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 amendment filed 2/25/26 has been entered. Claims 1-5, 7-13, 15, 16, 21 remain pending in the application. Applicant’s amendments to the (Specification, Drawings, and Claims) have not overcome each and every objection and 112(b) rejections previously set forth in the Non-Final Office Action mailed 8/27/25.
Claim Objections
Claim(s) 1, 9, 21 is/are objected to because of the following informalities:
The term “a hat” in Claim 1 Line 3 “a hat configured for wearing on the head” antecedent basis can be further clarified to be the same structure as the preamble’s “adaptable hat”; examiner suggests deleting Claim 1 Line 3 “a hat configured for wearing on the head” and moving the recitation to the preamble of Claim 1 Line 1 such that Line 1 reads “An adaptable hat configured for wearing on the head to reduce…”
Claim 1 Lines 3-4 delete “the wearer’s ears” and substitute –a wearer’s ear—
Claim 1 Line 10 before “ear” delete “an” and substitute –the—
Claim 1 Line 14 before “width” delete “the” and substitute –a—
Claim 1 Line 21 before “center” delete “a” and substitute –the—for proper antecedent basis with Claim 1 Line 9
The term “a hat” in Claim 9 Line 3 “at hat configured for wearing on the head” can be further clarified to be related to the preamble’s “adaptable hat”; examiner suggests deleting Claim 9 Line 3 “at hat configured for wearing on the head” and moving the recitation to the preamble of Claim 9 Line 1 such that Line 1 reads “An adaptable hat configured for wearing on the head to reduce…”
Claim 9 Line 36 before “center” delete “a” and substitute –the—for proper antecedent basis with Claim 9 Line 6
Claim 9 Line 40 before “center” delete “a” and substitute –the—for proper antecedent basis with Claim 9 Line 13
Claim 9 Line 41 before “secure” add –are configured to—; otherwise a U.S.C. 101 rejection may be warranted for positively claiming “head”
Claim 21 Line 1 the Claim status identifier is incorrect and should read “(Currently Amended)” instead of “(New)”; as a courtesy, the claims as presented are prosecuted on their merits; future issues may warrant a notice of non-compliance
The term “a hat” in Claim 21 Line 3 “a hat configured for wearing on the head” can be further clarified to be the same structure as the preamble’s “adaptable hat”; examiner suggests deleting Claim 21 Line 3 “a hat configured for wearing on the head” and moving the recitation to the preamble of Claim 21 Line 1 such that Line 1 reads “An adaptable hat configured for wearing on the head to reduce…”
Claim 21 Lines 3-4 before “wearer’s ears” delete “the” and substitute –a--
Claim 21 Line 22 before “secure” add –are configured to--; otherwise a U.S.C. 101 rejection may be warranted for positively claiming “head”
Disagreement with any of the aforementioned may warrant at least a 112(b) indefiniteness rejection without constituting a new rejection
Appropriate correction is required.
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.
Claim(s) 1-5, 7-13, 15, 16 is/are rejected under U.S.C. 112(b).
The term “wear position” beginning in Claim 1 Line 11 is unclear and therefore renders the claim indefinite. It is unclear how this wear position differs from/relates to “configured for wearing on the head” in Claim 1 Line 3, and whether the recitation of Line 3 should be deleted since it seems to be broader than the limitation associated with “wear position.” It is also unclear how this wear position differs from/relates to “for wear with the headpiece” in Claim 1 Lines 11-12.
The term “aperture extends around an earpiece of the headpiece in the wear position” in Claim 1 Lines 12-13 is unclear and therefore renders the claim indefinite. The preamble indicates that the headpiece is not positively claimed, as has been the case throughout prosecution. However, Claim 1 Lines 12-13 now positively not only claims the headpiece but also an earpiece of the headpiece, making the claim indefinite. Claims cannot switch embodiments mid-prosecution. Based on election by original presentation, the embodiment prosecuted is only directed to the hat as indicated by the preamble. A continuation would have to be filed directed to the system/combination of hat and headpiece should the headpiece be desired to be positively claimed. For the purposes of applying art and providing rejections, the term will be interpreted “aperture is configured to extend around an earpiece of the headpiece in the wear position”, and should be amended as such. To amend otherwise (switching to the system) would result in the claim(s) being withdrawn under election by original presentation (see MPEP 821.03).
The term “wear position” beginning in Claim 9 Line 8 is unclear and therefore renders the claim indefinite. It is unclear how this wear position differs from/relates to “configured for wearing on the head” in Claim 9 Line 3, and whether the recitation of Line 3 should be deleted since it seems to be broader than the limitation(s) associated with “wear position.” It is also unclear how this wear position differs from/relates to “configured for wear with the headset” in Claim 9 Lines 20-21.
