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 .
Status of Claims
Claims 1-8 and 13 are rejected. Claims 9-12 are withdrawn.
Response to Arguments
Claim Interpretation
The Examiner has updated the claim interpretation based on the amendment.
Specification
The previous specification objection has been withdrawn in view of the amendment.
Claim Objections
The previous claim objections have been withdrawn in view of the amendment.
Claim Rejections - 35 USC § 112
The previous 112 rejections have been withdrawn in view of the amendment.
Claim Rejections - 35 USC § 103
Applicant's arguments filed 7/2/26 have been fully considered but they are not persuasive. Applicant’s arguments regarding the Staton reference are moot as it is no longer applied. Applicant asserts that Schultz does not teach a plurality of overlying layers…comprising: an outer reflective layer overlaying and coupled to a mesh layer;…a semi-rigid layer overlaying the wicking layer and disposed between the mesh layer and the wicking layer, the semi-rigid layer comprising a band and a frame; wherein the wicking layer is removably attached to the semi-rigid layer and the mesh layer overlayers the semi-rigid layer. However, the Examiner disagrees. See the rejection below for further details.
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: the limitation of “a plurality of overlying layers” in claim 1.
Claim Objections
Claim 1 is objected to because of the following informalities: “layer ;” in claim 1 should recite –layer;--. Appropriate correction is required.
Claims 1-3 are objected to because of the following informalities: “sensor module” and “sensor modules” should recite –sensing module—and –sensing modules—as disclosed in the specification. Appropriate correction is required.
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.
sensor module in claim 1; and
a communications module in claim 1.
For sensing module in claims 1 and 4, the specification discloses “the sensing module can be more than one and any combination of the following sensors, a thermal sensor, accelerometer, infrared sensor, pulse meter, digital thermometer, or the like” (¶29). Therefore, the Examiner is interpreting the sensing module to be at least one of a thermal sensor, accelerometer, infrared sensor, pulse meter, digital thermometer, or more than one and any combination.
For a communications module in claim 1, the specification discloses “the communication module can transmit via Bluetooth Low Energy ("BLE"), Wi-Fi, or any other suitable wireless communications module” (¶30). Therefore, the Examiner is interpreting the communications module to be Bluetooth Low Energy ("BLE"), Wi-Fi, or any other suitable wireless communications module.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 3-6, 8, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Proctor (US 20160203663 filed on 9/11/15) in view of Schultz (US 5157788 filed on 5/17/91).
Regarding claim 1, Proctor teaches a hydrothermal sensing device configured to contact the skin of a user (¶84-sweat-wicking loop material, near the temple of the wearer, along the sweatband 124, a sensor may be located for taking an accurate measurement of the wearer's pulse; ¶96; Fig. 5), a printed circuit board having a microcontroller, a communications module, and a power source (¶82-in Figure 5, may comprise a back strap pouch or pocket 120. This pouch may be used to hold a microprocessor unit 122. In some embodiments, a microprocessor unit 122 may comprise a mobile computing device such as an iPhone, android phone or a customized circuit board such a Raspberry Pi or other configurations. The microprocessor unit 122 may draw power from the onboard power source 104 with a wired connection and may have its own battery as well. The microprocessor unit 122 may comprise a processor, memory, wireless network interface, Bluetooth interface, battery, display and/or other components; ¶94-headwear 100 with a wireless communications interface (e.g., IEEE 802.11(e) or (g), Bluetooth, ANT, etc.) for communication with physiological sensors, accelerometers and other data acquisition devices; ¶97-99); and at least one sensor module configured to contact the skin of the user and placed around an inner perimeter of the band or on the inner surface of the frame (¶84-near the temple of the wearer, along the sweatband 124, a sensor may be located for taking an accurate measurement of the wearer's pulse. Other sensors may also be located along the sweatband 124 and may be affixed thereto by hook-and- loop- like attachment; Fig. 5).
However, Proctor does not explicitly teach wherein the hydrothermal sensing device comprises: a plurality of overlying layers forming a wearable item, the overlying layers comprising: an outer reflective layer overlaying and coupled to a mesh layer; a wicking layer configured to provide an evaporative cooling effect to the skin of the user; a semi-rigid layer overlaying the wicking layer and disposed between the mesh layer and the wicking layer, the semi-rigid layer comprising a band and a frame; wherein the wicking layer is removably attached to the semi-rigid layer and the mesh layer overlays the semi-rigid layer.
