DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Specification
The use of the term Supplex® , Meryl®, Dual Fit Strong®, IsoChill, and Coolmax®, 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 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.
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 9-12 and 15-27 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.
Claims 9 and 22 recite “wherein the moisture-wicking under layer has a permeability” and it is unclear if air or moisture permeability is meant.
Claim 15 recites the term “large” is a relative term which renders the claim indefinite. The term “large” 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.
Claims 10-12, 16-21 and 23-27 are necessarily rejected as being dependent on a rejected claim.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-8, 13-21, 26 and 27 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 9,635,889 B1 to Copeland et al. (Copeland) in view of US 6,125,645 to Horn (Horn).
Regarding claim 1, Copeland teaches a cooling shirt or vest garment (title “Cooling Garment”), the cooling garment comprising a moisture-wicking under layer (moisture wicking fabric 11) having an inner surface (see for example Fig. 12) and an outer surface (see for example Fig. 12), an outer layer (non-porous coating 12) attached to the outer surface of the moisture-wicking under layer (see for example Fig. 12), at least one air channel (plurality of channels 13) between the moisture-wicking under layer and the outer layer (see for example fig. 12), wherein the air channel has a width (wicking layer cross section width 22) of 0.25-4 inches (Col. 5, lines 11-14 which state in part “the channels are semicircular tubes with a diameter from 0.04-1.0 inches, more preferably 0.5 inches”), an above ambient pressure gas supply (above ambient pressure gas supply 14), operably attached to an inlet channel to thereby cool the wearer of the cooling garment, wherein the gas supply forces air through the channel at a total flow rate of about 10-15 cubic feet per minute (Col. 11, lines 3-5 which state in part “forcing air through them with a small battery powered fan as a total flow rate of about 10-15 ft3/min.”). However, Copeland is silent with respect to the outer layer having an air permeability less than 200 L/m2s when subjected to 125 Pascals of air pressure, wherein the gas supply forces air through the channel at a total flow rate of at most 40 cubic feet per min and a porous filler material with a height of 20-10 millimeters.
Horn teaches an analogous garment (title “Moisture Removal Phase Shift Personal Cooling Garment”) to that of Copeland including a porous filler material (material 8) with a height. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Copeland to include the porous filler material of Horn to allow for efficient vapor transport of water and preventing condensation which can inhibit evaporative cooling of the wearer due to the reduction of the surface area of the skin (Col. 8, line 50-Col. 9, line 4). While Horn does not teach that the porous filler material has a height of 2-10 millimeters, it is asserted that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have used a porous filler material height of 2-10 millimeters, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art.
Regarding the outer layer having and air permeability of less than 200 L/m2s when subjected to 125 Pascals of air pressure, it is asserted that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the outer layer of Copeland to have an air permeability of less than 200 L/m2s when subjected to 125 Pascals of air pressure, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art.
Regarding the gas supply forces air through the channel at a total flow rate of at most 40 cubic feet per min, it is asserted that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the total flow rate of Copeland to have a total flow rate of at most 40 cubic feet per min, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art.
Regarding claim 2, the combination teaches the cooling garment of claim 1 as well as Copeland teaching wherein the channel width is 0.5-2 inches (Col. 5, lines 11-14 which state in part “the channels are semicircular tubes with a diameter from 0.04-1.0 inches, more preferably 0.5 inches”).
Regarding claim 3, the combination teaches the cooling garment of claim 2, but not wherein the channel width is 0.75-1.5 inches. It is asserted that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Copeland’s channels to have a width of 0.75-1.5 inches, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art.
Regarding claim 4, the combination teaches the cooling garment of claim 1 as well as Copeland teaching that the garment can have a variety in the number of channels (Col. 4, lines 47-48 and Col. 11, lines 2-3 which state in part “about 40-400 small fabric channels…”), but not 30-50 air channels. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the number of air channels to be between 30-50, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art.
Regarding claim 5, the combination teaches the cooling garment of claim 4, as well as Copeland teaching wherein the air channels have a width of 1 inch (Col. 5, lines 11-14 which state in part “the channels are semicircular tubes with a diameter from 0.04-1.0 inches…”), but not a height of 2 millimeters. It is asserted that it would have been obvious to one having ordinary skill art before the effective filing date of the claimed invention to have modified the channels of Copeland to have a height of 2 millimeters, since it has been held that discovering the optimum value of a results effective variable involves only routine skill in the art.
Regarding claim 6, the combination teaches the cooling garment of claim 1 as well as Copeland teaching wherein the moisture wicking material under layer is a fabric which has a water-wicking capability producing a water rise of 1-9 centimeters, measured at 60 seconds after exposing a bottom 5 millimeters of a swatch of the fabric into a beaker of water (Col. 9, lines 14-22 which state “There are a number of synthetic “technical” fabrics that are specifically designed to wick moisture away from the skin to the outer layer of the garment where it can evaporate. These fabrics are suitable for use as the base/sweat wicking material for the cooling garment. They may be strong, durable, comfortable, and have excellent moisture wicking properties. Some examples are Supplex®, Meryl®, Dual Fit Strong® (MITI, Italy) and Coolmax® (DuPont—now Invista).” which are the same materials disclosed by Applicant as suitable to provide the claimed characteristics).
