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 with the written response received on 11/10/2025 have been considered and an action on the merits follows. As directed by the amendment, claims 1, 3, 4, 12, and 15 have been amended; claims 2, 7, and 16 are canceled; claims. Accordingly, claims 1, 3-6, and 8-15 are pending in this application. Because of the applicant's amendment, the following in the office action filed 05/12/2025, are hereby withdrawn: the specification objection, the drawing objection, the rejection of claims under 35 USC § 112.
Response to Arguments
Applicant' s arguments, filed 11/10/2025, with respect to the rejection of claims under 35 USC § 103 have been considered but are moot because the arguments do not apply to the current grounds of rejection. Applicant's arguments, which appear to be drawn only to the newly amended limitations and previously presented rejections, have been considered but are moot in view of the updated grounds of rejection.
Claim Objections
Claims 3, 4, and 12 are objected to because of the following informalities:
Claim 3 recites “a ballistic protective helmet.” It is suggested the claim is rephrased to recite “the ballistic protective helmet” for consistency with the rest of the claim and/or for antecedent basis purposes.
Claim 4 recites “means for pressing the ballistic element of the forehead shield.” It is suggested the claim is rephrased to recite “means for pressing the forehead shield” for consistency with the rest of the claim and/or for antecedent basis purposes.
Claim 4 recites “a ballistic protective helmet.” It is suggested the claim is rephrased to recite “the ballistic protective helmet” for consistency with the rest of the claim and/or for antecedent basis purposes.
Claim 12 recites “a helmet dome.” It is suggested the claim is rephrased to recite “the helmet dome” for consistency with the rest of the claim and/or for antecedent basis purposes.
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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“means for pressing the forehead shield against an outer surface of a helmet dome of the protective helmet” of claim 3;
“tensioning element” of claims 4-5;
“a sliding element” of claim 8;
“at least one visor attachment means” of claim 9;
“at least one fixation means to fix the forehead shield to the protective helmet” of claim 10;
“at least one fixation means to fix the forehead shield to the protective helmet” of claim 13;
“at least one means cooperating with the fixation means of the forehead shield” of claim 14; and
“means for pressing the ballistic element against an outer surface of a helmet dome of the protective helmet so that the ballistic element can be removably and slidably secured to the helmet dome” of claim 15.
Because these limitations are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it is being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 3-6, 10, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over US 2013/0047309 A1 to Strum in view of US 5893174 A to Primeau, and US 2019/0056204 A1 to Field.
For claim 1, Strum discloses a forehead shield (applique element 10) for a ballistic protective helmet, which is adapted to move with a visor of the ballistic protective helmet when the visor is opened and closed (abstract).
It is also noted that MPEP 2111.02 (II) provides “if the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction.” In this case, the portion of the preamble “for a ballistic protective helmet which is adapted to move with a visor of the protective helmet when the visor is opened and closed” is not considered a structural limitation because the complete forehead shield is fully and intrinsically set forth in the claim body, and the preamble is only used to state a purpose or intended use for the invention. Therefore, the preamble is not considered as structurally limiting for purposes of applying prior art. Helmets, not limited only to providing ballistic protection, would be understood as capable of receiving said forehead shield.
Strum continues to disclose wherein the forehead shield comprises: a ballistic element (ballistic material, para 0008); and an enclosure (encapsulating fabric material, para 0015), wherein the enclosure: (i) encloses at least part of the ballistic element of the forehead shield (the encapsulation by the fabric material of the ballistic material is considered as performing the function of enclosing), and (iv) is made of a different material than the forehead shield (paras 0008 and 0015).
Strum does not specifically disclose wherein the enclosure is a pocket that is adapted to receive the ballistic element of the forehead shield, and wherein the enclosure is adapted to slide along the surface of a helmet dome of the ballistic protective helmet.