Schultz relates to ventilated, heat attenuating headwear and, more particularly, to a hat designed to keep the wearer cool and dry, particularly during outdoor activities (col. 1, lines 6-9). Schultz further teaches the invention using the following steps:
wherein the hydrothermal sensing device comprises: a plurality of overlying layers forming a wearable item (col. 2 and lines 42-44-FIG. 2 is a view similar to FIG. 1 of the hat with a portion of the outer mesh section cut away to illustrate the inner mesh section and support grid), the overlying layers comprising: an outer reflective layer (col. 1, lines 49-50-an outer, radiation reflecting mesh layer) overlaying and coupled to a mesh layer (col. 2 and lines 4-6-the outer mesh section includes means for reflecting away from the headwear a portion of solar radiation that strikes the outer mesh section); a wicking layer configured to provide an evaporative cooling effect to the skin of the user (col. 1 and lines 47-49-utilizing an inner, perspiration wicking and evaporative mesh layer for engaging the crown and sides of the wearer's head; col. 2 and lines 64-68-a preferred material for the inner mesh is COOLMAX (TM) fabric certified by Dupont Corporation. This material provides an optimum degree of ventilation and exhibits exceptional wicking capabilities; MPEP 2114 states: "[A]pparatus claims cover what a device is, not what a device does,” therefore the structure of the wicking layer is capable of provide an evaporative cooling effect to the skin of the user); a semi-rigid layer overlaying the wicking layer and disposed between the mesh layer and the wicking layer (col. 5 and lines 13-16-provide hat 10 with some degree of rigidity and a relatively permanent shape, a support grid 42 is disposed between the inner mesh section 26 and the outer mesh section 12), the semi-rigid layer comprising a band and a frame (col. 5 and lines 13-16-provide hat 10 with some degree of rigidity and a relatively permanent shape, a support grid 42 is disposed between the inner mesh section 26 and the outer mesh section 12; col. 5 and lines 30-34-support grid 42 is located between the mesh sections such that lower edge 46 extends generally along the brim of hat 10 and upper edge 44 extends generally along the upper edge of side portion 14; Figs. 2-3); wherein the wicking layer is removably attached to the semi-rigid layer (col. 1 and lines 66-68-the inner mesh section includes a wicking and evaporative material that may comprise a hydrophobic fabric; MPEP 2114 states: "[A]pparatus claims cover what a device is, not what a device does,” therefore the structure of the wicking layer is capable of being removable) and the mesh layer overlays the semi-rigid layer (col. 5 and lines 13-16-provide hat 10 with some degree of rigidity and a relatively permanent shape, a support grid 42 is disposed between the inner mesh section 26 and the outer mesh section 12).
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 the invention of Proctor to include wherein the hydrothermal sensing device comprises: a plurality of overlying layers forming a wearable item, the overlying layers comprising: an outer reflective layer overlaying and coupled to a mesh layer; a wicking layer configured to provide an evaporative cooling effect to the skin of the user; a semi-rigid layer overlaying the wicking layer and disposed between the mesh layer and the wicking layer, the semi-rigid layer comprising a band and a frame; wherein the wicking layer is removably attached to the semi-rigid layer and the mesh layer overlays the semi-rigid layer of Schultz in order to provide the hat with some degree of rigidity and a relatively permanent shape (Schultz, col. 5 and lines 14-15) and keep the wearer cool and dry, particularly during outdoor activities (Schultz, col. 1 and lines 8-9).
Regarding claim 3, the combination of Proctor and Schultz teaches the device of claim 1, wherein the wicking layer comprises at least one hole (Schultz, col. 5 and lines 6-8-recess 22 is formed by cutting complementary openings, in the shape of recess 22, in both outer and inner mesh sections 12 and 26) to allow the at least one sensor module to access the user’s skin (Proctor, ¶46-a galvanic skin resistance as an electrical resistance between two electrodes on the surface of the skin and may measure a galvanic skin potential as a voltage between two electrodes on the surface of the skin without any externally applied current. A GSR value may comprise a combination of a skin resistance value and a skin potential value; ¶43-a PPG sensor otherwise known as a pulse oximeter or photoplethysmography; ¶45-thermal sensors; ¶94-accelerometers; ¶96-headwear 100 may also comprise sensors such as pulse, brain function, temperature, respiration, perspiration and hydration; MPEP 2114-"[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing 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" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)).
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 the invention of Proctor to include wherein the wicking layer comprises at least one hole of Schultz in order to interengage elements into the recess (Schultz, col. 5 and lines 51-60).
