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 .
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) 1, 4, 6, 7, 8, and 9 is/are rejected under 35 U.S.C. 102a(1) as being anticipated by US 7,152,252 (Gellis et al.).
Claim(s) 1-9, 11-19, and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 7,152,252 (Gellis et al.) in view of US 2017/0105461.
Regarding claim 1, ‘252 discloses: an article of manufacture suitable to be worn by a wearer (“convertible face and head covering”, title and all figures), said article of manufacture comprising: a first layer of fabric; a second layer of fabric; a layer of foam interposed between said first layer of fabric and said second layer of fabric, wherein said layer of foam is enclosed by said first and second layers of fabric and wherein said layer of foam, said first layer of fabric and said second layer of fabric are formed together so as to create a portion of a balaclava; wherein said layer of foam enclosed by said first and second layers of fabric extends throughout a portion of said balaclava (figs. 6 and 7; par. 22 states, “In a current preferred embodiment, the nose and mouth portion 213 is formed as a compression molded foam laminated as a sandwich between a woven fabric on the outside, which provides some wind resistance and a soft moisture management fabric on the interior, such as a fleece. This sandwich arrangement would look like the sandwich shown in FIG. 6, with the foam being like layer 172 and the woven fabric being 170 and the fleece 171. The compression molded foam assures that the sandwich arrangement retains the molded shape.”).
‘252 does not disclose the claimed sandwich of fabric and foam extending throughout to form the remainder of the balaclava nor that the foam being a non-Newtonian foam.
However, ‘252 does explicitly teach the sandwich configuration does provide wind resistance and a soft moisture management fabric on the interior.
Further, ‘461 is referenced as it teaches, “An impact absorbing liner for existing and custom apparel or other equipment is presented, as is apparel or accessories integrating such impact absorbing liner. The impact absorbing liner includes one or more layers of impact absorbing and/or abrasion resistant material. Each layer of impact absorbing material is sized and configured to be positioned over one or more critical areas of a wearer's body, which may be exposed to a risk of impact during an activity, lifestyle or equipment lifecycle. The impact absorbing liner further includes one or more connectors, for connecting various parts of the impact absorbing liner together and allowing the connection to be sized to fit any particular application. Each layer has a specific material designed for optimum comfort and impact reduction, abrasion resistance and overall product integrity [par. 6, summary]…” and;
“impact absorbing material are rigid or semi-rigid, and can be made of so called “smart molecules” that harden on impact, open cell urethane foam rubber, closed cell urethane foam rubber, silicone elastomer, polycarbonate, Kevlar, textiles or the like, and formed to be worn with into custom and existing head gear or to fit a unique profile needed for a specific application [par. 84].”.
Therefore it would have been obvious to one of ordinary skill in the art of body worn devices prior to filing the invention to modify the device and sandwiched fabric/foam of ‘252 to be modified to add to or replace the foam of the sandwich with semi-rigid/ open celled polyurethane foam that hardens on impact which is sized and placed as desired for any application to provide the desired levels of optimum comfort, impact reduction, and overall product integrity; while also being formed to be worn with/into existing headgear or to fit a unique profile needed for a specific application.
Regarding claim 3, ‘252 does teach said layer of foam comprises a single, continuous sheet of foam including one or more darts as stated per claim 4 in the 102 rejection above; but does not teach the foam is no more than 7mm thick.
Close inspection of fig. 7 from ‘252 the overall thickness of the section 213 appears to be in the claimed range or at least very close to the claimed range.
Further, ‘461 teaches explicitly, “A thickness of the impact absorbing liner can also be varied or variable to suit a wide range of activities and applications. The thickness can also be varied within the same liner to provide custom protection without compromising weight. The profile can be adaptive and variable from one area to another area. For instance, thinner and lighter sections can be applied where impact is unlikely, while heavier profiles can be strategically positioned in high impact areas for maximum impact dispersion without adding overall weight. One example would be to protect high impact areas of the skull, such as the temples and where the spinal cord and skull meet (par. 153).”.
