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 amendments filed on 02/09/2026 have been entered. Claims 20, 22-26 and 28-39 remain pending in the application, with Claim 21 being newly canceled and Claims 20, 22-24, 26, and 28-31 being newly amended. Applicant’s amendments to the Claims have not overcome each and every objection previously set forth in the Non-final Office Action mailed 08/07/2025.
Claim Objections
Claim 33 is objected to because of the following informalities:
“a gown” in Claim 33 should read “a surgical gown” so as to use consistent language
Appropriate correction is required.
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.
Claim(s) 20, 22-26 and 28-29 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herzig (US 3496572) in view of Volgyesi (US 2006/0010589) and Tanaka (US 4677696).
Regarding Claim 20, Herzig teaches a multi-piece surgical garment assembly (see fig. 1) comprising: a head cover (23) with an exterior surface (see annotated Fig.), a bottom portion (see annotated Fig.) operable to completely cover a portion of a user's body (annotated fig. 1 shows the bottom portion completely covering a portion of a user’s body), a front flap (see annotated Fig.) extending from the bottom portion and operable to cover a portion of a user's chest; and a rear flap (not shown) extending from the bottom portion and operable to cover a portion of a user's back (annotated Fig. 1 shows a front flap extending from the bottom portion and covering a user’s chest, a back flap also with an extension is disposed on the back side of the user (not shown), as disclosed in col. 3 ll. 37-39, “hood 23 which extends down around the wearer’s neck and hangs down upon the wearer’s shoulder over the chest and back,” wherein the front flap hangs over the chest and a back flap hangs over the back of the wearer), a left portion (see annotated Fig.) extending from the bottom portion and operable to cover a portion of the user's left shoulder, and a right portion (see annotated Fig.) extending from the bottom portion and operable to cover a portion of a user's right shoulder (annotated fig. 1 shows the left and right potions extending from the bottom portion to cover the users left and right shoulders, respectively); the front flap and rear flap separated by joints (see annotated Fig.) (annotated fig. 1 shows the front and rear flaps separated by joints); and a surgical gown (10) with a neck opening (12) configured to receive therewithin the head cover with the bottom portion of the head cover adjacent the neck opening with the front flap and the rear flap extending below the neck opening of the surgical gown (fig. 1 shows the neck opening (12) receiving the head cover (23), the bottom portion being adjacent the neck opening (12) and the front and rear flaps extending below the neck opening), the surgical gown including a main body (see annotated Fig.) operable to cover a user's torso (fig. 1 shows the main body of the gown being operable to cover the user’s torso), wherein the main body of the surgical gown continuously covers the wearer around its circumference (annotated fig. 1 shows the main body being configured to continuously cover the wearer around its circumference).
Examiner notes that while the garment assembly of Herzig does not specifically teach a multi-piece surgical garment configured for conducting surgery, the garment serves as a barrier to provide full protection to the wearer from environmental contaminants, and as such is considered as being capable of being used in a surgical environment (col. 4 ll. 12-15, “a novel garment has been provided which completely avoids contamination of the skin of the body, head, hands, and feet of the wearer”). Herzig’s garment (10) further includes each structural element of the surgical garment as set forth herein.
Herzig does not teach wherein the head cover comprises a transparent face shield, wherein the left portion is formed as a left flap and the right portion is formed as a right flap extending from the bottom portion and operable to cover a portion of a user's right shoulder, and wherein the surgical garment is free from a front opening in the main body.
Attention is drawn to Volgyesi, which teaches an analogous article of apparel. Volgyesi teaches a head cover (2) with an exterior surface (see annotated Fig.), a transparent face shield (8) (fig. 1 shows the head cover (2) having an exterior surface and a transparent face shield (8); paragraph [0038], “transparent shield 8 covers the eyes of the user”), a bottom portion (see annotated Fig.) operable to completely cover a portion of a user's body (fig. 1 shows the bottom portion being continuous and therein is operable to completely cover a portion of a user’s body), a front flap (see annotated Fig.) extending from the bottom portion and operable to cover a portion of a user's chest; and a rear flap (see annotated Fig.) extending from the bottom portion and operable to cover a portion of a user's back (annotated fig. 1 shows the front and rear flaps extending from the bottom portion and configured to extend over the wearer’s chest and back, respectively) a left flap (see annotated Fig.) extending from the bottom portion and operable to cover a portion of a user's left shoulder and a right flap (see annotated Fig.) extending from the bottom portion operable to cover a portion of a user's right shoulder (annotated fig. 1 shows the left and right flap extending from the bottom portion and being disposed between the front and back flaps and therein clearly being operable to over a portion of a user’s left and right shoulders, respectively), the front flap, rear flap, left flap, and right flap separated by joints (see annotated Fig.) (annotated fig. 1 shows the front, rear, left, and right flaps being separated by joints).
