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 .
Response to Amendment
Applicant's amendment filed on December 16, 2025 has been received. Claims 1-9, 11, 15, 17, 18, 22, 27, 30, 32, 34 are currently pending.
Terminal Disclaimer
The Non-Statutory Double Patenting Rejection set forth in the Non-Final Office Action mailed on September 23, 2025 is withdrawn in view of the Terminal Disclaimer filed on December 16, 2025, which has been approved.
Response to Arguments
In light of Applicant’s amendments to the claims, an updated rejection is provided below.
Furthermore, Applicant’s arguments filed on December 16, 2025 have been fully considered but are not deemed to be persuasive.
Applicant argues that Waitz fails to teach the limitation “wherein the bottom edge of the garment is substantially free of elastic or stiff bands” (see pages 8-10 of Applicant’s Remarks). Specifically, Applicant asserts that Waitz’s “entire ‘peripheral section 30’…is a conventional waistband comprising an elastic band 61” and “such a small degree of spacing between the bottom of the peripheral section and the bottom of the beast support panel 25 (e.g., 30mm or less) does not eliminate the elastic waistband function of the peripheral section.”
The Examiner respectfully disagrees. While Applicant is correct in that a bottom hem area of Waitz’s bra includes an elastic band (61, see Fig. 3), independent claims 1 and 34 specifically recite wherein the bottom edge itself is substantially free of elastic or stiff bands. Note that the word “edge,” by definition, is “a line where an object or area begins or ends” (see definition 2a of “edge” via Merriam-Webster.com). As such, the plain meaning of “bottom edge” refers to the bottom periphery, i.e., the bottommost extent, of the garment, and not a bottom hem or a general bottom portion. Since Waitz indeed teaches a small gap between the bottom edge and the elastic band, as conceded by Applicant, Waitz teaches the limitation inasmuch as claimed.
Applicant is reminded that, in accordance with MPEP 2111.01, during examination, the claims must be interpreted as broadly as their terms reasonably allow. Because Applicant has the opportunity to amend the claims during prosecution, giving a claim its broadest reasonable interpretation will reduce the possibility that the claim, once issued, will be interpreted more broadly than is justified. In re Yamamoto, 740 F.2d 1569, 1571 (Fed. Cir. 1984); In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989) ("During patent examination the pending claims must be interpreted as broadly as their terms reasonably allow."); In re Prater, 415 F.2d 1393, 1404-05, 162 USPQ 541, 550-51 (CCPA 1969).
Furthermore, regarding Applicant’s argument that Waitz’s entire bottom hem functions as an elastic band, the Examiner respectfully notes that the language of claims 1 and 34 is drawn to the structure of the bottom edge of the garment (e.g., claim 1 recites “wherein the bottom edge of the garment is substantially free of elastic or stiff bands), and not the function of the bottom hem of the garment. As such, Applicant’s argument regarding the function of the bottom hem is not relevant to the actual language used in the claims.
Applicant further argues that Bastug teaches “a conventional hem with either an elastic band or elastomeric film between two layers of fabric” and therefore fails to teach the limitation “wherein the bottom edge of the garment is substantially free of elastic or stiff bands” (see pages 11-12 of Applicant’s Remarks).
The Examiner respectfully disagrees. As discussed on pages 15 of the Non-Final Rejection, “Bastug discloses wherein bottom band 580 is formed from the material of the front panel 510 and rear panel 520a,b themselves, and held in place with an elastic adhesive, instead of including a separate elastic band or stiff band.” Respectfully, an elastic adhesive is not the same as an elastic band, and one of ordinary skill in the art would not recognize them as equivalent structures, as evidenced by Bastug’s extensive discussion of the specific benefits of using elastic adhesive (e.g., compactness, comfort, ease of movement, elimination of need for sewing or other attachments means, etc., see paragraphs 0041, 0049, and 0053 of Bastug).
See updated rejection(s) below.
Claim Objections
Claim 4 is objected to because of the following informalities: “wherein the upward and inward folded portion and fold crease defining the bottom edge of the garment does not compress the wearer's body” should read “wherein the upward and inward folded portion and fold crease defining the bottom edge of the garment [[does]] are configured to not compress the wearer's body” to enhance clarity.
