DETAILED ACTION
This is a Non-Final Rejection for application 18/988,402 filed December 19, 2024. The present application claims priority to European Patent Application 23218688.2 filed on December 20, 2023. Claims 1-16 are currently pending.
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 Objections
Claim 4 is objected to because of the following informalities: the recitation “each tunnel zone” should instead by “the tunnel zone” since claim 1 only discloses one tunnel zone. Appropriate correction is required.
Claim 10 is objected to because of the following informalities: the recitations “a tunnel zone” and “each tunnel” should both be “the tunnel zone” since a tunnel zone is already recited in claim 1 and a tunnel is not recited. Appropriate correction is required.
Claim 15 is objected to because of the following informalities: the recitation “each tunnel” should instead be “the tunnel zone” since a tunnel is not recited and there is only one padded zone. The recitation “and of an intermediate layer a padding yarn different from the flat-knitted thread” should be “and of an intermediate layer; a padding yarn different from the flat-knitted thread” since it is unclear without proper punctuation. The recitation “the intermediate layer being interposed lower and upper layers” should be “the intermediate layer being interposed between lower and upper layers” for proper grammar. Appropriate correction is required.
Claim 16 is objected to because of the following informalities: the recitation “each tunnel” should be “the tunnel zone” since a tunnel is not recited, but a singular tunnel zone is. Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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 1-16 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.
Regarding claims 1 and 14, the phrase "such as" and “in particular” renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 3, the limitation “wherein the first flat-knitted thread is different from the second flat-knitted thread at the tunnel zone” is rejected as claim 1 recites that the first and second flat-knitted threads are the same type of flat-knitted thread.
Regarding claim 4, the limitation “wherein each tunnel zone comprises at least an inlet opening for inserting a functional element into the containment pocket” is rejected as claim 1 recites that the tunnel zone consists of the lower layer and the upper layer. The phrase “consists of” is a closed term so it is not appropriate to further limit the tunnel zone. See MPEP 2111.03.
Regarding claim 5, the phrases "including cotton and wool" and “including polyester and polyamide” render the claim indefinite because it is unclear whether the limitation(s) are part of the claimed invention. See MPEP § 2173.05(d). The examiner will interpret the claim to only require natural fibers and/or synthetic fibers and not the specific examples recited.
Regarding claim 6, the phrase “including polyester and polyamide” renders the claim indefinite because it is unclear whether the limitation(s) are part of the claimed invention. See MPEP § 2173.05(d). The examiner will interpret the claim to only require synthetic fibers and not the specific examples recited.
Regarding claim 9, the limitations “and/or of the upper layer” are unclear as the padded zone consists of a padding layer interposed between the lower layer and an intermediate layer, so the padding yarn cannot be laid in the upper layer.
Regarding claim 10, the limitation “wherein the padded zone is located at a tunnel zone so that each tunnel is knitted onto that padded zone” is rejected as claim 1 recites that the tunnel zone consists of the lower layer and the upper layer. The phrase “consists of” is a closed term so it is not appropriate to further limit the tunnel zone. See MPEP 2111.03.
Regarding claim 12, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim 12 recites the limitation "the tunnel area" and “the same tunnel areas” in lines 18-19. There is insufficient antecedent basis for this limitation in the claim. The tunnel area will be interpreted as the containment pocket.
Claims 2, 7-8, 11, 13 and 15-16 are rejected for depending from and not curing the deficiencies of a rejected claim.
Claim Rejections - 35 USC § 102
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-7 and 14 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US 2019/0037966 (Aceves Tinajero et al.).
Regarding claim 1, Aceves Tinajero discloses a knitted article, in particular for an orthopaedic brace, including at least one flat-knitted zone and at least one tunnel zone suitable for the integration of functional elements, such as tensioning cables (Abstract – “In one aspect of the disclosure, a knitted component for use in an article of footwear may include a first layer with a multi-bed first area having a first surface and an opposite facing second surface. The knitted component may include a second layer with a second area overlapping the first area”; See Figs. 1-7.), comprising:
- a lower layer consisting of several rows of knitted stitches obtained by knitting a first flat-knitted thread ([0047] – “Referring to FIGS. 3, 4, and 5 together, each knitted loop structure 204 may include an exterior area 240 and an interior area 244”; [0035] – “The knitted component 108 may be formed as an integral one-piece element during a knitting process, such as a weft knitting process (e.g., with a flat knitting machine with one, two, or more needle beds, or with a circular knitting machine), a warp knitting process, or any other suitable knitting process.” The interior area 244 is interpreted as a lower layer and consists of several rows of knitted stitches obtained by knitting thread using a flat knitting machine.);
- an upper layer consisting of several rows of knitted stitches obtained by knitting a second flat-knitted thread ([0047] – “Referring to FIGS. 3, 4, and 5 together, each knitted loop structure 204 may include an exterior area 240 and an interior area 244”; [0035] – “The knitted component 108 may be formed as an integral one-piece element during a knitting process, such as a weft knitting process (e.g., with a flat knitting machine with one, two, or more needle beds, or with a circular knitting machine), a warp knitting process, or any other suitable knitting process.” The exterior area 240 is interpreted as an upper layer and consists of several rows of knitted stitches obtained by knitting thread using a flat knitting machine.);
wherein the flat-knitted zone consists of the lower layer and the upper layer connected to each other ([0049] – “the exterior and interior areas 240, 244 may be coextensive at a first and second groups 286, 290 of interlayer knit stitches, e.g., at course-wise boundaries of the exterior area 240.” Zones where the exterior and interior areas 240, 244 are connected are interpreted as flat-knitted zones.),
the first and second flat-knitted threads being the same type of flat-knitted thread ([0054] – “either the exterior or interior areas 240, 244 may include one or more courses knitted with thermoplastic yarns, e.g., thermoplastic polyurethane yarns, or yarns or strands of other materials sheathed in thermoplastic (such as a monofilament strand sheathed with thermoplastic polyurethane). To clarify, either of the exterior or interior areas 240, 244 may embody any combination of the aforementioned exemplary materials and additional materials appropriate for forming a knitted component.” Therefore, both the exterior and interior areas 240, 244 comprise a thermoplastic polyurethane yarn since either of the exterior or interior areas 240, 244 may embody any combination of the aforementioned exemplary materials appropriate for forming a knitted component.), and
wherein the tunnel zone consists of the lower layer and the upper layer detached from each other to define a containment pocket to allow functional elements to pass and be kept in place ([0055] – “The one or more knitted loop structures 204 may receive a lace 236, strand, strap, or other object through passageways 232 formed by the exterior and interior areas 240, 244.”).