Attention is drawn to Tanaka which teaches an analogous article of apparel. Tanaka teaches a surgical garment (see fig. 11) with a head cover (7) and a gown (1, 2) with a neck opening (8); the surgical gown configured to continuously cover the wearer around a circumference of a main body (3) of the surgical gown while being free from a front opening in the main body (figs. 1 and 2 show the gown (1, 2) continuously covering the wearer around a circumference of the main body (3) and being free of a front opening in the main body (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 modify Herzig to include the teachings of Volgyesi such that the head cover comprises a transparent face shield so as to provide protection to the wearer’s face while allowing them to clearly observe their surroundings (paragraph [0038], “transparent shield 8 covers the eyes of the user”), especially as Herzig discloses “this opening 25 is covered… by means of a mask, spectacles, or other conventional accessories ….whereby the surface of the face will be duly protected against contamination by the above mentioned dusts,” (col. 3 ll. 41-46) but does not explicitly teach a transparent face shield integrated into the head covering and such that the left portion is formed as a left flap and the right portion is formed as a right flap so as to fully cover the user’s upper torso with the head covering while maintaining flexibility and movement of the user’s arms with the use of separate flaps, and further to modify Herzig to include the teachings of Tanaka such that the surgical garment is free from a front opening in the main body so as to prevent leakage onto the front of the wearer’s body through any front opening on the main body (col. 3 ll. 5-12, “As the dust-free garment of the present invention is formed to make an integrated front part for the jacket 1 and pants 2 with a single sheet of cloth without seams, closures or any other joints, when the worker performs work at a sedentary position and moves his upper body, dust inside the garment is securely prevented from leaking out through the front part with such a structure.”). Examiner notes that neither Herzig or Volgyesi teaches explicitly wherein the left and right flaps extend below the neck opening of the surgical garment, but as the left and right portions of the head covering of Herzig extend below the neck opening and Herzig has been modified with the teachings of Volgyesi such that the left and right portions are formed of left and right flaps, this limitation would clearly be met.
Regarding Claim 22, modified Herzig teaches all of the limitations of the surgical garment of Claim 21, as discussed in the rejections above.
Herzig does not explicitly teach wherein at least one of the front flaps, rear flap, left flap, and right flap comprises a length of approximately one inch to twelve inches. However, fig. 1 shows the front flap extending from the neck area to a length approximately even with the armpit, which would clearly fall within the range of 1-12 inches in length. Additionally, it is noted that the length of the front flap is a results effective variable. The flap must be long enough to extend past the neck opening to prevent a lapse in protection but short enough that it does not become unwieldy during use. It would have been obvious to one having ordinary skill in the art at the time the invention was made to create the invention of the prior art with at least one of the flaps having a length between approximately one and twelve inches since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). In the present invention, one would have been motivated to optimize the protection provided and the efficiency of use of the flaps.
Regarding Claim 23, modified Herzig teaches all of the limitations of the surgical garment of Claim 21, as discussed in the rejections above.
Herzig does not explicitly teach wherein at least one of the front flap, rear flap, left flap, and right flap comprises a length of approximately four inches to eight inches. However, fig. 1 shows the front flap extending from the neck area to a length approximately even with the armpit, which would clearly fall within the range of 4-8 inches in length. Additionally, it is noted that the length of the front flap is a results effective variable. The flap must be long enough to extend past the neck opening to prevent a lapse in protection but short enough that it does not become unwieldy during use. It would have been obvious to one having ordinary skill in the art at the time the invention was made to create the invention of the prior art with at least one of the flaps having a length between approximately four and eight inches since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). In the present invention, one would have been motivated to optimize the protection provided and the efficiency of use of the flaps.
Regarding Claim 24, modified Herzig teaches all of the limitations of the surgical garment of Claim 21, as discussed in the rejections above.
