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
This is in response to amendment received on 09/11/25. Claims 1, 2, 8-10 have been amended and claims 21-35 were newly added.
Election/Restrictions
Newly submitted claims 24, 31 and 35 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons:
Claim 24 is directed to the foam panels being attached in a pocket, the originally elected and examined claims required the foam panels to be located between panels of the pants/short and the layers attached via fusing, molding, stitching or adhering.
Claim 31 is directed to detachable pants and or outer shorts/pants from the waistband, the originally presented and examined claims did not require a any detachable portion from the waistband.
Claim 35 is directed to a method of use, while the originally presented and examined claims were directed to apparatus claims and did not require the method steps as of use as required by claim 35.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 24, 31 and 35 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, each set comprising more than one foam panels on the side of the shorts or pants of claims 1 and 2 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, each foam panel being integrated between two fabric layers of the shorts or pants portion of claim 8 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the tessellated shapes being triangles, squares, pentagons, and hexagons of claim 9 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the foam being omitted along a vertical region to facilitate folding of claim 10 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the foam panel thickness decreasing from the hip toward the knee or lower leg or visa versa of claim 21 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the more than one foam panel that is wider at the upper end than the lower end of claim 23 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because the abstract repeats the title. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
The use of the term VELCRO in paragraphs 0031, 0036 and 0047, which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be entirely capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: support needs to be provided for “pair of foam panel sets” as found in claims 1 and 2.
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: support for “foam panel set on one side of the shorts or pants portion is arranged in a manner that is…substantially similar” as found in claims 1 and 2.
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: support needs to be provided for “the pair of foam sets being dimensioned and positioned such that buoyant force is concentrated on the lateral sides of the wearer’s lower torso and legs relative to other regions to create a laterally displaced buoyancy distribution” as found in claims 1 and 2.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1 and 2 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. There was no support in the originally filed disclosure for “thereby generating a righting torque that rotates the wearer’s body toward a hydrodynamically stable position when immersed in water”.
Claim 9 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. There was no support in the originally filed disclosure for the panel sets segmented into tessellated circles, ellipses, ovals, rectangles, trapezoids, heptagons and octagons. Further, there was no support in the originally filed disclosure for the tessellated shapes being varied.
Claim 10 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. There was no support in the originally filed disclosure for the foam is reduced of compressed along a vertical region corresponding to an outseam and facilitating folding of the garment.
Claim 24 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. There was no support in the originally filed disclosure for the pockets to received the foam pads.
Claim 25 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. There was no support in the originally filed disclosure for “the close-fitting shorts or pants portion comprise an elastic material configured to press the foam panels against the wearer’ body, thereby minimizing hydrodynamic drag and shifting or flapping of the foam panels during swimming.
Claim 27 rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. There was no support in the originally filed disclosure for the perforations of the foam pads.
Claim 28 rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. There was no support in the originally filed disclosure for “the close-fitting shorts portion comprises a seamless or seam-reducing knit construction configured to reduce chafing or hydrodynamic drag.
Claim 29 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. There was no support in the originally filed disclosure for “wherein the pair of foam panel sets is configured to assist the wearer in maintaining a streamlined, horizontal posture during freestyle or backstroke swimming and to resist lateral roll of the hips by creating rotation restoring force in response to asymmetric submersion.
Claim 30 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. There was no support in the originally filed disclosure for “wherein one or more foam panels includes channels configured to enhance drainage or reduce hydrodynamic drag”.
Claim 31 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. There was no support in the originally filed disclosure for “wherein either the close-fitting shorts or pants portion or the outer shorts or shirt is detachably secured to the waistband, such that the selected portion can be removed from or reattached to the garment as a unit”.
Claim 32 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. There was no support in the originally filed disclosure for “wherein the outer shorts of skirt portion is made of a flexible, water-resistant material and is configured to form a smooth outer surface over the close-fitting shorts or pants portion and the pair of foam panel sets to reduce hydrodynamic drag”.
