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 10/10/2025 is acknowledged.
An abstract amendment is acknowledged. This amendment is acceptable.
Claims 1-2, 6-10, and 13-22 are presented and are previously presented.
The present office action is a final rejection.
Response to Arguments
Applicant’s Remarks of 10/10/2025 (see p. 7-20 of the reply) are fully considered.
Regarding Amendments to the Abstract (p. 8): Applicant’s arguments are fully considered. Applicant’s abstract amendments render the objection to the abstract as applied in the previous office action moot.
Regarding Rejections under 35 U.S.C. § 101 (see p. 8-11), Applicant’s arguments are fully considered and are not persuasive.
Applicant argues:
Step 1
Applicant respectfully submits that claim 1 is directed to a method of visualizing a speed of an athlete and, therefore, is directed to a statutory category. The Office has not shown or alleged otherwise.
Examiner’s reply:
Applicant’s argument is fully considered and is not persuasive. As stated in the office action of 06/18/2025, claim 1 is “rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception, enumerated grouping of abstract models (ideas) to visualize a speed of an athlete by monitoring color and evaluating speed on the basis of color without significantly more” (see p. 4 lines 14-16 of the office action of 06/18/2025).
Applicant argues:
Step 2A - Prong One
Claim 1 is not directed to a judicial exception and, thus, the claim is eligible under 35 U.S.C. §101.
The Office incorrectly alleges that claim 1 recites an abstract idea in the "mental process" grouping because the claim recites monitoring the color of the at least one thermochromic dye during the sporting activity of the athlete and evaluating the speed of the athlete on the basis of the actual color of the at least one thermochromic dye. Office action, p. 7-8. The "mental processes" grouping includes "concepts performed in the human mind (including an observation, evaluation, judgement, opinion)." MPEP 2106.04(a)(2)(III)(A). Correspondingly, a claim with limitation(s) that cannot practically be performed in the human mind does not recite a mental process. Id. ("Claims do not recite a mental process when they do not contain limitations that can practically be performed in the human mind, for instance when the human mind is not equipped to perform the claim limitations."); see also SRIInt'l, Inc. v. Cisco Systems, Inc., 930 F.3d 1295, 1304 (Fed. Cir. 2019) (declining to identify the claimed collection and analysis of network data as abstract because "the human mind is not equipped to detect suspicious activity by using network monitors and analyzing network packets as recited by the claims"); CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1376 (Fed. Cir. 2011) (citing Research Corp. Techs. v. Microsoft Corp., 627 F.3d 859, 868 (Fed. Cir. 2010), finding a method of rendering a digital image to not be a mental process as being directed to a method that that "could not, as a practical matter, be performed entirely in a human's mind") (Emphasis added).
In this case, the claims recite limitations that cannot practically be performed in the human mind, and, as such, do not recite a mental process (as alleged by the Office). For example, claim 1 recites "evaluating the speed of the athlete on the basis of the actual color of the at least one thermochromic dye." The human mind is not equipped to evaluate speed of an athlete on the basis of color alone. Therefore, claim 1 is not directed to a mental process.
For at least these reasons, the pending claims are directed to eligible subject matter under revised Step 2A, Prong One.
Examiner’s reply:
Applicant’s argument is fully considered and is not persuasive. Applicant’s argument that “the claims recite limitations that cannot practically be performed in the human mind, and, as such, do not recite a mental process” is fully considered and is not persuasive; as stated in the office action of 06/18/2025, claim 1 recites the step of monitoring the color of the at least one thermochromic dye during the sporting activity of the athlete, which is an act of monitoring information that can be practically performed in the human mind; claim 1 further recites the step of evaluating the speed of the athlete on the basis of the actual color of the at least one thermochromic dye, which is an act of evaluating information that can be practically performed in the human mind (see office action of 06/18/2025 in the paragraph spanning p. 7-8). Applicant’s specific argument that “The human mind is not equipped to evaluate speed of an athlete on the basis of color alone” is fully considered and is not persuasive if only because they argument is not commensurate with claim language. Claim 1 does not recite evaluation of speed on the basis of color “alone” as argued, and claim 1 does not include the term “alone”.
Applicant argues:
2A - Prong Two
Even if the claim was directed to an abstract idea, the claim further recites subject matter that is integrated into a practical application and, thus, the claim is eligible under 35 U.S.C. § 101.
The Office alleges that claim 1 recites additional elements that add insignificant extra- solution activity to the judicial exception because certain other limitations are either well-known or conventional. Office action, pp. 8-12. However, this reasoning is legally deficient because determining whether a claim recites subject matter that is "well-understood and conventional" is not relevant to determining whether extra-solution activity is insignificant as "[s]tep 2A specifically excludes consideration of whether the additional elements represent well-understood, routine, conventional activity." See MPEP § 2106.04(d).
Examiner’s reply:
Applicant’s argument is fully considered and is not persuasive if only because they are not commensurate with the rejection as applied. Applicant’s argument that the Office “alleges that claim 1 recites additional elements that add insignificant extra- solution activity to the judicial exception because certain other limitations are either well-known or conventional” fails to note that the Office does not allege that the recited additional elements add insignificant extra-solution activity exclusively because “certain other limitations are either well-known or conventional” but rather that the additional claim limitation(s) “adds insignificant extra-solution activity” (p. 9 line 19) and “does no more than generally link the use of a judicial exception to a particular technological environment or field of use...does not alter or affect how the mental process steps...are performed” (p. 11 lines 1-6). Accordingly, Applicant’s argument that “this reasoning is legally deficient because determining whether a claim recites subject matter that is "well-understood and conventional" is not relevant to determining whether extra-solution activity is insignificant as "[s]tep 2A specifically excludes consideration of whether the additional elements represent well-understood, routine, conventional activity."” is unpersuasive if only because it is not commensurate with the rejection as applied.
Applicant argues:
To the extent the Office (erroneously) argues that the claim is directed to a judicial exception, "implementing a judicial exception with, or using a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim" is indicative that the exception has been integrated into a practical application. Id. at § 2106.04(d)(I). In this case, the limitation of providing a piece of garment is not nominal or tangential to the claimed method for visualizing a speed of an athlete, it is a key aspect of the method that cannot be disregarded. For example, the claim further specifies that the garment includes thermochromic dye and elements to influence an airstream to stabilize a color of the at least one thermochromic dye. At the very least this provides clear evidence that any judicial exception that that Office (improperly) alleges to exist, is used in conjunction with a garment (i.e., a manufacture) that is integral to the claim and does more than generally link the use of a judicial exception to a particular technological environment or field of use. Cf Office action, p. 10-11. Thus, any alleged judicial exception is integrated into a practical application, and the pending claims are directed to eligible subject matter under revised Step 2A.
Examiner’s reply:
Applicant’s argument is fully considered and is not persuasive. Applicant’s specific argument that “the limitation of providing a piece of garment is not nominal or tangential to the claimed method for visualizing a speed of an athlete, it is a key aspect of the method that cannot be disregarded. For example, the claim further specifies that the garment includes thermochromic dye and elements to influence an airstream to stabilize a color of the at least one thermochromic dye. At the very least this provides clear evidence that any judicial exception that that Office (improperly) alleges to exist, is used in conjunction with a garment (i.e., a manufacture) that is integral to the claim and does more than generally link the use of a judicial exception to a particular technological environment or field of use” is fully considered and is not persuasive in that the additional claim limitation(s) does no more than generally link the use of a judicial exception to a particular technological environement or field of use; limiting the abstract idea to a piece of garment worn by an athlete as claimed limits the use of the abstract idea to the particular technological environment and does not alter or affect how the mental process steps of monitoring and/or evaluating is/are preformed; see office action of 06/18/2025, the paragraph spanning p. 10-11).
Applicant argues:
Step 2B
Even if claim 1 was directed to a judicial exception, the claim as a whole amounts to "significantly more" than the exception and, thus, the claim is eligible under 35 U.S.C. §101.
The Office alleges that claim 1 does not contain any "inventive" concept. See Office action, p. 12-13. A consideration for evaluating inventive concept is whether a claim adds "a specific limitation other than what is well-understood, routine, conventional activity in the field, or adding unconventional steps that confine the claim to a particular useful application." See MPEP §2106.05(d). The Office admits that there is no art-recognized correlation between the speed of the athlete and the actual color of a thermochromic dye. See Office action, p. 24. Thus, claim 1 includes an inventive concept that is unconventional, not well-understood, and not routine.
Examiner’s reply:
Applicant’s argument is fully considered and is not persuasive if only because it is not commensurate with the rejection as applied. The Office does not allege that “claim 1 does not contain any "inventive" concept. See Office action, p. 12-13” as argued but rather states “the additional elements...do not contain any “inventive concept”, and the claimed step of “providing a piece of garment, which is worn by the athlete during a sporting activity, wherein the piece
of garment includes a plurality of elements configured to influence aerodynamic drag and at least one
thermochromic dye, wherein the at least one thermochromic dye is provided in a first region of the
piece of garment and the plurality of elements are provided on a second region of the piece of garment
that is different from the first region, the plurality of elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at
least one thermochromic dye in the first region, and wherein the first region includes at least one of a
chest region and a front sleeve region of the piece of garment” adds insignificant extra-solution activity
to the judicial exception; it is noted the claimed step does not recite “correlation between the speed of the athlete and the actual color of a thermochromic dye” as argued.
Applicant argues:
Furthermore, to the extent the Office erroneously argues that the claim is directed to a judicial exception, the pending claims recite "significantly more" than a mere abstract idea. As described above, providing a piece of a garment is not extra-solution activity. In order for an apparatus to add significantly more, it must "play a significant part in permitting the claimed method to be performed, rather than function solely as an obvious mechanism for permitting a solution to be achieved more quickly." See MPEP § 2106.5(b) (quoting Versata Development Group v. SAP America, 793 F.3d 1306, 1335, 115 USPQ2d 1681, 1702 (Fed. Cir. 2015). Here, the garment plays a significant role because the garment includes the thermochromic dye having the color that is being monitored, and because the garment includes the plurality of elements that are configured to influence an airstream to stabilize the color of the thermochromic die.
Examiner’s reply:
Applicant’s argument is fully considered and is not persuasive because the step of “providing a piece of garment, which is worn by the athlete during a sporting activity, wherein the piece of garment includes a plurality of elements configured to influence aerodynamic drag and at least one thermochromic dye, wherein the at least one thermochromic dye is provided in a first region of the piece of garment and the plurality of elements are provided on a second region of the piece of garment that is different from the first region, the plurality of elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region, and wherein the first region includes at least one of a chest region and a front sleeve region of the piece of garment” adds insignificant extra-solution activity to the judicial exception (see office action of 06/18/2025 in the paragraph spanning p. 9-10).
Moreover, the mere presence of allegedly patent-ineligible subject matter is not sufficient to prove that a claim is directed to patent-ineligible subject matter when that subject matter arises as a result of unconventional use of structural limitations. See Thales Visionix Inc. v. US, 850 F. 3d 1343, 1348-1349 (Fed. Cir. 2017) (holding that a method of calculating the position and orientation of an object on a moving platform was not directed to an abstract idea because the calculations relied on data from a novel configuration of sensors). Claim 1 includes a novel use of thermochromic dye and a plurality of elements configured to influence an airstream that are part of a garment. Therefore, claim 1 is directed to patent-eligible subject matter.
Accordingly, independent claim 1 is directed to a method of visualizing a speed of an athlete based on a color of a thermochromic dye of a garment and recites significantly more than an abstract idea. As such, the pending claims are eligible under 35 U.S.C. § 101, and Applicant respectfully requests that the rejections of independent claim 1, and all claims dependent thereon, be withdrawn and the claims allowed.
Examiner’s reply:
Applicant’s argument is fully considered and is not persuasive; claim 1 is directed to a judicial exception, enumerated grouping of abstract models (ideas) to visualize a speed of an athlete by monitoring color and evaluating speed on the basis of the color without significantly more, as set forth in the rejection of 06/18/2025 (see p. 4-13). Applicant’s reference to allegedly pertinent case law is acknowledged; it is noted that Applicant does not point to MPEP or statutory support for Applicant’s statements regarding said case law. It is noted that term “unconventional use” does not appear in MPEP 2106 or in the 2019 Revised Patent Subject Matter Eligibility Guidance; claim 1 is rejected under 35 USC 101 for the reasons set forth in the previous office action.
Regarding Rejections under 35 U.S.C. § 112(a) (see p. 11-14), Applicant’s arguments are fully considered and are not persuasive.
Applicant argues:
Claims 1, 2, 6-10, and 13-22 stand rejected under 35 U.S.C. § 112(a) as allegedly failing to comply with the written description requirement. Applicant traverses these rejections.
Independent claims 1 and 6
Correlation between speed and color
The Office alleges that there is no described correlation between athlete speed and the color of a thermochromic dye. See Office action, p. 17. "[T]he written description requirements can be met by 'show[ing] that an invention is complete by disclosure of sufficiently detailed, relevant identifying characteristics....i.e., a complete or partial structure, other physical and/or chemical properties, functional characteristics when coupled with a known or disclosed correlation between function and structure, or some combination of such characteristics. See Enzo Biochem, Inc. v. Gen-Probe, Inc., 323 F.3d at 964, 63 USPQ2d at 1613 (quoting Guidelines for Examination of Patent Applications Under the 35 U.S.C. 112, 1 "Written Description" Requirement, 66 Fed. Reg. 1099, 1106 (Jan. 5, 2001)) (emphasis original). Thus, it is sufficient that a correlation between function and structure is disclosed within the specification. As admitted in the Office action, the specification presents an example where thermochromic dye in a piece of a garment is configured to change colors at 30 km/h, 34 km/h, and 38 km/h in the context of a 100 meter running contest, where the exemplary garment is blue at 30 km/h and green at 34 km/h. See Office action, 17-18. This is more than sufficient to disclose a correlation between athlete speed and the color of the thermochromic dye, which is sufficient to meet the written description requirements of 35 U.S.C. § 112(a) as a matter of law.
