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, filed 03 June 2026, is reviewed and entered. This Office Action is a final rejection.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Status of Claims
Amended
16
Newly Added
33
Withdrawn
18, 26-30
Canceled
1-15, 17, 19-25, 31-32
Pending
16, 18, 26-30, 33
Presented for Examination
16, 33
Response to Arguments
Applicant’s amendments overcome all of the previous objections and rejections.
Applicant’s arguments with respect to claim(s) 03 June 2026 have been 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.
Election/Restrictions
The elected embodiment is Group I, figs 2A-5B, a protective layer comprising protuberances, in the reply filed on 09 November 2023.
Claim 16 is specific to the FIG 5A-5B embodiment.
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.
Claim(s) 16 and 33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Phillips (US 20040168246 A1) in view of Morgan (US 20100000009 A1).
As to claim 16, Phillips discloses a helmet for protecting a wearer's head (“Protective headgear…,” title) comprising:
a protective layer (FIG 6A, combination of 28, 31, and 32) configured to, when the helmet is impacted by a force, absorb a normal component thereof by compression and rupture when a tangential component of the force exceeds a predefined threshold (capable of absorbing by compression and para. 0080 discloses 28 is specifically intended to compress to at least some degree; capable of rupturing and will rupture under sufficient force);
wherein the protective layer consists of a single layer and protuberances extending from the single layer (single layer 28 with protuberances 31/32 extending from 28), the protuberances configured to face towards the wearer's head and being spaced apart from one another to allow air to flow between the protuberances over the wearer's head (FIG 6B, there will be airflow between at least portions 32 of the protuberances 31/32);
wherein the protuberances are configured and dimensioned to rupture from the single layer when exceeding the predefined threshold (capable of rupturing and will rupture under sufficient force), the protuberances of the protective layer arranged to prevent transfer of the tangential component of the force exceeding the predefined threshold to at least one of the wearer's head and an additional layer of the helmet by rupturing from the single layer (capable of preventing transfer; capable of rupturing and will rupture under sufficient force);
wherein the protuberances comprise at least one of the group of: a tubular protuberance; and a beam-shaped protuberance (FIGS 6a, 7a, and 7b); and
wherein each protuberance is shaped to rupture where a cross-section of the protuberance is no longer resistant to the predefined threshold (capable of rupturing and will rupture under sufficient force).
Phillips does not expressly disclose “wherein the protective layer comprises closed-cell foam configured to perform said absorbing and said rupturing;
wherein the protective layer is made of closed cell foam only.”
Phillips para. 0080 discloses a number of materials that are foam, and may be open or closed cell foam (e.g. SANTOPRENE, HYTREL, PU elastomers, PE). However, para. 0080 does not specify whether these materials are open or closed cell foams.
Morgan teaches a similar helmet including closed cell foam protuberances (130; Morgan para. 0045 discloses, "In an embodiment of the compressible liner 110 the foam material may be expanded polystyrene foam (EPS)" and EPS is closed-cell foam as evidenced by NPL U which states, "Expanded Polystyrene (EPS) is a lightweight closed-cell foam"; 110 includes 130).
It is noted that Phillips, Morgan, and the claimed helmet are all drawn to liners having the property of compressibility, which Morgan and the claimed helmet achieve with closed cell foam.
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to provide “the protective layer [comprising] closed-cell foam configured to perform said absorbing and said rupturing;
wherein the protective layer is made of closed cell foam only”, since it is within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP 2144.07.
Furthermore, it would have been obvious to one having ordinary skill in the art at the time the invention was filed to provide “the protective layer [comprising] closed-cell foam configured to perform said absorbing and said rupturing;
wherein the protective layer is made of closed cell foam only” in order to provide a known material that will absorbing impact energy by compressing (Phillips para. 0080 discloses 28 is compressible) and for providing the desired degree of resistance to sweat, oil, dirt, weather, and UV degradation.
The following recitations are intended use recitations:
“a protective layer configured to, when the helmet is impacted by a force, absorb a normal component thereof by compression and rupture when a tangential component of the force exceeds a predefined threshold”
“wherein the protuberances are configured and dimensioned to rupture from the single layer when exceeding the predefined threshold”
“the protuberances of the protective layer arranged to prevent transfer of the tangential component of the force exceeding the predefined threshold to at least one of the wearer's head and an additional layer of the helmet by rupturing from the single layer”
“wherein the protective layer comprises closed-cell foam configured to perform said absorbing and said rupturing”
“wherein each protuberance is shaped to rupture where a cross-section of the protuberance is no longer resistant to the predefined threshold”
A recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Because the prior art reference and the claimed invention are structurally identical, they are expected to be capable of being used in the same manner, and the prior art reference reads on the intended use recitation in the claim.
Applicant is respectfully reminded that 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. In the instant case Phillips is found to be obviously modifiable to have the claimed structure, and since Phillips and the claimed invention have all of the same structure, Phillips is expected to function in the same manner as the claimed invention, to include the claimed functions.
As to claim 33, Phillips does not disclose the helmet according to claim 16, wherein the tubular or beam-shaped protuberances have an equal strength over a longitudinal direction of each protuberance.
Phillips as modified discloses all of the claimed structure, to include the same shape, dimensions, and material of the claimed protuberances. Therefore, one of ordinary skill would expect the Phillips protuberances and claimed protuberances to have the same properties.
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to provide “the tubular or beam-shaped protuberances [having] an equal strength over a longitudinal direction of each protuberance”, since it is within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP 2144.07.
Furthermore, it would have been obvious to one having ordinary skill in the art at the time the invention was filed to provide “the tubular or beam-shaped protuberances [having] an equal strength over a longitudinal direction of each protuberance”, in order to provide the desired degree of impact protection.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SALLY HADEN whose telephone number is (571)272-6731. The examiner can normally be reached M-F 9-5.
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SALLY HADEN
Primary Examiner
Art Unit 3732
/SALLY HADEN/ Primary Examiner, Art Unit 3732
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