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
Applicant’s amendment of 03/20/2025 is acknowledged.
Claims 1-4, 6-18, 23-24, and 27 are presented, of which claims 12, 14, and 23 remain withdrawn.
Claim 1 is presented in independent form and is amended.
The present office action treats claims 1-4, 6-11, 13, 15-18, 24, and 27 on the merits.
The present office action is a Final Rejection.
Response to Arguments
Applicant’s REMARKS of 03/20/2025 (see p. 7-12 of the reply) are fully considered.
Regarding Objection to the Specification: Applicant’s arguments are fully considered. The claim amendment to claim 1 renders the specification objection as applied in the previous office action moot. However, upon further review of the present disclosure, the specification is again objected to; see objection below.
Regarding Rejection under 35 USC 112(a): Applicant’s arguments are fully considered. The claim amendment to claim 1 renders 35 USC 112(a) rejections as applied in the previous office action moot.
Regarding Rejection under 35 USC 112(b): Applicant’s arguments are fully considered. The claim amendment to claim 1 renders 35 USC 112(b) rejections as applied in the previous office action moot. However, the amendment has necessitated new 35 USC 112(b) rejections.
Regarding Rejection under 35 USC 102(a)(1) and 103 (p. 9-12): Applicant’s arguments are fully considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Specification
The disclosure is objected to because of the following informalities:
The specification, by amendment on 04/28/2023, states “The present invention claims priority to: U.S. Provisional Patent Application Serial No. 62/135,412, having title "Barrier Undergarment for Oral Sex," filed on March 20, 2015; U.S. Provisional Patent Application Serial No. 62/247,754, having title "Barrier Garment," filed on October 29, 2015; and U.S. Provisional Patent Application Serial No. 62/253,006, having title "Barrier Garment," filed on November 9, 2015”
However, attention is drawn to the Filing Receipt of 02/26/2021, which lists no domestic or foreign applications for which benefit and/or priority is/are claimed (see p. 1 of the Filing Receipt).
This specification objection could be overcome by correcting the disclosure so that statement(s) directed to priority claim(s) is/are correct.
Appropriate correction is required.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the parallel flat planes of claim 1 and the at least two edges of claim 1 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Providing replacement sheet(s) identifying the feature(s) with lead-lines and reference characters could overcome these drawings objections. No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-4, 6-11, 13, 15-18, 24, and 27 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 lines 1-2 recites “A garment, comprising: a membrane formed of elastomeric non-permeable material”. Claim 1 lines 15-16 further recites “wherein the garment is a continuous layer of elastomeric material and exhibits as one layer of elastomeric material when worn”. The recitations are indefinite insofar as it is not clear how many layer(s) and/or elastomeric material(s) is/are claimed. For example: it is not clear whether and how “a continuous layer of elastomeric material” of line 15 relates to the “elastomeric non-permeable material” of line 2; it is further not clear whether and how “one layer of elastomeric material” of lines 15-16 relates to the “elastomeric non-permeable material” of line 2 and/or “a continuous layer of elastomeric material”. Looking to the specification, the specification states (para [24]) that the membrane can “include at least two layers of material” and that “barrier 10 is formed of one or more layers” (para [120]), and it is not clear whether the recitations at lines 1-2 and 15-16 are meant to convey that the garment and/or membrane has plural layers and if so how many layers are claimed and/or which layer(s) exhibit(s) and/or is/are configured to exhbit. For the purpose of applying art, claim 1 line 2 is interpreted as if “a membrane formed of elastomeric non-permeable material” reads instead --a membrane comprising a continuous layer of elastomeric non-permeable material-- and claim 1 lines 15-16 is interpreted as if “wherein the garment is a continuous layer of elastomeric material and exhibits as one layer of elastomeric material when worn” reads instead --wherein the continuous layer of elastomeric non-permeable material is configured to be exhibited when worn--
Claims 2-4, 6-11, 13, 15-18, 24, and 27 are rejected if only because they depend from a rejected claim.
In addition, claim 16 is further indefinite in reciting “the membrane includes at least two layers of material”. As set forth in rejecting claim 1, it is not clear how many layer(s) are claimed, and accordingly, it is not clear whether and how the “at least two layers of material” further limit a layer or layers of claim 1. For the purpose of applying art, claim 16 is interpreted as if “the membrane includes at least two layers of material” reads instead --the membrane includes a second layer of material--.