Herzig does not explicitly teach wherein at least one of the front flap, rear flap, left flap, and right flap comprises a length of approximately six inches. However, fig. 1 shows the front flap extending from the neck area to a length approximately even with the armpit of the gown, which is clearly approximately six inches in length. Additionally, it is noted that the length of the front flap is a results effective variable. The flap must be long enough to extend past the neck opening to prevent a lapse in protection but short enough that it does not become unwieldy during use. It would have been obvious to one having ordinary skill in the art at the time the invention was made to create the invention of the prior art with at least one of the flaps having a length of approximately six inches since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). In the present invention, one would have been motivated to optimize the protection provided and the efficiency of use of the flaps.
Regarding Claim 25, modified Herzig teaches all of the limitations of the surgical garment of Claim 20, as discussed in the rejections above.
Herzig does not teach explicitly teach wherein the front flap is equal in length to the rear flap.
Attention is drawn to Volgyesi, which teaches an analogous article of apparel. Volgyesi teaches a head cover (2) with an exterior surface (see annotated Fig.), a transparent face shield (8) (fig. 1 shows the head cover (2) having an exterior surface and a transparent face shield (8); paragraph [0038], “transparent shield 8 covers the eyes of the user”), a bottom portion (see annotated Fig.) operable to completely cover a portion of a user's body (fig. 1 shows the bottom portion being continuous and therein is operable to completely cover a portion of a user’s body), a front flap (see annotated Fig.) extending from the bottom portion and operable to cover a portion of a user's chest; and a rear flap (see annotated Fig.) extending from the bottom portion and operable to cover a portion of a user's back (annotated fig. 1 shows the front and rear flaps extending from the bottom portion and configured to extend over the wearer’s chest and back, respectively), the front flap and rear flap separated by joints (see annotated Fig.) (annotated fig. 1 shows the front and rear flaps being separated by joints). Volgyesi further teaches wherein the front flap is equal in length to the back flap (fig. 1 shows the front flap being approximately equal in length to the back flap, it is noted that the head covering is tilted backward to show the opening (4) and the flaps are equal in length (as shown in fig. 3 for example).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Herzig to include the teachings of Volgyesi such that the front flap is equal in length to the rear flap so as to provide equal protection along the front and back of the wearer, especially as it appears as though the front and back flaps of Herzig would be equal lengths, although this is not shown or disclosed explicitly.
Regarding Claim 26, modified Herzig teaches all of the limitations of the surgical garment of Claim 21, as discussed in the rejections above.
Herzig does not teach wherein the left flap is equal in length to the right flap.
Attention is drawn to Volgyesi, which teaches an analogous article of apparel. Volgyesi teaches a head cover (2) with an exterior surface (see annotated Fig.), a transparent face shield (8) (fig. 1 shows the head cover (2) having an exterior surface and a transparent face shield (8); paragraph [0038], “transparent shield 8 covers the eyes of the user”), a bottom portion (see annotated Fig.) operable to completely cover a portion of a user's body (fig. 1 shows the bottom portion being continuous and therein is operable to completely cover a portion of a user’s body), a front flap (see annotated Fig.) extending from the bottom portion and operable to cover a portion of a user's chest; and a rear flap (see annotated Fig.) extending from the bottom portion and operable to cover a portion of a user's back (annotated fig. 1 shows the front and rear flaps extending from the bottom portion and configured to extend over the wearer’s chest and back, respectively), the front flap and rear flap separated by joints (see annotated Fig.) (annotated fig. 1 shows the front and rear flaps being separated by joints), and wherein the bottom portion (see annotated Fig.) of the head cover (2) further comprises a left flap (see annotated Fig.) operable to cover a portion of a user's left shoulder and a right flap (see annotated Fig.) operable to cover a portion of a user's right shoulder (annotated fig. 1 shows the left and right flap disposed between the front and back flaps and therein clearly being operable to over a portion of a user’s left and right shoulders, respectively). Volgyesi further teaches wherein the left flap (see annotated Fig.) is equal in length to the right flap (see annotated Fig.) (annotated fig. 1 shows the left flap being equal in length to the right flap).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Herzig to include the teachings of Volgyesi such that the left flap is equal in length to the right flap so as to provide equal protection to both of the wearer’s shoulders and arm areas.
Regarding Claim 28, modified Herzig teaches all of the limitations of the surgical garment of Claim 21, as discussed in the rejections above.
Herzig does not teach wherein the front flap, rear flap, left flap, and right flap are approximately equal in length.
