yarns than both of the upper and lower pile yarns];
pile yarn [yarns 12 and 13, fig. 2] which at least in part contributes to the upper and lower surfaces [shown explicitly in fig. 2];
a plurality of weft yarns [11, fig. 2]; and
a plurality of warp yarns [10, fig. 2] intertwined with the plurality of weft yarns [10 and 11 shown intertwined in fig. 2]; wherein the plurality of weft yarns and the plurality of warp yarns at least in part contribute to the intermediate layer [shown explicitly in fig. 2];
wherein the intermediate layer composition includes at least 25% polyester [explicitly disclosed in par. 3 “According to the invention, each ground warp yarn 10 should contain within the range of about 35-65 percent polyester staple fibers with the remaining fibers being cellulosic; preferably cotton.”] and at least 60% cotton [explicitly disclosed in par. 3 “According to the invention, each ground warp yarn 10 should contain within the range of about 35-65 percent polyester staple fibers with the remaining fibers being cellulosic; preferably cotton. Although it is not essential, for best results it is preferred that each ground filling yarn 11 also contains about 35-65 percent polyester staple fibers with the remaining fibers thereof being cellulosic; preferably cotton.”; claimed ‘at least 25% polyester’ and ‘at least 60% cotton’ are data points within the ranges recited above and therefore are fully disclosed/anticipated]; and
wherein 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 [par. 4 discloses, “The opposed pile faces of the towel T are formed from respective terry warp yarns 12 and 13 of cellulosic fibers which fibers may be of the same type for both terry warps or of different types. In accordance with the invention, it is preferred that the terry warp yarns 12 are composed of cotton fibers and that the terry warp yarns 13 are composed of rayon staple fibers, for reasons to be later explained.”; this recitation discloses no polyester in either of the upper and lower pile yarns].
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) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 3721274 (Sherrill et al.).
Regarding claim 12, ‘274 discloses explicitly, “According to the invention, both sets of the ground warp and filling yarns or only one of the same are formed of a blend of cellulosic and polyester staple fibers. The inclusion of the polyester fibers, which are stronger and much less absorbent than cotton fibers, limits the shrinkage of the towel, increases its tensile strength, increases the selvage life, and improves the limpness and drape of the towel [par. 6, Background/summary].”;
“The present invention modifies and improves the stability against shrinkage, abrasion resistance, limpness and drape of towels without necessitating substantial changes in the physical construction of the towels themselves. Instead, a novel use of certain synthetic fibers in the base fabric of a conventionally constructed towel achieves the desired results [par. 2, Description].”; and
“More specifically, in the preferred embodiment of the invention, the base fabric comprises ground warp yarns 10, each composed of an intimate blend of cellulosic and polyester staple fibers. Filling yarns 11 are interwoven with the ground warp yarns 10, and preferably, each filling yarn 11 also is composed of an intimate blend of cellulosic and polyester staple fibers. According to the invention, each ground warp yarn 10 should contain within the range of about 35-65 percent polyester staple fibers with the remaining fibers being cellulosic; preferably cotton. Although it is not essential, for best results it is preferred that each ground filling yarn 11 also contains about 35-65 percent polyester staple fibers with the remaining fibers thereof being cellulosic; preferably cotton…[par. 3, description].”.
Recitations make clear that the prior art wholly recognizes and expects yarn terry woven ground warp yarns in the compositional range of “about 35-65% polyester and about 65-35% cotton” provide a terry woven fabric that takes advantage of the intrinsic properties of both polyester and cotton to result in a terry woven fabric that is absorbent due to the cotton content while also providing the fabric with effects known to be intrinsically provided by the polyester content such as increased strength, moisture transport, abrasion resistance, among other known intrinsic properties of polyester.
The range of ground warp yarn composition in claim 12 is slightly different than the range stated above. However, MPEP 2144.05 is clear:
I. OVERLAPPING, APPROACHING, AND SIMILAR RANGES, AMOUNTS, AND PROPORTIONS
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.”).
Instantly the claimed composition 25% polyester and 75% cotton is close enough to the disclosed compositional range “about 35% polyester and the remainder or about 65% cotton” that prima facie one of skill in the art prior to filing the invention would have expected them to have the same properties which were explicitly stated in the prior art as improved strength, abrasion resistance, drape; along with known intrinsic properties of polyester and cotton blends over that of 100% cotton yarns in terry towels.
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the amount of polyester and cotton in the ground warp yarn of a terry woven fabric to arrive at a terry woven fabric that takes advantage of the known intrinsic properties of polyester such as higher strength, durability and moisture transmission; and cotton such as feel and absorbency to arrive at a terry woven towel with improved properties including strength, abrasion resistance and drape over that of all cotton terry woven towels.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 3721274 (Sherrill et al.) in view of US 10072364 (Goenka et al.).
Regarding claim 10, as previously noted above, ‘274 does teach at length the use of blended cotton and polyester yarns in a woven terry towel fabric to provide the woven terry towel fabric with intrinsic properties of both polyester and cotton to result in an improved towel over than of 100% cotton towels.
So ‘274 does clearly recognize the use of blended polyester and cotton in the composition of a woven terry towel.
‘274 does not teach the claimed compositional proportions of the terry woven towel being 20% polyester and 80% cotton by weight.
‘364 is referenced as it teaches, “The mass distribution of the woven terry fabric 10 is selected to optimize moisture transfer and absorbency. For instance, the moisture transport yarns (e.g. warp yarns 40), may contribute to 10% to 30%, preferably between 15% to 20% of the weight of the woven terry fabric 10. The absorbent yarns in the ground, (e.g. the weft yarns 42) may comprise between 10% to 30% of the weight of the woven terry fabric 10. The pile components, such as absorbent pile yarns 64, 164 may comprise between about 50% to about 80%, preferably about 55% to about 70% by weight of the woven terry fabric 10. The ground component 30 and pile components 60, 160 will be described next [par. 12, Detailed description].”.
‘364 teaches the ground warp yarns 40, about 10-30% by weight of the towel as polyester [pars. 15 and 16]; the ground weft yarns 42, about 10-30% by weight of the towel as polyester/cotton blends [par. 27]; and pile yarns 60 and 160 as primarily cotton, about 50-80% by weight of the towel [par. 31].
While the disclosed range of polyester and cotton by weight of the towel is not explicitly disclosed, it is clear that the disclosed range of polyester and cotton by weight of the towel does overlap and/or is at the very least close to the claimed range. As previously noted from MPEP 2144.05 when claimed ranges and disclosed ranges overlap prima facie obviousness exists and/or are close enough to expect the prior art and the claimed device to have the same properties and therefore similarly a prima facie obviousness exists in that scenario as well.
Therefore it would have been obvious to one of ordinary skill in the art prior to filing the invention to modify the amount of polyester and cotton in a woven terry towel fabric to take advantage of the known intrinsic properties of polyester and the known intrinsic properties of cotton to arrive at an improved woven terry towel fabric with the desired optimum moisture transfer and absorbency for the desired end used application of the woven terry towel product.
Response to Arguments
Applicant’s arguments with respect to claim(s) above 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
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US patents: US 20150167210 A1; US 3721274 A; US 6062272 A; are cited in current PTO-892 and all teach terry woven towels with similar structure and composition as the claims.
Applicant is urged to peruse current and previously cited prior art references as currently amended claims were rejected under USC 102 by references previously cited in previous PTO-892 forms.
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.
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/ROBERT H MUROMOTO JR/Primary Examiner, Art Unit 3732
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