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
Applicant’s amendment filed on 7/7/2026 has been received; Claims 1-10, 12, 15-17, 19-23 & 25 are pending.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-10, 12, 15-17, & 19-23 are rejected under 35 U.S.C. 103 as being unpatentable over Otashevich (US 2019/0320747) in view of Stern (USPN 1,458,632).
Regarding Claim 1, Ostashevich disclose an article of apparel (Figures 1-3, 8 & 9), comprising: a lower garment (400) with a lightweight and breathable construction (Para. 8 & 29), the lower garment comprising: an outer layer (399, 499, 412, 512) configured as a main fabric for the lower garment (Figures 1-3, 8 & 9), the main fabric having a first side facing externally and a second side facing inwardly towards a subject's body (Figures 1-3, 8 & 9); an internal construction (402 & 404) comprising a plurality of inner layers disposed between the outer layer and the subject's body (Figures 1-3, 8 & 9); and one or more pockets (Para. 9 & 28) comprising one of more front pockets (Figures 8 & 10), wherein the plurality of inner layers comprises a modesty panel (402 & 404), wherein the modesty panel comprises a non-compressive panel that conceals a shape or a profile of a select portion of the subject's body (Para. 8 & 29), wherein the non-compressive panel extends continuously across a front facing portion of the lower garment from an inseam region of the lower garment to a left side seam region (Figures 1-3) and a right side seam region of the lower garment (Figures 1-3), wherein the modesty panel forms a first side of the one or more front pockets (Para. 9 & 34, Figures 8 & 10). Otashevich does not specifically disclose another layer of the plurality of inner layers are configured to extend between the modesty panel and the outer layer to form a second side of the one or more front pockets. However, Otashevich discloses another layer (414/412 or 514/516) corresponding to a different panel within the internal construction of the lower garment (Figures 3 & 5) and Stern discloses the use of a layer of a plurality of inner layers to form various sides of one or more pockets (Figures 1-3). It would have been obvious to one of ordinary skill in the art to use the construction of another layer and pockets, as taught by Otashevich and Stern using inner layers to form pockets to the apparel of Otashevich, in order to provide strength, additional support and prevent wrinkling. Therefore, the combination of Otashevich and Stern disclose the first and second sides of the front pockets are stitched together to form one or more pocket bags (Otashevich, Figures 1-3 & Stern, Figures 1-3). Ostashevich discloses various material made be used for the modestly panel and main fabric or outer layer (Para. 29) Ostashevich does not specifically disclose wherein the modesty panel is partially visible through the main fabric or the outer layer. However, It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the material of the layers as claimed, since it is well 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. Also, such a modification would be considered a mere choice of preferred material that is on the basis of its suitability for the intended use.
Regarding Claim 2, the combination of Otashevich and Stern disclose an upper portion of the modesty panel is finished at a waist band seam of the lower garment (Otashevich, Figure 1).
Regarding Claim 3, the combination of Otashevich and Stern disclose one or more side portions of the modesty panel are finished at the left or right side seam regions of the lower garment (Otashevich, Figure 1).
Regarding Claim 4, the combination of Otashevich and Stern disclose a lower portion of the modesty panel is finished at the inseam region of the lower garment (Otashevich, Figure 1).
Regarding Claim 5, the combination of Otashevich and Stern disclose a bottom edge of the modesty panel is detached from the outer layer of the lower garment and/or one or more inner layers of the lower garment (Otashevich, Figure 1 & Para. 30).
Regarding Claim 6, the combination of Otashevich and Stern disclose the bottom edge extends between (i) the inseam region of the lower garment and (ii) the left and right side seam regions of the lower garment (Otashevich, Figure 1).
Regarding Claim 7, the combination of Otashevich and Stern disclose the bottom edge of the modesty panel is independently movable or repositionable relative to the outer layer of the lower garment and/or one or more inner layers of the lower garment (Otashevich, Figure 1 & Para. 30).
Regarding Claim 8, the combination of Otashevich and Stern disclose one or more side portions of the modesty panel have a fixed position or orientation relative to the outer layer of the lower garment and/or the one or more inner layers of the lower garment (Otashevich, Figure 1).
Regarding Claim 9, the combination of Otashevich and Stern disclose the modesty panel comprises a multi-functional layer that covers the select portion of the subject's body without extending around or across a back or rear facing portion of the lower garment (Ostashevich, Figure 1 & Para. 26, 29 & 30).
Regarding Claim 10, the combination of Otashevich and Stern do not specifically disclose the non-compressive material comprises a mesh material and wherein the main fabric comprises a ripstop material. It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the material of the non-compressive material and the main fabric as claimed, since it is well 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. Also, such a modification would be considered a mere choice of preferred material that is on the basis of its suitability for the intended use. In other words, using a mesh material and a ripstop material would have been an "obvious to try" approach because the use of such a material that is not of innovation but of ordinary skill and common sense.
