DETAILED ACTION
This office action is in response to the amendment filed November 20, 2025 in which claims 1-12 and 18-19 are presented for examination, claims 13-14 and 16-17 are withdrawn, and claim 15 is canceled.
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
Applicant’s First Argument: Objection to the drawings should be withdrawn at least in view of current amendments to the specification.
Examiner’s Response: Agreed. The objection is withdrawn.
Applicant’s Second Argument: Objection to claims 1 and 4 for informalities should be withdrawn at least in view of current amendments to the claims.
Examiner’s Response: Agreed. The objection is withdrawn.
Applicant’s Third Argument: Rejection of claims 1-12 under 35 USC 112(b) should be withdrawn at least in view of current amendments to the claims.
Examiner’s Response: Agreed. The rejection is withdrawn.
Applicant’s Fourth Argument: Rejection of claims 1-12 under 35 USC 103 over USPN 4,523,337 Leibowitz in view of US Pub No. 2020/0000157 Maier should be withdrawn at least because the elastic band of Leibowitz is not “embedded” in the structure of the trousers as recited in currently amended claim 1 and the lower edge of the elastic band of Leibowitz is not “fixed” to the trousers as recited by claim 1.
Examiner’s Response: Examiner respectfully disagrees. As an initial matter, it is respectfully asserted that the amendment to claim 1 reciting that the elastic band is “embedded” in the structure of the trousers constitutes new matter (see rejection under 35 USC 112(a), below). Nevertheless, it is respectfully maintained that elastic band (30) of Leibowitz is considered to be “embedded” in the structure of trousers (10) in that it is interposed between the material of the body of trousers (10) and belt loops (28) of trousers (10). As both the material of the body of trousers (10) and belt loops (28) form portions of the “structure” of trousers (10), elastic band (30) is considered to be “embedded” in that structure when it is threaded through belt loops (28) and disposed between the material of the body of trousers (10) and belt loops (28). As to the limitation that the lower edge of the elastic band is “fixed” to the trousers, it is respectfully noted that the term “fixed” is very broad and does not require an interpretation wherein, for example, the bottom edge of the elastic band is directly affixed to the trousers by stitching. When elastic band (30) is threaded through belt loops (28) of trousers (10) it is considered to be “fixed” to trousers (10) at least because it is held in direct contact with trousers (10). Nevertheless, again due to the breadth of the term “fixed,” portions of the upper edge of elastic band (30) can be considered to be “not fixed” to the trousers at least because the upper edge of elastic band (30) is not directly stitched via sewing to trousers (10) and is capable of sliding movement within belt loops (28). The rejection is maintained.
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: The specification does not provide proper antecedent basis for the limitation that the elastic band is “embedded” in the structure of the trousers as recited by currently amended claim 1. No new matter should be entered.
The disclosure is objected to because of the following informalities: The specification alternately recites that the elastic band has a V-shape (see at least pg. 3, lines 16-17; pg. 4, lines 10-14; pg. 6, line 11; pg. 10, lines 14-20) and an inverted V-shape (see at least pg. 7, lines 1-2; pg. 8, lines 8-10). However, upon information and belief there is only a single disclosed embodiment. As such, the elastic band either always includes a V-shape or an inverted V-shape and the specification should be amended to describe only one or the other.
Appropriate correction is required.
Claim Objections
Claim 12 is objected to because of the following informalities: Line 2 recites the limitation “a first textile material which is preferably a spandex fibre.” This limitation is objected to because the term “preferably” makes it impossible to determine whether the limitation requires the first textile material to be a spandex fibre.
Claim 12 is objected to because of the following informalities: Lines 3-4 recite the limitation “a second textile material which differs from the first material and is preferably a web material.” This limitation is objected to because the term “preferably” makes it impossible to determine whether the limitation requires the second textile material be a web material.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-12 and 18-19 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites that the elastic band is “embedded” in the structure of said trousers (lines 2-3). This limitation constitutes new matter because it was not present in the disclosure as originally filed. It is respectfully asserted that nothing in the disclosure as originally filed (including the drawings and the specification) supports the term “embedded” in this context.