Examiner’s reply:
Applicant’s argument is fully considered and is not persuasive. The claimed invention is not described in sufficient detail that one skilled in the art can reasonably conclude that the inventor had possession of the claimed invention, as set forth in the rejection (see p. 18 line 5- p. 21 line 6 of the office action of 06/18/2025). Applicant’s specific argument that “it is sufficient that a correlation between function and structure is disclosed within the specification” is fully considered and is not persuasive if only because the MPEP states that “the written description requirement may be satisfied through disclosure of function and minimal structure when there is a well-established correlation between structure and function” (see MPEP 2163 I. A. and interference to the case law and quotation that Applicant provided in the argument; emphases provided by Examiner); as set forth in the rejection, there is no described or art-recognized correlation between either or both of the disclosed mental steps of monitoring color and evaluating speed and the structure of the garment; there is no art-recognized correlation between mentally monitoring a color and/or mentally evaluating an athlete speed and what the actual color of a thermochromic dye is (see office action of 06/18/25; first paragraph of p. 15) and there is no described correlation between the disclosed mental steps and the structure responsible for the steps (see office action of 06/18/2025, p. 17-p. 21) in relation to claim 1; in addition, there is no described or art-recognized correlation between the disclosed function and the structure(s) responsible for the function in relation to claim 6 (see p. 24 – p. 29 of the office action of 06/18/2025).
Applicant argues:
The Office appears to allege that because the word "proposed" is found in the specification, Applicant did not have possession at the time of filing. Id. at 18. This rejection finds no basis in the law and cuts against the most basic tenants of the MPEP, that "[p]ossession may be shown in a variety of ways including description of an actual reduction to practice, or by showing that the invention was 'ready for patenting' such as by the disclosure of drawings or structural chemical formulas that show that the invention was complete, or by describing distinguishing identifying characteristics sufficient to show that the inventor was in possession of the claimed invention."MPEP § 2163.02. The fact that a patent application proposes an illustrative embodiment evidences the exact opposite-that an Applicant does have possession. For without possession, there is nothing to be proposed.
Examiner’s reply:
Applicant’s argument is fully considered and is not persuasive. The Office does not allege that the usage of the term “proposed” means that the Applicant did not have possession; rather, the Office states the usage of the term “suggests” (emphasis provided by Examiner) “that the “proposed garment and respective method” are not an actual garment and an actual method but rather a proposed, hypothetical garment and method” (p. 18 lines 3-4 of the office action of 06/18/2025). It is noted the term “propose” has multiple meanings, including senses in which what is proposed is expressed in the sense of intent and/or desire as opposed to actual realization; see e.g. “to form an intention”; “To set...as something to be done; to intend”; “To put forward or suggest as a scheme, plan, or course of action; to recommend or advocate that something be done”; “To put forward as something to be attained; to state or have as an aim, end, or object”; “To represent to one's imagination; to envisage, hold in mind; esp. to anticipate as an outcome, to expect, look for”; senses 1a, 1b, 1c, 2c, 2d, respectively, Oxford English Dictionary, “propose (v.)” September 2025, https://doi.org/10.1093/OED/1711503604.
Applicant argues:
Convection cooling effect of airflow produced during running
The Office further alleges that the specification does not describe in sufficient detail "the airflow which is produced during running" and "the convection cooling effect." See Office action, p. 18. However, the specification clearly states that, due to "the airflow which is produced during running[,]...the temperature of the coating 3 in the chest region 5 is decreasing the faster the athlete 1 runs." See As-filed application, [0039]. This alone is sufficient to disclose a correlation between running, airflow, and convection cooling effect and, therefore, to meet the written description requirements of 35 U.S.C. § 112(a). See Enzo Biochem, 323 F.3d at 964.
Despite this, the Office appears to allege that, by not describing every possible hypothetical effect or cause of cooling and heating an athlete, the specification does not describe in sufficient detail the essential or critical features. See Office action, p.18-19. The Office "has the initial burden of presenting by a preponderance of evidence why a person skilled in the art would not recognize in an applicant's disclosure a description of the invention defined by the claims." MPEP § 2163 (citing In re Wertheim, 541 F.2d 257, 263, 191 USPQ 90, 97 (CCPA 1976)). However, the Office has not provided evidence as to why a person skilled in the art would not recognize the described invention in the claims. The external factors described by the Office, such as atmospheric pressure and a hypothetical use of a sauna, form no part of the claimed method or garment of claims 1 and 6 and need not be described to satisfy the written description of requirements of 35 U.S.C. § 112(a).
Examiner’s reply:
Applicant’s argument is fully considered and is not persuasive because the specification does not describe in sufficient detail the essential or critical features not adequately described in the specification and not conventional or known in the art, as set forth in the rejection (see office action of 06/18/2025; p. 18 line 5 – p. 21 line 6 in relation to claim 1; see same at p. 24 - p. 29 in relation to claim 6). Applicant’s specific argument that “the specification clearly states that, due to "the airflow which is produced during running[,]...the temperature of the coating 3 in the chest region 5 is decreasing the faster the athlete 1 runs." See As-filed application, [0039]. This alone is sufficient to disclose a correlation between running, airflow, and convection cooling effect and, therefore, to meet the written description requirements” is fully considered and is not persuasive in that the specification does not describe in sufficient detail the essential or critical features, as set forth in the office action (see office action of 06/18/2025; p. 18 line 5 – p. 21 line 6; in relation to claim 1; see same at p. 24 - p. 29 in relation to claim 6).
Applicant argues:
A plurality of elements configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of an at least one thermochromic dye
Additionally, the Office alleges that the elements to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color (herein after "drag elements") are not described in sufficient detail. See Office action, p. 19-20. However, the drag elements are sufficiently described and shown in the application, including a range of exemplary geometries and materials for the elements. See As-filed application, FIGS. 4 and 5, and 77 [0041]-[0044]. As described above, the specification adequately discloses a correlation between running speed and the color of the thermochromic dye, as well as a correlation between running, airflow, and convection cooling effect. Id. 77 [0039], [0051]. Further, the specification discloses that the drag elements stabilize "the correlation between the running speed of the athlete and the color of the thermochromic dye during running." Id. [0012]. Again, this disclosed correlation between function and structure is more than sufficient to meet the written description requirements of 35 U.S.C. § 112(a). See Enzo Biochem, 323 F.3d at 964.
Examiner’s reply:
Applicant’s argument is fully considered and is not persuasive because the specification does not describe in sufficient detail the essential or critical features not adequately described in the specification and not conventional or known in the art, as set forth in the rejection (see office action of 06/18/2025; p. 18 line 5 – p. 21 line 6). Applicant’s specific argument that “the specification discloses that the drag elements stabilize "the correlation between the running speed of the athlete and the color of the thermochromic dye during running." Id. [0012]. Again, this disclosed correlation between function and structure is more than sufficient to meet the written description requirements” is fully considered and is not persuasive in that the specification does not describe in sufficient detail the essential or critical features, as set forth in the office action (see office action of 06/18/2025; p. 19-21).
Applicant argues:
Even so, the Office then alleges that claim 1 recites new matter by reciting a "plurality of elements being configured to reduce an aerodynamic drag." See Office action, p. 21-22. The Office points to the specification which describes "elements to influence the aerodynamic drag" as proof that the specification does not recite the exact language of the claim. Id. There is no in haec verba requirement for claim limitations, but rather claim limitations can be supported through express, implicit, or inherent disclosure. See MPEP § 2163. Even so, the specification states that "[b]y the combination of the elements for influencing the aerodynamic drag and the use of thermochromic ink the desired effect, i. e. to achieve a correlation between the running speed of the athlete and the color of the thermochromic dye during running, is stabilized because the aerodynamic effects are reduced." As-filed Specification, [0012]. Thus, there is support for the limitation.
Examiner’s reply:
Applicant’s argument is fully considered and is not persuasive in that the plurality of elements as described are not configured to reduce an aerodynamic drag as claimed and as argued; rather, the plurality of elements as described in the specification as filed “influence”, are “for influencing” drag, and are “to influence” drag (see office action of 06/18/2025, the paragraph spanning p. 21-22; see also specification p. 3, p. 4, p. 6-8, p. 11). In addition, while not specifically argued by Applicant, it is noted that the specification does not recite any color being stabilized but rather an “effect” being stabilized (see office action of 06/18/2025, the paragraph spanning p. 21-22; see also specification p. 3, p. 8).
Applicant argues:
For at least these reasons, independent claims 1 and 6 are described sufficiently to meet the requirements of 35 U.S.C. § 112(a). Accordingly, Applicant requests that the rejections of claims 1 and 6, and all claims dependent thereon, be withdrawn and the claims allowed.
Examiner’s reply:
Applicant’s argument is fully considered and is not persuasive. Applicant’s specific arguments directed to claims 1 and 6 are addressed hereinabove and, as described above, are not persuasive.
Regarding Rejections under 35 U.S.C. § 112(b) (see p. 14-15), Applicant’s arguments are fully considered and are not persuasive.
Applicant argues:
Claims 1-2, 6-10, and 13-22 stand rejected under 35 U.S.C. § 112(b) as allegedly failing to point out and distinctly claim the subject matter which the inventor regards as the invention. Applicant traverses these rejections.
Independent claim 1
The Office alleges that "the plurality of elements are provided on a second region of the piece of garment that is different from the first region, the plurality of elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region" is not understood. See Office action, p. 30 and 31. More specifically, the Office alleges that it is not understood what is meant by "to influence an airstream to stabilize a color." Id.
The Office appears to be confused that the plurality of drag elements can influence an airstream to stabilize the color of the thermochromic dye when hypothetical influencing factors may be present. Id. Regardless of whether the Office "understands" the exact method of stabilization, the Office has not presented evidence that the claim is indefinite. In fact, the Office has done the opposite in recognizing that, for example, "the airstream [can be] influenced so as to provide more and/or less cooling and/or heating of a part of the garment the air." Id. at p. 31. The exact influence need not be specified for a claim to be definite under § 112(b), as the specific influence may change depending on the particular use case, such as the Office's hypothetical where an athlete decides to use a sauna before they run, see id., at p. 19.
To that end, a decision on whether a claim is indefinite under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph requires a determination of whether those skilled in the art would understand what is claimed when the claim is read in light of the specification. MPEP § 2173.02 (referencing Power-One, Inc. v. Artesyn Techs., Inc., 599 F.3d 1343, 1350, 94 USPQ2d 1241, 1245 (Fed. Cir. 2010); Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1 USPQ2d 1081 (Fed. Cir. 1986)). The specification provides clear examples: airflow is "produced by running;" the cooling effect increases (and thus the temperature decreases) "the faster [an] athlete 1 runs;" the color of the thermochromic dye changes "depending on the running speed v of the athlete 1;" and this "effect is improved and stabilized if elements 7 to influence aerodynamic drag are used." See As-filed application, f [0039]-[0041]. Further, the claim itself recites that the drag elements are configured to influence drag, and the drag elements provided on the second region of the garment are configured to reduce an aerodynamic drag of the piece of a garment and to influence the airstream to stabilize color.
For at least these reasons, claim 1 is definite and meets the requirements of 35 U.S.C. § 112(b). Accordingly, Applicant requests that the rejections of claim 1, and all claims dependent thereon, be withdrawn and the claims allowed.
Examiner’s reply:
Applicant’s argument is fully considered and is not persuasive. As stated in the rejection (see the only full paragraph of p. 31), the specification does not recite that a color is stabilized but rather an “effect”, and it is not understood whether and how to influence an airstream to stabilize a color. Applicant’s argument that “"the airstream [can be] influenced so as to provide more and/or less cooling and/or heating of a part of the garment the air" is fully considered but is not persuasive in that even if the airstream were influenced so as to provide more and/or less cooling and/or zero net heating or cooling, it is not understood how such influencing would stabilize color insofar as color would be influenced by factors other than airstream direction, as set forth in the rejection (see the only full paragraph of p. 31).
Applicant argues:
Independent claim 6
The Office alleges that "the elements that are configured to reduce an aerodynamic drag of the piece of garment and to direct an airstream to the first region to stabilize a color of the thermochromic dye in the first region" are not understood. See Office action, p. 32. For at least the reasons described in relation to claim 1 above, claim 6 is definite and meets the requirements of 35 U.S.C. § 112(b). Accordingly, Applicant requests that the rejections of claim 6, and all claims dependent thereon, be withdrawn and the claims allowed.
Examiner’s reply:
Applicant’s argument is fully considered and is not persuasive. Applicant’s specific arguments directed to the 35 USC 112(b) rejection of claim 1 are addressed above and are not persuasive; see above.
Applicant argues:
Independent claim 6
Interpretation under 35 U.S.C. §112(f)
The Office has indicated that the terms "elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region,""elements that are configured to reduce an aerodynamic drag of the garment and to direct an airstream to the first region to stabilize the color of the thermochromic dye in the first region," and "venting elements" recited in claims 1, 6, and 17, respectively, are interpreted under 35 U.S.C. § 112(f). Applicant respectfully submits that interpretation under §112(f) is improper.
Interpretation under §112(f) is in error because (1) the Office has not met the burden required to apply such an interpretation and (2) the burden cannot be met. MPEP § 2181 states that "[a] claim limitation is presumed to invoke 35 USC 112(f) when it explicitly uses the term 'means' or 'step' and includes functional language." MPEP § 2181(I). By contrast, MPEP § 2181 further explains that "a claim limitation that does not use the term 'means' or 'step' will trigger the rebuttable presumption that 35 U.S.C. 112(f) does not apply." Id. (emphasis added). Here, the claims do not include "means" or "step" elements, and so, there is a rebuttable presumption that §112(f) does not apply.
