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 .
Status of Claims
Claims 1-9 are pending in this application.
Election/Restrictions
Applicant's election with traverse of the species of Figure 1A and 1B which reads on an infant onesie claims 1-10 in the reply filed on 6/14/24 is acknowledged.
The traversal is on the ground(s) that it would not be a burden to search and examine all species and claims. This is not found persuasive because as explained in the Restriction/Election Requirement mailed 3/14/24 the embodiments listed would present a search burden to the examiner; requiring the search of different subclasses, search queries and /or require prior art that is applicable to one species and not another. Therefore, the applicant’s arguments have not been found convincing. The requirement is still deemed proper and is therefore made FINAL.
Claim 10 is withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to the nonelected species. Claim 10 is withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, a process of using the reflective garment to prevent sudden infant death, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 6/14/24.
While it is noted the applicant has amended the claims to remove “…[[pajamas; sleepsuit; sleep sac; sleep band; and swaddle]]…”, and add “… onesie, swaddling wrap, and sleep sac…”, the examiner reminds the applicant that applicants election of Species 1, that reads on Figures 1A and 1B, is for the onesie. Swaddling wraps (Species 3) and sleep sacs (Species 2) can have different designs and configurations and may not include garment structure. Both the swaddling wrap and sleep sac have different functions and/or uses. Applicant is reminded that while a onesie may be capable of having various designs and configurations, claims drawn to non-elected species will be withdrawn from examination.
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.
Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function.
Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function.
Claim elements in this application that use the word “means” (or “step for”) are presumed to invoke § 112(f) except as otherwise indicated in an Office action. Similarly, claim elements that do not use the word “means” (or “step for”) are presumed not to invoke § 112(f) except as otherwise indicated in an Office action.
In the instant case there does not appear to be any means for language in the claims and/or language to be considered under 35 U.S.C. 112(f).
Claim Rejections - 35 USC § 102 AIA
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-4 and 8-9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Glazer US 20190150798 A1 (herein after Glazer).
Regarding claim 1, Glazer discloses a reflective infant sleepwear garment, comprising: a sleepwear garment selected from the group consisting of: onesie, swaddling wrap, and sleep sac (Abstract, as seen in annotated Figure 3B); one or more reflective elements (56, paragraph 0027) forming, or attached to, an outer surface of said garment (as seen in annotated Figure 3B); wherein said one or more reflective elements reflect light having wavelengths in the range 2500- 380nm (paragraph 0027).
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Regarding claim 2, Glazer discloses wherein the one or more reflective elements are selected from the group consisting of: reflective inks (56, paragraph 0027); reflective tapes; reflective threads; reflective fabrics (as seen in annotated Figure 3B); reflective glitters; and reflective ribbons.
Regarding claim 3, Glazer discloses, wherein said one or more reflective elements (56) are attached to, or form part of, a torso region of said garment (as seen in annotated Figure 3B).
Regarding claim 4, Glazer discloses wherein said reflective inks (56) are printed onto said outer surface of said garment (as seen in Figure 3A).
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Regarding claim 8, Glazer discloses wherein said sleep band (58) comprises a length of extensible fabric (as seen in annotated Figures 3A and 3B) that is sized and configured to extend around a torso of an infant (paragraph 0037, as seen in annotated Figures 3A and 3B).
Regarding claim 9, Glazer discloses wherein said sleep band (58) is secured in place on said infant by hook and loop fasteners (60, 62) attached to opposing ends of said sleep band (as seen in annotated Figure 3A and 3B).
Claim Rejections - 35 USC § 103 AIA
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 of this title, 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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Glazer US 20190150798 A1 (herein after Galzer) in view of Schneider AT 12667 U1 (herein after Scheidner).
Regarding claim 5, the reflective infant sleepwear garment of the Glazer discloses all the limitations of claim 5 except Glazer does not disclose wherein reflective tapes are stitched to said outer surface of said garment.
Scheidner discloses the reflective tapes (10) are stitched (5) to said outer surface of said garment (Claim 1).
Scheidner is analogous art to the claimed invention in that it provides tapes made of reflective materials that are capable of being attached with stitching.
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have modified the form of the reflective materials of Glazer, by constructing them as tapes that can be stitched on to a garment, as taught by Scheidner in order to allow the tapes to be easily attached to the garment as desired. The modification of the reflective material would be a simple modification to obtain predictable results, providing reflective tapes that are easy to apply during the construction of the garment.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Glazer US 20190150798 A1 (herein after Glazer) in view of JP S61124088 U (herein after JP ‘088).
Regarding claim 6, the reflective infant sleepwear garment of the Glazer discloses all the limitations of claim 6 except Glazer does not disclose wherein said reflective threads embroidered onto said outer surface of said garment.
JP ‘088 discloses wherein said reflective threads (1, Brief Description of the Drawings, Field of the Invention – first paragraph – “…It is related with optical recursive reflective thread consisting of the optical recursive reflective thread which can express a general embroidery character and handle in detail…”), embroidered onto said outer surface of said garment (1, Brief Description of the Drawings, as seen on Figure 1).
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JP ‘088 is analogous art to the claimed invention in that it provides the reflective threads are made into a patch and attached to the outer portion of the garment.
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have modified the reflective materials of Glazer, by using reflective fibers that are capable of being embroidered to the outer surface of an article as taught by JP ‘088 in order to allow the threads and fibers be integrally formed into the garments material in any design. The modification of the reflective materials would be a simple modification to obtain predictable results, ease of manufacturing and application of the reflective threads.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Glazer US 20190150798 A1 (herein after Glazer) in view of Nilsen US 20090025872 A1 (herein after Nilsen).
Regarding claim 7, the reflective infant sleepwear garment of the Glazer discloses all the limitations of claim 7 except Glazer does not disclose wherein said reflective threads are woven into a fabric that is used to make said garment.
Nilsen discloses wherein said reflective threads (paragraph 0004 of Nilsen) are woven into a fabric that is used to make said garment (paragraph 0018, 0019 and 0029 of Nilsen).
Nilsen is analogous art to the claimed invention in that it provides the reflective threads incorporated in to the material.
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have modified the reflective materials of Glazer, by using reflective fibers that are capable of being woven in to the material as taught by Nilsen in order to allow the material of the garment to be reflective. The modification of the reflective materials would be a simple modification to obtain predictable results, creating a material for the garment that provides a larger surface area capable of reflection.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CATHERINE M FERREIRA whose telephone number is (571)270-5916, fax number (571) 270-6916. The examiner can normally be reached on Monday - Thursday 9:00 am- 5:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, ALISSA J. TOMPKINS, at (571) 272-3425. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Catherine M. Ferreira/
Examiner, Art Unit 3732
/ALISSA J TOMPKINS/Supervisory Patent Examiner, Art Unit 3732