DETAILED ACTION
In Applicant’s Response filed 3/10/26, Applicant has amended claims 31-32 and 48. Claims 1-30, 44 and 46 have been cancelled. Currently, claims 31-43, 45, 47-50 are pending.
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Claim Objections
Claim 48 is objected to because of the following informalities which require appropriate correction:
In claim 48, lines 10-14 should be amended as follows for improved clarity:
“…wherein relative sizes of the pair of wing portions combined with the inward taper of the central portion below each of the wing portions and a tension of a fabric of the swaddling garment provide a structure that is configured to maintain each arm of the infant in a hand raised and elbow bent position when the arms and the hands of the infant are within the wing portions with respect to the infant within the swaddling garment in a closed configuration.”.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of pre-AIA 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) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent.
Claim 31 is rejected under pre-AIA 35 U.S.C. 102(a) as being anticipated by Thexton et al (US 1875525).
With respect to claim 31, Thexton discloses a swaddling garment (sleeping closure for children shown in figs 1-4; interpreted as being capable of swaddling an infant because the device substantially encloses the torso and arms of the infant and maintains the arms in a given position), comprising: a central portion configured to at least partially receive a body of an infant (upper part of the lower portion of the sleeping closure which is defined by back piece 1 and the upper parts of parts 3 and 4 which receive the upper torso of the infant as shown in fig 1); and a pair of wing portions extending from the central portion (upward extensions 2; fig 1), the wing portions (2) including an inward taper (as shown in figs 1 and 4, the extensions 2 each taper inwardly to provide a narrow portion at the top near loop 13 and a wider portion at the opposite end near piece 1); wherein, when an infant is within the swaddling garment and the swaddling garment is closed, each of the wing portions is large enough to completely surround and to retain hands and arms of the infant in a hand-raised and elbow-bent position within the wing portions and the taper and a shape of the wing portions inhibit the arms from moving out of the wing portions (as shown in fig 1; see also col 1 lines 26-36; col 2 lines 56-65, 75-82; the taper and shape are interpreted as maintaining the arm/hand in the position shown in fig 1 since the tapered end provides a narrowed portion which accommodates the hand and the wider opposite end provides space to accommodate the bent portion of the arm as shown in fig 1; movement out of the wing portions is interpreted as being inhibited since Thexton explicitly discloses that the arms/hands are “held in a position above the child’s shoulders” – col 2 lines 62-63).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) 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 32 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Thexton et al (US 1875525) in view of Moss (WO2007/098558).
With respect to claim 32, Thexton discloses a swaddling garment (sleeping closure for children shown in figs 1-4; interpreted as being capable of swaddling an infant because the device substantially encloses the torso and arms of the infant and maintains the arms in a given position), comprising: a central portion configured to at least partially receive a body of an infant (upper part of the lower portion of the sleeping closure which is defined by back piece 1 and the upper parts of parts 3 and 4 which receive the upper torso of the infant as shown in fig 1); and a pair of wing portions extending laterally outward from opposing sides of the central portion (upward extensions 2; fig 1); wherein, when the infant is within the swaddling garment and the swaddling garment is closed, each of the wing portions is sized to retain a hand and an arm of the infant in a hand-raised and elbow-bent position within the wing portion and wherein, when an infant is within the swaddling garment and the swaddling garment is closed, the wing portions and the central portion are sized to inhibit movement of each of the hands and the arms out of respective arm wing portions, thereby retaining the arms within the wing portions (as shown in fig 1; see also col 1 lines 26-36; col 2 lines 56-65, 75-82).
Thexton does not, however, disclose the pair of wing portions tapering inward towards the central portion.
Moss, however, teaches a swaddling garment (suit 10 - capable of swaddling an infant because the suit substantially encloses the torso and arms of the infant and prevents movement of the arms away from the torso), comprising:
a central portion (formed by regions 30a and 30b; interpreted as extending from shoulder line to waist 24 in longitudinal direction and width-wise between the lines 36 on the garment as shown in fig 2; shown in annotated figure 2) configured to at least partially receive a body of an infant (as shown in fig 4); and
a pair of wing portions (shown in annotated fig 2; area identified as arm portions of the garment where pockets 32 are located which accommodates the arms as shown in fig 4), extending laterally from opposing sides of the central portion (as shown in figures 1-4, the areas of the suit beyond each line 36 extend outwardly from the left and right sides of regions 30a and 30b and both sections are in an area located above the defined waist region 24), the wing portions tapering inward towards the central portion (the lateral edge of the first wing portion and the lateral edge of the second wing portion each define a shape that tapers inwards towards the central portion as identified in the 3rd annotated fig 2). 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 wing portions of Thexton so that the pair of wing portions tapers inward towards the central portion like the wing portions on the device of Moss in order to provide a garment shape that more closely matches the natural anatomical contours of the body by having a widened shoulder region that narrows inwardly towards the waist region and thus holds the arms close to the body (Moss figs 4-5).