Regarding claim 2, Aceves Tinajero discloses the knitted article of claim 1, wherein the first and second flat-knitted threads are the same kind of flat-knitted thread at the tunnel zone ([0054] – “either the exterior or interior areas 240, 244 may include one or more courses knitted with thermoplastic yarns, e.g., thermoplastic polyurethane yarns, or yarns or strands of other materials sheathed in thermoplastic (such as a monofilament strand sheathed with thermoplastic polyurethane). To clarify, either of the exterior or interior areas 240, 244 may embody any combination of the aforementioned exemplary materials and additional materials appropriate for forming a knitted component.” Therefore, both the exterior and interior areas 240, 244 comprise a thermoplastic polyurethane yarn since either of the exterior or interior areas 240, 244 may embody any combination of the aforementioned exemplary materials appropriate for forming a knitted component.).
Regarding claim 3, Aceves Tinajero discloses the knitted article of claim 1, wherein the first flat-knitted thread is different from the second flat-knitted thread at the tunnel zone ([0054] – “the interior area 244 may include one or more elasticated yarns with relatively high stretch. Suitable elasticated yarns may incorporate elastane fiber(s), such as those available from E.I. DuPont de Nemours Company under the LYCRA trademark.” Therefore, when an elasticized yarn is added to the interior area 244, the flat-knitted threads differ.).
Regarding claim 4, Aceves Tinajero discloses the knitted article of claim 1, wherein each tunnel zone comprises at least an inlet opening for inserting a functional element into the containment pocket (first and second openings 272, 274; [0055] – “The one or more knitted loop structures 204 may receive a lace 236, strand, strap, or other object through passageways 232 formed by the exterior and interior areas 240, 244.”).
Regarding claim 5, Aceves Tinajero discloses the knitted article of claim 1, wherein the first and second flat-knitted threads comprise natural fibers, including cotton and wool, and/or synthetic fibers including polyester and polyamide ([0054] – “either the exterior or interior areas 240, 244 may include one or more courses knitted with thermoplastic yarns, e.g., thermoplastic polyurethane yarns, or yarns or strands of other materials sheathed in thermoplastic (such as a monofilament strand sheathed with thermoplastic polyurethane). To clarify, either of the exterior or interior areas 240, 244 may embody any combination of the aforementioned exemplary materials and additional materials appropriate for forming a knitted component.” Thermoplastic polyurethane yarns are synthetic fibers.).
Regarding claim 6, Aceves Tinajero discloses the knitted article of claim 1, wherein the first and second flat-knitted threads comprise synthetic fibers including polyester and polyamide ([0054] – “either the exterior or interior areas 240, 244 may include one or more courses knitted with thermoplastic yarns, e.g., thermoplastic polyurethane yarns, or yarns or strands of other materials sheathed in thermoplastic (such as a monofilament strand sheathed with thermoplastic polyurethane). To clarify, either of the exterior or interior areas 240, 244 may embody any combination of the aforementioned exemplary materials and additional materials appropriate for forming a knitted component.” Thermoplastic polyurethane yarns are synthetic fibers.).
Regarding claim 7, Aceves Tinajero discloses the knitted article of claim 1, wherein the lower layer and the upper layer of the tunnel zone are knitted together in several stitching points, the stitching points defining a contour that delimits the tunnel zone from an adjacent flat-knitted zone ([0049] – “the exterior and interior areas 240, 244 may be coextensive at a first and second groups 286, 290 of interlayer knit stitches, e.g., at course-wise boundaries of the exterior area 240.” First and second groups 286, 290 of interlayer knit stitches are the stitching points which define the boundary between the tunnel zone and the adjacent flat-knitted zone.).