The Office attempts to overcome this presumption by alleging that terms "elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region,""elements that are configured to reduce an aerodynamic drag of the garment and to direct an airstream to the first region to stabilize the color of the thermochromic dye in the first region," and "venting elements" are generic placeholders that are "coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier." See Office action, p. 34. However, this ignores "[t]he standard [inquiry of] whether the words of the claim are understood by persons of ordinary skill in the art to have a sufficiently definite meaning as the name for structure." Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1349 (Fed. Cir. 2015; accord MPEP § 2181).
To that end, "claim terms 'need not connote a single, specific structure,' and may instead 'describe a class of structures' and still recite 'sufficiently definite structure' to not invoke § 11216 6." Dyfan, LLC v. Target Corp., 28 F.4th 1360, 1366 (Fed. Cir. 2022) (quoting Apple Inc..Motorola, Inc., 757 F.3d 1286, 1300 (Fed. Cir. 2014)). For example, in Dyfan, the Federal Circuit further explained that terms of art, when coupled with language describing their operation, can connote structure. See Id. at 12. Some examples of generic place holders that are preceded by structural modifiers and have been held not to invoke 35 U.S.C. § 112(f) include:"circuit, detent mechanism, digital detector, reciprocating member, connector assembly, perforation, sealingly connected joints, and eyeglass hanger member." MPEP § 2181(I)(A) (internal quotes removed); see also Inventio AG v. Thyssenkrupp Elevator Americas Corp., 649 F.3d 1350, 99 USPQ2d 1112 (Fed. Cir. 2011) (holding that the claim terms "modernizing device" and "computing unit" when read in light of the specification connoted sufficient, definite structure to one of skill in the art to preclude application of 35 U.S.C. 112, sixth paragraph).
A term or phrase can be shown to have sufficient structure by reviewing the specification, subject matter dictionaries, and/or prior art tying the term or phrase to structure. See MPEP § 2181(I)(C). The "elements being configured to reduce an aerodynamic drag" and "venting elements" are structures that are described and shown in the application. See As-filed application, FIGS. 4-6, and 77 [0019], [0020], and [0041]-[0046]. Additionally, much in the same way that "reciprocating member" and "detent mechanism" have been held to convey sufficient structure to those skilled in the art, so do the terms "elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region,""elements that are configured to reduce an aerodynamic drag of the garment and to direct an airstream to the first region to stabilize the color of the thermochromic dye in the first region," and "venting elements." Thus, Applicant respectfully submits that the interpretation of claims 1, 6, and 17 under 35 U.S.C. § 112(f) is improper and must be with withdrawn.
Examiner’s reply:
Applicant’s argument is fully considered and is not persuasive. The argued claims include one or more limitations that do not used the word “means” but are nonetheless being interpreted under 35 USC 112(f) because the limitations use a generic placeholder coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier (see p. 34-35 of the office action of 06/18/2025). Applicant’s specific argument that “The "elements being configured to reduce an aerodynamic drag" and "venting elements" are structures that are described and shown in the application. See As-filed application, FIGS. 4-6, and 77 [0019], [0020], and [0041]-[0046]. Additionally, much in the same way that "reciprocating member" and "detent mechanism" have been held to convey sufficient structure to those skilled in the art, so do the terms "elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region,""elements that are configured to reduce an aerodynamic drag of the garment and to direct an airstream to the first region to stabilize the color of the thermochromic dye in the first region," and "venting elements."” is fully considered and is not persuasive if only because it amount to a mere conclusory statement; the limitations use a generic placeholder coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier (see p. 34-35 of the office action of 06/18/2025), regardless of the meaning(s) of the argued, extraneous, terms “circuit, detent mechanism, digital detector, reciprocating member, connector assembly, perforation, sealingly connected joints, and eyeglass hanger member”.
Applicant argues:
Rejections under 35 U.S.C. § 103
Independent Claim 1
Claim 1 recites, in part, a method for visualizing a speed of an athlete including providing a piece of a garment that includes at least one thermochromic dye, monitoring the color of the at least one thermochromic dye during a sporting activity of the athlete, and evaluating the speed of the athlete on the basis of the actual color of the at least one thermochromic dye.
Chu, Tanda, and Jacobs, alone or in combination, fail to teach or suggest a method for visualizing a speed of an athlete including providing a piece of a garment that includes at least one thermochromic dye, monitoring the color of the at least one thermochromic dye during a sporting activity of the athlete, and evaluating the speed of the athlete on the basis of the actual color of the at least one thermochromic dye. To support aprimafacie case of obviousness under 35 U.S.C. § 103, the Office must establish "a finding that the prior art included each element claimed, although not necessarily in a single prior art reference, with the only difference between the claimed invention and the prior art being the lack of actual combination of the elements in a single prior art reference." MPEP § 2143(A) (citing KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007)). Accordingly, to overcome the rejection, Applicant need only identify a single limitation that is not arranged or combined in the prior art in the same way as recited in the claim.
The Office relies on Chu to teach a method of monitoring changes in temperature of a human subject by providing a garment with a thermochromic pigment and monitoring a change in color of the garment, wherein a change in color corresponds to a change in temperature of the human subject. See Office action, p. 36-37; see also Chu, [0066]. However, as admitted by the Office, Chu does not teach or suggest evaluating a speed of the athlete on the basis of the actual color of the at least one thermochromic dye as recited in claim 1. See Office action, p. 37. Instead, the Office looks to Tanda to teach the missing elements of claim 1. Id.
The Office asserts that Tanda teaches that a runner is capable of managing their heat by adjusting their speed. See Office action, p. 38. However, this does not relate to evaluating a speed of an athlete, much less evaluating a speed of an athlete on the basis of the actual color of at least one thermochromic dye. Accordingly, to support the rejection, the Office must improperly conflate an athlete slowing down due to overheating with evaluating a speed of the athlete. See Office action, p. 38. But this reasoning, again, necessarily presupposes the information being sought, i.e., the speed of the athlete, and amounts to no more than logical fallacy.
Looking at the reference for what it reasonably and fairly teaches, Tanda only describes a method of measuring a skin temperature, and in no way contemplates how such a skin temperature can be used to determine speed. This aligns with Office's admission that "there is no art-recognized correlation between athlete speed and color of a thermochromic dye." Office action, p. 24.
The Office only uses Jacobs to teach a garment with a plurality of elements configured to influence aerodynamic drag. See Office action, p. 39. Jacobs is silent with regards to evaluating a speed of an athlete. Therefore, Jacobs does not teach or suggest evaluating a speed of an athlete on the basis of the actual color of at least one thermochromic dye. Therefore, Jacobs fails to teach or suggest the method of claim 1.
For at least these reasons, the cited art fails to render claim 1 obvious. Accordingly, Applicant requests that the rejections of claim 1, and all claims dependent thereon, be withdrawn and the claims allowed.
Examiner’s reply:
Applicant’s argument is fully considered and is not persuasive.
Applicant’s specific argument that “The Office asserts that Tanda teaches that a runner is capable of managing their heat by adjusting their speed. See Office action, p. 38. However, this does not relate to evaluating a speed of an athlete, much less evaluating a speed of an athlete on the basis of the actual color of at least one thermochromic dye. Accordingly, to support the rejection, the Office must improperly conflate an athlete slowing down due to overheating with evaluating a speed of the athlete. See Office action, p. 38. But this reasoning, again, necessarily presupposes the information being sought, i.e., the speed of the athlete, and amounts to no more than logical fallacy” is fully considered and is not persuasive. The rejection does not rely on Tanda for the claim term “evaluating”; rather, the primary reference Chu discloses the evaluating (see p. 37 lines 1-6 of the office action of 06/18/2025). Prior art Tanda teaches athlete speed influences both heat production by the body during a sports activity and also the convective heat transfer rate; Tanda further teaches a runner is capable of managing his or her heat by adjusting his or her speed for the purpose of preventing physical exhaustion (see same office action p. 37-38 and specifically 38 lines 7-14). And the modification as applied in the rejection is not an improper conflation of “an athlete slowing down due to overheating with evaluating a speed of the athlete” as argued but rather a modification of the method of Chu such that its method for visualizing is a method for visualizing speed of an athlete and such that its step of evaluating is a step of evaluating the speed of the athlete (see p. 38 lines 15-21 of the office action of 06/18/2025). In other words, primary reference Chu discloses visualizing and evaluating, and Chu is modified such that what is visualized and evaluated is speed in order to determine whether said athlete’s speed is or is not leading to physical exhaustion and/or needs to be adjusted so as to prevent physical exhaustion; see p. 38 lines 15-21 of the office action of 06/18/2025.
Applicant argues:
Independent claim 6
Claim 6 recites, in part, an athletic garment including a section that is configured to cover a part of a body of an athlete. The section includes a first region that is provided with a coating or is made of a material which comprises at least one thermochromic dye having a color that is correlated with a speed of the athlete to provide a visual indication of the speed of the athlete, such that the color is a first color at a first speed of the athlete and changes to a second color at a second speed that is different from the first speed.
The Office relies on Chu to teach an athletic garment including a section that is configured to cover a part of a body of an athlete. The section includes a first region that is provided with a coating or is made of a material which comprises at least one thermochromic dye having a color. See Office action, p. 42. However, as admitted by the Office, Chu does not teach or suggest a garment having at least one thermochromic dye having a color that is correlated with a speed of the athlete to provide a visual indication of the speed of the athlete, such that the color is a first color at a first speed of the athlete and changes to a second color at a second speed that is different from the first speed. Id. at p. 43. Instead, the Office looks to Tanda to teach the missing elements of claim 1. Id. at p. 44.
For similar reasons as above, Tanda fails to teach or suggest a garment having at least one thermochromic dye having a color that is correlated with a speed of the athlete to provide a visual indication of the speed of the athlete, such that the color is a first color at a first speed of the athlete and changes to a second color at a second speed that is different from the first speed. For example, Tanda does not contemplate how skin temperature can be used to determine speed. Further, by the Office's own admission, "there is no art-recognized correlation between athlete speed and color of a thermochromic dye." See Office action, p. 24.
The Office only uses Jacobs to teach a garment provided with elements that are configured to reduce an aerodynamic drag of the garment. See Office action, p. 46. Jacobs is silent with regards to correlating a color with a speed of the athlete.
Thus, Chu, Tanda, and Jacobs, alone or in combination, fail to teach or suggest a garment having at least one thermochromic dye having a color correlated with a speed of an athlete to provide a visual indication of the speed of the athlete. For at least the foregoing reasons, Applicant submits that independent claim 6 and all claims that depend therefrom are patentable over Chu, Tanda, and Jacobs, alone or in combination. Accordingly, Applicant respectfully requests that the rejections be withdrawn and the claims allowed.
Examiner’s reply:
Applicant’s argument is fully considered and is not persuasive. Applicant’s argument that “For similar reasons as above, Tanda fails to teach or suggest a garment having at least one thermochromic dye having a color that is correlated with a speed of the athlete to provide a visual indication of the speed of the athlete, such that the color is a first color at a first speed of the athlete” is fully considered and is not persuasive. As set forth in above addressing of Applicant’s remarks directed to independent claim 1, Applicant’s arguments directed to claim 1 are not persuasive. Applicant’s specific argument that “Tanda does not contemplate how skin temperature can be used to determine speed” is fully considered and is not persuasive if only because using skin temperature to determine speed is not claimed. Applicant’s specific argument that “by the Office's own admission, "there is no art-recognized correlation between athlete speed and color of a thermochromic dye." See Office action, p. 24” is fully considered and is not persuasive in that primary reference Chu discloses the thermochromic dye having a color (p. 42 of the office action of 06/18/2025) which “turns color in response to a change in temperature” (para 9 of Chu) via the art-recognized correlation between color and temperature, wherein said art-recognized correlation between color and temperature is explained in the office action of 06/18/2025 (see p. 24-25 thereof); modifying reference Tanda teaches athlete speed influences both heat production by the body during a sports activity and also the convective heat transfer rate; Tanda further teaches a runner is capable of managing his or her heat by adjusting his or her speed for the purpose of preventing physical exhaustion (see office action of 06/18/2025 at p. 44-45). And Chu is modified such that it the color is a first color at a first speed of the athlete and changes to a second color at a second speed that is different than the first speed so that the color of the thermochromic dye in the first region is correlated with a speed of the athlete to provide a visual indication of the speed of the athlete in order to yield the capability of determining whether the athlete’s speed is or is not leading to physical exhaustion and/or needs to be adjusted so as to prevent physical exhaustion (see office action, first full paragraph of p. 45). In adopting the modification, the mode of action as described by Chu (i.e. “turns color in response to a change in temperature”; para 9 of Chu) remains the well-known art-recognized correlation between color and temperature. As modified, the color is correlated with a speed to provide a visual indication of the speed as claimed as evidenced by the teaching of Tanda that athlete speed influences the physical processes of both heat production by the body and also convective heat transfer rate wherein said convective heat transfer rate can either add heat or remove heat based on the clothed surface-to-ambient temperature difference (see Tanda p. 103 col. 2 lines 8-12; p. 105 col. 2 lines 33-58; p. 105; col. 2 lines 37-41; see the final full paragraph of p. 44 of the office action).
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-2 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception, enumerated grouping of abstract models (ideas) to visualize a speed of an athlete by monitoring color and evaluating speed on the basis of the color without significantly more. The claim(s) recite(s), in relevant part, emphases provided by Examiner: “A method for visualizing a speed of an athlete, comprising the steps: providing a piece of garment...wherein the piece of garment includes...at least one thermochromic dye...monitoring the color of the at least one thermochromic dye during the sporting activity of the athlete; and evaluating the speed of the athlete on the basis of the actual color of the at least one thermochromic dye”.
Under the 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50-57 (Jan. 7, 2019) (“2019 Revised Guidance”), “Examiners should determine whether a claim satisfies the criteria for subject matter eligibility by evaluating the claim in accordance with the criteria discussed in MPEP 2106,
i.e., whether the claim is to a statutory category (Step 1) and the Alice/Mayo test for judicial exceptions (Steps 2A and 2B).”
