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 .
Examiner’s Comment
Applicant’s attempted authorization of communications via internet electronic mail was improperly submitted by email rather than filed as a separate paper. As set forth in MPEP §§ 502.03, 713.01 such authorization must be filed separately to avoid confusion in the record. Examiner submits that the applicant has not yet properly filed the authorization.
Examiner reminds the applicant that the general policy of the Office is that applicants are not permitted to shift to claim another invention after an election is made and an Office action on the merits is made on the elected invention. Specifically, the applicant may not disaffirm or change their election, as a matter of right, after making an oral election and receiving an Office action based upon that oral election in a pending application. See 37 CFR 1.142(b). In addition, the applicant cannot, as a matter of right, file a request for continued examination (RCE) on claims that are independent and distinct from the claims previously claimed and examined (i.e., applicant cannot switch inventions by way of an RCE as a matter of right). See MPEP § 706.07(h), subsection VI.(B). When claims are presented which the examiner finds are drawn to an invention other than the one elected, he or she should treat the claims as outlined in MPEP § 821.03. See MPEP § 819.
Notice of Non-responsive Amendment
The reply filed on 09 July 2026 is not fully responsive to the prior Office action because of the following omission(s) or matter(s): The amendment improperly introduces subject matter (e.g., upper vent, a recess to accommodate the temple when the temple is rotated relative to the frame) from withdrawn and non-elected claims 1-18 into elected claims 19-22, 24-32, and 34, and adds claims 36-52 with subject matter (e.g., upper vent, a recess to accommodate the temple when the temple is rotated relative to the frame) from withdrawn and non-elected claims 1-18, which were not part of the originally elected invention. See Response to Election/Restriction filed 06 March 2026 and Requirement for Restriction/Election dated 06 January 2026 (elected invention I(b), Claims 19-35). This amendment fails to comply with the restriction requirement and elected scope. See 37 CFR 1.111.
Election/Restriction
Newly submitted claims 36-52 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: Claims 37-52 are independent from the invention originally elected and incorporate subject matter from non-elected inventions (e.g., upper vent, a recess to accommodate the temple when the temple is rotated relative to the frame). Claim 36 incorporates subject matter from non-elected inventions originally presented in non-elected claims 1-18.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 36-52 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Response to Arguments
Applicant's arguments filed 09 July 2026 have been fully considered but they are not persuasive. Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Please see response to arguments below in the present Office action.
Applicant’s arguments with respect to claim(s) 19-22, 24-32, and 34 have been considered but are moot because the new ground of rejection does not rely on the same reference(s) applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
In response to the applicant's argument that "The Office relies on Freeman's shield 40 as disclosing the claimed shield, but admits that Freeman does not teach "the shield is configured to rotate with respect to the frame." Office Action, p. 16. Accordingly, Freeman does not anticipate amended claim 19. Additionally, while Calilung does disclose a rotating component (retention mechanism 106c) and is relied upon by the Office for such disclosure, retention mechanism 106c does not "selectively form a vent with the frame" in an "extended position" as claimed. Calilung, FIG. 2D. The term "distal" in the feature "the surface of the shield being distal from the side portion of the frame along the arc when the shield is in the closed position" is not a relative term introducing ambiguity, but is used to specify the claimed "closed position" as compared to the claimed "extended position." As shown in FIG. 2, surface 206 is distal from side portion 112 of frame 102 along arc 204 when shield 106 is in closed position 202b, as compared to its placement in extended position 202a shown in FIG. 2," the Examiner traverses. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). See §§ 112(b) and 103 rejection(s) below in the present Office action for further guidance and support. In the instant case, Calilung teaches head worn supports with passive venting and a removable lens ([0004]) comprising an eyeglass (100; [0057]), wherein a retention mechanism (106c; [0058]) is configured to rotate relative to a frame (104; [0058]; figs. 2a-2d). Figures 2a-2d further illustrate the arc of the retention mechanism between an extended (fig. 2a) and closed position (fig. 2d), wherein a surface of the shield (retention mechanism 106b; [0055]) is distal from a side portion of the frame (door 202 of the active retention mechanism 106c; [0058]) along the arc (106c, e.g., figs. 2b-2c) when the shield is in a closed position (as seen in fig. 2d). Therefore, it would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to modify the eyewear of Freeman to include the technical feature of a shield rotating relative to an eyewear frame, for the purpose of allowing temples to be folded in without disengaging other components of an eyewear, providing lens retention and stabilization, and providing venting while preventing unwanted light, wind, particles, or other debris from contacting the eye of a user, as taught by Calilung ([0035], [0053], [0058]). Furthermore, one of ordinary skill in the art would have a reasonable expectation of success when making this modification because Freeman explicitly teaches the shield having an adjustable section that separates or moves away from the remainder or a portion of the shield creating a vent, for the purpose of allowing air to more easily enter behind the lenses of the eyewear, as taught by Freeman ([0006]).
