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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on June 30, 2025 has been entered.
Status of the Claims
As directed by the amendment received on June 30, 2025, claims 1 and 7 have been amended. Accordingly, claims 1-13 are currently pending in this application with claims 8-13 having been previously withdrawn from further consideration.
Response to Amendment
The amendments filed with the written response received on June 30, 2025, have been considered and an action on the merits follows. Any objections and rejections previously put forth in the Office Action dated April 3, 2025, are hereby withdrawn unless specifically noted below.
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.
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 1-3 are rejected under 35 U.S.C. 103 as being unpatentable over US 2003/0088900 to Cho (hereinafter, “Cho”) in view of AU2012317826 to Harada et al. (hereinafter, “Harada”).
Regarding claim 1, Cho teaches an impact resistant pad (See Cho Figs. 1-3; shin guard; abstract) comprising: an impact resistant element comprising a plurality of upstanding interconnected walls arranged in a lattice pattern providing continuous coverage of the impact resistant element (See Cho Figs. 1-3; foam buffering plate (3) formed from interconnected wall portions (3b) and arranged in a continuous lattice pattern; foam buffering plate (3) is capable of resisting an impact; [0018]).
That said, Cho is silent to the lattice pattern being arranged in a Penrose tiling pattern, whereas the Penrose tiling pattern comprises an aperiodic set of prototiles, wherein the aperiodic set of prototiles comprises at least two different non-overlapping polygonal shapes.
However, Harada, which is reasonably pertinent to the same problem faced by Applicant of distributing force non-linearly across a lattice pattern structure, is directed to an absorbent article having a lattice pattern structure that distributes force along the pattern to prevent the article from being distorted or bending undesirably (See Harada, Figs. 1 and 11; abstract; page 6, lines 9-13; page 38 line 20 – page 40, line 7). More specifically, Harada teaches the lattice pattern being arranged in a Penrose tiling pattern, whereas the Penrose tiling pattern comprises an aperiodic set of prototiles, wherein the aperiodic set of prototiles comprises at least two different non-overlapping polygonal shapes (See Harada, Fig. 11; structure (20b) includes at least two different non-overlapping polygonal shapes, i.e., rhombuses (201, 202); page 38 line 20 – page 40, line 7).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to replace the corresponding lattice and vent pattern of Cho with the Penrose tiling lattice pattern disclosed by Harada for a variety of reasons including for example, but not limited to, for aesthetic purposes of providing Penrose patterned visual design and/or distributing forces non-linearly across the lattice pattern to prevent the article from undesirably distorting and/or bending under an applied force (See Harada, page 6, lines 9-13; page 38 line 20 – page 40, line 7).
Regarding claim 2, the modified impact resistant pad of Cho (i.e., Cho in view of Harada, as discussed with respect to claim 1 above) further teaches wherein the impact resistant element is connected to an underlying substrate (See Cho, Figs. 1-3; buffering plate (3) is connected to cover (1)).
Regarding claim 3, the modified impact resistant pad of Cho (i.e., Cho in view of Harada, as discussed with respect to claims 1-2 above) further teaches wherein the underlying substrate is part of a garment (See Cho, Figs. 1-3; cover (1) is part of a shin guard which is a wearable garment).
Claims 4 are rejected under 35 U.S.C. 103 as being unpatentable over Cho in view of Harada, as applied to claim 1 above, and further in view of US 2014/0101816 to Toronjo (hereinafter, “Toronjo”).
Regarding claim 4, although the modified impact resistant pad of Cho (i.e., Cho in view of Harada, as discussed with respect to claim 1 above) teaches the plurality of upstanding interconnected walls being made of a foam material, the modified impact resistant pad of Cho is silent to wherein the plurality of upstanding interconnected walls are comprised of an auxetic material.
However, Toronjo, in a related protective cushioning structure art, is directed to an article of apparel having a protective panel that incorporates an auxetic padding into the article of apparel, such as in a shin guard (See, Toronjo, Fig. 11B; abstract; [0118]). More specifically, Toronjo teaches wherein the plurality of upstanding interconnected walls are comprised of an auxetic material (See Toronjo, Fig. 11B; auxetic layer can be formed of auxetic foam material; [0080]).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to use the auxetic foam material disclosed by Toronjo to form the foam plate in the modified impact resistant pad of Cho, as the modification amounts to no more than a simple substitution of one known foam material for another with nothing more than the reasonable expectation of one foam material performing just as well as the other to yield predictable results, i.e., providing padded protection to a wearer.
