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 Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
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, 10 and 16 and the claims that depend therefrom 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. It is unclear what the metes and bounds of “generally constructed of a substantially porous material” would be, what material would or would not read on “substantially porous”. Further, it is unclear if “generally” requires the substantially porous material or not.
Claims 2, 11 and 16 and the claims that depend therefrom 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. It is unclear what the limitation “wherein one or more of the cloak portion and head shroud portion is configured to form a volume and barrier around a user that initially retains body heat, then cools and dissipates the body heat through the barrier at generally ambient temperature” requires structurally or materially of the cloak portion. It is unclear what is required to retain body heat, then cool the wearer at a ambient temperature. It is unclear if additional structure is being required or not.
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 and 2 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Duvall et al. (US 2019/0254410).
In regard to claim 1, Duvall et al. teaches a counter-thermal garment comprising: a cloak portion configured to generally cover a torso of a user (figure 4), the cloak portion having one or more arm portions (figure 5, paragraphs 0035-0036), each arm portion having a drawstring and channel system configured to adjust arm portion length (cord: 250); and a head shroud portion attached to the cloak portion (hood: 130); wherein the counter-thermal garment is generally constructed of a substantially porous material (paragraph 0026).
In regard to claim 2, Duvall et al. teaches wherein one or more of the cloak portion and head shroud portion is configured to form a volume and barrier around a user that initially retains body heat (hood: 130, body portion: 220), then cools and dissipates the body heat through the barrier at generally ambient temperature (body portion is made of Gortex: paragraph 0026, which dissipates body heat).
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) 1-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gonzales (US 4,158,892) in view of Blechman (US 6,317,894) and McCray (US 2024/0065347).
In regard to claim 1, Gonzales teaches a counter-thermal garment (article: 10) comprising: a cloak portion configured to generally cover a torso of a user (see figures 1 and 2), the cloak portion having one or more arm portions (jacket arms: 19, 19); and a head shroud portion attached to the cloak portion (head shroud/hook: 20, 21).
However, Gonzales fails to teach each arm portion having a drawstring and channel system configured to adjust arm portion length and wherein the counter-thermal garment is generally constructed of a substantially porous material.
Blechman teaches a sleeve adjusting mechanism (figures 1-3 and abstract); wherein each arm portion having a drawstring and channel system configured to adjust arm portion length (see figures 1-3, abstract and column 4, lines 21-29 and column 3, lines 38-42).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the sleeves of Gonzales with the sleeve adjustment system as taught by Blechman, since the sleeves of Gonzales provided with length adjustments would provide a sleeve that can be adjusted to properly fit the user’s arm.
McCray teaches a counter-thermal garment that is generally constructed of a substantially porous material (paragraph 0095).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the garment of Gonzales in the porous material as taught by McCray, since the garment of Gonzales provided in a PTFE/Gortex material would provide a breathable, but waterproof material protecting the user from moisture while allowing for breathability.
In regard to claim 2, the combined references teach wherein one or more of the cloak portion and head shroud portion is configured to form a volume and barrier around a user that initially retains body heat, then cools and dissipates the body heat through the barrier at generally ambient temperature (McCray: paragraph 0095, PTFE/Gortex material).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the garment of Gonzales in the porous material as taught by McCray, since the garment of Gonzales provided in a PTFE/Gortex material would provide a breathable, but waterproof material protecting the user from moisture while allowing for breathability and dissipation of body heat.
In regard to claim 3, Gonzales teaches wherein the cloak portion further having a first front opening (see zipper: 26 or zipper: 34).
In regard to claim 4, the combined references teach further comprising a magnet closure adjacent the first front opening (McCray: paragraph 0067 and figures 1-2).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the zippered opening of Gonzales with zipper and magnetic closures as taught by McCray, since the openings of Gonzales being zippers and magnets would provide a magnetic storm flap covering the zipper creating a more protected fastener.
In regard to claim 5, Gonzales teaches wherein the first front opening is vertically oriented (see zipper 26 or zipper 34).
In regard to claim 6, Gonzales teaches the head shroud portion further having a face veil (hood: 20 and 21 has face veil portions 21 as seen in figures 1 and 2).