Attention is drawn to Volgyesi, which teaches an analogous article of apparel. Volgyesi teaches a head cover (2) with an exterior surface (see annotated Fig.), a transparent face shield (8) (fig. 1 shows the head cover (2) having an exterior surface and a transparent face shield (8); paragraph [0038], “transparent shield 8 covers the eyes of the user”), a bottom portion (see annotated Fig.) operable to completely cover a portion of a user's body (fig. 1 shows the bottom portion being continuous and therein is operable to completely cover a portion of a user’s body), a front flap (see annotated Fig.) extending from the bottom portion and operable to cover a portion of a user's chest; and a rear flap (see annotated Fig.) extending from the bottom portion and operable to cover a portion of a user's back (annotated fig. 1 shows the front and rear flaps extending from the bottom portion and configured to extend over the wearer’s chest and back, respectively), the front flap and rear flap separated by joints (see annotated Fig.) (annotated fig. 1 shows the front and rear flaps being separated by joints), and wherein the bottom portion (see annotated Fig.) of the head cover (2) further comprises a left flap (see annotated Fig.) operable to cover a portion of a user's left shoulder and a right flap (see annotated Fig.) operable to cover a portion of a user's right shoulder (annotated fig. 1 shows the left and right flap disposed between the front and back flaps and therein clearly being operable to over a portion of a user’s left and right shoulders, respectively). Volgyesi further teaches wherein the front flap, rear flap, left flap, and right flap are approximately equal in length (annotated fig. 1 shows the front, rear, left, and right flaps being approximately equal in length, Examiner notes the fig. 1 is tilted backwards so that the opening (4) of the head covering can be seen, however when flat the flaps are clearly approximately equal in length).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Herzig to include the teachings of Volgyesi such that the front flap, rear flap, left flap, and right flap are approximately equal in length so as to simplify manufacturing and reduce waste by using four flaps that are identical in length, and so as to improve efficiency in manufacturing because respective portions of the cut head cover material will be easily aligned for seaming.
Regarding Claim 29, modified Herzig teaches all of the limitations of the surgical garment of Claim 21, as discussed in the rejections above.
Herzig does not explicitly teach wherein the front flap and rear flap have greater lengths than the left flap and right flap. However, Herzig shows the flaps of the head covering extending further down the wearer’s front than along their shoulder. Further, modified Herzig has a front, rear, left, and right flap. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify Herzig such that the front flap and rear flap have greater lengths than the left flap and right flap so as to afford greater protection to the more vital areas of the wearer, and so as to avoid bunching of the left and right flaps as the extend down the wearer’s sleeve. Further in support of this conclusion of obviousness, it is noted that the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Gardner v. TEC Syst., Inc. See MPEP 2144.04.
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Claim(s) 30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herzig (US 3496572) in view of Volgyesi (US 2006/0010589) and Tanaka (US 4677696), and further in view of Birmingham (US 7926120).
Regarding Claim 30, modified Herzig teaches all of the limitations of the surgical garment of Claim 21, as discussed in the rejections above.
Herzig does not teach straps on the surgical gown operable to be fastened together across a user's shoulders.
Attention is drawn to Birmingham, which teaches an analogous article of apparel. Birmingham teaches a surgical gown (100) with a neck opening (102), the surgical gown including a main body operable to cover a user's torso (fig. 1 shows the main body of the gown being operable to cover a user’s torso). Birmingham further teaches straps (104) on the surgical gown operable to be fastened together across a user's shoulders (fig. 2 shows the straps (104) operable to be fastened together across a user’s shoulders).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Herzig to include the teachings of Birmingham such that the surgical gown includes straps operable to be fastened together across a user's shoulders so that a single size of gown can be used to accommodate a large variety of different sized wearers (col. 2 ll. 18-20, “a tie portion 104 to allow the isolation gown 100 to be secured and to accommodate wearers of different sizes.”)
Claim(s) 31 and 32 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herzig (US 3496572) in view of Volgyesi (US 2006/0010589) and Tanaka (US 4677696), and further in view of Johnson (US 2016/0199674).
Regarding Claim 31, modified Herzig teaches all of the limitations of the surgical garment of Claim 21, as discussed in the rejections above.
Herzig does not teach wherein at least one of the front flap, rear flap, left flap, and right flap and a section of surgical gown fasten via a snap fastener, hook and loop fastener, or strap fastener.