The 2019 Revised Guidance further states in part, emphases provided by Examiner:
Section I of this 2019 Revised Patent Subject Matter Eligibility Guidance explains that the judicial exceptions are for subject matter that has been identified as the “basic tools of scientific and technological work,” [5] which includes “abstract ideas” such as mathematical concepts, certain methods of organizing human activity, and mental processes...
...the 2019 Revised Patent Subject Matter Eligibility Guidance extracts and synthesizes key concepts identified by the courts as abstract ideas to explain that the abstract idea exception includes the following groupings of subject matter, when recited as such in a claim limitation(s) (that is, when recited on their own or per se):...
(c) Mental processes—concepts performed in the human mind [14] (including an observation, evaluation, judgment, opinion).[15]...
Step 2A of the 2019 Revised Patent Subject Matter Eligibility Guidance is a two-prong inquiry. In Prong One, examiners evaluate whether the claim recites a judicial exception.[20]
This prong is similar to procedures in prior guidance except that when determining if a claim recites an abstract idea, examiners now refer to the subject matter groupings of abstract ideas in Section I instead of comparing the claimed concept to the USPTO's prior “Eligibility Quick Reference Sheet Identifying Abstract Ideas.”
If the claim recites a judicial exception (i.e., an abstract idea enumerated in Section I of the 2019 Revised Patent Subject Matter Eligibility Guidance, a law of nature, or a natural phenomenon), the claim requires further analysis in Prong Two...
In Prong Two, examiners evaluate whether the claim recites additional elements that integrate the exception into a practical application of that exception...
If, however, the additional elements do not integrate the exception into a practical application, then the claim is directed to the recited judicial exception, and requires further analysis under Step 2B (where it may still be eligible if it amounts to an “inventive concept”).[22]
MPEP 2106.04(d) states, in relevant part:
Whether or not a claim integrates a judicial exception into a practical application is evaluated using the considerations set forth in subsection I below...
I.RELEVANT CONSIDERATIONS FOR EVALUATING WHETHER ADDITIONAL ELEMENTS INTEGRATE A JUDICIAL EXCEPTION INTO A PRACTICAL APPLICATION
The Supreme Court and Federal Circuit have identified a number of considerations as relevant to the evaluation of whether the claimed additional elements demonstrate that a claim is directed to patent-eligible subject matter. The list of considerations here is not intended to be exclusive or limiting. Additional elements can often be analyzed based on more than one type of consideration and the type of consideration is of no import to the eligibility analysis. Additional discussion of these considerations, and how they were applied in particular judicial decisions, is provided in MPEP § 2106.05(a) through (c) and MPEP § 2106.05(e) through (h).
Under the 2019 Revised Guidance, the Examiner should determine under Alice step 1 or “Step 2A” to whether the claim recites:
(1) Prong One: any judicial exceptions, including certain groupings of abstract ideas (i.e., [i] mathematical concepts, [ii] mental processes, or [iii] certain methods of organizing human activity such as a fundamental economic practice or managing personal behavior or relationships or interactions between people); and
(2) Prong Two: additional elements that integrate the judicial exception into a practical application (see Manual of Patent Examining Procedure (“MPEP”) §§ 2106.05(a)-(c), (e)— (h)). See 2019 Revised Guidance, 84 Fed. Reg. at 51-52, 55, Revised Step 2A, Prong One (Abstract Idea) and Prong Two (Integration into A Practical Application).
Only if a claim: (1) recites a judicial exception, and (2) does not integrate that exception into a practical application, does the Examiner then evaluate whether the claim provides an “inventive concept” under Alice step 2 or “Step 2B.” See 2019 Revised Guidance at 56; Alice, 573 U.S. at 217-18. For example, the Examiner determines whether the claim:
(1) adds a specific limitation beyond the judicial exception that is not “well- understood, routine, conventional’ in the field (see MPEP § 2106.05(d)); or
(2) simply appends well-understood, routine, and conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. See 2019 Revised Guidance, 84 Fed. Reg. at 56.
Alice/Mayo—Step 1 (Abstract Idea)
Step 2A-Prongs 1 and 2 identified in the 2019 Revised Guidance
Step 2A, Prong One:
Turning now to the first step of the Alice inquiry, with the broadest reasonable interpretation, claim 1 relates to a mental process to visualize a speed of an athlete by mentally monitoring the color of the at least one thermochromic dye during the sporting activity of the athlete and mentally evaluating the speed of the athlete on the basis of the actual color of the at least one thermochromic dye. The claim recites the step of monitoring the color of the at least one thermochromic dye during the sporting activity of the athlete, which is an act of monitoring information that can be practically performed in the human mind. Thus, this step is an abstract idea in the “mental process” grouping. The claim recites the step of evaluating the speed of the athlete on the basis of the actual color of the at least one thermochromic dye, which is an act of evaluating information that can be practically performed in the human mind. Thus, this step is an abstract idea in the “mental process” grouping. Dependent claim 2 depends from parent claim 1 and relates to a mental process with similar reasoning.
Step 2A, Prong Two (Integration into a Practical Application)
Under Prong Two of the 2019 Revised Guidance, the claim fails to integrate the judicial exception into a practical application.
That is, the Examiner should identify any additional claim limitations beyond the judicial exception and evaluate the additional limitations individually and in combination for determining whether these limitations integrate the judicial exception into a practical application. The additional claim limitations are “providing a piece of garment, which is worn by the athlete during a sporting activity, wherein the piece of garment includes a plurality of elements configured to influence aerodynamic drag and at least one thermochromic dye, wherein the at least one thermochromic dye is provided in a first region of the piece of garment and the plurality of elements are provided on a second region of the piece of garment that is different from the first region, the plurality of elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region, and wherein the first region includes at least one of a chest region and a front sleeve region of the piece of garment” in Claim 1 and “wherein the at least one thermochromic dye comprises a liquid crystal” in Claim 2.
Attention is drawn to the 2019 Revised Guidance, which states, in relevant part, emphases provided by Examiner:
...courts have also identified examples in which a judicial exception has not been integrated into a practical application:...
an additional element adds insignificant extra-solution activity to the judicial exception; [31] and
an additional element does no more than generally link the use of a judicial exception to a particular technological environment or field of use.[32]
In the present case, the step of “providing a piece of garment, which is worn by the athlete during a sporting activity, wherein the piece of garment includes a plurality of elements configured to influence aerodynamic drag and at least one thermochromic dye, wherein the at least one thermochromic dye is provided in a first region of the piece of garment and the plurality of elements are provided on a second region of the piece of garment that is different from the first region, the plurality of elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region, and wherein the first region includes at least one of a chest region and a front sleeve region of the piece of garment” adds insignificant extra-solution activity to the judicial exception. The claimed step is a pre-solution activity of providing a garment worn during a sporting activity whose at least one thermochromic dye is capable of being monitored and/or the athlete speed is capable of being evaluated on the basis of the actual color thereof. Moreover, the activity (i.e. providing a piece of garment; wearing a piece of garment; participating in a sporting activity while wearing a piece of garment; providing garment with plural regions; providing one of said plural regions with a thermochromic dye; providing another of said plural regions with elements configured to influence aerodynamic drag) is well-understood and is conventional. In addition, the further limitation of claim 2 of wherein the at least one thermochromic dye comprises a liquid crystal is part of the insignificant extra-solution activity of providing a garment worn during a sporting activity whose at least one thermochromic dye is capable of being monitored and/or the athlete speed is capable of being evaluated on the basis of the actual color thereof wherein providing a piece of garment with a thermochromic dye comprising a liquid crystal is well-understood and conventional.
Attention is drawn to MPEP 2106.05(g), which states in relevant part:
The term “extra-solution activity” can be understood as activities incidental to the primary process or product that are merely a nominal or tangential addition to the claim. Extra-solution activity includes...pre-solution...activity. An example of pre-solution activity is a step of gathering data for use in a claimed process....
As explained by the Supreme Court, the addition of insignificant extra-solution activity does not amount to an inventive concept, particularly when the activity is well-understood or conventional.
In addition, the step of “providing a piece of garment, which is worn by the athlete during a sporting activity, wherein the piece of garment includes a plurality of elements configured to influence aerodynamic drag and at least one thermochromic dye, wherein the at least one thermochromic dye is provided in a first region of the piece of garment and the plurality of elements are provided on a second region of the piece of garment that is different from the first region, the plurality of elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region, and wherein the first region includes at least one of a chest region and a front sleeve region of the piece of garment” does no more than generally link the use of a judicial exception to a particular technological environment or field of use. Limiting the abstract idea of monitoring color and evaluating speed on the basis of color to a piece of garment worn by an athlete during a sporting activity limits the use of the abstract idea to the particular technological environment of the speed of an athlete and does not alter or affect how the mental process steps of monitoring and/or evaluating are performed. In addition, the further limitation of claim 2 of wherein the at least one thermochromic dye comprises a liquid crystal limits the use of the abstract idea to the particular technological environment of the speed of an athlete and does not alter or affect how the mental process steps of monitoring and/or evaluating are performed.
Attention is drawn to MPEP 2106.05(h) which states, in relevant part, emphases provided by Examiner:
The courts often cite to Parker v. Flook as providing a classic example of a field of use limitation...In Flook, the claim recited steps of calculating an updated value for an alarm limit (a numerical limit on a process variable such as temperature, pressure or flow rate) according to a mathematical formula “in a process comprising the catalytic chemical conversion of hydrocarbons.”...the additional element in Flook regarding the catalytic chemical conversion of hydrocarbons was not sufficient to make the claim eligible, because it was merely an incidental or token addition to the claim that did not alter or affect how the process steps of calculating the alarm limit value were performed.
Examples of limitations that the courts have described as merely indicating a field of use or technological environment in which to apply a judicial exception include:...
vi. Limiting the abstract idea of collecting information, analyzing it, and displaying certain results of the collection and analysis to data related to the electric power grid, because limiting application of the abstract idea to power-grid monitoring is simply an attempt to limit the use of the abstract idea to a particular technological environment, Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1354, 119 USPQ2d 1739, 1742 (Fed. Cir. 2016);...
Examiners should also keep in mind that this consideration overlaps with other considerations, particularly insignificant extra-solution activity (see MPEP § 2106.05(g)). For instance, a data gathering step that is limited to a particular data source...could be considered to be both insignificant extra-solution activity and a field of use limitation.
As such, no additional element (or combination of elements) in the claim integrates the judicial exception into a practical application, and as such, claim 1 does not integrate these features into a real and practical solution of the real applications, and claim 2 does not integrate these features into a real and practical solution of the real applications.
Alice/Mayo—Step 2 (Inventive Concept)
Step 2B identified in the 2019 Revised Guidance
In the second step of the Alice inquiry, the additional elements of claims 1 and 2 do not contain any “inventive concept” sufficient to transform the claimed abstract idea into a patent-eligible application. As explained above in addressing Step 2A of the 2019 Revised Guidance, the step of “providing a piece of garment, which is worn by the athlete during a sporting activity, wherein the piece of garment includes a plurality of elements configured to influence aerodynamic drag and at least one thermochromic dye, wherein the at least one thermochromic dye is provided in a first region of the piece of garment and the plurality of elements are provided on a second region of the piece of garment that is different from the first region, the plurality of elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region, and wherein the first region includes at least one of a chest region and a front sleeve region of the piece of garment” adds insignificant extra-solution activity to the judicial exception and the further limitation of claim 2 of wherein the at least one thermochromic dye comprises a liquid crystal adds insignificant extra-solution activity to the judicial exception. The additional limitations simply append well-understood, routine, conventional activities of providing a piece of garment; wearing a piece of garment; participating in a sporting activity while wearing a piece of garment; providing garment with plural regions; providing one of said plural regions with a thermochromic dye; providing another of said plural regions with elements configured to influence aerodynamic drag, previously known to the industry specified at a high level of generality, to the judicial exception.
Claim Rejections - 35 USC § 112 (a)
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-2, 6-10, and 13-22 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites “A method for visualizing a speed of an athlete, comprising the steps:
providing a piece of garment, which is worn by the athlete during a sporting activity, wherein the piece of garment includes a plurality of elements configured to influence aerodynamic drag and at least one thermochromic dye, wherein the at least one thermochromic dye is provided in a first region of the piece of garment and the plurality of elements are provided on a second region of the piece of garment that is different from the first region, the plurality of elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region, and wherein the first region includes at least one of a chest region and a front sleeve region of the piece of garment;
monitoring the color of the at least one thermochromic dye during the sporting activity of the athlete; and
evaluating the speed of the athlete on the basis of the actual color of the at least one thermochromic dye.”
However, the claim contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Attention is drawn to MPEP 2163 which states, in relevant part, emphases provided by Examiner:
To satisfy the written description requirement, a patent specification must describe the claimed invention in sufficient detail that one skilled in the art can reasonably conclude that the inventor had possession of the claimed invention... There is a presumption that an adequate written description of the claimed invention is present when the application is filed....However...issues of adequate written description may arise even for original claims, for example, when an aspect of the claimed invention has not been described with sufficient particularity such that one skilled in the art would recognize that the inventor had possession of the claimed invention at the time of filing. The claimed invention as a whole may not be adequately described if the claims require an essential or critical feature which is not adequately described in the specification and which is not conventional or known in the art... An invention described solely in terms of a method of making and/or its function may lack written descriptive support where there is no described or art-recognized correlation between the disclosed function and the structure(s) responsible for the function... The written description requirement is not necessarily met when the claim language appears in ipsis verbis in the specification. “Even if a claim is supported by the specification, the language of the specification, to the extent possible, must describe the claimed invention so that one skilled in the art can recognize what is claimed. The appearance of mere indistinct words in a specification or a claim, even an original claim, does not necessarily satisfy that requirement.” Enzo Biochem, Inc. v. Gen-Probe, Inc., 323 F.3d 956, 968, 63 USPQ2d 1609, 1616 (Fed. Cir. 2002)...