However, the recitation “wherein the enclosure is adapted to slide along the surface of a helmet dome of the ballistic protective helmet” is interpreted as a functional recitation. Although permitted by MPEP 2114(I), 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. Id. Therefore, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Examiner notes italicized limitations in the prior art rejection are statements of function and have been fully considered. Since Strum teaches the connector for attaching the applique element (10) to the helmet (15) allows for removability (para 0010) via straps (paras 0009 and 0011), and also teaches a forehead shield, in general, one skilled in the art would understand the applique element (10) would be capable of being adapted to slide along the surface of a helmet dome of the ballistic protective helmet. Further, the visor and the surface of a helmet are functionally claimed, not structurally claimed. The burden shifts to applicant to establish that the Strum’s forehead shield does not possess the characteristic relied on for performing the claimed function (See MPEP2114(I)).
Nonetheless, attention is directed to Primeau teaching a protective facemask (14) attached to a helmet (10) via elastic straps (24) connected via removable snap clips (26) (col. 3, lines 45-56). Primeau teaches the configuration allows a user to lift and slide the protective element upwards and downwards along the outer surface of the helmet (10) when required (col. 2, lines 51-62) (also see figs. 1 and 2 of Primeau teaching a slidable and removable configuration).
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It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the straps of Strum would be modified to comprise elastic material and wherein a first end of the elastic strap is attached to a side portion of the applique element, and a second end of the elastic strap comprises a removal snap clips as taught by Primeau, for purposes of removably clipping in with the helmet. As such, the modified Strum would be considered capable of being adapted to slide along a surface of a helmet dome of the ballistic protective helmet. The modification would also allow for configurable coverage and protection.
As modified, Strum does not specifically disclose the enclosure is a pocket that is adapted to receive the ballistic element of the forehead shield.
However, Strum does disclose the ballistic element that is both hermetically sealed and encapsulated within a fabric material, such as Cordura (see Strum, paras. 0008 and 0015). One skilled in the art would readily understand Strum is teaching (1) the ballistic material is first sealed by RF heat sealing (radio frequency welding) to preserve ballistic integrity, and (2) the sealed ballistic element is thereafter encapsulated by a fabric material that permits attachment and interaction with the helmet (see Strum, para. 0009). Thus, Strum may be considered teaching the ballistic element enclosed by an outer fabric enclosure made of a material different from the ballistic element.
Nonetheless, attention is directed to Field teaching an analogous armor plate construction wherein a ballistic material (22) is disposed between two panel walls (18a, 18b) (para 0021 of Field) and the panel walls are sealed by using ultrasonic or radio frequency (RF) welding process thereby forming a gas and water-impermeable enclosure (interpreted as a hermetic seal) around the ballistic material (para 0022 Field). The panel (18) is then disposed within a fabric casing or carrier (16) (paras 0003-0004 of Field). The construction inhibits the degradation of ballistic material due to the exposure to moisture and humidity (para 0005 of Field). Field makes clear that the fabric casing is distinct from the hermetic seal and serves as an outer carrier or pocket for positioning the ballistic element relative to a supporting structure.
It would have been obvious to one of ordinary skill in the art, before the effective filing date, to configure or interpret the encapsulating fabric material of Strum (e.g., Cordura) (a nylon fabric) as forming a pocket adapted to receive the ballistic element, as taught by Field, because such constructions were well known for protecting ballistic materials while allowing the ballistic element to be positioned, retained, and moved relative to a helmet surface. The modification merely applies a known fabric-carrier or pocket arrangement to Strum’s encapsulated ballistic element and yields predictable results of inhibiting the degradation of ballistic material due to the exposure to moisture and humidity.
Further, Applicant’s own specification defines the enclosure as optionally being a “pocket-like enclosure” that partially or completely encloses the ballistic element (see Applicant’s specification, para. 0048), confirming that a fabric enclosure that receives and retains the ballistic element meets the claimed “pocket” limitation.
For claim 3, the modified Strum teaches the forehead shield of claim 1, wherein the enclosure includes a means for pressing the forehead shield against an outer surface of a helmet dome of a ballistic protective helmet (elastic straps inherently create tension on the enclosed applique element towards the helmet, see discussion for claim 1) (Examiner notes, “means for pressing” has been interpreted under 35 USC 112(f) and in Applicant’s specification, the means for pressing is a tensioning element, see para 0017, and the Strum connector described in claim 1 above is equivalent or at least a functional equivalent).
