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 .
Status of the Claims
As directed by the amendment received on December 10, 2025, claims 1, 8, 11, 13-14, 16, and 19 have been amended. Accordingly, claims 1-20 are currently pending in this application.
Response to Amendment
The amendments filed with the written response received on December 10, 2025, have been considered and an action on the merits follows. Any objections and rejections previously put forth in the Office Action dated July 10, 2025, are hereby withdrawn unless specifically noted below.
Examiner’s Comment
Applicant is respectfully remined to use proper claim status identifiers when making amendments to the claims. Examiner notes that although claims 8 and 14 appear to be amended, the improper claim status identifier of “Original” was used by Applicant instead of “Currently Amended”. Use of improper claim status identifiers could potentially create confusion as to which claim amendments are to be examined. In an effort to advance prosecution, the claims will be examined as amended. Applicant is required to use proper claim status identifiers in all future replies in order to not be met with a Notice of Non-Compliant Amendment. See MPEP 714(II)(C)(A).
Drawings
The amendment filed December 10, 2025 is objected to under 35 U.S.C. 132(a) because it introduces new matter into the disclosure. 35 U.S.C. 132(a) states that no amendment shall introduce new matter into the disclosure of the invention. The added material which is not supported by the original disclosure is as follows: Figs. 10-11.
Although Applicant originally disclosed a closure being a drawstring in the written description and claims, new Figs. 10-11 each additionally introduce new matter that was not originally present in the application at time of filing. For example, new Figs. 10-11 at least introduce new matter not originally disclosed such as, but not limited to: the inclusion, size, shape, and position of an intermediate structure along the length of a drawstring closure; a path for how a drawstring enters, extends through, loops back, and exits such an intermediate structure; and lengths of one or more drawstring segments relative to one another and/or other components of the hat (e.g., left and right segments of the drawstring on either side of the apparent intermediate structure, length of a formed loop etc.). Indeed, none of the above features were disclosed in the application as originally filed. Therefore, new Figs. 10-11 constitute new matter and should be removed including any newly added references to the figures throughout the written description of the application.
Applicant is required to cancel the new matter in the reply to this Office Action.
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 at lines 1-2, “Headwear for individuals […] is disclosed” is implied phraseology. It is suggested that “Head for individuals” instead read “Headwear is configured for individuals”, and that the phrase “is disclosed” be removed from the abstract. 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 14 is objected to because at line 11, “a one or more panels” should read “one or more panels”.
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “a fastening mechanism” in claims 10, 17, and 20.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 1-17 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 opening has a length greater than a width” at line 8. As several structures were previously introduced in the claim, it is unclear of which structure the “width” is meant to be measured (e.g., a width of the opening, a width of the headwear, a width of the centerline axis). 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 opening has a length and a width, the length being greater than the width”. 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.
Claim 14 recites the limitation “the opening has a length greater than a width” at lines 9-10. As several structures were previously introduced in the claim, it is unclear of which structure the “width” is meant to be measured (e.g., a width of the opening, a width of the headwear, a width of the centerline axis). 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 opening has a length and a width, the length being greater than the width”. 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 2-13 and 15-17 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.
Claims 1-7 and 10-20 (claims 1-7 and 10-17, as best can be understood) are rejected under 35 U.S.C. 103 as being unpatentable over USPN 5,511,249 to Higgins (hereinafter, “Higgins”) in view of US 2025/0185744 to Richards et al. (hereinafter, “Richards”).
Regarding claim 1, Higgins teaches a headwear (See Higgins, Figs. 1-2; cap (10); abstract) comprising: a crown configured to cover a portion of a person’s head (See Higgins, Figs. 1-2; cap body (12) having crown (14) is capable of covering a hypothetical portion of a hypothetical person’s head), the crown includes a front, a rear disposed opposite of the front (See Higgins, Figs. 1-2; cap body (12) includes front proximate bill (26) and rear opposite front), a center positioned an equal distance from the front and the rear (See Higgins, Figs. 1-2; center of crown (14) of cap body (12) occupied by centrally located opening (16); abstract; Col. 1, lines 20-29), a centerline axis transversing from the front through the center to the rear (See Higgins, Figs. 1-2; a centerline axis can be drawn such that it transverses from the front, through the center, to the rear of the cap body (12) having crown (14)), an opening configured to allow an accumulation of hair to pass through the crown, the opening having a non-circular shape (See Higgins, Figs. 1-2; opening (16) capable of allowing an accumulation of hair to pass through the crown; opening (16) has a non-circular shape, i.e., an ellipse-like shape deviating from a circle, as seen in Fig. 2; abstract; Col. 1, lines 20-29).