Dependent claims are rejected at least for depending from a rejected claim.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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.
Claims 1-12 and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over USPN 4,523,337 Leibowitz in view of US Pub No. 2020/0000157 Maier.
To claim 1, Leibowitz discloses cycling (intended use) trousers (10) without braces (see Figures 1-3A; col. 1, line 63 – col. 6, line 5), the trousers comprising an elastic band (30) (col. 5, lines 54-57) which is embedded into the structure of said trousers (see Figures 1-2; col. 5, lines 31-34; elastic band 30 is considered to be “embedded” in the structure of trousers 10 in that it is interposed between the material of the body of trousers 10 and belt loops 28 of trousers 10; as both the material of the body of trousers 10 and belt loops 28 form portions of the “structure” of trousers 10, elastic band 30 is considered to be “embedded” in that structure when it is threaded through belt loops 28 and disposed between the material of the body of trousers 10 and belt loops 28) and is arranged to form a continuous belt completely around a circumference of the trousers (see Figures 1-3A; col. 5, line 35 – col. 6, line 5), said elastic band being located below an upper waistline edge of the trousers (annotated Figures 1-3A, see below; col. 5, line 35 – col. 6, line 5), said elastic band being adapted to be tensioned when the trousers are worn (see Figures 1-3A; col. 5, line 35 – col. 6, line 5), said elastic band being applied to an outer side of the trousers so that the elastic band does not directly contact the body of a user wearing the trousers (see Figures 1-3A; col. 5, line 35 – col. 6, line 5), said elastic band being shaped like a V having a vertex directed downward and towards the inguinal area when the trousers are worn (annotated Figures 1-3A; col. 5, line 35 – col. 6, line 5), said trousers further comprising a portion of elasticized fabric (15) extending around a waistline of the trousers and above said elastic band (see Figures 1-3A; col. 4, line 1 – col. 6, line 5), the elastic band having an upper edge and a lower edge (annotated Figures 1-3A), the lower edge being fixed to the trousers, wherein at least a portion of the upper edge is not fixed to the trousers (see Figures 1-3A; col. 4, line 1 – col. 6, line 5; it is respectfully noted that the term “fixed” is very broad and does not require an interpretation wherein, for example, the bottom edge of the elastic band is directly fastened to the trousers by stitching; when elastic band 30 is threaded through belt loops 28 of trousers 10 it is considered to be “fixed” to trousers 10 at least because it is held in direct contact with trousers 10; nevertheless, again due to the breadth of the term “fixed,” portions of the upper edge of elastic band 30 can be considered to be “not fixed” to the trousers at least because the upper edge of elastic band 30 is not directly stitched via sewing to trousers 10 and is capable of sliding movement within belt loops 28).
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To the limitation that the trousers are “cycling” trousers, it is respectfully noted that a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In the instant case, trousers 10 of Leibowitz would be capable of being worn by a user while cycling.
Leibowitz does not expressly disclose cycling trousers having a padded over-saddle area.
However, Maier teaches cycling trousers (11) (see Figures 1-3; paras. 0046-0064) having a padded over-saddle area (via seat pad 1) (see Figures 1-3; paras. 0046-0050).
Leibowitz and Maier teach analogous inventions in the field of trousers. 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 trousers 10 of Leibowitz to include a padded over-saddle area as taught by Maier because Maier teaches that this configuration is known in the art and beneficial for dampening contact between the ischiatic region of a user and the saddle of a bicycle (para. 0002).
To claim 2, the modified invention of Leibowitz (i.e., Leibowitz in view of Maier, as detailed above) teaches trousers as recited in claim 1, above.
The modified invention of Leibowitz does not expressly disclose trousers wherein said elastic band has a width of 1 cm to 6 cm.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the trousers such that the elastic band has a width of 1 cm to 6 cm depending on the particular sizing of the trousers as a matter of routine optimization. It is further respectfully noted that it has been held that where the general conditions of a claim are disclosed in the prior art, discovering optimum or workable ranges involves only routine skill in the art (see MPEP 2144.05).