This teaching explicitly shows the prior art recognizes the thickness dimension of an impact absorbing liner material is a results oriented optimizable variable in the production of impact protective devices that can be varied as desired to provide the desired level of increased protection from thicker dimensions but also providing desired thinner dimensions in areas of less need of protection so that the overall weight of the device is so high to affect comfort of the wearer.
Therefore it would have been obvious to one of ordinary skill in the art to modify the thickness dimension of the foam used in protective device prior to filing the invention by optimizing the thickness dimension of the impact protective material to provide the custom protective needs of a particular end use application while also keeping the overall weight of the device low for used comfort requirements.
Regarding claim 4, ‘252 discloses: wherein said layer of foam comprises a single, continuous sheet of foam including one or more darts (fig. 7 and par. 22 states, “As seen in FIG. 7, the mask combination 200 includes side panels 111 and 112 which have piping and sewn seams 217, 218 around the tops and along the border with central sections 213 and 230 in the middle, and a bottom piping and sewn seam 219 which secures side panels 111, 112 to bottom section 230 and forms a clean bottom. In addition, there is a piping 231 and seam 232 between bottom section 230 and nose and mouth section 213. Generally, a flange (not shown) extends beyond the bottom of the face of section 213 to form a clean and smooth connection. Generally, bottom section 230 can be made of the same materials as side panels 111 and 112. There is a piping 220 at the top of section 213 to form a clean and smooth edge for this tender contact point and a seam 221. This section of nose and mouth section 213 is formed in a tent shape so that it fits the wearer's nose without exerting undue pressure on the bridge of the wearer's nose. In a current preferred embodiment, the nose and mouth portion 213 is formed as a compression molded foam laminated as a sandwich between a woven fabric on the outside, which provides some wind resistance and a soft moisture management fabric on the interior, such as a fleece. This sandwich arrangement would look like the sandwich shown in FIG. 6, with the foam being like layer 172 and the woven fabric being 170 and the fleece 171. The compression molded foam assures that the sandwich arrangement retains the molded shape. ”).
Regarding claim 5, the combined teachings do not teach the claimed use of “plural pieces of foam”.
However, the MPEP 2144.04 is clear:
In re Larson, 340 F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965) (A claim to a fluid transporting vehicle was rejected as obvious over a prior art reference which differed from the prior art in claiming a brake drum integral with a clamping means, whereas the brake disc and clamp of the prior art comprise several parts rigidly secured together as a single unit. The court affirmed the rejection holding, among other reasons, "that the use of a one piece construction instead of the structure disclosed in [the prior art] would be merely a matter of obvious engineering choice.");
Therefore it would have been obvious to one of ordinary skill in the art of apparel manufacture prior to filing the invention to modify the one piece foam construction of ‘252 to a piecemeal construction because the use of a one-piece construction instead of a piecemeal construction and vice versa are merely a matter of obvious engineering design choice.
Regarding claims 6, 7, 8 and 9 the device shown in ‘252 is disclosed as a balaclava and includes sections 112 and 111 in fig. 3a that would and can provide the claimed ‘shaped to extend to’ and ‘shaped to extend to and no further’ to the sternum and/or neck of a wearer as the ‘wearer’ can be of near infinite size and shape at least one ‘wearer’ be provided with the claimed coverage described in claims 6, 7, 8 and 9.
Regarding claims 11 and 12, ‘252 discloses: A balaclava suitable to be worn by a wearer having a calvaria, crown of head, neck, chest and back (device in fig. 3a is a ‘balaclava’ and includes sections 111 and 112 that will/can cover claimed areas of a wearer), said balaclava comprising: a foam substantially throughout a portion of said balaclava (figs. 6 and 7; 172; par. 22), which, when said balaclava is worn by said wearer, said balaclava substantially cover at least said calvaria and neck of said wearer (device shown in fig. 3a will and can function to cover claimed areas as shown in fig. 3a and as humans are of near infinite size).
