DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
The amendment filed 8/15/25 has been entered. Claims 1-3, 7, 17-27 remain pending in the application. Applicant’s amendments to the (Specification, Drawings, and Claims) have overcome each and every objection and 112(b) rejections previously set forth in the Non-Final Office Action mailed 5/23/25.
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, 2, 7, 21-27 is/are rejected under 35 U.S.C. 103 as being unpatentable over Payre (FR 3108249) in view of Gattamorta (USPN 5787508).
Regarding Claim 1, Payre teaches a sports helmet (it is noted that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations; however, see Fig. 1; [0038] “helmet 3”; Payre teaches a helmet which meets the structural limitations in the claims and performs the functions as recited such as being capable of being for sports, especially in light of [0002] being used for protection in event of a fall) having
a shock-absorbing helmet shell and a strap fixing system for fixing the helmet to a head of a user (for shell, see [0038] “helmet 3”; Payre teaches the helmet shell which meets the structural limitations in the claims and performs the functions as recited such as being capable of being shock-absorbing at least to some extent; for strap fixing system—see Fig. 1; Payre teaches the strap fixing system which meets the structural limitations in the claims and performs the functions as recited such as being capable of fixing the helmet to a head as recited),
wherein the sports helmet comprises an airbag device which includes a gas generator and an airbag which is inflatable by gas (see Figs. 1, 2; airbag --[0038] "helmet 3 which comprises at least one inflatable bag (4…)";[0039] "helmet 3 then also comprises at least one inflation means 5 of said at least one inflatable bag"; [0060] "inflation means 5…comprises…at least one compressed gas reservoir 50 which may comprise at least one compressed gas cartridge 51"),
wherein the airbag is configured to protect at least a portion of a user's face in an inflated state ([0007] "protection device comprises….at least one helmet which comprises at least one inflatable bag which is configured to deploy at least in front of at least part of the face"),
wherein in the inflated state the airbag has an outer profile with an outer perimeter edge that defines a closed loop (see Fig. 2).
Payre does not explicitly teach wherein in the inflated state the airbag has an inner profile defining a closed loop,
wherein the inner profile defines an opening extending fully through the airbag;
wherein the opening defined by the inner profile is the only opening extending through the airbag;
wherein the opening corresponds to an eye region of a user's face.
However, Payre’s airbag is an inflatable face covering.
Gattamorta teaches an inflatable face covering (see Figs. 1, 2; Col. 4 Line 67-Col. 5 Line 1 “inflatable mask assembly…10”; Col. 5 Lines 16-18 "mask assembly 10…to include a first flexible material panel 22 and a second flexible material panel 20"; Col. 5 Lines 29-31"; Col. 5 Lines 34-51 "included generally about a perimeter of the first and second flexible material panels 22 and 20 in the preferred embodiment is at least one perimeter securement segment 30. The perimeter securement segment, which may be one complete continuous segment 30,... is structured to define an interior chamber between the first and second flexible material panels 22 and 20. The perimeter securement segment 30 is structured to be substantially fluid impervious and in the preferred embodiment, is defined directly between the first and second flexible material panels 20 and 22, ideally by a heat seal, that adheres the flexible material panels 20 and 22 directly to one another to form the perimeter securement segment 30. As such, the interior chamber is defined and is structured to receive and contain a quantity of gas therein when the mask assembly 10 is to be utilized and is to be given its defined shape as a result of inflation"),
wherein in the inflated state the airbag has an outer profile with an outer perimeter edge that defines a closed loop (see Fig. 1),
wherein in the inflated state the airbag has an inner profile defining a closed loop (see Fig. 2; Col. 6 Lines 48-50 "goggle region 40 comprises at least one, and more preferably, a pair of spaced apart eye regions 41 and 42"; wherein the disclosure of having only one would be an inner profile defining a closed loop),
wherein the inner profile defines an opening extending fully through the airbag (Figs. 1, 2; Col. 6 Lines 48-50);
wherein the opening defined by the inner profile is the only opening extending through the airbag (see Figs. 1, 2; Col. 6 Lines 48-50)
wherein the opening corresponds to an eye region of a user's face (see Figs. 1,2; Col. 6 Lines 48-50).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payre’s inflatable face covering with the eye openings of Gattamorta for aesthetic purposes (Col. 1 Lines 5-8, and/or Col. 2 Lines 40-45, and/or Col. 2 Line 45-Col. 3 Line 6), and/or to provide user visibility (Col. 6 Lines 50-53).
