DETAILED ACTION
Notice of Pre-AIA or AIA Status
The amendments filed with the written response received on 08/19/2025 have been considered and an action on the merits follows. As directed by the amendment, claims 1-6 and 14-15 have been amended; claim 16 is canceled. Accordingly, claims 1-15 and 17-20 are pending in this application.
Because of the applicant's amendment, the following in the office action filed 05/19/2025, are hereby withdrawn: the prior drawing objections, the prior claim objections, and the prior rejection of claims 35 USC § 112(b).
Response to Arguments
Applicant' s arguments, filed 08/19/2025, with respect to the rejection of claims 1-15 and 17-20 under 35 USC § 102 and 35 USC § 103 have been considered but are moot because the arguments do not apply to the current grounds of rejection. Applicant's arguments, which appear to be drawn only to the newly amended limitations and previously presented rejections, have been considered but are moot in view of the updated grounds of rejection.
Drawings
The drawings were received on 08/19/2025. These drawings are acceptable and are hereby entered.
Claim Objections
Claims 1-15, and 18 are objected to because of the following informalities:
Claims 1, 2, 5, 6, and 13 recite “the front portion.” It is recommended the claims are rephrased to recite “the elongate front portion” since “an elongate front portion” was previously recited.
Claims 1, 14, and 15 recite “back shoulder seam.” It is recommended the claims are rephrased to recite “the back shoulder seam” since “a back shoulder seam” was previously recited for each claim.
Claims 1-14 recite “the garment.” For claims 1-13, it is suggested each claim is rephrased to recite “the salon cape garment” since “a salon cape garment” was previously recited, and for claim 14 it is suggested the claim is rephrased to recite “the salon cape” since “a salon cape” was previously recited.
Claim 5 recites “the exterior seam of the front portion.” It is suggested the claim is rephrased to recite “an exterior seam of the elongate front portion” for establishing antecedent basis for the term.
Claim 5 also recites “the front portion exterior seam” and “the exterior seam of the back portion.” It is suggested each term is rephrased to recite “the exterior seam of the front portion” and “exterior seam of the back portion.”
Claim 14 recites “the front portion.” It is suggested the claim is rephrased to recite “the rectangular front portion.”
Claim 14 recites “the back portion.” It is suggested the claim is rephrased to recite “the semicircular back portion.”
Claims 14-15 and 17-20 recite “the cape.” It is suggested the claim is rephrased to recite “the salon cape.”
Claim 15 recites “a portion the rectangular front portion.” It is suggested the claim is rephrased to recite “a portion of the rectangular front portion.”
Claim 15 recites “a shoulder.” It is suggested the claim is rephrased to recite “the shoulder.”
Claim 18 recites “the neck opening.” It is suggested the claim is rephrased to recite “the circular neck opening.”
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 2 and 11 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.
The term “substantially” in claim 2 is a relative term which renders the claim indefinite. The term “substantially” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear to what degree and shape of a front portion is substantially rectangular or fails to be considered substantially rectangular.
Claim 11 recites “a front seam of the shoulder opening” and “a back seam of the shoulder opening.” However, claim 1 already recites “a front shoulder seam and back shoulder seam.” It is unclear if applicant is intending to introduce new front and back shoulder seams or is referring back to the previously recited front and back shoulder seams. Appropriate clarification is required.
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 1-15 and 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over US 2021/0106123 A1 to Di Sylvester.
For claim 1, Di Sylvester discloses a salon cape garment (hair dressing cape, abstract) comprising: an elongate front portion, a back portion (see annotated fig. 5 below),
PNG
media_image1.png
596
462
media_image1.png
Greyscale
a neck opening defined at the intersection of the front portion and the back portion (see annotated fig. 5 above), a shoulder opening cut on a bias from the neck opening to an exterior seam of the back portion (See annotated fig. 5 above) and defining a front shoulder seam (230) and back shoulder seam (240); and one or more fasteners disposed around the neck opening (300, see fig. 2), wherein the garment is configured such that the front shoulder seam and back shoulder seam are configured to sit at a shoulder with the front portion flat above the back portion with the front portion flat above the back portion when contour draped such that the back portion is centrally seamless and configured to lay flat in use (see para 0025 wherein the cape is capable of performing the intended use).
