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 .
Specification
The disclosure is objected to because it contains an embedded hyperlink and/or other form of browser-executable code. Applicant is required to delete the embedded hyperlink and/or other form of browser-executable code; references to websites should be limited to the top-level domain name without any prefix such as http:// or other browser-executable code. See MPEP § 608.01. For example, https://en.wikipedia.org/wiki/Animal_fiber_)
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 20 is 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.
Claim 20 recites the limitation “the fabric has no or negligible scroop to a human ear.” The instant disclosure states “’[s]croop” is another aesthetic characteristic that describes a subtle, but undesirable sound typically generated by synthetic fiber fabrics when rubbed together between thumb and forefinger, but not by certain “noble” fiber fabrics, such as fine wool. Preferred embodiments of this disclosure may result in protein-synthetic polymer fabrics that have no or negligible scroop-akin to natural, high-quality “noble” fabrics.” It is unclear how much scroop is allowed while still being considered “negligible scroop.” Additionally, the human level of hearing is not standardized, and it unclear the decibel or level of sound that would be considered detected by human ear.
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.
Claim 1 is rejected under 35 U.S.C. 102(a)(a) as being anticipated by USPN 5,134,031 to Kagechi.
Regarding claim 1, Kagechi teaches a yarn formed of spinning polyurethane resin kneaded with pulverized oxhide or cowhide (protein) at 20 wt% into multiple number of fibers bundled into a 100 denier yarn (Kagechi, abstract, col. 6 lines 40-60), reading on a yarn comprising a plurality of fiber, each fiber comprising a composition including protein and a synthetic polymer compounded together and each fiber comprising at least 0.5% protein by weight.
Claim Rejections - 35 USC § 102 /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.
Claims 2 and 20 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over USPN 5,134,031 to Kagechi, remaining as applied to claim 1.
Regarding claims 2 and 20, Kagechi teaches the fiber being a wet-spun fiber (Kagechi, col. 2 lines 17-25, col. 7 lines 45-63). Kagechi teaches yarn being knitted or woven as a fabric (Id., col. 4 lines 23-55).
The limitation “melt-spun” fiber is interpreted as a product-by-process limitation. Absent a showing to the contrary, it is Examiner's position that the article of the applied prior art is identical to or only slightly different than the claimed article. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 227 USPQ 964, 966 (Fed. Cir. 1985). The burden has been shifted to Applicant to show unobvious difference between the claimed product and the prior art product. In re Marosi, 218 USPQ 289 (Fed. Cir. 1983). The applied prior art either anticipated or strongly suggested the claimed subject matter. It is noted that if Applicant intends to rely on Examples in the specification or in a submitted declaration to show unobviousness, Applicant should clearly state how the Examples of the present invention are commensurate in scope with the claims and how the Comparative Examples are commensurate in scope with the applied prior art.
Regarding the claimed scroop, in general, a limitation is inherent if it is the “natural result flowing from” the explicit disclosure of the prior art. Schering Corp. v. Geneva Pharms., Inc., 339 F.3d 1373, 1379 (Fed. Cir. 2003). Therefore, although the prior art does not disclose this feature, the claimed properties are deemed to be inherent to the structure in the prior art since the Kagechi reference teaches an invention with a substantially similar structure and chemical composition as the claimed invention. Kagechi teaches a fiber formed from a mixture of protein with polyurethane in the claimed amount. Products of identical structure and composition cannot have mutually exclusive properties. The burden is on the Applicants to prove otherwise.
Claim Rejections - 35 USC § 103
Claims 3-7 are rejected under 35 U.S.C. 103 as being unpatentable over USPN 5,134,031 to Kagechi, as applied to claims 1-2 and 20 above.