For claim 4, the modified Strum teaches the forehead shield of claim 3, wherein the means for pressing ballistic element of the forehead shield against the outer surface of a helmet dome of the ballistic protective helmet is at least one tensioning element (elastic straps) (Examiner notes, “tensioning element” has been interpreted under 35 USC 112(f) and in Applicant’s specification, the tensioning element is a band, para 0018, and the Strum connector described in claim 1 above is equivalent or at least a functional equivalent) adapted to be attached to at least one visor bearing of the ballistic protective helmet (the snap clip of the modified strap is capable of being adapted to attached to a visor bearing) (also, in it noted that being “adapted to attach” does not structurally limited the tensioning element).
For claim 5, the modified Strum teaches the forehead shield of claim 4, wherein the at least one tensioning element is secured closer to a side of the enclosure (see discussion for claim 1 wherein a first end of the elastic strap is secured to a side of the applique element) configured to face away from the visor of the ballistic protective helmet than to a side of the enclosure configured to face the visor (the location of the tensioning element is configurable to achieve the claimed function because the elastic strap are configured to hold the sides of the enclosure) (also, being capable of facing away from a visor does not structurally limited the tensioning elements because the visor is not positively claimed as a part of the forehead shield).
For claim 6, the modified Strum teaches the forehead shield of claim 3, wherein the enclosure is made of at least one flame retardant material (Cordura, para 0015).
For claim 10, the modified Strum teaches the forehead shield of claim 1, further comprising at least one fixation means to fix the forehead shield to the ballistic protective helmet (hook and loop fasteners 35) (Examiner notes, “fixation means” has been interpreted under 35 USC 112(f) and in Applicant’s specification, the fixation means is a hook and loop fastener (para 0058), or its functional equivalent).
For claim 15, Strum discloses an enclosure (encapsulating fabric material, para 0015) for a ballistic element of a forehead shield for a ballistic protective helmet, the enclosure being adapted to receive the ballistic element (para 0008).
It is also noted that MPEP 2111.02 (II) provides “if the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction.” In this case, the portion of the preamble “for a ballistic element of a forehead shield for a ballistic protective helmet, the enclosure being adapted to receive the ballistic element” is not considered a structural limitation because the complete enclosure is fully and intrinsically set forth in the claim body, and the preamble is only used to state a purpose or intended use for the invention. Therefore, the preamble is not considered as structurally limiting for purposes of applying prior art.
Since Strum discloses the applique element (10) can comprise ballistic material sealed and encapsulated within a fabric material (para 0008) and the applique element (10) is removable (para 0010) via straps (paras 0009 and 0011), one skilled in the art would understand the enclosure would be capable of moving with a visor. Further, the ballistic element, the forehead shield, and the ballistic protective helmet are functionally claimed, not structurally claimed. The burden shifts to applicant to establish that the prior art does not possess the characteristic relied on (See MPEP2114(I)).
Strum further discloses:
The enclosure comprising a means for pressing the ballistic element against an outer surface of a helmet dome of the ballistic protective helmet so that the ballistic element can be removably secured to the helmet dome (the connector for attaching the applique element (10) and the enclosure to the helmet (15) allows for removability (para 0010) via straps (para 0009 and 0011) (Examiner notes, “means for pressing” has been interpreted under 35 USC 112(f) and in Applicant’s specification, the means for pressing is a tensioning element, and “tensioning element” has been interpreted in Applicant’s specification as a rubber band, para 0018, and Strum’s one or more straps are equivalent or at least a functional equivalent); wherein the enclosure further: (i) encloses at least part of the ballistic element (para 0008 and fig. 1), and (iv) is made of a different material than the forehead shield (encapsulating Cordura material vs. UHMWPE, para 0015).
Strum does not specifically disclose wherein the means for pressing the ballistic element to the helmet dome is also a slideably attaching means; the enclosure is a pocket that is adapted to receive the ballistic element, and the enclosure is adapted to slide along the surface of a helmet dome of the ballistic protective helmet.
