DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 16 July 2025 has been entered.
Response to Amendment
Applicant’s amendment, received 16 July 2025, is reviewed and entered. This Office Action is a non-final rejection.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Status of Claims
Amended
1, 3, 6-8, 11, 13-16
Newly Added
18-22
Pending
1-22
Presented for Examination
1-22
Response to Arguments
Applicant's arguments filed 16 July 2025 have been fully considered but they are not persuasive.
Drawing Objections, Specification Objections, Claim Objections
Regarding “certain edges,” Applicant points to recitations of “edges” in the specification. However, this does not overcome the drawing objection, because it cannot be determined which of the edges shown in the figures are the “certain edges.”
Regarding the “single article,” Examiner is persuaded that the figures support the single article; however, the specification lacks antecedent basis for this language.
Regarding the newly added limitation of areas not having “applied” elastomeric material, this amendment overcomes the previous objection and raises new objections and/ or rejections.
112(a) Rejections, 112(b) Rejections
Applicant does not overcome or argue against the rejections, and the rejections stand. Examiner believes the 112 issues stem from inconsistent language in the specification, and claim language that is inconsistent with the specification. In an attempt to clarify the record, Examiner has included a claim interpretation section below to show which terms are defined by the disclosure and how they are defined by the disclosure. The claims have been interpreted in light of the disclosure.
103 Rejections
Applicant argues Ota and Caldwell in combination is not an article, because an article is a single article. When Ota and Caldwell are combined as set forth in the modification below, the result is a single article. Ota and Caldwell have all of the claimed structure and so read on the claims. Arguments drawn to newly amended subject matter are addressed in the rejections below.
Applicant argues Ota does not disclose curves/ waves. The curves/ waves/ lines have been interpreted as best understood in light of the disclosure. The curves are addressed in the obvious modification below. Ota in view of Caldwell discloses all of the claimed structure and therefore reads on the claims.
In light of the above, the rejection is believed to be proper.
Claim Interpretation
The claims use the following terms, some of which are inconsistent with the disclosure and/ or are inconsistent within the disclosure. For clarity of the record, Examiner is showing how they are being interpreted in light of the specification.
“Group” and “Series”
These terms appear to be used interchangeably in the specification and claims. For clarity of the record and to eliminate any indefiniteness, Examiner suggests choosing one term and using it consistently, at least throughout the claims if not also the specification.
“Zone”
As shown in FIG 2, the garment has three zones and a zone is an area of the garment with or without a pattern of elastomeric material.
“Pattern”
It is not clear how Applicant is using the term “pattern.” In the figures, it appears the zone may have elastomeric material in a pattern. However, page 5 line 3 appears to be describing a “pattern” to mean the “zone,” where the pattern has an outer edge. Page 6 para. 2 refers to the “repeating pattern of a curve,” which suggests that a pattern is a portion of a curve.
“Wave”
The disclosure uses the term “wave” to describe a line. See page 2, 6th full para. which describes the “waves” at an angle, and FIG 2 shows angled lines. Page 5, 3rd full para. describes a series of waves as a group of three waves, and FIG 2 shows groupings of three lines each. Page 5, 4th para. describes a group of continuous waves as including three waves, and FIG 2 shows groups of three lines.
“Line”
The claims use the term “line,” but no line is disclosed. It is not clear what the difference is between a wave as defined by the disclosure and a line as recited in the claim.
“Curve”
It is not clear how Applicant is using the term “curve.” One interpretation is that curves are the peaks and valleys of each wave (as Applicant is defining “wave”). This is supported by page 2, fifth full para. Which recites “curves… forming waves” and page 6, 5th para. which discloses “three printed curved waves.” However, other disclosures contradict this interpretation by suggesting “waves” and “curves” are separate and distinct features. See the last two lines on page 5 which discloses the curves and waves overlap, and page 6, 2nd para. which separately lists curves and waves. At least claims 1 and 11 appear to be using yet another definition of “curves” that is inconsistent with the disclosure. The claims recite “group of curves” which appears to correspond to the disclosed group of waves, suggesting the claims are using “wave” and “curve” interchangeably.