Attention is drawn to Johnson, which teaches an analogous article of apparel. Johnson teaches a garment assembly comprising: a head cover (24) with an exterior surface (fig. 1 shows the exterior surface of the head cover), a bottom portion (see annotated Fig.), a front flap (see annotated Fig.) extending from the bottom portion and operable to cover a portion of a user's chest (annotated fig. 1 show the front flap extending from the bottom portion to cover a portion of a user’s chest); and a surgical gown (17) with a neck opening (13) configured to receive therewithin the head cover with the bottom portion of the head cover adjacent the neck opening (as the neck opening is an opening is clearly configure to receive therewithin the head cover with the bottom portion being adjacent the neck opening) with the front flap extending below the neck opening of the surgical gown (annotated fig. 1 shows the front flap extending past the neck (13)), the surgical gown including a main body operable to cover a user's torso (fig. 1 shows the gown (17) including a main body to cover a user’s torso). Johnson further teaches wherein at least one of the front flap, rear flap, left flap, and right flap and a section of surgical gown fasten via a snap fastener, hook and loop fastener, or strap fastener (fig. 1 shows the front flap being secured to the gown by a hook and loop fastener; paragraph [0034], “The gown body 17, particularly its closed front, defines a hook-and-loop neck line 5 (in FIG. 1) that allows for the attachment of the hood 24 in FIG. 5.”).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Herzig to include the teachings of Johnson such that at least one of the front flap, rear flap, left flap, and right flap and a section of surgical gown fasten via a snap fastener, hook and loop fastener, or strap fastener so as to keep the hood in place while the user is moving.
Regarding Claim 32, modified Herzig teaches all of the limitations of the surgical garment of Claim 31, as discussed in the rejections above.
Herzig does not teach wherein the front flap, rear flap, left flap, and right flap each are operable to fasten to the surgical gown via a snap fastener, hook and loop fastener, or strap fastener.
Attention is drawn to Johnson, which teaches an analogous article of apparel. Johnson teaches a garment assembly comprising: a head cover (24) with an exterior surface (fig. 1 shows the exterior surface of the head cover), a bottom portion (see annotated Fig.), a front flap (see annotated Fig.) extending from the bottom portion and operable to cover a portion of a user's chest (annotated fig. 1 show the front flap extending from the bottom portion to cover a portion of a user’s chest); and a surgical gown (17) with a neck opening (13) configured to receive therewithin the head cover with the bottom portion of the head cover adjacent the neck opening (as the neck opening is an opening is clearly configure to receive therewithin the head cover with the bottom portion being adjacent the neck opening) with the front flap extending below the neck opening of the surgical gown (annotated fig. 1 shows the front flap extending past the neck (13)), the surgical gown including a main body operable to cover a user's torso (fig. 1 shows the gown (17) including a main body to cover a user’s torso). Johnson further teaches wherein at least one of the front flap, rear flap, left flap, and right flap and a section of surgical gown fasten via a snap fastener, hook and loop fastener, or strap fastener (fig. 1 shows the front flap being secured to the gown by a hook and loop fastener; paragraph [0034], “The gown body 17, particularly its closed front, defines a hook-and-loop neck line 5 (in FIG. 1) that allows for the attachment of the hood 24 in FIG. 5.”).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Herzig to include the teachings of Johnson such that at the front flap, rear flap, left flap, and right flap each are operable to fasten to the surgical gown fasten via a snap fastener, hook and loop fastener, or strap fastener so as to keep the entire circumference of the hood in place while the user is moving.
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Claim(s) 33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herzig (US 3496572) in view of Tanaka (US 4677696).
Regarding Claim 33, Herzig teaches a method of using a multi-piece surgical garment comprising the steps of: receiving a surgical garment (see fig. 1) configured for surgical applications with a head cover (23) having a bottom portion (see annotated Fig.) and flaps (24) (annotated Fig. 1 shows a front flap extending from the bottom portion and covering a user’s chest, a back flap also with an extension is disposed on the back side of the user (not shown), as disclosed in col. 3 ll. 37-39, “hood 23 which extends down around the wearer’s neck and hangs down upon the wearer’s shoulder over the chest and back,”), and also a gown (10) with a neck opening (12); positioning the head cover with the bottom portion and flaps over a user's head (fig. 1 shows the head cover (23) positioned to go over a user’s head); positioning a neck opening (12) of a surgical gown (10) over the head cover and onto a torso of the wearer (fig. 1 shows the neck opening (12) positioned over the head cover (23) and being positioned to be placed onto a torso of the wearer), the surgical gown configured to continuously cover the wearer around a circumference of a main body of the surgical gown (fig. 1 shows the gown (10) being configured to continuously cover a wearer around an entire circumference of the main body); and tightening the neck opening (12) of the surgical gown to secure the flaps of the head cover with each flap extending below the neck opening of the surgical gown (fig. 1 shows the neck opening being tightened around a wearer’s neck by a button, the flaps of the head cover extending below the neck opening).