Regarding claim 14, Aceves Tinajero discloses a method for making a knitted article, in particular for an orthopaedic brace, including at least one flat-knitted zone and at least one tunnel zone (Abstract – “In one aspect of the disclosure, a knitted component for use in an article of footwear may include a first layer with a multi-bed first area having a first surface and an opposite facing second surface. The knitted component may include a second layer with a second area overlapping the first area.”), comprising the following steps:
- knitting a first flat-knitted thread over several rows of knitted stitches so as to make a lower layer ([0047] – “Referring to FIGS. 3, 4, and 5 together, each knitted loop structure 204 may include an exterior area 240 and an interior area 244”; [0035] – “The knitted component 108 may be formed as an integral one-piece element during a knitting process, such as a weft knitting process (e.g., with a flat knitting machine with one, two, or more needle beds, or with a circular knitting machine), a warp knitting process, or any other suitable knitting process.” The interior area 244 is interpreted as a lower layer and consists of several rows of knitted stitches obtained by knitting thread using a flat knitting machine.);
- knitting a second flat-knitted thread over several rows of knitted stitches so as to make an upper layer ([0047] – “Referring to FIGS. 3, 4, and 5 together, each knitted loop structure 204 may include an exterior area 240 and an interior area 244”; [0035] – “The knitted component 108 may be formed as an integral one-piece element during a knitting process, such as a weft knitting process (e.g., with a flat knitting machine with one, two, or more needle beds, or with a circular knitting machine), a warp knitting process, or any other suitable knitting process.” The exterior area 240 is interpreted as an upper layer and consists of several rows of knitted stitches obtained by knitting thread using a flat knitting machine.),
wherein the flat-knitted thread of the upper layer is alternatively processed jointly with or independently of the lower layer to, respectively, make a flat-knitted zone or a tunnel zone so as to define a containment pocket to allow functional elements to pass and be kept in place ([0049] – “the exterior and interior areas 240, 244 may be coextensive at a first and second groups 286, 290 of interlayer knit stitches, e.g., at course-wise boundaries of the exterior area 240.” Zones where the exterior and interior areas 240, 244 are connected are interpreted as flat-knitted zones. [0055] – “The one or more knitted loop structures 204 may receive a lace 236, strand, strap, or other object through passageways 232 formed by the exterior and interior areas 240, 244.” Therefore, where the threads of the exterior area 240 are processed jointly with the interior area 244, a flat-knitted zone is formed, and where they are processed independently, they form a tunnel zone.);
wherein the first and second flat-knitted threads being the same type of flat-knitted thread at each flat-knitted zone ([0054] – “either the exterior or interior areas 240, 244 may include one or more courses knitted with thermoplastic yarns, e.g., thermoplastic polyurethane yarns, or yarns or strands of other materials sheathed in thermoplastic (such as a monofilament strand sheathed with thermoplastic polyurethane). To clarify, either of the exterior or interior areas 240, 244 may embody any combination of the aforementioned exemplary materials and additional materials appropriate for forming a knitted component.” Therefore, both the exterior and interior areas 240, 244 comprise a thermoplastic polyurethane yarn since either of the exterior or interior areas 240, 244 may embody any combination of the aforementioned exemplary materials appropriate for forming a knitted component.).
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) 8-11 and 15-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2019/0037966 (Aceves Tinajero et al.) in view of US 2020/0048800 (McFarland, II et al.).
Regarding claim 8, Aceves Tinajero discloses the knitted article of claim 1.
Aceves Tinajero does not disclose including at least a padded zone having cushioning properties different from the flat-knitted zone and consisting of a padding layer interposed between the lower layer and an intermediate layer, the padding layer being obtained by a padding yarn which is different from each flat-knitted thread, and which comprises at least one bundle of padding threads, the intermediate layer consisting of several rows of knitted stitches obtained by knitting the first flat-knitted thread.
However, McFarland discloses tubular knit structures 408, 410. The tubular knit structures 408, 410 are interpreted as tunnel zones which are analogous to the tunnel zones in Aceves Tinajero. [0055] – “the passages may receive a floating or inlaid strand 422”; [0059] – “In some embodiments, the inlaid strand 422 may be referred to as a “cushioning yarn””; [0059] – “When the passage 420 of a second tubular knit structure 410 is intersected by the non-tubular webbed region 412, the inlaid strand may be inlaid through the webbed region 412, or may be incorporated into the knit structure of the webbed region 412.” When the inlaid strand 422 is incorporated into the knit structure of the webbed region 412, an intermediate layer is formed since the inlaid strand is interposed between a lower layer and an intermediate layer of the webbed region 412. [0059] – “Two non-limiting exemplary examples of cushioning yarns are a 5500 denier version and a 3500 denier version of multifilament polyester yarn that has been texturized to loft. Particular examples are marketed as “LILY” yarns and are sold by Sawada Hong Kong Co. Ltd., though other yarns from other manufacturers may also be cushioning yarns.”
Therefore, it would have been obvious to an artisan of ordinary skill before the effective filing date to modify Aceves Tinajero to comprise an inlaid strand of McFarland incorporated into the interior area 244 as taught by McFarland. A skilled artisan would have been motivated to do so because McFarland teaches that the inlaid strand provides thickness to the knitted component which provides a buffer between the back surface and any direct heat source applied to the front surface during processing, which may be advantageous for preventing scorching of materials located in yarns forming the back surface ([0059]). A skilled artisan would have a reasonable expectation of success given that all references are analogous and drawn to footwear with tubular knit structures forming tunnels.
