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 .
Election/Restrictions
Claims 8-19 withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected species and method, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 2/2/2026. The election/restriction requirement remains in place because there are two inventions—an undergarment with zero mention of specific use during sexual intercourse but just an undergarment with an insert to cover the anus for fecal incontinence and a method for using an undergarment during sexual activity involving steps of engaging in such activity. The subject matters diverge in both subject matter and status in the art. Furthermore, the undergarment has two species that structurally differ. One species wears at a typical undergarment with a full panel that covers the entire torso except for a designated aperture for the front genitals. The other species is a harness composed of straps with one triangular strip of fabric for the backside, unlike a typical undergarment. Searching for the method and both species creates a search burden because the species or groupings of patentably indistinct species have acquired a separate status in the art in view of their different classification, the species or groupings of patentably indistinct species have acquired a separate status in the art due to their recognized divergent subject matter, the species or groupings of patentably indistinct species require a different field of search (e.g., searching different classes /subclasses or electronic resources, or employing different search strategies or search queries).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Allen (US 7104976 B1) in view of LaVon et al. (US 20140005628 A1, hereafter “LaVon”) and Thrower (US 4759355 A).
Regarding claim 1, Allen discloses a fecal incontinence undergarment (10) comprising a waistband defining a torso aperture (A, annotated fig. 1) for a user’s torso; a front panel (B, annotated fig. 1) extending from the torso aperture to each leg aperture (C, annotated fig. 1); a back panel (D, annotated fig. 1) covering the user’s anus and intergluteal cleft (annotated fig. 1); wherein the undergarment is configured to be worn by the user like underwear (annotated fig. 1).
However, Allen fails to disclose elastic waistband and elastic loops with greater elasticity than said elastic waistband defining leg apertures for each of the user’s legs.
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LaVon teaches elastic waistband (30, para. [0036]) and elastic loops (38, 39, fig. 2, para. [0049]) with greater elasticity (para. [0049]) than said elastic waistband defining leg apertures (para. [0038]) for each of the user’s legs (para. [0039, 0040, 0049]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have been modified the waistband and leg aperture bands of Allen to be elastic as shown in LaVon to create a fit snugness and impart differing stretch and force characteristics based on the need of the article (para. [0049]).
However, the combination of Allen and LaVon fails to disclose the front panel containing a genital aperture positioned over the user’s genitals which allows the user’s genitals to pass through to the exterior of the undergarment.
Thrower teaches the front panel containing a genital aperture (24) positioned over the user’s genitals which allows the user’s genitals to pass through to the exterior of the undergarment (figs. 1-2, column 4 lines 3-6).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the undergarment of Allen and incorporate the frontal genital aperture of Thrower to increase comfort, allow for air circulation, and provide maximum free body movement (column 1 line 58 – column 2 line 16).
Regarding claim 2, the combination of Allen, LaVon, and Thrower discloses the undergarment of claim 1. Allen further discloses a patch (12) on the interior of the undergarment (10) that is flexible (see resting flat state of the patch in fig. 3 and its curved state during use in fig. 1) and nonpermeable (bottom layer 30 is impermeable, column 7 lines 17-20), tapering in width towards the bottom of the patch (see thinner arms 16, fig. 2), wherein the patch is positioned over the user’s anus (rear zone 14 is placed around the buttocks area, column 4 lines 57-60).
However, Allen fails to expressly disclose wherein the patch spans in width from a midpoint of the user’s left buttock to a midpoint of the user’s right buttock, spanning in length from a point above the user’s anus and below the highest point of the user’s intergluteal cleft to a point below the anus.
While Allen’s figures may not be to scale, one skilled in the art would still find it obvious to first follow the dimensions as suggested by the figures in order to create the intended article. By doing so, one is likely to arrive at a workable width and length that falls within the claimed parameters through routine experimentation.
