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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 6/11/2026 has been entered.
Claims 1,7, and 23 were amended. Claims 15-21 were canceled. Claim 24 has been newly added. Claims 1-14 and 22-24 have been examined on the merits.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-4, 7, 21 and 24 is/are rejected under 35 U.S.C. 102(a) (1) as being anticipated by Blomkwist (US 8,359,663). The device of Blomkwist teaches, as best understood,
A garment (Figure 1) , comprising:
A front portion (1) comprising a front upper panel (1, upper half,); a front lower panel (1, lower half);
a rear upper panel (3);a rear lower panel (5);
wherein the front lower panel and the rear lower panel at least partially define a crotch region (Figure 1) and left and right leg spaces (Figures 1, 12);
wherein the rear upper panel comprises a lower edge (7) and the rear lower panel comprises an upper edge (10) ;
wherein the lower edge (7) of the rear upper panel and the upper edge (10) of the rear lower panel each comprises a left end and a right end (left and right sides, near 8);
wherein the left and right ends of the upper edge of the rear lower panel are sewn to the front portion(figure 2, 8);
wherein at least a portion of the rear upper panel at least partially externally overlaps at least a portion of the rear lower panel (Figure 2);
wherein at least a portion of the lower edge of the rear upper panel and at least a portion of the upper edge of the rear lower panel define a rear access space (P1, P2, Figure 3) positioned at a wearer's lower back (Figure 3); and
wherein the upper edge of the rear lower panel is configured to be stretched (P1, P2) to widen the rear access space (Figure 3) to an extended position below a wearers buttocks. The language “configured to be stretch” is functional. The prior art teaches a fabric and would inherently have a minimal mechanical ease, and would be capable of performing the function of stretching to at least a degree. MPEP 2114. With respect to the language “to an extended position below a wearer’s buttocks” this would be dependent of the size/shape/anatomy of a buttocks. The prior art is capable of functioning in the manner recited, such as on a very small infant and would meet the limitation as required, see MPEP 2114.
With respect to claim 2, wherein the upper edge of the rear lower panel extends inferiorly in a medial direction (10).
With respect to claim 3, wherein the lower edge of the rear upper panel extends superiorly in a medial direction (7).
With respect to claim 4, wherein the rear access space defines a shape selected from the group consisting of a rectangle, a half-oval, an oval (figure 3), a half-circle, a circle, a triangle, or a diamond .
With respect to claim 7, wherein the front upper panel and front lower panel each further comprise a left edge and a right edge (at left and right sides, side seams 8, figure 1);
wherein the left end of the lower edge of the rear upper panel (Figure 2) is affixed to the right edge of the front lower panel (side seams Figures 1 and 2), and the right end of the lower edge of the rear upper panel is affixed to the left edge of the front lower panel (Side seams, Figure 1 and 2); and
wherein the left end of the upper edge of the rear lower panel is affixed to the right edge of the front upper panel (side seams, 8), and the right end of the upper edge of the rear lower panel is affixed to the left edge of the front upper panel (side seams 8).
With respect to claim 22, the front upper and lower panel are seamlessly attached along a front waistline (line/area adjacent a waist) (Figure 1).
With respect to claim 24, wherein the left and right ends (at 8) of the lower edge (at 7) of the rear upper panel (3) are sewn to the front position at adjacent to the waistline (8, in a central location is adjacent the waistline; however, the waistline of the user can vary with size/shape/anatomy of a user) and above the left and right leg spaces (12).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Blomkwist in view of Blomberg (US 2014/0053314). The device of Blomkwist substantially discloses the claimed invention but is lacking an elastic band. The device of Blomkwist teaches that it is known to utilize an elastic at the free edge but is generally unnecessary (Column 3, lines 67).
The device of Blomberg teaches,
With respect to claim 5, wherein the garment further comprises an elastic band (508) positioned along the upper edge of the rear lower panel.
It would have been obvious to a person having ordinary skill in the art at the time the invention was effectively filed to utilize the also optional elastic band taught by Blomberg in order to provide improved elasticity and durability of the opening.
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Blomkwist, and Blomberg, as applied to claim 5 above, and further in view of Farrow (US 2013/0296763). The modified device of Blomkwist substantially discloses the claimed invention but is lacking claimed percentage of elongation.
The device of Farrow teaches,
With respect to claim 6, wherein the upper edge of the rear lower panel has a maximum percent elongation of about 30-100%. (claim 17).
It would have been obvious to a person having ordinary skill in the art at the time the invention was effectively filed to utilize the elastic material having maximum elongation at 100% as taught by Farrow in order to provide the right amount of compression and not become too loose (para 0007).
