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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on May 12, 2026 has been entered.
Status of the Claims
As directed by the amendment received on May 12, 2026, claims 1, 6, 10, and 16 have been amended. Claims 2-3, 7, 12-14, and 18-33 were previously canceled. Accordingly, claims 1, 4-6, 8-11, and 15-17 are currently pending in this application with claims 4-5 and 11 being previously withdrawn from further consideration.
Response to Amendment
The amendments filed with the written response received on May 12, 2026, have been considered and an action on the merits follows. Any objections and rejections previously put forth in the Office Action dated February 13, 2026, are hereby withdrawn unless specifically noted below.
Election/Restrictions
Examiner notes that Applicant’s amendments to claim 16 are at least partially directed to non-elected embodiment of Species L from the Restriction Requirement dated April 17, 2025 which was made final. The language directed to the non-elected Species L (i.e., “wherein a distance between the shoulder sleeve and the torso portion […] remains constant”) should be removed from the claim to accurately reflect the elected and examined subject matter. Correction is required. Any claims directed to a non-elected embodiment will be withdrawn from further consideration by Examiner in subsequent correspondence.
Claim Objections
In each of claims 1, 9-10, and 16, each instance of “armhole” and “armholes” should instead read “arm hole” and “arm holes”, respectively, to be consistent with Applicant’s established terminology throughout the claims.
Claim 16 is objected to because of the following informalities:
At line 12, “the respective shoulder sleeve” should read “a respective shoulder sleeve”
At line 13, “the respective arm hole” should read “a respective arm hole”
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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 1, 6, 8-10, and 15-17 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.
Claim 1 recites the limitation “the gusset having a proximal edge” at line 7. As “proximal” is a relative term, it is unclear what structural limitation is intended with the description of the edge of the gusset as being “proximal” without reciting another relative structure. Therefore, the metes and bounds of the claim are unclear, and the claim is rendered indefinite. It is suggested that the limitation instead recite “a gusset edge” or alternatively recite some other structure to which the proximal edge of the gusset can be considered proximal. For the purposes of examination, the limitation will be interpreted as best can be understood according to the suggested language above of “a gusset edge” when applying prior art.
Claim 16 recites the limitation “the shoulder sleeve” at line 19. There is insufficient antecedent basis for this limitation in the claim. It is unclear if the limitation is attempting to refer back to the previously recited “respective shoulder sleeve” or one of the first or second shoulder sleeves in particular. Therefore, the metes and bounds of the claim are unclear, and the claim is rendered indefinite. It is suggested that the limitation instead read “the respective shoulder sleeve”. For the purposes of examination, the limitation will be interpreted as best can be understood according to the suggested language above when applying prior art.
Claim 16 further recites the limitation “the direction the gusset extends” at line 20. There is insufficient antecedent basis for this limitation in the claim. It is unclear if the limitation is attempting to refer to a particular one of the first gusset or the second gusset or if the limitation is attempting to refer to a respective gusset. Therefore, the metes and bounds of the claim are unclear, and the claim is rendered indefinite. It is suggested that the limitation instead read “a direction a corresponding one of the first gusset or the second gusset extends”. For the purposes of examination, the limitation will be interpreted as best can be understood according to the suggested language above when applying prior art.
Claims 6, 8-10, 15, and 17 are also rejected for being dependent on a rejected claim.
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 (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 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, 6, 8-10, and 15-17, as best can be understood, are rejected under 35 U.S.C. 102(a)(1) as being anticipated by USPN 4,698,849 to Mitchell et al. (hereinafter, “Mitchell”).
