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 .
Election/Restrictions
Applicant's election of Group III, claims 12-20 in the reply filed on 04/06/2026 is acknowledged. Claims 1-11 withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to nonelected elections, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 04/06/2026.
The traversal is on the ground(s) that, given similarities in the claims, during the course of normal searching and examination of any one of the groups, it is to be expected that the Examiner would consider subject matter similar to that in the other groups, employ similar search criteria, and likely be able to apply similar prior art across the various groups; accordingly, there would be no serious burden to consider such subject matter in the other groups. This is not found persuasive because the three claimed inventions are distinct inventions under different classifications (see the Restriction Requirement mailed 04/06/2026), therefore cannot be considered as similar inventions. Searching and examination of more than one invention across different classes/subclasses is a serious burden to the examiner.
The requirement is still deemed proper and is therefore made FINAL.
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 15 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 pre-AIA the applicant regards as the invention.
Claim 15 recites the limitation "a repeating unit of flat elements comprises at least four adjacent flat elements", which renders the claim indefinite. The phase "repeating unit" generally refers to a sequence of consecutive elements without interruptions. However, claim 15 depends from claim 14; and claim 14 has set forth the flat elements and the protruding elements being arranged in an alternating manner, which means every two adjacent flat elements being separated by at least one protruding element. It is unclear what is being referred to by "repeating unit" in the limitation. Therefore, the metes and bounds of the claim are unclear and cannot be ascertained.
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).
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 12-17 and 19-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-5, 7, 9-10, 14-15, 17 and 20-22 of U.S. Patent 12,392,060 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 12-17 and 19-20 are anticipated by the patent claims. Every limitation in the application under examination claims is recited in the conflicting reference patent claims.
Below is a table illustrating a claim to claim analysis of the double patenting rejections.
Instant Application
U.S. Patent 12,392,060 B2
12. A knitted textile for an article of apparel or footwear, comprising:
[A] a first portion, which is auxetic; and
[B] a second portion, which is non-auxetic, and
[C] wherein the second portion is knitted to the first portion.
1. A knitted textile for an article of apparel or footwear, comprising:
[A] a first portion which is auxetic and has a first knit pattern of stitches formed in a first plurality of rows, the first portion defining a first textile area, wherein the first portion being auxetic is configured to stretch in a first direction and expand along a second direction essentially perpendicular to the first direction; and
[B] a second portion which is non-auxetic and has a second knit pattern of stitches formed in a second plurality of rows, the second portion defining a second textile area, the second knit pattern of stitches being different than the first knit pattern of stitches,
[C] wherein the second textile area is positioned adjacent the first textile area and is knitted to the first textile area to control stretch properties of the knitted textile.
13. The knitted textile according to claim 12,
[D] wherein the first portion comprises a first essentially flat element and a first protruding element.
2. The knitted textile according to claim 1,
[D] wherein the first knit pattern comprises a first essentially flat element and a first protruding element.
14. The knitted textile according to claim 13,
[E] wherein the first portion further comprises a second essentially flat element and a second protruding element, wherein the flat elements and the protruding elements are arranged in an alternating manner.
3. The knitted textile according to claim 2,
[E] wherein the first knit pattern further comprises a second essentially flat element and a second protruding element, wherein one of the first and second essentially flat elements alternates with one of the first and second protruding elements.
15. The knitted textile according to claim 14,
[F] wherein the first portion further comprises a plurality of flat elements and a plurality of protruding elements, wherein a repeating unit of flat elements comprises at least four adjacent flat elements.
4. The knitted textile according to claim 1,
[F] wherein the first knit pattern of stitches comprises a plurality of essentially flat elements and a plurality of protruding elements, wherein a repeating unit of the plurality of essentially flat elements comprises at least four essentially flat elements of the plurality of essentially flat elements arranged adjacent each other, wherein the repeating unit of the plurality of essentially flat elements is arranged to alternate with at least one of the protruding elements of the plurality of protruding elements.
16. The knitted textile according to claim 12,
[G] wherein the first portion further comprises an alternating pattern of face stitches and reverse stitches.
5. The knitted textile according to claim 1,
[G] wherein the first knit pattern of stitches comprises an alternating pattern of face stitches and reverse stitches.
17. The knitted textile according to claim 12,
[H] wherein the first portion is configured to be stretched along a wale direction when worn.
7. The knitted textile according to claim 1,
[H] wherein the first direction comprises a wale direction and wherein the first knit pattern of stitches of the first plurality of rows extending in the wale direction and is configured to be stretched along the wale direction when worn
19. The knitted textile according to claim 12,
[I] wherein the first portion further comprises at least one elastic yarn.
9. The knitted textile according to claim 1,
[I] wherein the first textile area further comprises at least one elastic yarn.