Claim 33 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. There was no support in the originally filed disclosure for the slits in the outer shorts or skirt.
Any remaining claims are rejected depending from a rejected base claim.
Claim Rejections – 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-2, 8-10, 21-23, 25-30 and 32-34 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
In regard to claims 1 and 2, it is unclear what pair of foam panel sets is, or would require structurally. The specification is silent as to what the sets are or what they would include. It is unclear what is required to read on the limitation.
In regard to claims 1 and 2, it is unclear what the upper thigh to the ankle is referring to, the user’s leg or the shorts/pants structure. Further, there is a lack of antecedent basis for these limitations in the claims.
Claims 1 and 2 recite the limitation “the outer lateral side”. There is insufficient antecedent basis for this limitation in the claim.
Claims 1 and 2 recite the limitation “the opposite side”. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 recites the limitation “the securing method”. There is insufficient antecedent basis for this limitation in the claim.
Claim 21 recites the limitation “the thickness of the foam panels”. There is insufficient antecedent basis for this limitation in the claim.
In regard to claim 22, it is unclear how the structure of the foam pad extends in relation o to the garment, since human anatomy is claimed and not garment structure.
Claim 23 recites the limitations “the hip region”, “the knee region”, “the upper and lower edges”. There is insufficient antecedent basis for these limitations in the claim.
Claim 26 recites the limitation “the buoyant force”. There is insufficient antecedent basis for this limitation in the claim.
In regard to claim 29, it is unclear what foam panel set structure is required to read on the limitation to resist lateral roll.
Claim 34 recites the limitation “the entirety”. There is insufficient antecedent basis for this limitation in the claim.
Any remaining claims are rejected depending from a rejected base claim.
Claim Rejections – 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claim 22 is rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals – Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101). The foam pads extend along a user’s body anatomy. The language “when worn”, “configured to”, “adapted to”, or other similar language and detailing how the foam panel sets extend along the garment would be ways to overcome positively reciting human anatomy.
Claim Rejections – 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 8-10, 22-23, and 26-30 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mann (US 5,452,477).
In regard to claim 1, Mann teaches a lower-body swimming garment (figure 7), comprising: a waistband (see waistband of figures 6 or 7); a close-fitting shorts or pants portion (column 1, lines 21-23), coupled to and extending downward from the waistband formed from a stretchable fabric (see figure 6 or 7, column 1, lines 21-23, lines 56-61 and column 4, lines 42-43), and is configured to cover a wearer’s lower torso and at least part of a wearer’s legs (see figures 6 or figure 7), including configurations such as shorts or pants extending to any length from the upper tight to the ankle (see figures 6 and 7); and a pair of foam panel sets foam (column 1, lines 66-67 through column 2, lines 1-12, see figure 6 and figure 7); each set comprising one or more low density, flexible or semi-flexible, closed-cell foam panels secured to or integrated with a respective side of the shorts or pants portion, including at least a portion of the outer lateral side (see figures 6 and 7), wherein the foam panel set on one side of the shorts or pants portion is arranged in a manner that is identical or substantially similar to the foam panel set on the opposite side (see figures 6 and 7, column 3, lines 4-12), the pair of foam panel sets being dimensioned and positioned such that buoyant force is concentrated on the lateral sides of the wearer’s lower torso and legs relative to other regions to create a laterally displaced buoyancy distribution (no additional structure is required by this limitations, Mann teaches all of the claimed locational foam regions on the lateral sides of the garment (see figure 6 and 7), thereby generating a righting torque that rotates the wearer’s body toward a hydrodynamically stable positioned when immersed in water (no additional structure is required by this limitation, Mann teaches all the required structure and would therefore be capable of performing on some user in some water conditions).
In regard to claim 8, Mann teaches in each foam panel is integrated between two fabric layers of the close-fitting shorts or pants portion, and wherein the foam panels in each set are held in position by a securing method applied to the foam panels or the fabric layers, the securing method including stitching, adhesive, heat pressing, or combinations thereof (column 2, lines 4-25).