Herzig does not teach wherein the surgical garment is free from a front opening in the main body.
Attention is drawn to Tanaka which teaches an analogous article of apparel. Tanaka teaches a surgical garment (see fig. 11) with a head cover (7) and a gown (1, 2) with a neck opening (8); the surgical gown configured to continuously cover the wearer around a circumference of a main body (3) of the surgical gown while being free from a front opening in the main body (figs. 1 and 2 show the gown (1, 2) continuously covering the wearer around a circumference of the main body (3) and being free of a front opening in the main body (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 modify Herzig to include the teachings of Tanaka such that the surgical garment is free from a front opening in the main body so as to prevent leakage onto the front of the wearer’s body through any front opening on the main body (col. 3 ll. 5-12, “As the dust-free garment of the present invention is formed to make an integrated front part for the jacket 1 and pants 2 with a single sheet of cloth without seams, closures or any other joints, when the worker performs work at a sedentary position and moves his upper body, dust inside the garment is securely prevented from leaking out through the front part with such a structure.”). Examiner notes that as modified Herzig teaches all of the claimed structural components of the invention, and therein would necessarily perform the method claimed, the method steps recited above will be considered to be anticipated by the prior art device. See MPEP 2112.02.
Claim(s) 34 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herzig (US 3496572) in view of Tanaka (US 4677696), and further in view of Birmingham (US 7926120).
Regarding Claim 34, modified Herzig teaches all of the limitations of the method of use of Claim 33, as discussed in the rejections above.
Herzig further teaches wherein tightening of the neck opening comprises tightening straps across the user's shoulders.
Attention is drawn to Birmingham, which teaches an analogous article of apparel. Birmingham teaches a surgical gown (100) with a neck opening (102), the surgical gown configured to continuously cover the wearer around a circumference of a main body of the surgical gown (fig. 1 shows the main body of the gown being configured to continuously cover the wearer around a circumference of the torso). Birmingham further teaches straps (104) on the surgical gown operable to tighten the neck opening (fig. 2 shows the straps (104) operable to be fastened together across a user’s shoulders, therein tightening the neck opening).
Examiner notes that as modified Herzig teaches all of the claimed structural components of Claim 34 of the invention, and therein would necessarily perform the method claimed, the method steps recited above will be considered to be obvious over the prior art device. See MPEP 2112.02.
Claim(s) 35-39 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herzig (US 3496572) in view of Tanaka (US 4677696), and further in view of Volgyesi (US 2006/0010589).
Regarding Claim 35, modified Herzig teaches all of the limitations of the method of use of Claim 33, as discussed in the rejections above.
Herzig further teaches wherein the bottom portion of the head cover comprises a front flap, rear flap, left flap, and right flap.
Attention is drawn to Volgyesi, which teaches an analogous article of apparel. Volgyesi teaches a head cover (2) having a bottom portion (see annotated Fig.) and flaps (see annotated Fig.). Volgyesi further teaches wherein the bottom portion of the head covering comprises a front flap, rear flap, left flap, and right flap (annotated fig. 1 shows the bottom portion of the head cover comprising a front, rear, left, and right flap).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Herzig to include the teachings of Volgyesi such that the bottom portion of the head covering comprises a front flap, rear flap, left flap, and right flap so as to fully cover the user’s upper torso with the head covering while maintaining flexibility and movement of the user’s arms with the use of separate flaps.
Examiner notes that as modified Herzig teaches all of the claimed structural components of Claim 35 of the invention, and therein would necessarily perform the method claimed, the method steps recited above will be considered to be obvious over the prior art device. See MPEP 2112.02.