Claim 1 recites, in relevant part, “A method for visualizing a speed of an athlete” comprising the steps of “providing a piece of garment...wherein the piece of garment includes...at least one thermochromic dye” and “monitoring the color of the at least one thermochromic dye during the sporting activity of the athlete; and evaluating the speed of the athlete on the basis of the actual color of the at least one thermochromic dye”.
A person skilled in the art at the time the application was filed would not have recognize that the inventor was in possession of the invention as claimed in view of the disclosure of the application as filed because there is no described or art-recognized correlation between either or both of the disclosed mental steps of monitoring color and evaluating speed and the structure of the garment. In other words, there is no art-recognized correlation between mentally monitoring a color and/or mentally evaluating an athlete speed and what the actual color of a thermochromic dye is. An art-recognized correlation of a thermochromic dye is color and temperature, as is evidenced by the statements from the extrinsic references referred to in the table below, emphases provided by Examiner:
reference
statement
paragraph or col. and line
[Aperfine, US 2004/0237164]
Thermochromic dyes allow a reversible color change as a function of temperature change
para [0007]
[Matheson, US 2009/0046760]
outerwear apparel which visibly displays dermal temperature by employing thermochromic color changing characteristics via thermochromic dye incorporated into the fabric of the apparel
para [0004]
[Crockett, US 2013/0263352]
apparel...comprises...thermochromic dyes that independently change color at a particular temperature. Each of the...thermochromic dyes may be selected to change or lose color at specific points along a temperature continuum
para [0025]
[Allen, US 2016/0150839]
The increased temperature range changes the color of the thermochromic dye
para [0017]
[Abouraddy, US 2019/0112733]
thermochromic dyes may be used to passively change the color of a fabric through body heat and/or ambient heat
para [0035]
In addition, the present specification recites, emphasis provided by Examiner, “thermochromism is the property of substances to change their color due to a change in temperature. A thermochromic dye (also called thermochromic ink) is a temperature sensitive compound which temporarily changes its color with exposure to heat” (p. 5 lines 11-15 as filed)
Accordingly, there is an art-recognized correlation between thermochromic dye color and temperature.
However, what is claimed is a method comprising the steps of mentally monitoring the color and mentally evaluating an athlete speed on the basis of the actual color of the thermochromic dye.
In addition, there is no described correlation between the disclosed mental steps and the structure(s) responsible for the steps. The specification recites at p. 7-8 “This effect is used to determine the running speed v of the athlete 1 as depicted in figure 3. Here, the chest region 5 is exposed to the airflow which is produced during running. Thus, the cooling effect especially of the chest region 5 is increasing and thus the temperature of the coating 3 in the chest region 5 is decreasing the faster the athlete 1 runs. Accordingly, depending of the running speed v of the athlete 1 the color of the coating 3 changes from C1 to C2 and C3. An observer 11 can observe the chest region 5 of the runner and can thus determine the (approximate) actual running speed of the athlete 1.” The specification further recites at p. 9 “The proposed garment and respective method allows a visual observation of the actual running speed of the athlete 1 by an eye-catching color change effect. It is the result of the convection cooling effect during the sprint of the athlete 1. For example, according to the mixture which is applied as coating 3 the following effect can be obtained: During a 100 m running competition (by a warmed-up athlete) the appearance of the chest region of the garment is blue (color C1) at a running speed of 30 km/h (8.33 m/s), becomes green (color C2) at a running speed of 34 km/h (9.44 m/s) and becomes finally yellow (color C3) at a speed of 38 km/h (10.56 m/s). So, an observer 11 can see which performance is currently achieved by the athlete already during the competition”.
Usage of the term “proposed” suggests that the “proposed garment and respective method” are not an actual garment and an actual method but rather a proposed, hypothetical garment and method that the Applicant did not have possession of at the time of filing. In addition, the claimed invention is not described in sufficient detail that one skilled in the art can reasonably conclude that the inventor had possession of the claimed invention. The specification states “chest region 5 is exposed to the airflow which is produced during running...the cooling effect especially of the chest region 5 is increasing and thus the temperature of the coating 3 in the chest region 5 is decreasing the faster the athlete 1 runs” and “the convection cooling effect during the sprint of the athlete 1. For example, according to the mixture which is applied as coating 3 the following effect can be obtained: During a 100 m running competition (by a warmed-up athlete) the appearance of the chest region of the garment is blue (color C1) at a running speed of 30 km/h (8.33 m/s), becomes green (color C2) at a running speed of 34 km/h (9.44 m/s) and becomes finally yellow (color C3) at a speed of 38 km/h (10.56 m/s)” but it does not describe in sufficient detail a method comprising the steps of mentally monitoring the color and mentally evaluating an athlete speed on the basis of the actual color of the thermochromic dye.
The specification does not describe in sufficient detail the essential or critical feature which is not adequately described in the specification and which is not conventional or known in the art of:
“chest region 5 is exposed to the airflow which is produced during running” and “the convection cooling effect”
It is noted that an athlete is capable of running in a variety of contexts such that convection cooling would occur: including a variety of factors that could influence airflow produced during running and/or heat gained and/or lost to/from the wearer and his environment, including at least: ambient temperature; atmospheric wind speed and wind direction; wind turbulence; uniformity of wind speed; atmospheric pressure; relative humidity; airflow occasioned by a human-operated device such as a fan or an air-conditioning system; inhalation and exhalation of the runner and/or other athletes; airflow directed from the motion of another athlete(s); perspiration; thermal properties of the wearer’s garment. However, the specification does not describe in sufficient detail this essential or critical feature as to how an airflow is produced during running so as to practice the claimed method comprising a mental steps as claimed.
“warmed-up athlete”
It is note that an athlete can warm-up and/or be warmed-up in a variety of contexts so as to prepare himself for an athletic competition, including at least stretching; jogging; engaging in practice runs; exposing himself to a warm environment such as a sauna for the purpose of warming up; applying an external warming device to his body for the purpose of warming up. However, the specification does not describe in sufficient detail this essential or critical feature of how and to what extent an athlete is warmed-up so as to practice the claimed method comprising the mental steps as claimed.
In addition and regarding the claimed “elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region” the phrase lacks written description support the because it is not described in sufficient detail that one skilled in the art can reasonably conclude that the inventor had possession of the claimed invention.
The specification does not describe in sufficient detail the essential or critical feature which is not adequately described in the specification and which is not conventional or known in the art of “elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region” .
The specification recites at p. 3 “By the combination of the elements for influencing the aerodynamic drag and the use of thermochromic ink the desired effect, i. e. to achieve a correlation between the running speed of the athlete and the color of the thermochromic dye during running, is stabilized because the aerodynamic effects are reduced and a more relevant part of the airstream effects the cooling of (e. g) the chest region of the garment and thus effects the appearing color of the thermochromic dye” and at p. 8 “The mentioned effect is improved and stabilized respectively if elements 7 to influence the aerodynamic drag are used. Those elements 7 can be applied in the (lateral) regions 6 of the garment 2”. But the specification does not describe in sufficient detail a method comprising one or more mental steps of monitoring/evaluating color and/or a correlation between athlete speed and actual color of a thermochromic dye of a garment piece wherein the plurality of elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye as claimed.
When “a more relevant part of the airstream effects the cooling of (e. g) the chest region”: the specification does not describe in sufficient detail the essential or critical feature which is not adequately described in the specification and which is not conventional or known in the art of: the conditions that occasion the described more relevant part of the airstream effecting the cooling of (e.g.) the chest rection. An incident airstream is capable of being provided on a chest region in a variety of contexts: including a variety of factors that could influence incident airstream, including at least: ambient temperature; atmospheric wind speed and wind direction; wind turbulence; uniformity of wind speed and wind direction; atmospheric pressure; relative humidity; airflow occasioned by a human-operated device such as a fan or an air-conditioning system; inhalation and exhalation of the runner and/or other athletes; airflow directed from the motion of another athlete(s). However, the specification does not describe in sufficient detail this essential or critical feature as to how a more relevant part of the airstream effects the cooling of (e. g) the chest region so as to practice the claimed one or more mental steps of monitoring/evaluating color and/or a correlation between athlete speed and actual color of a thermochromic dye of a garment piece wherein the plurality of elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye as claimed.
As referenced above in the 35 USC 101 rejections, claim 1 is directed to nonstatutory subject matter. In view of Applicant’s acknowledgement that “thermochromism is the property of substances to change their color due to a change in temperature. A thermochromic dye (also called thermochromic ink) is a temperature sensitive compound which temporarily changes its color with exposure to heat” (p. 5 lines 11-15 as filed) and in view of the art-recognized correlation between temperature and color (see, for example, the table above) combined with the absence of a described correlation between either or both of the disclosed mental steps of monitoring color and evaluating speed and the structure of the garment (vide infra), these steps, for the purpose of applying art, will be treated as functional recitations or intended functions of how the piece of garment and thermochromic dye behave under certain conditions based on the characteristics of the piece of garment and dye.
Moreover and in reference to claim 1:
Claim 1 recites new matter in reciting at lines 7-9 “the plurality of elements being configured to reduce an aerodynamic drag of the garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region”.
The specification recites “influence the aerodynamic drag of the garment” and “elements for influencing the aerodynamic drag” (p. 3); “elements which influence the aerodynamic drag” (p. 4); “elements are provided to influence the aerodynamic drag of the garment”, “elements to influence the aerodynamic drag of the garment, and “elements to influence the aerodynamic drag (p. 6); “elements 7 to influence the aerodynamic drag” (p. 8); “elements to influence the drag” and “Element to influence the aerodynamic drag” (p. 11). The specification recites “By the combination of the elements for influencing the aerodynamic drag and the use of thermochromic ink the desired effect, i. e. to achieve a correlation between the running speed of the athlete and the color of the thermochromic dye during running, is stabilized because the aerodynamic effects are reduced and a more relevant part of the airstream effects the cooling of (e. g) the chest region of the garment and thus effects the appearing color of the thermochromic dye) (p. 3). However, the specification does not recite the elements are configured to reduce an aerodynamic drag and/or the that aerodynamic drag is one of the “aerodynamic effects” that “are reduced”. In addition, the specification does not recite any color being stabilized. Rather, the specification recites an “effect” being stabilized (p. 3; p. 8).
Claim 2 and 21 are rejected if only because they depend from a rejected claim.
Claim 6 recites “An athletic garment, comprising: a section which is configured to cover a part of a body of an athlete, wherein the section includes a first region that is provided with a coating or is made of a material which comprises at least one thermochromic dye having a color, and a second region that is provided with elements that are configured to reduce an aerodynamic drag of the garment and to direct an airstream to the first region to stabilize the color of the thermochromic dye in the first region so that the color of the thermochromic dye in the first region is correlated with a speed of the athlete to provide a visual indication of the speed of the athlete, such that the color is a first color at a first speed of the athlete and changes to a second color at a second speed that is different than the first speed,
wherein the first region includes at least one of a chest region and a front sleeve region, and wherein the second region is different from the first region.”
However, the claim contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Attention is drawn to MPEP 2163 which states, in relevant part, emphases provided by Examiner:
To satisfy the written description requirement, a patent specification must describe the claimed invention in sufficient detail that one skilled in the art can reasonably conclude that the inventor had possession of the claimed invention... There is a presumption that an adequate written description of the claimed invention is present when the application is filed....However...issues of adequate written description may arise even for original claims, for example, when an aspect of the claimed invention has not been described with sufficient particularity such that one skilled in the art would recognize that the inventor had possession of the claimed invention at the time of filing. The claimed invention as a whole may not be adequately described if the claims require an essential or critical feature which is not adequately described in the specification and which is not conventional or known in the art... An invention described solely in terms of a method of making and/or its function may lack written descriptive support where there is no described or art-recognized correlation between the disclosed function and the structure(s) responsible for the function... The written description requirement is not necessarily met when the claim language appears in ipsis verbis in the specification. “Even if a claim is supported by the specification, the language of the specification, to the extent possible, must describe the claimed invention so that one skilled in the art can recognize what is claimed. The appearance of mere indistinct words in a specification or a claim, even an original claim, does not necessarily satisfy that requirement.”Enzo Biochem, Inc. v. Gen-Probe, Inc., 323 F.3d 956, 968, 63 USPQ2d 1609, 1616 (Fed. Cir. 2002)...
Claim 6 recites, in relevant part, “elements that are configured to reduce an aerodynamic drag of the garment and to direct an airstream to the first region to stabilize the color of the thermochromic dye in the first region so that the color of the thermochromic dye in the first region is correlated with a speed of the athlete to provide a visual indication of the speed of the athlete, such that the color is a first color at a first speed of the athlete and changes to a second color at a second speed that is different than the first speed”.
A person skilled in the art at the time the application was filed would not have recognize that the inventor was in possession of the invention as claimed in view of the disclosure of the application as filed because there is no described or art-recognized correlation between the disclosed function and the structure(s) responsible for the function. In other words, there is no art-recognized correlation between athlete speed and color of a thermochromic dye. An art-recognized correlation of a thermochromic dye is color and temperature, as is evidenced by the statements from the extrinsic references referred to in the table presented above in rejecting claim 1.
In addition, the present specification recites, emphasis provided by Examiner, “thermochromism is the property of substances to change their color due to a change in temperature. A thermochromic dye (also called thermochromic ink) is a temperature sensitive compound which temporarily changes its color with exposure to heat” (p. 5 lines 11-15 as filed)
Accordingly, there is an art-recognized correlation between thermochromic dye color and temperature.
However, what is claimed is an athletic garment wherein a color of the thermochromic dye in the first region is correlated with a speed of the athlete such that the color is a first color at a first speed of the athlete and changes to a second color at a second speed that is different than the first speed.