To claim 3, the modified invention of Leibowitz (i.e., Leibowitz in view of Maier, as detailed above) further teaches trousers comprising elastane material (col. 2, lines 53-60; col. 5, lines 54-57).
The modified invention of Leibowitz does not expressly disclose trousers wherein said elastic band is made of a material containing at least 10% by weight of elastane.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the trousers of the modified invention of Leibowitz such that the elastic band is made of a material containing at least 10% by weight of elastane as a matter of routine optimization. It is further respectfully noted that 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).
To claim 4, the modified invention of Leibowitz (i.e., Leibowitz in view of Maier, as detailed above) further teaches trousers wherein said elastic band extends substantially in a hip area of the trousers (see Figures 1-2 and col. 4, line 1 – col. 5, line 34 of Leibowitz).
To claim 5, the modified invention of Leibowitz (i.e., Leibowitz in view of Maier, as detailed above) further teaches trousers wherein said elastic band has a rear area extending substantially at a constant height with respect to the upper waistline edge and a hip area of the trousers (see Figure 2 and col. 4, line 1 – col. 5, line 34 of Leibowitz).
To claim 6, the modified invention of Leibowitz (i.e., Leibowitz in view of Maier, as detailed above) further teaches trousers wherein said elastic band is made of a web material (col. 2, lines 53-60; col. 5, lines 54-57; inasmuch as currently claimed, woven and knit materials as both webs of interconnected yarns).
To claim 7, the modified invention of Leibowitz (i.e., Leibowitz in view of Maier, as detailed above) further teaches trousers said elastic band having two ends fixed to each other and fixed to the trousers at a front median seam of the trousers itself (see Figure 1 and col. 4, line 1 – col. 5, line 34 of Leibowitz; elastic band 30 of Leibowitz has two ends fixed to each other at the vertex which aligns with a front medial seam of trousers 10 at the fly of trouser 10).
To claim 8, the modified invention of Leibowitz (i.e., Leibowitz in view of Maier, as detailed above) further teaches trousers wherein said portion of elasticized fabric is made of a mesh fabric (col. 2, lines 53-60; inasmuch as currently claimed, woven and knit materials comprise yarns interconnected in mesh patterns).
To claim 9, the modified invention of Leibowitz (i.e., Leibowitz in view of Maier, as detailed above) further teaches trousers wherein said portion of elasticized fabric comprises elastane (col. 2, lines 53-60).
The modified invention of Leibowitz does not expressly disclose an elastane content between 15% and 20% by weight.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the portion of elasticized fabric of the modified invention of Leibowitz to have an elastane content between 15% and 20% by weight as a matter of routine optimization. It is further respectfully noted that it has been held that where the general conditions of a claim are disclosed in the prior art, discovering optimum or workable ranges involves only routine skill in the art (see MPEP 2144.05).
To claim 10, the modified invention of Leibowitz (i.e., Leibowitz in view of Maier, as detailed above) further teaches trousers wherein said portion of elasticized fabric has a higher elastane content than said elastic band (col. 2, lines 53-60; col. 5, lines 54-57). It is further respectfully noted that 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).
To claim 11, the modified invention of Leibowitz (i.e., Leibowitz in view of Maier, as detailed above) further teaches trousers comprising a seat pad (1 of Maier) fixed internally in the over-saddle area (see Figures 1-3 and paras. 0046-0050 of Maier).
To claim 12, the modified invention of Leibowitz (i.e., Leibowitz in view of Maier, as detailed above) further teaches trousers having a waist region wherein the trousers are made of a first textile material which is preferably a spandex fibre (col. 2, lines 53-60); a waist band made of a second textile material which differs from the first material and is preferably a web material (col. 5, lines 54-57), said waist band being attached to the trousers (see Figures 1-3A and col. 5, line 35 – col. 6, line 5 of Leibowitz); said elastic band being arranged over said waist band, said elastic band having said lower edge attached to the trousers and said upper edge of the elastic band being being free upper edge (see Figures 1-3A and col. 5, line 35 – col. 6, line 5 of Leibowitz), so that the elastic band rests over the waist band when the elastic band is tensioned (see Figures 1-3A and col. 5, line 35 – col. 6, line 5 of Leibowitz).