However, the recitation for “slidably” securing, and “wherein the enclosure is adapted to slide along the surface of a helmet dome of the ballistic protective helmet” are interpreted as a functional recitation. Although permitted by MPEP 2114(I), 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. Id. Therefore, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Examiner notes italicized limitations in the prior art rejection are statements of function and have been fully considered. Since Strum teaches the connector for attaching the applique element (10) to the helmet (15) allows for removability (para 0010) via straps (paras 0009 and 0011), and also teaches a forehead shield in general, one skilled in the art would understand the applique element (10) would be capable of being adapted to slide along the surface of a helmet dome of the ballistic protective helmet. Further, the visor and the surface of a helmet are functionally claimed, not structurally claimed. The burden shifts to applicant to establish that the Strum’s forehead shield does not possess the characteristic relied on for performing the claimed function (See MPEP2114(I)).
Nonetheless, attention is directed to Primeau teaching a protective facemask (14) attached to a helmet (10) via elastic straps (24) connected via removable snap clips (26) (col. 3, lines 45-56). Primeau teaches the configuration allows a user to lift and slide the protective element upwards and downwards along the outer surface of the helmet (10) when required (col. 2, lines 51-62) (also see figs. 1 and 2 of Primeau teaching a slidable and removable configuration).
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It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the straps of Strum would be modified to comprise elastic material and wherein a first end of the elastic strap is attached to a side portion of the applique element, and a second end of the elastic strap comprises a removal snap clips as taught by Primeau, for purposes of removably clipping in with the helmet. As such, the enclosure of the modified Strum would be considered capable of “slidably” securing, and being adapted to slide along a surface of a helmet dome of the ballistic protective helmet. The modification would also allow for configurable coverage and protection.
As modified, Strum does not specifically disclose the enclosure is a pocket that is adapted to receive the ballistic element.
However, Strum does disclose the ballistic element that is hermetically sealed and encapsulated within a fabric material, such as Cordura (see Strum, paras. 0008 and 0015). One skilled in the art would readily understand Strum is teaching (1) the ballistic material is first sealed by RF heat sealing (radio frequency welding) to preserve ballistic integrity, and (2) the sealed ballistic element is thereafter encapsulated by a fabric material that permits attachment and interaction with the helmet (see Strum, para. 0009). Thus, Strum may be considered teaching the ballistic element enclosed by an outer fabric enclosure made of a material different from the ballistic element.
Nonetheless, attention is directed to Field teaching an analogous armor plate construction wherein a ballistic material (22) is disposed between two panel walls (18a, 18b) (para 0021 of Field) and the panel walls are sealed by using ultrasonic or radio frequency (RF) welding process thereby forming a gas and water-impermeable enclosure around the ballistic material (para 0022 Field). The panel (18) is then disposed within a fabric casing or carrier (16) (paras 0003-0004 of Field). The construction inhibits the degradation of ballistic material due to the exposure to moisture and humidity (para 0005 of Field). Field makes clear that the fabric casing is distinct from the hermetic seal and serves as an outer carrier or pocket for positioning the ballistic element relative to a supporting structure.
It would have been obvious to one of ordinary skill in the art, before the effective filing date, to configure or interpret the encapsulating fabric material of Strum (e.g., Cordura) (a nylon fabric) as forming a pocket adapted to receive the ballistic element, as taught by Field, because such constructions were well known for protecting ballistic materials while allowing the ballistic element to be positioned, retained, and moved relative to a helmet surface. The modification merely applies a known fabric-carrier or pocket arrangement to Strum’s encapsulated ballistic element and yields predictable results of inhibiting the degradation of ballistic material due to the exposure to moisture and humidity.
Further, Applicant’s own specification defines the enclosure as optionally being a “pocket-like enclosure” that partially or completely encloses the ballistic element (see Applicant’s specification, para. 0048), confirming that a fabric enclosure that receives and retains the ballistic element meets the claimed “pocket” limitation.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Strum in view of Primeau and Field as applied to claim 1 above, and further in view of US 2010/0229288 to Higgins.
For claim 8, the modified Strum teaches the forehead shield of claim 1, but does not specifically disclose wherein a slidable part of the forehead shield comprises a sliding element adapted to slide in a rail (Examiner notes, “sliding element” has been interpreted under 35 USC 112(f) and in Applicant’s specification, the sliding element is a T-shaped sliding part (para 0058), or its functional equivalent).