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, the curve/ curves (claims 1, 3, 18, and 22), groups of curves/ groups of waves (claims 1, 3, 6-8, 11, 13-15, 18-19, and 22, particularly, it is not clear if the groups are the groups of three waves, or all of the waves in the zone), line/ lines (claims 2-4, 6, 8, 10, 14, 15, and 16), certain edges (claim 12), the first group of waves are identical to the second group of waves (claim 19, at least FIG 4 shows that the groups do not have the same orientation and the groups have different lengths) 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
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:
Claims 1, 11, 13-14, 18, 19, and 22, repeating groups, and particularly the recitation “repeating.” The Specification has support for the repeating pattern of a curve on page 6, 2nd para., but not a repeating group.
Claims 1 and 11, securely attached, and particularly the recitation “securely” which is not supported by the disclosure.
Claims 18 and 19, “identical.”
Claims 20 and 21, “single article of sportswear,” and particularly the recitation “single article.”
Claim Objections
Claims 1 and 11 are objected to because of the following informalities: replace “repeating first” with –first repeating—for consistency with the other recitations. Appropriate correction is required.
Claims 1 and 11 are objected to because of the following informalities: in the preamble, insert –for—before “providing” for clarity that these are apparatus claims, not method claims.
Claim 11 is objected to because of the following informalities: “of of” in line 8. Appropriate correction is required.
Appropriate correction is required.
Claim Rejections - 35 USC § 112(a)
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 1-22 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. The new matter is as follows:
Claims 1, 11, 13-14, 18, 19, and 22, repeating groups, and particularly the recitation “repeating.” The Specification has support for the repeating pattern of a curve on page 6, 2nd para., but not a repeating group.
Claims 1 and 11, securely attached, and particularly the recitation “securely” which is not supported by the disclosure.
Claims 18 and 19, “identical.” At least FIG 4 appears to contradict claim 19, as FIG 4 shows the waves in each zone have mirrored orientations, not identical, and each group of waves has a different length, not identical.
Claim Rejections - 35 USC § 112(b)
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 1-22 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.
Claim 1 recites the limitations "the zone of elastic material" in line 10 and “the second zone of shaping control” in line 11. There is insufficient antecedent basis for these limitations in the claim.
Claims 1, 10-11, and 16 are indefinite: The term “more densely applied” in claims 1, 10-11, and 16 is a relative term which renders the claim indefinite. The term “more densely applied” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Furthermore, nothing else in the claim is “densely applied” so it is unclear how the elastomeric material is “more” densely applied.
Furthermore, the term “more” in claims 1, 10-11, and 16 is indefinite because it is not clear what “more” is modifying. Is “more” modifying “elastomeric material” which is to say, “more” distinguishes the elastomeric material of the first zone (“elastomeric material”) from that of the second zone (“more elastomeric material”), or is “more” modifying or “densely applied” which is to say, the elastomeric material is applied “more densely” in the second zone than in the first zone? Examiner believes Applicant is intending the latter interpretation, but because it is not clear that any other elastomeric material is “densely applied,” the recitation is indefinite.
Claim 2 is rendered indefinite by the recitation “no applied elastomeric material.” Does this mean the third zone is absent of the elastomeric material of the first and second zones, but may otherwise have elastomeric material? Does the term “applied” mean that the third zone may elastomeric material present as long as it is not “applied” (e.g., the fabric itself may be elastomeric material but no elastomeric material may be “applied” to the fabric)?
Claim 2 is indefinite because it is not clear how and by what means “the inner layer stretches only based on characteristics of fabric of the inner layer.” One of ordinary skill would expect stretching of the inner layer to be influenced by factors in addition to the characteristics of the fabric, such as the construction of the seams and the degree of stretchability therein (i.e., a stitched seam that limits the ability to stretch) and the force applied to the inner layer (i.e., a greater force will cause greater stretching).
Claim 3 recites the limitation "each first group" in line 1. There is insufficient antecedent basis for this limitation in the claim. Claim 1 has support for “a repeating first group,” singular, but not plural first groups as required by claim 3.
Claims 3 and 13 is indefinite because it is not clear the relationship between the curves, lines, and waves. As discussed under the “claim interpretation” heading above, the disclosure appears to use the term “wave” to mean a line, and the term “curve” to mean peaks and valleys of the line. Therefore, it is not clear now a group of curves (waves?) includes a line (wave?) that are shaped as continuous waves (curves?).
Claims 4-10 are indefinite for the same reason as claim 3.
Claims 6 and 7 recite the limitation "each separate first group of continuous waves". There is insufficient antecedent basis for this limitation in the claim. Claim 1 has support for a singular first group of curves, but not plural first groups of waves.
