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 use of the term TENCEL which is trade name or mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
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 40 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 40 depends from claim 23. The recitation of the yarns is confusing. Is “ first yarn” the first yarn of claim 23 or an additionally first yarn?
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.
Claims 23-43 insofar as definite are rejected under 35 U.S.C. 103 as being unpatentable over Chinese patent document 106192177 in view of Chinese patent document 114086304.
Chinese patent document 106192177 teaches the fabric as claimed including a first yarn, a second yarn comprising elastic fibers or regenerated cellulose fibers; and a third yarn comprising regenerated cellulose fibers; said first, second and third yarns being present as layers wherein the first yarn forms a bottom layer, the second yarn forms a middle layer and the third yarn forms a top layer. However, the first yarn of Chinese patent document 106192177 is a cotton fiber yarn rather than a PLA fiber yarn. Chinese patent document 114086304 teaches a similar spacer fabric which includes a PLA yarns. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the PLA fiber of Chinese patent document 114086304 for the cotton fiber yarn of Chinese patent document 106192177 for the purpose of providing the specific characteristics associated with PLA yarns fibers including biodegradability, wicking and natural antibacterial properties. Regarding claim 24, the second yarn comprises elastic fibers. Regarding claim 25, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to choose from different amounts of yarns including the first yarn between about 15% and about 60% by weight for the purpose of optimizing the wicking and comfort of the fabric. Regarding claim 26, the first yarn of the combined teachings consists of PLA fibers. Regarding claim 27, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to choose from different amounts of yarns including the second yarn comprising between about 5% and about 20% by weight of the fabric in order to optimize the comfort and absorbability of the fabric. Regarding claim 28, the elastic fibers are selected from the group consisting of elastolefin, elastane, diene elastic, polyether ester elastic fibers, and polyolefin elastomer fibers. Regarding claim 29, the second yarn consists of elastane. Regarding claim 30, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to choose from different amounts of moisture regain between about 10% and about 20% for the purpose of optimizing dampness of the fabric. Regarding claim 31, the regenerated cellulose fibers are modal, Tencel, rayon, cuprammonium fiber, bamboo, cotton, or a combination thereof. Regarding claims 32 and 33, Chinese patent document 106192177 does not explicitly set forth the regenerated cellulose fibers as modal. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the cellulose fibers of Chinese patent document 106192177 as modal cellulose fibers for the purpose optimizing the strength and comfort of the fabric. Regarding claim 35, the second yarn is inter-knitted between the first yarn and the third yarn. Regarding claim 36, the fabric is a knitted fabric. Regarding claim 37, the knitted fabric is a jersey fabric. Regarding claim 38, the first and/or third yarns are looped with an elastic fiber. Regarding claim 39, Chinese patent document 106192177 teaches an article of clothing (garment) when produced from, or comprising, the fabric of claim 23. Regarding claim 40, comprising a fabric comprising or consisting of: a first yarn comprising polylactic acid (PLA) fibers, the first yarn forming a bottom layer of the fabric adapted to be in contact with the skin of a wearer;
a second yarn comprising elastic fibers or regenerated cellulose fibers, the second yarn forming a middle layer of the fabric; and a third yarn comprising regenerated cellulose fibers, the third yarn forming a top outer layer of the fabric, furthest from the skin of the wearer. Regarding claim 41, while Chinese patent document 106192177 teaches a clothing fabric (garment) it is not specifically set forth as from the group consisting of a shirt, singlet, jersey, pajamas, maillot, fleece, shorts, pants, hood, running hat, skull cap, helmet liner, mask, headband and socks. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the garment fabric of Chinese patent document 106192177 as any of a shirt, singlet, jersey, pajamas, maillot, fleece, shorts, pants, hood, running hat, skull cap, helmet liner, mask, headband and socks for the purpose of providing a comfortable moisture absorbing garment. Regarding claims 42 and 43, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the fabric for the treatment of in order to provide comfort and protection to a wearer’s irritated skin.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Applicant is reminded that all business with the Patent and Trademark Office should be transacted in writing. The action of the Patent and Trademark Office will be based exclusively on the written record in the Office. No attention will be paid to any alleged oral promise, stipulation, or understanding in relation to which there is disagreement or doubt. 37 C.F.R. 1.2
Further it is noted that a complete response must satisfy the requirements of 37 C.F.R. 1.111, including:
-The reply must present arguments pointing out the specific distinctions believed to render the claims, including any newly presented claims, patentable over any applied references.
-A general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references does not comply with the requirements of this section.
-Moreover, The prompt development of a clear issue requires that the replies of the applicant meet the objections to and rejections of the claims. Applicant should also specifically point out the support for any amendments made to the disclosure. See MPEP 2163.06, MPEP 714.02. The "disclosure" includes the claims, the specification and the drawings.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANNY WORRELL whose telephone number is (571)272-4997. The examiner can normally be reached on M, W-F.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Khoa Huynh can be reached at 571-272-4888. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DANNY WORRELL/Primary Examiner, Art Unit 3732
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