However, attention is directed to Higgins teaching a helmet comprising two guidance mechanisms (abstract of Higgins). Specifically, Higgins teaches a similar pair of pivoting mechanisms (14) for attaching an apparatus, such as a visor, for the side portions of the helmet (fig. 7). The visor apparatus also includes “T” shaped guiding interface (88) for slidably supporting the visor apparatus along a guiding slot positioned in the center of the helmet (see paras 0061-0063, and fig. 8) for providing increased stability and guidance of the visor apparatus.
It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the applique element of Strum would be further modified to include a slidable part that is a sliding element in the form of a “T” shaped guidance interface, as taught by Higgins, for providing increased stability and guidance of the applique element when configured with a helmet capable of receiving said guidance interface.
Claims 9 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Strum in view of Primeau and Field as applied to claim 1 above, and further in view of US 20180303190 to Calilung.
For claim 9, the modified Strum teaches the forehead shield of claim 1, but does not specifically disclose the forehead shield further comprises at least one visor attachment means for connecting the forehead shield to the visor of the ballistic protective helmet.
However, attention is directed to Calilung teaching a helmet (para 0051 of Calilung) comprising similar energy absorbing modules (0110) (para 0161) that also serve as an interface between the helmet and eyewear including visors (para 0155). Calilung teaches the attachment mechanisms for the interface includes hook and loop fasteners (para 0153). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the applique element of Strum would be further modified to include at least one visor attachment means formed of hook and loop fasteners, for purposes of connecting the forehead shield to a visor as taught by Calilung. Such a modification would provide the wearer additional protection to the face and eye area.
For claim 11, the modified Strum teaches the forehead shield of claim 9, wherein the at least one visor attachment means is a hook-and-loop-fastener application (see discussion for claim 9 above).
Claims 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over Strum in view of US 3,548,411 A to Barstow, Primeau, and Field.
For claim 12, Strum teaches a ballistic protective helmet (15), comprising: a helmet dome (dome portion of 15) and a forehead shield (10), and an enclosure (encapsulating Cordura material, para 0015): enclosing at least part of a ballistic element of the forehead shield (para 0008 and fig. 1) and made of a different material than the forehead shield (encapsulating Cordura material vs. UHMWPE, para 0015).
Strum does not specifically disclose a visor and wherein the forehead shield is adapted to slidably move with the visor when the visor is opened and closed; the enclosure is a pocket that is adapted to receive the ballistic element, and the enclosure is adapted to slide along the surface of a helmet dome of the ballistic protective helmet.
However, attention is directed to Barstow teaching a protective helmet (fig. 1 of Barstow) also comprising a dome (10) a forehead shield (13) and a visor (12). Specifically, Barstow teaches element (13), which can be interpreted as a forehead shield, is adapted to slidably move with the visor (12) when the visor is opened and closed (see fig. 1, and col. 3, lines 4-11 of Barstow). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein Strum would be modified to comprise a visor attached to the forehead shield for purposes of providing protection of the wearer’s eyes against intense flashes (col. 2,lines 35-45 of Barstow). It would have been further obvious to one of ordinary skill in the art before the effective filing date wherein a forehead shield is adapted to slidably move with the visor when the visor is opened and closed, as taught by Barstow, for purposes of raising the shield and the visor into a non-operational position when not in use (col. 3, lines 4-11 of Barstow).
As modified, Strum does not specifically disclose the enclosure is a pocket that is adapted to receive the ballistic element, and the enclosure is adapted to slide along the surface of a helmet dome of the ballistic protective helmet.
Strum does not specifically disclose wherein the enclosure is a pocket that is adapted to receive the ballistic element of the forehead shield, and wherein the enclosure is adapted to slide along the surface of a helmet dome of the ballistic protective helmet.
However, the recitation “wherein the enclosure is adapted to slide along the surface of a helmet dome of the ballistic protective helmet” is interpreted as a functional recitation. Although permitted by MPEP 2114(I), 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. Id. Therefore, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. Examiner notes italicized limitations in the prior art rejection are statements of function and have been fully considered. Since Strum teaches the connector for attaching the applique element (10) to the helmet (15) allows for removability (para 0010) via straps (paras 0009 and 0011), and also teaches a forehead shield in general, one skilled in the art would understand the applique element (10) would be capable of being adapted to slide along the surface of a helmet dome of the ballistic protective helmet. Further, the visor and the surface of a helmet are functionally claimed, not structurally claimed. The burden shifts to applicant to establish that the Strum’s forehead shield does not possess the characteristic relied on for performing the claimed function (See MPEP2114(I)).