It is further noted that claim limitations including, but not limited to: “wherein the garment is configured such that the front shoulder seam and back shoulder seam are configured to sit at a shoulder with the front portion flat above the back portion with the front portion flat above the back portion when contour draped such that the back portion is centrally seamless and configured to lay flat in use” have been fully considered and are being interpreted as statements of intended use. A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim (See MPEP 2114(II)). Examiner notes italicized limitations in the prior art rejection are functional and do not positively recite a structural limitation, but instead require an ability to so perform. Since Di Sylvester discloses a hair dress cape having the same claimed structure, there would be a reasonable expectation for the prior art to perform the claimed intended use of wherein the front portion is flat about the back portion with the front portion flat above the back portion when contour draped such that the back portion is centrally seamless and configured to lay flat in use. The burden then shifts to applicant to establish that the prior art does not possess the characteristic relied on (See MPEP2114(I)).
The above embodiment of Di Sylvester does not specifically disclose the back portion has a semicircular shape.
However, Di Sylvester does teach the corners 160, 170, 180, 190 may be right angles, rounded, or any other shape (para 0021). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the back corners of Di Sylvester would be modified into a round and semi-circular shape as Di Sylvester expressly states the corners, and in turn the total shape of the back of the cape, can be rounded or given any desired configuration. Such a modification would constitute nothing more than a predictable variation in the overall geometry of the cape and the minor change in shape would yield the same predictable benefits and similar functional advantages as taught by Di Sylvester (See para 0025) (See MPEP 2144.04(IV)(B)).
For claim 2, the modified Di Sylvester teaches the garment of claim 1, wherein the front portion is substantially rectangular (see annotated fig. 5 above wherein the front portion is rectangular).
For claim 3, the modified Di Sylvester teaches the garment of claim 1, wherein a radius of the back portion from the neck opening to the exterior seam of the back portion is 21” (para 0020, 18 inches to 24 inches based on half the width W and after the modification to a semicircular configuration above). Even further, modifying the lengths of given sections of the garment to a specific inch amount to suit the intended user or application is known and well within the skill of a person having ordinary skill in the art. It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the given section of Di Sylvester cape with the specific length as a routine matter of design choice and routine optimization since changes in size are generally recognized as within the level of ordinary skill in the art (see MPEP 2144.05). In this case, there are relevant facts for supporting a modification to the claimed garment section size. Specifically, these facts include: increasing coverage for specific wearers; preventing liquid or debris from contacting the wearer’s clothes; and protect the customer’s clothing from hair (paras 0003-0004 of Di Sylvester).
For claim 4, the modified Di Sylvester teaches the garment of claim 3, wherein a length of the garment is about 68” (48 inches to 72 inches, para 0020). Even further, modifying the lengths of given sections of the garment to a specific inch amount to suit the intended user or application is known and well within the skill of a person having ordinary skill in the art. It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the given section of Di Sylvester cape with the specific length as a routine matter of design choice and routine optimization since changes in size are generally recognized as within the level of ordinary skill in the art (see MPEP 2144.05). In this case, there are relevant facts for supporting a modification to the claimed garment section size. Specifically, these facts include: increasing coverage for specific wearers; preventing liquid or debris from contacting the wearer’s clothes; and protect the customer’s clothing from hair (paras 0003-0004 of Di Sylvester).
