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 .
Response to Amendment
The Office has carefully considered Applicant’s amendments and accompanying remarks dated 05/26/26. Applicant’s amendments to the claims are entered and made of record. Applicant has amended claim 1, cancelled claim 17 and added new claim 21. The pending claims at this time are 1-16 and 18-21, all of which stand rejected.
Applicant did not address the objection made over the specification at ¶ 2 of the previous office action. It is repeated below again.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-16 and 18-21 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. The previously made art rejection is withdrawn in light of Applicant’s amendments.
Specification (repeated)
The disclosure is objected to because of the following informalities: Please update the lineage in the first paragraph of the specification as 17/827,591 has matured into USPC 12,469,406. Appropriate correction is required.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-16 and 18-21 are rejected under 35 U.S.C. 103 as being unpatentable over USPUB 2013/0212789 issued to Conolly et al.
Regarding modified claim 1, where Applicant now seeks a fabric comprising:
an inner layer;
a metallized membrane disposed on the inner layer, the metallized membrane including a base layer containing a polyethylene and a metal layer deposited on a first surface of the base layer, wherein;
the inner layer is coupled to the metallized membrane via first point contacts;
the first surface has a specular gloss of at least 28 percent, and wherein a second surface of the base layer opposite the first surface has a roughness at least twice a roughness of the first surface; and
wherein a first density of the first point contacts is variable across different portions of the inner layer, wherein, an area covered by the first point contacts is below 20 percent of a surface of the inner layer; and
the fabric further comprises:
an outer layer disposed on the metallized membrane, wherein the outer layer is coupled to the metallized membrane via second point contacts, wherein a second density of the second point contacts is variable across different portions of the outer layer, and an average cumulative area covered by the first point contacts together with the second point contacts is below 20 percent of a surface area of the fabric;
Applicant is directed to the teachings of USPUB 2013/0212789 issued to Conolly- Conolly discloses a moisture vapor permeable fabric in various composites to make apparel, tents, and sleeping bags comprising at least one metal layer forming a radiant barrier to reduce heat loss via radiation from the human body. [Conolly abstract, ¶ ¶ 0001, 0011, 0021.]
The fabric may comprise a moisture vapor permeable textile substrate 203 coated via vapor deposition with a metal layer 204 forming a metallized fabric that is then point bonded to textile layer 202 that may be attached on either side of the metallized fabric, wherein an optional textile layer 201 is bonded on the other side of the metallized fabric. [See ¶¶ 0021, 0024, 0026, 0035, 0036, 0041, 0045, Figs. 2a-2c. ] This layer can also be a film, ¶ 0034.
The textile layer 202 serves as the claimed inner layer. The optional textile 201 can be knitted, woven or nonwoven textile, with optional functionalization depending on the application ¶ 0024.
The metallized fabric and textile layer may be point bonded together using either adhesive, stitching, needling, lamination, melted membrane, or melted fabric layer ¶¶ 0022, 0026, 0036. The metal layer 204 and it’s coating may comprise aluminum, gold, copper, zinc, or silver and have a thickness ranging between about 15 nm and about 200 nm see ¶ 0045. The metal layer and the coating serve as the claimed metal layer and the base layer.
The substrate layer 203 is a sheet comprising: a moisture vapor permeable sheet layer having first and second outer surfaces, the sheet layer comprising at least one of a nonwoven fabric, woven fabric, nonwoven fabric-film laminate, woven fabric-film laminate, moisture vapor permeable film and composites thereof, wherein the first outer surface of the moisture vapor permeable sheet layer is a porous sheet selected from the group consisting of microperforated films, woven fabrics and nonwoven fabrics. This layer could serve to be the outer layer.
The metal and organic/ inorganic coatings are deposited on a non-porous, moisture-permeable and substantially liquid impermeable substrate using a method that does not substantially reduce the moisture permeability of the substrate. The metal coating and the organic or inorganic coating are deposited via vacuum vapor deposition methods, which provide a coated composite substrate having a moisture vapor transmission rate that is at least about 80%, even at least about 85%, and even at least about 90% of the moisture transmission rate of the starting substrate material. Vacuum vapor deposition methods known in the art are preferred for depositing metal and organic or inorganic coatings. [ ¶ 0040-0041].
The thickness of the metallic and organic or inorganic coatings is preferably controlled in a range that provides a composite substrate having an emissivity of no greater than about 0.35. [ ¶ 0042].