Dependent claims are rejected at the least for depending on rejected claims.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim(s) 1-5, 7-13, 15, 16 is/are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because the following, to the best of the examiner’s understanding, is directed to a human organism and therefore is not patent eligible subject matter. Claims directed to or encompassing a human organism is excluded from eligibility before the Supreme Court. See MPEP 2105.
Claim 1 Lines 9-11 “center of the aperture positioned…approximately center with an ear of the wearer in a wear position” positively claims both the ear and the wearer; to fix, before “approximately center” add –configured to be—
Claim 1 Lines 12-13 “aperture extends around an earpiece of the headpiece in the wear position” positively claims a wearer; to fix, delete “extends” and substitute –is configured to extend—
Claim 9 Lines 6-8 “center of the first aperture positioned…to be approximately center with the first ear of the wearer in a wear position”; before “to be approximately center” add –and configured—
Claim 9 Lines 13-16 “center of the second aperture positioned…to be approximately center with the second ear of the wearer in the wear position”; before “to be approximately” add –and configured—
Claim 9 Lines 21-22 “the first aperture and the second aperture are each positioned to extend around the wearer’s first ear and second ear” positively claims the wearer’s first and second ears; to fix, delete “positioned” and substitute –configured--; alternatively, before “positioned” add –configured to be—
Claim 9 Lines 24-26 “the first aperture and the second aperture…located…to be approximately center with the wearer’s first ear and second ear” positively claims the wearer’s first and second ears; to fix, before “to be approximately” add –and configured--
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Specifically:
Beginning Claim 21 Line 5 “first means and second means for exposing” is being interpreted as “means for exposing” under 112(f) and will be considered “first and second apertures” as recited in [0029] and its equivalents
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.
As best understood in light of the 112(b) rejections-- Claim(s) 1-3, 7, 9-11, 15, 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Liljeblad (US Publication 2017/0265551) in view of Shirey (US Publication 2009/0083898) and Dammann et al (USPN 10051907), herein Dammann.
Regarding Claim 1, Liljeblad teaches an adaptable hat to reduce body heat from leaving a wearer's head when wearing a headpiece (it is noted that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations; however, see Figs. 1-3; [0036] "head piece 10 is adapted to be worn both with and without earmuffs 16"; Liljeblad teaches the hat which meets the structural limitations in the claims and performs the functions as recited such as being capable of being adaptable and reducing body heat from leaving a wearer’s head when wearing a headpiece, especially in light of the recitations), the adaptable hat comprising:
a hat (10) configured for wearing on the head (see Figs. 1-3; Liljeblad teaches the hat which meets the structural limitations in the claims and performs the functions as recited such as being capable of being worn on the head),
the hat is a length configured to extend past the wearer's ears (see Figs. 1-3; [0036] "head piece 10 includes ear portions 11 that are adapted to cover the ears of a person wearing the head piece 10"; [0036] "ear portions 11 include…cover piece 12 that may be placed in an open mode in which it allows access of an earmuff through the ear portions 11 of the head piece, further providing that the cover piece 12 when in a closed mode covers the ear portion 11 so as to keep the ears of a person wearing the head piece 10 covered"; [0037] "ear portion 11 …comprises two layers, an inner layer 21, and an outer layer that forms a cover piece 12"; Liljeblad teaches a hat which has a length which meets the structural limitations in the claims and performs the functions as recited such as being capable of extending past the wearer’s ears, especially in light of the recitations),
the hat comprising
an aperture (see Fig. 2);
the aperture formed in the hat at a side of the hat (see Figs. 1-3; [0037] "inner layer 21 of the ear portion 11 has an opening 14"),
the aperture positioned vertically on the side of the hat with a center of the aperture positioned vertically and horizontally on the side of the hat approximately center with an ear of the wearer in a wear position (see Figs. 1-3; [0036] "head piece 10 includes ear portions 11 that are adapted to cover the ears of a person wearing the head piece 10"; [0037] "inner layer 21 of the ear portion 11 has an opening 14"; Liljeblad teaches the aperture has a vertical position on the side of the hat with its center also having a vertical and horizontal position on the side of the hat which meets the structural limitations in the claims and performs the functions as recited such as being capable of being approximately center with an ear of the wearer in a wear position, especially in light of the recitations),
and extending through the hat for wear with the headpiece ([0037] "ear portion 11 has an opening 14 adapted to the size of an earmuff 16"; [0036] "ear portions 11 include…cover piece 12 that may be placed in an open mode in which it allows access of an earmuff through the ear portions 11 of the head piece"; Liljeblad teaches the aperture extent through the hat which meets the structural limitations in the claims and performs the functions as recited such as being capable of being for wear with the headpiece),
where the aperture extends around an earpiece of the headpiece in the wear position (see Figs. 1-3; Liljeblad teaches the aperture which meets the structural limitations in the claims and performs the functions as recited such as being capable of extending around an earpiece of the headpiece in the wear position).
