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.
Election/Restrictions and Response to Arguments
Applicant's election with traverse of Invention I(b), drawn to eyewear and represented by claims 19-35 (See Requirement for Restriction/Election dated 06 January 2026), in the reply filed on 06 March 2026 is acknowledged. The traversal is on the ground(s) that "The Office incorrectly characterizes the claims on multiple points in support of its requirement for restriction. These incorrect characterizations render the restriction requirement deficient." This is not found persuasive for the following reasons:
In response to the applicant's argument that "First, the Office states that the shield of claim 1 functions "as a non-rotational accessory," in contrast…configurations being rotatably attached using, for example, a pin and aperture. Specification, [0097], FIGS. 6-7," the Examiner traverses. Applicant’s argument improperly conflates rotation of the pin(s) with rotation of the shield(s). In Invention I(a), the pin is merely rotatable within the aperture, which does not require that the shield itself rotates relative to the frame. The rotatable pin may simply facilitate attachment and/or positioning of the shield. By contrast, Invention I(b) expressly requires that the shield rotates with respect to the frame between extended and closed positions. Thus, Invention I(a) is directed to a detachable shield attachment, while Invention I(b) further requires a rotatable shield assembly. Examiner also submits that the as-filed specification (dated 30 November 2023, see para. [0097] as cited by applicant in Response to Election / Restriction Filed dated 06 March 2026) merely stating that the shields can use similar attachment features does not disclose nor imply that the shield of Invention I(a) rotates like the shield of Invention I(b). Thus, these inventions remain distinct because Invention I(a) is directed to a detachable shield attachment system, whereas Invention I(b) is directed to a detachable shield attachment system further configured to provide rotational movement of the shield between defined positions. See Requirement for Restriction/Election, dated 06 January 2026, for further explanation.
In response to the applicant's argument that "Second, the Office states that the structural differences between claims 1 and 19 are "incompatible and cannot exist in the same eyewear configuration, for an eyewear device…configuration is false based on Applicant's disclosure, and because claim 19 covers a shield forming at least one vent (e.g., two vents)," the Examiner traverses. Applicant’s argument improperly relies on unclaimed disclosure rather than the actual claim language, for the features upon which applicant relies (i.e., "a shield forming at least one vent, shield 706 can include an upper vent 742 [a second vent], does not preclude the shield from forming more than one vent, as is well-established based on the open-ended nature of the term 'comprising,'" etc.) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Examiner further submits that the cited as-filed specification does not control the scope of the claims. The as-filed specification disclosing embodiments with different vent arrangements does not mean all such features are required or even interchangeable across every claimed embodiment. Although “comprising” is open-ended, Invention I(b) does not recite “at least one vent” or multiple vents at all. Instead, Invention I(b) recites “Eyewear, comprising:…a shield removably attached to the frame or the temple, the shield forming a vent” (Claim 19), indicating a particular vent structure. By contrast, Invention I(a) expressly requires two separate vents: a lower vent and an upper vent (Claim 1). Thus, Invention I(a) requires a shield having multiple distinct vent structures with an upper vent having a claimed width relationship, while Invention I(b) is directed to a shield having a singular vent structure entirely within the shield. Thus, the inventions are distinct and mutually exclusive because they claim different vent configurations and structural relationships that do not overlap in scope, are not obvious variants, and have materially different designs. See MPEP § 806.05(j) and the Requirement for Restriction/Election, dated 06 January 2026, for further explanation and guidance.
In response to the applicant's argument that "Third, the Office improperly relies on the dependent claims as reciting features which are allegedly incompatible…this feature does not conflict with claim 1," the Examiner traverses. Again, applicant’s argument improperly relies on unclaimed disclosure rather than the actual claim language, for the features upon which applicant relies (i.e., "the feature of a vent formed entirely within a shield is disclosed in the Specification with respect to both single vent and dual vent embodiments, "upper vent 742 can be formed entirely within upper portion 722 [of shield 706]," etc.) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Examiner submits that the restriction requirement is not whether the as-filed specification discloses other embodiments, but what Invention I(b) actually claims. Invention I(b) recites “a vent” entirely within the shield, not multiple vents or separate upper and lower vents. Thus, Invention I(b) is claimed to the particular vent arrangement actually recited, which differs from the expressly dual-vent arrangement of Invention I(a). Counsel's assertion that "the Office improperly relies on the dependent claims as reciting features which are allegedly incompatible with independent claims" is merely an argument unaccompanied by evidentiary support, for “it is the claimed subject matter that is considered and such claimed subject matter must be compared in order to determine the question of distinctness or independence.” See MPEP § 806.01. Examiner also reminds the applicant that “The general principles relating to distinctness or independence may be summarized as follows…(B) Where inventions are related as disclosed but are distinct as claimed, restriction may be proper.” See MPEP § 806.