Claims 5-7 are rejected under 35 U.S.C. 103 as being unpatentable over Cho in view of Harada, as applied to claim 1 above, and further in view of US 2015/0000018 to Brandt (hereinafter, “Brandt”).
Regarding claim 5, the modified impact resistant pad of Cho (i.e., Cho in view of Harada, as discussed with respect to claim 1 above) is silent to wherein a mean height of the plurality of upstanding interconnected walls is 1-20mm.
However, Brandt, in a related cushioning structure art, is directed to a modular protective structure formed form an impact absorbing material formed into a pattern of one or more geometrical shapes (See Brandt, Figs. 1A-3; abstract). More specifically, Brandt teaches wherein a mean height of the plurality of upstanding interconnected walls is 1-20mm (See Brandt, Fig. 1C; walls have maximum thickness of about 10 mm and a second thickness that can be greater than a minimum thickness; minimum thickness is not present at holes; [0017]-[0018]).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention configure the mean thickness of the walls of the modified impact resistant pad of Cho to vary within the ranges disclosed by Brandt for a variety of reasons including for example, but not limited to, providing a progressive impact protection response (See Brandt, [0004]), and further since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. Furthermore, Applicant has provided no criticality for the mean thickness values of the claimed invention.
Regarding claim 6, the modified impact resistant pad of Cho (i.e., Cho in view of Harada, as discussed with respect to claim 1 above) is silent to wherein a mean width of the plurality of upstanding interconnected walls is 0.2-5.0mm.
However, Brandt, in a related cushioning structure art, is directed to a modular protective structure formed form an impact absorbing material formed into a pattern of one or more geometrical shapes (See Brandt, Figs. 1A-3; abstract). More specifically, Brandt teaches wherein a mean width of the plurality of upstanding interconnected walls is 0.2-5.0mm (See Brandt, Fig. 2; walls have thickness (212), i.e., width, of 0.5-1.5 mm; [0021]).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention configure the mean width of the walls of the modified impact resistant pad of Cho to vary within the range disclosed by Brandt for a variety of reasons including for example, but not limited to, providing a progressive impact protection response and/or providing sufficient cushioning to a wearer using a desired lattice geometry (See Brandt, [0004]), and further since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. Furthermore, Applicant has provided no criticality for the mean width values of the claimed invention.
Regarding claim 7, the modified impact resistant pad of Cho (i.e., Cho in view of Harada, as discussed with respect to claim 1 above) further teaches wherein an intersection among three or more of the plurality of upstanding interconnected walls is defined as a node (See Cho, Fig. 2; wall portions (3b) intersection at node section (3a)).
That said, the modified impact resistant pad of Cho is silent to wherein a mean spacing between adjacent nodes is 3-30mm.
However, Brandt, in a related cushioning structure art, is directed to a modular protective structure formed form an impact absorbing material formed into a pattern of one or more geometrical shapes (See Brandt, Figs. 1A-3; abstract). More specifically, Brandt teaches wherein a mean spacing between adjacent nodes is 3-30mm (See Brandt, Fig. 2; spacing between intersection nodes may be 5-15 mm or between 10-20 mm depending on the cell shape; [0021]-[0022]).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention configure the mean spacing of the nodes of the modified impact resistant pad of Cho to vary within the range disclosed by Brandt for a variety of reasons including for example, but not limited to, providing a progressive impact protection response and/or providing sufficient cushioning to a wearer using a desired lattice geometry (See Brandt, [0004]), and further since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. Furthermore, Applicant has provided no criticality for the mean spacing values of the claimed invention.
Claims 1-3 are rejected under 35 U.S.C. 103 as being unpatentable over Cho in view of CA2803979 to Weisberg (hereinafter, “Weisberg”).
Regarding claim 1, Cho teaches an impact resistant pad (See Cho Figs. 1-3; shin guard; abstract) comprising: an impact resistant element comprising a plurality of upstanding interconnected walls arranged in a lattice pattern providing continuous coverage of the impact resistant element (See Cho Figs. 1-3; foam buffering plate (3) formed from interconnected wall portions (3b) and arranged in a continuous lattice pattern; foam buffering plate (3) is capable of resisting an impact; [0018]).