Claim(s) 22 - 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Blomkwist, in view of Flesh (US 2,018,665). The device of Blomkwist substantially discloses the claimed invention but is lacking a front portion having a sewn attachment affixing the front upper and lower panels.
The device of Flesh teaches,
With respect to claim 22, the front upper panel (10) the front lower panel (20) are attached at front waistband .
With respect to claim 23, A sewn seam (30) attaching an upper front panel (10) to a lower front panel (20). It is noted that “sewn” is a product by process limitation. The prior art of Flesh teaches seam, that is capable of being formed by sewing and therefore meets the claim language as recited.
It would have been obvious to a person having ordinary skill in the art at the time the invention was effectively filed to utilize the seam taught by Flesh in order to provide improved reinforcement for the strain applied when pulling on a drop seat (Column 3, lines 33-40).
Allowable Subject Matter
Claims 8-14 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicant's arguments filed 6/11/2026 have been fully considered but they are not persuasive.
Applicants amendments to rectify support issues are sufficient, and the newly amended claims are fully supported by the applicants originally filed disclosure.
The drawing objections of 2/27/2026 have been obviated. The 112 2nd paragraph rejections of 2/27/2026 have also been obviated.
Applicant’s arguments with respect to the rejection of claim 1 with respect to Kunieda have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant’s arguments with respect to Blomkwist have been fully considered but are not persuasive. Applicants argues that Blomkwist fails to teach the upper edge of the lower panel is configured to be stretched. Applicant argues that Blomkwist cannot be stretched and not be positioned below a wearers buttocks. Applicant argues that not all fabrics a necessarily stretchable. The language “configured to be stretched to widen the ear access space to an extended position below a wearers buttocks” is a functional recitation and functionally would also be depended on the size/shape/anatomy of the wearer. According to Hooke’s Law all material is stretchable to at least a degree. The claims as currently presented to do require and performance threshold, such as elastics modulus, or minimum elongation. Nor do they require a specific type of fiber that provides the function of stretching, i.e. elastane. Further, the prior art teaches a fabric and therefore is either a woven material of interlacing yarns, or a knit material of interloping yarns, which would both have a degree of stretch due to the construction of the interloping/interweaving of the yarns. The claims provide no further structure to provide stretch. The prior art is capable of stretch to at least degree. With respect to the language “to an extended position below a wearers buttocks”, this language would depend on the buttocks. Is it a human buttocks? Assuming as such, the prior art device would be capable of being stretched and being positioned in the manner recited if the size/shape/anatomy were for example a very small child, such as a micro preemie. Accordingly, as a matter of construction, the functional language does not distinguish the claimed invention over the prior art.
With respect to applicants arguments that the device of Bloomberg does not cure the deficiencies of Blomkwist, since it is asserted that that one would not necessarily want to improve durability of an upper edge. Blomkwist teaches that it is known to utilize an elastic at the free edge but is generally unnecessary (Column 3, lines 67). In other words, sometimes it is necessary. A person of ordinary skill in the art would be motivated to provide the elastic member at the upper edge, that is taught to be known by Blomkwist in order to provide improved elasticity and durability of the opening.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, It would have been obvious to a person having ordinary skill in the art at the time the invention was effectively filed to utilize the elastic material having maximum elongation at 100% as taught by Farrow in order to provide the right amount of compression and not become too loose (para 0007).
With respect to newly added claim 24, applicant argues that the device of Blomkwist teaches the lower free end of the fabric being situated level with the portion of the leg aperture. Applicant makes references to color coding, but documents are scanned in black and white and cannot be examined with reference to color. Nonetheless, the prior art of Blomkwist teach left and right ends (at edges of seam 8) of the lower edge(7) of the rear upper panel (3) are sewn to the front portion (at seam 8) at position adjacent, or next to, the waistline (figure 3) and are located at a position that is at the upper apex of each of above the left and right leg spaces (12) and meets the limitation of being “above” at least a portion of each of the right and left leg spaces.
Allowable Subject Matter
Claims 8-14 are allowed.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO 892
Please Note, the art of recorded cited in the PTO-892 may be relevant to the features of the invention both claimed and unclaimed or are relevant to the overall inventive concept. The best art has been set forward in the office action, as determined by the examiner and the art references provided are to establish other significant and relevant art and to promote compact prosecution.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RICHALE L QUINN whose telephone number is (571)272-8689. The examiner can normally be reached Monday - Friday 9am -5pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Clinton Ostrup can be reached at 5712725559. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
RICHALE LEE. QUINN
Primary Examiner
Art Unit 3765
/RICHALE L QUINN/Primary Examiner, Art Unit 3732
Prosecution Insights