As a result, Aceves Tinajero in view of McFarland teaches including at least a padded zone having cushioning properties different from the flat-knitted zone and consisting of a padding layer interposed between the lower layer and an intermediate layer (The inlaid strand of McFarland is interpreted as a padding layer and is incorporated into the interior area 244. The threads of the interior area 244 between the inlaid strand and the exterior area 240 are interpreted as forming an intermediate layer. The inlaid strand is made of a different material than the threads of Aceves Tinajero and therefore has different properties.),
the padding layer being obtained by a padding yarn which is different from each flat-knitted thread ([0059] of McFarland – “Two non-limiting exemplary examples of cushioning yarns are a 5500 denier version and a 3500 denier version of multifilament polyester yarn that has been texturized to loft. Particular examples are marketed as “LILY” yarns and are sold by Sawada Hong Kong Co. Ltd.”), and
which comprises at least one bundle of padding threads ([0059] of McFarland – “Two non-limiting exemplary examples of cushioning yarns are a 5500 denier version and a 3500 denier version of multifilament polyester yarn that has been texturized to loft. Particular examples are marketed as “LILY” yarns and are sold by Sawada Hong Kong Co. Ltd.” Yarns are bundles of threads.),
the intermediate layer consisting of several rows of knitted stitches obtained by knitting the first flat-knitted thread (The threads of the interior area 244 between the inlaid strand and the exterior area 240 are interpreted as forming an intermediate layer and consist of several rows of knitted stitches of the interior area 244.).
Regarding claim 9, Aceves Tinajero in view of McFarland teaches the knitted article of claim 8, wherein the padding yarn is laid in at least one row of knitted stitches of the lower layer and/or of the upper layer, the padding yarn being laid into at least one knitted stitch of the lower layer and/or of the upper layer (The threads of the interior area 244 between the inlaid strand and the exterior area 240 are interpreted as forming an intermediate layer and consist of several rows of knitted stitches of the interior area 244.).
Regarding claim 10, Aceves Tinajero in view of McFarland teaches the knitted article of claim 9, wherein the padded zone is located at a tunnel zone so that each tunnel is knitted onto that padded zone (The inlaid strand is inlaid within the passageways 232 of Aceves Tinajero as taught by McFarland in the combination above.).
Regarding claim 11, Aceves Tinajero in view of McFarland teaches the knitted article of claim 10, wherein the tunnel zone extends over a number of rows of knitted stitches less than the number of rows of knitted stitches of the intermediate or lower layer of the padded zone on which it is knitted onto (The tunnel zone extends over a number of rows of knitted stitches less than the number of rows of knitted stitches of the lower layer of the padded zone on which it is knitted onto since the lower layer of the padded zone is the interior area 244.).
Regarding claim 15, Aceves Tinajero discloses the method of claim 14.
Aceves Tinajero does not disclose a step of realizing a padded zone having cushioning properties different from at least each flat-knitted zone, the padded zone being located at a tunnel zone so that each tunnel is knitted onto that padded zone, the step of realizing a padded zone comprising a step of making a padded layer by laying in at least one row of knitted stitches of the lower layer and of an intermediate layer a padding yarn different from the flat-knitted thread, the padding yarn comprising at least one bundle of padding threads, the intermediate layer being interposed lower and upper layers.
However, McFarland discloses tubular knit structures 408, 410. The tubular knit structures 408, 410 are interpreted as tunnel zones which are analogous to the tunnel zones in Aceves Tinajero. [0055] – “the passages may receive a floating or inlaid strand 422”; [0059] – “In some embodiments, the inlaid strand 422 may be referred to as a “cushioning yarn””; [0059] – “When the passage 420 of a second tubular knit structure 410 is intersected by the non-tubular webbed region 412, the inlaid strand may be inlaid through the webbed region 412, or may be incorporated into the knit structure of the webbed region 412.” When the inlaid strand 422 is incorporated into the knit structure of the webbed region 412, an intermediate layer is formed since the inlaid strand is interposed between a lower layer and an intermediate layer of the webbed region 412. [0059] – “Two non-limiting exemplary examples of cushioning yarns are a 5500 denier version and a 3500 denier version of multifilament polyester yarn that has been texturized to loft. Particular examples are marketed as “LILY” yarns and are sold by Sawada Hong Kong Co. Ltd., though other yarns from other manufacturers may also be cushioning yarns.”
Therefore, it would have been obvious to an artisan of ordinary skill before the effective filing date to modify Aceves Tinajero to comprise an inlaid strand of McFarland incorporated into the interior area 244 as taught by McFarland. A skilled artisan would have been motivated to do so because McFarland teaches that the inlaid strand provides thickness to the knitted component which provides a buffer between the back surface and any direct heat source applied to the front surface during processing, which may be advantageous for preventing scorching of materials located in yarns forming the back surface ([0059]). A skilled artisan would have a reasonable expectation of success given that all references are analogous and drawn to footwear with tubular knit structures forming tunnels.
