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 is respectfully reminded of the proper manner of making amendments to the claims in future correspondence. The text of any added subject matter must be shown by underlining the added text. The text of any deleted matter must be shown by strike-through except that double brackets placed before and after the deleted characters may be used to show deletion of five or fewer consecutive characters. The text of any deleted subject matter must be shown by being placed within double brackets if strike-through cannot be easily perceived (See 37 CFR 1.121(C)(2)). Additionally, the status of every claim must be indicated after its claim number using the appropriate parenthetical expression (See 37 CFR 1.121(C)).
Examiner notes that at least some of the claim amendments to claim 1 were improperly indicated by Applicant. The word “fenestrated” at line 10 was already present in the claims prior to Applicant’s most recent amendment.
Examiner also notes that at least some of the claim status identifiers were improperly indicated by Applicant in the response (e.g., claims 13 and 21-22). Additionally, the proper claim status identifier “(Withdrawn – Currently Amended)” should be used where appropriate.
As a courtesy to Applicant and in an effort to promote compact prosecution, the claim amendments have been entered and considered despite use of improper notation. Applicant is advised that any future correspondence having improperly indicated amendments will be met with a Notice of Non-Compliant Amendment.
Status of the Claims
As directed by the amendment received on July 20, 2026, claims 1, 6, 11-12, 14, and 16-20 have been amended. Claims 2, 5, and 15 have been canceled. Accordingly, claims 1, 3-4, 6-14, and 16-22 are currently pending in this application with claims 9-10, 12-14, and 16-22 being withdrawn from further consideration.
Response to Amendment
The amendments filed with the written response received on July 20, 2026, have been considered and an action on the merits follows. Any objections and rejections previously put forth in the Office Action dated January 20, 2026, are hereby withdrawn unless specifically noted below.
Drawings
Examiner notes that replacement Figs. 1A-2B, 3, 7A-7E, 11A-11C, 12A-12E appear to replace the previous line drawings submitted with the preliminary amendment dated December 12, 2023 with new drawings that are of worse quality. objected to for at least the reasons provided below. It is unclear if Applicant inadvertently provided amendments to the wrong set of drawings. Clarification and correction is required.
New corrected drawings in compliance with 37 CFR 1.121(d) are required in this application because at least Figs. 1A-1B, 3, 7A-7E, 11A-11C, and 12A-12C are not line drawings but photographs and/or scans that are of insufficient quality to be readable and reproducible for publication. Moreover, Photographs, including photocopies of photographs, are not ordinarily permitted in utility and design patent applications. The Office will accept photographs in utility and design patent applications, however, if photographs are the only practicable medium for illustrating the claimed invention. See: 37 CFR 1.84(b)(1). In the instant case, line drawings can be used to illustrate the claimed invention, as evidenced Applicant’s own previously provided line drawings.
Figs. 1A-2B, 3, 7A-7E, 11A-11C, 12A-12E are objected to because they do not include lines that are durable, clean, black, sufficiently dense and dark, and/or uniformly thick and well-defined. All drawings must be made by a process which will give them satisfactory reproduction characteristics.
Figs. 1A-2B, 3, 7A-7E, 11A-11C, 12A-12E are objected to because the apparently handwritten view numbers, reference characters, and lead lines include irregularities and/or are difficult to discern.
Figs. 7A-7E are each objected to because they include descriptive text that should be removed from the drawings.
Fig. 11A is objected to because the font size of the view numbers (i.e., FIG. 1, FIG. 2, FIG. 3) must be larger than the font size used for the reference characters.
Figs. 11A-11C are objected to because it is unclear to what the black and white circular shapes are meant to refer, or if the shapes artifacts of scanning.
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.
Claim Objections
Claim 1 is objected to because of the following informalities:
At line 6, “the pocket lined” should read “the pocket being lined”
At lines 6-7, “a second portion of hook-and-loop fabric” should read “a second portion of the hook-and-loop fabric”.
Appropriate correction is required.
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 are rejected under 35 U.S.C. 103 as being unpatentable over US 2021/0076758 to Taylor et al. (hereinafter, “Taylor”) in view of USPN 5,636,377 to Wiener (hereinafter, “Wiener”).
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 the base provided with a plurality of apertures configured to provide 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 are configured to provide 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 first portion of a hook-and-loop fabric, the lower surface of the base configured to be attached within a pocket of a garment, the pocket lined with a second portion of hook-and-loop fabric.
However, Wiener, in a related garment structure art, is directed to a pad structure attachable to a garment surface (See Wiener, Figs. 20-21; abstract). More specifically, Wiener teaches the lower surface of the base comprising a first portion of a hook-and-loop fabric (See Wiener, Figs. 20-21; back surface of pad (26c) includes first portion of Velcro (177, 179)), the lower surface of the base configured to be attached within a pocket of a garment, the pocket lined with a second portion of hook-and-loop fabric (See Wiener, Figs. 20-21; pad (26c) is capable of being attached within a hypothetical pocket of a hypothetical garment, the pocket being lined with a corresponding second portion of Velcro such as the pocket space of Wiener having Velcro portions (173, 175); Examiner notes that the claim is directed to a garment spacer and not a garment itself; the prior art need only recite the spacer structure and be capable of meeting the claimed functional limitation).
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 Wiener 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 Wiener, Col. 10, lines 38-58).
Regarding claim 4, the modified garment spacer of Taylor (i.e., Taylor in view of Wiener, 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 Wiener, 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 Wiener, as discussed with respect to claim 1 above) further teaches wherein the plurality of radially fenestrated concentric walls is deformable (See Taylor, Figs. 4-5; pad (20’) formed of cushioning material that is capable of being deformed; [0037]-[0038]).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Taylor in view of Wiener, 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 Wiener, 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 are rejected under 35 U.S.C. 103 as being unpatentable over Taylor in view of Wiener, 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 Wiener, 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 (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 the maximum height being at 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 at 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 Wiener 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]).
Response to Arguments
In view of Applicant’s amendment, the search has been updated, and new prior art has been identified and applied. Applicant’s arguments, filed July 20, 2026, with respect to the rejection of the claims under 35 USC 103 have been fully considered but are moot in view of the new grounds of rejection, as Applicant’s arguments appear to be drawn only to the newly amended limitations and previously presented rejections.
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.
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
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