Claim 15 is objected to because of the following informalities: “the second materials” (lines 2 and 4) should read “the second material[[s]].”
Appropriate correction is required.
Claim Rejections - 35 USC § 102
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 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, 4, 5, 7, 8, and 34 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Waitz (US PG Pub 2003/0096557).
Regarding claim 1, Waitz discloses an upper body garment (10) having an inner surface (configured to face the wearer) and an outer surface (configured to face away from the wearer) and comprising:
a front panel (20) comprising a breast supporting region (22, see Figs. 2 and paragraph 0016);
a back panel (50) configured to cover at least a portion of a wearer's back and wherein the back panel is coupled to the front panel (see at least Figs. 1-2 and paragraph 0015);
wherein a portion of each of the front and back panels circumferentially folds upward and inward onto the inner surface of the upper body garment, thereby forming an upward and inward folded portion (56, see at least Fig. 3 and paragraph 0018) comprising a fold crease defining a bottom edge (46) of the garment (see at least Fig. 3 and paragraph 0018), wherein the bottom edge of the garment is substantially free of elastic or stiff bands (see Fig. 3 and paragraph 0018, garment 10 includes an elastic band 61 that is notably spaced from bottom edge 46, such that bottom edge 46 is substantially free of elastic or stiff bands);
wherein each of the front panel and the back panel are configured to extend up to at least a lowest edge of the wearer's thorax (see at least Figs. 1-2, note that the actual extent of bra 10 on the wearer’s body depends on the intended wearer’s size and body proportions); and
wherein the upper body garment is configured to substantially limit movement of the wearer's breast tissue during athletic activity (see paragraphs 0002, 0006-0010, and 0024 and note below).
It is noted that the recitation of “wherein the upper body garment is configured to substantially limit movement of the wearer's breast tissue during athletic activity” is a functional limitation. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the limitation is not patentable and is fully met by the reference. See In re Swinehart, 169 USPQ 226. See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art. Waitz discloses the structure as claimed, and further discloses wherein the bra is configured to be used for athletic activity (see at least paragraphs 0002 and 0008), and is configured to support the breasts of the wearer and keep the breasts more “centered” in the brassiere during use (see paragraphs 0008 and paragraph 0024), and therefore would have a reasonable expectation of performing such function. See MPEP 2173.05(g). The Examiner further notes that the limitation “configured to substantially limit movement of the wearer’s breast tissue” is extremely broad, and does not require the bra to inhibit or prevent movement of the breast tissue but merely to limit movement, i.e., to set limits to the amount of movement the bra allows.
Regarding claim 4, Waitz’s upward and inward folded portion (56) and fold crease defining the bottom edge (46) of the garment are capable of being used in a manner that does not compress the wearer's body, creating and maintaining a smooth profile of the garment, depending on the size and proportions of the particular wearer (e.g., a looser fit on a smaller body or smaller chest would naturally reduce or eliminate compression).
It is noted that the recitation of “wherein the upward and inward folded portion and fold crease defining the bottom edge of the garment does not compress the wearer's body, creating and maintaining a smooth profile of the garment” is a functional limitation. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the limitation is not patentable and is fully met by the reference. See In re Swinehart, 169 USPQ 226. See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art. Waitz discloses the structure as claimed, and therefore would have a reasonable expectation of performing such function. See MPEP 2173.05(g).
Regarding claim 5, Waitz further discloses an elastic band (61) circumferentially positioned on the inner surface of the garment at a position superior to the bottom edge (46) of the garment (see Fig. 3 and paragraph 0018).