Liljeblad Figs. 1-3 embodiment does not explicitly teach a fastener, the fastener having a width that is less than the width of the aperture and being attached to the hat near the aperture, wherein
the fastener is selected from the group consisting of an elastic loop, a hook and loop strap, and a fabric strap having a snap fastener, and
a securing implement, the securing implement being attached to the hat near the aperture and opposite the fastener, wherein
the securing implement is configured to receive the fastener,
where the fastener is configured to extend across a center of the aperture to secure the hat close to the head.
Shirey teaches a fastener (22), the fastener having a width that is less than the width of the aperture and being attached to the hat near the aperture (see Fig. 1 for width less and attached recitation; [0035] "each of the plurality of closures 14 comprises a button 20…and a loop 22), wherein
the fastener is selected from the group consisting of a loop, a hook and loop strap, and a fabric strap having a snap fastener ([0035] "each of the plurality of closures 14 comprises a button 20…and a loop 22"), and
a securing implement (20), the securing implement being attached to the hat near the aperture and opposite the fastener (see Figs. 1 and 6 for attached recitation; [0035] "each of the plurality of closures 14 comprises a button 20…and a loop 22"), wherein
the securing implement is configured to receive the fastener (see Figs. 1, 6, 17),
where the fastener is configured to extend across a center of the aperture to secure the hat close to the head (see Figs. 1, 6, 17; see annotated Fig. 6 below for clarification; where the aperture has a center; Shirey teaches the fastener which meets the structural limitations in the claims and performs the functions as recited such as being capable of extending across the center and securing the hat close to the head).
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It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Liljeblad’s headwear aperture with headwear aperture fastener/implement as taught by Shirey in order to provide an effective closure over an aperture, such as when the aperture is not in use (Fig. 17), or even in use, to keep the user warm, which Liljeblad desires as well ([0015]).
Dammann further teaches the loop of the fastener is elastic (see Fig. 2A; Col. 3 Lines 8-9 "loop end 116 of draw cord...that engages with one or more buttons 118"; Col. 2 Lines 42-43 "draw cord 108 may be an elastic cord such as a nylon bungee cord").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Liljeblad’s loop, as provided by Shirey, with the elasticity of Dammann, in order to provide adjustability to properly secure the opening and/or to accommodate the elements (head sizes, headpiece).
Regarding Claim 2, modified Liljeblad teaches all the claimed limitations as discussed above in Claim 1.
Modified Liljeblad further teaches wherein the securing implement is a button (see rejection of Claim 1 with Shirey’s button),
and wherein the fastener is the elastic loop (see rejection of Claim 1 with Shirey’s loop made elastic by Dammann).
Regarding Claim 3, modified Liljeblad teaches all the claimed limitations as discussed above in Claim 2.
Modified Liljeblad further teaches wherein the elastic loop of the fastener is horizontally attached from the aperture (see Shirey Fig. 20),
and is vertically attached between a top and bottom of the aperture (see Shirey Figs. 1 and 6),
and wherein the securing implement of the fastener is horizontally attached from the aperture (see Shirey Fig. 20),
and is generally opposite the elastic loop of the fastener (see Shirey Figs. 1, 6, and 20).
Modified Liljeblad does not explicitly teach wherein the elastic loop of the fastener is horizontally attached from 1.27 to 7.62 centimeters from the aperture
and is vertically attached halfway between a top and bottom of the aperture,
and wherein the securing implement of the fastener is horizontally attached from 1.27 to 7.62 centimeters from the aperture.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to measure the distances as aforementioned and get the recited range. Even if the range measured did not overlap but was merely close, a prima facie case of obviousness still exists. See MPEP 2144.05, Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that the elastic loop and securing implement are attached in the ranges recited relative to at least some portion of the aperture.
It also would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Liljeblad such that the elastic loop and securing implement are located as recited, such as for aesthetic design choice, especially without unexpected results.
Regarding Claim 7, modified Liljeblad teaches all the claimed limitations as discussed above in Claim 3.
Liljeblad further teaches wherein the hat is a material chosen from the group consisting of cotton, fleece, polypropylene, polyethylene terephthalate, wool, leather, carbon foam, nylon, melamine, modacrylic, aramids, and combinations thereof ([0022] "head piece may be fabricated in any suitable materials including but not limited to such materials as…polyester fleece, wool…nylon…cotton knit, cotton canvas, etc").