The composite material shown in Figure 2c of Conolly was analyzed as a metalized air permeable composite textile. The substrate 203 may be a non-woven fabric or a non-woven fabric-film laminate, serves as a base layer, a metallized 204 substrate 203, i.e. serves as the metallized non-woven sheet comprising a base layer and a metal layer deposited on a first surface of the base layer.
Regarding the claim amendments to claim 1, they are not expressively suggested by Conolly but modifying their laminate by replacing the textile 201 with a lining layer; the first surface of the base layer is configured to be flat. This is attained by calendaring at a temperature below 200 ° C, so that a first surface of the base layer would have a specular gloss of at least 28%, a second surface of the base layer opposite the first surface has a surface roughness at least twice that of the first surface; the lining layer is connected to the base layer by a point contact defining an area covered by the point contact; MVTR of each of the liner layer, the base layer, the metal layer, and the metallized air-permeable composite textile.
One would be motivated to do so in order to improve breathability, bonding strength, reflection efficiency as taught by Connolly.
Connolly et al., also teaches that in an alternative embodiment as shown in Figure 2b, the low emissivity surface of the metallic layer may face the outside of the garment or other item. As such, a person having ordinary skill in the art before the effective filing date of the invention would have easily placed the textile 201 on the inside of the garment, i.e. the textile 201 is a lining layer, when creating the layers in figure 2c, without any leap of inventiness.
Connolly et al. further teaches that the composite substrate has a highly reflective metalized surface, in order to increase the reflective efficiency, a skilled artisan is motivated to arrange that the first surface of the substrate 203 in contact with the metal layer 204 which is flat, in particular that the specular gloss of the first surface of the substrate 203 in contact with the metal layer 204 is high, for example at least 28 %, whereas polymers are commonly used non-woven fabrics or films, and the process step of calendaring is a common processing method for polymer sheets. When the melting point is low, they are easier to process. As such, a skilled artisan without a leap of inventiveness would have found it to be conventional in the art to configure the substrate 203 so that it contains a polymer with a low melting point such as polyethylene so that a flat surface is obtained by calendaring at temperatures below 200 ° C.
Additionally, those skilled in the art know that, it is universal knowledge increasing the surface roughness is advantageous for increasing the interlayer bonding strength between layers. As such, one would be motivated to easily couple another layer to the second surface of the substrate 203, which is coupled to the textile 201, all while having a surface roughness that is at least twice that of the first surface.
Lastly, Connolly et al. provide the latitude of have the layers joined/adhered yet remain breathable but does not disclose specifically the amount, density or percentage of the “points of contact.” It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have optimized the amount/density/percent of the point of contacts between any two layers used in the composite, since it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The burden is upon the Applicant to demonstrate that the claimed weight is critical and has unexpected results. In the present invention, one would have been motivated to optimize the amount/density or percentage of the points of contact along different directions motivated by the desire to create a suitably strong, breathable but controlled air flow in a flexible composite.
Regarding Claim 2, where Applicant seeks that the fabric according to claim 1, wherein the first density of the first point contacts or the second density of the second point contacts is different along different directions, the different directions comprising a horizontal direction and a vertical direction; Connolly et al. provide the latitude of have the layers joined/adhered yet remain breathable but does not disclose specifically the amount, density or percentage of the “points of contact.” It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have optimized the amount/density/percent of the point of contacts between any two layers used in the composite, since it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The burden is upon the Applicant to demonstrate that the claimed weight is critical and has unexpected results. In the present invention, one would have been motivated to optimize the amount/density or percentage of the points of contact along different directions motivated by the desire to create a suitably strong, breathable but controlled air flow in a flexible composite.
Regarding Claim 3, where Applicant seeks that the fabric according to claim 2, wherein the first density of the first point contacts is different from the second density of the second point contacts; Conolly et al.provide the latitude of have the layers joined/adhered yet remain breathable but does not disclose specifically the amount, density or percentage of the “points of contact.” It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have optimized the amount/density/percent of the point of contacts between any two layers used in the composite, since it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The burden is upon the Applicant to demonstrate that the claimed weight is critical and has unexpected results. In the present invention, one would have been motivated to optimize the amount/density or percentage of the points of contact along different directions motivated by the desire to create a suitably strong, breathable but controlled air flow in specific portions of the flexible composite.