In regard to claim 9, Mann teaches in which the closed-cell foam panel sets are segmented into a plurality of smaller sections formed as tessellated shapes, the shapes being identical or varied and including, but not limited to circles, ellipses, ovals, triangles, squares, rectangles, diamonds, trapezoids, pentagons, hexagons, heptagons and octagons (column 2, lines 26-32).
In regard to claim 10, Mann teaches in which the is omitted, reduced, or compressed along a vertical region of the close-fitting shorts or pants portion that corresponds to an outseam, thereby facilitating folding of the garment along that region (see figure 7).
In regard to claim 22, Mann teaches wherein the foam panels in each set extend longitudinally along the outer side of the leg from approximately the hip region to the knee region, cover a substantial portion of the outer thigh, and extend partially toward both the front and rear portions of the thigh (see figures 6 or 7).
In regard to claim 23, Mann teaches wherein each foam panel set is made up of one or more foam panels that together define a shape having a narrower upper edge near the hip region and a wider lower edge near the knee region, with angled lateral sides extending between the upper and lower edges (see figure 6).
In regard to claim 25, Mann teaches wherein the close-fitting shorts or pants portion comprises an elastic material configured to press the foam panels against the wearer's body, thereby minimizing hydrodynamic drag and shifting or flapping of the foam panels during swimming (column 2, lines 4-11).
In regard to claim 26, Mann teaches wherein the concentration of the buoyant force on the lateral sides of the wearer's hips and thighs, relative to other regions of the garment, is achieved by at least one of:(i) increasing the thickness of the foam panels in each foam panel set along the lateral sides;(ii) increasing the surface area coverage of the foam panels in each foam panel set along the lateral sides (see figures 6 or 7);(iii) decreasing the density-to-volume ratio of the foam panels in each foam panel set along the lateral sides;(iv) adding one or more foam layers to the foam panels in each foam panel set along the lateral sides; or (v) positioning the foam panels in each foam panel set in a lateral offset arrangement.
In regard to claim 27, Mann teaches wherein one or more of the foam panels includes one or more perforations extending therethrough to facilitate water drainage, enhance breathability, or reduce hydrodynamic drag (column 2, lines 4-11).
In regard to claim 28, Mann teaches wherein the close-fitting shorts portion comprises a seamless or seam-reducing knit construction configured to reduce chafing or hydrodynamic drag (see figure 7).
In regard to claim 29, Mann teaches wherein the pair of foam panel sets is configured to assist the wearer in maintaining a streamlined, horizontal posture during freestyle or backstroke swimming and to resist lateral roll of the hips by creating rotational restoring force in response to asymmetric submersion (see figure 6 and 7 and column 1, lines 21-25).
In regard to claim 30, Mann teaches wherein one or more foam panels includes channels configured to enhance drainage or reduce hydrodynamic drag (column 2, lines 4-11, stitching forms channels).
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.
Claim(s) 2 and 32-34 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mann (US 5,452,477) in view of Peck et al. (US 8,966,667).
In regard to claim 2, Mann teaches a lower-body swimming garment (figure 7), comprising: a waistband (see waistband of figures 6 or 7); a close-fitting shorts or pants portion (column 1, lines 21-23), coupled to and extending downward from the waistband formed from a stretchable fabric (see figure 6 or 7, column 1, lines 21-23, lines 56-61 and column 4, lines 42-43), and is configured to cover a wearer’s lower torso and at least part of a wearer’s legs (see figures 6 or figure 7), including configurations such as shorts or pants extending to any length from the upper tight to the ankle (see figures 6 and 7); and a pair of foam panel sets foam (column 1, lines 66-67 through column 2, lines 1-12, see figure 6 and figure 7); each set comprising one or more low density, flexible or semi-flexible, closed-cell foam panels secured to or integrated with a respective side of the shorts or pants portion, including at least a portion of the outer lateral side (see figures 6 and 7), wherein the foam panel set on one side of the shorts or pants portion is arranged in a manner that is identical or substantially similar to the foam panel set on the opposite side (see figures 6 and 7, column 3, lines 4-12), the pair of foam panel sets being dimensioned and positioned such that buoyant force is concentrated on the lateral sides of the wearer’s lower torso and legs relative to other regions to create a laterally displaced buoyancy distribution (no additional structure is required by this limitations, Mann teaches all of the claimed locational foam regions on the lateral sides of the garment (see figure 6 and 7), thereby generating a righting torque that rotates the wearer’s body toward a hydrodynamically stable positioned when immersed in water (no additional structure is required by this limitation, Mann teaches all the required structure and would therefore be capable of performing on some user in some water conditions).