3rd ANNOTATED FIGURE 2 of Moss (WO2007/098558)
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Claim(s) 31-32, 34-36, 39-43, and 45 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Moss (WO2007/098558) in view of Thexton et al (US 1875525).
With regard to claim 31, Moss discloses a swaddling garment (suit 10 - capable of swaddling an infant because the suit substantially encloses the torso and arms of the infant and prevents movement of the arms away from the torso), comprising:
a central portion (formed by regions 30a and 30b; interpreted as extending from shoulder line to waist 24 in longitudinal direction and width-wise between the lines 36 on the garment as shown in fig 2; shown in annotated figure 2) configured to at least partially receive a body of an infant (as shown in fig 4); and
a pair of wing portions (shown in annotated fig 2; area identified as arm portions of the garment where pockets 32 are located which accommodates the arms as shown in fig 4), extending laterally from opposing sides of the central portion (as shown in figures 1-4, the areas of the suit beyond each line 36 extend outwardly from the left and right sides of regions 30a and 30b and both sections are in an area located above the defined waist region 24), the wing portions including an inward taper (the lateral edge of the first wing portion and the lateral edge of the second wing portion each taper inwards towards the central portion as identified in the 3rd annotated fig 2);
wherein each of the wing portions is large enough to completely surround the arms (as shown in figure 4, the area of the garment where pockets 32 are located is large enough to accommodate the arms), and the taper and a shape of the wing portions inhibit the arms from moving out of the wing portions (the tapered shape that narrows inwardly towards the waist region inherently holds the arms close to the body as shown in figs 4-5; and “each pocket 32 is closed at or near the edge of the opening 20 and so, whilst the baby's arm and hand are within the pocket 32, they cannot cross the body's centreline” – thus, the arms are inhibited from moving out of the wing portions defined by pockets 32; see pg 5 lines 23-25).
3rd ANNOTATED FIGURE 2 of Moss (WO2007/098558)
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Moss does not, however, explicitly disclose that when an infant is within the swaddling garment and the swaddling garment is closed, each of the wing portions is large enough to completely surround and to retain hands and arms of the infant in a hand-raised and elbow-bent position within the wing portions.
Thexton, however, teaches a sleeping closure for children shown in figs 1-4 which “can be incorporated into a sleeping garment” (col 1 lines 37-40) and which permits a child to assume a normal and natural sleeping position with its hands and arms elevated which is desirable because it is natural and tends to extend and throw out the child’s chest (col 1 lines 24-36), the sleeping closure comprising: a central portion configured to at least partially receive a body of an infant (upper part of the lower portion of the sleeping closure which is defined by back piece 1 and the upper parts of parts 3 and 4 which receive the upper torso of the infant as shown in fig 1); and a pair of wing portions extending from the central portion (upward extensions 2; fig 1); wherein, when an infant is within the swaddling garment and the swaddling garment is closed, each of the wing portions is large enough to completely surround and to retain hands and arms of the infant in a hand-raised and elbow-bent position within the wing portions (as shown in fig 1; see also col 1 lines 26-36; col 2 lines 56-65, 75-82). Thus, it would have been obvious to one having ordinary skill in the art, at the time of the invention, to modify the wing portions on the device of Moss so that when an infant is within the swaddling garment and the swaddling garment is closed, each of the wing portions is large enough to completely surround and to retain hands and arms of the infant in a hand-raised and elbow-bent position within the wing portions, as taught by Thexton, to permit a child to assume a normal and natural sleeping position with its hands and arms elevated which is desirable because it is natural and tends to extend and throw out the child’s chest.