Claim Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-4, 6-11, 13, 15-18, 24, and 27, as best understood, is/are rejected under 35 U.S.C. 102(a)(1) as being clearly anticipated by [Cristol-Donovan, US 2016/0270452].
Regarding claim 1:
Cristol-Donovan discloses (Figs. 9A-9E):
A garment 10, comprising: a membrane formed of elastomeric non-permeable material (para 19), the membrane including: a front portion 12; a back portion 16; an outer thigh portion 19 on a right side of the membrane (as in Fig. 9A); an outer thigh portion 18 on a left side of the membrane (as in Fig. 9B); and a genital portion 14,wherein the front portion and the back portion of the membrane are joined via the outer thigh portion on the respective right and left sides of the membrane so as to form an opening at a top portion of the membrane (para 17; Figs. 9A-9E), wherein the front portion and the back portion of the membrane are joined via the genital portion (para 17; Figs. 9A-9E), and each outer thigh portion of the respective right and left sides of the membrane are joined via the genital portion to form a respective opening on each of the right and left sides of the membrane (para 17; Figs. 9A-9E), wherein the garment is a continuous layer (Figs. 9A-9E) of elastomeric material (para 19) and exhibits as one layer of elastomeric material when worn (Figs. 9A-9E), and wherein the front portion and the back portion are two parallel flat planes connected via at least two edges (para 31; Figs. 9A-9E).
Regarding claim 2:
Cristol-Donovan discloses The garment of claim 1, as set forth above.
Cristol-Donovan further discloses wherein the membrane is seamless (para 21; para 32; claim 2).
Regarding claim 3:
Cristol-Donovan discloses The garment of claim 1, as set forth above.
Cristol-Donovan further discloses wherein the front portion and the back portion of the membrane are interchangeable (para 21; claim 3).
Regarding claim 4:
Cristol-Donovan discloses The garment of claim 1, as set forth above.
Cristol-Donovan further discloses wherein the membrane is one of: a partially pliable material and a pliable material (para 21; claim 4).
Regarding claim 6:
Cristol-Donovan discloses The garment of claim 4, as set forth above.
Cristol-Donovan further discloses wherein the partially pliable material is one of: a material having a non-flexible region and a material having a reduced flexibility region (para 21; claim 6).
Regarding claim 7:
Cristol-Donovan discloses The garment of claim 1, as set forth above.
Cristol-Donovan further discloses wherein at least one of the following configurations is met: the top portion of the membrane is configured to fit a human wearer's torso snugly, the membrane is configured to fit a human body shape snugly, and the outer thigh portions on the right and left sides of the membrane is configured to fit a human wearer's respective thigh areas snugly (para 22; claim 7).
Regarding claim 8:
Cristol-Donovan discloses The garment of claim 1, as set forth above.
Cristol-Donovan further discloses wherein the membrane thickness is one of: 0.33 millimeters and less than 0.33 millimeters (para 23; claim 8).
Regarding claim 9:
Cristol-Donovan discloses The garment of claim 1, as set forth above.
Cristol-Donovan further discloses wherein at least one of: the respective outer thigh portion of the right side and the left side, and a respective outer edge of a right side and a left side of the genital portion adjacent to the respective outer thigh portion, is configured to have a height of at least one of at least 1 millimeter, at least 8 millimeters, at least 0.8 inches, at least 1.8 inches, at least 2.8 inches, at least 3.8 inches, at least 4.8 inches, at least 5.8 inches, and is configured to have at least a length measuring 8 millimeters from below a human user's genital region to a top of a pelvic bone of the human user (para 23; claim 9).
Regarding claim 10:
Cristol-Donovan discloses The garment of claim 1, as set forth above.
Cristol-Donovan further discloses wherein the membrane is one of disposable and reusable (para 23; claim 10).
Regarding claim 11:
Cristol-Donovan discloses The garment of claim 1, as set forth above.
Cristol-Donovan further discloses wherein the membrane embodies at least one of: a thong shape, a bikini shape, a legging shape, a capri pant shape, high thigh cut shape, a low-rise cut shape, a tanga shape, a cheeky shape, a boy short shape, and a boxer brief shape (para 23; claim 11).
Regarding claim 13:
Cristol-Donovan discloses The garment of claim 1, as set forth above.