Regarding Claim 9, Liljeblad teaches an adaptable hat to reduce body heat from leaving a wearer's head when wearing a headset (it is noted that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations; however, see Figs. 1-3; [0036] "head piece 10 is adapted to be worn both with and without earmuffs 16"; Liljeblad teaches the hat which meets the structural limitations in the claims and performs the functions as recited such as being capable of being adaptable and reducing body heat from leaving a wearer’s head when wearing a headset, especially in light of the recitations), the adaptable hat comprising:
a hat (10) configured for wearing on the head (see Figs. 1-3; Liljeblad teaches the hat which meets the structural limitations in the claims and performs the functions as recited such as being capable of being worn on the head),
the hat of a length configured to extend past a first ear and a second ear of the wearer (see Figs. 1-3; [0036] "head piece 10 includes ear portions 11 that are adapted to cover the ears of a person wearing the head piece 10"; [0036] "ear portions 11 include…cover piece 12 that may be placed in an open mode in which it allows access of an earmuff through the ear portions 11 of the head piece, further providing that the cover piece 12 when in a closed mode covers the ear portion 11 so as to keep the ears of a person wearing the head piece 10 covered"; [0037] "ear portion 11 …comprises two layers, an inner layer 21, and an outer layer that forms a cover piece 12"; Liljeblad teaches a hat which has a length which meets the structural limitations in the claims and performs the functions as recited such as being capable of extending past the wearer’s first/second ears, especially in light of the recitations),
the hat comprising
a first aperture and a second aperture (see Fig. 2; [0036] indicates a plurality of ear portions 11 and therefore two apertures);
the first aperture formed in the hat at a first side of the hat (see Figs. 1-3; [0037] "inner layer 21 of the ear portion 11 has an opening 14"),
with a center of the first aperture positioned vertically and horizontally on the first side of the hat to be approximately center with the first ear of the wearer in a wear position (see Figs. 1-3; [0036] "head piece 10 includes ear portions 11 that are adapted to cover the ears of a person wearing the head piece 10"; [0037] "inner layer 21 of the ear portion 11 has an opening 14"; Liljeblad teaches a center of the first aperture having a vertical and horizontal position on the first side of the hat which meets the structural limitations in the claims and performs the functions as recited such as being capable of being approximately center with a first ear of the wearer in a wear position, especially in light of the recitations),
and extending through the hat ([0037] "ear portion 11 has an opening 14 adapted to the size of an earmuff 16"; [0036] "ear portions 11 include…cover piece 12 that may be placed in an open mode in which it allows access of an earmuff through the ear portions 11 of the head piece"),
the second aperture formed in the hat at a second side of the hat (see Figs. 1-3; [0037] "inner layer 21 of the ear portion 11 has an opening 14”; [0036] indicates plurality of ear portions 11 and therefore a second aperture at a second side),
with a center of the first aperture positioned vertically and horizontally on the second side of the hat to be approximately center with the second ear of the wearer in the wear position (see Figs. 1-3; [0036] "head piece 10 includes ear portions 11 that are adapted to cover the ears of a person wearing the head piece 10"; [0037] "inner layer 21 of the ear portion 11 has an opening 14"; Liljeblad teaches a center of the second aperture having a vertical and horizontal position on the second side of the hat which meets the structural limitations in the claims and performs the functions as recited such as being capable of being approximately center with a second ear of the wearer in the wear position, especially in light of the recitations),
and extending through the hat ([0037] "ear portion 11 has an opening 14 adapted to the size of an earmuff 16"; [0036] "ear portions 11 include…cover piece 12 that may be placed in an open mode in which it allows access of an earmuff through the ear portions 11 of the head piece"),
where the first aperture and the second aperture are configured for wear with the headset (Liljeblad teaches the first/second apertures which meets the structural limitations in the claims and performs the functions as recited such as being capable of being for wear with the headset, especially in light of the recitations, such as [0036]),
where the first aperture and the second aperture are each positioned to extend around the wearer’s first ear and second ear (see Figs. 1-3; [0036] "head piece 10 includes ear portions 11 that are adapted to cover the ears of a person wearing the head piece 10"; [0037] "inner layer 21 of the ear portion 11 has an opening 14"; Liljeblad teaches the first/second apertures which meets the structural limitations in the claims and performs the functions as recited such as being capable of being positioned to extend around the first/second ears of a wearer, especially in light of the recitations),
and wherein the first aperture is positioned on the first side horizontally in a position relative to the second aperture on the second side (Liljeblad teaches the first/second apertures on the first/second sides, respectively, and therefore relative to one another; the existence of the first aperture also indicates the first aperture having a horizontal position on the first side),
wherein the first aperture and the second aperture are circumferentially located apart from each other to be approximately center with the wearer’s first ear and second ear (see Figs. 1-3; [0036], [0037]’ wherein the position of the two apertures are located relative to one another on a circumferential plane which meets the structural limitations in the claims and performs the functions as recited such as being capable of being approximately center with the wearer’s first and second ears as aforementioned).
Liljeblad at least suggests and wherein the first aperture is positioned on the first side horizontally in a position symmetrical to the second aperture on the second side (see Figs. 1-3; [0036], [0037]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Liljeblad’s first/second apertures to be positioned symmetrical to one another as it is understood in the art that the intention of the usage such as indicated in [0036], [0037] would be best achieved through symmetry, for aesthetic design choice (see extrinsic evidence Monsen, III et al USPN 6035450, wherein opposing ear portions indicate symmetry).