Regarding claim 1, Mitchell teaches a garment (See Mitchell, Figs. 1-2; jersey (10)) comprising: a torso portion having a front, a back, a top, a head opening extending through the top, and a pair of arm holes proximate the top (See Mitchell, Figs. 1-2; body (16) of jersey formed by panels (18, 22, 24, 32) which include a front, back, top, neck opening (20) and arm holes formed on either side of torso portion as seen in annotated portions of Figs. 1-2 of Mitchell below; Examiner notes that the term "portion" is very broad and merely means "a section or quantity within a larger thing; a part of a whole" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)), each of the arm holes having a lower-most extent and a perimeter edge (See annotated portions of Figs. 1-2 of Mitchell below; each arm hole has a lower-most point or extent at bottom of arm hole, each armhole forming a respective perimeter edge); a shoulder sleeve extending outwardly from one of the arm holes (See Mitchell, Figs. 1-2; each arm hole includes a shoulder sleeve formed by shoulder gusset (38) and arm portion (30)); and a gusset coupled to, and extending between, the shoulder sleeve and the torso portion adjacent the one of the arm holes (See Mitchell, Figs. 1-2; gusset (40) coupled to and extending between torso portion and respective shoulder sleeve; each gusset (40) is positioned adjacent a respective arm hole; Examiner notes that the term "adjacent" is very broad and merely means "close to; lying near". (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)), the gusset having a proximal edge (See Mitchell, Figs. 1-2; each gusset (40) includes an edge proximate a respective arm portion (30); Examiner notes that the term "proximal" is very broad and merely means "nearest; proximate". (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)); wherein the shoulder sleeve has a front lower edge extending from the one of the arm holes above the lower-most extent of the one of the armholes to an outer edge of the shoulder sleeve, and a rear lower edge extending from the one of the arm holes above the lower-most extent of the one of the armholes to the outer edge of the shoulder sleeve, and a sleeve top spaced above the front lower edge and the rear lower edge (See Mitchell, Figs. 1-2; shoulder sleeve includes front and rear lower edges along stitching (38) adjacent panel (36), each edge extending from an arm hole above a respective lower-most extent and out to an outer edge of the shoulder sleeve), and wherein the gusset extends from the front lower edge towards the sleeve top (See Mitchell, Fig. 1; corner of gusset (40) extends up from front lower edge toward top of shoulder sleeve partially in-between panels (38) and (30) which together form the shoulder sleeve); wherein the torso portion has a first elasticity and the gusset has a second elasticity, wherein the second elasticity is greater than the first elasticity (See Mitchell, Figs. 1-2; gusset (40), i.e., the stretch means, has more stretch than the body of the jersey and therefore has an elasticity greater than an elasticity of the body; Col. 3, line 63 – Col. 4, line 7), wherein the perimeter edge of the torso portion is distal to the proximal edge of the gusset (See annotated portions of Figs. 1-2 of Mitchell below; each armhole perimeter edge is distal to a respective proximal edge of a respective gusset (40); Examiner notes that the term "distal" is very broad and merely means "anatomically located far from a point of reference, such as an origin or a point of attachment". (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)).
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Annotated portions of Figs. 1 (left) & 2 (right) of Mitchell
Regarding claim 6, Mitchell (as applied to claim 1 above) further teaches wherein the gusset comprises a first portion and a second portion, the first portion being closer to an edge of the shoulder sleeve and the second portion being closer to the sleeve top (See Mitchell, Fig. 1 and annotated portion of Fig. 1 of Mitchell below; gusset (40) includes first and second portions, the first portion being closer to edge of shoulder sleeve between the gusset (40) and panel (36) of shoulder sleeve, and the second portion being closer to a top of the shoulder sleeve), the first portion comprising a greater width than the second portion, such that the gusset tapers as it extends from the first portion to the second portion (See annotated portion of Fig. 1 of Mitchell below; gusset (40) tapers in width from first portion to second portion).
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Annotated portion of Fig. 1 of Mitchell
Regarding claim 8, Mitchell (as applied to claim 1 above) further teaches wherein the gusset is stitched to the torso portion and the shoulder sleeve (See Mitchell, Figs. 1-2; gussets (40) are stitched along sides to body of jersey and respective shoulder sleeves; See Col. 4, lines 28-33).
Regarding claim 9, Mitchell (as applied to claim 1 above) further teaches wherein the shoulder sleeve is a first shoulder sleeve, and wherein the garment further comprises a second shoulder sleeve extending outwardly from the other of the arm holes, and a second gusset coupled to, and extending between, the second shoulder sleeve and the torso portion adjacent the other of the armholes (See Mitchell, Figs. 1-2; jersey (10) includes an additional, second shoulder sleeve extending outward from the other arm hole and having a second gusset (40) adjacent the other arm hole that extends between the second shoulder sleeve and the other arm hole).
Regarding claim 10, Mitchell (as applied to claims 1 and 9 above) further teaches wherein each of the first and second shoulder sleeves forms a respective cavity configured to retain a respective shoulder pad (See Mitchell, Figs. 1-2; each shoulder sleeve forms a cavity capable of retaining a hypothetical shoulder pad such as a respective shoulder pad (12)).
Regarding claim 15, Mitchell (as applied to claim 1 above) further teaches a first seam coupling a first side of the first gusset to the torso portion and a second seam coupling a second side of the first gusset to the first shoulder sleeve (See Mitchell, Figs. 1-2; gussets (40) are stitched along first and second sides to body of jersey and respective shoulder sleeves, respectively; See Col. 4, lines 28-33).