In response to the applicant's argument that "Further, a person of ordinary skill in the art (POSA) would not have modified Freeman's shield 40 to be rotatable with respect to the frame while being attached to the frame, as claimed, because its attachment interface is designed entirely for linear engagement of shield 40 to eyewear. Accordingly, adding rotational attachment of Freeman's shield 40 to eyewear 1 would change the operating principle of Freeman. Freeman, FIG. 2; MPEP § 2143.01(VI) ("If the proposed modification or combination of the prior art would change the principle of operation of the prior art invention being modified, then the teachings of the references are not sufficient to render the claims prima facie obvious.")," the Examiner traverses. Counsel's assertion that is merely an argument unaccompanied by evidentiary support, and, thus, is insufficient to rebut Examiner's finding of obviousness. Arguments of counsel cannot take the place of evidence in the record. In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965); In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997) (“An assertion of what seems to follow from common experience is just attorney argument and not the kind of factual evidence that is required to rebut a prima facie case of obviousness.”). MPEP § 2145, 716.01(c). Examiner invites the applicant to provide evidence and data proving that “a person of ordinary skill in the art (POSA) would not have modified Freeman's shield 40 to be rotatable with respect to the frame while being attached to the frame, as claimed, because its attachment interface is designed entirely for linear engagement of shield 40 to eyewear.” Examiner reminds the applicant that the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). “A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton.” KSR, 550 U.S. at 421, 82 USPQ2d at 1397. “[I]n many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle.” Id. at 420, 82 USPQ2d at 1397. Office personnel may also take into account “the inferences and creative steps that a person of ordinary skill in the art would employ.” Id. at 418, 82 USPQ2d at 1396. See MPEP § 2141.
Applicant's arguments do not comply with 37 CFR 1.111(c) because they do not clearly point out the patentable novelty which they think the claims present in view of the state of the art disclosed by the references cited or the objections made. Further, they do not show how the amendments avoid such references or objections. Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references.
Drawings
The applicant' s drawings submitted are acceptable for examination purposes.
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 19-22, 24-32, and 34 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
With respect to Claim 19, “a shield removably attached to the frame or the temple, the shield selectively forming a vent with the frame” is indefinite, for the limitation does not clearly define the conditions or manner in which the shield “selectively” forms a vent with the frame. The relative terminology of “selectively” is ambiguous, for it does not specify whether the vent is formed by manipulating the shield. A person having ordinary skill in the art cannot determine with reasonable certainty when the shield is in a vent-forming configuration and when it is not. The broadest reasonable interpretation of a system (or apparatus or product) claim having structure that performs a function, which only needs to occur if a condition precedent is met, requires structure for performing the function should the condition occur. See MPEP § 2111.04 (II). In the current instance, “the shield selectively forming a vent with the frame…” implies a hypothetical or conditional scenario without clarifying the structure or whether the claimed limitation is a necessary or optional aspect of the product(s). This creates uncertainty about whether the claimed elements and limitations are required or merely illustrative.
For the prosecution on merits, examiner interprets the claimed subject matter described above as introducing optional elements, optional structural limitations, optional expressions, and optional functionality within an eyewear.
Applicant should clarify the claim limitations as appropriate. Care should be taken during revision of the description and of any statements of problem or advantage, not to add subject-matter which extends beyond the content of the application (specification) as originally filed.
