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 .
Election/Restrictions
Applicant’s election without traverse of Invention I in the reply filed on September 25, 2025 is acknowledged.
Applicant's election with traverse of Species A in the reply is also acknowledged. The traversal is on the ground(s) that the Examiner has not made a showing that the identified species are mutually exclusive, and that no evidence has been made of record that a serious search and/or examination burden exists. This is not found persuasive because Applicant’s arguments are not based on the requirements for applications entering the national stage under 35 U.S.C. 371 as discussed in the Restriction Requirement, and instead improperly focus on and cite the requirements for national applications filed under 35 U.S.C. 111(a). Indeed, as discussed in the Restriction Requirement, the identified species are not so linked so as to form a single general inventive concept under PCT Rule 13.1. Furthermore, as discussed in the Restriction Requirement, the shared technical feature of the identified invention and species is not a special technical feature as it does not make a contribution over the cited prior art of Wyner et al. (US 2012/0084896).
Therefore, the requirement is still deemed proper and is therefore made FINAL.
Claims 9-10 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected Species B, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on September 25, 2025.
Status of the Claims
As directed by Applicant’s response received on September 25, 2025, Applicant indicated claims 1, 3-4, and 5-11 as reading upon the elected Invention. Claims 2 and 5 were previously canceled. Accordingly, claims 1, 3-4, and 6-22 are currently pending in this application, with claims 9-10 and 12-22 being withdrawn from further consideration. An action on the merits follows.
Drawings
The drawings are objected to because of the following informalities:
In Fig. 1A, both arrows indicating circumferential fluid flow should be properly labeled with reference character 130
In Fig. 1B, all arrows indicating axial fluid flow should be properly labeled with reference character 140
In Fig. 1B, it is unclear what the partially dashed arrow lines are meant to represent. The lines should either be uniformly solid or dashed.
In Fig. 3, the double-sided arrow should be properly labeled with a reference character and referenced in the specification
Figs. 7A-7E each improperly depict multiple views in a single figure (i.e., front, side, back, perspective views). It is suggested that each view be a separate figure.
In Figs. 11A-11C, it unclear what the circled numbers (i.e., 1, 2, 3) are meant to represent, there being no corresponding explanation in the specification. It is suggested that these numbers be removed from the drawings.
Fig. 11B appear(s) to show an improper exploded view. The exploded view should include a bracket or line to show the relationship or order of assembly of various parts.
Figs. 12A-12B and 12E each improperly depict multiple views in a single figure. It is suggested that each view be a separate figure.
In Figs. 12A-12E, it unclear what the separate circles having different shadings are meant to represent, there being no corresponding explanation in the specification. It is suggested that these circles be removed from the drawings or proper explanation and reference provided.
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 – Abstract
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because of the following informalities:
At line 1, “Apparatus and associated methods relate to spacers configured […]” should read “Spacers are configured […]”
At line 2, the phrase “In an illustrative example,” should be removed
At line 5, “(under)garment” should read “undergarment or garment”
At lines 6-7, “Various embodiments may advantageously provide tangential and/or radial fluid communication between […]” should read “Tangential and/or radial fluid communication is provided between […]”
A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Objections
Claim 1 is objected to because of the following informalities:
At lines 2-3, “a base having an upper surface and a lower surface and provided with” should read “a base having an upper surface and a lower surface, the base provided with”
At line 3, “providing fluid communication” should read “configured to provide fluid communication”
At line 14, “provides fluid communication” should read “are configured to provided fluid communication”.
Claim 6 is objected to because at line 3, “above a center of the base” should read “at a center of the base”.
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 1, 3-4, 6-8, and 11 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.
Claim 1 recites the limitation “the lower surface of the base comprising a hook-and-loop fabric” at lines 4-5. It is unclear if the lower surface is meant to comprise both portions (i.e., hook and look portions) of a hook-and-loop fabric, or if the lower surface is only meant to comprise one of the portions. Therefore, the metes and bounds of the claim are unclear, and the claim is rendered indefinite. Based on Applicant’s disclosure, it is suggested that the limitation instead read “the lower surface of the base comprising a portion of a hook-and-loop fabric”.