For claim 5, the modified Di Sylvester teaches the garment of claim 4, but does not specifically disclose wherein the shoulder opening is 43” from the exterior seam of the front portion at the neck opening and is 50” from the front portion exterior seam at the exterior seam of the back portion. However, modifying the lengths of given sections of the garment to a specific inch amount to suit the intended user or application is known and well within the skill of a person having ordinary skill in the art. It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the given section of Di Sylvester cape with the specific length as a routine matter of design choice and routine optimization since changes in size are generally recognized as within the level of ordinary skill in the art (see MPEP 2144.05). In this case, there are relevant facts for supporting a modification to the claimed garment section size. Specifically, these facts include: increasing coverage for specific wearers; preventing liquid or debris from contacting the wearer’s clothes; and protect the customer’s clothing from hair (paras 0003-0004 of Di Sylvester).
For claim 6, the modified Di Sylvester teaches the garment of claim 5, but does not specifically disclose wherein a length from a front of the neck opening to the exterior seam of the front portion is 39.5.” However, modifying the lengths of given sections of the garment to a specific inch amount to suit the intended user or application is known and well within the skill of a person having ordinary skill in the art. It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the given section of Di Sylvester cape with the specific length as a routine matter of design choice and routine optimization since changes in size are generally recognized as within the level of ordinary skill in the art (see MPEP 2144.05). In this case, there are relevant facts for supporting a modification to the claimed garment section size. Specifically, these facts include: increasing coverage for specific wearers; preventing liquid or debris from contacting the wearer’s clothes; and protect the customer’s clothing from hair (paras 0003-0004 of Di Sylvester).
For claim 7, the modified Di Sylvester teaches the garment of claim 1, wherein the one or more fasteners are one or more of snaps, buttons, hook and loop, and magnets (para 0024).
For claim 8, the modified Di Sylvester teaches the garment of claim 7, wherein the one or more fasteners are snaps (para 0024).
For claim 9, the modified Di Sylvester teaches the garment of claim 1, wherein the neck opening is adjustable when in use via the one or more fasteners (para 0024).
For claim 10, the modified Di Sylvester teaches the garment of claim 1, wherein the back portion does not include a seam (see annotated fig. 5 above wherein the back portion does not include a seam).
For claim 11, the modified Di Sylvester teaches the garment of claim 1, wherein the garment is seamless from a front seam of the shoulder opening to a back seam of the shoulder opening (See annotated fig. 5 above wherein the garment is seamless from a front seam of the shoulder opening to a back seam of the shoulder opening).
For claim 12, the modified Di Sylvester teaches the garment of claim 1, wherein the garment is comprised of coated nylon (nylon, para 0019) (Although not “coated,” per se, MPEP 2113 provides a patent is invalid if a product made by the process recited in a product-by-process claim is anticipated by or obvious from the prior art product, even if those prior art products are mode by different processes since patentability depends on the product itself. In this case a product coated with nylon is still a nylon product).
For claim 13, the modified Di Sylvester teaches the garment of claim 1, wherein a portion of the back portion is configured to lay below a portion of the front portion when the garment is in use, closing the shoulder opening (see discussion above for claim 1 regarding statements of intended use. As Di Sylvester teaches the hair dress cape having the same claimed structure, there would be a reasonable expectation for the prior art to perform the claimed intended use (See MPEP2114(II)); The burden then shifts to applicant to establish that the prior art does not possess the characteristic relied on (See MPEP2114(I)).
For claim 14, Di Sylvester discloses a salon cape (hair dressing cape, abstract) comprising: a rectangular front portion (see annotated fig. 5 below wherein the front portion is rectangular);
PNG
media_image1.png
596
462
media_image1.png
Greyscale
a back portion (see annotated fig. 5 above); a circular neck opening at the intersection of the rectangular front portion and the semicircular back portion (see annotated fig. 5 above); a plurality of fasteners (300, fig. 2) disposed around the circular neck opening configured to interface for securing the salon cape (300, para 0024); a shoulder opening defined by a front shoulder seam (230) and a back shoulder seam (240), the shoulder opening being defined along a bias from the circular neck opening to an exterior of the cape at the back portion (see annotated fig. 5 above); and an exterior seam running from the front shoulder seam to the back shoulder seam around the rectangular front portion and the semicircular back portion (stitching 105, fig. 5), wherein the garment is configured such that the front shoulder seam and back shoulder seam are configured to sit at a shoulder with the front portion flat above the back portion when contour draped such that the back portion is centrally seamless and configured to lay flat when in use (see para 0025 wherein the cape is capable of performing the intended use).