Higgins further appears to teach the opening having an axis of symmetry superposing a segment of the centerline axis and is positioned such that the center superposes a portion of the opening (See Higgins, Figs. 1-2; opening (16) is centrally located on crown (14) of cap body (12) and therefore would have an axis of symmetry superposing a segment of the centerline axis and be positioned such that the center superposes a portion of the opening; said another way, centrally located opening would align the opening on the center of the crown to meet the claim limitations; abstract; Col. 1, lines 20-29; Examiner notes that the term "segment" is very broad and merely means "one of the parts into which something is divided; a division, portion, or section". (Defn. No. 1 of "Random House Kernerman Webster's College Dictionary" entry via TheFreeDictionary.com); Examiner notes that the term "portion" is very broad and merely means "a section or quantity within a larger thing; a part of a whole" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)).
When the reference discloses all the limitations of a claim except a property or function, and the Examiner cannot determine whether or not the reference inherently possesses properties or functionality which anticipate or render obvious the claimed invention, the basis shifts the burden of proof to Applicant as in In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980). See MPEP §§ 2112 - 2112.02.
However, it would have at least been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to align the opening along the centerline axis of the crown of the cap between the front and rear of the crown for a variety of reasons including for example, but not limited to, providing vertical and lateral support for a wearer’s hair bundle, maintaining position of the cap even into the wind or when the wearer is engaging in activities (i.e., hair bundle is not inclined toward one particular direction, but instead centered), and/or for aesthetic purposes of providing a symmetrical appearance (See Higgins, Col. 5, lines 32-37 and 40-55).
That said, although Higgins teaches a non-circular opening as discussed above, Higgins is silent to relative dimensions of the length and width of the opening and therefore is silent to wherein the opening has a length greater than a width, the opening.
However, Richards, in a related headwear art, is directed to a cap adapted to be worn by a user with hairstyles comprising a protruding portion of hair (See Richards, Figs. 1-2; abstract). More specifically, Higgins teaches wherein the opening has a length greater than a width, the opening (See Richards, Fig. 1; aperture (16) has a length, i.e., top to bottom, greater than a width, i.e., side to side).
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 replace the opening shape of Higgins with the opening shape disclosed by Richards for a variety of reason including for example, but not limited to, reducing a distance between the sides of the opening in the width direction of the opening to provide additional lateral support to a user’s hair or ponytail pulled up through the opening which is discussed as being desirable by Higgins (See Higgins, Col. 1, lines 20-37). Furthermore, as a result of the above modification, the opening of the modified headwear of Higgins would remain a non-circular shape.
Regarding claim 2, the modified headwear of Higgins (i.e., Higgins in view of Richards, as discussed with respect to claim 1 above) is silent to the crown further including a hair protector defining a periphery of the opening, the hair protector is connected to the crown and is configured to allow the accumulation of hair to pass through the crown.
However, Richards further teaches the crown further including a hair protector defining a periphery of the opening, the hair protector is connected to the crown and is configured to allow the accumulation of hair to pass through the crown (See Richards, Figs. 1-2; satin aperture lining (18, 20) connected to crown defines periphery of opening (16) and is capable of allowing an accumulation of hypothetical hair to pass through the crown; [0047]).
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 aperture lining disclosed by Richards around the periphery of the opening of the modified headwear of Higgins in order to reduce damage to the hair passing through the opening by minimalizing immediate or accumulated frictional wear-and-tear and minimalizing frizz while maintaining moisture with the hair over time (See Richards, [0047]).
