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
In response to the Application filed 2/29/2024, claims 1-20 are presented for examination on the merits.
Drawings
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 following structures must be shown or the feature(s) canceled from the claim(s):
Claim 3, “wherein the second layer is attached to the intersection”;
Claims 7 and 20, “wherein the wall has a wall opening permitting access to the pocket opening from an outwardly directed surface of the wall”; Examiner notes that claim 7 depends on claim 1, and claim 1 provides limitations for a pocket as being established by the intersection of the bottom surface and the inwardly directed surface, but there is not a drawing that includes a pocket accessed by the intersection of the bottom surface, the inwardly directed surface, and a wall opening permitting access to the pocket opening from an outwardly directed surface of the wall; Examiner notes that claim 20 depends on claim 15, and claim 15 provides limitations for a pocket as being established by the intersection of the bottom surface and the inwardly directed surface, but there is not a drawing that includes a pocket accessed by the intersection of the bottom surface, the inwardly directed surface, and a wall opening permitting access to the pocket opening from an outwardly directed surface of the wall;
Claim 13, “the brim has a second layer adjacent the first layer”.
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.
New corrected drawings in compliance with 37 CFR 1.121(d) are required in this application because photographs were provided for Figs. 12-17. Applicant is advised to employ the services of a competent patent draftsperson outside the Office, as the U.S. Patent and Trademark Office no longer prepares new drawings. The corrected drawings are required in reply to the Office action to avoid abandonment of the application. The requirement for corrected drawings will not be held in abeyance.
Claim Objections
Claims 3 is objected to because of the following informalities:
Claim 3: the recitation “the headworn device of claim 3” should be amended to read, for example, “the headworn device of claim 1”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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 3, 7, 17, and 20 and is/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, regards as the invention.
Claims 3 and 17 is/are rejected as being indefinite or failing to particularly point out and distinctly claim the meaning of “wherein the second layer is attached to the intersection along less than the majority of the intersection but along the portion”. After a full review of Applicant’s disclosure and Fig. 3, it appears the second layer is attached to the wall 160. It also appears that Applicant references in para. 49 that the second layer is attached along the portion of the intersection where the first layer is not attached to the intersection, but it is unclear how the second layer is attached along a portion of the intersection in Fig. 3. Applicant is respectfully advised to clarify if/how the second layer is attached along the intersection portion, the upper portion, or which portion the second layer is attached to in the recitation “along the portion”. Applicant is also respectfully advised to clarify the boundary/boundaries of “the majority of the intersection”. For examination purposes, Examiner interprets the second layer is attached to the wall. Claims 3 and 17 is/are rejected as best understood by Examiner.
Claims 7 and 20 recite the limitation “the pocket opening” in line 2 of both claims. There is insufficient antecedent basis for this limitation in the claim. For the purposes of examination, examiner interprets “the pocket opening” as “a pocket opening”. The recitation should read “a pocket opening”.
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.
Claim(s) 6 is/are rejected under 35 U.S.C. 101 because 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.
Claim 6 is 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).
Claim 6 positively claim portions of the human anatomy, “an ear of the person” in lines 1-2. It is recommended that Applicant adopt language such as "configured to" be associated with the recited portions of human anatomy in order to avoid positively claiming human anatomy.
Claim Rejections - 35 USC § 102
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) 1-5 and 14-19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Peedie (US 1,613,675 A).
Regarding claim 1, Peedie teaches a headworn device (1; lines 25-29) comprising:
a crown (see annotated Fig. 2 below) having a wall (see annotated Fig. 2 below), the wall having an inwardly directed surface (see annotated Fig. 2 below, the inward curvature surface of the wall toward the crown is “an inwardly directed surface”);
and a top supported by the wall (see annotated Fig. 2 below), the top having a bottom surface (see annotated Fig. 2 below, where the bottom surface is the internal surface opposite of the annotated top surface);
wherein the bottom surface and the inwardly directed surface provide a recess (see annotated Fig. 2 below) dimensioned to accommodate an upper portion of a head of a person (Fig. 2 & lines 30-34);
and an intersection of the bottom surface (see annotated Fig. 2 below) and the inwardly directed surface establish (see annotated Fig. 2 below) an edge (11; Fig. 2) of a pocket (see annotated Fig. 2 below), the pocket having a first layer (2, 4) attached to the intersection (see annotated Fig. 2 below) and defining a storage volume (see annotated Fig. 2 below, where the pocket has/defines a volume and therefore, is a “storage volume” inasmuch as claimed), and a second layer (5, 7) preventing escape of pocket contents from the pocket during use of the headworn device (lines 48-53).