However, Mann fails to teach an outer shorts or skirt portion coupled to, and extending down from, the waistband formed from fabric, and configured to at least partially cover the close-fitting shorts or pants portion and to visually obscure at least part of one of the foam panel sets.
In regard to claim 2, Peck et al. teaches further comprising a shorts or skirt portion coupled to and extending down from, the waistband and formed from fabric (swim trunks or board shorts: column 3, lines 3-21, outer short: 20) (column 5, lines 25-34), and is configured to at least partically cover the close-fitting the shorts or pants portion and to visually obscure at least a part of the one close-fitting shorts lateral sides (see figures and column 4,lines 24-32).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the swim garment of Mann with the outer short layer as taught by Peck et al., since the swim garment of Mann having an outer short layer would provide a swim garment that has two layers, one that is more form fitting and one that is looser which provides modesty and protection to the inner layer and covers the foam sets so that they are not visible to onlookers.
In regard to claim 32, the combined references teach wherein the outer shorts or skirt portion is made of a flexible, water-resistant material and is configured to form a smooth outer surface over the close-fitting shorts or pants portion and the pair of foam panel sets to reduce hydrodynamic drag (Peck et al.: column 4, lines 14-21).
In regard to claim 33, the combined references teach wherein the outer shorts or skirt portion includes one or more vents, slits, or mesh panels to enhance mobility or drainage (Peck et al.: column 8, lines 20-31).
In regard to claim 34, the combined references teach wherein the outer shorts or skirt portion is configured to visually obscure the entirety of the close-fitting shorts or pants portion and the pair of foam panel sets when the garment is worn (peck et al.: see figures 1 and 2, which would obscure the foam sets on the close-fitting short of Mann).
Claim(s) 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mann (US 5,452,477) in view of Rhea (US 4,291,427).
Mann fails to teach the thickness of the panel decreasing from the hips towards the knee or lower leg.
In regard to claim 21, Rhea teaches a foam buoyancy pad wherein the thickness of the foam panels in each set decreases from the hip toward the knee or lower leg, or vice versa, to control buoyancy distribution along the vertical axis of the wearer's leg (see figure 3).
It would have been obvious to one having ordinary skill in the art before the effective filing date to have provided the thickness of the foam pad of Mann with the decreased thickness from the from the hip toward the knee as taught by Rhea, since the pad having decrease thickness in a downward direction would provide a more flexible swimwear garment and less bulk along pads to keep them more streamlined with the garment.
Response to Arguments
Applicant's arguments filed 09/11/25 have been fully considered but they are not persuasive.
Applicant remarks that Mann fails to teach the pads being capable of generating a righting torque that rotates the wearer’s body toward a hydrodynamically stable position when immersed in water as amended into independent claims 1 and 2.
Mann teaches all the claimed structural limitations as detailed above in the office action. It is noted that this argued limitation are rejected as being new matter that was not presented in the originally filed disclosure. Further, Mann teaches all of the structural limitations as claims in claims 1 and 2, and would therefore be capable of making some wearer stable when worn in some water conditions.
Conclusion
THIS ACTION IS MADE FINAL. 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 ALISSA L HOEY whose telephone number is (571)272-4985. The examiner can normally be reached M-F: 9:00-5:30 EST.
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ALISSA L. HOEY
Primary Examiner
Art Unit 3732
/ALISSA L HOEY/Primary Examiner, Art Unit 3732
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