In addition, there is no described correlation between the function of the “color...correlated with a speed” and “changes...color at a second speed” and the structure(s) responsible for the function. The specification recites at p. 7-8 “This effect is used to determine the running speed v of the athlete 1 as depicted in figure 3. Here, the chest region 5 is exposed to the airflow which is produced during running. Thus, the cooling effect especially of the chest region 5 is increasing and thus the temperature of the coating 3 in the chest region 5 is decreasing the faster the athlete 1 runs. Accordingly, depending of the running speed v of the athlete 1 the color of the coating 3 changes from C1 to C2 and C3. An observer 11 can observe the chest region 5 of the runner and can thus determine the (approximate) actual running speed of the athlete 1.” The specification further recites at p. 9 “The proposed garment and respective method allows a visual observation of the actual running speed of the athlete 1 by an eye-catching color change effect. It is the result of the convection cooling effect during the sprint of the athlete 1. For example, according to the mixture which is applied as coating 3 the following effect can be obtained: During a 100 m running competition (by a warmed-up athlete) the appearance of the chest region of the garment is blue (color C1) at a running speed of 30 km/h (8.33 m/s), becomes green (color C2) at a running speed of 34 km/h (9.44 m/s) and becomes finally yellow (color C3) at a speed of 38 km/h (10.56 m/s). So, an observer 11 can see which performance is currently achieved by the athlete already during the competition”.
Usage of the term “proposed” suggests that the “proposed garment and respective method” are not an actual garment and an actual method but rather a proposed, hypothetical garment and method that the Applicant did not have possession of at the time of filing. In addition, the claimed invention is not described in sufficient detail that one skilled in the art can reasonably conclude that the inventor had possession of the claimed invention. The specification states “chest region 5 is exposed to the airflow which is produced during running...the cooling effect especially of the chest region 5 is increasing and thus the temperature of the coating 3 in the chest region 5 is decreasing the faster the athlete 1 runs” and “the convection cooling effect during the sprint of the athlete 1. For example, according to the mixture which is applied as coating 3 the following effect can be obtained: During a 100 m running competition (by a warmed-up athlete) the appearance of the chest region of the garment is blue (color C1) at a running speed of 30 km/h (8.33 m/s), becomes green (color C2) at a running speed of 34 km/h (9.44 m/s) and becomes finally yellow (color C3) at a speed of 38 km/h (10.56 m/s)” but it does not describe in sufficient detail an athletic garment wherein a second region that is provided with elements that are configured to reduce an aerodynamic drag of the garment and to direct an airstream to the first region to stabilize the color of the thermochromic dye in the first region so that the color of the thermochromic dye in the first region is correlated with a speed of the athlete to provide a visual indication of the speed of the athlete, such that the color is a first color at a first speed of the athlete and changes to a second color at a second speed that is different than the first speed.
The specification does not describe in sufficient detail the essential or critical feature which is not adequately described in the specification and which is not conventional or known in the art of:
“chest region 5 is exposed to the airflow which is produced during running” and “the convection cooling effect”
It is noted that an athlete is capable of running in a variety of contexts such that convection cooling would occur: including a variety of factors that could influence airflow produced during running and/or heat gained and/or lost to/from the wearer and his environment, including at least: ambient temperature; atmospheric wind speed and wind direction; wind turbulence; uniformity of wind speed; atmospheric pressure; relative humidity; airflow occasioned by a human-operated device such as a fan or an air-conditioning system; inhalation and exhalation of the runner and/or other athletes; airflow directed from the motion of another athlete(s); perspiration; thermal properties of the wearer’s garment. However, the specification does not describe in sufficient detail this essential or critical feature as to how an airflow is produced during running so as to yield an athletic garment as claimed.
“warmed-up athlete”
It is note that an athlete can warm-up and/or be warmed-up in a variety of contexts so as to prepare himself for an athletic competition, including at least stretching; jogging; engaging in practice runs; exposing himself to a warm environment such as a sauna for the purpose of warming up; applying an external warming device to his body for the purpose of warming up. However, the specification does not describe in sufficient detail this essential or critical feature of how and to what extent an athlete is warmed-up so as to yield an athletic garment as claimed.
In addition and regarding the claim language “elements that are configured to reduce an aerodynamic drag of the garment and to direct an airstream to the first region to stabilize the color of the thermochromic dye in the first region”: the phrase lacks written description support the because it is not described in sufficient detail that one skilled in the art can reasonably conclude that the inventor had possession of the claimed invention.
The specification does not describe in sufficient detail the essential or critical feature which is not adequately described in the specification and which is not conventional or known in the art of “elements that are configured to reduce an aerodynamic drag of the garment and to direct an airstream to the first region to stabilize the color of the thermochromic dye in the first region”. The specification recites at p. 3 “By the combination of the elements for influencing the aerodynamic drag and the use of thermochromic ink the desired effect, i. e. to achieve a correlation between the running speed of the athlete and the color of the thermochromic dye during running, is stabilized because the aerodynamic effects are reduced and a more relevant part of the airstream effects the cooling of (e. g) the chest region of the garment and thus effects the appearing color of the thermochromic dye” and at p. 8 “The mentioned effect is improved and stabilized respectively if elements 7 to influence the aerodynamic drag are used. Those elements 7 can be applied in the (lateral) regions 6 of the garment 2”. But the specification does not describe in sufficient detail an athletic garment as claimed.
When “a more relevant part of the airstream effects the cooling of (e. g) the chest region”: the specification does not describe in sufficient detail the essential or critical feature which is not adequately described in the specification and which is not conventional or known in the art of: the conditions that occasion the described more relevant part of the airstream effecting the cooling of (e.g.) the chest rection. An incident airstream is capable of being provided on a chest region in a variety of contexts: including a variety of factors that could influence incident airstream, including at least: ambient temperature; atmospheric wind speed and wind direction; wind turbulence; uniformity of wind speed and wind direction; atmospheric pressure; relative humidity; airflow occasioned by a human-operated device such as a fan or an air-conditioning system; inhalation and exhalation of the runner and/or other athletes; airflow directed from the motion of another athlete(s). However, the specification does not describe in sufficient detail this essential or critical feature as to how a more relevant part of the airstream effects the cooling of (e. g) the chest region so as to yield an athletic garment as claimed.
The specification does not describe in sufficient detail the essential or critical feature which is not adequately described in the specification and which is not conventional or known in the art of: the conditions that occasion the described influencing of aerodynamic drag and how it relates to effect improvement and/or stabilization. Aerodynamic drag is capable of being influenced in a variety of contexts: including a variety of factors that could influence aerodynamic drag, including at least: ambient temperature; atmospheric wind speed and wind direction; wind turbulence; uniformity of wind speed and wind direction; atmospheric pressure; relative humidity; airflow occasioned by a human-operated device such as a fan or an air-conditioning system; inhalation and exhalation of the runner and/or other athletes; airflow directed from the motion of another athlete(s). However, the specification does not describe in sufficient detail this essential or critical feature as to how aerodynamic drag is influenced so as to yield the garment as claimed.
In addition, claim 6 recites new matter in reciting at lines 4-6 “elements that are configured to reduce an aerodynamic drag of the garment and to direct an airstream to the first region to stabilize the color of the thermochromic dye in the first region”.
The specification recites “influence the aerodynamic drag of the garment” and “elements for influencing the aerodynamic drag” (p. 3); “elements which influence the aerodynamic drag” (p. 4); “elements are provided to influence the aerodynamic drag of the garment”, “elements to influence the aerodynamic drag of the garment, and “elements to influence the aerodynamic drag (p. 6); “elements 7 to influence the aerodynamic drag” (p. 8); “elements to influence the drag” and “Element to influence the aerodynamic drag” (p. 11). The specification recites “By the combination of the elements for influencing the aerodynamic drag and the use of thermochromic ink the desired effect, i. e. to achieve a correlation between the running speed of the athlete and the color of the thermochromic dye during running, is stabilized because the aerodynamic effects are reduced and a more relevant part of the airstream effects the cooling of (e. g) the chest region of the garment and thus effects the appearing color of the thermochromic dye) (p. 3). However, the specification does not recite the elements are configured to reduce an aerodynamic drag and/or the that aerodynamic drag is one of the “aerodynamic effects” that “are reduced”. In addition, the specification does not recite the elements are configured to direct an airstream to the first region. Rather, the specification recites “a more relevant part of the airstream effects the cooling of (e. g) the chest region” (p. 3) but it does not state that the cooling of the chest region is achieved by directing the airstream to the first region; it is noted that an airstream could be capable of cooling a first given structure even if said airstream were directed away from said first given structure and towards a second given structure if said first and second given structures were in thermal contact with each other. In addition, the specification does not recite the stabilizing of a/the color. Rather, the specification recites an “effect” being stabilized (p. 3; p. 8).
Claims 7-10, 13-20, and 22 are rejected if only because they depend from a rejected claim.
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 1-2, 6-10, and 13-22 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 recites at lines 6-9 “the plurality of elements are provided on a second region of the piece of garment that is different from the first region, the plurality of elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region”. It is not understood what is meant by “to influence an airstream to stabilize a color”. As recited in the specification, a color is not stabilized but rather an “effect” (p. 3; p. 8), and it is not understood whether and how to influence an airstream to stabilize a color. For example it is not understood whether the airstream is influenced so as to provide more and/or less cooling and/or heating of a part of the garment or if the airstream is influenced in some other way. In addition, even if the airstream were influenced so as to provide more and/or less cooling and/or heating and/or zero net heating or cooling of a part of the garment, it is not understood how such influencing would stabilize color insofar as color would be influenced by factors other than airstream direction, including but not limited to ambient temperature, body temperature, and perspiration. For the purpose of applying art, the limitation “the plurality of elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region” is interpreted as if it reads --the plurality of elements being configured to reduce an aerodynamic drag of the piece of garment and to the plurality of elements being configured to influence an airstream and wherein the piece of garment is configured such that it a color of the at least one thermochromic dye in the first region is capable of being stabilized--. It is noted that this interpretation is for the purpose of applying art and does not necessarily mean that the interpretation is supported by the disclosure as-filed.
Claims 2 and 21 are rejected if only because they depend from a rejected claim.
Claim 6 is indefinite in reciting at lines 4-6 “elements that are configured to reduce an aerodynamic drag of the garment and to direct an airstream to the first region to stabilize the color of the thermochromic dye in the first region”. It is not understood what is meant by “to direct an airstream to the first region to stabilize the color”. As recited in the specification, a color is not stabilized but rather an “effect” (p. 3; p. 8), and it is not understood what is meant by directing an airstream to stabilize a color. For example it is not understood whether the airstream is directed to provide more and/or less cooling and/or heating to the first region or if the airstream is directed so as to provide no net heating or cooling. In addition, even if the airstream were directed so as to provide more and/or less cooling and/or heating or no net heating or cooling to the first region, it is not understood how such direction would stabilize color insofar as color would be influenced by factors other than airstream direction, including but not limited to ambient temperature, body temperature, and perspiration. For the purpose of applying art, the limitation “elements that are configured to reduce an aerodynamic drag of the garment and to direct an airstream to the first region to stabilize the color of the thermochromic dye in the first region” is interpreted as if it reads -- elements that are configured to reduce an aerodynamic drag of the garment and to direct an airstream to the first region wherein the garment is configured such that the color of the thermochromic dye in the first region is capable of being stabilized--. It is noted that this interpretation is for the purpose of applying art and does not necessarily mean that the interpretation is supported by the disclosure as-filed.
Claim 7-10, 13-20, and 22 are rejected if only because they depend from a rejected claim.
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:
elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region in claim 1
elements that are configured to reduce an aerodynamic drag of the garment and to direct an airstream to the first region to stabilize the color of the thermochromic dye in the first region in claim 6
venting elements in claim 17
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are 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.
It is noted the claim limitation(s) “wherein the elements which influence the aerodynamic drag are pads which are arranged on an outer surface of the section of garment” of claim 14 and “wherein the venting elements are designed as a pattern of openings which are machined into the material of the section of garment or which are manufactured during production of the section of garment” of claim 17 recite(s) sufficient structure, materials, or acts to entirely perform the recited function.
Because this/these claim limitation(s) is/are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are not being interpreted to cover only the corresponding structure, material, or acts described in the specification as performing the claimed function, and equivalents thereof.
If applicant intends 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 remove the structure, materials, or acts that performs the claimed function; or (2) present a sufficient showing that the claim limitation(s) does/do not recite sufficient structure, materials, or acts to perform the claimed function.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1 and 21, as best understood, is/are rejected under 35 U.S.C. 103 as being unpatentable over [Chu, US 2017/0325520] in view of [Tanda, 2016 NPL], and [Jacobs, US 5,809,567].
Regarding claim 1:
Chu discloses a method for visualizing (“visual determination...a visual tool for skin temperature indication”; para 79) an athlete (“athlete”; para 94) comprising the steps:
providing a piece of garment (“thermochromic garment”; Abstract), which is worn by an athlete (“athlete”; para 94) during a sporting activity (“workouts”; para 103),
wherein the piece of garment includes at least one thermochromic dye (“thermochromic pigment”; Abstract, wherein “thermochromic pigments are leuco dyes”; para 6),
wherein the at least one thermochromic dye is provided in a first region of the piece of garment (“sleeve”; para 93), wherein the first region includes at least one of a chest region and a front (“Front”; Fig. 2A) sleeve region (“sleeve...black 35° C. pigments” para 93) of the piece of garment;
monitoring (“monitoring changes in temperature of a human subject or a portion of the human subject that is in contact with the thermochromic garment...monitoring or treating various conditions or aspects of the human subject selected from the group consisting of physical exhaustion”; para 11) the color of the at least one thermochromic dye during the sporting activity of the athlete (“exhaustion during workouts and can serve a functional purpose of visually signalling physical exhaustion via changes in apparel color caused by increasing skin temperature”; para 103); and
evaluating the athlete on the basis of the actual color of the at least one thermochromic dye (“monitoring changes in temperature of a human subject or a portion of the human subject that is in contact with the thermochromic garment...monitoring or treating various conditions or aspects of the human subject selected from the group consisting of physical exhaustion”; para 11; “exhaustion during workouts and can serve a functional purpose of visually signalling physical exhaustion via changes in apparel color caused by increasing skin temperature”; para 103).