As a result, Aceves Tinajero in view of McFarland teaches a step of realizing a padded zone having cushioning properties different from at least each flat-knitted zone (The inlaid strand of McFarland is interpreted as a padding layer and is incorporated into the interior area 244. The threads of the interior area 244 between the inlaid strand and the exterior area 240 are interpreted as forming an intermediate layer. The inlaid strand is made of a different material than the threads of Aceves Tinajero and therefore has different properties.),
the padded zone being located at a tunnel zone so that each tunnel is knitted onto that padded zone (The inlaid strand is inlaid within the passageways 232 of Aceves Tinajero as taught by McFarland in the combination above.),
the step of realizing a padded zone comprising a step of making a padded layer by laying in at least one row of knitted stitches of the lower layer and of an intermediate layer a padding yarn different from the flat-knitted thread (The inlaid strand of McFarland is interpreted as a padding layer and is incorporated into the interior area 244. The threads of the interior area 244 between the inlaid strand and the exterior area 240 are interpreted as forming an intermediate layer. [0059] of McFarland – “Two non-limiting exemplary examples of cushioning yarns are a 5500 denier version and a 3500 denier version of multifilament polyester yarn that has been texturized to loft. Particular examples are marketed as “LILY” yarns and are sold by Sawada Hong Kong Co. Ltd.”),
the padding yarn comprising at least one bundle of padding threads ([0059] of McFarland – “Two non-limiting exemplary examples of cushioning yarns are a 5500 denier version and a 3500 denier version of multifilament polyester yarn that has been texturized to loft. Particular examples are marketed as “LILY” yarns and are sold by Sawada Hong Kong Co. Ltd.” Yarns are bundles of threads.),
the intermediate layer being interposed lower and upper layers (The threads of the interior area 244 between the inlaid strand and the exterior area 240 are interpreted as forming an intermediate layer.).
Regarding claim 16, Aceves Tinajero in view of McFarland teaches the method of claim 14, wherein each tunnel is made with an extension of rows of knitted stitches less than the number of rows of knitted stitches of the intermediate layer of the padded or flat-knitted zone on which it is knitted onto (The tunnel zone extends over a number of rows of knitted stitches less than the number of rows of knitted stitches of the lower layer of the padded zone on which it is knitted onto since the lower layer of the padded zone is the interior area 244.).
Claim(s) 12 and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2019/0037966 (Aceves Tinajero et al.) in view of JP H06132070 (Kitamura).
Regarding claim 12, Aceves Tinajero discloses a kit for an orthopaedic brace (Abstract – “In one aspect of the disclosure, a knitted component for use in an article of footwear may include a first layer with a multi-bed first area having a first surface and an opposite facing second surface. The knitted component may include a second layer with a second area overlapping the first area”; See Figs. 1-7.), comprising:
- a knitted article, in particular for an orthopaedic brace, including at least one flat-knitted zone and at least one tunnel zone suitable for the integration of functional elements, such as tensioning cables (Abstract – “In one aspect of the disclosure, a knitted component for use in an article of footwear may include a first layer with a multi-bed first area having a first surface and an opposite facing second surface. The knitted component may include a second layer with a second area overlapping the first area.”), comprising:
- a lower layer consisting of several rows of knitted stitches obtained by knitting a first flat-knitted thread ([0047] – “Referring to FIGS. 3, 4, and 5 together, each knitted loop structure 204 may include an exterior area 240 and an interior area 244”; [0035] – “The knitted component 108 may be formed as an integral one-piece element during a knitting process, such as a weft knitting process (e.g., with a flat knitting machine with one, two, or more needle beds, or with a circular knitting machine), a warp knitting process, or any other suitable knitting process.” The interior area 244 is interpreted as a lower layer and consists of several rows of knitted stitches obtained by knitting thread using a flat knitting machine.);
- an upper layer consisting of several rows of knitted stitches obtained by knitting a second flat-knitted thread ([0047] – “Referring to FIGS. 3, 4, and 5 together, each knitted loop structure 204 may include an exterior area 240 and an interior area 244”; [0035] – “The knitted component 108 may be formed as an integral one-piece element during a knitting process, such as a weft knitting process (e.g., with a flat knitting machine with one, two, or more needle beds, or with a circular knitting machine), a warp knitting process, or any other suitable knitting process.” The exterior area 240 is interpreted as an upper layer and consists of several rows of knitted stitches obtained by knitting thread using a flat knitting machine.);
wherein the flat-knitted zone consists of the lower layer and the upper layer connected to each other ([0049] – “the exterior and interior areas 240, 244 may be coextensive at a first and second groups 286, 290 of interlayer knit stitches, e.g., at course-wise boundaries of the exterior area 240.” Zones where the exterior and interior areas 240, 244 are connected are interpreted as flat-knitted zones.),
the first and second flat-knitted threads being the same type of flat-knitted thread ([0054] – “either the exterior or interior areas 240, 244 may include one or more courses knitted with thermoplastic yarns, e.g., thermoplastic polyurethane yarns, or yarns or strands of other materials sheathed in thermoplastic (such as a monofilament strand sheathed with thermoplastic polyurethane). To clarify, either of the exterior or interior areas 240, 244 may embody any combination of the aforementioned exemplary materials and additional materials appropriate for forming a knitted component.” Therefore, both the exterior and interior areas 240, 244 comprise a thermoplastic polyurethane yarn since either of the exterior or interior areas 240, 244 may embody any combination of the aforementioned exemplary materials appropriate for forming a knitted component.), and
wherein the tunnel zone consists of the lower layer and the upper layer detached from each other to define a containment pocket to allow functional elements to pass and be kept in place ([0055] – “The one or more knitted loop structures 204 may receive a lace 236, strand, strap, or other object through passageways 232 formed by the exterior and interior areas 240, 244.”);
- at least a functional element, such as tensioning cable, configured to be passed and be kept in place in each tunnel zone of the knitted article ([0055] – “The one or more knitted loop structures 204 may receive a lace 236, strand, strap, or other object through passageways 232 formed by the exterior and interior areas 240, 244.”);
Aceves Tinajero does not disclose a guide element configured to be connected to the functional element and to be conveyed through the tunnel areas so as to pass the functional element through the same tunnel areas.