Claim 11 recites the limitation “wherein the plurality of radially fenestrated concentric walls is deformable by hand at room temperature” at lines 1-2. It is unclear what type or amount of force is implied by the phrase “by hand”. Furthermore, Applicant has not defined room temperature in the application as originally disclosed. Therefore, the metes and bounds of the claim are unclear, and the claim is rendered indefinite. It is suggested that the limitation instead read “wherein the plurality of radially fenestrated concentric walls are deformable”. For the purposes of examination, the limitation will be interpreted as best can be understood according to the suggested language above when applying prior art.
Claims 3-4, 6-8, and 11 are also rejected for being dependent on a rejected claim.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 4, 8, and 11, as best can be understood, are rejected under 35 U.S.C. 103 as being unpatentable over US 2021/0076758 to Taylor et al. (hereinafter, “Taylor”) in view of US 2012/0066821 to Swanson (hereinafter, “Swanson”).
Regarding claim 1, Taylor teaches a garment spacer (See Taylor, Figs. 4-5; pad (20’) capable of creating space from an adjacent or attached garment; pad (20’) has similar features as pad (20); [0047]; abstract) comprising: a base having an upper surface and a lower surface (See Taylor, Figs. 4-5; pad (20’) includes base layer (38) having upper and lower surfaces) and provided with a plurality of apertures providing fluid communication between the upper surface and the lower surface (See Taylor, Figs. 4-5; pad (20’) includes plurality of apertures (28) capable of providing fluid communication between upper and lower surfaces); and, a plurality of radially fenestrated concentric walls coupled to the base and extending away from the upper surface of the base such that the plurality of radially fenestrated concentric walls define a plurality of concentric fluid channels (See Taylor, Figs. 4-5 and annotated Fig. 5 of Taylor below; plurality of concentric walls (22b) having spacer regions (26) with width (w1) therebetween, i.e., radial fenestra; walls (22b) extend away from upper surface of layer (38) to define plurality of concentric fluid channels), wherein: the plurality of concentric fluid channels are in fluid communication with the plurality of apertures (See Taylor, Figs. 4-5 and annotated Fig. 5 of Taylor below; concentric fluid channels and apertures (28) are in fluid communication with one another), and radial fenestra of the plurality of radially fenestrated concentric walls provides fluid communication between the plurality of concentric fluid channels (See Taylor, Figs. 4-5 and annotated Fig. 5 of Taylor below; radial fenestra through walls (22b) are capable of providing fluid communication between concentric fluid channels).
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Annotated Fig. 5 of Taylor
That said, Taylor is silent to the lower surface of the base comprising a hook-and-loop fabric.
However, Swanson, in a related garment attachment structure art, is directed to a safety device attachment for an athletic garment (See Swanson, Fig. 1A-1B; abstract). More specifically, Swanson teaches the lower surface of the base comprising a hook-and-loop fabric (See Swanson, Fig. 1A-1B; device (10) includes a first portion of hook-and-loop fastener fabric (55) on lower surface for attachment to a corresponding second portion of the hook-and-loop fastener fabric (55) on a garment).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to include the hook-and-loop fabric disclosed by Swanson on the lower surface of the pad of Taylor for a variety of reasons including for example, but not limited to, allowing for secure, selective attachment of the pad to a garment as desired (See Swanson, [0027]-[0028]).
Regarding claim 4, the modified garment spacer of Taylor (i.e., Taylor in view of Swanson, as discussed with respect to claim 1 above) further teaches a plurality of bridges between at least one pair of the plurality of radially fenestrated concentric walls (See Taylor, Figs. 4-5; bridges (24) extending between walls (22b)).