Cristol-Donovan further discloses wherein a first portion of the membrane is adjacent to the top opening, and a second and a third portion of the membrane is adjacent to the respective opening formed by the respective outer thigh portions and the genital portion, the first, second and third portions being a part of the membrane and having a thickness greater than a remaining part of the membrane (para 23; claim 13).
Regarding claim 15:
Cristol-Donovan discloses The garment of claim 1, as set forth above.
Cristol-Donovan further discloses wherein the membrane includes material of at least one of: latex, natural rubber latex, synthetic latex, butyl rubber, polyethylene, linear low density polyethylene (LLDPE), low density polyethylene (LDPE), high density polyethylene, polypropylene, olefin copolymer, styrene/butadiene rubber (SBR), polyurethane, polyisoprene, polyvinylidene chloride, polychloroprene, carboxylated acrylonitrile butadiene rubber, nitrile, graphene, spinifex grass, other grass, nanocellulose, vegan material, hypoallergenic material, organic material, superelastomer, other elastomer, other polymer, other copolymer, other polyolefin, and a combination of any of these materials (para 24; claim 15).
Regarding claim 16:
Cristol-Donovan discloses The garment of claim 1, as set forth above.
Cristol-Donovan further discloses wherein the membrane includes at least two layers of material (para 24; claim 16).
Regarding claim 17:
Cristol-Donovan discloses The garment of claim 1, as set forth above.
Cristol-Donovan further discloses wherein the membrane includes at least one of: a design, a color, and a pattern (para 24; claim 17).
Regarding claim 18:
Cristol-Donovan discloses The garment of claim 1, as set forth above.
Cristol-Donovan further discloses wherein the membrane includes a residing substance of at least one of: a lubricant, a powder, a flavoring, and a scent, on at least a part of the membrane (para 24; claim 18).
Regarding claim 24:
Cristol-Donovan discloses The garment of claim 1, as set forth above.
Cristol-Donovan further discloses A process for using the garment of claim 1, comprising: inserting each of a wearer's legs through the opening at the top portion of the membrane; inserting one each of the wearer's legs through one of the respective two thigh portions; pulling the membrane so that the front portion and back portion cover the human torso and the genital portion covers the human genital region; and stretching the two thigh portions according to their lengths along the wearer's legs (para 25; claim 24).
Regarding claim 27:
Cristol-Donovan discloses The garment of claim 1, as set forth above.
Cristol-Donovan further discloses wherein the membrane thickness is greater than 0.33 millimeters (para 23; claim 8).
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1, 3-4, 6-11, 13, and 15-17, as best understood, is/are rejected under 35 U.S.C. 103 as being unpatentable over [D’Huissier, EP-0248173-A1, newly cited] in view of [Giloh, US 2004/0153041, previously cited].
Regarding claim 1:
D’Huissier discloses (Fig. 1):
A garment 1, comprising:
a membrane 1 formed of elastic (para 14 of the translation) non-permeable (“impervious...leakproof”; paras 13-14) material, the membrane including:
a front portion (see annotated Figs. 1-2 – a below);
a back portion (see annotated Figs. 1-2 – a below);
an outer thigh portion on a right side of the membrane (see annotated Figs. 1-2 – a below);
an outer thigh portion on a left side of the membrane (see annotated Figs. 1-2 – a below); and
a genital portion (see annotated Figs. 1-2 – a below),
wherein the front portion and the back portion of the membrane are configured to be joined (as in Fig. 2) via the outer thigh portion on the respective right and left sides of the membrane so as to form an opening (see annotated Figs. 1-2 – a below) at a top portion of the membrane,
wherein the front portion and the back portion of the membrane are joined via the genital portion (as in annotated Figs. 1-2 – a below), and each outer thigh portion of the respective right and left sides of the membrane are joined via the genital portion (the right outer thigh portion is joined to the genital portion via the front and/or back portion; the left outer thigh portion is joined to the genital portion via the front and/or back portion such that each outer thigh portion is joined via the genital portion as claimed) to form a respective opening (see annotated Figs. 1-2 – a below; each outer thigh portion of the respective right and left sides of the membrane are joined via the genital portion of Fig. 1 such that the claimed portions are configured to form the respective openings identified in Fig. 2) on each of the right and left sides of the membrane (as in annotated Figs. 1-2 – a below),
wherein the garment 1 is a continuous layer 1 (Figs. 1-2) of elastic (para 14) material 1 and exhibits as one layer 1 of elastic material when worn (as in Fig. 2), and
wherein the front portion and the back portion are two parallel flat planes (garment and membrane 1 is “flat”; para 9 such that the portions identified are flat and coplanar such that they are two parallel flat planes as claimed) connected via at least two edges (see annotated Figs. 1-2 – a below).
