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 .
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.
Response to Arguments
Applicant's arguments filed 13 March 2026 have been fully considered but they are not persuasive.
Applicant argues that the difference between 120o and the claimed 130-170o range is not “a mere change in size” but a functionally significant geometric modification that Enderby neither teaches not suggests. This is not found to be persuasive. As set forth below, and in response to the amended claim language to a 130-170o angle range, no “mere change in size” rationale has been applied. It has been set forth below that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have selected an obtuse angle range of 130-170o, 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. Applicant attempts to impart the functional significance of this angle range for enabling the wing segments to fold symmetrically and conform to the irregular body contours of spinal regions, knees, ankles, elbows and shoulders while concentrating cold therapy to targeted locations as discussed in paragraphs [0027-0028] and [0040] of the specification. However, a fair reading of the specification does not impart these specific functions to the angle range claimed. At most paragraph [0040] teaches that the illustrated embodiment shows angles in this range, but that alternate embodiments can have angles less than about 130o or more than about 170o, sufficient to assist in the placement of the cold temperature source to targeted body areas. This generally ascribes obtuse angles which a hexagon has with assisting placement of the cold temperature source, but does not discus concentrating cold to a desired therapeutic location of the body. Paragraph [0027] discusses that a hexagonal shape assists in concentrating the cold to the desired therapeutic location of the body, but makes no mention of specific angles and paragraph [0028] discusses that the therapy system is repositionable and is configured for attachment to a targeted location of the person’s body, such as the non-limiting examples of spinal regions in the neck, back, and lower limbar, as well as knees, ankles, elbows, shoulder, back and the like. Neither of paragraphs [0027-0028] discus angle ranges concentrating cold to a desired therapeutic location of the body. In fact, paragraph [0027] attributes the concentration of the cold to the desired therapeutic location of the body to the hexagonal shape itself.
Applicant argues that Enderby’s hexagonal pad is purposely and specifically designed for breast therapy and Applicant’s disclosure specifically targets irregular surfaces including “spinal regions in the neck, back and lower lumbar, as well as knees, ankles, elbows, shoulder” which are fundamentally different anatomical applications requiring different geometries. However, this is not found to be persuasive. Enderby specifically teaches in paragraph [0010] that in “addition to applying soothing comfort to the breast and neck, the present invention comprise features that allow it to be worn around the waist to help ease discomfort from the pelvic and lower back areas with the application of heat and cold therapy.”
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1, 9-11 and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2015/0351956 A1 to Enderby (Enderby).
Regarding claim 1, Enderby teaches a non-invasive, non-surgical, medication free therapy system (title “Lactation Aid and Soothing Garment”) for application to a targeted body location including a neck, a back, a lower lumbar, a knee, and ankle, an elbow, and a shoulder of a user ([0010] which states “In addition to applying soothing comfort to the breast and neck, the present invention comprise features that allow it to be worn around the waist to help ease discomfort from the pelvic and lower back areas with the application of heat and cold therapy.”), the therapy system comprising a pouch (thermal management pads 210/220) having a first side (215 and a second side (225), the first side configured to for contact with the targeted body location ([0058 which states in part “a cooling fabric 215 that feels cool against a patient’s skin…a warming fabric 225 that feels warm against a patient’s skin…”)), each of the first and second sides having an inner surface (inherent in that [0058] states “The outer edges of the pad covers may be finished with a robust binding material 218…” and [0060] states “each pad cover…has an opening 260 through which a thermal insert 240, 250 can be inserted or removed.”), the inner surfaces of the first and second sides defining an internal cavity (inherent in that [0060] states “each pad cover…has an opening 260 through which a thermal insert 240, 250 can be inserted or removed.”), the pouch including a first wing segment (left side of the 210/220) and a second wing segment (right side of 210/220), each wing segment having a top side and a bottom side (Fig. 2), a cold temperature source (thermal insert 240/250) contained within the internal cavity and in direct an unmediated contact with the inner surfaces of the first and second sides ([0060] which states in part “each pad cover…has an opening through which a thermal insert 240, 250 can be inserted or removed.”), and one or more attachment straps (neck band 230) configured for attachment to the second side of the pouch and (Fig. 2) and further configured to position the therapy system adjacent to the targeted body location (Fig. 2), the one or more attachment straps still further configured for repeatable and removable attachment to the pouch and be secured across the first wing segment and the second wing segment (Fig. 2 as the strap spans at least a portion of both of the wing segments).