However, Kitamura discloses an insertion rod 11 for inserting heating wires through passageways formed in two pieces of fabrics; See Figs. 3a-3b and 7-8.
Therefore, it would have been obvious to an artisan of ordinary skill before the effective filing date to modify Aceves Tinajero to include an insertion rod as taught by Kitamura. A skilled artisan would have been motivated to do so because Kitamura teaches an insertion rod to assist in guiding a heating wire through fabric tunnels. A skilled artisan would have a reasonable expectation of success given that all references are analogous and drawn to fabric tunnels and passing functional elements therethrough.
As a result, Aceves Tinajero in view of Kitamura teaches a guide element configured to be connected to the functional element and to be conveyed through the tunnel areas so as to pass the functional element through the same tunnel areas (The insertion rod of Kitamura is interpreted as a guide element and is configured to be connected to the functional element and to be conveyed through the tunnel areas so as to pass the functional element through the same tunnel areas.).
Regarding claim 13, Aceves Tinajero in view of Kitamura teaches the kit of claim 12, wherein the guide element comprises a first end bevelled to be inserted through each tunnel zone without damaging each one of the flat-knitted threads, and a second end, opposite to the first end, comprising a coupling portion to which the functional element can be connected (The insertion rod of Kitamura comprises a bevelled end as shown in Fig. 7 and a second end with a coupling portion to which the functional element can be connected.).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
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Claims 1-11 and 14-16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of copending Application No. 18/988,364 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the present application discloses a flat-knitted zone with a tunnel zone and adding a padding zone while the copending application discloses a flat-knitted zone with a padding zone and adding a tunnel zone. This makes them obvious variants of one another since all of the same components are being used but are claimed in different orders.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
1. A knitted article, in particular for an orthopaedic brace, including at least one flat-knitted zone and at least one tunnel zone suitable for the integration of functional elements, such as tensioning cables (Claim 1 – “A knitted article, comprising an orthopaedic brace, with a plurality of zones having different cushioning properties, including at least one flat-knitted zone”; Claim 11 – “comprising at least one tunnel”.), comprising:
- a lower layer consisting of several rows of knitted stitches obtained by knitting a first flat-knitted thread (Claim 1 – “a lower layer consisting of several rows of knitted stitches obtained by knitting a corresponding flat-knitted thread”.);
- an upper layer consisting of several rows of knitted stitches obtained by knitting a second flat-knitted thread (Claim 1 – “an upper layer consisting of several rows of knitted stitches obtained by knitting a corresponding flat-knitted thread”.);
wherein the flat-knitted zone consists of the lower layer and the upper layer connected to each other, the first and second flat-knitted threads being the same type of flat-knitted thread (Claim 1 – “wherein the flat-knitted zone consists of said lower layer and said upper layer connected to each other at ends”; Claim 6 – “wherein the flat-knitted thread comprises synthetic fibers”.), and
wherein the tunnel zone consists of the lower layer and the upper layer detached from each other to define a containment pocket to allow functional elements to pass and be kept in place (Claim 11 – “comprising at least one tunnel consisting of several rows of knitted stitches obtained by knitting a further thread, the at least one tunnel being knitted onto at least one flat-knitted zone and/or onto at least one padded zone so as to define a containment pocket to allow functional elements to pass and be kept in place”.).
2. The knitted article of claim 1, wherein the first and second flat-knitted threads are the same kind of flat-knitted thread at the tunnel zone (Claim 6 – “wherein the flat-knitted thread comprises synthetic fibers”; Claim 12 – “wherein the further thread is a flat- knitted thread”.).
3. The knitted article of claim 1, wherein the first flat-knitted thread is different from the second flat-knitted thread at the tunnel zone (Claim 6 – “wherein the flat-knitted thread comprises synthetic fibers”; Claim 13 – “wherein the further thread is different from a flat-knitted thread”.).
4. The knitted article of claim 1, wherein each tunnel zone comprises at least an inlet opening for inserting a functional element into the containment pocket (Claim 11 – “comprising at least one tunnel consisting of several rows of knitted stitches obtained by knitting a further thread, the at least one tunnel being knitted onto at least one flat-knitted zone and/or onto at least one padded zone so as to define a containment pocket to allow functional elements to pass and be kept in place”.).