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Although D’Huissier Fig. 1 discloses wherein the front portion and the back portion are two parallel flat planes connected via at least two edges (Fig. 1) and wherein the front portion and the back portion of the membrane are configured to be joined (as in Fig. 2) via the outer thigh portion on the respective right and left sides of the membrane so as to form an opening (see annotated Figs. 1-2 – a below) at a top portion of the membrane, D’Huissier does not expressly disclose that the front portion and the back portion are two parallel flat planes and also the front portion and the back portion of the membrane are joined via the outer thigh portion on the respective right and left sides of the membrane so as to form an opening while the front portion and the back portion remain two parallel flat planes. In other words, D’Huissier as embodied in Fig. 2 appears to show the front portion and back portion curved as they wrap around a wearer’s body when the front portion and back portion are joined via outer thigh portions: “it can fit the shapes of a person”; “envelops the abdomen and buttocks of the user and closes around the waist”; “matches the body of the user” (paras 14-16, Fig. 2) when the front portion and the back portion of the membrane are joined via the outer thigh portion on the respective right and left sides of the membrane so as to form an opening.
However and in further view of D’Huissier: D’Huissier teaches the garment is flat in Fig. 1 (para 9) which is “flexible”, “thin”, and “elastic” so as to “fit the shapes of a person” (para 14) such that one of ordinary skill would expect that its front and back portions of Fig. 1 could be connected together via outer thigh portions in such a way that they remain flat planes and are provided parallel to each other: with a flat plane front portion provided on an abdomen of a wearer and a flat plane back portion parallel thereto provided on a buttocks of a portion and/or with a flat plane front portion superposed over a flat plane back portion for the purpose(s) of folding, storage, and/or transport of the garment.
It 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 to have modified the garment of D’Huissier Fig. 1 such that the front portion and the back portion are two parallel flat planes and also the front portion and the back portion of the membrane are joined via the outer thigh portion on the respective right and left sides of the membrane so as to form an opening in order to yield the predictable result of a garment that is configured to fit a wearer who has flat and parallel buttocks and abdomen regions and/or a garment whose superposed front and back portions lie flat relative to each other for the purpose of compact storage, folding, and/or transport of the garment.
Although D’Huissier discloses the elastic non-permeable material, D’Huissier does not expressly disclose the membrane 1 formed of elastomeric non-permeable material.
Although D’Huissier discloses wherein the garment is a continuous layer of elastic material and exhibits as one layer of elastic material when worn, D’Huissier does not expressly disclose wherein the garment is a continuous layer of elastomeric material and exhibits as one layer of elastomeric material when worn.
However, Giloh teaches “protective garments that comprise a liquid impermeable garment body” (Abstract) wherein “Preferably, the liquid impermeable material is a natural elastomer like latex” (para 10) wherein “latex...forms a stretchable, light weight garment” (para 32).
It 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 to have modified the garment od D’Huissier such that its membrane is formed of latex elastomeric non-permeable material wherein the garment is a continuous layer of latex elastomeric material and exhibits as one layer of latex elastomeric material when worn in order to yield a garment in order to yield a garment that affords liquid impermeability, is stretchable, and/or is light-weight, as taught by Giloh (paras 10-11; 32).
Regarding claim 3:
D’Huissier in view of Giloh teach The garment of claim 1, as set forth above.
D’Huissier further discloses wherein the front portion and the back portion of the membrane are interchangeable (D’Huissier is configured such that one can wear it with the front portion on his abdomen and the back portion on his buttocks or, in the alternative, with the front portion on his buttocks and the back portion on his abdomen such that the limitation is met.
Regarding claim 4:
D’Huissier in view of Giloh teach The garment of claim 1, as set forth above.
D’Huissier further discloses wherein the membrane is one of: a partially pliable material and a pliable material (“flexible, thin, slightly elastic or ductile so that, when used, it can fit the shapes of a person”; para 14).
Regarding claim 6:
D’Huissier in view of Giloh teach The garment of claim 4, as set forth above.
D’Huissier further discloses wherein the partially pliable material is one of: a material having a non-flexible region and a material having a reduced flexibility region.