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Regarding claim 2, Peedie teaches the headworn device of claim 1, wherein the second layer is between the first layer and the bottom surface (see annotated Fig. 2 above of claim 1 rejection, where 7 is between 2 and the bottom surface/internal surface opposite of the annotated top surface across the diameter of the hat).
Regarding claim 3, insofar as is definite, Peedie teaches the headworn device of claim 3, wherein the first layer is attached to a majority of the intersection (see annotated Fig. 2 below of where 2 is attached to the annotated “majority of the intersection”) so as to form a pocket opening (see annotated Fig. 2 below; Fig. 3) along an intersection portion at which the first layer is not attached to the intersection (see annotated Fig. 2 below; Examiner notes the term “along” is very broad and merely means “course parallel and close to”, see defn. no. 2 of American Heritage Dictionary of the English Language, 5th Edition, 2016, entry via thefreedictionary.com/along, and therefore, the pocket opening of Peedie is “along” an intersection portion at which the first layer 2 and 4 is/are not attached to the intersection inasmuch as claimed), and wherein the second layer is attached to the intersection along less than the majority of the intersection but along the portion (see annotated Fig. 2 below, where 5 and 7 are attached to the wall via 6, as best understood).
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Regarding claim 4, Peedie teaches the headworn device of claim 1, wherein the first layer is between the second layer and the inwardly directed surface (see annotated Figs. 2 of claims 1 and 3 rejection above).
Regarding claim 5, Peedie teaches the headworn device of claim 4, wherein the first layer is attached to a length of the intersection (see annotated Fig. 2 below) to form a pocket opening along the inwardly directed surface (see annotated Fig. 2 below), and wherein the second layer is attached to the inwardly directed surface over the pocket opening (see annotated Fig. 2 below, where 5 and 7 are over the pocket opening because 5 and 7 are on a plane that superimposes the pocket opening).
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Regarding claim 14, Peedie teaches the headworn device of claim 1, wherein the first layer is spaced inwardly from the inwardly directed surface (Fig. 2) to provide protection of the head of the person from objects protruding through the wall to the inwardly directed surface (Fig. 2, where 2 and 4 are functionally capable of providing protection of the head of the person from objects protruding through the wall to the inwardly directed surface).
Regarding claim 15, Peedie teaches a method of manufacturing (at least lines 7-10 & 34-90) a headworn device (1), the method comprising:
forming a crown having a wall (see annotated Fig. 2 of claim 1 rejection above), the wall having an inwardly directed surface (see annotated Fig. 2 of claim 1 rejection above, the inward curvature surface of the wall toward the crown is “an inwardly directed surface”);
and forming a top supported by the wall (see annotated Fig. 2 of claim 1 rejection above; lines 29-34), the top having a bottom surface (see annotated Fig. 2 of claim 1 rejection above, where the bottom surface is the internal surface opposite of the annotated top surface);
such that the bottom surface and the inwardly directed surface provide a recess (see annotated Fig. 2 of claim 1 rejection above) dimensioned to accommodate an upper portion of a head of a person (Fig. 2);
and an intersection of the bottom surface (see annotated Fig. 2 of claim 1 rejection above) and the inwardly directed surface establish an edge of a pocket (11; see annotated Fig. 2 of claim 1 rejection above), the pocket having a first layer (2, 4) attached to the intersection and defining a storage volume (see annotated Fig. 2 of claim 1 rejection above, where the pocket has/defines a volume and therefore, is a “storage volume” inasmuch as claimed), and a second layer (5, 7) preventing escape of pocket contents from the pocket during use of the headworn device (lines 48-53).
Regarding claim 16, Peedie teaches the method of claim 15, wherein the second layer is between the first layer and the bottom surface (see annotated Fig. 2 above of claim 1 rejection, where 7 is between 2 and the bottom surface/internal surface opposite of the annotated top surface across the diameter of the hat).
Regarding claim 17, insofar as is definite, Peedie teaches the method of claim 16, wherein the first layer is attached to a majority of the intersection (see annotated Fig. 2 above of claim 3 rejection of where 2 is attached to the annotated “majority of the intersection”) so as to form a pocket opening along an intersection portion at which the first layer is not attached to the intersection (see annotated Fig. 2 above of claim 3 rejection; Fig. 3), and wherein the second layer is attached to the intersection along less than the majority of the intersection but along the portion (see annotated Fig. 2 above of claim 3 rejection, where 5 and 7 are attached to the wall via 6, as best understood).
Regarding claim 18, Peedie teaches the method of claim 15, wherein the first layer is between the second layer and the inwardly directed surface (see annotated Figs. 2 of claims 1 and 3 rejection above).