While the embodiment of Fig. 2 does not specifically teach a hexagonal cross-section, other embodiments (Figs. 51-56) of Enderby teach a number of differently shaped thermal management pads including a hexagonal shaped thermal management pad (5310) that includes a first wing segment (pointed side facing up in Fig. 53) forming a first angle (angle of point facing up in Fig. 53) and a second wing segment (pointed side facing down in Fig. 53) forming a second angle (angle of point facing down in Fig. 53) with the first and second angles being disposed directly across from each other (Fig. 53). It is asserted that it would have been obvious to one having ordinary skill in the prior art to have modified the shape of the thermal pad of Fig. 2 of Enderby with the hexagonal shape of Fig. 53 of Enderby, since such a modification would have involved a mere change in the form or shape which is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. It is noted that mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention and the fact that Applicant has recognized another advantage (i.e. the hexagonal shape assisting in concentrating the thermal therapy to a desired therapeutic location of the body) which would flow naturally following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. Here the hexagonal shape as disclosed by Enderby as an acceptable shape for the pouch would impart the same benefit as Applicant’s claimed hexagonal shape since the shape are the same and shape is what imparts the benefit.
While the hexagonal pouch (5310) of Enderby appears to show angles that are the same, the disclosure does not expressly teach that the angles are the same. It would have been obvious to one having ordinary skill in the art before the effective filing date to have made the angles the same, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art.
While the hexagonal pouch (5310) of Enderby has obtuse angles (see Fig. 53), the disclosure does not specifically teach the first and second angles each in an obtuse angle range of 130-170o, the obtuse angle range configured to enable the first wing segment and the second wing segment to conform to irregular body contours of the targeted body location while concentrating cold from the cold temperature source across wing segment surfaces to the targeted body location. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have selected an obtuse angle range of 130-170o, 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.
With respect to the cold temperature source permanently affixed within the internal cavity, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have permanently affixed the cold temperature source within the internal cavity, since it has been held that forming in one piece an article which has formerly been formed in two pieces and put together involves only routine skill in the art.
Regarding claim 9, Enderby teaches the system of claim 1 as well as that the attachment strap (neck band 230) allows for the distance of the thermal management pads in the long direction of the strap to be adjusted and that the attachment methods may be without limitation buttons, snaps, ties, hooks, clips, quick-release fasteners, zippers or magnets ([0056] and [0093]), but not specifically wherein the second side is a laminated structure formed from a polymeric film material having a plurality of dense loop structures on an outer surface. With respect to the hook structures, when using a hook and loop fastening mechanism as taught by Enderby, a side of each of the pieces being fastened together must have either a plurality of hooks or a plurality of loops. Therefore, it is asserted that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have located the necessary plurality of hooks and loops as desired, since it has been held that rearranging parts of an invention involves only routine skill in the art.
Regarding claim 10, Enderby teaches the system of claim 1 as well as that the attachment strap (neck band 230) allows for the distance of the thermal management pads in the long direction of the strap to be adjusted and that the attachment methods may be without limitation buttons, snaps, ties, hooks, clips, quick-release fasteners, zippers or magnets ([0056] and [0093]), but not specifically wherein the second side is a laminated structure formed from a polymeric film material having a plurality of dense loop structures on an outer surface. While, Enderby does not specifically teach buckles, it is asserted that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have selected a buckles as an obvious matter of engineering design choice.