Regarding claims 3-7, Kagechi teaches a yarn formed of highly moisture-absorptive fiber, including having a core-sheath structure (claim 4), wherein the core is formed of a other fiber material and coated with a composite comprising one or more kinds of animal protein, including keratin (claim 8), pulverized into very fine powder (protein particles) and kneaded (compounded) with a polymer of synthetic fiber, semi-synthetic fiber, regenerated fiber or polymer of chemical fiber material consisting of a mixture of more than two kinds of these polymers (Kagechi, abstract, Fig. 7, col. 1 lines 5-10, col. 1 line 47-col. 3 line 25, col. 4 lines 23-54, col. 5 lines 33-45), reading on a yarn comprising a fiber comprising a composition including protein and a synthetic polymer compounded together. Kagechi teaches the addition rate of animal protein mixed and kneaded with the polymer is 1 to 99 wt.% (Id., col. 15-17), reading on the outer sheath comprising at least 1% protein by weight (claim 4). As the core is formed of a other fiber material and does not have the one or more kinds of animal protein, the inner core of the fiber by weight comprises less than 1% protein by weight (claim 5, specifically less than 0.1% protein by weight, and has an outer portion, or sheath, with a higher density of protein particles than an inner portion, or core (claim 3, 7). Kagechi teaches yarn formed of bundle fibers (Id., col. 5 lines 33-45). While Kagechi does not explicitly teach a yarn formed a plurality of the core-sheath fibers, it would have been obvious to one of ordinary skill in the art before the effective filing date to form the yarn of Kagechi, wherein the fibers within the bundle forming yarn comprise the core-sheath structure, motivated by the desire of using disclosed moisture-absorptive fibers structure and taught as being used in a bundle to form a yarn.
Regarding claim 6, Kagechi teaches a specific embodiment comprising a core of 3 denier that is coated with the kneaded composition to form a 7 denier fiber of core-sheath structure (Kagechi, col. 7 lines 45-63), resulting in the sheath being about 57% by weight of the respective core-sheath fiber (skin-core fiber).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over USPN 5,134,031 to Kagechi, as applied to claims 1-7 and 20 above, as evidenced Handbook of Nonwoven Filter Media to Hutten.
Regarding claim 8, Kagechi teaches the animal protein including keratin and the synthetic fiber material including polyethylene (Kagechi, col. 2 lines 5-17, col. 3 lines 20-22), reading on the synthetic polymer having a melting point less than 250 C, as evidence by Hutten (Hutten, Table).
Claims 1-2, 4-5, 8, 11, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over US Pub. No. 2021/0079562 to Goormachtigh in view of USPN 6,355,772 to Gruber.
Regarding claims 1-2, 4-5, 8, 11, and 20, Goormachtigh teaches a yarn comprising a composite filament (skin-core fiber, claim 4) comprising at least a first biodegradable polymer, such as polylactic acid, as a sheath (outer sheath, claim 4) and at least a second biodegradable polymer as the core (inner core, claim 4), such as by bi-component extrusion and hot-met-extrusion (melt-spun, claim 2) (Goormachtigh, abstract, Fig. 3, para 0011-0014, 0033, 0038, 0063). Goormachtigh teaches a woven fabric (claim 20) from the composite filaments (Id., para 0014, 0049-0051). Goormachtigh teaches yarn referring to two or more fibers and can be multifilament (filament yarn, claim 11), continuous filament, bulked continuous filament, and spun yarn (Id., para 0063). While Goormachtigh does not explicitly teach the yarn comprising a plurality of the composite fiber, it would have been obvious to one of ordinary skill in the art before the effective filing date to form the yarn, wherein the yarn comprising a plurality of composites fibers, motivated by the desire of forming conventionally known and disclose yarns. Goormachtigh teaches the first biodegradable polymer layer and/or the second biodegradable polymer layer comprising a filler (Id., para 0129), reading on each fiber comprising a composition including a filler and a synthetic polymer. Goormachtigh teaches an embodiment, wherein the filler is chalk and the first biodegradable polymer layer and/or the second biodegradable polymer layer comprising at least 1.0 percent to at most 5.0 percent by weight chalk (Id., para 0129, 0132), reading on each of the composite filament comprising 1 to 5 percent by weight filler.
Goormachtigh does not teach the filler being a protein, such as keratin (claim 8).
However, Gruber teaches a nonwoven fabric formed from a polylactide polymer formed by melt spinning, such as meltblown process or spunbond process (melt spun) (Fru, abstract, col. 5 lines 35-57, col. 8 lines 37-50). Gruber teaches the of filler in the composition to help prevent blocking or sticking, including the use of keratin (Id., col. 12 lines 10-27).
It would have been obvious to one of ordinary skill in the art before the effective filing date to form the yarn of Goormachtigh, wherein the filler is the keratin filler of Gruber, motivated by the desire of using conventionally known fillers predictably suitable for use with polylactic acid in fiber formation and by the desire to help blocking or sticking.