To claim 18, the modified invention of Leibowitz (i.e., Leibowitz in view of Maier, as detailed above) further teaches trousers comprising elastane material (col. 2, lines 53-60; col. 5, lines 54-57).
The modified invention of Leibowitz does not expressly disclose trousers wherein said elastic band is made of a material containing 10% to 15% by weight of elastane.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the trousers of the modified invention of Leibowitz such that the elastic band is made of a material containing 10% to 15% by weight of elastane as a matter of routine optimization. It is further respectfully noted that 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).
To claim 19, the modified invention of Leibowitz (i.e., Leibowitz in view of Maier, as detailed above) further teaches trousers comprising elastane material (col. 2, lines 53-60; col. 5, lines 54-57).
The modified invention of Leibowitz does not expressly disclose trousers wherein said elastic band is made of a material containing 12% by weight of elastane.
However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the trousers of the modified invention of Leibowitz such that the elastic band is made of a material containing 12% by weight of elastane as a matter of routine optimization. It is further respectfully noted that 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).
ALTERNATE REJECTION: Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over USPN 3,174,482 Parrott in view of US Pub No. 2021/0259326 Shaughnessy et al.
To claim 1, Parrott discloses cycling (intended use) trousers without braces (see Figures 1-4; col. 1, line 44 – col. 2, line 42), the trousers comprising an elastic band (10) which is embedded into the structure of said trousers (see Figures 1-2; col. 1, line 53 – col. 2, line 25; via snap fasteners) and is arranged to form a continuous belt completely around a circumference of the trousers (see Figures 1-2; col. 1, line 53 – col. 2, line 25), said elastic band being located below an upper waistline edge of the trousers (annotated Figures 1-4, see below; col. 1, line 53 – col. 2, line 25), said elastic band being adapted to be tensioned when the trousers are worn (see Figures 1-2; col. 1, line 53 – col. 2, line 42; via elastic material construction), said elastic band being applied to an outer side of the trousers so that the elastic band does not directly contact the body of a user wearing the trousers (see Figures 1-4; col. 1, line 53 – col. 2, line 25), said elastic band being shaped like a V having a vertex directed downward and towards the inguinal area when the trousers are worn (annotated Figures 1-4; col. 1, line 53 – col. 2, line 25), said trousers further comprising a portion of elasticized fabric (12) extending around a waistline of the trousers and above said elastic band (see Figures 1-2; col. 1, line 53 – col. 2, line 25), the elastic band having an upper edge and a lower edge (annotated Figures 1-4; col. 1, line 53 – col. 2, line 25), the lower edge being fixed to the trousers, wherein at least a portion of the upper edge is not fixed to the trousers (annotated Figures 1-4; col. 1, line 53 – col. 2, line 25; inasmuch as currently claimed, the lower edge of elastic band is fixed to the trousers via the snap fasteners and at least portions of the upper edge disposed between the snap fasteners are not fixed to the trousers).
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To the limitation that the trousers are “cycling” trousers, it is respectfully noted that a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. In the instant case, the trousers of Parrott would be capable of being worn by a user while cycling.
Parrott does not expressly disclose cycling trousers having a padded over-saddle area.
However, Shaughnessy teaches cycling (para. 0097) trousers (10) (see Figures 1-10; paras. 0053-0097) having a padded over-saddle area (40) (see especially Figures 6-7 and 9; paras. 0084-0095).
Parrott and Shaughnessy teach analogous inventions in the field of trousers. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the trousers of Parrott to include a padded over-saddle area as taught by Shaughnessy because Shaughnessy teaches that this configuration is known in the art and provides cushioning and support to the wearer's crotch and buttocks during physical activity, especially cycling (para. 0085).
This ALTERNATE REJECTION has been limited to independent claim 1 in the interest of brevity. It is respectfully noted however that Parrott in view of Shaughnessy may be relied upon to reject additional claim(s) in future office action(s).
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GRIFFIN HALL whose telephone number is (571)270-0546. The examiner can normally be reached Monday - Friday, 9:00 am - 5:00 pm.
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/F Griffin Hall/Primary Examiner, Art Unit 3732