Regarding claim 7, the combination teaches the cooling garment of claim 7 as well as wherein the fabric has a water wicking capability producing a water rise of 3-8 centimeters (Col. 9, lines 14-22 which state “There are a number of synthetic “technical” fabrics that are specifically designed to wick moisture away from the skin to the outer layer of the garment where it can evaporate. These fabrics are suitable for use as the base/sweat wicking material for the cooling garment. They may be strong, durable, comfortable, and have excellent moisture wicking properties. Some examples are Supplex®, Meryl®, Dual Fit Strong® (MITI, Italy) and Coolmax® (DuPont—now Invista).” which are the same materials disclosed by Applicant as suitable to provide the claimed characteristics).
Regarding claim 8, the combination teaches the cooling garment of claim 7 as well as wherein the fabric has a water wicking capability producing a water rise of 6-7.5 centimeters (Col. 9, lines 14-22 which state “There are a number of synthetic “technical” fabrics that are specifically designed to wick moisture away from the skin to the outer layer of the garment where it can evaporate. These fabrics are suitable for use as the base/sweat wicking material for the cooling garment. They may be strong, durable, comfortable, and have excellent moisture wicking properties. Some examples are Supplex®, Meryl®, Dual Fit Strong® (MITI, Italy) and Coolmax® (DuPont—now Invista).” which are the same materials disclosed by Applicant as suitable to provide the claimed characteristics).
Regarding claim 13, the combination teaches the cooling garment of claim 1, but not wherein the total flow rate is 25 cubic feet per minute. It is asserted that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Copeland to have a total flow rate of 25 cubic feet per minute, since it has been held that discovering the optimum value of a results effective variable involves only routine skill in the art.
Regarding claim 14, the combination teaches the cooling garment of claim 1 as well as Copeland teaching wherein the above ambient air pressure gas supply is either a compressed air tank, a blower, or a battery powered fan (Col. 4, lines 44-47 which state in part “the above ambient pressure gas supply is either a fan, a positive displacement pump, a compressed gas tank, a breathing air tank, a mouth or a nose.”).
Regarding claim 15, Copeland teaches a cooling shirt or vest garment (title “Cooling Garment”), the cooling garment comprising a moisture-wicking under layer (moisture wicking fabric 11), an outer layer (non-porous coating 12) attached to the outer surface of the moisture-wicking under layer (see for example Fig. 12), at least one large air channel (plurality of channels 13) between the moisture-wicking under layer and the outer layer (see for example fig. 12), a plurality of tacks (wall segments 25), wherein each take connects the moisture wicking under layer to the outer layer (see for example Fig. 10), an above ambient pressure gas supply (above ambient pressure gas supply 14), operably attached to an inlet channel (manifold 15) to thereby cool the wearer of the cooling garment, wherein the gas supply forces air through the channel at a total flow rate of about 10-15 cubic feet per minute (Col. 11, lines 3-5 which state in part “forcing air through them with a small battery powered fan as a total flow rate of about 10-15 ft3/min.”). However, Copeland is silent with respect to the outer layer having an air permeability less than 200 L/m2s when subjected to 125 Pascals of air pressure, wherein the gas supply forces air through the channel at a total flow rate of at most 40 cubic feet per min and a porous filler material with a height of 20-10 millimeters.
Horn teaches an analogous garment (title “Moisture Removal Phase Shift Personal Cooling Garment”) to that of Copeland including a porous filler material (material 8) with a height. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Copeland to include the porous filler material of Horn to allow for efficient vapor transport of water and preventing condensation which can inhibit evaporative cooling of the wearer due to the reduction of the surface area of the skin (Col. 8, line 50-Col. 9, line 4). While Horn does not teach that the porous filler material has a height of 2-10 millimeters, it is asserted that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have used a porous filler material height of 2-10 millimeters, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art.
Regarding the outer layer having and air permeability of less than 200 L/m2s when subjected to 125 Pascals of air pressure, it is asserted that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the outer layer of Copeland to have an air permeability of less than 200 L/m2s when subjected to 125 Pascals of air pressure, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art.
Regarding the gas supply forces air through the channel at a total flow rate of at most 40 cubic feet per min, it is asserted that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the total flow rate of Copeland to have a total flow rate of at most 40 cubic feet per min, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art.
Regarding claim 16, the combination teaches the cooling garment of claim 15 as well as Copeland teaching wherein the tacks are spaced 0.25-4 inches (Col. 5, lines 11-14 which state in part “the channels are semicircular tubes with a diameter from 0.04-1.0 inches, more preferably 0.5 inches”).
Regarding claim 17, the combination teaches the cooling garment of claim 16, but not specifically wherein the tacks are spaced 2 inches apart. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the spacing of Copeland’s tacks, since it has been held that discovering the optimum value of a results effective variable involves only routine skill in the art.