Claim 6 is indefinite because it is not clear if the “lines that are shaped as the continuous waves” are the same as or in addition to the “lines that are shaped as continuous waves” of claim 3.
Claim 6 is indefinite because it is not clear if the “two wave shaped lines” are included in or are in addition to the “lines that are shaped as the continuous waves” of claims 3 and 6.
Claims 6 and 10 are rendered indefinite by the recitation “lines” because it is not clear if these are all of the lines of claim 3, some of the lines of claim 3 (and if so, which of the lines), or in addition to the lines of claim 3.
Claim 8 recites the limitation "each wave shaped line" and “each group of continuous waves”. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 is indefinite because it is not clear if the “one area” is referring to one of the previously recited areas or if it is introducing a new area.
Claims 8 and 15 recite the limitation “one area without elastomeric material.” There is insufficient antecedent basis for this limitation in the claim.
Claims 8 and 15 recite the limitations “each wave shaped line” and "the thinnest thickness." There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "the lines of continuous waves" and “adjacent first zones”. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 is indefinite because it is not clear to which or all of the previously recited lines “the lines of continuous waves” is referring.
Claim 10 recites the limitation "first zones." There is insufficient antecedent basis for this limitation in the claim. The claims have support for a singular first zone, but not plural first zones.
Claim 11 is rendered indefinite by the recitation “not having applied elastomeric material.” Does this mean the third zone is absent of the elastomeric material of the first and second zones, but may otherwise have elastomeric material? Does the term “applied” mean that the third zone may elastomeric material present as long as it is not “applied” (e.g., the fabric itself may be elastomeric material but no elastomeric material may be “applied” to the fabric)?
Claim 11 is indefinite because it is not clear if “a second repeating group of waves” is describing the second zone or if there is a first zone, a second zone, and a second repeating group of waves.
Claim 12 recites the limitation "certain edges" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claims 16 is rendered indefinite by the recitation “lines” because it is not clear if these are all of the lines of claim 13, some of the lines of claim 13, or in addition to the lines of claim 13.
Claim 17 is objected to because of the following informalities: Claim 17 is indefinite because it is not clear what does not adhere to the exterior layer, the elastomeric material, or the silicone that is included in the elastomeric material. This is to say, could the elastomeric material “include” other materials that do adhere to the exterior layer, so long as the silicone of the elastomeric material does not adhere to the exterior layer?
Claim 18 is indefinite because it cannot be determined to what the group is identical.
Claim 22 recites the limitation "the second zone of elastic material" in line 1. There is insufficient antecedent basis for this limitation in the claim. Claim 1 has support for a second zone of elastomeric material, a zone of elastic material, and a second zone of shaping control, but not a second zone of elastic material.
All of the claims are examined as best understood.
Claims that depend from a rejected claim are also rejected.
Product-by-Process Recitations
Claims 1-2, 6-8, 10-11, and 14-16 recite “applied.”
The recitation “applied” is considered a product-by-process limitation. Even though product-by-process claims are lim-ited by and defined by the process, determination of patentability is based on the product itself. The patent-ability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. See MPEP 2113(I).
Claim Rejections - 35 USC § 103
Claim(s) 1-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ota (US 9095177 B2) in view of Caldwell (US 6308338 B1).
As to claim 1, Ota discloses an article of sportswear providing targeted shaping control (Ota col 3 line 45-50 discloses “a lower or upper body undergarment;”) comprising:
a stretchable inner layer attached to the exterior layer so as to provide the single article of sportswear (base layer 32; col 3 line 55-60 discloses “cotton, flax, silk, polyester, aramid, acrylic, nylon, polyurethane, spandex, and/or olefin” all of which have at least some degree of stretchability, see modification below regarding the exterior layer), wherein the inner layer has an elastomeric material applied in a pattern on one side of the inner layer that is between the inner layer and the exterior layer (activation element 34; col 4 line 20-25 discloses, “silicon[e], a thermoplastic or thermosetting polymer, rubber, polyurethane, or a laminate;” col 3 line 1-5 discloses 34 is applied to the outer surface of the inner layer; see modification below regarding the exterior layer);
wherein the pattern of elastomeric material has a first zone of elastomeric material with a series of curves to provide a first zone of shaping control (34 comprises 41-46 as shown in figs 6A-6C, and the “zone” where 41-46 do not overlap is the “first zone” and the “zone” where 41-16 overlap is the “second zone;” see annotated portion of fig 1A below, see modification below regarding “repeating first group of curve”) and
a second zone of elastomeric material that is distinct from the first zone of elastomeric material, with the zone of elastic material being more densely applied elastomeric material (34 comprises 41-46 as shown in figs 6A-6C, and the “zone” where 41-46 do not overlap is the “first zone” and the “zone” where 41-16 overlap is the “second zone;” see annotated portion of fig 1A below) to provide the second zone of shaping control that is stronger than the first zone of shaping control (capable of providing, due to having more material which will resist abrasions and/ or tearing and is therefore considered “stronger;” further still, Ota col 14 line 60-65 discloses 34 will provide stretch resistance, so Ota’s second zone will have greater stretch resistance which is considered “stronger shaping control”), wherein the pattern is not visible on the exterior layer (see modification below regarding the exterior layer).