‘252 does not disclose the foam as ‘impact hardening’ foam throughout the balaclava per claim 11 nor open cell urethane per claim 12.
However, ‘461 does teach: “An impact absorbing liner for existing and custom apparel or other equipment is presented, as is apparel or accessories integrating such impact absorbing liner. The impact absorbing liner includes one or more layers of impact absorbing and/or abrasion resistant material. Each layer of impact absorbing material is sized and configured to be positioned over one or more critical areas of a wearer's body, which may be exposed to a risk of impact during an activity, lifestyle or equipment lifecycle. The impact absorbing liner further includes one or more connectors, for connecting various parts of the impact absorbing liner together and allowing the connection to be sized to fit any particular application. Each layer has a specific material designed for optimum comfort and impact reduction, abrasion resistance and overall product integrity [par. 6, summary]…” and;
“impact absorbing material are rigid or semi-rigid, and can be made of so called “smart molecules” that harden on impact, open cell urethane foam rubber, closed cell urethane foam rubber, silicone elastomer, polycarbonate, Kevlar, textiles or the like, and formed to be worn with into custom and existing head gear or to fit a unique profile needed for a specific application [par. 84].”.
Therefore it would have been obvious to one of ordinary skill in the art of body worn devices prior to filing the invention to modify the device and sandwiched fabric/foam of ‘252 to be modified to add to or replace the foam of the sandwich with semi-rigid/ open celled polyurethane foam that hardens on impact which is sized and placed as desired for any application to provide the desired levels of optimum comfort, impact reduction, and overall product integrity; while also being formed to be worn with/into existing headgear or to fit a unique profile needed for a specific application.
Regarding claim 13, ‘252 discloses: when said balaclava is worn by said wearer, said balaclava covers at least a portion of said chest and said back of said wearer (device in fig. 3a is a ‘balaclava’ and includes sections 111 and 112 that will/can cover claimed areas of a wearer).
Regarding claim 14, ‘252 does not disclose claimed perforations.
However, ‘461 does teach, “aeration holes 402 can be applied as needed based on a desired breathability of the selected material (par. 92).”.
Therefore it would have been obvious to one of ordinary skill in the art of apparel design and manufacture prior to filing the invention to modify the foam layer to include aeration holes/perforations as needed to provide the material with the desired level of breathability.
Regarding claim 15, ‘252 as already cited per claim 1 does disclose fabric sandwiching/enclosing a foam layer and the combined teachings above teach the foam of ‘252 being modified to impact hardening foam per claim 11 as prima facie obvious those teachings apply to claim 15 in the same manner.
Regarding claim 16, ‘252 does not teach explicitly the specifically claimed two-way stretch material that has an axis of non-stretch.
‘252 does teach, “Any suitable, relatively stretchy woven or non-woven, wicking or non-wicking, natural or synthetic materials can be used, depending upon the specific need [par. 16].”. Clearly showing the known and highly variable nature of stretch properties of a material and the customizable nature of the stretch properties for a specific application.
‘461 further explicitly teaches, “Primary textiles can be comprised of a woven composition that provides structural integrity for the overall shape desired to suit the design as well as provide a stretching attribute to further secure the article on a user's head [par. 160].”. This teaching shows ‘461 recognizes that fabric structural integrity/rigidity and fabric stretch characteristics are both requirements for providing an apparel device with the desired fit on a user’s body.
Therefore it would have been obvious to one of ordinary skill in the art of apparel design and manufacture prior to filing the invention to modify the fabric used in ‘252 to include desired stretch and directional stability/lack of stretch in a fabric of an apparel device to provide the device with the desired fit on a user’s body.
Regarding claim 17, the combined teachings above do not teach the claimed “zero-way stretch fusible attached to said fabric in an area that, when said balaclava is worn by said wearer, is proximal to said crown of head of said wearer.”.