Nonetheless, attention is directed to Primeau teaching a protective facemask (14) attached to a helmet (10) via elastic straps (24) connected via removable snap clips (26) (col. 3, lines 45-56). Primeau teaches the configuration allows a user to lift and slide the protective element upwards and downwards along the outer surface of the helmet (10) when required (col. 2, lines 51-62) (also see figs. 1 and 2 of Primeau teaching a slidable and removable configuration).
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It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the straps of Strum would be modified to comprise elastic material and wherein a first end of the elastic strap is attached to a side portion of the applique element, and a second end of the elastic strap comprises a removal snap clips as taught by Primeau, for purposes of removably clipping in with the helmet. As such, the modified Strum would be considered capable of being adapted to slide along a surface of a helmet dome of the ballistic protective helmet. The modification would also allow for configurable coverage and protection.
As modified, Strum does not specifically disclose the enclosure is a pocket that is adapted to receive the ballistic element of the forehead shield.
However, Strum does disclose the ballistic element that is hermetically sealed and encapsulated within a fabric material, such as Cordura (see Strum, paras. 0008 and 0015). One skilled in the art would readily understand Strum is teaching (1) the ballistic material is first sealed by RF heat sealing (radio frequency welding) to preserve ballistic integrity, and (2) the sealed ballistic element is thereafter encapsulated by a fabric material that permits attachment and interaction with the helmet (see Strum, para. 0009). Thus, Strum may be considered teaching the ballistic element enclosed by an outer fabric enclosure made of a material different from the ballistic element.
Nonetheless, attention is directed to Field teaching an analogous armor plate construction wherein a ballistic material (22) is disposed between two panel walls (18a, 18b) (para 0021 of Field) and the panel walls are sealed by using ultrasonic or radio frequency (RF) welding process thereby forming a gas and water-impermeable enclosure around the ballistic material (para 0022 Field). The panel (18) is then disposed within a fabric casing or carrier (16) (paras 0003-0004 of Field). The construction inhibits the degradation of ballistic material due to the exposure to moisture and humidity (para 0005 of Field). Field makes clear that the fabric casing is distinct from the hermetic seal and serves as an outer carrier or pocket for positioning the ballistic element relative to a supporting structure.
It would have been obvious to one of ordinary skill in the art, before the effective filing date, to configure or interpret the encapsulating fabric material of Strum (e.g., Cordura) (a nylon fabric) as forming a pocket adapted to receive the ballistic element, as taught by Field, because such constructions were well known for protecting ballistic materials while allowing the ballistic element to be positioned, retained, and moved relative to a helmet surface. The modification merely applies a known fabric-carrier or pocket arrangement to Strum’s encapsulated ballistic element and yields predictable results of inhibiting the degradation of ballistic material due to the exposure to moisture and humidity.
Further, Applicant’s own specification defines the enclosure as optionally being a “pocket-like enclosure” that partially or completely encloses the ballistic element (see Applicant’s specification, para. 0048), confirming that a fabric enclosure that receives and retains the ballistic element meets the claimed “pocket” limitation.
For claim 13, the modified Strum teaches the ballistic protective helmet of claim 12, further comprising at least one fixation means (hook and loop fasteners 35) (Examiner notes, “fixation means” has been interpreted under 35 USC 112(f) and in Applicant’s specification, the fixation means is a hook and loop fastener (para 0058), or its functional equivalent) to fix the forehead shield to the ballistic protective helmet (paras 0009 and 0011).
For claim 14, Strum teaches the ballistic protective helmet of claim 13, further comprising at least one means (the disclosed strap) cooperating with the at least one fixation means of the forehead shield (see discussion for claim 13 above, and paras 0009 and 0011).
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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/ERICK I LOPEZ/Examiner, Art Unit 3732
/KHOA D HUYNH/Supervisory Patent Examiner, Art Unit 3732