DETAILED ACTION
This action is in response to the Request for Continued Examination (RCE) filed 3/3/2026. Currently, claims 1-3, 7, 8, 10-14, 16, 17, 21-23 and 25-27 are pending in the application. Claims 4-6, 9, 15, 18-20 and 24 are cancelled by Applicant.
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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 2/17/2026 has been entered.
Response to Arguments
Applicant’s amendment to claim 16 is sufficient to overcome the previous rejection of claims 16, 17, 23 and 25-27 under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph.
Applicant's arguments filed 2/17/2026 have been fully considered but they are not persuasive.
In response to Applicant’s argument that the examiner did not establish that certain result-effective variables are recognized in the prior art, the examiner refers Applicant to MPEP 2144.05(III)(C), which states “that after KSR, the presence of a known result-effective variable would be one, but not the only, motivation for a person of ordinary skill in the art to experiment to reach another workable product or process. KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007).” Thus, it is clear that a result-effective variable does not necessarily need to be recognized in the prior art to provide proper motivation to experiment to reach another workable product or process and instead, a result-effective variable that would be recognized by one of ordinary skill in the art is sufficient to provide proper motivation to experiment to reach another workable product or process. In the present case, it would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to provide that the merge stitch has 15-21 stitches per 25 mm, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. One having ordinary skill in the art before the effective filing of the present invention would find it obvious that the stiches-per-mm of the merge stitch could be modified to alter the seam strength and appearance of the merge stitch as desired. Further, it would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to provide the length of the merge stitch being between 40 mm and 170 mm, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. One having ordinary skill in the art before the effective filing of the present invention would find it obvious that the length of the merge stitch could be modified in order to most accurately and comfortably accommodate the size/shape of the anatomy of a specific individual.
Applicant's remaining arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references.
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) 1-3 and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Plank et al. (US 2021/0386134) in view of McCreesh et al. (US 2022/0117333).
In regards to claim 1, Plank et al. teaches in Figures 5 and 7-9, [0040-0041], [0045], [0047] and [0066] a body (body 50) sized to substantially cover at least a mouth and a nose of a human face (Figure 9 teaches the body 50 covering the user’s nose and mouth; [0040] teaches “the body 50 of the face shield is configured to substantially cover the lower portion of the wearer's face, including the nose and the mouth of the wearer”), the body (body 50) comprising ([0040] teaches “the body 50 includes an outer layer 52, a middle layer 54 and an inner layer 56”), an outer layer (outer layer 52) comprised of a first fabric (the fabric forming outer layer 52; [0041] teaches “the outer layer 52 is comprised of a material that offers both structure for the face shield as well as a moisture barrier” and “the material of the outer layer 52 is generally a lightweight fabric, but still provides the face shield 30 with sufficient structure and body to keep the face shield largely separated from the mouth, nose, and surrounding skin of the wearer at the interior of the face shield 30”), an inner layer (inner layer 56) comprised of a second fabric (the fabric forming inner layer 56; [0045] teaches “the inner layer 56 is comprised of a relatively soft and flexible stretch fabric material configured for comfort when placed against the skin of the wearer, such as Iso-Chill Heat Gear® fabric sold by Under Armour, Inc.”), and a merge stitch (center-line stitching 62) that extends through a center region of (Figures 7 and 8 teach center-line stitching 62 extending vertically along the midline of body 50) the body (body 50) and couples ([0047] teaches “the inner layer 56, middle layer 54, and outer layer 52 of the face shield body 50 are all tethered together at various locations with stitching 58 extending through each of the layers” and “the stitching 58 includes…center-line stitching 62”) the inner layer (inner layer 56) to the outer layer (outer layer 52) along the length of the merge stitch (center-line stitching 62); a first ear strap (right ear loop 72) coupled to (as shown in Figures 7 and 8) the body (body 50) and configured to couple to a right human ear ([0066] teaches “the user dons the face mask 20 by placing the face shield over his or her mouth and nose and drawing the ear loops 72, 74 around his or her ears”); and a second strap (left ear loop 74) coupled to (as shown in Figures 7 and 8) the body (body 50) and configured to couple to a left human ear ([0066] teaches “the user dons the face mask 20 by placing the face shield over his or her mouth and nose and drawing the ear loops 72, 74 around his or her ears”); wherein the second fabric (the fabric forming inner layer 56) is less rigid than ([0045] teaches “the inner layer 56 is comprised of a relatively soft and flexible stretch fabric material configured for comfort when placed against the skin of the wearer, such as Iso-Chill Heat Gear® fabric sold by Under Armour, Inc.;” [0041] teaches “the outer layer 52 is comprised of a material that offers both structure for the face shield as well as a moisture barrier” and “the material of the outer layer 52 is generally a lightweight fabric, but still provides the face shield 30 with sufficient structure and body to keep the face shield largely separated from the mouth, nose, and surrounding skin of the wearer at the interior of the face shield 30;” thus, it is clear that the outer layer 52 has more structural integrity than (and thus, is more rigid than) the soft inner layer 56) the first fabric (the fabric forming outer layer 52).