Regarding Claim 2, modified Payre teaches all the claimed limitations as discussed above in Claim 1.
Payre further teaches wherein the airbag is configured to cover a user's chin region and cheekbone regions in the inflated state (see Fig. 2 for chin and cheekbones; Payre teaches the airbag which meets the structural limitations in the claims and performs the functions as recited such as being capable of covering the chin and cheekbones when inflated as recited).
Regarding Claim 7, modified Payre teaches all the claimed limitations as discussed above in Claim 1.
Payre further teaches wherein the gas generator is arranged at a center-symmetrical position and/or an occipital region of the helmet shell (see Fig. 2 for 50/51 at occipital region).
Regarding Claim 21, Payre teaches a sports helmet (it is noted that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations; however, see Fig. 1; [0038] “helmet 3”; Payre teaches a helmet which meets the structural limitations in the claims and performs the functions as recited such as being capable of being for sports, especially in light of [0002] being used for protection in event of a fall) having
a shock-absorbing helmet shell and a strap fixing system for fixing the helmet to a head of a user (for shell, see [0038] “helmet 3”; Payre teaches the helmet shell which meets the structural limitations in the claims and performs the functions as recited such as being capable of being shock-absorbing at least to some extent; for strap fixing system—see Fig. 1; Payre teaches the strap fixing system which meets the structural limitations in the claims and performs the functions as recited such as being capable of fixing the helmet to a head as recited),
wherein the sports helmet comprises an airbag device which includes a gas generator and an airbag which is inflatable by gas (see Figs. 1, 2; airbag --[0038] "helmet 3 which comprises at least one inflatable bag (4…)";[0039] "helmet 3 then also comprises at least one inflation means 5 of said at least one inflatable bag"; [0060] "inflation means 5…comprises…at least one compressed gas reservoir 50 which may comprise at least one compressed gas cartridge 51"),
wherein the airbag is configured to protect at least a portion of a user's face in an inflated state ([0007] "protection device comprises….at least one helmet which comprises at least one inflatable bag which is configured to deploy at least in front of at least part of the face");
wherein the airbag is configured to cover a forehead region, lateral temple regions, cheekbone regions and a chin region of the user's face in the inflated state (see Fig. 1; Payre teaches the airbag which meets the structural limitations in the claims and performs the functions as recited such as being capable of covering the regions recited when inflated);
wherein in the inflated state the airbag has an outer profile with an outer perimeter edge that defines a closed loop (see Fig. 2).
Payre does not explicitly teach wherein in the inflated state the airbag has an inner profile defining a closed loop,
wherein the inner profile defines an opening extending fully through the airbag;
wherein the opening defined by the inner profile is the only opening extending through the airbag;
wherein the opening corresponds to an eye region of a user's face.
However, Payre’s airbag is an inflatable face covering.