(The limitation is further limiting of the “partially pliable material” and not the “pliable material” of claim 4; accordingly, D’Huissier meets the limitation because the membrane of D’Huissier is a pliable material; see above treatment of claim 4. “partially pliable material” is presented in the alternative in claim 4 and is therefore not required in order to meet claim 4 and claim 6 limitations if a membrane is a pliable material.
Regarding claim 7:
D’Huissier in view of Giloh teach The garment of claim 1, as set forth above.
D’Huissier further discloses wherein at least one of the following configurations is met: the top portion of the membrane is configured to fit a human wearer's torso snugly (“to fit closely the body of the wearer”; claim 2), the membrane is configured to fit a human body shape snugly (“to fit closely the body of the wearer”; claim 2), and the outer thigh portions on the right and left sides of the membrane is configured to fit a human wearer's respective thigh areas snugly (“to fit closely the body of the wearer”; claim 2).
(It is further noted that the “elastic” that “fit the shapes of a person” (para 14) is provided in areas configured to cover torso, body, and thigh areas such that the membrane is configured to fit torso, body, and/or thigh portions snugly as claimed.)
Regarding claim 8:
D’Huissier in view of Giloh teach The garment of claim 1, as set forth above.
D’Huissier further discloses wherein the membrane thickness is one of: 0.33 millimeters and less than 0.33 millimeters (claim 2, wherein it is noted that “1/10 mm” is equivalent to 0.1 millimeters and is less than 0.33 millimeters).
Regarding claim 9:
D’Huissier in view of Giloh teach The garment of claim 1, as set forth above.
D’Huissier does not expressly disclose wherein at least one of: the respective outer thigh portion of the right side and the left side, and a respective outer edge of a right side and a left side of the genital portion adjacent to the respective outer thigh portion is configured to have a height of at least one of at least 1 millimeter, at least 8 millimeters, at least 0.8 inches, at least 1.8 inches, at least 2.8 inches, at least 3.8 inches, at least 4.8 inches, at least 5.8 inches, and is configured to have at least a length measuring 8 millimeters from below a human user's genital region to a top of a pelvic bone of the human user.
However, one of D’Huissier’s outer edges, as drawn in Figs. 1-2, while not expressly to scale, appears to have a height of at least 1 mm and to be configured to have at least length measuring 8 millimeters from below a genital region to a top of a pelvic bone of the human user (see annotated Figs. 1-2 – b below).
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It 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 to have modified the modified D’Huissier such that its height and length identified above are at least 1 mm and a length of at least 8 mm respectively in order to yield the predictable result of a thigh portion sized and configured to cover an outer thigh of a typical human wearer, particularly in view of extrinsic reference [Osborne, US 5,590,548]’s teaching that a panty can have a circumference of approximately 16-24 inches (col. 5 line 59 of Osborne).
Regarding claim 10:
D’Huissier in view of Giloh teach The garment of claim 1, as set forth above.
D’Huissier further discloses wherein the membrane is one of disposable (Title, Abstract) and reusable (although D’Huissier describes the garment and membrane as being “single-use” (Abstract), it is nonetheless capable of being used more than once such that is it reusable as claimed).
Regarding claim 11:
D’Huissier in view of Giloh teach The garment of claim 1, as set forth above.
D’Huissier further discloses wherein the membrane embodies at least one of: a thong shape, a bikini shape (Figs. 1-2), a legging shape, a capri pant shape, high thigh cut shape (Figs. 1-2), a low-rise cut shape (Figs. 1-2), a tanga shape, a cheeky shape (Figs. 1-2), a boy short shape, and a boxer brief shape.
Regarding claim 13:
D’Huissier in view of Giloh teach The garment of claim 1, as set forth above.
D’Huissier further discloses wherein a first portion of the membrane (see annotated Figs. 1-2 – c below) is adjacent to the top opening, and a second (see annotated Figs. 1-2 – c below) and a third portion (see annotated Figs. 1-2 – c below) of the membrane is adjacent to the respective opening formed by the respective outer thigh portions and the genital portion (as in annotated Figs. 1-2 – c below), the first, second and third portions being a part of the membrane and having a thickness (expressed as numeracy of membrane layers and by virtue of two strips 3 overlapping at said portions) greater than a remaining part (see annotated Figs. 1-2 – c below) of the membrane (expressed as numeracy of membrane layers by virtue of no membrane layers overlapping one another at said remaining part).