Regarding claim 3, the modified headwear of Higgins (i.e., Higgins in view of Richards, as discussed with respect to claims 1-2 above) further teaches the crown further including a plurality of panels connected to form the opening and an enclosure configured to cover the portion of the person’s head (See Higgins, Figs. 1-2; cap body forming crown includes plurality of panels (20) connected to form opening (16) and an opening for a wearer’s head), each panel in the plurality of panels has a proximal end and a distal end, where the opening is located at the distal end and the enclosure is located at the proximal end of each panel (See Higgins, Figs. 1-2; each panel (20) has distal end at opening (16) and a proximal, bottom end (22) at opposite end at a head opening).
Regarding claim 4, the modified headwear of Higgins (i.e., Higgins in view of Richards, as discussed with respect to claims 1-3 above) further teaches the hair protector envelops the distal end of each panel in the plurality of panels (See Richards, Figs. 1-2; aperture lining (18, 20) of Richards as applied to the modified headwear of Higgins would envelop the distal ends of each panel).
Regarding claim 5, the modified headwear of Higgins (i.e., Higgins in view of Richards, as discussed with respect to claims 1-4 above) further teaches the hair protector includes a hair-sensitive fabric having a smooth surface for reducing friction against the accumulation of hair (See Richards, Figs. 1-2; aperture lining (18, 20) is formed of satin which Applicant states as being an acceptable material and is capable of reducing friction against the accumulation of hypothetical hair; [0047]).
Regarding claim 6, the modified headwear of Higgins (i.e., Higgins in view of Richards, as discussed with respect to claims 1-5 above) further teaches the hair-sensitive fabric includes satin, polyester, nylon, spandex, or a combination thereof (See Richards, Figs. 1-2; aperture lining (18, 20) is formed of satin).
Regarding claim 7, the modified headwear of Higgins (i.e., Higgins in view of Richards, as discussed with respect to claims 1-4 above) further teaches the hair protector includes a flexible material configured to expand the opening resulting from the accumulation of hair exerting a force on the hair protector (See Richards, Figs. 1-2; aperture lining (18, 20) is a flexible material and is capable of expanding the opening resulting from the accumulation of hypothetical hair exerting a hypothetical force on the aperture lining).
Regarding claim 10, the modified headwear of Higgins (i.e., Higgins in view of Richards, as discussed with respect to claim 1 above) further teaches the crown further including a closure having a fastening mechanism system configured to secure the headwear to the person’s head (See Higgins, Figs. 1-2; adjustable fastener (25) is capable of securing the cap to a hypothetical person’s head).
Regarding claim 11, although Higgins teaches an adjustable fastener, Higgins is silent as to a type of adjustable fastener. Therefore, the modified headwear of Higgins (i.e., Higgins in view of Richards, as discussed with respect to claims 1 and 10 above) is silent to a fastening mechanism is selected from the group consisting of a buckle closure, a hook-and-loop fastener, a snapback closure, an elastic band, a strap and buckle, a drawstring, or a stretch fit.
However, Richards further teaches a fastening mechanism is selected from the group consisting of a buckle closure, a hook-and-loop fastener, a snapback closure, an elastic band, a strap and buckle, a drawstring, or a stretch fit (See Richards, Figs. 1-2; adjustable closure (24) is a strap and buckle).
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 replace the adjustable fastener of the modified headwear of Higgins with the strap and buckle adjustable fastener disclosed by Richards, as the modification amounts to no more than a simple substitution of one known adjustable fastener for another with nothing more than the reasonable expectation of one adjustable fastener performing just as well as the other to yield predictable results, i.e., adjustable fastening of the headwear to a wearer’s head.
Regarding claim 12, the modified headwear of Higgins (i.e., Higgins in view of Richards, as discussed with respect to claims 1-2 above) further teaches a brim connected to the crown and disposed adjacent to the front of the crown (See Higgins, Figs. 1-2; frontal brim (26)).
Regarding claim 13, Higgins (as applied to claim 1 above) further teaches the non-circular shape of the opening is selected from the group consisting of the following an elongated ellipse-like shape, a narrow-elongated ellipse-like shape, or broad-elongated ellipse-like shape (See Richards, Fig. 1; aperture (16) shape as applied to the opening in the modified headwear of Higgins as discussed above is an elongated ellipse-like shape).