Plank et al. does not teach that the merge stitch is a three-needle flatlock stitch with 15-21 stitches per 25 mm.
However, McCreesh et al. teaches in [0026] and Figure 2 an analogous device wherein the merge stitch (seam 3) is a flatlock stitch ([0026 teaches “flatlock seams are preferred”).
It would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to modify the merge stitch of Plank et al. to be a flatlock stitch as taught by McCreesh et al. because this element is known to provide “that the seams will lie flat against the wearer thereby providing greater comfort,” as McCreesh et al. teaches in [0026].
Plank et al. and McCreesh et al. do not teach that the merge stitch has 15-21 stitches per 25 mm.
However, it would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to provide that the merge stitch has 15-21 stitches per 25 mm, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. One having ordinary skill in the art before the effective filing of the present invention would find it obvious that the stiches-per-mm of the merge stitch could be modified to alter the seam strength and appearance of the merge stitch as desired.
Claim 5 limitation “three-needle” is a product-by-process claim limitation. “Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted).
In regards to claim 2, Plank et al. and McCreesh et al. teach the apparatus of claim 1. Plank et al. teaches in Figures 7 and 8 that the merge stitch (center-line stitching 62) extends through a vertical midplane (Figures 7 and 8 teach center-line stitching 62 extending vertically along the midline of body 50).
In regards to claim 3, Plank et al. and McCreesh et al. teach the apparatus of claims 1 and 2. Plank et al. teaches in Figures 7 and 8 that the merge stitch (center-line stitching 62) substantially bisects (Figures 7 and 8 teach center-line stitching 62 extending vertically along the midline of body 50, dividing the body 50 into left and right sides) the body (body 50).
In regards to claim 21, Plank et al. and McCreesh et al. teach the apparatus of claim 1. Plank et al. teaches in Figures 7 and 8 and [0047] that the merge stitch (center-line stitching 62) is a first merge stitch (center-line stitching 62), and further comprising a second merge stitch (bottom perimeter stitching 60) that extends along at least a portion of (as shown in Figures 7 and 8; [0047] teaches “the perimeter stitching 60 extends around the perimeter of the body 50”) a perimeter (the perimeter edge of body 50) of the body (body 50) and couples ([0047] teaches “the inner layer 56, middle layer 54, and outer layer 52 of the face shield body 50 are all tethered together at various locations with stitching 58 extending through each of the layers” and “the stitching 58 includes perimeter stitching 60”) the inner layer (inner layer 56) to the outer layer (outer layer 52) along a length of the second merge stitch (bottom perimeter stitching 60).
Claim(s) 7, 8, 10 and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Plank et al. (US 2021/0386134).