Regarding claims 5, the prior art combination teaches an embodiment, wherein the first biodegradable polymer layer and/or the second biodegradable polymer layer comprising at least 1.0 percent to at most 5.0 percent by weight chalk and (Goormachtigh, para 0129, 0132) and the filament comprising from 10% by weight to 40% by weight of the second biodegradable polymer and at least 60% by weight to at most 90% by weight of the first biodegradable polymer (Id., para 0140), therefore encompassing filler in the first polymer layer, or sheath, (outer sheath of each of the plurality if skin-sore fibers comprise at least 1% protein by weight) and no filler in the second polymer layer, or core (inner core of each of the plurality of skin-core fiber by weight comprises less than 1% protein by weight.
Regarding claim 8, the prior art combination teaches the polylactic acid having a melting point below 250C (Gruber, col.4 lines 35-44, col. 15 line 50 – col. 18 line 62, Table 4, Fig. 2).
Regarding claim 20 and the claimed scroop, in general, a limitation is inherent if it is the “natural result flowing from” the explicit disclosure of the prior art. Schering Corp. v. Geneva Pharms., Inc., 339 F.3d 1373, 1379 (Fed. Cir. 2003). Therefore, although the prior art does not disclose this feature, the claimed properties are deemed to flow naturally from the structure of the prior art combination since the prior combination teaches an invention with a substantially similar structure and chemical composition as the claimed invention. The prior art combination teaches a fabric formed of a yarn comprising biodegradable fibers comprising synthetic polymer in combination with keratin in the claimed amounts. Products of identical structure and composition cannot have mutually exclusive properties. The burden is on the Applicants to prove otherwise.
Claims 9-10, 12-14, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over US Pub. No. 2021/0079562 to Goormachtigh in view of USPN 6,355,772 to Gruber, as applied to claims 1-2, 4-5, 8, 11, and 20 above, further in view of JP 2003268625 to Yagawa.
NOTE: The English Machine Translation of JP 2003268625 is being used for prior art mapping.
Regarding claims 9-10, 12-14, and 19, the prior art combination teaches the width or diameter of the filaments being at least 10 microns to at most 100 microns (Goormachtigh, para 0137-0138). While the reference does not specifically teach the claimed range of between 8 and 20 microns, the disclosed range of the prior art combination overlaps with the instant claimed range. It should be noted that 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 re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). The existence of overlapping or encompassing ranges shifts the burden to Applicant to show that his invention would not have been obvious. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003). Furthermore, it would have been obvious to one of ordinary skill in the art before the effective filing date to adjust, vary, and optimize the diameter, such as within the claimed range, motivated by the desire to successfully practice the invention of the prior art based on the totality of the teachings of the prior art. The prior art combination teaches influencing the speed of degradation of the biodegradable fabric (Id., para 0001). The prior art combination teaches yarn being a spun yarn (Id., para 0063) which is known in the art to be formed form staple fiber (staple yarn, claim 12-13), as evidenced by Celanese (Celanese, p. 4). The prior art combination teaches staple fiber having a cut fiber length from 20 to 120 mm (claim 12-13) (Id., para 0062).
The prior art combination does not teach an outer surface of each outer sheath including a plurality of circumferential surface cracks (claim 9, 13), specifically spaced apart by between 0.5 and 2 microns (claim 10, 14).
However, Yagawa teaches a polylactide fiber having a bellow structure in the fiber direction of 5 or more ribs per 10 micron fiber length (Yagawa, abstract, p. 2-3), reading on a plurality of circumferential surface cracks, the valley between ridges, being space apparat by 2 microns or less. Yagawa teaches 5 or more ridges results in sufficient surface area to control alkali decomposition rate (Id., p.2). Yagawa teaches the initial tensile strength of the polylactic acid fiber being preferably 3.0 cN/dtex (Id.). While Yagawa teaches the decomposition rate with regards to concrete applications, one of ordinary skill in the art before the effective filing date would appreciate that biodegradation would also follow similar philosophy and design.
It would have been obvious to one of ordinary skill in the art before the effective filing date to form the composite filament of Yagawa, wherein the outer surface contains the bellow structure of Yagawa, motivated by the desire of forming fibers with conventionally known fiber surface predictably suitable for use in degradation applications and by the desire to predictably influence the degradation rate of the fiber. While the reference does not specifically teach the claimed range of 0.5 to 2 micron spacing, the disclosed range of the prior art combination overlaps with the instant claimed range. It should be noted that 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 re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). The existence of overlapping or encompassing ranges shifts the burden to Applicant to show that his invention would not have been obvious. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003). Furthermore, it would have been obvious to one of ordinary skill in the art before the effective filing date to adjust, vary, and optimize the bellow spacing, such as within the claimed range, motivated by the desire to successfully practice the invention of the prior art based on the totality of the teachings of the prior art and to predictably influence the degradation of the fiber.