Regarding claim 7, Waitz further discloses wherein the elastic band comprises a first elastic band (front portion of elastic band 61) positioned on a front inner surface of the garment (see at least Fig. 3 and paragraph 0018), and a second elastic band (rear portion of elastic band 61) positioned on a back inner surface of the garment (see Figs. 1-3 and paragraph 0018, note that Waitz discloses wherein elastic band 61 is a “continuous elastic band” and Figs. 1-2 show wherein the hem of the elastic band extends continuously below front panel 20 and back panel 50), wherein the first elastic band and the second elastic band are coupled together at at least lateral edges of the front and back panels (see Figs. 1-3, paragraph 0018, and note above, the first and second elastic bands are necessarily coupled together form the disclosed continuous elastic band; the Examiner notes that claim 7 does not require a specific coupling method such as stitching, and the term “coupled together” is broad enough to encompass integral constructions).
Regarding claim 8, Waitz further discloses wherein an edge of the upward and inward folded portion (56) is affixed to the elastic band (via stitching 40, see at least Fig. 3 and paragraph 0018).
Regarding claim 34, Waitz discloses a method of making an upper body garment (10; see Figs. 1-3 and paragraphs 0014-0024) having an inner surface (configured to face the wearer) and an outer surface (configured to face away from the wearer), the method comprising:
providing a front panel (20);
providing a back panel (50);
coupling the front panel with the back panel via shoulder straps (60, see at least Figs. 1-2 and paragraph 0015);
folding a portion of each of the front and back panels circumferentially upward and inward onto the inner surface of the upper body garment, thereby forming an upward and inward folded portion (56, see at least Fig. 3 and paragraph 0018) comprising a fold crease defining a bottom edge (46) of the garment (see at least Fig. 3 and paragraph 0018), wherein the bottom edge of the garment is substantially free of elastic or stiff bands (see Fig. 3 and paragraph 0018, garment 10 includes an elastic band 61 that is notably spaced from bottom edge 46, such that bottom edge 46 is substantially free of elastic or stiff bands); and
circumferentially positioning an elastic band (61) on the inner surface of the garment at a position superior to the bottom edge (46) of the garment (see at least Fig. 3 and paragraph 0018, elastic band 61 is spaced upwardly from bottom edge 46, so as to be positioned superior to bottom edge 46).
Claims 1-4, 11, 17, 18, 22, 27, 30, and 32 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bastug (US PG Pub 2019/0174841).
Regarding claim 1, Bastug discloses an upper body garment (500, see Figs. 5-8 and paragraphs 0045-0056) having an inner surface (configured to face the wearer) and an outer surface (configured to face away from the wearer) and comprising:
a front panel (510) comprising a breast supporting region (portions of front panel 510 generally configured to cover the wearer’s breasts, including cups 700);
a back panel (collective back panel formed by 520a and 520b; note that Bastug discloses in paragraph 0045 wherein while a two-part back configuration is depicted in the Figures, bra 500 may also be formed with a continuous back panel) configured to cover at least a portion of a wearer's back and wherein the back panel is coupled to the front panel (see Figs. 5-8 and paragraphs 0045-0046);
wherein a portion of each of the front and back panels circumferentially folds upward and inward onto the inner surface of the upper body garment, thereby forming an upward and inward folded portion (inner folded portion of bottom band 580, see paragraph 0053) comprising a fold crease (where the fabric is folded inwardly) defining a bottom edge of the garment (see paragraph 0053), wherein the bottom edge of the garment is substantially free of elastic or stiff bands (see paragraphs 0049 and 0053; Bastug discloses wherein bottom band 580 is formed from the material of the front panel 510 and rear panel 520a,b themselves, and held in place with an elastic adhesive, instead of including a separate elastic band or stiff band);
wherein each of the front panel and the back panel are configured to extend up to at least a lowest edge of the wearer's thorax (see Figs. 5-8, note that the actual extent of bra 500 on the wearer’s body depends on the intended wearer’s size and body proportions); and
wherein the upper body garment is configured to substantially limit movement of the wearer's breast tissue during athletic activity (see paragraphs 0006, 0045, and 0055 and note below).
