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 Claims
Claims 1-5 and 27- 41 are pending in this application.
Election/Restrictions
Applicant's election without traverse of claims 1-5, 7-14, 16 and 25 in the reply filed on 1/5/26 is acknowledged.
Claims 22-24 and 26 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to the nonelected species.
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.
Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function.
Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function.
Claim elements in this application that use the word “means” (or “step for”) are presumed to invoke § 112(f) except as otherwise indicated in an Office action. Similarly, claim elements that do not use the word “means” (or “step for”) are presumed not to invoke § 112(f) except as otherwise indicated in an Office action.
In the instant case there does not appear to be any means for language in the claims and/or language to be considered under 35 U.S.C. 112(f).
Claim Rejections - 35 USC § 102 AIA
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 1-5, 27-30, 32-38, 41 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Moran WO 2012109474 A1 (herein after Moran).
Regarding claim 1, Moran discloses a garment (300, as seen in annotated Figure 3, paragraphs 0063, 0064 and 0065) for lifting (paragraph 0065- lines 10-12- the 'extra firm compression' would also perform lifting) and compressing (paragraph 0064) to enhance function of a gastrointestinal (GI) tract (paragraph 0006 - lines 7-9 discuss other health benefits. The garment would be capable of also enhance the function of the GI tract) and support posture (any garment providing compression around the torso would also support posture), said garment comprising: a front portion (4L, 4R, 5, as seen in annotated Figure 3) configured to receive a ventral part (5), of a wearer, wherein the front portion comprises at least a central front section comprising a first material (5, paragraph 0065, line 3) such that, when worn by the wearer, the garment lifts and compresses at least a lower GI tract at a same time (paragraph 0065, line 10-12, reasoning given above); and a rear portion configured to receive a dorsal part of the wearer (as seen in annotated Figure 3 - back view), such that, when worn by the wearer (paragraph 0063, lines 12-14), the rear portion is positioned to compress and/or support the dorsal part of the wearer further and supports the lifting of a lower GI tract by the front portion (inherent - clearly the compression of the front cannot happen without the rear portion).
[AltContent: textbox (Front portion)][AltContent: connector][AltContent: ][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (Lower panels)][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (Rear portion)]
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Regarding claim 2, Moran discloses at least one panel comprising a second material (paragraph 0060 and 0061), the at least one panel layered with at least the rear portion (as seen in annotated Figure 7, paragraph 0075), the at least one panel extending such that, when worn by the wearer, the at least one panel is/are positioned to compress and/or support at least the dorsal part of the wearer (as seen in annotated Figure 7, paragraphs 0064, 0065 and 0075).
Regarding claim 3, Moran discloses wherein the front portion comprises a central front section (5, as seen in annotated Figure 3) and at least two lateral front sections (4, as seen in annotated Figure 3),
Regarding claim 4, Moran discloses further including a central elastic spine (2) incorporated into the rear portion (2, as seen in annotated Figure 3), such that, when worn by the wearer, the central elastic spine (2) is positioned to provide spinal support (paragraphs 0063, 0064 and 0065 – the compressive characteristics would be capable of providing support in the spine region).
Regarding claim 5, Moran discloses wherein the rear portion comprises at least two rear sections provided in the first material (4, as seen in annotated Figure 3, on each side of spine 2).
Regarding claim 27, Moran discloses a garment (fig 3, paras [63]-[65]) comprising: a front portion (4L, 4R, 5) and a rear portion (4 Rear R, 2, and 4 Rear L), wherein the front portion (4L, 4R, 5) comprises a central front section comprising a first material (5, paragraph 0065 - line 3), the central front section being configured to provide lifting (paragraph 0065 - lines 10-12 - the 'extra firm compression' would also perform lifting) and compressive support (paragraph 0064 - lines 10-12) to a gastrointestinal region (as seen in annotated Figure 3) when the garment is worn (paragraph 0063); and wherein the garment further comprises a set of lower panels (4L, 4R) comprising a second material (paragraph 0065) having a stiffness greater than the stiffness of the first material (paragraph 0062, 0064 as applied to an upper torso garment, paragraphs 0067 & 0069 teach a lower body garment using many different materials having differing compressive/stiffness with greater resistance and less resistance capabilities), the set of lower panels (2, 4R, 4L, 5) being arranged in a lower region of the garment (as seen in annotated Figure 3) so as to apply compression and additional lifting to the gastrointestinal region when the garment is worn (paragraph 0065 and 0064).
[AltContent: connector][AltContent: textbox (A gastrointestinal region.)][AltContent: oval]
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Regarding claim 28, Moran discloses wherein the front portion further comprises two lateral front sections (as seen in annotated Figure 7) positioned on opposite sides of the central front section (as seen in annotated Figure 7).
[AltContent: arrow][AltContent: textbox (Hem)][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (Central front section)][AltContent: textbox (The front portion further comprises two lateral front sections positioned on opposite sides of the central front section.)][AltContent: connector][AltContent: ][AltContent: textbox (Front portion)]
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Regarding claim 29, Moran discloses wherein the set of lower panels lie at or adjacent a lower hem of the garment (as seen in annotated Figure 7).