Regarding claim 4, the combination of Proctor and Schultz teaches the device of claim 1, wherein the at least one sensing module is at least one of a thermal sensor, an accelerometer, and a pulse meter (Proctor, ¶43-a PPG sensor otherwise known as a pulse oximeter or photoplethysmography; ¶45-thermal sensors; ¶94-accelerometers).
Regarding claim 5, the combination of Proctor and Schultz teaches the device of claim 1, wherein the at least one sensing module comprises a thermal sensor, an accelerometer, and a pulse meter (Proctor, ¶43-a PPG sensor otherwise known as a pulse oximeter or photoplethysmography; ¶45-thermal sensors; ¶94-accelerometers; ¶96-headwear 100 may also comprise sensors such as pulse, brain function, temperature, respiration, perspiration and hydration).
Regarding claim 6, the combination of Proctor and Schultz teaches the device of claim 1, wherein the wicking layer has been treated with a solution to prevent water absorption (Schultz, col. 1 and lines 66-68-the inner mesh section includes a wicking and evaporative material that may comprise a hydrophobic fabric; col. 2 and lines 59-63-the inner mesh section is designed to provide an optimum degree of ventilation and dryness for the wearer. Preferably, it should be composed of a woven or knitted hydrophobic fabric that wicks perspiration away from the skin of the wearer; MPEP 2114- "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing 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" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)).
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 the invention of Proctor to include wherein the wicking layer has been treated with a solution to prevent water absorption of Schultz in order to keep the wearer cool and dry, particularly during outdoor activities (Schultz, col. 1 and lines 8-9).
Regarding claim 8, the combination of Proctor and Schultz teaches the device of claim 1, wherein the hydrothermal sensing device is a hat (Proctor, ¶50-various types of headwear, such as a…hat).
Regarding claim 13, the combination of Proctor and Schultz teaches the device of claim 5, wherein the microcontroller analyzes data reflecting the temperature, pulse rate, and acceleration of the user and compares the data to the user’s information (Proctor, ¶94-accelerometers, data from these sensors may be streamed to microprocessor unit 122 in real time. Instructions on microprocessor unit 122 may process this data and analyze it in real time; ¶96-headwear 100 may also comprise sensors such as pulse, brain function, temperature, respiration, perspiration and hydration; ¶43-a PPG sensor otherwise known as a pulse oximeter or photoplethysmography; ¶45-thermal sensors; MPEP 2114-"[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing 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" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)).
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Proctor in view of Schultz as applied to claims 1, 3-6, 8, and 13 above, and further in view of Howard (US 20190117156 filed on 10/24/18).
Regarding claim 2, the combination of Proctor and Schultz teaches the device of claim 1. However, the combination of Proctor and Schultz does not explicitly teach wherein the at least one sensor module is an array of sensor modules configured to detect an array of temperatures and provide a thermal heat map.
Howard teaches wherein the at least one sensor module is an array of sensor modules configured to detect an array of temperatures and provide a thermal heat map (¶56-the collective temperature readings from the thermistors may be used by the controller to produce a thermal heat map; ¶25).
Howard generally relates to wearable technology usable to measure and monitor physiological and activity information about a user for applications such as post-injury or post-operative rehabilitation (¶2).
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 the invention of Proctor to include wherein the at least one sensor module is an array of sensor modules configured to detect an array of temperatures and provide a thermal heat map of Howard in order to identify a presence or lack of an internal condition of the patient (Howard, ¶56).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Proctor in view of Schultz as applied to claims 1, 3-6, 8, and 13 above, and further in view of Waters (US 20080130272 filed on 11/16/07).
Regarding claim 7, the combination of Proctor and Schultz teaches the device of claim 1. However, the combination of Proctor and Schultz does not teach wherein the printed circuit board is flexible.
Waters teaches wherein the printed circuit board is flexible (¶173-flexible printed circuit board (FPCB)).
Waters relates to hands-free lighting devices and, in particular, to lighted hats, lighted eyeglass frames, and lighted clothing items (¶2).
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 the invention of Proctor to include wherein the printed circuit board is flexible of Waters in order to bens or flex in order to conform to the shape of the brim member (Waters, ¶114).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 20140053318: relates to headwear/headgear and, more particularly, relate to a portable power supply built into headwear/headgear (¶2).
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/L.N.H./Examiner, Art Unit 3792
/AMANDA L STEINBERG/Examiner, Art Unit 3792
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