Ota does not disclose an exterior layer.
Ota discloses the inner layer is a base layer/ undergarment. One of ordinary skill would understand a base layer/ undergarment is intended to be worn under another garment/ exterior layer, such as trousers.
Caldwell teaches a combination undergarment 7 and trousers 6 and Caldwell col 2 teaches “an undergarment is typically worn under the trousers.”
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to wear the Ota undergarment under trousers as is known in the art, for the purpose of performing the typical function of undergarments for aesthetics, insulation, and concealed support.
Furthermore, wearing Ota’s inner layer under an exterior layer such as trousers would obviously result in the inner layer being securely attached to the exterior layer by friction , if not securely attached by a device such as the one taught in Caldwell fig 2. Furthermore, Ota’s pattern is applied to the outer surface of the inner layer, so would be between the inner layer and exterior layer/ trousers when worn. Further still, the trousers would provide a concealing layer of material and would conceal the undergarment such that the pattern would not be visible on the trousers.
Ota does not disclose “a repeating first group of curves” in the fig 1A embodiment.
As shown in the portion of annotated fig 1A below, instead of a “repeating first group of curves,” Ota discloses a repeating first group of straight lines. The only difference between Ota and the claimed invention is the claimed lines are curved and the Ota lines are straight. Ota discloses another embodiment in fig 11 where the lines have curves. Therefore, both straight and curved lines are within the scope of the Ota invention. Furthermore, one of ordinary skill would expect the sportswear to work equally well with curved or straight lines.
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide Ota’s straight lines as curves, and particularly in the shape of continuous waves, for the purpose of achieving the desired aesthetics, to provide the desired degree of stretch resistance (Caldwell col 14 line 60-65), and/ or to follow the shape of the human body for better fit.
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As to claim 2, Ota as modified discloses the article of sportswear of claim 1 further comprising a third zone with no applied elastomeric material where the inner layer stretches only based on characteristics of fabric of the inner layer (Ota fig 1A shows a number of zones with no applied elastomeric material).
As to claim 3, Ota as modified discloses wherein each first group of curves includes lines that are shaped as continuous waves (this is the result of the modification presented in the rejection of claim 1 above).
As to claim 4, Ota as modified discloses the article of sportswear of claim 3 wherein each line that is shaped as the continuous waves are oriented at an angle from horizontal between 20 and 65 degrees (each of Ota’s lines 41-46 is at approximately a 45 degree angle, the continuous waves are the result of the modification presented in the rejection of claim 1 above).
As to claim 5, Ota as modified discloses the article of sportswear of claim 4 wherein the angle is approximately 45 degrees (each of Ota’s lines 41-46 is at approximately a 45 degree angle, the continuous waves are the result of the modification presented in the rejection of claim 1 above).
As to claim 6, Ota as modified discloses each separate first group of continuous waves (see annotated portion of fig 1A above, the continuous waves are the result of the modification presented in the rejection of claim 1 above) includes lines that are shaped as the continuous waves with an area of continuous wave shape between two wave shaped lines that does not include applied elastomeric material (see annotated portion of fig 1A above, the continuous waves are the result of the modification presented in the rejection of claim 1 above, and the areas between 34 are 32 alone and thus do not include applied elastomeric material).
As to claim 7, Ota as modified discloses the article of sportswear of claim 6 further comprising areas between each first group of continuous waves that do not include applied elastomeric material (see annotated portion of fig 1A above, the continuous waves are the result of the modification presented in the rejection of claim 1 above, and the areas between 34 are 32 alone and thus do not include applied elastomeric material).