Gattamorta teaches an inflatable face covering (see Figs. 1, 2; Col. 4 Line 67-Col. 5 Line 1 “inflatable mask assembly…10”; Col. 5 Lines 16-18 "mask assembly 10…to include a first flexible material panel 22 and a second flexible material panel 20"; Col. 5 Lines 29-31"; Col. 5 Lines 34-51 "included generally about a perimeter of the first and second flexible material panels 22 and 20 in the preferred embodiment is at least one perimeter securement segment 30. The perimeter securement segment, which may be one complete continuous segment 30,... is structured to define an interior chamber between the first and second flexible material panels 22 and 20. The perimeter securement segment 30 is structured to be substantially fluid impervious and in the preferred embodiment, is defined directly between the first and second flexible material panels 20 and 22, ideally by a heat seal, that adheres the flexible material panels 20 and 22 directly to one another to form the perimeter securement segment 30. As such, the interior chamber is defined and is structured to receive and contain a quantity of gas therein when the mask assembly 10 is to be utilized and is to be given its defined shape as a result of inflation"),
wherein in the inflated state the airbag has an outer profile with an outer perimeter edge that defines a closed loop (see Fig. 1),
wherein in the inflated state the airbag has an inner profile defining a closed loop (see Fig. 2; Col. 6 Lines 48-50 "goggle region 40 comprises at least one, and more preferably, a pair of spaced apart eye regions 41 and 42"; wherein the disclosure of having only one would be an inner profile defining a closed loop),
wherein the inner profile defines an opening extending fully through the airbag (Figs. 1, 2; Col. 6 Lines 48-50);
wherein the opening defined by the inner profile is the only opening extending through the airbag (see Figs. 1, 2; Col. 6 Lines 48-50)
wherein the opening corresponds to an eye region of a user's face (see Figs. 1,2; Col. 6 Lines 48-50).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payre’s inflatable face covering with the eye openings of Gattamorta for aesthetic purposes (Col. 1 Lines 5-8, and/or Col. 2 Lines 40-45, and/or Col. 2 Line 45-Col. 3 Line 6), and/or to provide user visibility (Col. 6 Lines 50-53).
Regarding Claim 22, modified Payre teaches all the claimed limitations as discussed above in Claim 1.
Payre further teaches wherein the airbag comprises a mounting end with which the airbag is mounted at the helmet shell in a predetermined orientation (see Figs. 1,2, clearly mounted within housing 30 and therefore in an orientation capable of being predetermined),
and wherein the airbag comprises a free end which moves along the user's face upon inflation of the airbag so that the inflated airbag covers the user's face (see Fig. 2, clearly with a free end; Payre teaches the free end which meets the structural limitations in the claims and performs the functions as recited such as being capable of moving as recited).
Regarding Claim 23, modified Payre teaches all the claimed limitations as discussed above in Claim 22.
Payre further teaches wherein the mounting end of the airbag is mounted at a forehead region of the helmet shell (see Figs. 1, 2).
Regarding Claim 24, modified Payre teaches all the claimed limitations as discussed above in Claim 23.
Payre further teaches wherein the airbag is configured to move at least partially along a forward direction upon inflation during a first phase of deployment (see Figs. 1, 2; Payre teaches the airbag which meets the structural limitations in the claims and performs the functions as recited such as being capable of moving as recited).
Regarding Claim 25, Payre teaches a sports helmet (it is noted that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations; however, see Fig. 1; [0038] “helmet 3”; Payre teaches a helmet which meets the structural limitations in the claims and performs the functions as recited such as being capable of being for sports, especially in light of [0002] being used for protection in event of a fall) having
a shock-absorbing helmet shell and a strap fixing system for fixing the helmet to a head of a user (for shell, see [0038] “helmet 3”; Payre teaches the helmet shell which meets the structural limitations in the claims and performs the functions as recited such as being capable of being shock-absorbing at least to some extent; for strap fixing system—see Fig. 1; Payre teaches the strap fixing system which meets the structural limitations in the claims and performs the functions as recited such as being capable of fixing the helmet to a head as recited),
wherein the sports helmet comprises an airbag device which includes a gas generator and an airbag which is inflatable by gas (see Figs. 1, 2; airbag --[0038] "helmet 3 which comprises at least one inflatable bag (4…)";[0039] "helmet 3 then also comprises at least one inflation means 5 of said at least one inflatable bag"; [0060] "inflation means 5…comprises…at least one compressed gas reservoir 50 which may comprise at least one compressed gas cartridge 51"),
wherein the airbag is configured to protect at least a portion of a user's face in an inflated state ([0007] "protection device comprises….at least one helmet which comprises at least one inflatable bag which is configured to deploy at least in front of at least part of the face");
wherein the airbag comprises a mounting end with which the airbag is mounted at the helmet shell in a predetermined orientation (see Figs. 1,2, clearly mounted within housing 30),
and wherein the airbag comprises a free end which moves along the user's face upon inflation of the airbag so that the inflated airbag covers the user's face (see Fig. 2, clearly with a free end; Payre teaches the free end which meets the structural limitations in the claims and performs the functions as recited such as being capable of moving as recited),
wherein the airbag is configured to cover a forehead region, lateral temple regions, cheekbone regions and a chin region of the user's face in the inflated state (see Fig. 1; Payre teaches the airbag which meets the structural limitations in the claims and performs the functions as recited such as being capable of covering the regions recited when inflated);
wherein the mounting end of the airbag is mounted at a forehead region of the helmet shell (see Figs. 1, 2);
wherein in the inflated state the airbag has an outer profile with an outer perimeter edge that defines a closed loop (see Fig. 2).