In regards to claim 7, Plank et al. teaches in Figures 5 and 7-9, [0040-0041], [0045], [0047] and [0066] a body (body 50) sized to substantially cover at least a mouth and a nose of a human face (Figure 9 teaches the body 50 covering the user’s nose and mouth; [0040] teaches “the body 50 of the face shield is configured to substantially cover the lower portion of the wearer's face, including the nose and the mouth of the wearer”), the body (body 50) comprising ([0040] teaches “the body 50 includes an outer layer 52, a middle layer 54 and an inner layer 56”), an outer layer (outer layer 52) comprised of a first cloth material (the material forming outer layer 52; [0041] teaches “the outer layer 52 is comprised of a material that offers both structure for the face shield as well as a moisture barrier” and “the material of the outer layer 52 is generally a lightweight fabric, but still provides the face shield 30 with sufficient structure and body to keep the face shield largely separated from the mouth, nose, and surrounding skin of the wearer at the interior of the face shield 30;” fabric is cloth) and having an outer layer perimeter (the perimeter edge of outer layer 52, shown in Figure 5), an inner layer (inner layer 56) comprised of a second cloth material (the material forming inner layer 56; [0045] teaches “the inner layer 56 is comprised of a relatively soft and flexible stretch fabric material configured for comfort when placed against the skin of the wearer, such as Iso-Chill Heat Gear® fabric sold by Under Armour, Inc.;” fabric is cloth) and having an inner layer perimeter (the perimeter edge of inner layer 56), and a merge stitch (center-line stitching 62) that passes through ([0047] teaches “the inner layer 56, middle layer 54, and outer layer 52 of the face shield body 50 are all tethered together at various locations with stitching 58 extending through each of the layers” and “the stitching 58 includes…center-line stitching 62”) the outer layer (outer layer 52) and the inner layer (inner layer 56), coupling ([0047] teaches “the inner layer 56, middle layer 54, and outer layer 52 of the face shield body 50 are all tethered together at various locations with stitching 58 extending through each of the layers” and “the stitching 58 includes…center-line stitching 62”) the outer layer (outer layer 52) to the inner layer (inner layer 56) along the length of the merge stitch (center-line stitching 62), the merge stitch (center-line stitching 62) comprising a first end (top end) and a second end (bottom end); and a pair of ear straps (ear loops 72, 74) coupled to (as shown in Figures 7 and 8) the body (body 50); wherein the second end (bottom end) of the merge stitch (center-line stitching 62) is spaced apart from (Figures 7 and 8 teach space being positioned between the bottom end of center-line stitching 62 and the perimeter edge of inner layer 56) the inner layer perimeter (the perimeter edge of inner layer 56); and wherein the first cloth material (the material forming outer layer 52) is more rigid than ([0045] teaches “the inner layer 56 is comprised of a relatively soft and flexible stretch fabric material configured for comfort when placed against the skin of the wearer, such as Iso-Chill Heat Gear® fabric sold by Under Armour, Inc.;” [0041] teaches “the outer layer 52 is comprised of a material that offers both structure for the face shield as well as a moisture barrier” and “the material of the outer layer 52 is generally a lightweight fabric, but still provides the face shield 30 with sufficient structure and body to keep the face shield largely separated from the mouth, nose, and surrounding skin of the wearer at the interior of the face shield 30;” thus, it is clear that the outer layer 52 has more structural integrity than (and thus, is more rigid than) the soft inner layer 56) the second cloth material (the material forming inner layer 56).
Plank et al. does not teach that the length of the merge stitch is between 40 mm and 170 mm.
However, it would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to provide the length of the merge stitch being between 40 mm and 170 mm, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. One having ordinary skill in the art before the effective filing of the present invention would find it obvious that the length of the merge stitch could be modified in order to most accurately and comfortably accommodate the size/shape of the anatomy of a specific individual.
In regards to claim 8, Plank et al. teaches the apparatus of claim 7. Plank et al. teaches in [0047] and Figure 9 that the merge stitch (center-line stitching 62) is located through ([0047] teaches “the inner layer 56, middle layer 54, and outer layer 52 of the face shield body 50 are all tethered together at various locations with stitching 58 extending through each of the layers” and “the stitching 58 includes…center-line stitching 62”) the outer layer (outer layer 52) and the inner layer (inner layer 56) such that it extends over a bridge of a wearer’s nose when worn (Figure 9 teaches the center-line stitching 62 being positioned such that it extends over the bridge of the wearer’s nose when worn; [0047] teaches “the center-line stitching 62 extends along a central line of the face shield 30 from the nose dart 40 to the chin dart 48”).