That said, Cho is silent to the lattice pattern being arranged in a Penrose tiling pattern, whereas the Penrose tiling pattern comprises an aperiodic set of prototiles, wherein the aperiodic set of prototiles comprises at least two different non-overlapping polygonal shapes.
However, Weisberg, in a related protective covering structure art, is directed to a protective container/structure providing protection not only against fluid flow during failure but also from impacts (See Weisberg, Figs. 5A-5C, 9A; abstract). More specifically, Weisberg teaches the lattice pattern being arranged in a Penrose tiling pattern, whereas the Penrose tiling pattern comprises an aperiodic set of prototiles, wherein the aperiodic set of prototiles comprises at least two different non-overlapping polygonal shapes (See Weisberg, Figs. 5A-5C, 9A; sheets (506) forming layered protective structure can form a Penrose tiling pattern structure which includes at least two different non-overlapping polygonal shapes; [0082]).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to replace the corresponding lattice and vent pattern of Cho with the Penrose tiling pattern disclosed by Weisberg for a variety of reasons including for example, but not limited to, for aesthetic purposes of providing Penrose patterned visual design and/or avoiding local compressive instabilities such as buckling in the protective structure (See Weisberg, [0082]).
Regarding claim 2, the modified impact resistant pad of Cho (i.e., Cho in view of Weisberg, as discussed with respect to claim 1 above) further teaches wherein the impact resistant element is connected to an underlying substrate (See Cho, Figs. 1-3; buffering plate (3) is connected to cover (1)).
Regarding claim 3, the modified impact resistant pad of Cho (i.e., Cho in view of Weisberg, as discussed with respect to claims 1-2 above) further teaches wherein the underlying substrate is part of a garment (See Cho, Figs. 1-3; cover (1) is part of a shin guard which is a wearable garment).
Claims 4 are rejected under 35 U.S.C. 103 as being unpatentable over Cho in view of Weisberg, as applied to claim 1 above, and further in view of Toronjo.
Regarding claim 4, although the modified impact resistant pad of Cho (i.e., Cho in view of Weisberg, as discussed with respect to claim 1 above) teaches the plurality of upstanding interconnected walls being made of a foam material, the modified impact resistant pad of Cho is silent to wherein the plurality of upstanding interconnected walls are comprised of an auxetic material.
However, Toronjo, in a related protective cushioning structure art, is directed to an article of apparel having a protective panel that incorporates an auxetic padding into the article of apparel, such as in a shin guard (See, Toronjo, Fig. 11B; abstract; [0118]). More specifically, Toronjo teaches wherein the plurality of upstanding interconnected walls are comprised of an auxetic material (See Toronjo, Fig. 11B; auxetic layer can be formed of auxetic foam material; [0080]).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to use the auxetic foam material disclosed by Toronjo to form the foam plate in the modified impact resistant pad of Cho, as the modification amounts to no more than a simple substitution of one known foam material for another with nothing more than the reasonable expectation of one foam material performing just as well as the other to yield predictable results, i.e., providing padded protection to a wearer.
Claims 5-7 are rejected under 35 U.S.C. 103 as being unpatentable over Cho in view of Weisberg, as applied to claim 1 above, and further in view of Brandt.
Regarding claim 5, the modified impact resistant pad of Cho (i.e., Cho in view of Weisberg, as discussed with respect to claim 1 above) is silent to wherein a mean height of the plurality of upstanding interconnected walls is 1-20mm.
However, Brandt, in a related cushioning structure art, is directed to a modular protective structure formed form an impact absorbing material formed into a pattern of one or more geometrical shapes (See Brandt, Figs. 1A-3; abstract). More specifically, Brandt teaches wherein a mean height of the plurality of upstanding interconnected walls is 1-20mm (See Brandt, Fig. 1C; walls have maximum thickness of about 10 mm and a second thickness that can be greater than a minimum thickness; minimum thickness is not present at holes; [0017]-[0018]).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention configure the mean thickness of the walls of the modified impact resistant pad of Cho to vary within the ranges disclosed by Brandt for a variety of reasons including for example, but not limited to, providing a progressive impact protection response (See Brandt, [0004]), and further since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. Furthermore, Applicant has provided no criticality for the mean thickness values of the claimed invention.
Regarding claim 6, the modified impact resistant pad of Cho (i.e., Cho in view of Weisberg, as discussed with respect to claim 1 above) is silent to wherein a mean width of the plurality of upstanding interconnected walls is 0.2-5.0mm.