Regarding claim 11, Enderby teaches a method of using a non-invasive, non-surgical, medication free therapy system (title “Lactation Aid and Soothing Garment”) for application to a targeted body location including a neck, a back, a lower lumbar, a knee, and ankle, an elbow, and a shoulder of a user ([0010] which states “In addition to applying soothing comfort to the breast and neck, the present invention comprise features that allow it to be worn around the waist to help ease discomfort from the pelvic and lower back areas with the application of heat and cold therapy.”), the method comprising forming ([0058]) a pouch (thermal management pads 210/220) having a first side (215 and a second side (225), the first side configured to for contact with the targeted body location ([0058 which states in part “a cooling fabric 215 that feels cool against a patient’s skin…a warming fabric 225 that feels warm against a patient’s skin…”)), each of the first and second sides having an inner surface (inherent in that [0058] states “The outer edges of the pad covers may be finished with a robust binding material 218…” and [0060] states “each pad cover…has an opening 260 through which a thermal insert 240, 250 can be inserted or removed.”), the inner surfaces of the first and second sides defining an internal cavity (inherent in that [0060] states “each pad cover…has an opening 260 through which a thermal insert 240, 250 can be inserted or removed.”), the pouch including a first wing segment (left side of the 210/220) and a second wing segment (right side of 210/220), each wing segment having a top side and a bottom side (Fig. 2), positioning ([0060]) a cold temperature source (thermal insert 240/250) contained within the internal cavity and in direct and unmediated contact with the inner surfaces of the first and second sides ([0060] which states in part “each pad cover…has an opening through which a thermal insert 240, 250 can be inserted or removed.”), and attaching one or more attachment straps (neck band 230) configured for attachment to the second side of the pouch and (Fig. 2), positioning the therapy system adjacent to the targeted body location (see for example Figs. 1 and 4a-7b), wrapping the target location (see for example Figs. 1 and 4a-7b) with the one or more attachment straps still further configured for repeatable and removable attachment to the pouch and be secured across the first wing segment and the second wing segment (Fig. 2 as the strap spans at least a portion of both of the wing segments).
While the embodiment of Fig. 2 does not specifically teach a hexagonal cross-section, other embodiments (Figs. 51-56) of Enderby teach a number of differently shaped thermal management pads including a hexagonal shaped pad (5310) that includes a first wing segment (pointed side facing up in Fig. 53.) forming a first angle (angle of point facing up in Fig. 53) and a second wing segment (pointed side facing down in Fig. 53) forming a second angle (angle of point facing down in Fig. 53) with the first and second angles being disposed directly across from each other (Fig. 53). It is asserted that it would have been obvious to one having ordinary skill in the prior art to have modified the shape of the thermal pad of Fig. 2 of Enderby with the hexagonal shape of Fig. 53 of Enderby, since such a modification would have involved a mere change in the form or shape which is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. It is noted that mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention and the fact that Applicant has recognized another advantage (i.e. the hexagonal shape assisting in concentrating the thermal therapy to a desired therapeutic location of the body) which would flow naturally following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. Here the hexagonal shape as disclosed by Enderby as an acceptable shape for the pouch would impart the same benefit as Applicant’s claimed hexagonal shape since the shape are the same and shape is what imparts the benefit.
While, the hexagonal pouch (5310) of Enderby appears to show angles that are the same, the disclosure does not expressly teach that the angles are the same. It would have been obvious to one having ordinary skill in the art before the effective filing date to have made the angles the same, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art.
While the hexagonal pouch (5310) of Enderby has obtuse angles (see Fig. 53), the disclosure does not specifically teach the first and second angles each in an obtuse angle range of 130-170o, the obtuse angle range configured to enable the first wing segment and the second wing segment to conform to irregular body contours of the targeted body location while concentrating cold from the cold temperature source across wing segment surfaces to the targeted body location. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have selected an obtuse angle range of 130-170o, 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.
With respect to the cold temperature source permanently affixed within the internal cavity, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have permanently affixed the cold temperature source within the internal cavity, since it has been held that forming in one piece an article which has formerly been formed in two pieces and put together involves only routine skill in the art.
Regarding claim 21, Enderby teaches the method of claim 11 as well as positioning the therapy system such that the first wing segment and the second wing segment are oriented to concentrate the cold temperature source toward a portion of the targeted body location (inherent in the placement of the device with the structure as taught by Enderby).