In response to the applicant's argument that "The Office has not shown that any features of the independent apparatus claims warrant restriction…because two-way distinctiveness does not exist, M.P.E.P., 802.01(II), or between another independent claim and the base claim since the base claim does not require the features of the dependent claim," the Examiner traverses. Applicant’s argument misapplies MPEP § 802.01(II), for that section addresses whether related inventions are distinct, not whether a dependent claim can ever contain additional limitations beyond a “base” claim. “Related inventions are distinct if the inventions as CLAIMED are not connected in at least one of design, operation, or effect…” See MPEP § 802.01(II). In the instant case, the inventions of the instant application are distinct, as claimed, and the restriction is between the independent claims defining different inventions, with the dependent claims merely further differentiating the distinct structural features within each invention. The fact that a dependent claim includes limitations of its “base” claim does not eliminate distinctness between separately claimed inventions. See MPEP §§ 806.01, 806 for further guidance. Thus, the applicant’s cited MPEP section does not prohibit reliance on dependent claim limitations to help show that separately claimed independent inventions are distinct. See Requirement for Restriction/Election, dated 06 January 2026, for further explanation and guidance as to why the inventions are related but distinct.
In response to the applicant's argument that "In summary, restriction is only proper when inventions are independent or distinct…apparatus claims 1 and 19 are not independent or distinct," the Examiner traverses. This is incorrect, for the applicant has conflated two-way distinctness in combination/subcombination relationships with the requirement of related product inventions. “See MPEP § 808.02. See MPEP § 806.05(c) for an explanation of the requirements to establish two-way distinctness as it applies to inventions in a combination/subcombination relationship. For other related product inventions, or related process inventions, the inventions are distinct if (A) the inventions as claimed do not overlap in scope, i.e., are mutually exclusive (i.e., a claim to the final product does not read on the intermediate, and vice versa); (B) the inventions as claimed are not obvious variants; and (C) the inventions as claimed are either not capable of use together or can have a materially different design, mode of operation, function, or effect. See MPEP § 802.01.” See MPEP § 806.05(j) and the Requirement for Restriction/Election, dated 06 January 2026, for further guidance and explanation as to why the inventions are related products but distinct.
In response to the applicant's argument that "For at least the above reasons, the withdrawal of the restriction requirement between at least Groups I(a) and I(b) is respectfully requested," the Examiner traverses. Per the Requirement for Restriction/Election, dated 06 January 2026, “Since Invention I(a) recites ventilation through distributed venting and structural accommodations for temple movement, while Invention I(b) recites ventilation and utility through shield rotation and a single integrated vent, modifying Invention I(a) to arrive at Invention I(b) would require eliminating elements (e.g., multiple vents, frame/temple recesses, etc.) and adding fundamentally different structural features (e.g., a rotating shield), which is not a mere design choice or routine optimization, but a substantial redesign with a different operational mechanism…Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply: (a) the inventions have acquired a separate status in the art in view of their different classification…(c) the inventions require a different field of search (e.g., searching different classes/subclasses or electronic resources, or employing different search queries; e.g., searching exclusively within references of an eyewear requiring a width of an upper vent being greater than about one-tenth a width of a lens will not yield results for an eyewear requiring a height of a single vent being greater than about one-tenth a height of a lens, vice versa, and for other mutually exclusive combinations)…”
The requirement is still deemed proper and is therefore made FINAL.