Regarding claim 14, Higgins teaches a headwear (See Higgins, Figs. 1-2; cap (10); abstract) comprising: a crown (See Higgins, Figs. 1-2; cap body (12) having crown (14)) including: a front, a rear disposed opposite of the front (See Higgins, Figs. 1-2; cap body (12) includes front proximate bill (26) and rear opposite front), a center positioned an equal distance from the front and the rear (See Higgins, Figs. 1-2; center of crown (14) of cap body (12) occupied by centrally located opening (16); abstract; Col. 1, lines 20-29), a centerline axis transversing from the front though the center to the rear (See Higgins, Figs. 1-2; a centerline axis can be drawn such that it transverses from the front, through the center, to the rear of the cap body (12) having crown (14)), an opening having a non-circular shape (See Higgins, Figs. 1-2; opening (16) capable of allowing an accumulation of hair to pass through the crown; opening (16) has a non-circular shape, i.e., an ellipse-like shape deviating from a circle, as seen in Fig. 2; abstract; Col. 1, lines 20-29), a one or more panels connected to form the opening and an enclosure configured to cover the portion of a person’s head (See Higgins, Figs. 1-2; cap body forming crown includes plurality of panels (20) connected to form opening (16) and an opening for a wearer’s head), each panel has a proximal end and a distal end, wherein the opening is located at the distal end and the enclosure is located at the proximal end of each panel (See Higgins, Figs. 1-2; each panel (20) has distal end at opening (16) and a proximal, bottom end (22) at opposite end at a head opening).
Higgins further appears to teach the opening having an axis of symmetry superposing a segment of the centerline axis and is positioned such that the center superposes a portion of the opening (See Higgins, Figs. 1-2; opening (16) is centrally located on crown (14) of cap body (12) and therefore would have an axis of symmetry superposing a segment of the centerline axis and be positioned such that the center superposes a portion of the opening; said another way, centrally located opening would align the opening on the center of the crown to meet the claim limitations; abstract; Col. 1, lines 20-29; Examiner notes that the term "segment" is very broad and merely means "one of the parts into which something is divided; a division, portion, or section". (Defn. No. 1 of "Random House Kernerman Webster's College Dictionary" entry via TheFreeDictionary.com); Examiner notes that the term "portion" is very broad and merely means "a section or quantity within a larger thing; a part of a whole" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)).
When the reference discloses all the limitations of a claim except a property or function, and the Examiner cannot determine whether or not the reference inherently possesses properties or functionality which anticipate or render obvious the claimed invention, the basis shifts the burden of proof to Applicant as in In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980). See MPEP §§ 2112 - 2112.02.
However, it would have at least been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to align the opening along the centerline axis of the crown of the cap between the front and rear of the crown for a variety of reasons including for example, but not limited to, providing vertical and lateral support for a wearer’s hair bundle, maintaining position of the cap even into the wind or when the wearer is engaging in activities (i.e., hair bundle is not inclined toward one particular direction, but instead centered), and/or for aesthetic purposes of providing a symmetrical appearance (See Higgins, Col. 5, lines 32-37 and 40-55).
That said, although Higgins teaches a non-circular opening as discussed above, Higgins is silent to relative dimensions of the length and width of the opening and therefore is silent to wherein the opening has a length greater than a width.
However, Richards, in a related headwear art, is directed to a cap adapted to be worn by a user with hairstyles comprising a protruding portion of hair (See Richards, Figs. 1-2; abstract). More specifically, Higgins teaches wherein the opening has a length greater than a width (See Richards, Fig. 1; aperture (16) has a length, i.e., top to bottom, greater than a width, i.e., side to side).
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 replace the opening shape of Higgins with the opening shape disclosed by Richards for a variety of reason including for example, but not limited to, reducing a distance between the sides of the opening in the width direction of the opening to provide additional lateral support to a user’s hair or ponytail pulled up through the opening which is discussed as being desirable by Higgins (See Higgins, Col. 1, lines 20-37). Furthermore, as a result of the above modification, the opening of the modified headwear of Higgins would remain a non-circular shape.
That said, the modified headwear of Higgins (i.e.,, Higgins in view of Richards, as discussed above) is silent to a hair protector defines a periphery of the opening, the hair protector is connected to and envelops the distal end of each panel, the hair protector is configured to allow an accumulation of hair to pass through the crown.