Claim(s) 3-6, 13-16, 23 and 24 is/are rejected under 35 U.S.C. 103 as being unpatentable over Enderby in view of US 2009/01257154 A1 to Hojbjerg et al. (Hojbjerg).
Regarding claim 3, Enderby teaches the therapy system of claim 1, but not wherein the first side is formed from a non-woven fabric based on a polymeric materials. Hojbjerg teaches an analogous system (title) to that of Enderby with a flexible cover that is made from a polymeric film, optionally covered with a non-woven material ([0013]). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Enderby with the material of Hojbjerg to obtain a contact face that is more comfortable to a user and to keep the total weight of the cover low as taught by Hojbjerg.
Regarding claim 4, the combination teaches the system of claim 3, but not wherein the polymeric film material is matte olefin alloy. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have utilized a matte olefin alloy, since 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 an obvious matter of engineering design choice.
Regarding claim 5, Enderby teaches the system of claim 1, as well as that the attachment strap (neck band 230) allows for the distance of the thermal management pads in the long direction of the strap to be adjusted and that the attachment methods may be without limitation buttons, snaps, ties, hooks, clips, quick-release fasteners, zippers or magnets ([0056] and [0093]), but not specifically wherein the second side is a laminated structure formed from a polymeric film material having a plurality of dense loop structures on an outer surface. Hojbjerg teaches an analogous system (title) to that of Enderby with a cover that is made from a polymeric film, optionally covered with a non-woven material ([0013]). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Enderby with the material of Hojbjerg to obtain a contact face that is more comfortable to a user and to keep the total weight of the cover low as taught by Hojbjerg.
With respect to the loop structures, when using a hook and loop fastening mechanism as taught by Enderby, a side of each of the pieces being fastened together must have either a plurality of hooks or a plurality of loops. Therefore, it is asserted that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have located the necessary plurality of hooks and loops as desired, since it has been held that rearranging parts of an invention involves only routine skill in the art.
Regarding claim 6, the combination teaches the system of claim 5, but not wherein the polymeric film material is matte olefin alloy. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have utilized a matte olefin alloy, since 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 an obvious matter of engineering design choice.
Regarding claim 13, Enderby teaches the method of claim 11, but not wherein the first side is formed from a non-woven fabric based on a polymeric materials. Hojbjerg teaches an analogous system (title) to that of Enderby with a flexible cover that is made from a polymeric film, optionally covered with a non-woven material ([0013]). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Enderby with the material of Hojbjerg to obtain a contact face that is more comfortable to a user and to keep the total weight of the cover low as taught by Hojbjerg.
Regarding claim 14, the combination teaches the method of claim 13, but not wherein the polymeric film material is matte olefin alloy. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have utilized a matte olefin alloy, since 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 an obvious matter of engineering design choice.
Regarding claim 15, Enderby teaches the method of claim 11, as well as that the attachment strap (neck band 230) allows for the distance of the thermal management pads in the long direction of the strap to be adjusted and that the attachment methods may be without limitation buttons, snaps, ties, hooks, clips, quick-release fasteners, zippers or magnets ([0056] and [0093]), but not specifically wherein the second side is a laminated structure formed from a polymeric film material having a plurality of dense loop structures on an outer surface. Hojbjerg teaches an analogous system (title) to that of Enderby with a cover that is made from a polymeric film, optionally covered with a non-woven material ([0013]). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Enderby with the material of Hojbjerg to obtain a contact face that is more comfortable to a user and to keep the total weight of the cover low as taught by Hojbjerg.
With respect to the loop structures, when using a hook and loop fastening mechanism as taught by Enderby, a side of each of the pieces being fastened together must have either a plurality of hooks or a plurality of loops. Therefore, it is asserted that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have located the necessary plurality of hooks and loops as desired, since it has been held that rearranging parts of an invention involves only routine skill in the art.
Regarding claim 16, the combination teaches the method of claim 15, but not wherein the polymeric film material is matte olefin alloy. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have utilized a matte olefin alloy, since 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 an obvious matter of engineering design choice.