It is further noted that claim limitations including, but not limited to: “wherein the garment is configured such that the front shoulder seam and back shoulder seam are configured to sit at a shoulder with the front portion flat above the back portion when contour draped such that the back portion is centrally seamless and configured to lay flat when in use” have been fully considered and are being interpreted as statements of intended use. A claim containing a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus if the prior art apparatus teaches all the structural limitations of the claim (See MPEP 2114(II)). Examiner notes italicized limitations in the prior art rejection are functional and do not positively recite a structural limitation, but instead require an ability to so perform. Since Di Sylvester discloses a hair dress cape having the same claimed structure, there would be a reasonable expectation for the prior art to perform the claimed intended use of wherein the front portion is flat about the back portion with the front portion flat above the back portion when contour draped such that the back portion is centrally seamless and configured to lay flat in use. The burden then shifts to applicant to establish that the prior art does not possess the characteristic relied on (See MPEP2114(I)).
The above embodiment of Di Sylvester does not specifically disclose the back portion has a semicircular shape.
However, Di Sylvester does teach the corners 160, 170, 180, 190 may be right angles, rounded, or any other shape (para 0021). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the back corners of Di Sylvester would be modified into a round and semi-circular shape as Di Sylvester expressly states the corners, and in turn the total shape of the back of the cape, can be rounded or given any desired configuration. Such a modification would constitute nothing more than a predictable variation in the overall geometry of the cape and the minor change in shape would yield the same predictable benefits and similar functional advantages as taught by Di Sylvester (See para 0025) (See MPEP 2144.04(IV)(B)).
For claim 15, the modified Di Sylvester teaches the cape of claim 14, wherein a portion of the semicircular back portion is configured to lay below a portion the rectangular front portion when in use such that the front shoulder seam and back shoulder seam overlap and are configured to close the shoulder opening at a shoulder of a client when in use (see discussion above for claim 14 regarding statements of intended use. As Di Sylvester teaches the hair dress cape having the same claimed structure, there would be a reasonable expectation for the prior art to perform the claimed intended use (See MPEP2114(II)); The burden then shifts to applicant to establish that the prior art does not possess the characteristic relied on (See MPEP2114(I)).
For claim 17, the modified Di Sylvester teaches the cape of claim 14, wherein the plurality of fasteners are snaps (paras 0024-0025).
For claim 18, the modified Di Sylvester teaches the cape of claim 14, wherein a size of the neck opening is adjustable via the plurality of fasteners when the cape is in use (paras 0024-0025).
For claim 19, the modified Di Sylvester teaches the cape of claim 14, wherein the cape is seamless from the front shoulder seam to the back shoulder seam (See annotated fig. 5 above wherein the garment is seamless from a front seam of the shoulder opening to a back seam of the shoulder opening).
For claim 20, the modified Di Sylvester teaches the cape of claim 14, wherein the semicircular back portion does not include a seam other than the back shoulder seam and the exterior seam (see annotated fig. 5 above wherein the back portion does not include a seam).
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 ERICK I LOPEZ whose telephone number is (571)272-3262. The examiner can normally be reached Monday - Friday: 9:00am - 5:30pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Khoa Huynh can be reached at (571) 272-4888. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ERICK I LOPEZ/Examiner, Art Unit 3732
/KHOA D HUYNH/Supervisory Patent Examiner, Art Unit 3732