Regarding claim 19, Peedie teaches the method of claim 18, wherein the first layer is attached to a length of the intersection (see annotated Fig. 2 above of claim 5 rejection) to form a pocket opening along the inwardly directed surface (see annotated Fig. 2 above of claim 5 rejection), and wherein the second layer is attached to the inwardly directed surface over the pocket opening (see annotated Fig. 2 above of claim 5 rejection, where 5 and 7 are over the pocket opening because 5 and 7 are on a plane that superimposes the pocket opening).
Claim(s) 1 and 7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mims (US 3,505,682 A).
Regarding claim 1, Mims teaches a headworn device (10; Figs. 1-3) comprising:
a crown (crown; col. 2 lines 31-33 & Fig. 3) having a wall (14), the wall having an inwardly directed surface (Fig. 1, where 14 slopes towards 11, and therefore, has “an inwardly directed surface”);
and a top supported by the wall (11), the top having a bottom surface (Figs. 1-3, where the bottom surface of 11 is the surface facing inwardly towards the wearer’s head when 10 is worn);
wherein the bottom surface and the inwardly directed surface provide a recess (see annotated Fig. 3 below) dimensioned to accommodate an upper portion of a head of a person (col. 1 lines 56-72);
and an intersection of the bottom surface (see annotated Fig. 3 below) and the inwardly directed surface establish (see annotated Fig. 3 below) an edge (see annotated Fig. 3 below, where the edge is/are a portion along 10 and 11 at the intersection) of a pocket (17), the pocket having a first layer (see annotated Fig. 2 below) attached to the intersection (see annotated Figs. 2 & 3 below) and defining a storage volume (Figs. 2-3, the space defined by 11, 17, and 18 is the storage volume), and a second layer (see annotated Fig. 2 below) preventing escape of pocket contents from the pocket during use of the headworn device (Figs. 2-3, once the first and second layers are attached via 13, pocket contents are prevented from escaping during use; col. 2 lines 41-49).
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Regarding claim 7, Mims teaches the headworn device of claim 1, wherein the wall has a wall opening (Fig. 2, the opening along 13) permitting access to the pocket opening (13 when opened) from an outwardly directed surface of the wall (Fig. 2, where the outwardly directed surface of the wall is the surface facing the environment of 14).
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.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The factual inquiries 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.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Peedie (US 1,613,675 A).
Regarding claim 6, Peedie discloses the headworn device of claim 5, wherein the length of the intersection sits above an ear of the person when the headworn device is worn by the person (see annotated Fig. 2 above of claim 5 rejection, where the length of the intersection is functionally capable of sitting above an ear of a person when the hat is worn).
Claim(s) 8-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Peedie (US 1,613,675 A), in view of Steinberg (US 1,784,470 A).
Regarding claim 8, Peedie discloses the headworn device of claim 1, except for wherein the crown has a naturally light pigment that maintains a cool temperature in intense sun conditions, the crown being formed from hemp having the naturally light pigment.
However, Steinberg teaches a headwear (Figs. 1-3) that has a naturally light pigment that maintains a cool temperature in intense sun conditions (p. 1 lines 71-77 disclose a hemp material 13, and hemp is a naturally light pigment functionally capable of maintaining a cool temperature in intense sun conditions; Fig. 3 & p. 2 lines 14-20 disclose the braiding of the hemp permitting air circulation, and therefore, functionally capable of maintaining a cool temperature in intense sun conditions), and the headwear formed from hemp having the naturally light pigment (p. 1 lines 71-77; Figs. 1-3).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the crown of Peedie to be made of a naturally light pigment that maintains a cool temperature in intense sun conditions, and the headwear formed from hemp having the naturally light pigment, as taught by Steinberg, in order to improve the moldability of the hat (p. 1 lines 67-77) and provide an aesthetically pleasing design. Further, a change in aesthetic (ornamental) design generally will not support patentability. See MPEP 2144.04. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP 2144.07. When in combination, Peedie and Steinberg disclose the crown being formed from hemp having the naturally light pigment.
Regarding claim 9, Peedie discloses the headworn device of claim 1, except for wherein the wall is formed with a stitching count that provides ventilation.
However, Steinberg teaches a headworn device, wherein the wall is formed with a stitching count that provides ventilation (13 of Fig. 3 & p. 2 lines 14-20).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the wall of Peedie to be formed with a stitching count that provides ventilation, as taught by Steinberg, in order to improve the moldability of the hat (p. 1 lines 67-77) and provide an aesthetically pleasing design. Further, a change in aesthetic (ornamental) design generally will not support patentability. See MPEP 2144.04. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP 2144.07. When in combination, Peedie and Steinberg disclose the wall is formed with a stitching count that provides ventilation.
Regarding claim 10, Steinberg further teaches the headworn device of claim 9, except for wherein the stitching count is inclusively between 10 and 119 stitches per square inch.