ANNOTATED FIGURE 2 of Moss (WO2007/098558)
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With regard to claim 32, Moss discloses a swaddling garment (suit 10 - capable of swaddling an infant because the suit substantially encloses the torso and arms of the infant and prevents movement of the arms away from the torso), comprising:
a central portion (formed by regions 30a and 30b; interpreted as extending from shoulder line to waist 24 in longitudinal direction and width-wise between the lines 36 on the garment as shown in fig 2; shown in annotated figure 2) configured to at least partially receive a body of an infant (as shown in fig 4); and
a pair of wing portions (shown in annotated fig 2; area of the garment where pockets 32 are located which accommodates the arms as shown in fig 4), extending laterally from opposing sides of the central portion (as shown in figures 1-4, the areas of the suit beyond each line 36 extend outwardly from the left and right sides of regions 30a and 30b and both sections are in an area located above the defined waist region 24) and tapering inward towards the central portion (the lateral edge of the first wing portion and the lateral edge of the second wing portion each taper inwards towards the central portion as identified in the 3rd annotated fig 2 of Moss);
wherein each of the wing portions and the central portion are sized to retain the arms in the arm portions (as shown in figure 4, the area of the garment where pockets 32 are located in combination with regions 30a and 30b is large enough to accommodate the arms) and
wherein, when an infant is within the swaddling garment and the swaddling garment is closed (fig 5), the wing portions and the inward taper towards the central portion are sized to inhibit movement of each of the hands and the arms out of respective arm wing portions, thereby retaining the arms within the wing portions (the tapered shape that narrows inwardly towards the waist region inherently holds the arms close to the body as shown in figs 4-5; and “each pocket 32 is closed at or near the edge of the opening 20 and so, whilst the baby's arm and hand are within the pocket 32, they cannot cross the body's centreline” – thus, the arms are inhibited from moving out of the wing portions defined by pockets 32 and thus are retained in the wing portions during use when the infant is within the closed garment as shown in fig 5; see pg 5 lines 23-25)
Moss does not, however, explicitly disclose that when the infant is within the swaddling garment and the swaddling garment is closed, each of the wing portions is sized to retain a hand and an arm of the infant in a hand-raised and elbow-bent position within the wing portion.
Thexton, however, teaches a sleeping closure for children shown in figs 1-4 which “can be incorporated into a sleeping garment” (col 1 lines 37-40) and which permits a child to assume a normal and natural sleeping position with its hands and arms elevated which is desirable because it is natural and tends to extend and throw out the child’s chest (col 1 lines 24-36), the sleeping closure comprising: a central portion configured to at least partially receive a body of an infant (upper part of the lower portion of the sleeping closure which is defined by back piece 1 and the upper parts of parts 3 and 4 which receive the upper torso of the infant as shown in fig 1); and a pair of wing portions extending from the central portion (upward extensions 2; fig 1), the wing portions (2) including an inward taper (as shown in figs 1 and 4, the extensions 2 each taper inwardly to provide a narrow portion at the top near loop 13 and a wider portion at the opposite end near piece 1); wherein, when an infant is within the swaddling garment and the swaddling garment is closed, each of the wing portions is large enough to completely surround and to retain hands and arms of the infant in a hand-raised and elbow-bent position within the wing portions and the taper and a shape of the wing portions inhibit the arms from moving out of the wing portions (as shown in fig 1; see also col 1 lines 26-36; col 2 lines 56-65, 75-82; the taper and shape are interpreted as maintaining the arm/hand in the position shown in fig 1 since the tapered end provides a narrowed portion which accommodates the hand and the wider opposite end provides space to accommodate the bent portion of the arm as shown in fig 1; movement out of the wing portions is interpreted as being inhibited since Thexton explicitly discloses that the arms/hands are “held in a position above the child’s shoulders” – col 2 lines 62-63).
Thus, it would have been obvious to one having ordinary skill in the art, at the time of the invention, to modify the wing portions on the device of Moss so that when the infant is within the swaddling garment and the swaddling garment is closed, each of the wing portions is sized to retain a hand and an arm of the infant in a hand-raised and elbow-bent position within the wing portion, as taught by Thexton, to permit a child to assume a normal and natural sleeping position with its hands and arms elevated which is desirable because it is natural and tends to extend and throw out the child’s chest.
With regard to claim 34, Moss in view of Thexton discloses the invention substantially as claimed (see rejection of claim 32) and Moss also discloses that a widest point of the swaddling garment configured to at least partially receive an upper body of the infant (as shown in fig 4) is from a lateral edge of a first wing portion of the pair of wing portions to a lateral edge of a second wing portion of the pair of wing portions (as shown in the 2nd Annotated fig 2, width A [measured from the lateral edge of one arm portion to the lateral edge of the other arm portion] is greater than width B [which is the second widest portion of the garment]).