Regarding claim 19, the prior art combination teaches an embodiment, wherein the first biodegradable polymer layer and/or the second biodegradable polymer layer comprising at least 1.0 percent to at most 5.0 percent by weight chalk and (Goormachtigh, para 0129, 0132) and the filament comprising from 10% by weight to 40% by weight of the second biodegradable polymer and at least 60% by weight to at most 90% by weight of the first biodegradable polymer (Id., para 0140), therefore encompassing filler in the first polymer layer, or sheath, (outer sheath of each of the plurality if skin-sore fibers comprise at least 1% protein by weight) and no filler in the second polymer layer, or core (inner core of each of the plurality of skin-core fiber by weight comprises less than 1% protein by weight.
Claims 15-18 are rejected under 35 U.S.C. 103 as being unpatentable over US Pub. No. 2021/0079562 to Goormachtigh in view of USPN 6,355,772 to Gruber and JP 2003268625 to Yagawa, as applied to claims 1-2, 4-5, 8-14, and 19-20 above, further in view of US Pub. No. 2003/0092338 to Yotsutsuji.
Regarding claims 15-18, the prior art combination does not teach the fibers being crimped.
However, Yotsutsuji teaches a yarn comprising biodegradable fibers of polylactic acid that are suitable for practical use and the biodegradation of the fiber is controllable (Yotsutsuji, abstract, para 0002, 0014, 0019). Yotsutsuji teaches an other resin and additive made be added to the polylactic acid as long as it does not interfere with the advantageous properties of the polymer (Id. para 0032). Yotsutsuji teaches crimping the fiber (Id., para 0050) and teaches a specific embodiment wherein the tow of fiber was crimped to 14 or 15 per 2.5 cm (inch) (claims 16-17) then cut into short fiber of 38 mm pieces with a single fiber fineness of 1.5 dtex and formed into a yarn of 10 tex (Id., para 0082-0083).
It would have been obvious to one of ordinary skill in the art before the effective filing date to form the yarn of the prior art combination, wherein the fiber is crimped as taught by Yotsutsuji, motivated by the desire of using conventionally known fiber structure predictably suitable for use in biodegradable yarns.
Regarding claim 18, the prior art combination teaches the fiber having a bellow structure in the fiber direction of 5 or more ribs per 10 micron fiber length (Yagawa, abstract, p. 2-3), reading on a plurality of circumferential surface cracks, the valley between ridges, being space apparat by 2 microns or less. While the reference does not specifically teach the claimed range of 0.5 to 2 micron spacing, the disclosed range of the prior art combination overlaps with the instant claimed range. It should be noted that 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 re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). The existence of overlapping or encompassing ranges shifts the burden to Applicant to show that his invention would not have been obvious. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003). Furthermore, it would have been obvious to one of ordinary skill in the art before the effective filing date to adjust, vary, and optimize the bellow spacing, such as within the claimed range, motivated by the desire to successfully practice the invention of the prior art based on the totality of the teachings of the prior art and to predictably influence the degradation of the fiber.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US Pub. No. 2010/0176210 to Arthur teaches a hydrophilic porous fiber that is a bicomponent fiber comprising a core, such as polylactic acid, and a sheath, such as polylactic acid, and having a denier of 2-12 and length of about 0.5 inches to about 3.0 inches and crimp. “Evaluation of the Thermal Stability of Keratin Fibers as a Component of Spun-Bonded Nonwovens for the Manufacture of Thermoset Bio-based Composites” to Wrzesniewska teaches a spunbonded nonwoven formed from polypropylene or polylactic acid in combination with keratin fibres from poultry feather (CF) and targets the addition of CF to polypropylene (PP) as a fireproof agent, targeting at 4% of feather as the minimum required to ensure flame retardant properties of the nonwoven of PP/CF with the PLA product for fully bio-based and maximizing CF content, such as 43% CF.
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/JENNIFER A GILLETT/Examiner, Art Unit 1789
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