Liljeblad Figs. 1-3 embodiment does not explicitly teach a first fastener having a width that is less than a width of the first aperture and being attached to the hat near the first aperture,
a second fastener having a width that is less than a width of the second aperture and being attached to the hat near the second aperture,
wherein the first and second fastener are selected from the group consisting of an elastic loop, a hook and loop strap, and a fabric strap having a snap fastener, and
a first securing implement, the first securing implement being attached to the hat near the first aperture and opposite the first fastener, wherein
the first securing implement is configured to receive the first fastener,
where the first fastener is configured to extend across a center of the first aperture, and
a second securing implement, the first securing implement being attached to the hat near the second aperture and opposite the second fastener, wherein
the second securing implement is configured to receive the second fastener,
where the second fastener is configured to extend across a center of the second aperture,
wherein the first and second securing implements secure the hat close to the head.
Shirey teaches a fastener (22), the fastener having a width that is less than the width of the aperture and being attached to the hat near the aperture (see Fig. 1 for width less and attached recitation; [0035] "each of the plurality of closures 14 comprises a button 20…and a loop 22), wherein
the fastener is selected from the group consisting of a loop, a hook and loop strap, and a fabric strap having a snap fastener ([0035] "each of the plurality of closures 14 comprises a button 20…and a loop 22"), and
a securing implement (20), the securing implement being attached to the hat near the aperture and opposite the fastener (see Figs. 1 and 6 for attached recitation; [0035] "each of the plurality of closures 14 comprises a button 20…and a loop 22"), wherein
the securing implement is configured to receive the fastener (see Figs. 1, 6, 17),
where the fastener is configured to extend across a center of the aperture (see Figs. 1, 6, 17; see annotated Fig. 6 below for clarification; where the aperture has a center; Shirey teaches the fastener which meets the structural limitations in the claims and performs the functions as recited such as being capable of extending across the center and securing the hat close to the head),
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wherein the securing implement secures the hat close to the head (Shirey teaches the securing implement which meets the structural limitations in the claims and performs the functions as recited such as being capable of securing the hat close to the head).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify each of Liljeblad’s headwear apertures with headwear aperture fastener/implement as taught by Shirey in order to provide an effective closure over the aperture, such as when the aperture is not in use (Fig. 17), or even in use, to keep the user warm, which Liljeblad desires as well ([0015]).
Dammann further teaches the loop of the fastener is elastic (see Fig. 2A; Col. 3 Lines 8-9 "loop end 116 of draw cord...that engages with one or more buttons 118"; Col. 2 Lines 42-43 "draw cord 108 may be an elastic cord such as a nylon bungee cord").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Liljeblad’s loops, as provided by Shirey, with the elasticity of Dammann, in order to provide adjustability to properly secure the opening and/or to accommodate the elements (head sizes, headpiece).
Regarding Claim 10, modified Liljeblad teaches all the claimed limitations as discussed above in Claim 9.
Modified Liljeblad further teaches wherein the first securing implement is a button (see rejection of Claim 9 with Shirey’s button),
and wherein the first fastener is the elastic loop (see rejection of Claim 9 with Shirey’s loop made elastic by Dammann) and, wherein
the second securing implement is a button (see rejection of Claim 9 with Shirey’s button),
and wherein the second fastener is the elastic loop (see rejection of Claim 9 with Shirey’s loop made elastic by Dammann).
Regarding Claim 11, modified Liljeblad teaches all the claimed limitations as discussed above in Claim 10.
Modified Liljeblad further teaches wherein the elastic loop of the first fastener is horizontally attached from the first aperture (see Shirey Fig. 20),
and is vertically attached between a top and bottom of the first aperture (see Shirey Figs. 1 and 6),
the first securing implement is horizontally attached from the first aperture (see Shirey Fig. 20),
and is generally opposite the elastic loop of the first fastener (see Shirey Figs. 1, 6, and 20),
and wherein the elastic loop of the second fastener is horizontally attached from the second aperture (see Shirey Fig. 20),
and is vertically attached between a top and bottom of the second aperture (see Shirey Figs. 1 and 6),
and wherein the second securing implement is horizontally attached from the second aperture (see Shirey Fig. 20),
and is generally opposite the elastic loop of the second fastener (see Shirey Figs. 1, 6, and 20).
Modified Liljeblad does not explicitly teach wherein the elastic loop of the first fastener is horizontally attached from 1.27 to 7.62 centimeters from the first aperture
and is vertically attached halfway between a top and bottom of the first aperture,
and wherein the first securing implement is horizontally attached from 1.27 to 7.62 centimeters from the first aperture,
wherein the elastic loop of the second fastener is horizontally attached from 1.27 to 7.62 centimeters from the second aperture
and is vertically attached halfway between a top and bottom of the second aperture,
and wherein the second securing implement is horizontally attached from 1.27 to 7.62 centimeters from the second aperture.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to measure the distances as aforementioned and get the recited range. Even if the range measured did not overlap but was merely close, a prima facie case of obviousness still exists. See MPEP 2144.05, Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that the elastic loop and securing implement for each aperture are attached in the ranges recited relative to at least some portion of each respective aperture.