2nd ANNOTATED FIGURE 2 of Moss (WO2007/098558)
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With regard to claim 35, Moss in view of Thexton discloses the invention substantially as claimed (see rejection of claim 34) and Moss also discloses that the lateral edge of the first wing portion and the lateral edge of the second wing portion each taper inwards towards the central portion below the widest point.
3rd ANNOTATED FIGURE 2 of Moss (WO2007/098558)
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With regard to claim 36, Moss in view of Thexton discloses the invention substantially as claimed (see rejection of claim 34) and Moss also discloses that upper portions of the pair of wing portions have a rounded shape (as shown in fig 2; see the rounded upper portions of the arm portions identified in annotated fig 2).
With regard to claim 39, Moss in view of Thexton discloses the invention substantially as claimed (see rejection of claim 32) and Moss also discloses that each of the wing portions has a widest point that is located a first distance away from the central portion (as shown in the 4th annotated fig 2), and the central portion includes an upper edge and a waistline that are separated from one another by a second distance that is greater than the first distance (as shown in the 4th annotated fig 2, the second distance is greater than each first distance).
4th ANNOTATED FIGURE 2 of Moss (WO2007/098558)
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With regard to claim 40, Moss in view of Thexton discloses the invention substantially as claimed (see rejection of claim 39) and Moss also discloses that the lateral edges of the pair of wing portions are configured to be retained at a position coinciding with the first distance (as shown in the 4th annotated fig 2, the garment is structured such that the lateral edge of each of the arm portions is spaced from the central portion and retained at a position that is measured as the “first distance” from the central portion).
With regard to claim 41, Moss in view of Thexton discloses the invention substantially as claimed (see rejection of claim 39) and Moss also discloses that a lower portion of each of the wing portions is configured to cup a respective elbow of the infant (as shown in fig 4 the elbow is supported or “cupped” by the garment).
With regard to claim 42, Moss in view of Thexton discloses the invention substantially as claimed (see rejection of claim 39) and Moss also discloses that each of the wing portions has a longitudinal length that is greater than the first distance and less than the second distance (shown in the 5th annotated fig 2).
5th ANNOTATED FIGURE 2 of Moss (WO2007/098558)
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With regard to claim 43, Moss in view of Thexton discloses the invention substantially as claimed (see rejection of claim 39) and Moss also discloses that each of the wing portions (identified in annotated fig 2) has a rounded shape (see the upper rounded portion of each of the arm portions identified in annotated fig 2) and a lower portion that tapers inward towards the central portion (as shown in the 3rd annotated fig 2, the bottom portion of each arm portion tapers inwardly towards the central portion of the garment).
With regard to claim 45, Moss in view of Thexton discloses the invention substantially as claimed (see rejection of claim 32) and Moss also discloses that a width of each wing portion is less than a length of an arm of the infant to inhibit the arm from fully extending (as shown in fig 4).
Claims 33, 37-38, 47 and 49-50 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Moss (WO2007/098558) in view of Thexton et al (US 1875525) and further in view of Beiring (US 2009/0064390).
With regard to claim 33, Moss in view of Thexton discloses the invention substantially as claimed (see rejection of claim 32) but Moss does not, however, disclose that each of the wing portions is configured to bias the respective arm to the hand-raised and elbow-bent position such that an elbow of the infant is retained at the respective side of the body.
Beiring teaches a swaddling suit (sleep trainer/garment A shown in figure 1) for swaddling an infant (see [0043]) wherein the swaddling suit comprises a material which includes elasticized yarn ([0047]). Such materials inherently stretch and therefore are interpreted as being capable of stretching when an infant extends its arms outwardly against the suit and thereafter biasing an infant’s arm at a respective side of the body.
It would have been obvious to one having ordinary skill in the art, at the time of the invention, to form the garment of Moss in view of Thexton from a material that includes elasticated yarn as in Beiring in order to allow the suit to stretch when a baby moves their arm but yet bias the arm towards its respective side of the infant’s body to retain the arm at a respective side of the body to swaddle the infant. Furthermore, one would have been motivated to use such a fabric to construct the suit of Moss in view of Thexton because it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice and one of ordinary skill in the art would have understood the need to use flexible fabric to prevent permanent stretching and deformation of the suit when an infant extends its arms outwardly against the suit.
With regard to claim 37, Moss in view of Thexton discloses the invention substantially as claimed (see rejection of claim 32) but Moss does not, however, disclose that the pair of wing portions are formed of at least one resilient fabric material that is at least partially stretchable.
