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 .
Response to Amendment
The amendment filed on 1/9/2026 has been fully considered. Claim 1 was amended. Claims 15-20 are cancelled. Claims 21-23 are newly added.
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 left and right ends (claim 1) of the upper edge of the upper edge of the rear lower panel; the rear lower panel comprises a left edge and right edge (claim 21) and wherein the left and right edges of the rear lower panel are fixedly attached to the front portion along an entire length (claim 21) of the left and right edges; a seam (claim 23) attached the front upper and lower panel”, these feature must be shown or canceled from the claim(s). No new matter should be entered.
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 specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: The originally filed specification is silent with respect to the following language; “left and right ends of the upper edge of the rear lower panel are fixedly attached at left and right points that are substantially aligned above a wearer’s buttocks”, “rear lower panel further comprises a left edge and a right edges; and wherein the left and right edges of the rear lower panel are fixedly attached to the front portion along an entire length of the left and right edges”, “waistline comprises a seam attaching the front upper panel and the front lower panel”. Appropriate correction required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-14 and 21-23 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 1 recites: “left and right ends of the upper edge of the rear lower panel are fixedly attached at left and right points that are substantially aligned above a wearer’s buttocks”. This newly added limitation is not supported by the originally filed disclosure.
Claim 21 recites: “rear lower panel further comprises a left edge and a right edges; and wherein the left and right edges of the rear lower panel are fixedly attached to the front portion along an entire length of the left and right edges”. This language is not supported by the originally filed disclosure.
Claim 23 recites: “waistline comprises a seam attaching the front upper panel and the front lower panel” This newly added limitation is not supported by the originally filed disclosure.
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 1-14 and 21-23 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. The term “substantially aligned” in claim 1 is a relative term which renders the claim indefinite. The term “substantially” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Appropriate clarification is required.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 2-14 and 21-23 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101). The language “left and right points that are substantially aligned above a wearer’s buttocks” is a positive recitation of human anatomy. This can be corrected by using “adapted to/configure for” type language.
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 is/are rejected under 35 U.S.C. 102(a) (1) as being anticipated by Kunieda (US 4,535,480). The device of Kunieda teaches, as best understood,
A garment, comprising:
A front portion (3) comprising a front upper panel (3, upper,); a front lower panel (3, lower);
a rear upper panel (1);a rear lower panel (2);
wherein the front lower panel and the rear lower panel at least partially define a crotch region and left and right leg spaces (Figures 1 and 4);
wherein the rear upper panel comprises a lower edge (at 1a), and the rear lower panel comprises an upper edge (near element 5) ;
wherein left and right ends (distal edges of the seat flap element 2a) of the upper edge of the rear lower panel are fixedly attached to the front portion at left and right points (Column 1, line 59) that are substantially aligned above a wearer’s buttocks (Figure 1);
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 4);
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 positioned at a wearer's lower back (Figure 2); and
wherein the upper edge of the rear lower panel is configured to be stretched (5) to widen the rear access space (column 2, lines 25-27).
Claim(s) 1-4, 7 and 21 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 left and right ends (left and right ends of element 10) of the upper edge of the rear lower panel are fixedly attached (at seams 8) to the front portion at left and right points (left and right sides, figure 2 and 3) that are substantially aligned above a wearer’s buttocks (Figure 1);
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).
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 lower edge of the rear upper panel and the upper edge of the rear lower panel each comprises a left end and a right end (left and right sides, side seams 8, figure 2), 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 21, wherein the rear lower panel (5) further comprises a left edge (edge along seam 8, ) and a right edge (edge along seam 8, shown at L figure 2); and
Wherein the left and right edges (edges corresponding to seam 8) of the rear lower panel are fixedly attached (8) to the front portion (1) along an entire length of the left and right edges (L).
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).
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 Blomkist in view of Blomberg (US 2014/0053314). The device of Blomkist substantially discloses the claimed invention but is lacking an elastic band. The device of Blomkist 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 Blomkist, and Blomberg, as applied to claim 5 above, and further in view of Farrow (US 2013/0296763). The modified device of Blomkist 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) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Blomkist, in view of Flesh (US 2,018,665). The device of Blomkist substantially discloses the claimed invention but is lacking a front portion having a seam attaching the front upper and lower panels.
The device of Flesh teaches,
A seam (30, 29) attaching an upper front panel (10) to a lower front panel (20).
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 1/9/2026 have been fully considered but they are not persuasive.
Applicant argues that paragraph 0040 provides support for the claimed amendments. Applicants specification filed on 3/13/2024 is not labeled in paragraph numbers. Applicants specification is silent with respect to ends or edges and their entirety or partial connections at upper and lower edges of the upper and lower panels. The drawing are not clear as overlapping edges cover an area where edges/ends of these elements may be located.
Applicant argues that “fixedly” attached defines over a releasable fastener. The language “fixedly” is not defined by the specification. A zipper fastener as taught by Kunieda meets the language as currently recited. Merriam webster defines “fixed” as securely placed or fastened. A zipper fastener provides secure fastening and meets the language as currently recited.
Applicant argues that Blomkist fails to provide a teaching of an opening positioned on a wearer’s lower back. The position of the opening on the human body would be dependent on the size/shape of the human body wearing the garment. Further, Figure 3 shows an opening that clearly would align with at least a portion of an area that corresponds with a wearers lower back. The functional language argued that the device “allows the wearer to pull the rear lower panel below their buttocks in order to use the restroom” is not recited in the claim. However, the prior art meet the structure as recited an would be capable of being stretched to below a buttocks to allow for toileting.
Applicant argues the Blomkist is not “substantially aligned above a wearer’s buttocks”. The attachment points of the left and right edges of Blomkist are at an area that are above a buttocks and would substantially align with at least the side portion of a perspective users buttocks. Further it is noted that the buttocks and its alignment with a garment would be dependent on the size/shape/anatomy of the person’s buttocks. Applicant argues that the device of Blomkist teaches attachment at the armholes. However armhole are above a buttocks and substantially aligned with at least and outside area of a potential users buttocks.
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.
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 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.
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RICHALE LEE. QUINN
Primary Examiner
Art Unit 3765
/RICHALE L QUINN/Primary Examiner, Art Unit 3732