20. The knitted textile according to claim 19,
[J] wherein the first portion further comprises at least one non-elastic yarn, wherein a first knitted row comprises the elastic yarn and at least five consecutive knitted rows comprise a non-elastic yarn.
10. The knitted textile according to claim 9,
[J] wherein the first textile area further comprises at least one non-elastic yarn, wherein the first plurality of rows comprises a first knitted row with the at least one elastic yarn and at least five consecutive knitted rows with the at least one non-elastic yarn.
14. A knitted textile for an article of apparel or footwear, comprising:
[A] a first portion being auxetic with a first knit pattern of stitches formed in a plurality of rows, the plurality of rows extending in a wale direction, the first knit pattern of stitches defining at least one protruding element and at least one flat element; and
[B] a second portion being non-auxetic with a second knit pattern of stitches different from the first knit pattern of stitches, and
[C] wherein the second portion is positioned adjacent to the first portion and knitted to the first portion, wherein the first portion is configured to be stretched along the wale direction to control stretch properties of the knitted textile.
15. The knitted textile according to claim 14,
[G] wherein the first knit pattern of stitches comprises an alternating pattern comprising face stitches and reverse stitches.
17. The knitted textile according to claim 14,
[D] wherein the first knit pattern of stitches comprises an alternating pattern comprising essentially flat stitches and protruding stitches protruding from the essentially flat stitches.
20. A knitted textile comprising:
[A] a first auxetic portion having a first knit pattern of stitches formed of a plurality of rows, the first auxetic portion extending in a wale direction; and
[B] a second non-auxetic portion having a second knit pattern of stitches different from the first knit pattern of stitches, and
[H] wherein the first auxetic portion is configured to be stretched along the wale direction and expand along a second direction essentially perpendicular to the wale direction,
wherein the second non-auxetic portion is positioned adjacent to and is joined to the first portion to control stretch properties of the knitted textile.
21. The knitted textile according to claim 20,
[C] wherein the first auxetic portion is knitted to the second non-auxetic portion along an outer edge of the second non-auxetic portion.
22. The knitted textile according to claim 20,
[G] wherein the first knit pattern comprises an alternating pattern of face stitches and reverse stitches.
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 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.
Claims 12-14, 17 and 19-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Cross (US 2016/0058098 A1).
Regarding claim 12, Cross discloses a knitted textile (knitted component 100 comprising a knit element 130; figs. 1, 4; paras. 0038, 0045) for an article of apparel or footwear (para. 0032), comprising:
a first portion (region 154; figs. 1, 4; para. 0058), which is auxetic (as comprising auxetic portions 156 and adjacent zones 158 between auxetic portions 156; figs. 1, 4; paras. 0058-0059); and
a second portion (first region 150 or second region 152; fig. 4; para. 0058), which is non-auxetic (being substantially uniform and remaining substantially the same width in a direction 142 upon a stretching force in a direction of 157; figs. 4-5; paras. 0058, 0068), and wherein the second portion is knitted to the first portion (a unitary knit construction; figs. 1, 4; para. 0059).
Regarding claim 13, Cross discloses the knitted textile according to claim 12, and further discloses wherein the first portion (region 154; figs. 1, 4) comprises a first essentially flat element (at least one course within a first adjacent zone 158; see fig. 4 and annotated fig. 1) and a first protruding element (a first auxetic portion 156 bounded by border 159 which has vertices and sides; see fig. 4 and annotated fig. 1; paras. 0058, 0060, 0072).
PNG
media_image1.png
712
1045
media_image1.png
Greyscale
Annotated Fig. 1 from US 2016/0058098 A1
Regarding claim 14, Cross discloses the knitted textile according to claim 13, and further discloses wherein the first portion further comprises a second essentially flat element (a second adjacent zone 158; see fig. 4 and annotated fig. 1) and a second protruding element (a second auxetic portion 156; see fig. 4 and annotated fig. 1; paras. 0058, 0060, 0072), wherein the flat elements and the protruding elements are arranged in an alternating manner (see fig. 4 and annotated fig. 1).
Regarding claim 17, Cross discloses the knitted textile according to claim 1, and further discloses wherein the first portion is configured to be stretched along a wale direction (a stretching force is applied as indicated by arrows 157 along a wale direction and causes knitted component 100 to become wider in the second direction 142; see fig. 5; para. 0068) when worn (not limiting the knitted textile).
Regarding claim 19, Cross discloses the knitted textile according to claim 12, and further discloses wherein the first portion further comprises at least one elastic yarn (auxetic portions 156 formed of elastic yarns; figs. 1, 4; para. 0064).