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Regarding claim 15:
D’Huissier in view of Giloh teach The garment of claim 1, as set forth above.
D’Huissier further discloses wherein the membrane includes material of at least one of: latex, natural rubber latex, synthetic latex, butyl rubber, polyethylene, linear low density polyethylene (LLDPE), low density polyethylene (LDPE), high density polyethylene, polypropylene, olefin copolymer, styrene/butadiene rubber (SBR), polyurethane, polyisoprene, polyvinylidene chloride, polychloroprene, carboxylated acrylonitrile butadiene rubber, nitrile, graphene, spinifex grass, other grass, nanocellulose, vegan material, hypoallergenic material, organic material, superelastomer, other elastomer, other polymer, other copolymer, other polyolefin, and a combination of any of these materials.
(D’Huissier is modified so as to comprise latex; see above treatment of claim 1.)
Regarding claim 16:
D’Huissier in view of Giloh teach The garment of claim 1, as set forth above.
The modified D’Huissier further meets the limitation wherein the membrane includes at least two layers of material.
In applying art to claim 1, element 1 of D’Huissier is identified as being the garment and the membrane; see above treatment of claim 1. D’Huissier further discloses that attachment between strips 3 is via a “coating with a self-adhesive substance” (para 14) such that the “coating” of the “self-adhesive substance” is reasonably considered to be part of the membrane and therefore the membrane comprises two layers: the elastomeric non-permeable material as presented in claim 1 is a first layer, and the coating of self-adhesive substance is a second layer.
Regarding claim 17:
D’Huissier in view of Giloh teach The garment of claim 1, as set forth above.
The modified D’Huissier further meets the limitation wherein the membrane includes at least one of: a design (Figs. 1-2), a color, and a pattern (Figs. 1-2).
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over [D’Huissier, EP-0248173-A1, newly cited] and [Giloh, US 2004/0153041, previously cited] as applied to claim 1 above, and further in view of [Smith, US 2009/0089911, newly cited].
Regarding claim 2:
D’Huissier in view of Giloh teach The garment of claim 1, as set forth above.
D’Huissier does not expressly disclose wherein the membrane is seamless.
In applying art to claim 1, element 1 of D’Huissier is identified as being the garment and the membrane; see above treatment of claim 1. D’Huissier further discloses that attachment between strips 3 is via a “coating with a self-adhesive substance” (para 14) such that the “coating” of the “self-adhesive substance” is reasonably considered to be part of the garment and not part of the membrane. And in considering those portions of garment 1 excluding said self-adhesive substance to be the membrane, D’Huissier appears to meet the limitation insofar as strips are joined by the coating of self-adhesive in such a way that the membrane itself appears to be seamless as claimed. However, D’Huissier is silent as to whether the membrane --i.e. those portions of garment 1 exception the coating of self-adhesive substance-- is seamless or not.
However, Smith teaches a “PROTECTIVE GARMENT[]”(Title) wherein a waterproof layer 7 (“layer 7...comprises...material which is waterproof; para 30”) is seamless (“functional layer 7 is preferably a seamless layer... to reduce the required seam sealing needed”; para 30).
It 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 to have modified the membrane of the modified D’Huissier (i.e. those portions of garment 1 excepting the coating of self adhesive of para 14) such that it is seamless in order to obviate the need for seam-sealing to make the membrane non-permeable, as suggested by Smith (para 30).
Claim 18, as best understood, is/are rejected under 35 U.S.C. 103 as being unpatentable over [D’Huissier, EP-0248173-A1, newly cited] and [Giloh, US 2004/0153041, previously cited] as applied to claim 1 above, and further in view of [Andrews-Jones, US 2003/0217407, previously cited].
Regarding claim 18:
D’Huissier in view of Giloh teach The garment of claim 1, as set forth above.
D’Huissier does not expressly teach wherein the membrane includes a residing substance of at least one of: a lubricant, a powder, a flavoring, and a scent, on at least a part of the membrane.
However, Andrews-Jones teaches a garment (“Disposable Undergarment”; Title) comprising a membrane (“Disposable Undergarment”; Title) wherein the membrane includes a residing substance (“fragrance[]…”; para 11) of a scent (“fragrance[]…”; para 11) on at least a part of the membrane.