Chu does not expressly disclose
The method is a method for visualizing a speed of an athlete, comprising the step:
evaluating the speed of the athlete on the basis of the actual color of the at least one thermochromic dye.
However, Tanda teaches a method for “Skin temperature measurements...during running exercise” (Title) wherein during a sporting activity (“running”; p. 103 col. 1 line 16), a reduction in athlete speed (“decrease his/her speed”; p. 103 col. 2 line 10) causes the athlete to “reduce heat production” so as to permit “adequate heat loss” to “the environment” (p. 103 col. 2 lines 8-10) for the purpose of preventing physical exhaustion (“drop out of the race or, in the worst case, even collapse owing to hyperthermia”; p. 103 col. 2 lines 11-12).
Tanda further teaches that the “The thermo-regulatory system of the human body...is regulated by the following energy balance M – qsk – qres = 0 where M is the rate of metabolic heat production (W), while qsk...and qres...are the total rate of heat loss from skin and through respiration, respectively” (p. 105 col. 1 lines 24-29) and that “Convective...heat transfer rate[]...Csk” contributes to the “rate transferred from the skin qsk” and is “controlled by controlled by the clothed surface-to-ambient temperature difference” (p. 105 col. 2 lines 33-43) further wherein said convective heat transfer rate Csk increases as “running velocity” increases (p. 105 col. 2 line 54) “as occurs in a forced convection heat transfer process” which “can be enhanced by the presence of wind” (p. 105 col. 2 lines 56-58). Tanda further teaches “At low ambient temperatures, the rate of heat loss exceeds the metabolic heat production and the internal body temperature tends to decrease...At high ambient temperatures, heat can be gained from the environment” (p. 103 col. 1 lines 9-13),
Accordingly, Tanda teaches athlete speed influences both heat production by the body during a sporting activity (p. 103 col. 2 lines 8-12) and also the convective heat transfer rate (p. 105 col. 2 lines 33-58) wherein said convective heat transfer rate can either add heat or remove heat based on the “clothed surface-to-ambient temperature difference” (p. 105 col. 2 lines 37-41).
Accordingly, Tanda teaches that a runner is capable of managing his or her heat by adjusting his or her speed for the purpose of preventing physical exhaustion by: slowing down so as to produce less heat or by speeding up so as to promote convective heat loss in a low ambient temperature environment.
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 method of Chu such that it is a method for visualizing a speed of an athlete, comprising the step: evaluating the speed of the athlete on the basis of the actual color of the at least one thermochromic dye in order to determine whether said athlete’s speed is or is not leading to physical exhaustion and/or needs to be adjusted so as to prevent physical exhaustion, as suggested by Tanda (p. 103 col. 2 lines 8-12; p. 105 col. 2 lines 37-41).
The modified Chu does not expressly disclose wherein the piece of garment includes a plurality of elements configured to influence aerodynamic drag, the plurality of elements are provided on a second region of the piece of garment that is different from the first region, the plurality of elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region.
However and in further view of Tanda:
Tanda teaches the “forced convection heat transfer process” “can be enhanced by the presence of wind” (p. 105 col. 2 lines 56-58) and also as “running velocity” increases (p. 105 col. 2 line 54). Thus Tanda teaches an airstream is capable of affecting the rate of convective heat transfer.
However, Jacobs teaches a “garment” to be “worn by an athlete” (col. 8 lines 63-64) comprising a plurality of elements “trip mechanisms” (col. 8 lines 17-18) are provided “on either side of” a stagnation line[]” “along the center of the chest” (col. 8 lines 17-23) wherein “a premature turbulent boundary layer turbulence is created by the trip mechanisms...and a turbulent boundary layer is known to be more capable of carrying heat away from an athlete's body, the trip mechanisms provide an efficient system for increasing heat transfer from an athlete's body, thereby improving athletic performance” (col. 8 lines 46-53). Accordingly the plurality of elements is configured to influence aerodynamic drag, the plurality of elements are provided on a second (i.e. chest) region of a piece of garment, the plurality of elements configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream.
Given the combined teachings of Chu, Tanda, and Jacobs, one of ordinary skill would recognize that providing a thermochromic garment with second (i.e. chest) region elements—i.e. trip mechanisms of Jacobs—could provide a garment comprising a thermochromic dye in a first front sleeve region with a capability of “to stabilize a color of the at least one thermochromic dye in the first region” insofar as second (i.e. chest) region elements would be configured to increase the heat transfer rate from the skin to a cool ambient environment when such elements are contacted by the influenced airstream of said cool ambient environment, thereby permitting a wearer to achieve higher running speeds while maintaining his/her body temperature, including body temperature at first region,—and therefore the color of the at least one thermochromic dye in the first region—at a desirable stabilized temperature and color.
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 Chu such that its piece of garment includes a plurality of elements configured to influence aerodynamic drag, the plurality of elements are provided on a second, chest, region of the piece of garment that is different from the first, front sleeve, region, the plurality of elements being configured to reduce an aerodynamic drag of the piece of garment and to influence an airstream to stabilize a color of the at least one thermochromic dye in the first region in order to promote heat transfer from a user’s body for the purpose of improving athletic performance, as suggested by Jacobs (col. 8 lines 46-53).
Regarding claim 21:
Chu in view of Tanda and Jacobs teach The method of claim 1, as set forth above.
The modified Chu does not expressly disclose wherein the second region includes a lateral side of the piece of the garment. Rather and in applying art to claim 1, the second region is a chest region (see above treatment of claim 1).
However and in further view of Jacobs:
Jacobs as embodied in Fig. 1 teaches providing a trip mechanism 22 provided on a lateral side of a wearer (Fig. 1) and further teaches that “Trip mechanisms 22 would...be placed (though not shown in Fig. 2A) on the garment” of Fig. 2A “as illustrated in Fig. 1” (col. 9 lines 29-31).
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 Chu such that its second region includes a lateral side of the piece of the garment and further such that an element configured to influence aerodynamic drag is provided on said lateral side of the piece of garment in order to yield the predicable result of promoting cooling at the region of the body corresponding to the lateral side of the piece of garment.
Claim(s) 2, as best understood, is/are rejected under 35 U.S.C. 103 as being unpatentable over [Chu, US 2017/0325520], [Tanda, 2016 NPL], and [Jacobs, US 5,809,567] as applied to claim 1 above, and further in view of [Spector, US 4,642,250, previously cited].
Regarding claim 2:
Chu in view of Tanda and Jacobs teach The method of claim 1, as set forth above.
Chu does not expressly disclose wherein the at least one thermochromic dye comprises a liquid crystal.
However, Spector teaches a garment comprising a thermochromic dye comprises a liquid crystal (“An article of apparel such as sportswear whose outer surface exhibits a chromatic pattern related to thermal variations in the body of the wearer. The fabric of the garment is tailored to make direct contact with the skin of the wearer at different body sites. Integrated with the fabric or portions thereof are cholesteric liquid crystals. These are subjected to heat energy emanating from the skin of the wearer and therefore to variations in temperature that depend on the amount of body heat being dissipated in the area of contact. Because these liquid crystals have temperature-sensitive chromatic properties, the color pattern displayed by the garment undergoes changes in the course of wear” (Abstract).)
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 Chu such that its at least one thermochromic dye comprises a liquid crystal, as in Spector, in order to yield a garment appropriate for an athlete wherein the at least one thermochromic dye comprising the liquid crystal is capable of being subjected to heat energy emanating from the skin of the wearer and therefore to variations in temperature that depend on the amount of body heat being dissipated in the area of contact such that the color pattern displayed by the garment undergoes changes in the course of wear of the piece of garment, as suggested by Spector (Abstract). One of ordinary skill would expect a liquid crystal as claimed to work adequately well for this purpose based on the teaching of Spector.
Claim(s) 6, 13-14, 18-19, and 22, as best understood, is/are rejected under 35 U.S.C. 103 as being unpatentable over [Chu, US 2017/0325520] in view of [Tanda, 2016 NPL], and [Jacobs, US 5,809,567].
Regarding claim 6:
Chu discloses:
An athletic (para 94) garment (“thermochromic garment”; Abstract), comprising:
a section (the “garment”) which is configured to cover a part of a body of an athlete (para 93; Figs. 2A and 2B), wherein the section includes a first region (see annotated Fig. 2A – a below) that is provided with a coating (“coated with”; para 93) or is made of a material (“coated with”; para 93) which comprises at least one thermochromic dye (“pigments”; para 93, wherein “thermochromic pigments are leuco dyes”; para 6) having a color (i.e. the color of the thermochromic dye of the “sleeve”), and
a second region (see annotated Fig. 2A – a below),
wherein the first region includes at least one of a chest region and a front sleeve region (first region includes a front sleeve region: “sleeve” (para 93); “Front” of Fig. 2A; refer also to annotated Fig. 2A – a below), and
wherein the second region is different from the first region (as in annotated Fig. 2A – a below).
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Chu does not expressly disclose such that the color is a first color at a first speed of the athlete and changes to a second color at a second speed that is different than the first speed so that the color of the thermochromic dye in the first region is correlated with a speed of the athlete to provide a visual indication of the speed of the athlete.
However, Tanda teaches a method for “Skin temperature measurements...during running exercise” (Title) wherein during a sporting activity (“running”; p. 103 col. 1 line 16), a reduction in athlete speed (“decrease his/her speed”; p. 103 col. 2 line 10) causes the athlete to “reduce heat production” so as to permit “adequate heat loss” to “the environment” (p. 103 col. 2 lines 8-10) for the purpose of preventing physical exhaustion (“drop out of the race or, in the worst case, even collapse owing to hyperthermia”; p. 103 col. 2 lines 11-12).
Tanda further teaches that the “The thermo-regulatory system of the human body...is regulated by the following energy balance M – qsk – qres = 0 where M is the rate of metabolic heat production (W), while qsk...and qres...are the total rate of heat loss from skin and through respiration, respectively” (p. 105 col. 1 lines 24-29) and that “Convective...heat transfer rate[]...Csk” contributes to the “rate transferred from the skin qsk” and is “controlled by controlled by the clothed surface-to-ambient temperature difference” (p. 105 col. 2 lines 33-43) further wherein said convective heat transfer rate Csk increases as “running velocity” increases (p. 105 col. 2 line 54) “as occurs in a forced convection heat transfer process” which “can be enhanced by the presence of wind” (p. 105 col. 2 lines 56-58). Tanda further teaches “At low ambient temperatures, the rate of heat loss exceeds the metabolic heat production and the internal body temperature tends to decrease...At high ambient temperatures, heat can be gained from the environment” (p. 103 col. 1 lines 9-13),
Accordingly, Tanda teaches athlete speed influences both heat production by the body during a sporting activity (p. 103 col. 2 lines 8-12) and also the convective heat transfer rate (p. 105 col. 2 lines 33-58) wherein said convective heat transfer rate can either add heat or remove heat based on the “clothed surface-to-ambient temperature difference” (p. 105 col. 2 lines 37-41).
Accordingly, Tanda teaches that a runner is capable of managing his or her heat by adjusting his or her speed for the purpose of preventing physical exhaustion by: slowing down so as to produce less heat or by speeding up so as to promote convective heat loss in a low ambient temperature environment.
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 athletic garment of Chu such that the color is a first color at a first speed of the athlete and changes to a second color at a second speed that is different than the first speed so that the color of the thermochromic dye in the first region is correlated with a speed of the athlete to provide a visual indication of the speed of the athlete in order to yield the capability of determining whether the athlete’s speed is or is not leading to physical exhaustion and/or needs to be adjusted so as to prevent physical exhaustion, as suggested by Tanda (p. 103 col. 2 lines 8-12; p. 105 col. 2 lines 37-41).
Chu does not expressly disclose the second region that is provided with elements that are configured to reduce an aerodynamic drag of the garment and to direct an airstream to the first region to stabilize the color of the thermochromic dye in the first region so that the color of the thermochromic dye in the first region is correlated with a speed of the athlete to provide a visual indication of the speed of the athlete.
However and in further view of Tanda:
Tanda teaches the “forced convection heat transfer process” “can be enhanced by the presence of wind” (p. 105 col. 2 lines 56-58) and also as “running velocity” increases (p. 105 col. 2 line 54). Thus Tanda teaches a directed airstream is capable of affecting the rate of convective heat transfer.
However, Jacobs teaches a “garment” to be “worn by an athlete” (col. 8 lines 63-64) comprising a plurality of elements “trip mechanisms” (col. 8 lines 17-18) are provided “on either side of” a stagnation line[]” “along the center of the chest” (col. 8 lines 17-23) wherein “a premature turbulent boundary layer turbulence is created by the trip mechanisms...and a turbulent boundary layer is known to be more capable of carrying heat away from an athlete's body, the trip mechanisms provide an efficient system for increasing heat transfer from an athlete's body, thereby improving athletic performance” (col. 8 lines 46-53). Accordingly the plurality of elements is configured to reduce an aerodynamic drag of the garment and to direct an airstream, the plurality of elements are provided on a second (i.e. chest) region of a garment.
Given the combined teachings of Chu, Tanda, and Jacobs, one of ordinary skill would recognize that providing a thermochromic garment having first region thermochromic dye (i.e. front sleeve thermochromic dye) and also second region elements (i.e. chest trip mechanism elements configured to direct an airstream) could provide a garment with a capability of “to direct an airstream to the first region” (i.e. from the chest region and to the front sleeve region) “to stabilize the color of the thermochromic dye in the first region” insofar as chest region elements would be configured to permit a cool airstream passed thereby to cool the wearer at the chest region and then subsequently be directed away from the chest region and towards the front sleeve region when the wearer and garment are subjected to fan and/or wind supplied in such a way that an incident airstream is provided a direction across his/her body oriented from said second to first regions—so as to permit fresh airflow to encounter chest elements for the purpose of increasing the heat transfer rate from the skin to a cool ambient environment, thereby permitting a wearer to achieve higher running speeds while maintaining his/her temperature—and therefore the color of the at least one thermochromic dye—at a desirable stabilized temperature and color. In other words, one of ordinary skill would recognize that effective heat transfer via chest elements would occur when an airstream contacted thereby is directed away from said chest elements and in other directions, including towards the first region when an incident airstream encounters the garment in a cross-body direction from said second to first regions.