However, Richards further teaches a hair protector defines a periphery of the opening, the hair protector is connected to and envelops the distal end of each panel, the hair protector is configured to allow an accumulation of hair to pass through the crown (See Richards, Figs. 1-2; satin aperture lining (18, 20) connected to crown defines and envelops periphery of opening (16) and is capable of allowing an accumulation of hypothetical hair to pass through the crown; [0047]).
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 aperture lining disclosed by Richards around the periphery of the opening of the modified headwear of Higgins in order to reduce damage to the hair passing through the opening by minimalizing immediate or accumulated frictional wear-and-tear and minimalizing frizz while maintaining moisture with the hair over time (See Richards, [0047]).
Regarding claim 15, the modified headwear of Higgins (i.e., Higgins in view of Richards, as applied to claim 14 above) further teaches a brim connected to the crown and disposed adjacent to the front of the crown (See Higgins, Figs. 1-2; frontal brim (26)).
Regarding claim 16, the modified headwear of Higgins (i.e., Higgins in view of Richards, as applied to claim 14 above) further teaches the non-circular shape of the opening is selected from the group consisting of an elongated ellipse-like shape, a narrow-elongated ellipse-like shape, or broad-elongated ellipse-like shape (See Richards, Fig. 1; aperture (16) shape as applied to the opening in the modified headwear of Higgins as discussed above is an elongated ellipse-like shape).
Regarding claim 17, the modified headwear of Higgins (i.e., Higgins in view of Richards, as applied to claim 14 above) further teaches the crown further includes a closure having a fastening mechanism system configured to secure the headwear to a person’s head (See Higgins, Figs. 1-2; adjustable fastener (25) is capable of securing the cap to a hypothetical person’s head).
Regarding claim 18, Higgins teaches a headwear (See Higgins, Figs. 1-2; cap (10); abstract) comprising: a crown (See Higgins, Figs. 1-2; cap body (12) having crown (14)) including: a front, a rear disposed opposite of the front (See Higgins, Figs. 1-2; cap body (12) includes front proximate bill (26) and rear opposite front), a center positioned an equal distance from the front and the rear (See Higgins, Figs. 1-2; center of crown (14) of cap body (12) occupied by centrally located opening (16); abstract; Col. 1, lines 20-29), a centerline axis transversing from the front though the center to the rear (See Higgins, Figs. 1-2; a centerline axis can be drawn such that it transverses from the front, through the center, to the rear of the cap body (12) having crown (14)), an opening having a non-circular shape (See Higgins, Figs. 1-2; opening (16) capable of allowing an accumulation of hair to pass through the crown; opening (16) has a non-circular shape, i.e., an ellipse-like shape deviating from a circle, as seen in Fig. 2; abstract; Col. 1, lines 20-29), a plurality of panels connected to form the opening and an enclosure configured to cover the portion of a person’s head (See Higgins, Figs. 1-2; cap body forming crown includes plurality of panels (20) connected to form opening (16) and an opening for a wearer’s head), each panel in the plurality of panels has a proximal end and a distal end, wherein the opening is located at the distal end and the enclosure is located at the proximal end of each panel (See Higgins, Figs. 1-2; each panel (20) has distal end at opening (16) and a proximal, bottom end (22) at opposite end at a head opening); and a brim connected to the crown and disposed adjacent to the front of the crown (See Higgins, Figs. 1-2; frontal brim (26)).
Higgins further appears to teach the opening having an axis of symmetry superposing a segment of the centerline axis and is positioned such that the center superposes a portion of the opening (See Higgins, Figs. 1-2; opening (16) is centrally located on crown (14) of cap body (12) and therefore would have an axis of symmetry superposing a segment of the centerline axis and be positioned such that the center superposes a portion of the opening; said another way, centrally located opening would align the opening on the center of the crown to meet the claim limitations; abstract; Col. 1, lines 20-29; Examiner notes that the term "segment" is very broad and merely means "one of the parts into which something is divided; a division, portion, or section". (Defn. No. 1 of "Random House Kernerman Webster's College Dictionary" entry via TheFreeDictionary.com); Examiner notes that the term "portion" is very broad and merely means "a section or quantity within a larger thing; a part of a whole" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)).
