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 .
Claims 1-27 are hereby under examination.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-2, 5-6, 8-12, and 15-27 are rejected under 35 U.S.C. 103 as being unpatentable over CNET (First look: Withings Pulse a sleek wireless pedometer and heart rate monitor, 2013, Web Video), previously cited and hereto referred as CNET, and in view of Withings Pulse ox: What’s new? Health Boosters. (2014, October 1). web.archive.org/web/20141004024156/https://blog.withings.com/2014/06/12/withings-pulse-whats-new/, previously cited and hereto referred as Withings, and in view of US5156891A (Isoe et. al), previously cited and hereto referred as Isoe.
As to claims 1, 9-10, 18-19, and 24, CNET teaches a performance monitoring system comprising: an band configured to be worn by a user comprising a tubular body configured to be worn on an arm of the user (CNET, 1:30) the article of apparel having a pocket supported by the band (CNET, 3:42-3:54), wherein the article of apparel is at least partially formed of an elastic fabric material (Withings, “Neoprene sleep wristband”) that defines an inner wall of the pocket configured to face the user's skin and an outer wall of the pocket that is opposite the inner wall, such that the pocket is integrally formed with the article of apparel (CNET, 3:42-3:54),
with a cavity defined between the inner wall and the outer wall, wherein the pocket has a sensor opening extending through the inner wall of the pocket and an access opening providing access to the cavity (CNET, 3:42-3:54),
the electronic module received in the cavity such that the electronic module is configured to be inserted and removed from the cavity through the access opening (CNET, 3:45-3:50), the electronic module comprising a projection on an underside of the electronic module (CNET, 1:10, smaller rectangular area that is protruding from the rest of the casing) and a sensor mounted on the projection (CNET, 0:50-1:10),
wherein the projection extends through the sensor opening when the electronic module is received in the cavity and is configured to place the sensor proximate to skin of the user (CNET, 3:54, the rectangular protrusion extends through the sensor opening), such that the sensor is configured to sense a physiological parameter of the user (CNET, 0:50-1:10).
However, CNET fails to teach the details of the structure of the apparel, including heat pressed layers. Isoe teaches a solution to a relevant problem of constructing pockets of an article of apparel (Isoe, abstract). Isoe teaches the fabric material defining the inner and outer walls of the pocket is heat pressed from both inner and outer sides of each of the inner and outer walls, using a heat-activated material (Isoe, col. 4, lines 8-10, “Passing the coated fabric through heat rollers will serve to both embed the resin into one side of the material and cause the resin to undergo curing”; the examiner notes, although the coating is to one side of fabric, both sides of the fabric is heat-pressed as it is rolled, under the broadest reasonable interpretation) to form the inner and outer walls of the pocket as an inner heat pressed layer and an outer heat pressed layer of a heat pressed elastic fabric material (Isoe, Figs. 2-3, bottom 23 is heat pressed layer, and section 15 is folded over to form the inner and outer walls of the pocket; the examiner notes, Isoe only coats the bottom of the pocket, but it would have been obvious to a person of ordinary skills to coat the entire pocket to make the entire pocket durable)
such that the inner heat pressed layer and the outer heat pressed layer are spaced from each other and define the cavity therebetween that forms a space (Isoe, Fig. 3, a pocket with cavity inside is formed),
and wherein the heat pressed fabric material of the inner heat pressed layer and the outer heat pressed layer has lower elasticity than the fabric material of the article of apparel to provide greater rigidity to the inner and outer walls of the pocket (Isoe, col.2, lines 12-15, “Coating one side only of the pocketing material avoids endowing the pocket with an undesirable stiffness”).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified CNET-Withings in view of Isoe to include the above elements because CNET-Withings already teaches an elastic article of apparel that includes a pocket with access and sensor opening configured to receive electronics, and Isoe teaches how to improve the durability of the pocket.
As to claims 2, 11, 20, and 25, CNET-Withings-Isoe teaches the access opening is defined in the inner wall of the pocket, and the sensor opening is separate from the access opening (CNET, 3:54).
As to claims 5-6, 16-17, 22-23, and 26-27, CNET-Withings-Isoe teaches the article of apparel is a band comprising a tubular body configured to be worn by the user, wherein the tubular body of the band has a wider end and a narrower end and is configured to be worn on an arm of the user, and wherein the access opening is located at an end of the pocket most proximate to the narrower end of the tubular body, and wherein the access opening is located at an end of the pocket most proximate to the wider end of the tubular body (CNET, 1:24; the examiner notes, the band is wider towards the arm and narrower towards the wrist, and the access opening is located at both ends of the pocket).
As to claims 8 and 12, CNET-Withings-Isoe teaches the sensor is an optical heart rate sensor (CNET, 1:15-1:20).
As to claims 15 and 21, CNET-Withings-Isoe teaches the access opening is defined in the inner wall of the pocket and extends through the inner heat pressed layer (CNET, 3:54, the access opening is cut through the inner wall).
Claims 3 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over CNET-Withings-Isoe as applied to claims 1 and 9 above, and further in view of US20050253047A1 (Maegawa et. al), previously cited and hereto referred as Maegawa.
Claims 1 and 9 are taught as above.
As to claims 3 and 13, CNET-Withings-Isoe teaches the electronic module comprises a casing defining the projection (CNET, 0:40, the black casing includes a smaller rectangular area, which is the projection),
and an interface defined on a top side of the casing and configured to receive user input for operation of the computer device (CNET, 1:28-1:34, reviewer presses buttons).
