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
Claims 1-5, 7-8, and 11-13 read on the elected species.
Claims 6 and 9-10 remain withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 04/07/2025.
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 1-3, 5, 7-8 and 11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hennessey et al (US 2014/0059732).
Hennessey et al disclose a layered article (see Fig. 16) for protecting external surfaces as in claim 1, comprising at least one outer fabric layer (320), at least one absorbent inner layer (330) disposed underneath the outer fabric layer; and at least one waterproof inner membrane layer (340) disposed underneath the at least one absorbent inner layer (para. [0076] describes the outer fabric layer 320, absorbent inner layer 330, and waterproof layer 340);
wherein the absorbent inner layer and waterproof inner membrane layer are configured to trap and contain fluids within the absorbent inner layer while maintaining dryness of external surfaces (the absorbent inner layer 330 and the waterproof inner membrane layer 340 would function as claimed, since the absorbent inner layer absorbs fluids and the layers together would trap and contain the fluids since the fluids cannot penetrate the waterproof layer 340; see Fig. 16 and [0076]);
wherein the waterproof inner membrane layer prevents fluid penetration to surfaces external to the article (since the waterproof inner membrane layer 340 is waterproof and not penetrable by liquids [0076], this layer would prevent fluid penetration to surfaces external to the article, for example the surface of the wearer’s shirt).
Regarding the recitation of the layered article being “for protecting external surfaces”, the article of Hennessey meets this limitation since it protects the shirt of the wearer, which is a surface external to the bib (it is separate from and outside of the bib). Moreover, this limitation is directed to the intended use of the claimed device, and it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647 (1987). The layered article of Hennessey has the claimed structure and is capable of functioning as claimed.
Regarding claim 2, Hennessey discloses the at least one outer fabric layer (320) comprises a material selected from the group consisting of polyester, cotton, bamboo fabric, linen, hemp, silk, rayon, modal, lyocell, microfiber, and combinations thereof (para. 0076 discloses the use of linen or cotton for layer 320).
Regarding claim 3, Hennessey discloses the at least one absorbent inner layer (330) comprises a material selected from the group consisting of terrycloth, fleece, and a bamboo-cotton blend (para. 0076 discloses the use of bamboo terrycloth for layer 330).
Regarding claim 5, Hennessey discloses the at least one waterproof inner membrane layer (340) comprises a material selected from the group consisting of thermoplastic polyurethane (TPU) material, polyurethane laminate (PUL), vinyl, silicone, ethylene vinyl acetate (EVA), and combinations thereof [0075-0076]. Specifically, Hennessey discloses layer 340 comprises vinyl (polyvinyl chloride) [0075-0076].
Regarding claim 7, Hennessey discloses the article comprises one or more fasteners for securing the layered article around an object, wherein the fasteners are selected from the group consisting of snaps, ties, hook and loop fasteners, and combinations thereof (see Figs. 3-4, showing the article comprises hook and loop fasteners 210,220; see para. 0069).
Regarding claim 8, the layered article is a protective garment selected from the group consisting of bibs and burp cloths (see bib 10 in Fig. 1).
Regarding claim 11, the article is dimensioned and configured for use by individuals selected from the group consisting of babies, children, adults, and individuals with special needs (para. 0078 and see infant 30 in Fig. 1 and adult 360 in Fig. 18).
Claims 1-3, 5, 11, and 13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ewell (US 2020/0170309).
Ewell discloses a layered article (see Fig. 1 and paras. [0012-0013, 0017] comprising at least one outer fabric layer (A; Fig. 1 and para. 0018), at least one absorbent inner layer (B; Fig. 1; para. 0019; cotton and bamboo as disclosed in para. 0019 are absorbent; also see paras. 0002 and 0012) disposed underneath the outer fabric layer (see Fig. 1) and at least one waterproof inner membrane layer (C; para. 0020) disposed underneath the at least one absorbent inner layer (see Fig. 1; [0017-0020]);
wherein the absorbent inner layer and waterproof inner membrane layer are configured to trap and contain fluids within the absorbent inner layer while maintaining dryness of external surfaces (the absorbent inner layer B and the waterproof inner membrane layer C would function as claimed, since the absorbent inner layer absorbs fluids and the layers together would trap and contain the fluids since the fluids cannot penetrate the waterproof layer; see Fig. 1 and [0017-0020]);
wherein the waterproof inner membrane layer prevents fluid penetration to surfaces external to the article (since the waterproof inner membrane layer C is waterproof and not penetrable by liquids, this layer would prevent fluid penetration to surfaces external to the article, for example the surface of another garment).