Regarding Claim 36, modified Herzig teaches all of the limitations of the method of use of Claim 35, as discussed in the rejections above. Modified Herzig further teaches wherein the left and right flap cover the shoulders of the user and a portion of each of the user's arms (as modified Herzig teaches the left and right flap (as modified in the rejection above), therein the left and right flap could clearly cover the shoulders of the user and a portion of each of the user's arms during normal use and operation of the garment).
Examiner notes that as modified Herzig teaches all of the claimed structural components of Claim 36 of the invention, and therein would necessarily perform the method claimed, the method steps recited above will be considered to be obvious over the prior art device. See MPEP 2112.02.
Regarding Claim 37, modified Herzig teaches all of the limitations of the method of use of Claim 35, as discussed in the rejections above. Herzig further teaches wherein the bottom portion (see annotated Fig.) of the head covering (23) is adjacent the neck opening (12) of the surgical gown (10) after the head cover and the surgical gown are placed upon the user (fig. 1 shows the bottom portion of the head cover being positioned adjacent the neck opening when the head covering and gown are placed on a wearer).
Examiner notes that as modified Herzig teaches all of the claimed structural components of Claim 37 of the invention, and therein would necessarily perform the method claimed, the method steps recited above will be considered to be obvious over the prior art device. See MPEP 2112.02.
Regarding Claim 38, modified Herzig teaches all of the limitations of the method of use of Claim 35, as discussed in the rejections above. Herzig further teaches tightening straps (13) about a waist location of the surgical gown after the gown is placed on the user after the head covering is placed on the user (fig. 1 shows strap (13) at the wearer’s waist for tightening).
Examiner notes that as modified Herzig teaches all of the claimed structural components of Claim 38 of the invention, and therein would necessarily perform the method claimed, the method steps recited above will be considered to be obvious over the prior art device. See MPEP 2112.02.
Regarding Claim 39, modified Herzig teaches all of the limitations of the method of use of Claim 35, as discussed in the rejections above. Modified Herzig further teaches overlapping the front flap over a portion of the user's chest, the rear flap over a portion of the user's back, the left flap over a portion of the user's left shoulder, and the right flap over a portion of a user's right shoulder with the surgical gown to reduce the likelihood of contamination (as modified Herzig teaches the front, back, left, and right flaps (as modified in the rejection above), therein the left and right flap could clearly cover the shoulders of the user and a portion of each of the user's arms during normal use and operation of the garment).
Response to Arguments
Applicant’s arguments with respect to claim(s) 20-26 and 28-39 have been considered but are moot because the new ground of rejection necessitated by amendment. Therefore, see aforementioned rejections for the argued missing limitations.
Applicant submits that Herzig and Volgyesi are not analogous prior art, as Herzig is directed to a dust proof garment and Volgyesi is for stopping the biting of insects. Applicant further submits that the teachings of these references are mutually exclusive and therein there is no reasoning or motivation to combine their teachings. Further, Applicant submits that Herzig and Volgyesi address different problems than one another and further different problems than the instant invention. For these reasons, Applicant submits the 35 U.S.C. 103 rejection over Herzig in view of Volgyesi was not proper.
Examiner disagrees, and submits that Herzig and Volgyesi are analogous art by both tests of analogousness. Herzig and Volgyesi are both from the same field endeavor as the instant invention, as the references and the instant invention are all wearable apparel. It is common sense that one of ordinary skill in the art would consider articles of apparel to be in the same field as one another. Even more narrowly, all three are articles of protective clothing. The field of surgical garments is too narrow, to be considered the field of endeavor for the analogous art test, as MPEP 2141.01(a) teaches "the field of endeavor is ‘not limited to the specific point of novelty, the narrowest possible conception of the field, or the particular focus within a given field.’" Further, Herzig and Volgyesi are also reasonably pertinent to the problem faced by the inventor. Both references would have clearly “commended itself to an inventor's attention in considering his problem,” with the problem here understood to be the lack of multipiece protective garments (see MPEP 2141.01(a)). Both Herzig and Volgyesi appear to be solutions to this problem, and therefore reasonably pertinent in such a way that a person of ordinary skill in the art would have consulted them and applied their teachings. For at least these reasons, Examiner maintains the rejections over Herzig and Volgyesi as they are considered to be relevant and analogous prior art.