However, CNET-Withings-Isoe does not expressly teach a computer device contained within the casing and in communication with the sensor. Maegawa teaches a relevant art of wearable biometric sensor (Maegawa, abstract). Maegawa teaches a computer device contained within the casing and in communication with the sensor (Maegawa, Fig. 4, data processing part 9 is contained in the housing 2 and in communication with sensor photo diode 7). It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified CNET-Withings-Isoe in view of Masegawa to include a computer device contained within the casing and in communication with the sensor because CNET-Withings-Isoe already teaches a sensor and an interface, and it would be obvious to a person of ordinary skills to include a computer device to control and process them.
Claims 4 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over CNET-Withings-Isoe-Maegawa as applied to claims 3 and 13 above, and further in view of US20110145980A1 (D'Alessandro, Brett), previously cited and hereto referred as D’Alessandro.
Claims 3 and 13 is taught as above.
As to claims 4 and 14, CNET-Withings-Isoe-Maegawa teaches the electronic module further comprises a connector configured for connection to an external device (CNET, 1:50-2:55; Withings, “Bluetooth”; the examiner notes, the Bluetooth is interpreted as the connector, under the broadest reasonable interpretation), and also teaches that the pocket receives the connector therein when the electronic module is received in the cavity (CNET, 3:42-3:54; the examiner notes, when the casing of the pedometer is inserted to the pocket, the pocket also receives the Bluetooth inside the pedometer as well).
However, CNET-Withings-Isoe-Maegawa does not teach that the article of apparel further comprises a protective shell positioned within the cavity, wherein the protective shell receives the connector therein when the electronic module is received in the cavity. D’Alessandro teaches a solution to a relevant problem of inserting an object inside a pocket (D’Alessandro, abstract). D’Alessandro teaches that the article of apparel further comprises a protective shell positioned within the cavity (D’Alessandro, Fig. 2B, liner 122). It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified CNET-Withings-Isoe-Maegawa in view of D’Alessandro to include the article of apparel further comprises a protective shell positioned within the cavity, wherein the protective shell receives the connector therein when the electronic module is received in the cavity because doing so would allow for the electronic module to stay securely in the pocket without slipping, as suggested by D’Alessandro (D’Alessandro, [0006], “an extra fabric lining with a higher frictional resistance”).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over CNET-Withings-Isoe as applied to claim 1 above, and further in view of US20150148619A1 (Berg et. al), previously cited and hereto referred as Berg.
Claim 1 is taught as above.
As to claim 7, CNET-Withings-Isoe does not teach the article of apparel further comprises a securing member securing the module within the cavity. Berg teaches a relevant art of a wearable sensor (Berg, abstract). Berg teaches a securing member securing the module within the cavity (Berg, Fig. 8A, Cradle 114). It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified CNET-Withings-Isoe to include a securing member securing the module within the cavity with the article of apparel because doing so would allow the module to be held onto securely.
Response to Arguments
Applicant's arguments filed 5/29/25 have been fully considered but they are not persuasive.
With regards to the 103 rejections, Applicant alleges on pg. 9: “…the Office proposes modifying Isoe such that both sides of its pocket would be coated… the Office then relies on Isoe' s teaching that only one side is coated. See, Office Action at 5. This is untenable because it directly contradicts the Office's own proposed modification of coating both sides, as discussed above”, Isoe still teaches the claimed limitation “wherein the elastic fabric material defining the inner and outer walls of the pocket is heat pressed from both inner and outer sides of each of the inner and outer walls ... and wherein the heat pressed elastic fabric material of the inner heat pressed layer and the outer heat pressed layer has lower elasticity than the elastic fabric material of the article of apparel to provide greater rigidity to the inner and outer walls of the pocket” (from pg. 8 of the remarks) because, although Isoe teaches only the bottom portion of the pocket to be heat pressed with resin (Isoe, Fig. 4, section 23; col. 3, lines 51-53, “In the final garment, the polymer coated section 23 remains at the bottom of the pocket 15.”), Isoe teaches both the inner and outer walls of the pocket to be coated with resin because the fabric of the pocket (Fig. 2) is being folded in half to create a pocket with both inner wall and outer walls coated with resin as shown in Fig. 3 (also see: Isoe, col. 3, lines 36-38, “The manufacturing of a pocket next involves folding the section 15 of FIG. 2 in half to create the form of an 20 envelope as shown in FIG. 3”). Therefore, Isoe does teach the above quoted claim limitation.
Additionally, Applicant alleges on pg. 10: “Isoe and the Office only address the elasticity of one side of the pocket relative to the other side of the pocket”. However, this is an inherent property of a polymer coated fabric, which Isoe does recognize as well (Isoe, col.2, lines 8-10, “This will increase the resistance of the pocket to developing holes through the material and also help avoid seam slippage”).
As such, the arguments are unpersuasive and the 103 rejections are maintained.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELINA S JANG whose telephone number is (571)272-7019. The examiner can normally be reached M-F 9:00 am - 6:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer Robertson can be reached at (571) 272-5001. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ELINA SOHYUN JANG/Examiner, Art Unit 3791
/JENNIFER ROBERTSON/Supervisory Patent Examiner, Art Unit 3791