Beiring discloses a swaddling suit (sleep trainer/garment A shown in figure 1) for swaddling an infant (see [0043]) wherein the swaddling suit comprises a material which includes elasticized yarn ([0047]) and wherein the suit can be made of "any material suitable for infant wear" ([0047] and [0051]) and is sized so as to snuggly fit an infant and provide “ample stretch” (thereby teaching a material that is “at least partially stretchable”) and therefore inherently disclosing use of flexible material. Since the term “resilient” is interpreted as being synonymous with “flexible” and the materials specifically referred to in Beiring such as cotton, polyester and fleece can be stretched and, therefore, are flexible, it is inherent that these materials are considered to be "resilient”. Therefore, Beiring teaches a swaddling suit made from resilient material that is at least partially stretchable.
It would have been obvious to one having ordinary skill in the art, at the time of the invention, to form the garment of Moss in view of Thexton from a material that is resilient and at least partially stretchable as in Beiring in order to allow the suit to stretch when an infant moves but yet maintain a “snug” fit on the infant to swaddle the infant. Furthermore, one would have been motivated to use such a fabric to construct the suit of Moss in view of Thexton because it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice and one of ordinary skill in the art would have understood the need to use flexible fabric to prevent permanent stretching and deformation of the suit when an infant kicks or extends its arms outwardly against the suit.
With regard to claim 38, Moss in view of Thexton and further in view of Beiring discloses the invention substantially as claimed (see rejection of claim 37) and Thexton also discloses that each of the wing portions is configured to restrict the respective arm of the infant from fully extending or moving in a laterally-outward direction away from the central portion (as shown in figure 1, the device is configured such that the infant’s elbow is bent with the elbow up to the hand placed in the area defined by a respective upward extension 2 with the elbow and arm held in that area thus restricting movement of the arms and preventing the infant from fully extending or moving their arm in a laterally-outward direction away from the central portion). It would have been obvious to one having ordinary skill in the art, at the time of the invention, to have formed the wing portions on the device of Moss in view of Thexton and further in view of Beiring so that each of the wing portions is configured to restrict the respective arm of the infant from fully extending or moving in a laterally-outward direction away from the central portion, as taught by Thexton, to assist in maintaining the arms in a normal and natural sleeping position with hands and arms elevated which is desirable because it is natural and tends to extend and throw out the child’s chest.
With regard to claim 47, Moss in view of Thexton discloses the invention substantially as claimed (see rejection of claim 32) and Moss also discloses that an opening is formed at each of the opposing sides of the central portion (each of the left and right sides of the garment includes a pocket that may be provided with an aperture through which the arm can extend – page 7, lines 3-4).
Moss does not, however, explicitly disclose that the wing portions are detachable.
Beiring, however, teaches a swaddling garment that has side portions which are selectively removable and fastenable to the garment (sections J and M; fig 1). It would have been obvious to one having ordinary skill in the art, at the time of the invention, to modify the arm portions on the device of Moss in view of Thexton to be selectively removable and fastenable like the sections J and M in Beiring in order to permit greater flexibility in use and functionality of the device.
With regard to claim 49, Moss in view of Thexton and further in view of Beiring discloses the invention substantially as claimed (see rejection of claim 38) and Moss also discloses that each of the wing portions is formed of at least one fabric material (the suit 10 is made out of one or more pieces of fabric – pg 4 lines 6-8).
Moss does not explicitly disclose that the swaddling garment is configured to allow movement of the arms of the infant to a mouth for non-nutritive sucking through the at least one fabric material of each of the wing portions.
However, with regard to this statement of intended use, it does not impose any structural limitations on the claims distinguishable over the device of Moss in view of Thexton which is capable of being used as claimed if one so desires to do so. In re Casey, 152 USPQ 235 (CCPA 1967) and In re Otto, 136 USPQ 458, 459 (CCPA 1963). Furthermore, the manner in which a device is intended to be employed does not differentiate the claimed apparatus from prior art apparatus satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647 (1987). Specifically, with respect to the recited use of the device “to allow movement of the arms of the infant to a mouth for non-nutritive sucking through the at least one fabric material of each of the wing portions”, although this function is not explicitly disclosed, the configuration of the device of Moss in view of Thexton is interpreted as providing the capability to achieve this function because Moss teaches that the arms are free to move in the absence of arm restraining members (see pg 4 lines 19-21). Furthermore, it is inherent that when an infant has the capability to do so that they will, instinctively, move their hand in an attempt to position their hand within their mouth and engage in non-nutritive sucking in order to self-soothe, even if they need to do so through fabric that is covering their hands. Thus, for at least these reasons, the device of Moss in view of Thexton and further in view of Beiring is interpreted as being configured such that an infant's arms and hands are capable of movement to the mouth for non-nutritive sucking through the at least one fabric material of each of the wing portions.