Claims 1-18 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to nonelected inventions I(a) (Claims 1-16, drawn to eyewear) and II (Claims 17 and 18, drawn to a method of manufacturing eyewear), there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 06 March 2026.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the eye of a wearer, as-worn configuration, ear of the wearer, the vent increases the volume of air flowing across the inner surface of the lens and through the fluid channel according to the Venturi effect, a surface, the coefficient of friction between the anti-skid portion and a surface being greater than the coefficient of friction between the top portion of the eyewear and the surface, a surface of the shield, adjacent surface, and the height of the vent is greater than about one-tenth the height of the lens must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
The drawings are objected to under 37 CFR 1.83(a) because they fail to show “anti-skid portion 405 can contact a surface (e.g., a fiberglass surface)” in para. [0075] as described in the specification. Any structural detail that is essential for a proper understanding of the disclosed invention should be shown in the drawing. MPEP § 608.02(d).
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities:
35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, requires the specification to be written in “full, clear, concise, and exact terms.” The specification is replete with terms which are not clear, concise and exact. The specification should be revised carefully in order to comply with 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112. Examples of some unclear, inexact or verbose terms used in the specification are: "the coefficient of friction between the anti-skid portion and a surface can be greater than the coefficient of friction between the top portion of the eyewear and the surface" in para. [0027], "For example, anti-skid portion 405 can contact a surface (e.g., a fiberglass surface) when a user places eyewear 100 upside-down on the surface. Upper portion 122 can be a material with a durometer rating configured to increase the coefficient of friction between eyewear 100 and a surface. For example, the coefficient of friction between the material of upper portion 122 and a surface can be greater than the coefficient of friction between top portion 114 of frame 102 and the surface" in para. [0075], etc. This is not an exhaustive list.
Claim Objections
Claims 26 and 27 are objected to because of the following informalities:
With respect to Claims 26 and 27, the recitation “a nosepad, the nosepad comprising a nosepad vent” appears to contain a misspelling error for “nosepad” (correct spellings being e.g., “nose pad” or “nose-pad”).
Appropriate correction is required.
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 20, 27-31, and 33-34 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 Claims 20, 27-31, and 33-34, the limitations are replete with relative, subjective, and result-oriented terms that render the claim scope unclear pursuant 35 U.S.C. 112(b). It is unclear as to what the metes and bounds of the limitations are, and it is unclear what would be needed to meet the recited limitations. Thus, a person having ordinary skill in the art would not be able to reasonably ascertain the scope of the claims:
With respect to Claim 20, “wherein the shield is proximate a side portion of the frame” includes relative terminology, for “proximate” does not provide an objective boundary as to how close the shield must be to the side portion of the frame.
With respect to Claims 27 and 28, and notwithstanding the permissible instances, the use of functional language in a claim may fail "to provide a clear-cut indication of the scope of the subject matter embraced by the claim" and thus be indefinite. In re Swinehart, 439 F.2d 210, 213 (CCPA 1971). For example, when claims merely recite a description of a problem to be solved or a function or result achieved by the invention, the boundaries of the claim scope may be unclear. Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1255, 85 USPQ2d 1654, 1663 (Fed. Cir. 2008); see also United Carbon Co. v. Binney & Smith Co., 317 U.S. 228, 234 (1942) See MPEP §2173.05(g).
In the current instance, “wherein the vent, the temple vent, and the nosepad vent direct air across the inner surface of the lens and into the fluid channel,” in Claim 27, merely recites an intended use, function, or result, without reciting the sufficient structure of the vent, temple vent, and “nosepad” vent for accomplishing the claimed airflow path. “Wherein the vent increases the volume of air flowing across the inner surface of the lens and through the fluid channel according to the Venturi effect, in Claim 28, also merely recites a function or result to be achieved without reciting the structural features of the vent that allegedly produce the claimed Venturi effect or increased airflow. Examiner reminds the applicant that “apparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co.v.Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990).
With respect to Claim 29, “the coefficient of friction between the anti-skid portion and a surface being greater than the coefficient of friction between the top portion of the eyewear and the surface” does not identify what “surface” is being referenced. Different surfaces would produce different coefficients of friction and the claim provides no objective standard for determining which surface is used for comparison. Thus, the metes and bounds of the claim are unclear. With respect to Claim 30, “the shield further comprising an upper portion abutting at least one of a top portion of the frame or a top portion of the temple” is indefinite because the claim does not provide objective boundaries for where the upper portion of the shield beings and ends or where the top portion of the frame or temple is located. With respect to Claim 31, “the shield further comprising a pin to detachably attach to the aperture such that the pin is rotatable within the aperture” is indefinite because it is unclear whether the recited rotational capability applies only to the pin itself during attachment or whether the shield is also intended to rotate relative to the frame or temple. With respect to Claim 33, “wherein the vent is defined by a surface of the shield and an adjacent surface of the side portion of the frame” is indefinite because “adjacent” is relative terminology that does not provide an objective boundary as to how close the surface must be to adequately define the vent. With respect to Claim 34, “wherein the height of the vent is greater than about one-tenth the height of the lens” is indefinite because the term “about” is a term of approximation without any objective standard or acceptable variance.