It is noted that the recitation of “wherein the upper body garment is configured to substantially limit movement of the wearer's breast tissue during athletic activity” is a functional limitation. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the limitation is not patentable and is fully met by the reference. See In re Swinehart, 169 USPQ 226. See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art. Bastug discloses the structure as claimed, and further discloses wherein the bra may be used for athletic activity (see paragraph 0006) and is configured to support the breasts of the wearer (see paragraph 0045 and 0055) and therefore would have a reasonable expectation of performing such function. See MPEP 2173.05(g). The Examiner further notes that the limitation “configured to substantially limit movement of the wearer’s breast tissue” is extremely broad, and does not require the bra to inhibit or prevent movement of the breast tissue but merely to limit movement, i.e., to set limits to the amount of movement the bra allows.
Regarding claim 2, Bastug further discloses wherein the front panel (510) comprises a front inner layer and a front outer layer, and the back panel (520a, 520b) comprises a back inner layer and a back outer layer (see paragraph 0046, each of the front and back panels comprise a two-ply fabric having a respective inner layer and a respective outer layer);
wherein the front outer layer and the back outer layer comprise a first front material and a first back material, respectively (materials forming the front and back outer layers, respectively), wherein the first back material are the same or different (see paragraphs 0044-0046 and 0059); and
wherein the front inner layer and the back inner layer each comprise one or more materials that are the same or different from the first front material and/or the first back material (see paragraphs 0044-0046 and 0059).
Regarding claim 3, Bastug further discloses wherein the upward and inward folded portion (inner folded portion of bottom band 580, see paragraph 0053) defines at least a portion of the front and back inner layers of the garment such that at least a portion of the front and back inner layers of the garment comprises the first front material and the first back material, respectively (see paragraph 0053; Bastug discloses wherein a portion of the outer layers of front panel 510 and rear panel 520a, 520b is folded inwardly so as to be attached to the inner surface and form a portion of the inner surface and inner layer of the bra).
Regarding claim 4, Bastug’s upward and inward folded portion and fold crease defining the bottom edge of the garment are capable of being used in a manner that does not compress the wearer's body, creating and maintaining a smooth profile of the garment, depending on the size and proportions of the particular wearer (e.g., a looser fit on a smaller body or smaller chest would naturally reduce or eliminate compression).
It is noted that the recitation of “wherein the upward and inward folded portion and fold crease defining the bottom edge of the garment does not compress the wearer's body, creating and maintaining a smooth profile of the garment” is a functional limitation. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the limitation is not patentable and is fully met by the reference. See In re Swinehart, 169 USPQ 226. See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art. Bastug discloses the structure as claimed, and therefore would have a reasonable expectation of performing such function. See MPEP 2173.05(g).
Regarding claim 11, Bastug further discloses wherein the front panel (510) comprises a first front material and the back panel (520a,b) comprises a first back material (see paragraphs 0044-0046 and 0059);
wherein at least a portion of the breast supporting region of the front panel comprises a second material (see annotated Fig. 7) that is different from the first front material or the first back material (see at least paragraphs 0044-0046 and 0055, at least cup portions 700 of the second materials are formed from a foam material, that is different from the fabric material of the front and back panels); and
wherein the first front and/or back materials and the second material are affixed to each other at least along an upper edge (540) of the garment (see Figs. 5-8 and paragraphs 0045-0047).
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Regarding claim 17, Bastug further discloses wherein the front panel (510) comprises a front inner layer and a front outer layer, and the back panel (520a,b) comprises a back inner layer and a back outer layer (see paragraph 0046, each of the front and back panels comprise a two-ply fabric having a respective inner layer and a respective outer layer);
wherein the front inner layer further comprises a third material (see annotated Fig. 7); and
wherein the third material is the same or different from the first front material, the first back material, and/or the second material (see paragraphs 0044-0046, 0055, and 0059).
Regarding claim 18, Bastug further discloses wherein the third material is disposed between the second material and an elastic band that is circumferentially positioned on the inner surface of the garment at a position superior to the bottom edge of the garment and/or between each lateral edge of the breast supporting region and each lateral edge of the front panel (see annotated Fig. 7, the third material partially surrounds the second material in a lateral direction, so as to be disposed between each lateral edge of the breast supporting region and each lateral edge of the front panel 510).
Regarding claim 22, Bastug further discloses wherein the back outer layer (outer layer of back panel 520a,b) is formed of a same material as the front outer layer (outer layer of front panel 510; see paragraphs 0044-0046 and 0059).