As to claim 8, Ota as modified does not disclose the article of sportswear of claim 7, wherein each wave shaped line within each group of continuous waves has a different thickness with the thinnest thickness line being adjacent to one area without applied elastomeric material.
Ota col 5 line 50-60 does disclose 34 provides different thicknesses in different portions of the garment 30. Therefore, it is within the scope of the Ota sportswear to provide different thicknesses.
Where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device. See MPEP 2144.04(IV)(A).
Furthermore, It would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide each wave shaped line within each group of continuous waves has a different thickness with the thinnest thickness line being adjacent to one area without elastomeric material between each group of continuous waves, for the purpose of achieving the desired aesthetics, to provide the desired degree of stretch resistance (Caldwell col 14 line 60-65), and/ or to follow the shape of the human body for better fit.
As to claim 9, Ota as modified discloses the article of sportswear of claim 1 wherein the article of sportswear is a swimsuit (capable of being worn swimming, the term “swimsuit” does not lend any particular structure the garment, and Ota’s garment has all of the structure of the claimed “swimsuit” and so is capable of being used in the same manner).
As to claim 10, Ota as modified discloses the second zone includes a continuation of the lines of continuous waves from adjacent first zones (see annotated portion of fig 1A above, the continuous waves are the result of the modification presented in the rejection of claim 1 above), wherein the lines of continuous waves overlap in the second zone to provide the second zone with more densely applied elastomeric material (see annotated portion of fig 1A above, the continuous waves are the result of the modification presented in the rejection of claim 1 above; see col 13 line 1-30 which describes 41-46 as overlapping).
As to claim 11, Ota discloses an article of sportswear providing targeted shaping control (Ota col 3 line 45-50 discloses “a lower or upper body undergarment;”) comprising:
a stretchable liner layer securely attached to the exterior layer so as to provide the article of sportswear (base layer 32; col 3 line 55-60 discloses “cotton, flax, silk, polyester, aramid, acrylic, nylon, polyurethane, spandex, and/or olefin” all of which have at least some degree of stretchability, see modification below regarding the exterior layer), wherein the liner layer has an elastomeric material applied in a pattern on one side of the liner layer that is between the liner layer and the exterior layer (activation element 34; col 4 line 20-25 discloses, “silicon[e], a thermoplastic or thermosetting polymer, rubber, polyurethane, or a laminate;” col 3 line 1-5 discloses 34 is applied to the outer surface of the inner layer; see modification below regarding the exterior layer);
wherein the pattern of elastomeric material has a first zone of elastomeric material with a repeating first group of waves of elastomeric material to provide a first zone of shaping control (34 comprises 41-46 as shown in figs 6A-6C, as discussed under the claim interpretation heading above, Applicant uses the term “waves” to describe lines, and 41-46 are lines and thus equivalent to the claimed “waves,” and the “zone” where 41-46 do not overlap is the “first zone” and the “zone” where 41-16 overlap is the “second zone;” see annotated portion of fig 1A below, see modification below regarding “series of curves”) and
a second zone of elastomeric material with a second repeating group of waves of more densely applied elastomeric material to provide a second zone of shaping control that is stronger than the first zone of shaping control (34 comprises 41-46 as shown in figs 6A-6C, and the “zone” where 41-46 do not overlap is the “first zone” and the “zone” where 41-16 overlap is the “second zone;” see annotated portion of fig 1A below; capable of providing, due to having more material which will resist abrasions and/ or tearing and is therefore considered “stronger;” further still, Ota col 14 line 60-65 discloses 34 will provide stretch resistance, so Ota’s second zone will have greater stretch resistance which is considered “stronger shaping control”), and a third zone not having applied elastomeric material (Ota fig 1A shows a number of zones with no applied elastomeric material), the first and second repeating groups of waves having areas between each wave of elastomeric material that do not include applied elastomeric material (areas between 41-46 do not include elastomeric material, see modification below regarding series of curves forming groups of waves),
wherein the pattern of elastomeric material is not visible on the exterior layer (see modification below regarding the exterior layer).
Ota does not disclose an exterior layer.
Ota discloses the inner layer is a base layer/ undergarment. One of ordinary skill would understand a base layer/ undergarment is intended to be worn under another garment/ exterior layer, such as trousers.
Caldwell teaches a combination undergarment 7 and trousers 6 and Caldwell col 2 teaches “an undergarment is typically worn under the trousers.”
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to wear the Ota undergarment under trousers as is known in the art, for the purpose of performing the typical function of undergarments for aesthetics, insulation, and concealed support.