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 Chu such that is provided with elements that are configured to reduce an aerodynamic drag of the garment and to direct an airstream to the first region to stabilize the color of the thermochromic dye in the first region so that the color of the thermochromic dye in the first region is correlated with a speed of the athlete to provide a visual indication of the speed of the athlete in order to promote heat transfer from a user’s body for the purpose of improving athletic performance, as suggested by Jacobs (col. 8 lines 46-53), when the garment is subjected to an incident airstream that is provided across his or her body in a direction from the second region to the first region.
Regarding claim 13:
Chu in view of Tanda and Jacobs teach The athletic garment of claim 6, as set forth above.
Chu further discloses wherein the athletic garment includes trunks (“pants”; para 90; Fig. 2A) and the first region includes a front leg region of the trunks (in applying art to claim 6 above, the first region is identified as comprising only the front sleeve; refer to above treatment of claim 6; however, and equally valid interpretation would be to consider the “pants” of Figs. 2A and 2B to be part of the claimed “first region” in addition to the front sleeve identified in above treatment of claim 6. Accordingly, when considering the combined “pants” and front sleeve to be the claimed first region, the modified Chu meets claim 13 limitations).
Regarding claim 14:
Chu in view of Tanda and Jacobs teach The athletic garment of claim 6, as set forth above.
As applied to claim 6 above, the limitation wherein the elements which influence the aerodynamic drag are pads which are arranged on an outer surface of the section of garment.
However and in further view of Jacobs:
In Jacobs, the elements are pads (“elongated protrusions”; Abstract) and are capable of being provided on an outer surface of a garment (“on a garment” (col. 2 lines 48-49)
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 Chu such that the elements which influence the aerodynamic drag are pads which are arranged on an outer surface of the section of garment in order to yield the predictable result of providing cooling elements shaped to conduct heat and to provide the elements at the surface of the garment that is configured to contact an incident airstream.
Regarding claim 18:
Chu in view of Tanda and Jacobs teach The athletic garment of claim 6, as set forth above.
Chu further discloses wherein the coating is applied (“coated with”; para 93 of Chu) to the section by means of a printing process, by means of a spraying process or by means of a painting process.
(“coated with”; para 93 of Chu meets the limitation “by means of a printing process, by means of a spraying process or by means of a painting process”. Chu does not expressly disclose that the process by which the coating is applied is a printing, spraying, and/or painting process; however, the claimed product appears to be the same or similar to that of the prior art even though Chu is silent as to a printing, spraying, and/or painting process; Once the examiner provides a rationale tending to show that the claimed product appears to be the same or similar to that of the prior art, although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an nonobvious difference between the claimed product and the prior art product; refer to MPEP 2113.)
Regarding claim 19:
Chu in view of Tanda and Jacobs teach The athletic garment of claim 6, as set forth above.
Chu further discloses wherein the section has or is a textile substrate (“fabric”; para 35) which comprises synthetic fibers (“synthetic fibers”; para 35) and/or which comprises natural fibers (“natural fibers”; para 35).
Regarding claim 22:
Chu in view of Tanda and Jacobs teach The athletic garment of claim 6, as set forth above.
The modified Chu does not expressly disclose wherein the second region includes at least one of a first lateral side and a second lateral side of the section of garment. Rather and in applying art to claim 6, the second region is a chest region (see above treatment of claim 6).
However and in further view of Jacobs:
Jacobs as embodied in Fig. 1 teaches providing a trip mechanism 22 provided on a first lateral side of a wearer and another trip mechanism 22 provided on a second lateral side of a wearer(Fig. 1) and further teaches that “Trip mechanisms 22 would...be placed (though not shown in Fig. 2A) on the garment” of Fig. 2A “as illustrated in Fig. 1” (col. 9 lines 29-31).
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 Chu such that its second region includes at least one of a first lateral side and a second lateral side of the section of garment in order to yield the predicable result of promoting cooling at the regions of the body corresponding to at least one of the first and second lateral sides of the section of garment.
Claim(s) 7, as best understood, is/are rejected under 35 U.S.C. 103 as being unpatentable over [Chu, US 2017/0325520], [Tanda, 2016 NPL], and [Jacobs, US 5,809,567] as applied to claim 6 above, and further in view of [Spector, US 4,642,250, previously cited].
Regarding claim 7:
Chu in view of Tanda and Jacobs teach The athletic garment of claim 6, as set forth above.
Chu does not expressly disclose wherein the at least one thermochromic dye comprises a liquid crystal.
However, Spector teaches a garment comprising a thermochromic dye comprises a liquid crystal (“An article of apparel such as sportswear whose outer surface exhibits a chromatic pattern related to thermal variations in the body of the wearer. The fabric of the garment is tailored to make direct contact with the skin of the wearer at different body sites. Integrated with the fabric or portions thereof are cholesteric liquid crystals. These are subjected to heat energy emanating from the skin of the wearer and therefore to variations in temperature that depend on the amount of body heat being dissipated in the area of contact. Because these liquid crystals have temperature-sensitive chromatic properties, the color pattern displayed by the garment undergoes changes in the course of wear” (Abstract).)
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 Chu such that its at least one thermochromic dye comprises a liquid crystal, as in Spector, in order to yield a garment appropriate for an athlete wherein the at least one thermochromic dye comprising the liquid crystal is capable of being subjected to heat energy emanating from the skin of the wearer and therefore to variations in temperature that depend on the amount of body heat being dissipated in the area of contact such that the color pattern displayed by the garment undergoes changes in the course of wear of the piece of garment, as suggested by Spector (Abstract). One of ordinary skill would expect a liquid crystal as claimed to work adequately well for this purpose based on the teaching of Spector.
Claims 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over [Chu, US 2017/0325520], [Tanda, 2016 NPL], [Jacobs, US 5,809,567], and [Spector, US 4,642,250, previously cited] as applied to claim 7 above and further in view of [Kajiwara, US 2019/0047318, previously cited].
Regarding claim 8:
Chu in view of Tanda, Jacobs, and Spector teach The athletic garment of claim 7, as set forth above.
Chu does not expressly disclose wherein the liquid crystal is contained in a mixture which is applied to the garment, and wherein the percentage of the liquid crystal in the mixture is between 30 weight-% and 65 weight-%.
However, Kajiwara teaches a thermochromic ink (Abstract) appropriate for deposition onto a “paper surface” (para 50). Kajiwara further teaches relevance to “cholesteric liquid-crystal” thermochromic dyes (para 80). As embodied in para 130, Kajiwara teaches a formulation that is 17% mass of the colorant, 61.77% water, and the balance (i.e. 21.23%) being other components. One of ordinary skill would recognize that, upon drying (i.e. elimination of water after coating), the weight percent of the overall, dry, composition would be 17 parts weight colorant to 21.23 parts other and, accordingly, 45% colorant by weight. Kajiwar further teaches the formulation results in good “color developing performance while maintaining the ink outflow property” and further results in “enhanced” “density” of handwriting on the paper (para 70).
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 Chu such that its liquid crystal is contained in the mixture of Kajiwara which is applied to the garment wherein the percentage of the liquid crystal in the mixture is between 30 and 65 weight percent, as in Kajiwara, in order to yield the garment whose thermochromic elements are readily wet and spread onto the garment substrate, resulting in a high density thereof, as suggested by Kajiwara (para 70).
Regarding claim 9:
Chu in view of Tanda, Jacobs, Spector, and Kajiwara teach The athletic garment of claim 8, as set forth above.
Chu does not expressly disclose wherein the mixture further contains polyether, and wherein the percentage of polyether in the mixture is between 20 weight-% and 50 weight-%.
However, in further view of Kajiwara:
Kajiwara teaches “ink composition may also contain a conventional general-purpose water-soluble organic solvent include…polyethylene glycol…content of the water-soluble organic solvents…is preferable 2 to 60 mass %” (para 82).
Because Kajiwara is concerned with desired color development, ink flow, and ink density and provides a range (i.e. “2 to 60 mass%”) 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 % polyether value through routine experimentation in order to provide desired garment properties. The claimed % polyether is merely an optimum or workable percent and the % polyether of the composition is expected to affect color performance, ink flow, and ink density of the ink and accordingly the properties 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 modified Chu such that the mixture further contains the polyether of Kajiwara and wherein the percentage of polyether in the mixture is between 20 weight % and 50 weight % in order to obtain a garment wherein the ink used to create the garment results in thermochromic elements are readily wet and spread onto the garment substrate, resulting in a high density thereof.
Regarding claim 10:
Chu in view of Tanda, Jacobs, Spector, and Kajiwara teach The athletic garment of claim 8, as set forth above.
Chu does not expressly disclose wherein the mixture further contains glycerol, and wherein the percentage of glycerol in the mixture is between 3 weight-% and 9 weight-%.
However, in further view of Kajiwara:
Kajiwara teaches “ink composition may also contain a conventional general-purpose water-soluble organic solvent include…glycerin…content of the water-soluble organic solvents…is preferable 2 to 60 mass %” (para 82).
Because Kajiwara is concerned with desired color development, ink flow, and ink density and provides a range (i.e. “2 to 60 mass%”) 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 % polyether value through routine experimentation in order to provide desired garment properties. The claimed % glycerol is merely an optimum or workable percent and the % glycerol of the composition is expected to affect color performance, ink flow, and ink density of the ink and accordingly the properties 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 modified Chu such that the mixture further contains the glycerol of Kajiwara and wherein the percentage of glycerol in the mixture is between 3 weight % and 9 weight % in order to obtain a garment wherein the ink used to create the garment results in thermochromic elements are readily wet and spread onto the garment substrate, resulting in a high density thereof.
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Chu, US 2017/0325520], [Tanda, 2016 NPL], and [Jacobs, US 5,809,567] as applied to claim 14 above and further in view of [Waring, US 5,734,990, previously cited].
Regarding claim 15:
Chu in view of Tanda and Jacobs teach The athletic garment of claim 14, as set forth above.
Chu does not expressly disclose wherein a plurality of substantially rod-shaped sticks is arranged on the pads or forming the pads which the plurality of substantially rod-shaped sticks extend normal on the outer surface of the section of garment.
However, Waring teaches garment elements (“vortex generators”; Abstract) to influence aerodynamic drag (Abstract):
Waring as embodied in Fig. 4d teaches a substantially rod-shaped stick as an element to influence aerodynamic drag. As embodied in Fig. 6, aerodynamic-influencing elements extend normal on an outer surface of the garment, as one of ordinary skill would expect them to be in order to use them for their intended purpose.
It would have been an obvious matter of design choice 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 Chu such that a plurality of substantially rod-shaped sticks (as in Waring Fig. 4d) are forming the pads which the plurality of substantially rod-shaped sticks extend normal on the outer surface of the section of garment in order to fulfill the purpose of drag reduction on the garment, as shown by eddies 9 in Fig. 4d of Waring.
Claims 16-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Chu, US 2017/0325520], [Tanda, 2016 NPL], and [Jacobs, US 5,809,567] as applied to claim 6 above and further in view of [van der Slessen, US 5,507,042, previously cited].
Regarding claim 16:
Chu in view of Tanda and Jacobs teaches The athletic garment of claim 6, as set forth above.
Chu does not expressly disclose, further comprising at least one further section which is provided with venting elements.
However, van der Slessen teaches a garment (Abstract) comprising at least one section (210) which is provided with venting elements (212). The venting elements are designed as a pattern of openings (Fig. 2) which are machined into the material of a section of garment or which are manufactured during the production of the section of garment (the openings are manufactured somehow during garment production). Van der Slessen further teaches the section providing venting elements results in good ventilation of the garment (Abstract) and suggests that such a capability is appropriate for “warm…weather” (col. 1 lines 17-18).
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 Chu such that it further comprises at least one further section which is provided with venting elements (as in ven der Slessen) wherein the venting elements are designed as a pattern of openings which are machined into the material of a section of garment or which are manufactured during the production of the section of garment (as also in van der Slessen) in order to yield a garment that affords good ventilation to the wearer in warm weather, as taught by van der Slessen (col. 1 lines 17-18).
Regarding claim 17:
Chu in view of Tanda, Jacobs, and van der Slessen teaches The athletic garment of claim 16, as set forth above.
The modified Chu further meets the limitation wherein the venting elements are designed as a pattern of openings which are machined into the material of the section of garment or which are manufactured during the production of the section of garment (refer to above treatment of claim 16, wherein the feature is taught by van der Slessen and applied as a modification).
Claim 20, as best understood, is rejected under 35 U.S.C. 103 as being unpatentable over [Chu, US 2017/0325520], [Tanda, 2016 NPL], and [Jacobs, US 5,809,567] as applied to claim 6 above and in further view of [Baron, US 2014/0000004, previously cited].
Regarding claim 20:
Chu in view of Tanda and Jacobs teaches The athletic garment of claim 6, as set forth above.
Chu does not expressly teach wherein the athletic garment is a seamless textile part.
However, Baron teaches an athletic (para 2) garment (Abstract) wherein the athletic garment is a seamless textile (“textile”; para 15) part (“arm regions 120 may be joined to torso region 110 in a seamless manner”; para 15).
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 Chu such that it is a seamless textile part, as in Baron, in order to yield the predictable result of a garment that does not chafe at what would otherwise be seam locations (for example around the armpit areas) in a conventional seamed garment.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
/G.A.N./Examiner, Art Unit 3732
/KHOA D HUYNH/Supervisory Patent Examiner, Art Unit 3732
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