Regarding claim 20, Cross discloses the knitted textile according to claim 19, and further discloses wherein the first portion further comprises at least one non-elastic yarn (adjacent portions 158 formed of inelastic yarns; figs. 1, 4; para. 0064), wherein a first knitted row comprises the elastic yarn (at least one row of auxetic portions 156 must comprise the at least one elastic yarn; figs. 1, 4; para. 0064) and at least five consecutive knitted rows comprise a non-elastic yarn (adjacent zones 158 are connected forming a continuous region comprising at least five consecutive knitted rows; see knitting patterns in figs. 1, 4, 6-7; para. 0064).
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 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 15 is rejected under 35 U.S.C. 103 as being unpatentable over Cross (US 2016/0058098 A1).
Regarding claim 15, Cross discloses the knitted textile according to claim 14, and further discloses wherein the first portion further comprises a plurality of flat elements (a plurality of courses within a plurality of adjacent zones 158; see fig. 4 and annotated fig. 1) and a plurality of protruding elements (a plurality of auxetic portions 156; see fig. 4 and annotated fig. 1).
Cross does not explicitly disclose wherein a repeating unit of flat elements comprises at least four adjacent flat elements. However, Cross, in Figs. 1 and 4, does depict the adjacent zones 158 each comprising a plurality of courses (see figs. 1 and 4), and each of the adjacent zones 158 appears to include at least four courses (see figs. 1 and 4). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have configured the knitted textile as disclosed by Cross, with wherein a repeating unit of flat elements comprises at least four adjacent flat elements, in order to use a suitable size of flat elements between auxetic elements to achieve a desired auxetic effect. Such a configuration is within the level of one of ordinary skill of the art.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Cross (US 2016/0058098 A1) in view of an article "Weft-knitted auxetic textile design" by Martha Glazzard, et al. (hereinafter "Glazzard").
Regarding claim 16, Cross discloses the knitted textile according to claim 12. Cross does not disclose wherein the first portion further comprises an alternating pattern of face stitches and reverse stitches. However, Glazzard teaches in an analogous art a knitted textile (a knitted textile; abstract; page 269, para. 3) comprising an auxetic portion (abstract; fig. 5; page 269, para. 3), wherein the auxetic portion further comprises an alternating pattern of face stitches and reverse stitches (a purl rib pattern comprising several rows of face stitches alternating with several rows of reverse stitches; figs. 4(a), 5; page 268, paras. 5, 9; page 269, paras. 1, 3). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have modified the auxetic portion as disclosed by Cross, with wherein the first portion further comprises an alternating pattern of face stitches and reverse stitches as taught by Glazzard, in order to provide an auxetic portion comprising another suitable knit pattern for obvious and easily achievable apparel products driven by aesthetics using traditional textile machinery and design processes (Glazzard; page 272, paras. 3-4).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Cross (US 2016/0058098 A1) in view of Diaz (US 2018/0320297 A1).
Regarding claim 18, Cross discloses the knitted textile according to claim 12. Cross does not disclose wherein the first portion further comprises a tubular Jacquard pattern having a triangular pattern. However, Cross does disclose wherein the protruding elements in the first portion having a triangular pattern (figs. 1, 4; paras. 0072-0073, 0075). Further, Diaz teaches a knitted textile (an integrally knitted fabric; fig. 1; paras. 0028-0029) for an article of apparel (an upper-torso garment 10; fig. 1; para. 0028) comprising a tubular Jacquard pattern in various knit zones (in zones 66, 68; figs. 1, 4; para. 0032), wherein the tubular Jacquard pattern may have a triangular pattern (by offsetting the interlocking cross overs from course to course, other shape of knit tubular structure is formed; figs. 14-15; para. 0089), wherein the tubular Jacquard pattern contributes to a fit and shape of the garment, as well as to textile properties, such as elongation, compression, breathability, elasticity, stability, support, and the like (figs. 1, 4; para. 0032). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have configured the knitting patterns in the auxetic portions as disclosed by Cross, with wherein the first portion further comprises a tubular Jacquard pattern as taught by Diaz, in order to provide a knitted textile with improved auxetic functions, thereby enhancing the self-adjusting function of a garment for more comfort to the wearer when the knitted textile is incorporated in the garment. By this combination, the first portion would comprise a tubular Jacquard pattern having a triangular pattern.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Additional relevant references cited on attached PTO-892 form(s) can be used to formulate a rejection if necessary. Blakely (US 2014/0109286 A1) and Anand (US 2012/0129416 A1) each can be another 102 reference.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AIYING ZHAO whose telephone number is (571)272-3326. The examiner can normally be reached on 8:30 am - 4:30 pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, KHOA HUYNH can be reached on (571)272-4888. The fax phone number for the organization where this application or proceeding is assigned is (571)273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/AIYING ZHAO/Primary Examiner, Art Unit 3732
Prosecution Insights