Regarding claim 8, the modified garment spacer of Taylor (i.e., Taylor in view of Swanson, as discussed with respect to claim 1 above) further teaches wherein the fluid communication between the plurality of concentric fluid channels comprises a radial fluid flow tangential to the lower surface of the base (See Taylor, Figs. 4-5 and annotated Fig. 5 of Taylor above; fluid communication between concentric fluid channels includes radial fluid flow tangential to lower surface of layer (28) via radial fenestra).
Regarding claim 11, the modified garment spacer of Taylor (i.e., Taylor in view of Swanson, as discussed with respect to claim 1 above) further teaches wherein the plurality of radially fenestrated concentric walls is deformable by hand at room temperature (See Taylor, Figs. 4-5; pad (20’) formed of cushioning material that is capable of being deformed; [0037]-[0038]).
Claim 3, as best can be understood, is rejected under 35 U.S.C. 103 as being unpatentable over Taylor in view of Swanson, as applied to claim 1 above, and further in view of US 2012/0084896 to Wyner et al. (hereinafter, “Wyner”).
Regarding claim 3, the modified garment spacer of Taylor (i.e., Taylor in view of Swanson, as discussed with respect to claim 1 above) is silent to wherein the plurality of radially fenestrated concentric walls comprise silicone.
However, Wyner, in a related garment attachment structure art, is directed to a conformable protection pad which can be integrated into articles of clothing (See Wyner, Fig. 1-8; abstract). More specifically, Wyner teaches wherein the plurality of radially fenestrated concentric walls comprise silicone (See Wyner, Figs. 1-8; cushioning material (15, 16) forming walls can be made from silicone; [0051], [0065]).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to use the silicone cushioning material disclosed by Wyner as the cushioning material used to form the walls of the modified garment spacer of Tayler, as the modification amounts to no more than a simple substitution of one known cushioning material for another with nothing more than the reasonable expectation of one cushioning material performing just as well as the other to yield predictable results, i.e., a walled structure capable of providing a cushioning effect.
Claim 6-7, as best can be understood, are rejected under 35 U.S.C. 103 as being unpatentable over Taylor in view of Swanson, as applied to claim 1 above, and further in view of US 2016/0192714 to Williams et al. (hereinafter, “Williams”).
Regarding claim 6, the modified garment spacer of Taylor (i.e., Taylor in view of Swanson, as discussed with respect to claim 1 above) further teaches the plurality of radially fenestrated concentric walls comprising a vertical profile, wherein the vertical profile comprises a maximum height above a center of the base (See Taylor, Figs. 4-5; pad (20’) includes a vertical profile formed by height of walls (22b)).
That said, the modified garment spacer of Taylor is silent to wherein the vertical profile comprises a maximum height above a center of the base.
However, Williams, in a related garment attachment structure art, is directed to an integrated hip protection pad (See Williams, Figs. 1-6; abstract). More specifically, Williams teaches wherein the vertical profile comprises a maximum height above a center of the base (See Williams, Figs. 5-6; pad (10) includes center (R) with a thickness decreasing radially therefrom; [0036]).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to form the vertical profile of the modified garment spacer of Taylor to have the gradually radially decreasing vertical profile disclosed by Williams for a variety of reasons including for example, but not limited to, providing a smooth, aesthetically-pleasing curved surface with reduced edge height to better transition to a surface of a garment to which the modified garment spacer is attached.
Regarding claim 7, the modified garment spacer of Taylor (i.e., Taylor in view of Swanson and Williams, as discussed with respect to claims 1 and 6 above) further teaches wherein the vertical profile comprises a monotonically decreasing profile as a function of increasing radius from the center of the base (See Williams, Figs. 5-6; overall vertical profile of pad (10) includes center (R) with a thickness decreasing radially therefrom; [0036]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to Applicant's disclosure. US 2018/0177244 to Williams et al.; USPN 4,354,284 to Gooding; and US 2021/0177069 to Hall are each directed to padded structures capable of being attached to a garment.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW R MARCHEWKA whose telephone number is (571) 272-4038. The examiner can normally be reached M-F: 9:00AM-5:00PM 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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/MATTHEW R MARCHEWKA/Examiner, Art Unit 3732