However, it would have been an obvious matter of design choice to modify the stitching count of Steinberg to be inclusively between 10 and 119 stitches per square inch, in order to improve the moldability of the hat (p. 1 lines 67-77). Further, it would have been an obvious matter of design choice since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. See MPEP 2144.04.
Regarding claim 11, Peedie discloses the headworn device of claim 1, further comprising a brim (see annotated Fig. 2 below and Fig. 1) extending radially from a base of the crown (see annotated Fig. 2 below and Fig. 1).
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Peedie does not directly disclose the brim formed with a stitching count that provides sun protection.
However, Steinberg teaches a brim (see annotated Fig. 2 below) formed with a stitching count (13 on the brim; p. 2 lines 14-20) that provides sun protection (Figs. 1-3, where the brim is functionally capable of providing sun protection).
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Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the brim of Peedie to be formed with a stitching count that provides sun protection, as taught by Steinberg, in order to improve the moldability of the hat (p. 1 lines 67-77) and provide an aesthetically pleasing design. Further, a change in aesthetic (ornamental) design generally will not support patentability. See MPEP 2144.04. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP 2144.07. When in combination, Peedie and Steinberg disclose the brim formed with a stitching count that provides sun protection.
Regarding claim 12, Steinberg further teaches the headworn device of claim 11, except for wherein the stitching count is inclusively between 120 and 1000 stitches per square inch.
However, it would have been an obvious matter of design choice to modify the stitching count of Steinberg to be inclusively between 120 and 1000 stitches per square inch, in order to improve the moldability of the hat (p. 1 lines 67-77). Further, it would have been an obvious matter of design choice since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. See MPEP 2144.04.
Regarding claim 13, Steinberg further teaches the headworn device of claim 12, wherein the stitching count is a stitching count of a first layer of the brim (13 on the brim is a stitching count of a first layer; Fig. 3), and the brim has a second layer adjacent the first layer (14 on the brim is a second layer adjacent to the first layer; Figs. 2-3).
Steinberg does not directly disclose the second layer formed using a stitching count inclusively between 10 to 119 stitches per square inch.
However, it would have been an obvious matter of design choice to modify the second layer formed using a stitching count of Steinberg to be inclusively between 10 to 119 stitches per square inch, in order to provide an aesthetically pleasing design. Further, a change in aesthetic (ornamental) design generally will not support patentability. See MPEP 2144.04. Further, it would have been an obvious matter of design choice since such a modification would have involved a mere change in the size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. See MPEP 2144.04.
Claim(s) 15 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Mims (US 3,505,682 A).
Regarding claim 15, Mims discloses a method of manufacturing (at least col. 1 lines 20-24) a headworn device (10; Figs. 1-3), the method comprising:
forming a crown (crown; col. 2 lines 31-33 & Fig. 3) having a wall (14), the wall having an inwardly directed surface (Fig. 1, where 14 slopes towards 11, and therefore, has “an inwardly directed surface”);
and forming a top supported by the wall (11; Figs. 1-3), the top having a bottom surface (Figs. 1-3, where the bottom surface of 11 is the surface facing inwardly towards the wearer’s head when 10 is worn);
such that the bottom surface and the inwardly directed surface provide a recess dimensioned to accommodate an upper portion of a head of a person (see annotated Fig. 3 above of claim 1 rejection over Mims);
and an intersection of the bottom surface (see annotated Fig. 3 above of claim 1 rejection over Mims) and the inwardly directed surface establish an edge (see annotated Fig. 3 above of claim 1 rejection over Mims, where the edge is/are a portion along 10 and 11 at the intersection) of a pocket (17), the pocket having a first layer (see annotated Figs. 2-3 above of claim 1 rejection over Mims) attached to the intersection and defining a storage volume (Figs. 2-3, the space defined by 11, 17, and 18 is the storage volume), and a second layer (see annotated Figs. 2-3 above of claim 1 rejection over Mims) preventing escape of pocket contents from the pocket during use of the headworn device (Figs. 2-3, once the first and second layers are attached via 13, pocket contents are prevented from escaping during use; col. 2 lines 41-49).
Regarding claim 20, Mims discloses the method of claim 15, wherein the wall has a wall opening (Fig. 2, the opening along 13) permitting access to the pocket opening (13 when opened) from an outwardly directed surface of the wall (Fig. 2, where the outwardly directed surface of the wall is the surface facing the environment of 14).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant’s disclosure. See similar hat structures listed in the PTO-892 form attached to this Office Action.
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/G.Q.H./Examiner, Art Unit 3732
/KHOA D HUYNH/Supervisory Patent Examiner, Art Unit 3732