Regarding the recitation of the layered article being “for protecting external surfaces”, the article of Ewell meets this limitation since it protects the outer garment of the wearer, which is a surface external to the layered article (it is separate from and outside of the layered article). Moreover, this limitation is directed to the intended use of the claimed device, and it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647 (1987). The layered article of Ewell has the claimed structure and is capable of functioning as claimed.
Regarding claim 2, Ewell discloses the at least one outer fabric layer (A) comprises a material selected from the group consisting of polyester, cotton, bamboo fabric, linen, hemp, silk, rayon, modal, lyocell, microfiber, and combinations thereof (Ewell discloses layer A may be made of cotton, modal, bamboo, viscose, polyester, or microfiber; see para. 0018).
Regarding claim 3, Ewell discloses the at least one absorbent inner layer (B) comprises a material selected from the group consisting of terrycloth, fleece, and a bamboo-cotton blend (layer B is made of fleece; para. 0019).
Regarding claim 5, Ewell discloses the at least one waterproof inner membrane layer (C) comprises a material selected from the group consisting of thermoplastic polyurethane (TPU) material, polyurethane laminate (PUL), vinyl, silicone, ethylene vinyl acetate (EVA), and combinations thereof (layer C is made of thermoplastic polyurethane, see para. 0020).
Regarding claim 11, the article is dimensioned and configured for use by individuals selected from the group consisting of babies, children, adults, and individuals with special needs [0013, 0017].
Regarding claim 13, the article is treated with an antimicrobial agent to reduce the proliferation of bacteria and other microorganisms, thereby enhancing hygienic properties of the article (see para. 0019 disclosing the layer B is chemically treated with an antimicrobial product).
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.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Hennessey et al (US 2014/0059732) in view of Read (US 2017/0202270).
Hennessey discloses an article (a bib) as in claim 1 wherein the absorbent inner layer (330) is made of terrycloth comprising bamboo (see “bamboo terry towelling” disclosed in para. 0076). Thus, Hennessey discloses the use of terrycloth comprising bamboo as in claim 4, but does not disclose the use of bamboo and cotton for the terrycloth as recited in claim 4.
Read discloses a towel which forms a wearable apron (see Figs. 7-10), the article comprising a fabric layer (34) and an absorbent terrycloth layer (32) (see Figs. 1-3 and 5; [0015, 0017, 0036]. Read discloses that the terrycloth layer comprises bamboo and cotton (see para. 0036, disclosing that the terrycloth layer may comprise “a blend of bamboo and cotton yarn”). Read discloses that the terrycloth layer provides advantageous absorption [0015]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use bamboo and cotton in the terrycloth of Hennessey since such a blend is conventional for terrycloth and provides advantageous levels of absorption as taught by Read.
As to the recitation in claim 4 of the blend comprising 80% bamboo and 20% cotton, Read discloses a similar ratio which comprises 70% bamboo and 27% cotton [0036]. Read discloses that the blend may comprise just bamboo and cotton, or may include additional fibers [0036]. Since the claimed ratio of 80:20 is similar to that taught by Read, it would be within the routine skill in the art to arrive at the claimed ratio in order to provide a suitable blend which has the desired levels of absorption and softness. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use 80% bamboo and 20% cotton in the terrycloth of Hennessey , since such a blend is conventional in the art as taught by Read and it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Hennessey et al (US 2014/0059732) in view of Ekelund et al (US 2010/0011478).
Hennessey disclose an article (a bib) as in claim 1 but does not disclose that the bib has a logo tag as in claim 12. Ekelund discloses a bib having a logo tag (label 204; Fig. 2A), the tag being placed to avoid interference with the absorbent and waterproof functionality while providing brand visibility (see Fig. 2A; paras. 0030-0031). The label 204 is considered to form a “logo tag” as claimed since the label 204 may include instructions, directions, intellectual property information, or “any other type of information” [0031]. It is noted that the content of the printed matter on the claimed tag does not serve to distinguish from the prior art since the claimed logo tag does not have a functional relationship with the associated product, per MPEP 2111.05.
Accordingly, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the bib of Hennessey with a logo tag which is placed on the bib in the claimed manner in order to display information on the bib in a permanent manner as taught by Ekelund.
Response to Arguments
Applicant's arguments filed 08/26/2025 have been fully considered but they are not persuasive.