Regarding claim 16, Mitchell teaches an article of apparel (See Mitchell, Figs. 1-2; jersey (10)), comprising: an upper body portion having first and second arm holes (See Mitchell, Figs. 1-2; body (16) of jersey formed by panels (18, 22, 24, 32) which include arm holes formed on either side of upper body portion as seen in annotated portions of Figs 1-2 of Mitchell above; Examiner notes that the term "portion" is very broad and merely means "a section or quantity within a larger thing; a part of a whole" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)), each of the first and second arm holes having a lower-most extent (See annotated portions of Figs. 1-2 of Mitchell below; each arm hole has a lower-most point or extent at bottom of arm hole); a first shoulder sleeve extending outwardly from the first arm hole; a second shoulder sleeve extending outwardly from the second arm hole (See Mitchell, Figs. 1-2; each arm hole includes a shoulder sleeve formed by corresponding shoulder gusset (38) and arm portion (30)); a first gusset coupled to, and extending between, the first shoulder sleeve and the upper body portion adjacent the first armhole; and a second gusset coupled to, and extending between, the second shoulder sleeve and the upper body portion adjacent the second armhole (See Mitchell, Figs. 1-2; gussets (40) coupled to and extending between upper body portion and respective shoulder sleeve; each gusset (40) is positioned adjacent a respective arm hole; Examiner notes that the term "adjacent" is very broad and merely means "close to; lying near". (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com); wherein each of the first shoulder sleeve and the second shoulder sleeve has a front lower edge extending from the one of the arm holes above the lower-most extent of the armhole to an outer edge of the respective shoulder sleeve, and a rear lower edge extending from the respective arm hole above the lower-most extent of the respective armhole to the outer edge of the respective shoulder sleeve, and a sleeve top spaced above the front lower edge and the rear lower edge (See Mitchell, Figs. 1-2; each shoulder sleeve includes front and rear lower edges along stitching (38) adjacent panel (36), each edge extending from an arm hole above a respective lower-most extent and out to an outer edge of the shoulder sleeve), and wherein the first gusset and the second gusset each extend from the front lower edge towards the sleeve top of the respective shoulder sleeve (See Mitchell, Fig. 1; corner of each gusset (40) extends up from front lower edge toward top of shoulder sleeve partially in-between panels (38) and (30) which together form the shoulder sleeve), wherein a distance between the shoulder sleeve and the torso portion decreases or remains constant in the direction the gusset extends from the front lower edge towards the sleeve top (See Mitchel, Figs. 1-2; distance between panels (18) and (36) remains constant in a direction from top to bottom of the gusset (40) extension).
Regarding claim 17, Mitchell (as applied to claim 16 above) further teaches wherein the upper body portion has a first elasticity and the first gusset and the second gusset each have a second elasticity, wherein the second elasticity is greater than the first elasticity (See Mitchell, Figs. 1-2; gussets (40), i.e., the stretch means, have more stretch than the body of the jersey and therefore have an elasticity greater than an elasticity of the body; Col. 3, line 63 – Col. 4, line 7).
Response to Arguments
Applicant’s arguments, filed May 12, 2026, with respect to the rejection of the claims under 35 USC 102 have been fully considered but are moot in view of the new grounds of rejection, as Applicant’s arguments appear to be drawn only to the newly amended limitations and previously presented rejections. That said, Applicant's arguments have been fully considered, but they are not persuasive.
In general, Examiner notes that Applicant appears to be misconstruing the mapping of the claim language in view of Mitchell in both the previous and current grounds of rejection. As stated in both the previous and current grounds of rejection, the stretch gussets (40) of Mitchell, as seen in Figs. 1-2 and in the annotated drawings above, are mapped to the gussets of Applicant’s claims. Instead, Applicant arguments appear to be based on the misunderstanding that shoulder gussets (38) of Mitchell are mapped to the gussets of Applicant’s claimed invention in the rejection. Therefore, Applicant’s arguments are moot, as Applicant has not appropriately addressed the prior art of Mitchell as it has been applied in the previous and now current grounds of rejection.
In response to Applicant’s apparent argument that Mitchell does not disclose the shoulder gusset (38) being joined to the shoulder portion (18) so that a proximal edge overlaps or underlaps the perimeter edge of the shoulder portion (18), Applicant notes that the features upon which Applicant relies (i.e., an overlap or underlap of a perimeter edge and a proximal edge) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW R MARCHEWKA whose telephone number is (571) 272-4038. The examiner can normally be reached M-F: 9:00AM-5:00PM EST.
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/MATTHEW R MARCHEWKA/Examiner, Art Unit 3732
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