Regarding claim 23, Enderby teaches the system of claim 1 as well as wherein the first side and the second side are coupled at a perimeter to form a circumferential seam (218) with a material that is touching the seam ([0058]), but not the second side covered by a laminated outer cover surface. Hojbjerg teaches an analogous system (title) to that of Enderby with a cover that is made from a polymeric film, optionally covered with a non-woven material ([0013]). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Enderby with the material of Hojbjerg to obtain a contact face that is more comfortable to a user and to keep the total weight of the cover low as taught by Hojbjerg.
Regarding claim 24, the combination teaches the system of claim 5 as well as Hojbjerg teaching wherein the plurality of dense loop structures extends continuously across substantially an entire outer surface of the second side (Hojbjerg teaches a cover that is made from a polymeric film that allows hooks to stick to the non-woven material, see [0042]).
Claim(s) 7, 8, 17 and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Enderby in view of US 2019/0282394 A1 to Abreu (Abreu).
Regarding claims 7, 8, 17 and 18, Enderby teaches the system of claim 1 and the method of claim 11, as well as that the cold temperature source (240, 250) can be a thermal gel ([0061]), but not wherein the cold temperature source is configured for freezing and thawing cycles or wherein the cold temperature source is a thermally reactive, gel-based fluid, and is formed from a combination of propylene glycol or equivalent, water and a thickening agent. Abreu teaches an analogous device to that of Enderby including a thermally retentive substance(36) that may include water or a mixture of water and a freezing point depressant such as, but not limited to, propylene glycol, glycerin, and mixtures thereof associated with other compounds such as sodium polyacrylate, benzoate of soda, hydroxybenzoate, and mixtures thereof, and a thickening agent ([0209]) and that the thermal source is configured for freezing and thawing cycles ([0210]). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Enderby to include the cold temperature source of Abreu, since 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.
Claim(s) 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Enderby in view Hojbjerg and Abreu.
Regarding claim 22, Enderby teaches a non-invasive, non-surgical, medication free therapy system (title “Lactation Aid and Soothing Garment”) for application to a targeted body location ([0010] which states “In addition to applying soothing comfort to the breast and neck, the present invention comprise features that allow it to be worn around the waist to help ease discomfort from the pelvic and lower back areas with the application of heat and cold therapy.”), the therapy system comprising a pouch (thermal management pads 210/220) having a first side (215 and a second side (225), the first side configured to for contact with the targeted body location ([0058 which states in part “a cooling fabric 215 that feels cool against a patient’s skin…a warming fabric 225 that feels warm against a patient’s skin…”)), each of the first and second sides having an inner surface (inherent in that [0058] states “The outer edges of the pad covers may be finished with a robust binding material 218…” and [0060] states “each pad cover…has an opening 260 through which a thermal insert 240, 250 can be inserted or removed.”), the inner surfaces of the first and second sides defining an internal cavity (inherent in that [0060] states “each pad cover…has an opening 260 through which a thermal insert 240, 250 can be inserted or removed.”), the pouch including a first wing segment (left side of the 210/220) and a second wing segment (right side of 210/220), each wing segment having a top side and a bottom side (Fig. 2), a cold temperature source (thermal insert 240/250) contained within the internal cavity and in direct an unmediated contact with the inner surfaces of the first and second sides ([0060] which states in part “each pad cover…has an opening through which a thermal insert 240, 250 can be inserted or removed.”), and one or more attachment straps (neck band 230) configured for attachment to the second side of the pouch and (Fig. 2) and further configured to position the therapy system adjacent to the targeted body location (Fig. 2), the one or more attachment straps still further configured for repeatable and removable attachment to the pouch and be secured across the first wing segment and the second wing segment (Fig. 2 as the strap spans at least a portion of both of the wing segments), the one or more attachment straps including opposing ends (Fig. 2) each having tabs (attachment portions of ends on 230 Fig. 2) with a member of the group consisting of a hook structure, a buckle, and combinations thereof ([0056] and [0093]).