‘461 does teach, “In some implementations, the impact absorbing liner is configured and formed of multiple density materials fused or otherwise connected together in a multi-ply configuration. This configuration provides additional application flexibility. For example, by having an outer layer (farthest from the body of a wearer) that is dense and rigid, an inner layer can be softer, less dense and less rigid, allowing for a more comfortable fit without sacrificing protection. Additionally, a rigid layer can be interposed between two or more non-rigid layers. Further still, the rigid layer can be implemented as a series of “bones” that form a “skeletal” structure, which is in turn surrounded or layered on top and/or the bottom by non-rigid layers. The rigid layer can fully cover the part with consistent thickness or have variable thicknesses and contours as needed for specific design requirements. The layer can be different from the other layers in size and shape or it can be identical to the non-rigid layers as needed for specific applications [par. 152].”; and “In one exemplary implementation, a hard shell can be applied as needed for additional protection in specific locations. The thickness of the shell can vary to suit applications however an anticipated range can be, but not limited to, 0.01″ thru 0.25″. This method can be particularly useful for baseball or other similar applications where a projectile can impact a user's head [par. 163].”.
These recitations do teach ‘zero stretch fusibles’ attached to fabric proximate to the head of a user. That are added to desired areas in for forming rigid areas of added protection.
Therefore it would have been obvious to one of ordinary skill in the art of apparel design and manufacture prior to filing the invention to add rigid/zero stretch material to a protective apparel device to enhance impact protection to the device.
Regarding claim 18, wherein said balaclava includes at least one pocket (‘252 discloses interior pocket 152).
Regarding claim 19, the combined teachings above already establish prima facie obviousness regarding the ‘impact hardening foam’. Regarding the mesh limitations, ‘252 does disclose in fig. 8, sections that would include both foam and mesh that covers opening 255 to allow for ventilation and rigidity beyond open space.
Regarding claim 21, the balaclava of ‘252 fully discloses a structure that is capable of wear under a helmet to protect against concussion in said wearer. It is noted this functional limitation does not define any specific levels of protection from concussion. The fabric and fabric sandwich disclosed in ‘252 is a layer of material that provides as least some added level of protection beyond that of a lack of material.
Further the combined teachings of ‘252 in view of ‘461 as applied to claim 1 above does inherently result in a balaclava device that would be functional to provide added protection against a concussion.
Therefore it would have been obvious to one of ordinary skill in the art of body worn devices prior to filing the invention to modify the device and sandwiched fabric/foam of ‘252 to be modified to add to or replace the foam of the sandwich with semi-rigid/ open celled polyurethane foam that hardens on impact which is sized and placed as desired for any application to provide the desired levels of optimum comfort, impact reduction, and overall product integrity; while also being formed to be worn with/into existing headgear or to fit a unique profile needed for a specific application, including wear underneath a helmet to add protection against impacts that may result in a concussion.
Claim 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over ‘252 in view of US 2017/0105461 as applied to claims above, and further in view of US 1,095,089 (Dunn).
The combined teachings do not teach the claimed opposing ear covering perforations.
However, ‘089 does teach a protective head covering garment and states: “An ear portion 17 having perforations 17 is provided on each side of the garment so as to allow the wearer to clearly distinguish sounds and to allow the escape of the air from the interior of the head section (par. 12).”.
Therefore it would have been obvious to one of ordinary skill in the art of apparel manufacture prior to filing the invention to modify a head covering device to include perforations on each side of the head near or on the ears of the wearer to allow the wearer to clearly distinguish sounds while wearing the device.
Response to Arguments
Applicant's arguments filed 3/26/2026 have been fully considered but they are not persuasive.
It is noted applicants remarks are drawn to the previous rejection.
It is further noted current rejection above has been modified to a different rationale than previous rejections but still uses the same prior art references.
Remarks and arguments to previous rejections do not apply to current rejection rationale.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Various references to balaclavas, head worn devices and non-newtonian foam protective materials are attached to establish the general state of the prior art.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT H MUROMOTO JR whose telephone number is (571)272-4991. The examiner can normally be reached M-Th 730-1730.
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/ROBERT H MUROMOTO JR/Primary Examiner, Art Unit 3732
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