Regarding Claim 12, the combination of Otashevich and Stern do not specifically disclose the mesh material is lighter than the ripstop material of the main fabric. It, however, would have been obvious to one having ordinary skill in the art before the effective filing date to experiment with different mesh material in order to achieve an optimal configuration for the purpose of desired comfort, since discovering the optimum or workable ranges of the weight involves only routine skill in the art.
Regarding Claim 15, the combination of Otashevich and Stern disclose the modesty panel has a different stretchability or drapeability than the main fabric (Otashevich, Para. 8 & 29).
Regarding Claim 16, the combination of Otashevich and Stern do not specifically disclose the modesty panel has a greater thickness than the main fabric. It, however, would have been obvious to one having ordinary skill in the art before the effective filing date to experiment with different ranges of thickness for the material in order to achieve an optimal configuration for the purpose of desired comfort, since discovering the optimum or workable ranges of the weight involves only routine skill in the art.
Regarding Claim 17, the combination of Otashevich and Stern disclose the main fabric comprises a plurality of strands or fibers that are knit or woven to form the outer layer (Para. 8 & 29), wherein the outer layer comprises a plurality of openings formed between the knit or woven strands or fibers (Para. 8 & 29). The combination of Otashevich and Stern do not specifically disclose the openings having a maximum dimension of at most about ¾ of an inch or less. However, any knit or woven fabric has small openings due to the construction of the fabric itself. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date that the material would have openings smaller than an inch.
Regarding Claim 19, the combination of Otashevich and Stern disclose the modesty panel and the main fabric collectively form a fully opaque construction restricting a visibility of the select portion of the subject's body (Para. 29).
Regarding Claim 20, the combination of Otashevich and Stern disclose the one or more pockets include a primary pocket with a primary pocket bag and a secondary pocket with a secondary pocket bag, wherein the secondary pocket bag is provided inside or within the primary pocket (Otashevich, Figures 1-3 & Stern, Figures 1-3).
Regarding Claim 21, the combination of Otashevich and Stern disclose the modesty panel comprises a surface that is common to the primary pocket bag and the secondary pocket bag (as modified, Figures 1-3 & Stern, Figures 1-3).
Regarding Claim 22, the combination of Otashevich and Stern disclose the main fabric comprises a non-elastic or substantially inelastic material that resists stretching or expansion in one or more directions (Ostashevich, Para. 29).
Regarding Claim 23, the combination of Otashevich and Stern do not specifically disclose the modesty panel has a same stretchability or drapeability as the main fabric. It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the material of the panel and fabric as claimed, since it is well 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. Also, such a modification would be considered a mere choice of preferred material that is on the basis of its suitability for the intended use. In other words, using the same type of material would have been an "obvious to try" approach because the use of such a material that is not of innovation but of ordinary skill and common sense.
Claim 24 is rejected under 35 U.S.C. 103 as being unpatentable over Otashevich (US 2019/0320747) in view of Stern (USPN 1,458,632) in further view of Kiuchi (US 2019/0320737).
Regarding Claim 24, the combination of Otashevich and Stern do not specifically disclose comprising one or more gussets extending along a lower portion of the modesty panel, wherein the one or more gussets have a different stretchability than the modesty panel wherein the plurality of gussets comprise a first gusset and a second gusset that is separate from the first gusset, wherein the first gusset is disposed along a left side of an upper inseam region of the lower garment and wherein the second gusset is disposed along a right side of the upper inseam region of the lower garment. However, Kiuchi discloses a gusset (Para. 29) having a stretchability (Para. 29) which can be a first gusset and second gusset (two or more layers). It would have been obvious to one of ordinary skill in the art before the effective filing date to include a gusset, as taught by Kiuchi, to the garment of Otashevich, in order to provide comfort, prevent leaks and allow performance fabric for functionality. Therefore, as modified the one or more gussets extends along a lower portion of the modesty panel, wherein the one or more gussets has a different stretchability than the modesty panel; wherein the plurality of gussets comprise a first gusset and a second gusset that is separate from the first gusset, wherein the first gusset is disposed along a left side of an upper inseam region of the lower garment and wherein the second gusset is disposed along a right side of the upper inseam region of the lower garment (as modified, each gusset is disposed as claimed).
Response to Arguments
Applicant’s arguments with respect to the amended claims have been fully considered but are moot in view of the new grounds of rejection as discussed supra.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHARINE KANE whose telephone number is (571)272-3398. The examiner can normally be reached Mon-Fri 9am-6pm EST.
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/KATHARINE G KANE/ Primary Examiner, Art Unit 3732