Regarding claim 4, where Applicant seeks that the fabric according to claim 3, wherein the first density of the first point contacts or the second density of the second point contacts is different along different orthogonal directions; Conolly et al., provide the latitude of have the layers joined/adhered yet remain breathable but does not disclose specifically the amount, density or percentage of the “points of contact.” It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have optimized the amount/density/percent of the point of contacts between any two layers used in the composite, since it has been held that, where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The burden is upon the Applicant to demonstrate that the claimed weight is critical and has unexpected results. In the present invention, one would have been motivated to optimize the amount/density or percentage of the points of contact along different directions motivated by the desire to create a suitably strong, breathable but controlled air flow in specific portions of the flexible composite.
Regarding Claim 5, where Applicant seeks that the fabric according to claim 3, wherein each of the inner layer, the base layer, the metal layer, and the outer layer has a moisture vapor transmission rate of at least 500 g/m2/24 hr., wherein the moisture vapor transmission rate is indicative of a degree of breathability; It is the position of the Office as Conolly et al.et al teach that the layers are breathable and would also have a similar MVTR. Support for said assumption is found in the use that both use the same layers, structurally, chemically and have the same intended use. Therefore, the resultant properties of MVTR would be the same if not about the same as that claimed by Applicant. The burden is upon Applicant to prove otherwise. In re Fitzgerald 205 USPQ 594. In addition, the presently claimed properties as set forth above, it would obviously have been present once the Conolly et al.et al. product is provided. Note In re Best, 195 USPQ at 433, footnote (CCPA 1977) as to the providing of this rejection made above under 35 USC 102. Reliance upon inherency is not improper even though rejection is based on Section 103 instead of Section 102. In re Skoner, et al. (CCPA) 186 USPQ 80.
Regarding Claim 6, where Applicant seeks that the fabric according to claim 4, wherein the fabric has a thermal conductivity at most 0.6 W/m-K; Conolly et al., teaches what is set forth above and seeks thermal conductivity but does not specifically disclose what the thermal conductivity of the fabric is. However, it would have been obvious to one of ordinary skill in the art to design the construction of the fabric such that it would have a thermal conductivity of at most 0.6 W/m-K, in order to design a fabric with specific material properties suitable for use as a wearable garment.
Regarding Claim 7, where Applicant seeks that the fabric according to claim 5, wherein the inner layer includes one of a woven fabric, a knit fabric, or a non-woven fabric; Applicant is directed to ¶ 0024, 0035-0036, where the instant reference discloses that the textile is air permeable and may comprise a woven, knit, or non-woven material.
Regarding Claim 8, where Applicant seeks that the fabric according to claim 6, wherein the inner layer includes a synthetic material or a natural material; Applicant is directed to claim 3, where the instant reference discloses that the textile is air permeable and may comprise a synthetic fiber, an organic fiber, and a combination of synthetic and organic fibers.
Regarding Claim 9, where Applicant seeks that the fabric according to claim 7, wherein the synthetic material is selected from one or more of polyester, nylon, elastane, polyurethane, polyolefin, polylactic acid, or polytetrafluoroethylene (PTFE) ; Applicant is directed to claim 3, where the instant reference discloses that the textile is air permeable and may comprise a synthetic fiber, an organic fiber, and a combination of synthetic and organic fibers.
Regarding Claim 10, where Applicant seeks that the fabric according to claim 8, wherein the fabric has a moisture vapor transmission rate at least 70% of each of the inner layer, the metallized membrane, and the outer layer; It is the position of the Office as Conolly et al.et al teach that the layers are breathable and would also have a similar MVTR. Support for said assumption is found in the use that both use the same layers, structurally, chemically and have the same intended use. Therefore, the resultant properties of MVTR would be the same if not about the same as that claimed by Applicant. The burden is upon Applicant to prove otherwise. In re Fitzgerald 205 USPQ 594. In addition, the presently claimed properties as set forth above, it would obviously have been present once the Conolly et al.et al. product is provided. Note In re Best, 195 USPQ at 433, footnote (CCPA 1977) as to the providing of this rejection made above under 35 USC 102. Reliance upon inherency is not improper even though rejection is based on Section 103 instead of Section 102. In re Skoner, et al. (CCPA) 186 USPQ 80.
Regarding Claim 11, where Applicant seeks that the fabric according to claim 9, wherein the first and second point contacts include an adhesive; Applicant is directed to ¶ 0015, Conolly et al. discloses that any suitable process for joining t adhesive, or a melt film, or a melt fiber between surfaces or a stitching/needling process.
Regarding Claim 12, where Applicant seeks that the fabric according to claim 10, wherein the first point contacts include melted base layer; Applicant is directed to ¶ 0015, Conolly et al. discloses that any suitable process for joining such as an adhesive, or a melt film, or a melt fiber between surfaces or a stitching/needling process.