If the language of a claim, considered as a whole in light of the specification and given its broadest reasonable interpretation, is such that a person of ordinary skill in the relevant art would read it with more than one reasonable interpretation, then a rejection of the claims under 35 U.S.C. 112, second paragraph, is appropriate. See MPEP 2173.05(a), MPEP 2143.03(I), and MPEP 2173.06.
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.
Claims 19-22, 24-25, 28-30, and 32 are rejected under 35 U.S.C. 103 as being unpatentable over Freeman US 20210322222 A9 in view of Calilung et al. US 20200113738 A1 (herein after "Calilung").
With respect to Claim 19, Freeman discloses eyewear (eyewear 1; [0039]), comprising:
a frame (frame 20; [0040]);
a lens (one or more lenses 2; [0040]) comprising an inner surface (rear surface 4; [0039]) facing an eye of a wearer (surface facing toward face of wearer; [0038]) in an as-worn configuration (eyewear 1 shown being worn by user; [0034]; figs. 8-9);
a temple (pair of temple arms 28; [0043]) attached to the frame (temple arms 28 connected to laterally opposed frame ends 23 of frame 20; [0043]); and
a shield (shield 40; [0045]) removably attached to the frame (shield 40 may be removed from frame 20; [0045]) OR the temple (pair of temple arms 28; [0043]), the shield (shield 40; [0045]) selectively ([0048]) forming a vent (shield 40 separates from eyewear 1 or face of wearer creating a vent 60; [0048]) with the frame (air flow through vent 60 created by opening of shield 40 at top of frame 20; [0057]),
in which the shield (shield 40; [0045]) forms the vent with the frame (air flow through vent 60 created by opening of shield 40 at top of frame 20; [0057]), the vent (vent 60; [0048]) being defined by a surface (fixed portion 47; [0049]; figs. 7c-7d) of the shield (shield 40; [0045]) and a surface (left and right shield ends 43; [0045]) of a side portion (left and right frame ends 23; [0047]) of the frame (frame 20; [0040]), the surface (fixed portion 47; [0049]; figs. 7c-7d) of the shield (shield 40; [0045]) being distal (as seen in figs. 7c-7d) from the side portion (left and right frame ends 23; [0047]) of the frame (frame 20; [0040]).
Freeman does not appear to explicitly teach the following limitation(s): wherein the shield is configured to rotate with respect to the frame, while being attached to the frame, along an arc between an extended position, and a closed position, a surface of the shield being distal from the side portion of the frame along the arc when the shield is in the closed position.
However, in the same field of endeavor, Calilung teaches head worn supports with passive venting and a removable lens ([0004]) comprising an eyeglass (100; [0057]), wherein a retention mechanism (106c; [0058]) is configured to rotate relative to a frame (104; [0058]; figs. 2a-2d). Figures 2a-2d further illustrate the arc of the retention mechanism between an extended (fig. 2a) and closed position (fig. 2d), wherein a surface of the shield (retention mechanism 106b; [0055]) is distal from a side portion of the frame (door 202 of the active retention mechanism 106c; [0058]) along the arc (106c, e.g., figs. 2b-2c) when the shield is in a closed position (as seen in fig. 2d).
Therefore, it would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to modify the eyewear of Freeman to include the technical feature of a shield rotating relative to an eyewear frame, for the purpose of allowing temples to be folded in without disengaging other components of an eyewear, providing lens retention and stabilization, and providing venting while preventing unwanted light, wind, particles, or other debris from contacting the eye of a user, as taught by Calilung ([0035], [0053], [0058]). Furthermore, one of ordinary skill in the art would have a reasonable expectation of success when making this modification because Freeman explicitly teaches the shield having an adjustable section that separates or moves away from the remainder or a portion of the shield creating a vent, for the purpose of allowing air to more easily enter behind the lenses of the eyewear, as taught by Freeman ([0006]).