Regarding claim 27, Bastug further discloses wherein an upper portion of the breast supporting region extends into a pair of shoulder straps (5110a + 5120a, 5110b + 5120b) configured to couple the front panel (510) with the back panel (520a,b; see Figs. 5-7 and at least paragraph 0051).
Regarding claim 30, Bastug further discloses wherein an upper portion of the back panel (520a,b) is unreleasably or releasably coupled to a distal edge of the shoulder straps (5110a + 5120a, 5110b + 5120b; see Figs. 5-7 and at least paragraph 0051).
Regarding claim 32, Bastug further discloses wherein at least one of the front panel (510) or the back panel (520a,b) comprises a releasable fastener mechanism (561, 562) configured to secure the garment on the wearer’s body (see at least Fig. 6 and paragraph 0054).
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 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 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over Bastug, as applied to claim 1 above, in view of Yeung et al. (herein Yeung)(US PG Pub 2002/0022433).
Regarding claim 5, Bastug discloses the limitations of claim 1, as discussed above, but fails to further disclose an elastic band circumferentially positioned on the inner surface of the garment at a position superior to the bottom edge of the garment. Instead, as discussed above, Bastug discloses wherein a bottom hem (580) of the garment is formed from the material of the front panel (510) and the rear panel (520a,b) themselves, and held in place with an elastic adhesive, instead of including a separate elastic band (see paragraph 0053).
However, Yeung teaches an upper body garment (sports bra of Figs. 1-4 and 9) having an inner surface (surface facing wearer) and an outer surface (surface facing away from wearer) and comprising: a front panel (front inner and outer layers as annotated below in Figs. 1-4) comprising a breast supporting region (104, see Fig. 9 and paragraph 0041); a back panel (back inner and outer layers as annotated below in Figs. 1-4) configured to cover at least a portion of a wearer's back and wherein the back panel is coupled to the front panel (see Figs. 1-4); a non-binding circumferential hem (120) at a bottom edge of the garment (see at least Fig. 9 and paragraph 0048), and an elastic band (108) circumferentially positioned on the inner surface of the garment at a position superior to the bottom edge of the garment (see Fig. 9 and paragraph 0047, 108 forms “a wide ribbed band” and is elastic due to its ribbed construction), so to provide maximum support under the bust and give structure to the garment, while diffusing pressure over a wide surface area without constricting movement or irritating the skin (see paragraph 0047).
Therefore, based on Yeung’s teachings, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have modified Bastug’s garment to further include an elastic band circumferentially positioned on the inner surface of the garment at a position superior to the bottom edge of the garment, as doing so would provide maximum support under the bust and give structure to the garment, while diffusing pressure over a wide surface area without constricting movement or irritating the skin.
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Regarding claim 6, the modified garment of Bastug (i.e., Bastug in view of Yeung) is further disclosed wherein the elastic band (108 of Yeung) is configured to substantially align with a lower edge of the wearer’s sternum bone (see Figs. 1-4 and 9 and paragraphs 0047-0051 of Yeung; note that the actual extent of the garment on a wearer’s body depends on the intended wearer’s size and body proportions), and wherein the elastic band is unreleasably affixed to at least a portion of a front inner layer and a back inner layer of the garment (see Fig. 9 and paragraphs 0011, 0037-0040, and 0047 of Yeung).
Claims 6 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Waitz, as applied to claims 5 and 8 above, in view of Bastug.
Regarding claim 6, Waitz discloses the limitations of claim 5, as discussed above, and further discloses wherein the elastic band (61) is configured to substantially align with a lower edge of the wearer’s sternum bone (see Figs. 1-2; note that the actual extent of the garment on a wearer’s body depends on the intended wearer’s size and body proportions), and wherein the elastic band is unreleasably affixed to at least a portion of a front inner layer (24) of the garment (see Figs. 1-3 and paragraph 0018).
Waitz fails to further disclose wherein the back panel further comprises a back inner layer and wherein the elastic band is also unreleasably affixed to at least a portion of the back inner layer.