Regarding claim 3, the combination of Allen, LaVon, and Thrower discloses the undergarment of claim 1. Allen further discloses a guard (12) that is removable (column 6 lines 4-5), flexible (see resting flat state of the guard in fig. 3 and its curved state during use in fig. 1), nonpermeable (bottom layer 30 is impermeable, column 7 lines 17-20), devoid of sharp corners or edges (figs. 1 and 2); tapering in width towards the bottom of the guard (see thinner arms 16, fig. 2), wherein the guard is positioned over the user’s anus between the user and the interior of the undergarment (rear zone 14 is placed around the buttocks area, column 4 lines 57-60, figs. 1 and 2).
However, Allen fails to expressly disclose wherein the patch spans in width from a midpoint of the user’s left buttock to a midpoint of the user’s right buttock, spanning in length from a point above the user’s anus and below the highest point of the user’s intergluteal cleft to a point below the anus.
While Allen’s figures may not be to scale, one skilled in the art would still find it obvious to first follow the dimensions as suggested by the figures in order to create the intended article. By doing so, one is likely to arrive at a workable width and length that falls within the claimed parameters through routine experimentation.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Allen (US 7104976 B1) in view of LaVon (US 20140005628 A1), Thrower (US 4759355 A), and in further view of Gagnon (US 5217447 A).
The combination of Allen, LaVon, and Thrower discloses the undergarment of claim 3. However, Allen fails to disclose fasteners on the garment-facing side of the guard and corresponding fasteners on the interior face of the back panel of the undergarment, wherein the fasteners on the guard are capable of interfacing with the fasteners on the garment to form a physical connection.
Gagnon teaches fasteners (30 and 32) on the garment-facing side (fig. 1) of the guard (12) and corresponding fasteners (34 and 36) on the interior face of the back panel of the undergarment (18), wherein the fasteners on the guard are capable of interfacing with the fasteners on the garment to form a physical connection (column 4 lines 18-25).
The substitution of one known element (a hoist holding the pad lowered into the undergarment as shown in Allen) for another known element (snap fasteners as shown in Gagnon) would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention since the substitution of the fastening mechanism would have yielded predictable results, namely, holding the insert in place. MPEP 2143 A-C.
Claim(s) 5-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Allen (US 7104976 B1) in view of LaVon (US 20140005628 A1), Thrower (US 4759355 A), and in further view of Schoendorf (US 2486499 A).
Regarding claims 5 and 6, the combination of Allen, LaVon, and Thrower discloses the undergarment of claims 1 and 3. However, Allen fails to disclose:
(Claim 5) a strip of fabric affixed to the interior of the garment, under the user’s perineum, between the front panel and back panel of the garment;
(Claim 6) a strip of fabric affixed to the interior of the garment, under the user’s perineum, between the front panel and back panel of the garment.
Schoendorf teaches an undergarment with:
(Claim 5) a strip (19) of fabric affixed to the interior of the garment (fig. 3), under the user’s perineum, between the front panel (fig. 1) and back panel (fig. 2) of the garment (column 1 lines 28-33, column 3 lines 17-18);
(Claim 6) a strip (19) of fabric affixed to the interior of the garment (fig. 3), under the user’s perineum, between the front panel (fig. 1) and back panel (fig. 2) of the garment.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the undergarment of Allen and incorporate the fabric of Schoendorf to give more seat room and increase comfort (column 1 lines 21-27).
Allowable Subject Matter
Claim 7 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: no prior art could be found that discloses an undergarment with a fabric strip between 10 mm and 25 mm that is affixed to the interior of the garment under the user’s perineum. Simply put, an undergarment could not be found that discloses a thick piece of fabric at the gusset of an article and without such a teaching, it would not have been obvious to modify the thickness of the double fabric layer of Schoendorf to a thickness outside of a typical range. Neither Allen, LaVon, Thrower, nor Gagnon disclose such a thickness of fabric at any area of the undergarment. Altering the thickness without a reference would likely be relying on hindsight without a clear motivation to make such a modification.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIN A KIM whose telephone number is (703)756-4738. The examiner can normally be reached Monday - Friday 8:00 am - 5:00 pm (EST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Rebecca Eisenberg can be reached at (571) 270-5879. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERIN A KIM/Examiner, Art Unit 3781
/SUSAN S SU/Primary Examiner, Art Unit 3781 20 February 2026