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 § 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.
Claims 19-22, 28-30, 32-33, and 35 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Freeman US 20210322222 A9.
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]) forming a vent (shield 40 separates from eyewear 1 or face of wearer creating a vent 60; [0048]).
With respect to Claim 20, Freeman discloses the eyewear (eyewear 1; [0039]) of claim 19, wherein the shield (shield 40; [0045]) is proximate (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) a side portion (left and right frame ends 23; [0047]) of the frame (frame 20; [0040]).
With respect to Claim 21, Freeman discloses 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]) a side portion (left and right frame ends 23; [0047]) of the frame (frame 20; [0040]).
With respect to Claim 22, Freeman discloses 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]).
With respect to Claim 28, Freeman discloses the eyewear (eyewear 1; [0039]) of claim 19, wherein the vent (vent 60; [0048]) increases 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).
With respect to Claim 29, Freeman discloses the eyewear (eyewear 1; [0039]) of claim 19, further comprising an anti-skid portion (upper sealing portion of shield 40; [0030]) disposed on a top portion (fig. 9) of the eyewear (eyewear 1; [0039]) and extending beyond the top portion (extending beyond top portion of eyewear 1 as seen in fig. 9) of the eyewear (eyewear 1; [0039]), 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]).
With respect to Claim 30, Freeman discloses 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]) OR a top portion of the temple (pair of temple arms 28; [0043]),
wherein the upper portion (contoured front surface 41; [0045]) comprises the anti-skid portion (upper sealing portion; [0030]; figs. 2, 9).
With respect to Claim 32, Freeman discloses 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]) to releasably engage (figs. 4-5d) the slot (hook portion 74 received in catch 72; [0050]).
With respect to Claim 33, Freeman discloses the eyewear (eyewear 1; [0039]) of claim 19, wherein the vent (vent 60; [0048]) is defined by a surface (fixed portion 47; [0049]; figs. 7c-7d) of the shield (shield 40; [0045]) and an adjacent surface (left and right shield ends 43; [0045]) of the side portion (left and right frame ends 23; [0047]) of the frame (frame 20; [0040]).
With respect to Claim 35, Freeman discloses the eyewear (eyewear 1; [0039]) of claim 19, wherein the vent (vent 60; [0048]) is formed entirely within (portions of shield 40 separate from each other or shield separates from eyewear 1 or face of wearer creating vent 60 that allows air to more easily enter around or through shield; [0048]; as seen in fig. 7d) the shield (shield 40; [0045]).
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.
Claims 23-25 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 23, Freeman discloses the eyewear (eyewear 1; [0039]) of claim 19, wherein the shield (shield 40; [0045]) moves with respect to the frame (frame 20; [0040]) between an extended position and a closed position (shield 40 is designed to move from open position to closed position; [0045]).
Freeman does not appear to explicitly teach the following limitation(s): the shield is configured to rotate with respect to the frame.
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).
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 24, Freeman discloses 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 an 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.
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 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 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.
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 nosepad (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 nosepad comprising a nosepad 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 nosepad vent directs 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 Kopfer US 5191364 A.
With respect to Claim 31, Freeman discloses 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]).
Freeman does not appear to explicitly teach the following limitation(s): such that the pin is rotatable within the aperture.
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).
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 pin pivoting within a receiving segment or hole, 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 discloses the eyewear (eyewear 1; [0039]) of claim 19.
Freeman does not appear to explicitly teach the following limitation(s): wherein the height of the vent is greater than about 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 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
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Kopfer US 20050225715 A1 (herein after “Kopfer-2”) discloses face foam free protective eyewear with inner liner and vent substantially similar to that of the claimed invention.
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/K MUHAMMAD/Examiner, Art Unit 2872 06 April 2026
/SHARRIEF I BROOME/Primary Examiner, Art Unit 2872