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Regarding claim 30, Morgan discloses wherein the set of lower panels extend around to the front portion but do not extend across the central front section (as seen in annotated Figure 7).
Regarding claim 32, Morgan discloses wherein the rear portion (as seen in annotated Figure 7) comprises a central elastic spine (2 and 3 as seen in annotated Figure 7, paragraph 0060 and 0061).
Regarding claim 33, Morgan discloses wherein the central elastic spine (2 and 3 as seen in annotated Figure 7) is formed from a third material (paragraphs 0060, 0061 and 0075) having a stiffness greater than the stiffness of the first material (paragraphs 0060, 0061 and 0075), and wherein the central elastic spine (2, 3) comprises a stretch configured to provide lateral spinal support (5) and to accommodate forward bending of the garment when worn (paragraph 0075).
Regarding claim 34, Morgan discloses wherein the rear portion further comprises an upper set of panels (as seen in annotated Figure 7) extending downwardly from the central elastic spine and positioned in an upper region of the garment (as seen in annotated Figure 7).
[AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (Two rear sections extending laterally away from the central elastic spine.)][AltContent: arrow][AltContent: arrow][AltContent: textbox (An upper set of panels.)]
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Regarding claim 35, Morgan discloses wherein the rear portion further comprises two rear sections extending laterally away from the central elastic spine (as seen in annotated Figure 7).
Regarding claim 36, Morgan discloses wherein the central front section of the front portion and the rear sections of the rear portion are formed from a continuous piece of fabric (paragraph 0062 and 0064, as seen in annotated Figure 7) extending over shoulder regions of the garment (as seen in annotated Figure 7).
Regarding claim 37, Morgan discloses wherein the garment comprises armholes (as seen in annotated Figure 3), each armhole being cut further inward at a rear portion of the garment than at a front portion of the garment (as seen in annotated Figure 3).
Regarding claim 38, Morgan discloses wherein the rear portion (as seen in annotated Figure 7) comprises a central elastic spine (2, 3) and the set of lower panels lie at or adjacent a lower hem of the garment (as seen in annotated Figure 7); and further comprising a set of internal panels (as seen in annotated Figure 7) positioned adjacent the lower hem (as seen in annotated Figure 7), the set of internal panels (as seen in annotated Figure 7) extending laterally from the central elastic spine and extending longitudinally to lower edges of the armholes (as seen in annotated Figure 7), the set of internal panels comprising the second material (paragraphs 0060, 0061 and 0065).
Regarding claim 41, Morgan discloses wherein the second material comprises a power mesh fabric (paragraph 0063).
Claim Rejections - 35 USC § 103 AIA
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 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 of this title, 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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 31 and 39 are rejected under 35 U.S.C. 103 as being unpatentable over Moran WO 2012109474 A1 (herein after Moran) in view of YIP US 20220117769 A1 (herein after Yip).
Regarding claim 31, the garment of the combined references discloses all the limitations of claim 31 except they do not disclose further comprising an adjustable belt extending across the central front section.
Yip discloses further comprising an adjustable belt (79, paragraph 0043) extending across the central front section (as seen in Figure 1A).
Moran and Yip are analogous art to the claimed invention in that they relate to garments used to correct physical ailments.
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have modified the garment of Moran by including an adjustable belt extending across the central front section as taught by Yip in order to provide additional support to the abdominal area. The modification would be a simple modification to allow the wearer to adjust the belt to customize the level of support and compression to comfort for various activities.
Regarding claim 39, the modified garment of the combined references discloses further comprising an underlay panel (paragraph 0065 and 0066) extending across a midway region of the central front section (as seen in Figure 1A) and positioned to apply additional compression to an upper gastrointestinal region (paragraph 0065 and 0066).
Claim 40 is rejected under 35 U.S.C. 103 as being unpatentable over Moran WO 2012109474 A1 (herein after Moran) in view of McEwan US 20150005855 A1 (herein after McEwan).
Regarding claim 40, the garment of the combined references discloses all the limitations of claim 40 except they do not disclose wherein the first material comprises a liquid titanium fabric.
McEwan teaches wherein the first material comprises a liquid titanium fabric (Abstract, paragraph 0031).
Moran and McEwan are analogous art to the claimed invention in that they relate to devices having healing capabilities.
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have modified the materials used for the garment of Moran by constructing the first material comprising a liquid titanium fabric as taught by McEwan in order to create a garment that is capable of imparting healing properties such as the ability to conduct infrared rays. The modification would be a simple modification to create a garment that can provide healing and recovery capabilities to sportsmen and patients.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CATHERINE M FERREIRA whose telephone number is (571)270-5916, fax number (571) 270-6916. The examiner can normally be reached on Monday - Thursday 9:00 am- 5:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, ALISSA J. TOMPKINS, at (571) 272-3425. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Catherine M. Ferreira/
Examiner, Art Unit 3732
/ALISSA J TOMPKINS/Supervisory Patent Examiner, Art Unit 3732