Regarding Claim 13, where Applicant seeks that the fabric according to claim 11, wherein the first point contacts include melted inner layer; Applicant is directed to ¶ 0015, Conolly et al. discloses that any suitable process for joining such as an adhesive, or a melt film, or a melt fiber between surfaces or a stitching/needling process.
Regarding Claim 14, where Applicant seeks that the fabric according to claim 12, wherein the second point contacts include melted base layer; Applicant is directed to ¶ 0015, Conolly et al. discloses that any suitable process for joining such as an adhesive, or a melt film, or a melt fiber between surfaces or a stitching/needling process.
Regarding Claim 15, where Applicant seeks that the fabric according to claim 13, wherein the second point contacts include melted outer layer; Applicant is directed to ¶ 0015, Conolly et al. discloses that any suitable process for joining such as an adhesive, or a melt film, or a melt fiber between surfaces or a stitching/needling process.
Regarding Claim 16, where Applicant seeks that the fabric according to claim 14, wherein the first point contacts or the second point contacts are formed by sewing or quilting; Applicant is directed to ¶ 0015, Conolly et al. discloses that any suitable process for joining t adhesive, or a melt film, or a melt fiber between surfaces or a stitching/needling process.
Regarding Claim 18, where Applicant seeks that the fabric according to claim 16, wherein the metal layer has a thickness of 10 nanometers to 200 nanometers and, wherein the metal layer has a reflectivity in a range between 0.76 and 0.97 at a wavelength of 9.5 micrometers; the instant reference of Conolly et al. teaches that any of the layers may have thickness that may be adjustable but does not expressively suggest that the thickness of the metal layer is from about 10-200 nm. A person having ordinary skill in the art before the effective filing date of the invention would have found it within their purview to adjust the thickness through dependent on the end use and how much of the metallic properties was needed.
Regarding Claim 19, where Applicant seeks that the fabric according to claim 18, wherein the metallized membrane has a moisture vapor transmission rate of at least 800 g/m2/24 hr.; It is the position of the Office as Conolly et al.et al teach that the layers are breathable and would also have a similar MVTR. Support for said assumption is found in the use that both use the same layers, structurally, chemically and have the same intended use. Therefore, the resultant properties of MVTR would be the same if not about the same as that claimed by Applicant. The burden is upon Applicant to prove otherwise. In re Fitzgerald 205 USPQ 594. In addition, the presently claimed properties as set forth above, it would obviously have been present once the Conolly et al.et al. product is provided. Note In re Best, 195 USPQ at 433, footnote (CCPA 1977) as to the providing of this rejection made above under 35 USC 102. Reliance upon inherency is not improper even though rejection is based on Section 103 instead of Section 102. In re Skoner, et al. (CCPA) 186 USPQ 80.
Regarding Claim 20, where Applicant seeks that the fabric according to claim 19, wherein a combined emissivity of the metallized membrane and the outer layer is at most 0.85 at a wavelength of 9.5 micrometers, wherein the combined emissivity indicates an emissivity of a combination of the metallized membrane and the outer layer; Conolly et al.et al speak to reflectivity but do not disclose what the combined emissivity of the metallized membrane and the outer layer is. However, it would have been obvious to one of ordinary skill in the art through routine experimentation to adjust the design of the fabric, such as the thickness of the layers and selection of the materials of the layers, such that the combined emissivity of the metallized membrane and the outer layer of at most 0.85 at a wavelength of 9.5 micrometers, in order to create a fabric which emits IR energy that is desirable for a camouflage garment.
Regarding new claim 21, where Applicant seeks that the fabric according to claim 1, wherein the base layer has an infrared transparency of at least 40% at 9.5 micrometers; Applicant is directed to Connolly who seeks infrared transparency but does not expressively suggest that it is at least 40% at 9.5 micrometers. It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have constructed base layer material having an infrared transparency of at least 40% at 9.5 micrometers, since it has been held that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges that would be discovered through routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, would be deemed through routine experimentation and as such is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions. See also KSR Int'l Co. V. Teleflex Inc., 550 U.S. 398, 416 (2007). Since, the instant specification is silent to unexpected results, of base layer having an infrared transparency of at least 40% at 9.5 micrometers, it is not considered to confer patentability to the claims.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/Arti Singh-Pandey/
Primary Patent Examiner
Art Unit 1759
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