In regard to claim 7, Gonzales teaches the face veil having a first front opening (see snaps: 23 in figures 1 and 2).
In regard to claim 8, Gonzales teaches wherein the face veil front opening is vertically oriented (see figure 2).
In regard to claim 9, Gonzales teaches further comprising a snap closure adjacent the face veil front opening (see figures 1 and 2, snap fastener: 23).
However, Gonzales fails to teach the snap closure being a magnetic closure.
McCray teaches the use of magnetic closures on cloak garments to secure them around the user’s body (see figure 2 and paragraph 0067).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have replaced the snap closure of Gonzales with a magnetic closure as taught by McCray, since the closure of Gonazles being a magnetic closure would provide a closure that is easy to fasten and unfasten with one hand.
In regard to claim 10, Gonzales teaches a counter-thermal garment (article: 10) comprising: a cloak portion configured to generally cover a torso of a user and a backpack (see figures 1 and 2, capable of covering backpack as desired), the cloak having a head opening adjacent the top of the article (see figure 2); the cloak portion having one or more arm portions (jacket arms: 19, 19); and a head shroud portion attached to the cloak portion (head shroud/hook: 20, 21); wherein the cloak portion having a first front vertically orientated opening (see zipper: 26 or zipper: 34); wherein the head shroud portion further having a face veil (hood: 20 and 21 has face veil portions 21 as seen in figures 1 and 2), the face veil having a first front opening (see snaps: 23 in figures 1 and 2), wherein the face veil front opening is vertically oriented (see figure 2); and a snap closure adjacent the face veil front opening (see figures 1 and 2, snap fastener: 23).
However, Gonzales fails to teach each arm portion having a drawstring and channel system configured to adjust arm portion length and wherein the counter-thermal garment is generally constructed of a substantially porous material; and the closures being magnetic.
Blechman teaches a sleeve adjusting mechanism (figures 1-3 and abstract); wherein each arm portion having a drawstring and channel system configured to adjust arm portion length (see figures 1-3, abstract and column 4, lines 21-29).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the sleeves of Gonzales with the sleeve adjustment system as taught by Blechman, since the sleeves of Gonzales provided with length adjustments would provide a sleeve that can be adjusted to properly fit the user’s arm.
McCray teaches a counter-thermal garment that is generally constructed of a substantially porous material (paragraph 0095); and wherein further comprising a magnet closure adjacent the first front opening (McCray: paragraph 0067 and figures 1-2).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the garment of Gonzales in the porous material as taught by McCray, since the garment of Gonzales provided in a PTFE/Gortex material would provide a breathable, but waterproof material protecting the user from moisture while allowing for breathability.
It would have been further obvious before the effective filing date to one having ordinary skill in the art to have provided the zippered opening of Gonzales with zipper and magnetic closures as taught by McCray, since the openings of Gonzales being zippers and magnets would provide a magnetic storm flap covering the zipper creating a more protected fastener.
In regard to claim 11, the combined references teach wherein one or more of the cloak portion and head shroud portion is configured to form a volume and barrier around a user that initially retains body heat, then cools and dissipates the body heat through the barrier at generally ambient temperature (McCray: paragraph 0095, PTFE/Gortex material).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the garment of Gonzales in the porous material as taught by McCray, since the garment of Gonzales provided in a PTFE/Gortex material would provide a breathable, but waterproof material protecting the user from moisture while allowing for breathability and dissipation of body heat.
In regard to claim 12, Gonzales teaches the cloak portion further having a second front opening located above the cloak portion first front, vertically oriented opening with a zipper closure (second opening is 26 and first opening is 34).
However, Gonzales fails to teach the closure being magnetic closure.
McCray teaches a magnet closure adjacent the front opening (McCray: paragraph 0067 and figures 1-2).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the zippered opening of Gonzales with zipper and magnetic closures as taught by McCray, since the openings of Gonzales being zippers and magnets would provide a magnetic storm flap covering the zipper creating a more protected fastener.
In regard to claim 13, Gonzales teaches the cloak portion further having an uneven bottom edge (see figure 1 and 2).