Further, Applicant submits that the combination of Herzig and Volgyesi is hindsight reasoning, as Herzig is a one piece suit that does not teach a separate gown and hood and the only motivation to separate the suit of Herzig comes from the instant invention. Examiner disagrees, and submits that Herzig does not teach a one piece suit, and does teach a gown and a separate head covering. Col. 2 ll. 29-31 of Herzig teaches “The body portion of the garment or uniform of the present invention, is ended at its top, by means of a straight and cylindrical collar 12,” therein the hood is clearly a separate structure than the body, who’s top is formed by the collar. Further in support of the hood being formed separately from the main body portion, Col. 3 ll. 24-39 of Herzig teaches “a hood 23, arranged all around the head of the user, and which is held by means of a cylindrical collar 12 of the body portion 10, which encircles a skirt portion of the hood 23 which extends down around the wearer's neck and hangs upon the wearer's shoulders over the chest and back as is shown at 24,” which is also shown in fig. 1, both providing support for the head cover being a separate piece. Additionally, Applicant has provided no citation from the Herzig reference that concretely shows that Herzig’s gown body and head cover are formed of one piece. Examiner notes that the Remarks have only provided the conclusory statement “the hood is permanently connected to the gown at the collar” (pg. 9) without providing any clear evidence, and has further failed to rebut the evidence set forth above and in the prior office action that the garment of Herzig is two pieces. Therefore, Examiner submits that the teaching of a separate main gown body and head covering comes from the prior art, rather than the instant invention.
Applicant also submits that the combination of the teachings of Herzig and Volgyesi would destroy the function of Herzig’s imperviousness. Applicant notes that Volgyesi’s head covering is made of a porous foam, and therein could not be proper for maintaining sterility as would be required by Herzig’s dust room garment, and submits that the material of Volgyesi cannot be ignored in the modification as the reference is primarily about the material. In response to Applicant's argument that Volgyesi’s head covering is porous and breathable “mosquito netting” like material that is improper for the garment of Herzig, Examiner notes that the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). In the instant case, the teachings of Volgyesi were used to modify the shape of the head covering of Herzig, not the materials of Herzig. Examiner notes that if Herzig did not teach a head covering for example, the material properties of the head covering of Volgyesi would not be proper to disregard, however as Herzig does teach a separate head covering (as noted above), it is proper to rely on Volgyesi solely for the teachings of the structure of the head covering for the modification of Herzig.
Further, Applicant submits that neither Herzig or Volgyesi teach or suggest “overlapping flaps or fasteners,” the plurality of flaps overlapping to ensure continuous coverage, and the use of fasteners to secure the head covering to the gown. Examiner notes that there are no overlapping flaps, overlapping fasteners, or flaps ensuring continuous coverage recited in the instant claims. While Claims 31 and 32 do recite fasteners being present on the flaps to fasten to the gown, Examiner notes that these limitations are rejected in view of Herzig, Volgyesi, and Johnson, and Applicant has not submitted why Johnson does not teach these limitations. Examiner respectfully suggests further amending these limitations into the claims to define the claim language over Herzig and Volgyesi.
Additionally, in response to applicant's argument based upon the age of the references, contentions that the reference patents are old are not impressive absent a showing that the art tried and failed to solve the same problem notwithstanding its presumed knowledge of the references. See In re Wright, 569 F.2d 1124, 193 USPQ 332 (CCPA 1977).
Applicant also submits that Tanaka does not remedy the fundamental gaps in the combination or render the invention obvious. Specifically, Applicant submits that Tanaka is a unified suit that does not teach a detachable hood, that the teaching of a gown with a back rather than a front opening (the teachings Tanaka is relied upon for teaching) is known in the art and therefore does not require an additional reference, and Tanaka does not teach a hood with flaps secured under the gown. Applicant submits that the modification of Herzig can only be made with hindsight reasoning. Examiner disagrees. As noted above, Herzig teaches a two piece garment, a gown and a detachable hood, and as such Tanaka is not relied upon for this teaching. While a rejection could have been made, in theory, without the teaching of the opening being located in the back of the garment from Tanaka, the best practice is to include a reference as opposed to using official notice for example. Finally, as noted above, Claim 20 does not recite the flaps being secured to the inside of the gown. Examiner notes that Claims 31 and 32 recite this limitation, and Johnson is relied upon for the teaching of this limitation rather than Tanaka.
Conclusion
THIS ACTION IS MADE FINAL. 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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/HALEY A SMITH/Primary Examiner, Art Unit 3732