When the reference discloses all the limitations of a claim except a property or function, and the Examiner cannot determine whether or not the reference inherently possesses properties or functionality which anticipate or render obvious the claimed invention, the basis shifts the burden of proof to Applicant as in In re Fitzgerald, 619 F.2d 67, 205 USPQ 594 (CCPA 1980). See MPEP §§ 2112 - 2112.02.
However, it would have at least been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to align the opening along the centerline axis of the crown of the cap between the front and rear of the crown for a variety of reasons including for example, but not limited to, providing vertical and lateral support for a wearer’s hair bundle, maintaining position of the cap even into the wind or when the wearer is engaging in activities (i.e., hair bundle is not inclined toward one particular direction, but instead centered), and/or for aesthetic purposes of providing a symmetrical appearance (See Higgins, Col. 5, lines 32-37 and 40-55).
That said, the head wear of Higgins (as discussed above) is silent to a hair protector defines a periphery of the opening, the hair protector is connected to and envelops the distal end of each panel in the plurality of panels, the hair protector is configured to allow an accumulation of hair to pass through the crown.
However, Richards, in a related headwear art, is directed to a cap adapted to be worn by a user with hairstyles comprising a protruding portion of hair (See Richards, Figs. 1-2; abstract). More specifically, Richards teaches a hair protector defines a periphery of the opening, the hair protector is connected to and envelops the distal end of each panel in the plurality of panels, the hair protector is configured to allow an accumulation of hair to pass through the crown (See Richards, Figs. 1-2; satin aperture lining (18, 20) connected to crown defines and envelops periphery of opening (16) and is capable of allowing an accumulation of hypothetical hair to pass through the crown; [0047]).
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 aperture lining disclosed by Richards around the periphery of the opening of Higgins in order to reduce damage to the hair passing through the opening by minimalizing immediate or accumulated frictional wear-and-tear and minimalizing frizz while maintaining moisture with the hair over time (See Richards, [0047]).
Regarding claim 19, the modified headwear of Higgins (i.e., Higgins in view of Richards, as applied to claim 18 above) further teaches the non-circular shape of the opening is selected from the group consisting of an elongated ellipse-like shape, a narrow-elongated ellipse-like shape, or broad-elongated ellipse-like shape (See Higgins, Fig. 2; opening (16) is an elongated ellipse-like shape).
Regarding claim 20, the modified headwear of Higgins (i.e., Higgins in view of Richards, as applied to claim 18 above) further teaches the crown further includes a closure having a fastening mechanism system configured to secure the headwear to a person’s head (See Higgins, Figs. 1-2; adjustable fastener (25) is capable of securing the cap to a hypothetical person’s head).
Claims 8-9, as best can be understood, is rejected under 35 U.S.C. 103 as being unpatentable over Higgins in view of Richards, as applied to claims 1-2 above, and further in view of US 2020/0196695 to Ault et al. (hereinafter, “Ault”).
Regarding claim 8, the modified headwear of Higgins (i.e., Higgins in view of Richards, as discussed with respect to claims 1-2 above) further teaches each panel having an exterior surface and an interior surface (See Higgins, Figs. 1-2; each panel (20) has an exterior surface and an interior surface).
That said, the modified headwear of Higgins is silent to where the exterior surface includes a fabric material and the interior surface includes the fabric material.
However, Ault, in a related headwear art, is directed to a hat formed of panels and having an opening for a user’s hair (See Ault, Figs. 1-3; abstract). More specifically, Ault teaches where the exterior surface includes a fabric material and the interior surface includes the fabric material (See Ault, Figs. 1-3; panels of hat can be formed of fabric of nylon, polyester, spandex, and/or a blend thereof; [0028]).
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 panels, including the interior and exterior surfaces, of the modified headwear of Higgins from the fabric material disclosed by Ault for a variety of reasons including for example, but not limited to, providing a comfortable-fitting yet protective material from which the headwear can be formed (See Ault, [0028]).
Regarding claim 9, the modified headwear of Higgins (i.e., Higgins in view of Richards and Ault, as discussed with respect to claims 1-2 and 8 above) further teaches the fabric material includes satin, polyester, nylon, spandex, or a combination thereof (See Ault, Figs. 1-3; material of hat can be formed of fabric of nylon, polyester, spandex, and/or a blend thereof; [0028]).