With respect to Claim 20, Freeman in view of Calilung teaches the eyewear (eyewear 1; [0039]) of claim 19, wherein the shield (shield 40; [0045]) is spaced from (left and right shield ends 43 of shield 40 mate with engagement or attachment portions 55 on left and right frame ends 23 of frame 20, holding shield 40 in place; [0047]; figs. 2-3) side portion (left and right frame ends 23; [0047]) of the frame (frame 20; [0040]) when the shield is in the extended position (fig. 7d; Freeman).
With respect to Claim 21, Freeman in view of Calilung teaches the eyewear (eyewear 1; [0039]) of claim 19, wherein the shield (shield 40; [0045]) abuts (left and right shield ends 43 of shield 40 mate with engagement or attachment portions 55 on left and right frame ends 23 of frame 20, holding shield 40 in place; [0047]) side portion (left and right frame ends 23; [0047]) of the frame (frame 20; [0040]) when the shield is in the extended position (fig. 7d; Freeman).
With respect to Claim 22, Freeman in view of Calilung teaches the eyewear (eyewear 1; [0039]) of claim 19, wherein the temple (pair of temple arms 28; [0043]) is attached to the frame (temple arms 28 connected to frame ends 23 of frame 20; [0043]) by a hinge (temple arms 28 pivot with respect to lenses 2 and frame 20 via temple arms 28 formed of extender 29; [0043]).
Freeman does not appear to explicitly teach the following limitation(s): and wherein the shield comprises a recess configured to accommodate rotation of the temple relative to the frame and the shield while the shield remains in the extended position.
However, Calilung further teaches head worn supports with passive venting and a removable lens ([0004]) comprising an eyeglass (100; [0057]), wherein a retention mechanism (106c; [0058]) of terminal recesses 106a-c of the frame 104 is configured to rotate relative to a frame (104; [0054-8]; figs. 2a-2d). Figures 2a-2d further illustrate the retention mechanism (106c; [0058]) of terminal recesses 106a-c being configured to pivot or slide relative to the frame 104 and/or earstem 102b while the shield (retention mechanism 106b; [0055]) remains in an extended position (fig. 2a).
Therefore, it would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to modify the eyewear of Freeman to include the technical feature of a shield and earstems rotating relative to an eyewear frame, for the purpose of allowing temples to be folded in without disengaging other components of an eyewear, providing lens retention and stabilization, and providing venting while preventing unwanted light, wind, particles, or other debris from contacting the eye of a user, as taught by Calilung ([0035], [0053], [0058]).
With respect to Claim 24, Freeman in view of Calilung teaches the eyewear (eyewear 1; [0039]) of claim 19, further comprising: a fluid channel (clasp 70 could operate if disposed at lateral sides of eyewear 1, direction of air flow through vent created by opening of seal at top of frame via clasp and air leaving; [0032], [0050]) extending along an inner surface (inner surface within earpiece 30; [0043]; figs. 7a-7b) of the temple (temple arms 28 formed of earpiece 30; [0043]), the inner surface (inner surface within earpiece 30; [0043]; figs. 7a-7b) of the temple (temple arms 28 formed of earpiece 30; [0043]) facing the head of the wearer (surface facing toward face of wearer; [0038]) in as-worn configuration (eyewear 1 shown being worn by user; [0034]; figs. 8-9), wherein the fluid channel (clasp 70; [0050]) comprises a bottom surface (clasp base 71 serves as seat of clasp 70; [0050]) bordered by a wall (clasp base 71 formed with one or more upwardly extending walls 81; [0050]), and wherein the wall (walls 81; [0050]) terminates at an opening (walls 81 formed with notches 82; [0050]).
Freeman does not appear to explicitly teach the following limitation(s): an opening disposed beyond an ear of the wearer in a direction away from the frame in the as-worn configuration.
However, Calilung further teaches head worn supports with passive venting and a removable lens ([0004]) comprising an eyeglass (100; [0057]), wherein earstems (102a, 102b; [0058]) with sidewalls (figs. 2b-2b) have holes (in passive venting systems, holes introduced into structures of frames, and/or lenses; [0034]) at the ends farthest away from the frame (frame 104; [0058]; holes at earstem 102a, 102b ends as seen in as-worn configurations figs. 2b-2d).