Payre does not explicitly teach wherein in the inflated state the airbag has an inner profile defining a closed loop,
wherein the inner profile defines an opening extending fully through the airbag;
wherein the opening defined by the inner profile is the only opening extending through the airbag;
wherein the opening corresponds to an eye region of a user's face.
However, Payre’s airbag is an inflatable face covering.
Gattamorta teaches an inflatable face covering (see Figs. 1, 2; Col. 4 Line 67-Col. 5 Line 1 “inflatable mask assembly…10”; Col. 5 Lines 16-18 "mask assembly 10…to include a first flexible material panel 22 and a second flexible material panel 20"; Col. 5 Lines 29-31"; Col. 5 Lines 34-51 "included generally about a perimeter of the first and second flexible material panels 22 and 20 in the preferred embodiment is at least one perimeter securement segment 30. The perimeter securement segment, which may be one complete continuous segment 30,... is structured to define an interior chamber between the first and second flexible material panels 22 and 20. The perimeter securement segment 30 is structured to be substantially fluid impervious and in the preferred embodiment, is defined directly between the first and second flexible material panels 20 and 22, ideally by a heat seal, that adheres the flexible material panels 20 and 22 directly to one another to form the perimeter securement segment 30. As such, the interior chamber is defined and is structured to receive and contain a quantity of gas therein when the mask assembly 10 is to be utilized and is to be given its defined shape as a result of inflation"),
wherein in the inflated state the airbag has an outer profile with an outer perimeter edge that defines a closed loop (see Fig. 1),
wherein in the inflated state the airbag has an inner profile defining a closed loop (see Fig. 2; Col. 6 Lines 48-50 "goggle region 40 comprises at least one, and more preferably, a pair of spaced apart eye regions 41 and 42"; wherein the disclosure of having only one would be an inner profile defining a closed loop),
wherein the inner profile defines an opening extending fully through the airbag (Figs. 1, 2; Col. 6 Lines 48-50);
wherein the opening defined by the inner profile is the only opening extending through the airbag (see Figs. 1, 2; Col. 6 Lines 48-50)
wherein the opening corresponds to an eye region of a user's face (see Figs. 1,2; Col. 6 Lines 48-50).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payre’s inflatable face covering with the eye openings of Gattamorta for aesthetic purposes (Col. 1 Lines 5-8, and/or Col. 2 Lines 40-45, and/or Col. 2 Line 45-Col. 3 Line 6), and/or to provide user visibility (Col. 6 Lines 50-53).
Regarding Claim 26, modified Payre teaches all the claimed limitations as discussed above in Claim 25.
Modified Payre further teaches wherein the opening defines a cutout around the eye region of the user’s face (see claim interpretation; the recitation “cutout” is being treated as a product-by-process limitation. Therefore, even if the method of making Payre’s opening, as provided by Gattamorta, results in different structural characteristics of the end product than other opening-forming methods, it still would have been prima facie obvious at the time the invention was made to use the Payre and Gattamorta references above as claimed since such a process is a well-known technique in the art. See aforementioned rejection of Claim 25 wherein Payre’s opening as provided by Gattamorta has all of the structure of Claim 26; in other words, the opening corresponding to an eye region of the user’s face of modified Payre teaches the cutout as recited in Claim 26 because it has the structure of Claim 26).