Response to Arguments
Unless otherwise noted below, Applicant’s arguments, filed December 10, 2025, with respect to the rejection of the claims under 35 USC 102 and 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.
In response to Applicant’s argument that Higgins explicitly teaches the crown opening as circular and that Higgins’ written description and claims uniformly teach a circular shape, Examiner respectfully disagrees. As part of Applicant’s argument, Applicant points to portions of the claims of Higgins as evidence of Higgins teaching strictly a circular opening. That said, contrary to Applicant’s assertion of explicit teaching, Higgins never explicitly states that the opening is strictly circular.
As pointed out by Applicant, the claims of Higgins recite the opening having a “generally circular perimeter” and the opening being “about one inch in diameter”. Through use of the broadening terms “generally” and “about”, Higgins disclosure introduces deviation a strictly circular shape of the opening especially when combined with the depicted opening (16) disclosed in Fig. 2 which explicitly shows a non-circular shape. Indeed, the non-circular shape of the opening (16) as illustrated in Fig. 2 of Higgins could still be considered as having a “generally circular perimeter” while not being exactly a circle or exactly circular.
Similarly, the mere presence of the discussion of a diameter, does not necessarily require the presence of only a circle or strictly a circular shape. Indeed, an ellipse, for example, much like the ellipse-like shapes presented in Applicant’s own application, can also be defined by diameter values. For example, an ellipse would have several different diameter values ranging between a minor axis diameter value and a major axis diameter value. Even a slightly elongated ellipse shape having a major axis diameter value of 1 inch could have a relatively small range of diameters each considered to be “about one inch in diameter” under a broadest reasonable interpretation.
Therefore, in light of Higgins’ use of broad language when describing the shaped opening, in combination with the shaped opening explicitly depicted in Fig. 2 of Higgins, Higgins is considered as teaching an opening having a non-circular shape, i.e., a shape deviating from a circle.
In response to Applicant’s argument that Richards teaches the use of a top button located at the crown of the headwear which is intentionally excluded from the present claims, Examiner notes that contrary to Applicant’s apparent argument, Richards is not relied upon for a centered position of the opening on a crown as argued by Applicant. Instead, as discussed in the current grounds of rejection above, Richards is relied upon for teaching relative dimensions of an opening, i.e., length and width, and also a hair protector defining a periphery of an opening, i.e., an aperture lining.
In response to Applicant’s apparent argument that Ault is cited for showing an elastic or stretchable band around an opening and that applying a drawstring or elasticized ring as in Ault would render the combination in view of Higgins inoperable, Examiner respectfully disagrees. Examiner notes that Ault was never relied upon for teaching an elastic band, drawstring, or ring. Instead, Ault is relied upon only for teaching a material for forming headwear panels as discussed in the current grounds of rejection above. Therefore, Applicant’s argument is moot.
In response to Applicant’s argument that Ault is non-analogous art that is directed to unstructured, flexible headwear such as cinchable or adjustable bonnets, again Examiner respectfully disagrees. Contrary to Applicant’s description, Ault never uses the word “bonnet”. Instead, Ault is explicitly directed to a hat (See Ault, Fig. 1; abstract; claims 1 and 11). Furthermore, it has been held that a prior art reference must either be in the field of the inventor’s endeavor or, if not, then be reasonably pertinent to the particular problem with which the inventor was concerned, in order to be relied upon as a basis for rejection of the claimed invention. See In re Oetiker, 977 F.2d 1443, 24 USPQ2d 1443 (Fed. Cir. 1992). In this case, Ault is in a related headwear art similar to that of Applicant’s invention.
In response to Applicant’s argument that there is no motivation to combine Ault with Higgins and Richards, Examiner again respectfully disagrees. 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 for one of ordinary skill in the art at the time of the effective filing date of the invention to form the panels, including the interior and exterior surfaces, of the modified headwear of Higgins from the fabric material disclosed by Ault for a variety of reasons including for example, but not limited to, providing a comfortable-fitting yet protective material from which the headwear can be formed (See Ault, [0028]). Again, Ault is relied upon only for teaching a material for forming headwear panels as discussed in the current grounds of rejection above.
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.
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/MATTHEW R MARCHEWKA/Examiner, Art Unit 3732