It also would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Liljeblad such that the elastic loop and securing implement of each aperture are located as recited, such as for aesthetic design choice, especially without unexpected results.
Regarding Claim 15, modified Liljeblad teaches all the claimed limitations as discussed above in Claim 11.
The body of Claim 15 is the same as the body of Claim 7. As such, see the aforementioned rejection of the body of Claim 7 for the rejection of the body of Claim 15.
Regarding Claim 21, Liljeblad teaches an adaptable hat to reduce body heat from leaving a wearer's head when wearing a headset (it is noted that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations; however, see Figs. 1-3; [0036] "head piece 10 is adapted to be worn both with and without earmuffs 16"; Liljeblad teaches the hat which meets the structural limitations in the claims and performs the functions as recited such as being capable of being adaptable and reducing body heat from leaving a wearer’s head when wearing a headset, especially in light of the recitations), the adaptable hat comprising:
a hat (10) configured for wearing on the head (see Figs. 1-3; Liljeblad teaches the hat which meets the structural limitations in the claims and performs the functions as recited such as being capable of being worn on the head),
the hat of a length configured to extend past the wearer’s ears (see Figs. 1-3; [0036] "head piece 10 includes ear portions 11 that are adapted to cover the ears of a person wearing the head piece 10"; [0036] "ear portions 11 include…cover piece 12 that may be placed in an open mode in which it allows access of an earmuff through the ear portions 11 of the head piece, further providing that the cover piece 12 when in a closed mode covers the ear portion 11 so as to keep the ears of a person wearing the head piece 10 covered"; [0037] "ear portion 11 …comprises two layers, an inner layer 21, and an outer layer that forms a cover piece 12"; Liljeblad teaches a hat which has a length which meets the structural limitations in the claims and performs the functions as recited such as being capable of extending past the wearer’s first/second ears, especially in light of the recitations),
the hat comprising
a first means and second means for exposing a middle of each of the wearer’s ears to fit the adaptable hat close to the wearer’s head and provide uninhibited travel of sound waves from the headset to the wearer’s ears (see claim interpretation; see Fig. 2; [0036] indicates a plurality of ear portions 11 and therefore two apertures which meets the structural limitations in the claims and performs the functions as recited such as being capable of exposing a middle of each of the ears to fit the hat close to the head and provide uninhibited travel of sound waves from the headset to the ears, especially in light of the recitations of [0036], [0037]).
Liljeblad Figs. 1-3 embodiment does not explicitly teach a first fastener having a width that is less than a width of the first means and being attached to the hat near the first means,
a second fastener having a width that is less than a width of the second means and being attached to the hat near the second means,
wherein the first and second fastener are selected from the group consisting of an elastic loop, a hook and loop strap, and a fabric strap having a snap fastener, and
a first securing implement, the first securing implement being attached to the hat near the first means and opposite the first fastener, wherein
the first securing implement is configured to receive the first fastener,
where the first fastener is configured to extend across a center of the first means, and
a second securing implement, the first securing implement being attached to the hat near the second means and opposite the second fastener, wherein
the second securing implement is configured to receive the second fastener,
where the second fastener is configured to extend across a center of the second means,
where the first and second securing implements secure the hat close to the head.
Shirey teaches a fastener (22), the fastener having a width that is less than the width of the means/aperture and being attached to the hat near the means/aperture (see Fig. 1 for width less and attached recitation; [0035] "each of the plurality of closures 14 comprises a button 20…and a loop 22), wherein
the fastener is selected from the group consisting of a loop, a hook and loop strap, and a fabric strap having a snap fastener ([0035] "each of the plurality of closures 14 comprises a button 20…and a loop 22"), and
a securing implement (20), the securing implement being attached to the hat near the means/aperture and opposite the fastener (see Figs. 1 and 6 for attached recitation; [0035] "each of the plurality of closures 14 comprises a button 20…and a loop 22"), wherein
the securing implement is configured to receive the fastener (see Figs. 1, 6, 17),
where the fastener is configured to extend across a center of the means/aperture (see Figs. 1, 6, 17; see annotated Fig. 6 below for clarification; where the aperture has a center; Shirey teaches the fastener which meets the structural limitations in the claims and performs the functions as recited such as being capable of extending across the center and securing the hat close to the head),
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wherein the securing implement secures the hat close to the head (Shirey teaches the securing implement which meets the structural limitations in the claims and performs the functions as recited such as being capable of securing the hat close to the head).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify each of Liljeblad’s headwear means/apertures with headwear means/aperture’s fastener/implement as taught by Shirey in order to provide an effective closure over the aperture, such as when the aperture is not in use (Fig. 17), or even in use, to keep the user warm, which Liljeblad desires as well ([0015]).