Regarding Claim 27, modified Payre teaches all the claimed limitations as discussed above in Claim 25.
Payre further teaches wherein the airbag is configured to move at least partially along a forward direction upon inflation during a first phase of deployment (see Figs. 1, 2; Payre teaches the airbag which meets the structural limitations in the claims and performs the functions as recited such as being capable of moving as recited).
Claim(s) 3, 17-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Payre (FR 3108249) in view of Gattamorta (USPN 5787508), further in view of Buckman (USPN 7150048).
Regarding Claim 3, modified Payre teaches all the claimed limitations as discussed above in Claim 1.
Payre at least suggests wherein the airbag is configured to be modeled according to a human face shape at a side facing the face of the user in the inflated state (see Fig. 2; Payre teaches the airbag which meets the structural limitations in the claims and performs the functions as recited such as being capable of being modeled to a human face shape at a side facing the face when inflated as recited).
Nevertheless, Buckman teaches wherein the airbag is configured to be modeled according to a human face shape in the inflated state (Col. 25 Lines 35-37 "airbags may advantageously be molded or contoured and curve around the body surface, according to their molded shape when deployed"; Col. 25 Lines 39-40 "airbags may further be contoured to fit specific sites such as…the head").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payre’s airbag to model according to body shape covered as taught by Buckman as Buckman shows it is known to model airbag to portion of body the airbag is covering for effective protection (abstract).
Regarding Claim 17, modified Payre teaches all the claimed limitations as discussed above in Claim 1.
Payre further teaches wherein the airbag device comprises a sensor device for detecting an impact situation ([0034] "movement sensor configured to detect at least one movement…in particular a fall"; Payre teaches the sensor which meets the structural limitations in the claims and performs the functions as recited such as being capable of detecting an impact situation, especially as the sensor can detect a fall),
a trigger for triggering the gas generator ([0064] "at least one control means 6…communicates with…movement sensor"; [0065] "at least one control means 6 communicates with said at least one inflation means 5"; [0066] "protection device 1 …include analysis means which are configured to analyze…at least one reading carried out by said at least one movement sensor"; [0069] "said at least one control means 6 can then be configured to control said at least one inflation means 5 as a function of the analysis results"; therefore, based on movement read by analysis results, control means control the inflation means 5, wherein inflation means 5 is gas, see [0060]).
Payre does not explicitly teach and an energy supply for supplying the sensor device and/or the trigger with electrical energy.
However, Payre does teach the movement sensor as an accelerometer ([0014]).
Buckman teaches and an energy supply for supplying the sensor device (accelerometer) and/or the trigger with electrical energy (Col. 5 Lines 50-52 "airbag inflator is connected either directly by electrical wires or by electromagnetic waves to the logic controller and power supply"; Col. 6 Lines 40-41 "power supply for the APG is a battery…the battery can be a rechargeable"; Col. 2 Lines 10-14 "active protection garment (APG) that includes…protection mechanisms. The protection mechanism is automatically deployed via an air bag inflator when sensors detect the accelerations"; Col. 2 Lines 10-14 "The APG further comprises a logic controller that is capable of activating the air bag inflator should certain criteria be met or fall outside of an acceptable range"; Col. 2 Lines 32-36 "The logic controller is capable of distinguishing from a fall another normal daily activities that can be mistakenly interpreted as a fall. The APG logic controller interprets electromagnetic inputs from the linked gyroscopic, position, velocity, or accelerometer devices").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payre’s sensor device and/or trigger with electrical energy as taught by Buckman as a known arrangement for airbag deployment.
Regarding Claim 18, modified Payre teaches all the claimed limitations as discussed above in Claim 17.
Modified Payre further teaches wherein the gas generator, the airbag, the sensor device, the trigger, and the energy supply form a modular unit (modified teaches the recited elements and therefore a modular unit).
Regarding Claim 19, modified Payre teaches all the claimed limitations as discussed above in Claim 18.