In regards to claim 10, Plank et al. teaches the apparatus of claim 7. Plank et al. teaches in Figures 7 and 8 and [0047] that the merge stitch (center-line stitching 62) comprises a first merge stitch (center-line stitching 62), and further comprising a second merge stitch (top perimeter stitching 60) that passes through ([0047] teaches “the inner layer 56, middle layer 54, and outer layer 52 of the face shield body 50 are all tethered together at various locations with stitching 58 extending through each of the layers” and “the stitching 58 includes perimeter stitching 60”) the outer layer (outer layer 52) and the inner layer (inner layer 56), coupling ([0047] teaches “the inner layer 56, middle layer 54, and outer layer 52 of the face shield body 50 are all tethered together at various locations with stitching 58 extending through each of the layers” and “the stitching 58 includes perimeter stitching 60”) the outer layer (outer layer 52) to the inner layer (inner layer 56) along a length of the second merge stitch (top perimeter stitching 60), the second merge stitch (top perimeter stitching 60) extending perpendicular to (as shown in Figures 7 and 8) the first merge stitch (center-line stitching 62).
In regards to claim 11, Plank et al. teaches the apparatus of claims 7 and 10. Plank et al. teaches in Figures 7-9 and [0047] that the merge stitch (center-line stitching 62) is located through ([0047] teaches “the inner layer 56, middle layer 54, and outer layer 52 of the face shield body 50 are all tethered together at various locations with stitching 58 extending through each of the layers” and “the stitching 58 includes…center-line stitching 62”) the outer layer (outer layer 52) and the inner layer (inner layer 56) such that it extends at least in part over a wearer’s chin when worn (Figure 9 teaches the center-line stitching 62 being positioned such that it extends at least in part over a wearer’s shin when worn; [0047] teaches “the center-line stitching 62 extends along a central line of the face shield 30 from the nose dart 40 to the chin dart 48”).
Claim(s) 12 and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Plank et al. (US 2021/0386134), in view of Wang (US 2020/0022430) and further in view of Fukuda et al. (US 2023/0037426).
In regards to claim 12, Plank et al. teaches the apparatus of claims 7, 10 and 11. Plank et al. does not teach that the first cloth material comprises a blend of polyester and elastic, and wherein the second cloth material comprises a polyester knitted honeycomb material.
However, Wang teaches in [0028] and [0032] an analogous device wherein the first cloth material (first weaving layer 31; [0032] analogously teaches “first weaving layer 31 functioning as a front face”) comprises a blend of polyester and elastic ([0028] teaches “polyester fiber nylon and the elastic yarn of the first texture material polymer are interwoven by high-weave weaving to form the first weaving layer 31;” [0032] teaches “first weaving layer 31 is formed by a first texture material polymer which is made of polyester fiber nylon and elastic yarn”).
It would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to modify the first cloth material of Plank et al. to comprise a blend of polyester and elastic as taught by Wang because this element is known “provides a cooling and soft sensation and has a deodorizing feature” and is known to have “an enhanced cloth density,” as Wang teaches in [0028].
Plank et al. and Wang do not teach that the second cloth material comprises a polyester knitted honeycomb material.
However, Fukuda et al. teaches in Figure 3 and [0064] an analogous device wherein the second cloth material (shape retention member 14) comprises a polyester knitted honeycomb material ([0064] teaches that shape retention member 14 is made of “a thermoplastic polyester elastomer ,” is “a knitted fabric” and has “a honeycomb structure”).
It would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to modify the second cloth material of Plank et al. as modified by Wang to comprise a polyester knitted honeycomb material as taught by Fukuda et al. because this element is known to enable the second cloth material to be “capable of maintaining the mouth cover body 10 in a predetermined shape,” as Fukuda et al. teaches in [0064].