Therefore, it would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to modify the eyewear of Freeman to include the technical feature of a sidewall comprising an opening disposed near the end of an eyewear temple, for the purpose of providing a path for air to travel from one side of head-worn support to another to increase air flow, and providing passive venting through pathways and smooth rear profile(s) to allow laminar flow of air, as taught by Calilung ([0034-35]).
With respect to Claim 25, Freeman in view of Calilung teaches the eyewear (eyewear 1; [0039]) of claim 24, the temple (pair of temple arms 28; [0043]) further comprising a temple vent (exit vents 102; [0057]; Freeman).
Freeman does not appear to explicitly teach the following limitation(s): the temple vent disposed through the bottom surface of the fluid channel.
However, Calilung further teaches an eyeglass (100; [0057]), wherein a door (202 [0011], [0054]) configured to secure the lens (108; [0048]) to the frame (104; [0048]) when the earstem(s) (102a, 102b; [0058]) transitions is disposed on the bottom surface near the space between the lens (108; [0048]) and the frame (104; [0048]) for passive venting ([0048]).
Therefore, it would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to modify the eyewear of Freeman to include the technical feature of a door connected to an earstem(s) disposed near a bottom surface of a gap for passive venting, for the purpose of facilitating laminar flow of air to assist in venting a lens and allowing temples to be folded in without disengaging other components of an eyewear, as taught by Calilung ([0048]). Furthermore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to rearrange the temple vent to be disposed on a bottom surface of the fluid channel, since it has been held that rearranging parts of an invention involves only routine skill in the art In re Japikse, 86 USPQ 70. See MPEP § 2144.
With respect to Claim 28, Freeman in view of Calilung teaches the eyewear (eyewear 1; [0039]) of claim 24, wherein the vent (vent 60; [0048]) is disposed between (figs. 7b) the lens (one or more lenses 2; [0040]) and the fluid channel (clasp 70 could operate if disposed at lateral sides of eyewear 1, direction of air flow through vent created by opening of seal at top of frame via clasp and air leaving; [0032], [0050]) to increase the volume of air flowing across (adjustable shield which user can selectively operate to increase or decrease air flow into cavity or area between eyewear and user's face; [0005]) the inner surface (rear surface 4; [0039]) of the lens (one or more lenses 2; [0040]) and through the fluid channel (clasp 70; [0050]) according to the Venturi effect (arrows show direction of air flow through vent 60 created by opening of seal at top of frame 20 and show air leaving cavity between face of wearer and eyewear 1 at exit vents 102 in lower portions of shield 40; [0032]; fig. 7d; Freeman).
With respect to Claim 29, Freeman in view of Calilung teaches the eyewear (eyewear 1; [0039]) of claim 19, further comprising an anti-skid portion (upper sealing portion of shield 40; [0030]) disposed on and extending beyond (extending beyond top portion of eyewear 1 as seen in fig. 9) a top portion (fig. 9) of the eyewear (eyewear 1; [0039]) disposed above the lens (one or more lenses 2; [0040]) in the as-worn configuration (fig. 9), the coefficient of friction between the anti-skid portion (upper sealing portion; [0030]) and a surface (rearward surface 42; [0045]; figs. 7c-7d) being greater than the coefficient of friction between the top portion (upper sealing portion of shield 40; [0030]) of the eyewear (eyewear 1; [0039]) and the surface (rearward surface 42 in contact with face of wearer to create substantial seal with face of wearer, shield 40 formed from differing materials such as more rigid material where shield 40 interfaces with portions of frame 20 and more resilient material where it interfaces with face of wearer and where shield 40 is designed to move from open position to closed position; [0045]; Freeman).