Applicant argues that Hennessey does not disclose a layered article for protecting external surfaces, with layers configured to trap and contain fluids within the absorbent inner layer while maintaining dryness of external surfaces” and wherein "the waterproof inner membrane layer prevents fluid penetration to surfaces external to the article.” Applicant argues that Hennessy differs from the claimed article since it is a bib garment specifically designed to resist removal from a wearer's torso through a complex strap system that fastens at the wearer's back and is not designed as a protective barrier for external surfaces. This is not persuasive, because the intended use and function of the claimed article does not distinguish from the article of Hennessy, which has the claimed structure. The article of Hennessy functions in the claimed manner to protect the shirt of a wearer. The layers of Hennessey trap and contain fluids within the absorbent inner layer while maintaining dryness of external surfaces (for example the surface of the wearer’s shirt) and the waterproof inner membrane layer prevents fluid penetration to surfaces external to the article (for example a shirt). A shirt is a surface external to the bib (separate from the bib).
Applicant argues that Ewell does not disclose “a three layered article” as claimed, for protecting external surfaces. Applicant argues that the layers of Ewell are used to prevent body fluids from leaking through the wearer’s clothing to protect outer garments. Applicant’s arguments with respect to Ewell are not persuasive, because the article of Ewell has the claimed structure, and would function in the claimed manner since it prevents liquids from reaching external surfaces such as outer garments. The intended use and function of the claimed article does not distinguish from the article of Ewell, which has the claimed structure, and which functions to protect external surfaces such as the surfaces of other clothing. The claims do not limit the structure to only three layers, and the four layer structure of Ewell has the claimed structure and functions as claimed.
The articles of Hennessey and Ewell have the claimed structure, as set forth in the rejections above. The rejections are maintained.
Conclusion
THIS ACTION IS MADE FINAL. 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.
This action is a final rejection and closes the prosecution of this application. Applicant’s reply under 37 CFR 1.113 to this action is limited to an appeal to the Patent Trial and Appeal Board, an amendment complying with the requirements set forth below, or a request for continued examination (RCE) to reopen prosecution where permitted. Please note that the Office also offers initiatives that are available to applicants after the close of prosecution. See https://www.uspto.gov/patents/initiatives/uspto-patent-applications-iniatives-timeline for more information.
General information on the Patent Trial and Appeal Board is available at: www.uspto.gov/patents/ptab. The information at this page includes guidance on time limited options that may assist the applicant contemplating appealing an examiner’s rejection. It also includes information on pro bono (free) legal services and advice available for those who are under-resourced and considering an appeal at: https://www.uspto.gov/patents/ptab/free-legal-assistance. The page is best reviewed promptly after applicant has received a final rejection or the claims have been twice rejected because some of the noted assistance must be requested within one month from the date of the latest rejection. See MPEP § 1204 for more information on filing a notice of appeal.
If applicant should desire to appeal any rejection made by the examiner, a Notice of Appeal must be filed within the period for reply. The Notice of Appeal must be accompanied by the fee required by 37 CFR 41.20(b)(1). The current fee amount is available at: www.uspto.gov/Fees.
If applicant should desire to file an after-final amendment, entry of the proposed amendment cannot be made as a matter of right unless it merely cancels claims or complies with a formal requirement made in a previous Office action. Amendments touching the merits of the application which otherwise might not be proper may be admitted upon a showing of good and sufficient reasons why they are necessary and why they were not presented earlier.
A reply under 37 CFR 1.113 to a final rejection must include cancellation of or appeal from the rejection of, each rejected claim. The filing of an amendment after final rejection, whether or not it is entered, does not stop the running of the statutory period for reply to the final rejection unless the examiner holds all of the claims to be in condition for allowance.
If applicant should desire to continue prosecution in a utility or plant application filed on or after May 29, 2000 and have the finality of this Office action withdrawn, an RCE under 37 CFR 1.114 may be filed within the period for reply. See MPEP § 706.07(h) for more information on the requirements for filing an RCE.
The application will become abandoned unless a Notice of Appeal, an after final reply that places the application in condition for allowance, or an RCE has been filed properly within the period for reply, or any extension of this period obtained under either 37 CFR 1.136(a) or (b).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMY VANATTA whose telephone number is (571)272-4995. The examiner can normally be reached Mon-Thurs and alternate Fridays.
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/AMY VANATTA/Primary Examiner, Art Unit 3732