However, Brandt, in a related cushioning structure art, is directed to a modular protective structure formed form an impact absorbing material formed into a pattern of one or more geometrical shapes (See Brandt, Figs. 1A-3; abstract). More specifically, Brandt teaches wherein a mean width of the plurality of upstanding interconnected walls is 0.2-5.0mm (See Brandt, Fig. 2; walls have thickness (212), i.e., width, of 0.5-1.5 mm; [0021]).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention configure the mean width of the walls of the modified impact resistant pad of Cho to vary within the range disclosed by Brandt for a variety of reasons including for example, but not limited to, providing a progressive impact protection response and/or providing sufficient cushioning to a wearer using a desired lattice geometry (See Brandt, [0004]), and further since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. Furthermore, Applicant has provided no criticality for the mean width values of the claimed invention.
Regarding claim 7, the modified impact resistant pad of Cho (i.e., Cho in view of Weisberg, as discussed with respect to claim 1 above) further teaches wherein an intersection among three or more of the plurality of upstanding interconnected walls is defined as a node (See Cho, Fig. 2; wall portions (3b) intersection at node section (3a)).
That said, the modified impact resistant pad of Cho is silent to wherein a mean spacing between adjacent nodes is 3-30mm.
However, Brandt, in a related cushioning structure art, is directed to a modular protective structure formed form an impact absorbing material formed into a pattern of one or more geometrical shapes (See Brandt, Figs. 1A-3; abstract). More specifically, Brandt teaches wherein a mean spacing between adjacent nodes is 3-30mm (See Brandt, Fig. 2; spacing between intersection nodes may be 5-15 mm or between 10-20 mm depending on the cell shape; [0021]-[0022]).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention configure the mean spacing of the nodes of the modified impact resistant pad of Cho to vary within the range disclosed by Brandt for a variety of reasons including for example, but not limited to, providing a progressive impact protection response and/or providing sufficient cushioning to a wearer using a desired lattice geometry (See Brandt, [0004]), and further since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. Furthermore, Applicant has provided no criticality for the mean spacing values of the claimed invention.
Response to Arguments
Applicant's arguments filed June 30, 2025 have been fully considered but they are not persuasive. In addition, the search has been updated, and new prior art has also been identified and applied in an alternative rejection (i.e., in view of Weisberg).
In response to Applicant's apparent argument that Harada is nonanalogous art and is directed to liquid absorption as opposed to impact absorption Examiner respectfully disagrees. Examiner notes that it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, although Harada is concerned with liquid absorption, Harada is also concerned with reducing distortion, curling, or bending of the napkin structure as a result of any force exerted on the structure from a wearer (See Harada, page 6, lines 9-13; page 38 line 20 – page 40, line 7). Therefore, Harada is analogous art as it is reasonably pertinent to the same problem faced by Applicant, i.e., distributing force non-linearly across a lattice pattern structure.
In response to Applicant's apparent argument that the references fail to show certain features of the invention, it is noted that the features upon which Applicant relies (i.e., a period of time of in which a force is applied) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
In response to Applicant’s argument that combining Cho with Harada is inappropriate because the disclosed structures are fundamentally different and neither Cho nor Harada disclose walls, Examiner again respectfully disagrees. Harada is relied upon as teaching a Penrose lattice tiling pattern as claimed which is then used to modify the existing walled structure of Cho as discussed in the rejection above. Examiner notes that 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).
In response to Applicant’s apparent argument that Harada teaches away from the use of structures designed to prevent bending or distortion, Examiner respectfully disagrees. Harada does not state the desire to prevent bending or distortion entirely as seemingly implied by Applicant, but instead seeks to prevent bending or distortion to some extent in one or more specific directions through use of the disclosed Penrose lattice tiling pattern (See Harada, page 40, lines 3-7). Examiner further notes that an extent of intentional bending and/or distortion of an impact resistant article as discussed by Applicant is not recited in the rejected claims.
In response to Applicant’s apparent argument that neither Cho nor Harada mention or teach aesthetic considerations of a Penrose pattern and that 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). Indeed, Harada explicitly discloses a Penrose pattern, the aesthetic appeal of such a pattern being visually attractive and desirable to one of ordinary skill in the art as discussed in the rejection above.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW R MARCHEWKA whose telephone number is (571) 272-4038. The examiner can normally be reached M-F: 9:00AM-5:00PM EST.
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/MATTHEW R MARCHEWKA/Examiner, Art Unit 3732