Dammann further teaches the loop of the fastener is elastic (see Fig. 2A; Col. 3 Lines 8-9 "loop end 116 of draw cord...that engages with one or more buttons 118"; Col. 2 Lines 42-43 "draw cord 108 may be an elastic cord such as a nylon bungee cord").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Liljeblad’s loops, as provided by Shirey, with the elasticity of Dammann, in order to provide adjustability to properly secure the opening and/or to accommodate the elements (head sizes, headpiece).
As best understood in light of the 112(b) rejections--Claim(s) 4, 5, 12, 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Liljeblad (US Publication 2017/0265551) in view of Shirey (US Publication 2009/0083898) and Dammann et al (USPN 10051907), herein Dammann, further in view of Cheatum (US Publication 2004/001839).
Regarding Claim 4, modified Liljeblad teaches all the claimed limitations as discussed above in Claim 1.
Modified Liljeblad does not explicitly teach wherein the securing implement is a hook and loop patch,
and wherein the fastener is the hook and loop strap.
Cheatum teaches wherein the securing implement is a hook and loop patch (see Fig. 9; [0058] "extending first strap member 286 having a first mating member 288"; [0058] "second strap member 290 having a second mating member 292"; [0061] "hook fastener 72...to engage the eye 78 to thereby fasten the first straps...286 to the second straps...288"),
and wherein the fastener is the hook and loop strap (see Fig. 9; [0058] "extending first strap member 286 having a first mating member 288"; [0058] "second strap member 290 having a second mating member 292"; [0061] "hook fastener 72...to engage the eye 78 to thereby fasten the first straps...286 to the second straps...288").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Liljeblad’s button/loop, as provided by Shirey, with the hook and loop patch/strap of Cheatum as a simple substitution of one known fastener for another such as in order to have a simplified fastener and/or to more finely control how much of the opening is open/closed for tighter fit, such as to adapt to elements through the aperture, such as equipment.
Regarding Claim 5, modified Liljeblad teaches all the claimed limitations as discussed above in Claim 4.
Modified Liljeblad further teaches wherein the hook and loop strap of the fastener is horizontally attached from the aperture (see Shirey Fig. 20, wherein the fastening mechanism would be hook and loop as modified by Cheatum)
and is vertically placed between a top and bottom of the aperture (see Shirey Figs. 1 and 6),
and wherein the securing implement of the fastener is horizontally attached from the aperture (see Shirey Fig. 20)
and is generally opposite the hook and loop strap of the fastener (see Shirey Figs. 1, 6, and 20).
Modified Liljeblad does not explicitly teach wherein the hook and loop strap of the fastener is horizontally attached from 1.27 to 7.62 centimeters from the aperture
and is vertically placed halfway between a top and bottom of the aperture,
and wherein the securing implement of the fastener is horizontally attached from 1.27 to 7.62 centimeters from the aperture.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to measure the distances as aforementioned and get the recited range. Even if the range measured did not overlap but was merely close, a prima facie case of obviousness still exists. See MPEP 2144.05, Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that the hook and loop strap and securing implement are attached in the ranges recited relative to at least some portion of the aperture.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Liljeblad such that the hook and loop strap and securing implement are located as recited, such as for aesthetic design choice, especially without unexpected results.
Regarding Claim 12, modified Liljeblad teaches all the claimed limitations as discussed above in Claim 9.
Modified Liljeblad does not explicitly teach wherein the first securing implement is a hook and loop patch,
and wherein the first fastener is the hook and loop strap; and wherein
the second securing implement is a hook and loop patch,
and wherein the second fastener is the hook and loop strap.
Cheatum teaches wherein the securing implement is a hook and loop patch (see Fig. 9; [0058] "extending first strap member 286 having a first mating member 288"; [0058] "second strap member 290 having a second mating member 292"; [0061] "hook fastener 72...to engage the eye 78 to thereby fasten the first straps...286 to the second straps...288"),
and wherein the fastener is the hook and loop strap (see Fig. 9; [0058] "extending first strap member 286 having a first mating member 288"; [0058] "second strap member 290 having a second mating member 292"; [0061] "hook fastener 72...to engage the eye 78 to thereby fasten the first straps...286 to the second straps...288").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify each of Liljeblad’s button/loop, as provided by Shirey, with the hook and loop patch/strap of Cheatum as a simple substitution of one known fastener for another such as in order to have a simplified fastener and/or to more finely control how much of each opening is open/closed for tighter fit, such as to adapt to elements through each aperture, such as equipment.
Regarding Claim 13, modified Liljeblad teaches all the claimed limitations as discussed above in Claim 12.