Furthermore, wearing Ota’s inner layer under an exterior layer such as trousers would obviously result in the inner layer being securely attached via friction to the exterior layer, if not securely attached by a device such as the one taught in Caldwell fig 2. Furthermore, Ota’s pattern is applied to the outer surface of the inner layer, so would be between the inner layer and exterior layer/ trousers when worn. Further still, the trousers would provide a concealing layer of material and would conceal the undergarment such that the pattern would not be visible on the trousers.
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As to claim 12, Ota as modified discloses the article of sportswear of claim 11 wherein the third zone is along certain edges of the article of sportswear (Ota fig 1A, the third zone is along top edges, bottom edges, and portions of lateral side edges).
As to claim 13, Ota as modified discloses the article of sportswear of claim 11 wherein the first and second repeating groups of waves include lines that are shaped as continuous waves that are oriented at an angle from horizontal between 20 and 65 degrees (each of Ota’s lines 41-46 is at approximately a 45 degree angle, the continuous waves are the result of the modification presented in the rejection of claim 11 above).
As to claim 14, Ota as modified discloses each of the first and second repeating group of waves of elastomeric material includes separate lines of elastomeric material (see annotated portion of fig 1A above, the continuous waves are the result of the modification presented in the rejection of claim 1 above) that are shaped as the continuous waves with an area of continuous wave shape between two wave shaped lines that does not include applied elastomeric material (see annotated portion of fig 1A above, the continuous waves are the result of the modification presented in the rejection of claim 1 above).
As to claim 15, Ota as modified does not disclose the article of sportswear of claim 14, wherein each wave shaped line within each group of continuous waves has a different thickness with the thinnest thickness line being adjacent to one area without applied elastomeric material.
Ota col 5 line 50-60 does disclose 34 provides different thicknesses in different portions of the garment 30. Therefore, it is within the scope of the Ota sportswear to provide different thicknesses.
Where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device. See MPEP 2144.04(IV)(A).
Furthermore, It would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide each wave shaped line within each group of continuous waves has a different thickness with the thinnest thickness line being adjacent to one area without applied elastomeric material, for the purpose of achieving the desired aesthetics, to provide the desired degree of stretch resistance (Caldwell col 14 line 60-65), and/ or to follow the shape of the human body for better fit.
As to claim 16, Ota as modified discloses the second zone includes a continuation of the continuous waves of elastomeric material from the adjacent first zone (see annotated portion of fig 1A above, the continuous waves of elastomeric material are the result of the modification presented in the rejection of claim 1 above), wherein the lines of continuous waves of elastomeric material overlap in the second zone to provide the second zone with more densely applied elastomeric material (see annotated portion of fig 1A above, the continuous waves are the result of the modification presented in the rejection of claim 1 above; see col 13 line 1-30 which describes 41-46 as overlapping).
As to claim 17, Ota as modified discloses the article of sportswear of claim 11 wherein the elastomeric material includes silicone (see the rejection of claim 11 above) and does not adhere to the exterior layer (to the degree silicone would not adhere to another layer, Ota does not disclose the silicone adheres or is intended to adhere to any other object).
As to claim 18, Ota as modified discloses the article of sportswear of claim 1, wherein the first repeating group of curves of elastomeric material are identical (as best understood, to the degree disclosed by Applicant, see Ota FIG 1A).
As to claim 19, Ota as modified discloses the article of sportswear of claim 11, wherein the first repeating group of waves of elastomeric material are identical and the second repeating group of waves of elastomeric material are identical (as best understood, to the degree disclosed by Applicant, the first and second groups are identical in that each wave is identical in width).
As to claims 20-21, Ota as modified discloses the article of sportswear is a single article of sportswear (Applicant’s “single article” is undefined by the disclosure and broadly interpreted by Examiner to include component parts used or worn in combination; the prior art’s “single article of sportswear” is the combination of Ota’s inner layer and Caldwell’s exterior layer, as set forth modification below; capable of providing targeted shaping control, due to the elasticity of the garment, see abstract).
As to claim 22, Ota as modified discloses the article of sportswear of claim 1, wherein the second zone of elastic material includes a second repeating group of curves of elastomeric material (this is the result of the modification presented in the rejection of claim 1 above).
Conclusion
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SALLY HADEN
Primary Examiner
Art Unit 3732
/SALLY HADEN/ Primary Examiner, Art Unit 3732