Regarding claim 18, the combination teaches the cooling garment of claim 16 as well as Copeland teaching wherein the tacks are spaced 1 inch apart (Col. 5, lines 11-14 which state in part “the channels are semicircular tubes with a diameter from 0.04-1.0 inches…”).
Regarding claim 19, the combination teaches the cooling garment of claim 15 as well as Copeland teaching wherein the moisture wicking material under layer is a fabric which has a water-wicking capability producing a water rise of 1-9 centimeters, measured at 60 seconds after exposing a bottom 5 millimeters of a swatch of the fabric into a beaker of water (Col. 9, lines 14-22 which state “There are a number of synthetic “technical” fabrics that are specifically designed to wick moisture away from the skin to the outer layer of the garment where it can evaporate. These fabrics are suitable for use as the base/sweat wicking material for the cooling garment. They may be strong, durable, comfortable, and have excellent moisture wicking properties. Some examples are Supplex®, Meryl®, Dual Fit Strong® (MITI, Italy) and Coolmax® (DuPont—now Invista).” which are the same materials disclosed by Applicant as suitable to provide the claimed characteristics).
Regarding claim 20, the combination teaches the cooling garment of claim 19 as well as wherein the fabric has a water wicking capability producing a water rise of 3-8 centimeters (Col. 9, lines 14-22 which state “There are a number of synthetic “technical” fabrics that are specifically designed to wick moisture away from the skin to the outer layer of the garment where it can evaporate. These fabrics are suitable for use as the base/sweat wicking material for the cooling garment. They may be strong, durable, comfortable, and have excellent moisture wicking properties. Some examples are Supplex®, Meryl®, Dual Fit Strong® (MITI, Italy) and Coolmax® (DuPont—now Invista).” which are the same materials disclosed by Applicant as suitable to provide the claimed characteristics).
Regarding claim 21, the combination teaches the cooling garment of claim 20 as well as wherein the fabric has a water wicking capability producing a water rise of 6-7.5 centimeters (Col. 9, lines 14-22 which state “There are a number of synthetic “technical” fabrics that are specifically designed to wick moisture away from the skin to the outer layer of the garment where it can evaporate. These fabrics are suitable for use as the base/sweat wicking material for the cooling garment. They may be strong, durable, comfortable, and have excellent moisture wicking properties. Some examples are Supplex®, Meryl®, Dual Fit Strong® (MITI, Italy) and Coolmax® (DuPont—now Invista).” which are the same materials disclosed by Applicant as suitable to provide the claimed characteristics).
Regarding claim 26, the combination teaches the cooling garment of claim 15, but not wherein the total flow rate is 25 cubic feet per minute. It is asserted that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Copeland to have a total flow rate of 25 cubic feet per minute, since it has been held that discovering the optimum value of a results effective variable involves only routine skill in the art.
Regarding claim 27, the combination teaches the cooling garment of claim 15 as well as Copeland teaching wherein the above ambient air pressure gas supply is either a compressed air tank, a blower, or a battery powered fan (Col. 4, lines 44-47 which state in part “the above ambient pressure gas supply is either a fan, a positive displacement pump, a compressed gas tank, a breathing air tank, a mouth or a nose.”).
Claim(s) 9-12 and 22-25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Copeland and Horn as applied to claims 1 and 15 above, and further in view of US 2014/0069617 A1 to Shelton et al. (Shelton).
Regarding claims 9 and 22, Copeland in view of Horn teaches the cooling garment of claims 1 and 15, but not wherein the moisture wicking layer has a permeability which changes from the inlet to an outlet of the channel to encourage air flow across a wearer’s torso. Shelton teaches an analogous device (title “Personal Cooling Device for Use with Body Armor”) where the vest (25) has tubes (20) with channels (28) that each have a different volume, with the smallest volume channel being positioned furthest from the inlet (30) and the channel with the largest volume being located closest to the inlet (30) so that air flow through the channels can be equalized to more evenly distribute the same volume or air through each channel of the tubular member ([0017]). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Copeland to include the differing permeability of Shelton so o that air flow through the channels can be equalized to more evenly distribute the same volume or air through each channel of the tubular member as taught by Shelton ([0017]).
Regarding claims 10 and 23, the combination teaches the cooling garment of claims 9 and 22, but not wherein the permeability of the moisture wicking under layer is 100-10,000 L/m2/s. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Copeland’s moisture wicking under layer to have a permeability of 100-10,000 L/m2/s, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art.
Regarding claims 11 and 24, the combination teaches the cooling garment of claims 10 and 23, but not wherein the permeability of the moisture wicking under layer is 250-5,000 L/m2/s. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Copeland’s moisture wicking under layer to have a permeability of 100-10,000 L/m2/s, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art.
Regarding claims 12 and 25, the combination teaches the cooling garment of claims 11 and 24, but not wherein the permeability of the moisture wicking under layer is 500-2,000 L/m2/s. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Copeland’s moisture wicking under layer to have a permeability of 100-10,000 L/m2/s, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KAITLYN E SMITH whose telephone number is (571)270-5845. The examiner can normally be reached Monday-Friday 9am-5pm.
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/KAITLYN E SMITH/Primary Examiner, Art Unit 3794