With respect to Claim 30, Freeman in view of Calilung teaches the eyewear (eyewear 1; [0039]) of claim 29, the shield (shield 40; [0045]) further comprising an upper portion abutting (shield 40 has contoured front surface 41 that abuts rearward surface 24 of frame 20 or to rearward surface 4 of lenses 2, creating substantial seal with eyewear 1; [0045]) at least one of a top portion (rearward surface 24; [0045]; fig. 3) of the frame (frame 20; [0040]) disposed above the lens (one or more lenses 2; [0040]) in the as-worn configuration (figs. 3, 9) OR a top portion of the temple (pair of temple arms 28; [0043]) disposed between an inner surface and an opposing outer surface of the temple, the inner surface of the temple facing the head of the wearer in the as-worn configuration,
wherein the upper portion (contoured front surface 41; [0045]) comprises the anti-skid portion (upper sealing portion; [0030]; figs. 2, 9; Freeman).
With respect to Claim 32, Freeman in view of Calilung teaches the eyewear (eyewear 1; [0039]) of claim 19, the frame (frame 20; [0040]) OR the temple (pair of temple arms 28, clasp 70 could operate if disposed at lateral sides of eyewear 1; [0043], [0050]) further comprising a slot (catch 72; [0050]), and
the shield (shield 40; [0045]) further comprising a hook (clasp 70 of shield 40 comprising cam follower 73 having hook portion 74; [0050]) that releasably engages (figs. 4-5d) the slot (hook portion 74 received in catch 72; [0050]) when the shield (shield 40; [0045]) is in the extended position (fig. 7d; Freeman).
Claims 26 and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Freeman US 20210322222 A9 in view of Calilung et al. US 20200113738 A1 (herein after "Calilung") as applied to Claim 25 above, and further in view of Kopfer US 5191364 A.
With respect to Claim 26, Freeman in view of Calilung teaches the eyewear (eyewear 1; [0039]) of claim 25, further comprising a nose pad (nose bridge 22, nose support member directly attached to lenses 2 of eyewear 1; [0041-42]).
Freeman in view of Calilung does not appear to explicitly teach the following limitation(s): the nose pad comprising a nose pad vent.
However, in the same field of endeavor, Kopfer teaches protective eyewear for use in sports and the like (col. 1, lines 15-25) wherein, a diverging web of a frame within eyeglasses (col. 2, lines 25-45; fig. 7) comprises a plurality of vent holes within the frame (vents 73; fig. 7; col. 2, lines 25-45) and a ram air intake disposed in the nose bridge area (ram air intake 51; fig. 7; col. 2, lines 25-45) for directing filtered air into the eye chamber through the vent holes (col. 4, lines 61-66). The various vent holes and air intakes are covered with a thin breathable cellular foam material (col. 2, lines 25-45).
Therefore, it would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to modify the eyewear of Freeman in view of Calilung to further include the technical features of both a plurality of vent holes and a nose pad vent being comprised of breathable material within a diverging web of a frame, for the purpose of promoting circulation of air and thereby inhibit misting of an inner surface of lenses, shielding a user from external elements, and providing maximum peripheral visibility, as taught by Kopfer (col. 2, lines 25-45).
With respect to Claim 27, Freeman in view of Calilung and Kopfer teaches the eyewear (eyewear 1; [0039]) of claim 26, wherein the vent (vent 60; [0048]) and the temple vent (exit vents 102; [0057]) direct air across (direction of air flow through vent created by opening of seal at top of frame via clasp and air leaving cavity between face of wearer and eyewear at exit vents in lower portions of shield; [0032]) the inner surface (rear surface 4; [0039]) of the lens (one or more lenses 2; [0040]) and into the fluid channel (clasp 70; [0050]).
Freeman in view of Calilung does not appear to explicitly teach the following limitation(s): the nose pad vent are angled to direct air across the inner surface of the lens and into the fluid channel.
However, Kopfer further teaches protective eyewear for use in sports and the like (col. 1, lines 15-25) wherein, a diverging web of a frame within eyeglasses (col. 2, lines 25-45; fig. 7) comprises a plurality of vent holes within the frame (vents 73; plurality of vent holes to promote circulation of air and thereby inhibit misting of inner surface of lenses; fig. 7; col. 2, lines 25-45) and a ram air intake disposed in the nose bridge area (ram air intake 51; fig. 7; col. 2, lines 25-45) for directing filtered air into the eye chamber through the vent holes (col. 4, lines 61-66). The various vent holes and air intakes are covered with a thin breathable cellular foam material (col. 2, lines 25-45).