In regards to claim 13, Plank et al., Wang and Fukuda et al. teach the apparatus of claims 7 and 10-12. Plank et al., Wang and Fukuda et al. do not teach that the blend of polyester and elastic has a weight equal to or greater than 150 g/m2 and wherein the polyester knitted honeycomb material has a weight equal to or greater than 100 g/m2.
However, it would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to provide the blend of polyester and elastic has a weight equal to or greater than 150 g/m2 and wherein the polyester knitted honeycomb material has a weight equal to or greater than 100 g/m2, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. One having ordinary skill in the art before the effective filing of the present invention would find it obvious that the weight of the blend of polyester and elastic and the weight of the polyester knitted honeycomb material could be modified to best suit the material requirements of a particular application or user.
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Plank et al. (US 2021/0386134) in view of Welchel et al. (US 2009/0151733).
In regards to claim 14, Plank et al. teaches the apparatus of claim 7. Plank et al. does not teach that the weight of the first cloth material is greater than the weight of the second cloth material.
However, Welchel et al. teaches in Figures 1, 3 and 4 and [0046-0047] an analogous device wherein the weight of the first cloth material (material forming outer mask layer 60) is greater than ([0046] teaches the material forming outer mask layer 60 having “a 30.5 gsm basis weight;” [0047] teaches the material forming inner mask 62 having “a basis weight of about 17 gsm;” thus, the material forming outer mask layer 60 is taught to have a weight that is greater than the material forming inner mask layer 62) the weight of the second cloth material (material forming inner mask layer 62).
It would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to modify the first and second cloth materials of Plank et al. such that the weight of the first cloth material is greater than the weight of the second cloth material as taught by Welchel et al. because this element is known to provide a suitable face covering for the user that has sufficient “structural stiffness” such that the body “does not collapse against the nose and mouth while being worn,” as Welchel et al. teaches in [0044].
Claim(s) 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Plank et al. (US 2021/0386134), in view of McCreesh et al. (US 2022/0117333) and further in view of Dietz et al. (US 2021/0329995).
In regards to claim 22, Plank et al. and McCreesh et al. teach the apparatus of claims 1 and 21. Plank et al. and McCreesh et al. do not teach that the second merge stitch is a single lock stitch with 5-7 stitches per 25 mm.
However, Dietz et al. teaches in Figures 1 and [0037-0038] an analogous device wherein the stitch is a single lock stitch ([0043] teaches creating “a lock stitch”).
It would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to modify the second merge stitch of Plank et al. as modified by McCreesh et al. to be a single lock stitch as taught by Dietz et al. because this element is known to be a suitable stitch for use in production of a mask that “allows local production by enabling thousands of US embroidery small-businesses to produce personal protection masks,” as Dietz et al. teaches in [0037-0038].
Plank et al., McCreesh et al. and Dietz et al. do not teach the single lock stitch having 5-7 stitches per 25 mm.
However, it would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to provide that the single lock stitch has 5-7 stitches per 25 mm, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. One having ordinary skill in the art before the effective filing of the present invention would find it obvious that the stiches-per-mm of the single lock stitch could be modified to alter the seam strength and appearance of the merge stitch as desired.
Allowable Subject Matter
Claims 16-17, 23 and 25-27 are allowed.
Regarding claim 16, the prior art does not teach a face covering wherein the chin stitch intersects the nose stitch at a location in a lower half of the body along an axis defined by the nose stitch, the axis extending from the lower portion of the perimeter to an opposing upper portion of the perimeter, and wherein the nose stitch terminates at the intersection with the chin stitch such that there is an unstitched portion along the axis between the chin stitch and a portion of the second merge stitch coincident with the lower portion of the perimeter, in combination with the other element(s) of the claim. Claims 17, 23 and 25-27 depend on claim 16 and therefore, are also allowed.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VICTORIA H FISHER whose telephone number is (571)270-7033. The examiner can normally be reached M-TH 6:00AM-4:00PM EST.
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/VICTORIA HICKS FISHER/Primary Examiner, Art Unit 3786 3/19/2026