Buckman further teaches wherein the modular unit is removably mounted at the helmet shell (see Figs. 3A, 3B, 10; Col. 19 Lines 35-38 "removable isolated APG chambers 108 further comprise a power supply 24, a logic controller 22, a high pressure or compressed gas source 18 and an actuable valve or airbag inflator"; Col. 19 Line 38 "actuable valve 20"; Col. 19 Lines 41-42 "all components are preferably affixed to the interior surface of the removable isolated APG chambers 108").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payre such that the modular unit components are within the airbag as taught by Payre and therefore removable as a known arrangement of deployable airbags, such as for cleaning (Col. 9 Lines 39-41).
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Payre (FR 3108249) in view of Gattamorta (USPN 5787508), further in view of Allen et al (US Publication 2017/0188649), herein Allen.
Regarding Claim 20, modified Payre teaches all the claimed limitations as discussed above in Claim 1.
Payre further teaches wherein the sports helmet is configured as a bicycle helmet (Payre teaches the helmet which meets the structural limitations in the claims and performs the functions as recited such as being capable of being a bicycle sports helmet).
Payre does not explicitly teach wherein the helmet shell comprises a helmet body which is made of a hard foam
and wherein the helmet shell comprises a plurality of ventilation openings distributed over the surface of the helmet shell.
Allen teaches wherein the helmet shell comprises a helmet body which is made of a hard foam (see Fig. 1; [0025] "outer protective shell 60…may be made of…expanded polystyrene (EPS)", wherein it is known in the art that EPS is foam, see [0052]; wherein applicant’s specification [0051] indicates EPS as meeting the limitation “hard foam”)
and wherein the helmet shell comprises a plurality of ventilation openings distributed over the surface of the helmet shell ([0021] "Fig. 1 shows…helmet 30 may comprise vents or openings 32 that are formed in, and extend through, a portion or entirety of the helmet 30, including...an outer protective shell...60").
As such, modified Payre teaches all of the elements of the instant invention as discussed in detail above except providing the helmet shell being of hard foam. Although modified Payre does not directly teach this limitation, it would have been an obvious matter of design choice to one of ordinary skill in the art at the time the invention was made to have modified Payre by making its helmet shell of hard foam. Such modification would be considered a mere choice of a commonly used material, in the apparel art, to make liquid metal on the basis of its suitability for the intended use. In other words, the use of hard foam would have been an "obvious to try" approach because the use of such a well-known material for a zipper is not of innovation but of ordinary skill and common sense. KSR Int’l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1742,82, USPQ2d 1382, 1396 (2007).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payre’s outer shell to be of hard foam as taught by Allen as a known helmet layer material to provide impact protection ([0025]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payre’s outer shell with the ventilation openings of Allen in order to provide ventilation ([0021]).
Response to Arguments
Applicant's arguments filed 8/15/25 have been fully considered but they are not persuasive.
Pertaining to remarks on page 8 that the prior art does not recite the functions of the application and therefore are improper for a rejection—examiner respectfully disagrees. Applicant may argue that the combination of two or more references is “hindsight” because “express” motivation to combine the references is lacking. However, there is no requirement that an “express, written motivation to combine must appear in prior art references before a finding of obviousness.” See Ruiz v. A.B. Chance Co., 357 F.3d 1270, 1276, 69 USPQ2d 1686, 1690 (Fed. Cir. 2004). See MPEP 2141 and 2143 for guidance regarding establishment of a prima facie case of obviousness.
Pertaining to remarks on page 8 that the references Payre and Gattamorta are non-analogous and directed to completely different purposes and therefore cannot be utilized in an obviousness rejection—examiner respectfully disagrees. As indicated in the previous office action of 5/23/25 page 4, both references are directed to inflatable face covers as analogous art. Attention is directed to MPEP 2141.01(a)(I), wherein the definition of analogous art is not necessarily that they must be directed to the same purpose, but to the same art of endeavor, even if the references address different problems.
Pertaining to remarks on page 9 directed to an earlier rejection—remarks are directed to Milligan (USPN 5206955) utilized in the rejection of 1/6/25, wherein remarks are moot especially as remarks indicate that the rejection is not currently utilized. Nevertheless, for clarification—attention is directed to pages 3, 4 of the 1/6/25 rejection indicating that Payre and Milligan are in the same art of endeavor as being face guards.