While the embodiment of Fig. 2 does not specifically teach a hexagonal cross-section, other embodiments (Figs. 51-56) of Enderby teach a number of differently shaped thermal management pads including a hexagonal shaped pad (5310) that includes a first wing segment (pointed side facing up in Fig. 53.) forming a first angle (angle of point facing up in Fig. 53) and a second wing segment (pointed side facing down in Fig. 53) forming a second angle (angle of point facing down in Fig. 53) with the first and second angles being disposed directly across from each other (Fig. 53). It is asserted that it would have been obvious to one having ordinary skill in the prior art to have modified the shape of the thermal pad of Fig. 2 of Enderby with the hexagonal shape of Fig. 53 of Enderby, since such a modification would have involved a mere change in the form or shape which is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. It is noted that mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention and the fact that Applicant has recognized another advantage (i.e. the hexagonal shape assisting in concentrating the thermal therapy to a desired therapeutic location of the body) which would flow naturally following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. Here the hexagonal shape as disclosed by Enderby as an acceptable shape for the pouch would impart the same benefit as Applicant’s claimed hexagonal shape since the shape are the same and shape is what imparts the benefit.
While, the hexagonal pouch (5310) of Enderby appears to show angles that are the same, the disclosure does not expressly teach that the angles are the same. It would have been obvious to one having ordinary skill in the art before the effective filing date to have made the angles the same, since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art.
While the hexagonal pouch (5310) of Enderby has obtuse angles (see Fig. 53), the disclosure does not specifically teach the first and second angles each in an obtuse angle range of 130-170o, the obtuse angle range configured to enable the first wing segment and the second wing segment to conform to irregular body contours of the targeted body location while concentrating cold from the cold temperature source across wing segment surfaces to the targeted body location. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have selected an obtuse angle range of 130-170o, 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.
With respect to the cold temperature source permanently affixed within the internal cavity, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have permanently affixed the cold temperature source within the internal cavity, since it has been held that forming in one piece an article which has formerly been formed in two pieces and put together involves only routine skill in the art.
Additionally, Enderby does not teach the first side is formed from a non-woven fabric based on a polymeric film material including a matte olefin alloy, the second being a laminated structure formed from a polymeric film material having a plurality of dense loop structures on an outer surface, or the cold temperature source being formed from a combination of propylene glycol or equivalent, water, and a thickening agent, the cold temperature source configured for freezing and thawing cycles.
Hojbjerg teaches an analogous system (title) to that of Enderby with a flexible cover that is made from a polymeric film, optionally covered with a non-woven material ([0013]). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Enderby with the material of Hojbjerg to obtain a contact face that is more comfortable to a user and to keep the total weight of the cover low as taught by Hojbjerg.
While Enderby teaches that the attachment strap (neck band 230) allows for the distance of the thermal management pads in the long direction of the strap to be adjusted and that the attachment methods may be without limitation buttons, snaps, ties, hooks, clips, quick-release fasteners, zippers or magnets ([0056] and [0093]), but not specifically the second side having a plurality of dense loop structures on an outer surface. With respect to the loop structures, when using a hook and loop fastening mechanism as taught by Enderby, a side of each of the pieces being fastened together must have either a plurality of hooks or a plurality of loops. Therefore, it is asserted that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have located the necessary plurality of hooks and loops as desired, since it has been held that rearranging parts of an invention involves only routine skill in the art.
Abreu teaches an analogous device to that of Enderby including a thermally retentive substance (36) that may include water or a mixture of water and a freezing point depressant such as, but not limited to, propylene glycol, glycerin, and mixtures thereof associated with other compounds such as sodium polyacrylate, benzoate of soda, hydroxybenzoate, and mixtures thereof, and a thickening agent ([0209]) and that the thermal source is configured for freezing and thawing cycles ([0210]). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Enderby to include the cold temperature source of Abreu, since 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.
Conclusion
Applicant's amendment necessitated any 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 KAITLYN E SMITH whose telephone number is (571)270-5845. The examiner can normally be reached Monday-Friday 9am-5pm.
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/KAITLYN E SMITH/Primary Examiner, Art Unit 3794