Therefore, it would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to modify the eyewear of Freeman in view of Calilung to further include the technical features of both a plurality of vent holes and a nose pad vent being comprised of breathable material within a diverging web of a frame, for the purpose of promoting circulation of air and thereby inhibit misting of an inner surface of lenses, shielding a user from external elements, and providing maximum peripheral visibility, as taught by Kopfer (col. 2, lines 25-45).
Claims 31 and 34 are rejected under 35 U.S.C. 103 as being unpatentable over Freeman US 20210322222 A9 in view of Calilung et al. US 20200113738 A1 (herein after "Calilung") and Kopfer US 5191364 A.
With respect to Claim 31, Freeman in view of Calilung teaches the eyewear (eyewear 1; [0039]) of claim 19, the frame (frame 20; [0040]) OR the temple (pair of temple arms 28; [0043]) further comprising an aperture (holes on frame 20; [0047]), and
the shield (shield 40; [0045]) further comprising a pin (pins located on shield 40; [0047]) to detachably attach (releasably connecting shield 40 to frame 20 via pin-hole interfaces; [0047]) to the aperture (pin-hole interfaces where pins located on shield 40 are inserted into holes on frame 20; [0047]) and the shield (shield 40; [0045]; Freeman) is rotatable (retention mechanism 106c; [0058], configured to rotate relative to a frame (104; [0058]; figs. 2a-2d; Freeman in view of Calilung; see Claim 19).
Freeman in view of Calilung does not appear to explicitly teach the following limitation(s): such that the pin is rotatable within the aperture and the shield is rotatable about the aperture via the pin.
However, in the same field of endeavor, Kopfer teaches protective eyewear for use in sports and the like (col. 1, lines 15-25) comprising a frame including a pair of temple bar stubs attached to the frame (col. 3, lines 4-25), wherein the temple bar stubs are pivotally attached to each temple bar stub through a pivot pin and hole engagement configuration (col. 3, lines 4-25). Fixed positioning of the eyeglasses is accomplished by temple bars and each temple bar includes a receiving segment having a pivot pin, rack receiving recess, and an earpiece receiving channel (col. 3, lines 4-25). Kopfer further teaches the angle of the frame, with respect to the user's face, being dependent upon which particular tooth of the rack segment engages the pawl members.
Therefore, it would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to modify the eyewear of Freeman in view of Calilung to include the technical features of a pin pivoting within a receiving segment or hole and allowing adjustability of components within an eyeglass frame, for the purpose of having the angle of a frame aligned with respect to a user’s face, providing adjustability, and fitting eyeglasses to a head and face of a user, as taught by Kopfer (col. 3, lines 4-25).
With respect to Claim 34, Freeman in view of Calilung teaches the eyewear (eyewear 1; [0039]) of claim 19.
Freeman in view of Calilung does not appear to explicitly teach the following limitation(s): wherein the height of the vent is greater than one-tenth the height of the lens.
However, in the same field of endeavor, Kopfer teaches protective eyewear for use in sports and the like (col. 1, lines 15-25) comprising a ram air intake (51; fig. 7; col. 2, lines 25-45) with a height greater than about 10% the height of the lens (as seen in fig. 7; between right lens opening 44 and left lens opening 45 there is positioned a ram air intake 51; col. 4, lines 61-66).
Therefore, it would have been obvious to a person having ordinary skill in the art, before the effective filing date of the claimed invention, to modify the eyewear of Freeman in view of Calilung to include the technical feature of a height of a vent being more than 10% the height of a lens, for the purpose of directing filtered air into the eye chamber through the vent holes and enhancing ventilation, as taught by Kopfer (col. 4, lines 61-66; col. 5, lines 1-12). Furthermore, a change of size and proportion (e.g., wherein the height of the vent is greater than about one-tenth the height of the lens) is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was 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 was not patentably distinct from the prior art device. See MPEP § 2144.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/K MUHAMMAD/Examiner, Art Unit 2872 17 September 2026
/SHARRIEF I BROOME/Primary Examiner, Art Unit 2872