In regard to claim 14, Blechman teaches wherein arm portion length is adjustable through the drawstring and channel system at an aperture in the drawstring and channel system that is located adjacent one or more of a distal arm portion end and a shoulder portion of the cloak portion (see figures 1-3, abstract and column 4, lines 21-29 and column 3, lines 38-42).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the sleeves of Gonzales with the sleeve adjustment system as taught by Blechman, since the sleeves of Gonzales provided with length adjustments would provide a sleeve that can be adjusted to properly fit the user’s arm.
In regard to claim 15, Blechman teaches further comprising one or more pockets for retaining excess drawstring adjacent to the aperture in the drawstring and channel system (see figure 1, pocket: 3).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the sleeves of Gonzales with the sleeve adjustment system as taught by Blechman, since the sleeves of Gonzales provided with length adjustments would provide a sleeve that can be adjusted to properly fit the user’s arm.
In regard to claim 16, Gonzales teaches a counter-thermal garment (article: 10) comprising: a cloak portion configured to generally cover a torso of a user and a backpack (see figures 1 and 2, capable of covering backpack as desired), the cloak having a head opening adjacent the top of the article (see figure 2); a first front, vertically oriented opening (zipper 34); and a second front opening located above the first front (zipper 26), vertically orientated opening; arm portions (jacket arms: 19, 19); an uneven bottom edge (see figures 1 and 2); and a head shroud portion attached to the cloak portion (head shroud/hook: 20, 21); wherein the cloak portion having a first front vertically orientated opening (see zipper: 26 or zipper: 34); wherein the head shroud portion further having a face veil configured to overlay the cloak portion (hood: 20 and 21 has face veil portions 21 as seen in figures 1 and 2), the face veil having a first front opening (see snaps: 23 in figures 1 and 2), wherein the face veil front opening is vertically oriented (see figure 2); and wherein a snap closure adjacent the face veil front opening (see figures 1 and 2, snap fastener: 23).
However, Gonzales fails to teach each arm portion having a drawstring and channel system configured to adjust arm portion length and wherein the counter-thermal garment is generally constructed of a substantially porous material; the closures being magnetic; and wherein one or more of the cloak portion and head shroud portion is configured to form a volume and barrier around a user that initially retains body heat, then cools and dissipates the body heat through the barrier at generally ambient temperature.
Blechman teaches a sleeve adjusting mechanism (figures 1-3 and abstract); wherein each arm portion having a drawstring and channel system configured to adjust arm portion length (see figures 1-3, abstract and column 4, lines 21-29).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the sleeves of Gonzales with the sleeve adjustment system as taught by Blechman, since the sleeves of Gonzales provided with length adjustments would provide a sleeve that can be adjusted to properly fit the user’s arm.
McCray teaches a counter-thermal garment that is generally constructed of a substantially porous material (paragraph 0095); and wherein further comprising a magnet closure adjacent the first front opening (McCray: paragraph 0067 and figures 1-2); and wherein one or more of the cloak portion and head shroud portion is configured to form a volume and barrier around a user that initially retains body heat, then cools and dissipates the body heat through the barrier at generally ambient temperature (paragraph 0095, PTFE/Gortex material).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the garment of Gonzales in the porous material as taught by McCray, since the garment of Gonzales provided in a PTFE/Gortex material would provide a breathable, but waterproof material protecting the user from moisture while allowing for breathability.
It would have been further obvious before the effective filing date to one having ordinary skill in the art to have provided the zippered opening of Gonzales with zipper and magnetic closures as taught by McCray, since the openings of Gonzales being zippers and magnets would provide a magnetic storm flap covering the zipper creating a more protected fastener.
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the garment of Gonzales in the porous material as taught by McCray, since the garment of Gonzales provided in a PTFE/Gortex material would provide a breathable, but waterproof material protecting the user from moisture while allowing for breathability and dissipation of body heat.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure and can be found cited in PTO-892 form submitted herewith. The cited prior art to Villaruz (US 11,083,278) is of particular relevance to the claimed invention.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Clinton T Ostrup can be reached at (571)272-5559. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ALISSA L. HOEY
Primary Examiner
Art Unit 3732
/ALISSA L HOEY/Primary Examiner, Art Unit 3732