However, the Examiner notes that it is well-known in the art to line both the front and back panels of a bra, e.g., for increased coverage, support and comfort. For example, Bastug teaches a supportive brassiere (500) having a front panel (510) and a back panel (520a,b) that are both two-ply fabrics having an inner layer and an outer layer.
Therefore, based on Bastug’s teachings, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have modified Waitz’s back panel to comprises both a back inner layer and a back outer layer, as doing so is well-known in the art and would provide increased coverage, support and/or comfort.
As modified, Waitz’s elastic band (61) would be unreleasably affixed to at least a portion of the back inner layer (see Figs. 1-3 and paragraph 0018 of Waitz, note that Waitz discloses wherein elastic band 61 is a “continuous elastic band” and Figs. 1-2 show wherein the hem of the elastic band extends continuously below front panel 20 and back panel 50).
Regarding claim 9, Waitz discloses the limitations of claim 8, as discussed above, and further discloses wherein the front panel (20) comprises a front inner layer (24) and a front outer layer (26, see at least Fig. 3 and paragraphs 0017-0018), wherein the elastic band (61) is unreleasably affixed to at least a portion of the front inner layer (via seam 40, see at least Fig. 3 and paragraph 0018), and wherein the elastic band is not affixed to the front outer layer (see Fig. 3, elastic band 61 is not directly affixed to front outer layer 26).
Waitz fails to further disclose wherein the back panel comprises both a back inner layer and a back outer layer, and wherein the elastic band is also unreleasably affixed to at least a portion of the back inner layer.
However, the Examiner notes that it is well-known in the art to line both the front and back panels of a bra, e.g., for increased coverage, support and comfort. For example, Bastug teaches a supportive brassiere (500) having a front panel (510) and a back panel (520a,b) that are both two-ply fabrics having an inner layer and an outer layer.
Therefore, based on Bastug’s teachings, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have modified Waitz’s back panel to comprises both a back inner layer and a back outer layer, as doing so is well-known in the art and would provide increased coverage, support and/or comfort.
As modified, Waitz’s elastic band (61) would be unreleasably affixed to at least a portion of the back inner layer (see Figs. 1-3 and paragraph 0018 of Waitz, note that Waitz discloses wherein elastic band 61 is a “continuous elastic band” and Figs. 1-2 show wherein the hem of the elastic band extends continuously below front panel 20 and back panel 50).
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Bastug, as applied to claim 11 above, in view of Pennington (US PG Pub 2022/0039485).
Regarding claim 15, Bastug discloses the limitations of claim 11, as discussed above, but fails to explicitly disclose wherein the first front and/or back materials and the second material are not affixed to each other along a main portion of the breast supporting region, and wherein the first front and/or back materials and the second material are configured to independently slide against each other such that the garment is comfortably adjusted against the wearer's body.
However, Pennington teaches a supportive upper body garment (100) comprising a front portion (110) that includes a front outer layer (134) and a front inner layer (210; see at least Figs. 1-5 and paragraphs 0028-0031), wherein the front outer layer and the front inner layer are not affixed to each other along a main portion of a breast supporting region of the front portion, and wherein the front outer layer and the front inner layer are configured to independently slide against each other such that the garment is comfortably adjusted against the wearer's body (see paragraph 0031), so as to facilitate wearer comfort and to aid in donning and doffing the garment (see paragraph 0031).
Therefore, based on Pennington’s teachings, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have modified Bastug’s garment wherein the first front and/or back materials and the second material are not affixed to each other along a main portion of the breast supporting region, and wherein the first front and/or back materials and the second material are configured to independently slide against each other such that the garment is comfortably adjusted against the wearer's body; as doing so would facilitate wearer comfort and would aid in donning and doffing the garment.
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 JOCELYN BRAVO whose telephone number is (571)270-0581. The examiner can normally be reached Monday, Tuesday, Thursday, and Friday, 12:00 pm - 5:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Clinton Ostrup, can be reached at (571) 272-5559. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOCELYN BRAVO/Primary Examiner, Art Unit 3732
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