Modified Liljeblad further teaches wherein the hook and loop strap of the first fastener is horizontally attached from the first aperture (see Shirey Fig. 20, wherein the fastening mechanism would be hook and loop as modified by Cheatum)
and is vertically attached between a top and bottom of the first aperture (see Shirey Figs. 1 and 6),
and wherein the first securing implement of the first fastener is horizontally attached from the first aperture (see Shirey Fig. 20)
and is generally opposite the hook and loop strap of the first fastener (see Shirey Figs. 1, 6, and 20), and wherein
the hook and loop strap of the second fastener is horizontally attached from the second aperture (see Shirey Fig. 20, wherein the fastening mechanism would be hook and loop as modified by Cheatum)
and is vertically attached between a top and bottom of the second aperture (see Shirey Figs. 1 and 6),
and wherein the second securing implement of the first fastener is horizontally attached from the second aperture (see Shirey Fig. 20)
and is generally opposite the hook and loop strap of the second fastener (see Shirey Figs. 1, 6, and 20)
Modified Liljeblad does not explicitly teach wherein the hook and loop strap of the first fastener is horizontally attached from 1.27 to 7.62 centimeters from the first aperture
and is vertically attached halfway between a top and bottom of the first aperture,
and wherein the first securing implement is horizontally attached from 1.27 to 7.62 centimeters from the first aperture, and wherein
the hook and loop strap of the second fastener is horizontally attached from 1.27 to 7.62 centimeters from the second aperture
and is vertically attached halfway between a top and bottom of the second aperture,
and wherein the second securing implement is horizontally attached from 1.27 to 7.62 centimeters from the second aperture.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to measure the distances as aforementioned and get the recited range. Even if the range measured did not overlap but was merely close, a prima facie case of obviousness still exists. See MPEP 2144.05, Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that the hook and loop straps and securing implement of each aperture are attached in the ranges recited relative to at least some portion of each respective aperture.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Liljeblad such that the hook and loop strap and securing implement of each aperture are located as recited, such as for aesthetic design choice, especially without unexpected results.
As best understood in light of the 112(b) rejections--Claim(s) 8, 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Liljeblad (US Publication 2017/0265551) in view of Shirey (US Publication 2009/0083898) and Dammann et al (USPN 10051907), herein Dammann, further in view of Kelly (US Publication 2018/0146734).
Regarding Claim 8, modified Liljeblad teaches all the claimed limitations as discussed above in Claim 3.
Liljeblad further teaches wherein the hat is a material chosen from the group consisting of aramids, coated nylon, leather, wool, and combinations thereof ([0022] "head piece may be fabricated in any suitable materials including but not limited to such materials as…polyester fleece, wool…nylon…cotton knit, cotton canvas, etc").
Liljeblad does not explicitly teach wherein the hat is a material that has fire retardant properties and is chosen from the group consisting of aramids, coated nylon, leather, wool, and combinations thereof.
Kelly teaches a hat is a material that has fire retardant properties and is chosen from the group consisting of aramids, coated nylon, leather, wool, and combinations thereof ([0046] "hat design system includes a crown of a variety of types, such as…beanie"; [0046] "hat design may include a variety of fabrics…such as….cotton…wool, leather…nylon…fleece…knit", wherein it is known in the art that leather is fire retardant, see extrinsic evidence Neo NPL).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Liljeblad’s material with the leather of Kelly as a simple substitution of one material for another for an effective headwear, such as to be travel friendly ([0046]).
Regarding Claim 16, modified Liljeblad teaches all the claimed limitations as discussed above in Claim 11.
The body of Claim 16 is the same as the body of Claim 8. As such, see the aforementioned rejection of the body of Claim 8 for the rejection of the body of Claim 16.
Response to Arguments
Applicant’s arguments with respect to claims 1-5, 7-13, 15, 16, 21 have been considered but are moot because of the new grounds of rejection necessitated by amendment. Therefore, see aforementioned rejections for the argued missing limitations. Nevertheless, for clarification--
To correct the record: 1) Pertaining to remarks on page 1, applicant believes the amendments are supported by paragraph [0021], but the actual recitation indicated is in [0022], as of 2/25/26. And 2) Pertaining to remarks on page 2, interview was held with Supervisor Khoa Hyunh, per applicant request.
Pertaining to remarks on page 3 that the claim objection to Claim 9 Line 36 and Claim 21 Line 22 does not require correction—examiner respectfully disagrees, and indicates that in the next round of prosecution, failure to correct will warrant a U.S.C. 101 rejection, similar to those indicated herein, as previously forewarned in the office action of 8/27/25. The statements of record are not enough to overcome the positive claiming of human body parts, and the statements further prove that the current claim language is not directed to actual claim intent (functional, not positive).
Applicant options include pre-appeal and appeal.
Conclusion
The prior art made of record and not relied upon but is considered pertinent to applicant’s disclosure and can be used to formulate a rejection if necessary: Laib et al (USPN 7607434) directed to fire resistant hood with headset.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Grace Huang whose telephone number is (571)270-5969. The examiner can normally be reached M-Th 8:30am-5:30pm EST.
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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.
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/GRACE HUANG/Primary Examiner, Art Unit 3732