With regard to claim 50, Moss in view of Thexton and further in view of Beiring discloses the invention substantially as claimed (see rejection of claim 38) and Moss also discloses that a widest point of the swaddling garment configured to at least partially receive an upper body of the infant (as shown in fig 4) is from a lateral edge of a first wing portion of the pair of wing portions to a lateral edge of a second wing portion of the pair of wing portions (as shown in the 2nd Annotated fig 2, width A [measured from the lateral edge of one arm portion to the lateral edge of the other arm portion] is greater than width B [which is the second widest portion of the garment]) wherein the lateral edge of the first wing portion and the lateral edge of the second wing portion each taper inwards towards the central portion below the widest point.
2nd ANNOTATED FIGURE 2 of Moss (WO2007/098558)
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3rd ANNOTATED FIGURE 2 of Moss (WO2007/098558)
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Allowable Subject Matter
Claim 48 is free of art but is still subject to the objections provided above. Additionally, any changes or amendments to the claims may result in new rejections under 35 USC 102 and/or 35 USC 103 being made in future Actions.
The following is a statement of reasons for the indication of allowable subject matter: The subject matter of independent claim 48 could either not be found or was not suggested in the prior art of record. The subject matter not found was a swaddling garment wherein relative sizes of the pair of wing portions combined with the inward taper of the central portion below each of the wing portions and a tension of a fabric of the swaddling garment provide a structure that is configured to maintain each arm of the infant in a hand raised and elbow bent position when the arms and the hands of the infant are within the wing portions with respect to the infant within the swaddling garment in a closed configuration, in combination with the other elements in the claims.
Moss discloses the swaddling garment substantially as claimed and further discloses that the garment includes a shape that tapers inwards at the waist region as shown in figure 2 and includes elasticated portions which resist movement of the arms away from the body (pg 5 lines 7-9). Moss does not, however, explicitly disclose that relative sizes of the pair of wing portions combined with the inward taper of the central portion below each of the wing portions and a tension of a fabric of the swaddling garment provide a structure that is configured to maintain each arm of the infant in a hand raised and elbow bent position when the arms and the hands of the infant are within the wing portions with respect to the infant within the swaddling garment in a closed configuration.
Thexton teaches a garment wherein, when an infant is within the swaddling garment and the swaddling garment is closed, the relative sizes of the pair of wing portions and the central portion maintain each arm of the infant in a hand raised and elbow bent position (as shown in fig 1; see also col 1 lines 26-36; col 2 lines 56-65, 75-82). Thexton is silent, however, with respect to tension of the fabric used to form the garment and, furthermore, does not teach a central portion that tapers inward below each of the wing portions because as shown in figure 1 of Thexton, the upper part of the lower portion of the sleeping closure which is defined by back piece 1 and the upper parts of parts 3 and 4, which receives the upper torso of the infant, does not taper inwardly or have a narrowed size/shape as compared to the extensions 2. Thus, although Thexton teaches that the arms are maintained in a hand raised and elbow bent position when an infant is within the swaddling garment and the swaddling garment is closed, Thexton does not teach that the arms are maintained in this position due to relative sizes of the pair of wing portions combined with an inward taper of the central portion below each of the wing portions and a tension of a fabric of the swaddling garment. Therefore, for at least this reason, Thexton fails to overcome the deficiencies off Moss.
As allowable subject matter has been indicated, applicant's reply must either comply with all formal requirements or specifically traverse each requirement not complied with. See 37 CFR 1.111(b) and MPEP § 707.07(a).
Response to Amendments/Arguments
Applicant’s amendments and arguments filed 3/10/26 have been fully considered as follows:
Regarding the claim rejections under 35 USC 102 and 35 USC 103, Applicant’s arguments on pages 7-10 of the Response have been fully considered but are rendered moot in view of the new/modified grounds of rejection presented above which were necessitated by Applicant’s amendments to the claims.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CAITLIN CARREIRO whose telephone number is (571)270-7234. The examiner can normally be reached M-F 7:30am-4pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Rachael Bredefeld can be reached at 571-270-5237. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CAITLIN A CARREIRO/Primary Examiner, Art Unit 3786
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