5. The knitted article of claim 1, wherein the first and second flat-knitted threads comprise natural fibers, including cotton and wool, and/or synthetic fibers including polyester and polyamide (Claim 5 – “wherein the flat-knitted thread comprises natural fibers”; Claim 6 – “wherein the flat-knitted thread comprises synthetic fibers”.).
6. The knitted article of claim 1, wherein the first and second flat-knitted threads comprise synthetic fibers including polyester and polyamide (Claim 6 – “wherein the flat-knitted thread comprises synthetic fibers”.).
7. The knitted article of claim 1, wherein the lower layer and the upper layer of the tunnel zone are knitted together in several stitching points, the stitching points defining a contour that delimits the tunnel zone from an adjacent flat-knitted zone (Claim 10 – “wherein the padding layer of a first padded zone is interposed between the upper layer and the lower layer only at at least a part of a contour perimeter delimiting the padded zone from another padded zone and from one or more flat-knitted zones”; Claim 14 – “wherein each tunnel extends over a number of rows of knitted stitches less than the number of rows of knitted stitches of the upper or lower layer of the padded or flat-knitted zone on which it is knitted onto”.).
8. The knitted article of claim 1, including at least a padded zone having cushioning properties different from the flat-knitted zone and consisting of a padding layer interposed between the lower layer and an intermediate layer, the padding layer being obtained by a padding yarn which is different from each flat-knitted thread, and which comprises at least one bundle of padding threads, the intermediate layer consisting of several rows of knitted stitches obtained by knitting the first flat-knitted thread (Claim 1 – “a padding layer obtained by a padding yarn different from the flat-knitted thread, the padding yarn comprising at least one bundle of padding threads, wherein the flat-knitted zone consists of said lower layer and said upper layer connected to each other at ends and forming at least one pocket for the padded zone, and wherein the padded zone consists of the padding layer located within the pocket and interposed between the lower layer and the upper layer, for that the padding yarn is laid in at least one row of knitted stitches of the lower layer and/or of the upper layer”.).
9. The knitted article of claim 8, wherein the padding yarn is laid in at least one row of knitted stitches of the lower layer and/or of the upper layer, the padding yarn being laid into at least one knitted stitch of the lower layer and/or of the upper layer (Claim 1 – “a padding layer obtained by a padding yarn different from the flat-knitted thread, the padding yarn comprising at least one bundle of padding threads, wherein the flat-knitted zone consists of said lower layer and said upper layer connected to each other at ends and forming at least one pocket for the padded zone, and wherein the padded zone consists of the padding layer located within the pocket and interposed between the lower layer and the upper layer, for that the padding yarn is laid in at least one row of knitted stitches of the lower layer and/or of the upper layer”.).
10. The knitted article of claim 9, wherein the padded zone is located at a tunnel zone so that each tunnel is knitted onto that padded zone (Claim 11 – “at least one tunnel consisting of several rows of knitted stitches obtained by knitting a further thread, the at least one tunnel being knitted onto at least one flat-knitted zone and/or onto at least one padded zone so as to define a containment pocket to allow functional elements to pass and be kept in place”.).
11. The knitted article of claim 10, wherein the tunnel zone extends over a number of rows of knitted stitches less than the number of rows of knitted stitches of the intermediate or lower layer of the padded zone on which it is knitted onto (Claim 14 – “wherein each tunnel extends over a number of rows of knitted stitches less than the number of rows of knitted stitches of the upper or lower layer of the padded or flat-knitted zone on which it is knitted onto”.).
14. A method for making a knitted article, in particular for an orthopaedic brace, including at least one flat-knitted zone and at least one tunnel zone (Claim 15 – “A method for making a knitted article comprising an orthopaedic brace, with a plurality of zones having different cushioning properties, including at least one flat-knitted zone and at least one padded zone, comprising the following steps”; Claim 16 – “a step of knitting a further thread over several rows of knitted stitches so as to make at least one tunnel, the at least one tunnel being knitted in on at least one flat-knitted zone and on at least one padded zone so as to define a containment pocket to allow functional elements to pass and be kept in place”.), comprising the following steps:
- knitting a first flat-knitted thread over several rows of knitted stitches so as to make a lower layer (Claim 15 – “knitting a flat-knitted thread over several rows of knitted stitches so as to make a lower layer”.);
- knitting a second flat-knitted thread over several rows of knitted stitches so as to make an upper layer, wherein the flat-knitted thread of the upper layer is alternatively processed jointly with or independently of the lower layer to, respectively, make a flat-knitted zone or a tunnel zone so as to define a containment pocket to allow functional elements to pass and be kept in place (Claim 15 – “knitting a flat-knitted thread over several rows of knitted stitches so as to make an upper layer, wherein the flat-knitted thread of the upper layer is alternatively processed jointly with or independently of the lower layer to, respectively, make a flat- knitted zone or a padded zone, wherein the lower layer and upper layer are knitted to form at least a pocket for the padded zone”.);
wherein the first and second flat-knitted threads being the same type of flat-knitted thread at each flat-knitted zone (Claim 15 – “knitting a flat-knitted thread over several rows of knitted stitches so as to make a lower layer”; Claim 15 – “knitting a flat-knitted thread over several rows of knitted stitches so as to make an upper layer”.).