It 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 to have modified the modified D’Huissier such that its membrane includes a residing substance of a scent on at least a part of the membrane, as in Andrews-Jones, in order to yield the predictable result of a garment that has a pleasing and/or distinctive aroma as perceived by a wearer and/or an observer of the garment.
Claim 24, as best understood, is/are rejected under 35 U.S.C. 103 as being unpatentable over [D’Huissier, EP-0248173-A1, newly cited] and [Giloh, US 2004/0153041, previously cited] as applied to claim 1 above, and further in view of [Davitt, US 6,041,445, previously cited].
Regarding claim 24:
D’Huissier in view of Giloh teach The garment of claim 1, as set forth above.
D’Huissier does not expressly disclose A process for using the garment of claim 1, comprising: inserting each of a wearer's legs through the opening at the top portion of the membrane; inserting one each of the wearer's legs through one of the respective two thigh portions; pulling the membrane so that the front portion and back portion cover the human torso and the genital portion covers the human genital region; and stretching the two thigh portions according to their lengths along the wearer's legs.
However, D’Huissier as embodied in Fig. 2 shows the garment disposed on a body of a wearer wherein the garment is configured to cover abdomen and buttocks regions of a wearer and accordingly D’Huissier at least teaches the garment is worn by a wearer; however D’Huissier is silent as to the claimed steps of donning the garment.
However, Davitt teaches a process for using an underwear garment: comprising: inserting each of a wearer's legs through the opening at the top portion of the membrane; inserting one each of the wearer's legs through one of the respective two thigh portions (“insert their legs through the proper leg openings”); pulling the membrane (“pull the undergarment”) so that the front portion and back portion cover the human torso (“pull the undergarment up until the waistband was properly situated around their waist”; ) and the genital portion covers the human genital region (Davitt’s garment has a genital portion that is configured to cover the human genital region; thus the step of pulling the undergarment up until the waistband is about a waist results in the limitation as claimed);
It 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 to have practiced the process of donning of Davitt comprising inserting each of a wearer's legs through the opening at the top portion of the membrane; inserting one each of the wearer's legs through one of the respective two thigh portions; pulling the membrane so that the front portion and back portion cover the human torso and the genital portion covers the human genital region of Davitt on the modified D’Huissier in order to yield the predictable result of a method that permits donning the garment.
Regarding the limitation: and stretching the two thigh portions according to their lengths along the wearer's legs.
It 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 to have modified the process further comprises stretching the two thigh portions according to their lengths along the wearer's legs while “pulling the membrane” up in order to yield the predictable result of a smooth thigh portion that is not bunched up; it further noted that that elastomeric material is capable of being stretched when pulled.
Claim 27, as best understood, is/are rejected under 35 U.S.C. 103 as being unpatentable over [D’Huissier, EP-0248173-A1, newly cited] and [Giloh, US 2004/0153041, previously cited] as applied to claim 1 above, and further in view of [Vasquez, US 2011/0126842, previously cited].
Regarding claim 27:
D’Huissier in view of Giloh teach The garment of claim 1, as set forth above.
D’Huissier does not expressly disclose wherein the membrane thickness is greater than 0.33 millimeters.
However, Vazquez teaches a garment (“Brief”; Title) comprising a membrane (“Brief”; Title) wherein “latex” is a preferred material thereof (para 49). In Vazquez, a thickness of the membrane is “between 0.5 mils to 100 mils” (para 49). This range is equivalent to a range of between 0.013 millimeters to 2.54 millimeters and as such it overlaps the claimed range.
Because Vazquez is concerned with preferred material of construction of a protective latex garment and provides a range (i.e. “between 0.5 mils to 100 mils”) encompassing the claimed limitation, the claimed range is considered as a result-effective variable such that one of ordinary skill could have arrived at the claimed thickness value range through routine experimentation in order to provide desired garment properties. The claimed thickness is merely an optimum or workable thickness and the thickness of the membrane is expected to affect degree of protection, durability, and/or basis weight of the protective latex garment.
Therefore, it 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 to have modified the modified D’Huissier such that its membrane thickness exceeds 0.33 millimeters in order to yield the predictable result of a membrane and garment that offers a high degree of protection and/or durability and/or to yield a membrane and garment whose mass and density are deemed desirable by a purchaser and/or user of the garment.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/G.A.N./Examiner, Art Unit 3732
/KHOA D HUYNH/Supervisory Patent Examiner, Art Unit 3732
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