Pertaining to remarks on page 9 that modifying Payre with open eye regions would “result in areas of the face that could be exposed during a seizure event, leading to injury” and would lead to “increased cost and reduced performance”—examiner respectfully disagrees. One of ordinary skill in the art would be able to determine the weight of various benefits in modification, such as deciding whether providing a user calm with visibility is a higher priority, and no evidence has been provided as to increased cost and reduced performance. Similar remarks and examiner responses were made on page 15 of the office action 1/6/25.
Pertaining to remarks on page 9 that Gattamorta is not for protection—examiner respectfully disagrees, not only for the reasons indicated above that the references are analogous, but as the remarks are directed to a term not claimed; even if the term was claimed, the term is directed to functional limitations. Modified Payre teaches the structure of the claimed limitations which meets the structural limitations in the claims and performs the functions as recited such as being capable of protecting, especially as both references are inflatable. No other structure differentiating the claims from the prior art providing the alleged missing protection function has been indicated in the claims.
Pertaining to remarks on page 9 that Gattamorta is not for rapid inflation—examiner respectfully disagrees. The term “rapid” is a relative term and is not claimed, and again is directed to functionality. As aforementioned, modified Payre teaches the structure of the claimed limitations which meets the structural limitations of what is currently claimed in the claims and performs the functions as recited such as being capable of such a function. Furthermore, the remarks are piecemeal—Gattamorta is utilized to teach eye openings in an inflatable face covering as claimed, and not necessarily for the inflation-related structures. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Relatedly, pertaining to remarks on page 10 that Gattamorta is for pre-inflation and for wearing for an extended period of time-- examiner respectfully disagrees. Remarks are directed to functionalities that are not being utilized in the modification and are moot.
Pertaining to remarks on page 10 that there is no motivation to add structure from Gattamorta to Payre, and that the modification is piecemeal and/or hindsight without provided reasons—examiner respectfully disagrees. In response to such an argument, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981) and/or MPEP 707.07(f). Furthermore, attention is directed to page 6 of office action 5/23/25 for clear reasons/motivations for why Payre would be modified with the eye openings of Gattamorta. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Pertaining to remarks on page 11 that it Gattamorta is not an airbag and therefore is not properly used—examiner respectfully disagrees. The rejection does not call Gattamorta an airbag, but an inflatable face covering, which, as aforementioned, is the basis for the references being in the same art of endeavor and usable together.
Pertaining to remarks on page 11 that Gattamorta cannot be utilized because it’s for manual inflation—remarks are moot and piecemeal, as Gattamorta is only utilized to teach eye openings; the inflation-related structures are already taught by Payre. As aforementioned-- in response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Pertaining to remarks on page 11 that Gattamorta teaches away from protective helmets due to Col. 2 Lines 40-65—examiner respectfully disagrees. If anything, the recitation suggests modifying helmets since helmets lack such inflatable masks.
Pertaining to remarks on page 12 that a skilled artisan would not alter the structure of a protective device for aesthetic reasons expressly reducing the protective aspects—examiner respectfully disagrees. As aforementioned, one of ordinary skill would be able to weigh various benefits and decide what is desirable.
Pertaining to remarks on page 12 that Gattamorta has nothing to do with providing visibility in emergency situations—examiner respectfully disagrees. As aforementioned, combined references can be directed to solving different problems.
Pertaining to remarks on page 12 to the Ramberg reference—for clarification: because of its date, the Ramberg reference is meant to be interpreted as pertinent art in the field and can still be utilized in a rejection as extrinsic evidence.
Conclusion
The prior art made of record and not relied upon but is considered pertinent to applicant's disclosure and can be used to formulate a rejection if necessary: Yeh (USPN 6604975), Krempel et al (USPN 7559907) directed to face masks with only eye openings.
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Grace Huang whose telephone number is (571)270-5969. The examiner can normally be reached M-Th 8:30am-5:30pm EST.
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/GRACE HUANG/Primary Examiner, Art Unit 3732
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