15. The method of claim 14, comprising a step of realizing a padded zone having cushioning properties different from at least each flat-knitted zone, the padded zone being located at a tunnel zone so that each tunnel is knitted onto that padded zone, the step of realizing a padded zone comprising a step of making a padded layer by laying in at least one row of knitted stitches of the lower layer and of an intermediate layer a padding yarn different from the flat-knitted thread, the padding yarn comprising at least one bundle of padding threads, the intermediate layer being interposed lower and upper layers (Claim 15 – “a padded zone, wherein the lower layer and upper layer are knitted to form at least a pocket for the padded zone;- making a padded layer within the pocket and between the lower layer and the upper layer of a padded zone by laying in at least one row of knitted stitches of the lower layer or of the upper layer a padding yarn different from the flat-knitted thread, the padding yarn comprising at least one bundle of padding threads.”.).
16. The method of claim 14, wherein each tunnel is made with an extension of rows of knitted stitches less than the number of rows of knitted stitches of the intermediate layer of the padded or flat-knitted zone on which it is knitted onto (Claim 17 – “wherein each tunnel is made with an extension of rows of knitted stitches less than the number of rows of knitted stitches of the upper layer of the padded or flat-knitted zone on which it is knitted onto”.).
Claims 12 and 13 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim claims 1 and 11 of copending Application No. 18/988,364 in view of JP H06132070 (Kitamura).
This is a provisional nonstatutory double patenting rejection.
12. A kit for an orthopaedic brace (Claim 1 – “A knitted article”.), comprising:
- a knitted article, in particular for an orthopaedic brace, including at least one flat-knitted zone and at least one tunnel zone suitable for the integration of functional elements, such as tensioning cables (Claim 1 – “A knitted article, comprising an orthopaedic brace, with a plurality of zones having different cushioning properties, including at least one flat-knitted zone”; Claim 11 – “comprising at least one tunnel”.), comprising:
- a lower layer consisting of several rows of knitted stitches obtained by knitting a first flat-knitted thread (Claim 1 – “a lower layer consisting of several rows of knitted stitches obtained by knitting a corresponding flat-knitted thread”.);
- an upper layer consisting of several rows of knitted stitches obtained by knitting a second flat-knitted thread (Claim 1 – “an upper layer consisting of several rows of knitted stitches obtained by knitting a corresponding flat-knitted thread”.);
wherein the flat-knitted zone consists of the lower layer and the upper layer connected to each other, the first and second flat-knitted threads being the same type of flat-knitted thread (Claim 1 – “wherein the flat-knitted zone consists of said lower layer and said upper layer connected to each other at ends”; Claim 6 – “wherein the flat-knitted thread comprises synthetic fibers”.), and
wherein the tunnel zone consists of the lower layer and the upper layer detached from each other to define a containment pocket to allow functional elements to pass and be kept in place (Claim 11 – “comprising at least one tunnel consisting of several rows of knitted stitches obtained by knitting a further thread, the at least one tunnel being knitted onto at least one flat-knitted zone and/or onto at least one padded zone so as to define a containment pocket to allow functional elements to pass and be kept in place”.);
- at least a functional element, such as tensioning cable, configured to be passed and be kept in place in each tunnel zone of the knitted article (Claim 11 – “comprising at least one tunnel consisting of several rows of knitted stitches obtained by knitting a further thread, the at least one tunnel being knitted onto at least one flat-knitted zone and/or onto at least one padded zone so as to define a containment pocket to allow functional elements to pass and be kept in place”.);
Copending Application 18/988,364 does not disclose a guide element configured to be connected to the functional element and to be conveyed through the tunnel areas so as to pass the functional element through the same tunnel areas.
However, Kitamura discloses an insertion rod 11 for inserting heating wires through passageways formed in two pieces of fabrics; See Figs. 3a-3b and 7-8.
Therefore, it would have been obvious to an artisan of ordinary skill before the effective filing date to modify Copending Application 18/988,364 to include an insertion rod as taught by Kitamura. A skilled artisan would have been motivated to do so because Kitamura teaches an insertion rod to assist in guiding a heating wire through fabric tunnels. A skilled artisan would have a reasonable expectation of success given that all references are analogous and drawn to fabric tunnels and passing functional elements therethrough.
13. The kit of claim 12, wherein the guide element comprises a first end bevelled to be inserted through each tunnel zone without damaging each one of the flat-knitted threads, and a second end, opposite to the first end, comprising a coupling portion to which the functional element can be connected (The insertion rod of Kitamura comprises a bevelled end as shown in Fig. 7 and a second end with a coupling portion to which the functional element can be connected.).
Conclusion
The following prior art made of record and not relied upon are considered pertinent to applicant's disclosure.
US 2018/0042754 (Ingimundarson et al.)
US 7,380,421 (Liu)
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/SETH R. BROWN/Examiner, Art Unit 3786
/RACHAEL E BREDEFELD/Supervisory Patent Examiner, Art Unit 3786