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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 January 16, 2026 has been entered.
Response to Amendment
The amendments filed with the written response received on January 26, 2025 have been considered and an action on the merits follows. As directed by the amendment, claims 1 and 11 have been amended; and claims 3-4, 6-9, 12-14, and 18-20 are withdrawn from further consideration. Accordingly, claims 1-20 are pending in this application, with an action on the merits to follow regarding claims 1-2, 5, 10-11, and 15-17.
Because of the applicant's amendment, the following in the office action filed October 17, 2025, are hereby withdrawn:
Objections to the claims.
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: Claim 1 recites, “wherein the nose bridge portion, the upper lip portion, and the forehead portion are a single piece of material without any joinder between portions”. The bolded portion does not have proper antecedent basis in the specification.
Claim Rejections - 35 USC § 112(a)
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.
Claim 1 (and claims 2, 5, 10-11, and 15-17 at least for depending from a rejected claim) is 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, “wherein the nose bridge portion, the upper lip portion, and the forehead portion are a single piece of material without any joinder between portions” which was not disclosed in the specification. The nose bridge portion, the upper lip portion, and the forehead portion make up the nose covering portion which, in elected embodiment C, can be seen as 110 in Figs. 3A-3B and disclosed in paras. 0038 and 0040-0042 which is presumably the nose covering portion 110 shown in Figs. 2A and 2B, and disclosed in paras. 0032-0034, integrated into the head and neck covering portions. However, none of the disclosure recites or even suggests that the various portions making up the nose covering portion are a single piece of material without any joinder between portions. While para. 0022 discloses, “The head garment, including the one or more portions, may be made from a single piece of material or a plurality of pieces of material”, the term “joinder” does not appear in the specification and it is unknown what can and cannot be considered a joinder. For example, in an engineered seamless garment, where sections of stitches are adjacent one another and joined together with a common yarn in a knitting process, would one consider the common yarn a joinder between portions? Further, Applicant has not stated that there is no stitching, seams, common yarn, heat sealing, or otherwise between the different portions. Further, as shown in Fig. 2A, there are lines on either side of the nose that could represent seams, and in Figs. 2A and 2B, there is a grouping of horizontal lines near 114 that appear to indicate stitching therefore showing there is some sort of joinder between portions. Further, the fact that the drawings do not another joinder in the nose covering portion elsewhere does not constitute the possession of a joinder elsewhere, as now claimed. See MPEP 2173.05(i), which states "Any negative limitation or exclusionary proviso must have basis in the original disclosure", and "The mere absence of a positive recitation is not basis for an exclusion." MPEP 2163.02 states, “An objective standard for determining compliance with the written description requirement is, ‘does the description clearly allow persons of ordinary skill in the art to recognize that he or she invented what is claimed.’” Although it mentions that an Applicant can rely on figures as well as words to show possession of the invention, the drawings cannot show a negative. In other words they cannot show that Applicant contemplated specifically excluding a joinder from certain areas, as now claimed. Again, as stated in 2173.05(i), “The mere absence of a positive recitation is not basis for an exclusion.” Therefore the limitation fails to comply with the requirement for written description.
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.
Claim 1 (and claims 2, 5, 10-11, and 15-17 at least for depending from a rejected claim) is 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, “wherein the nose bridge portion, the upper lip portion, and the forehead portion are a single piece of material without any joinder between portions”. First, as it was not disclosed (see 35 USC 112(a) rejections above), it is unclear what can be included or excluded by the term joinder. Further, it is unclear what “portions” is referring to as “portions” could be referring to the nose bridge, upper lip, and forehead portions collectively, portions of any of the nose bridge, upper lip, and forehead portions (i.e. the nose bridge portion is a single piece of material without any joinder between portions of the nose bridge portion), or otherwise.
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.
Claim(s) 1-2 and 5 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Frislie (US 5845340).
Regarding claim 1, Frislie discloses a head garment (10) comprising: a nose covering portion (14) comprising a nose bridge portion, an upper lip portion below the nose bridge portion, a through-hole (22) between the nose bridge portion and the upper lip portion (see annotated Fig. 1), an outer perimeter and an inner perimeter, and a forehead portion between the inner perimeter and the outer perimeter at an upper portion of the nose covering portion (see annotated Fig. 1), wherein the nose bridge portion, the upper lip portion, and the forehead portion are a single piece of material without any joinder between portions (as can be seen in Fig. 1, and col. 4, lines 20-28 where the nose covering portion is made of nylon), wherein the inner perimeter defines an opening (20) that is positioned to, when the head garment is worn by a user, surround eyes of the user (as can be seen in Fig. 1), wherein the forehead portion is positioned to, when the head garment is worn by the user, cover a forehead of the user, wherein the nose bridge portion is positioned to, when the head garment is worn by a user, cover a bridge of a nose of the user, wherein the upper lip portion is positioned to, when the head garment is worn by the user, cover an upper lip of the user, and wherein the through-hole is positioned to, when the head garment is worn by the user, provide a passageway between nostrils of the user and an external environment of the head garment (as can be seen in Fig. 1).
Examiner notes that italicized limitations in the prior art rejections are functional and do not positively recite a structural limitation, but instead require an ability to so perform and/or function. As the prior art discloses the structure of the head garment, there would be a reasonable expectation for the head garment to perform such functions, as Examiner has explained after each functional limitation.
Regarding claim 2, Frislie discloses wherein the material is a stretchable material comprising a fabric, fleece, or fleece fabric (see col. 4, lines 20-25 where the nylon contracts and is therefore stretchable).
Regarding claim 5, Frislie discloses further comprising: a head covering portion (12) affixed to the nose covering portion (as disclosed in col. 5, lines 5-10), wherein the head covering portion is positioned to, when the head garment is worn by the user, cover the forehead and a back of a head of the user (as shown in Fig. 1 where at least part of the forehead and all the back of the head is covered by 12).
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.
Claim(s) 1-2 and 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Carey (US 6272690) in view of Sisolak (US 5809572).
Regarding claim 1, Carey discloses a head garment (10) comprising: a nose covering portion (combination of 12 and 40) comprising a nose bridge portion (23), an upper lip portion below the nose bridge portion (see annotated Fig. 2), a through-hole (29) between the nose bridge portion and the upper lip portion (see annotated Fig. 2), an outer perimeter (26, 30, 32 and along outer edge of 50 where 50 connects to 14) and an inner perimeter (20 along opening 18), and a forehead portion between the inner perimeter and the outer perimeter at an upper portion of the nose covering portion (see annotated Fig. 2), wherein the nose bridge portion, and the upper lip portion, are a single piece of material without any joinder between portions (as disclosed in col. 3, lines 40-53, 12/40 is made material, and as can be seen in annotated Fig. 2, the nose bridge and upper lip are a single piece of material), wherein the inner perimeter defines an opening (18) that is positioned to, when the head garment is worn by a user, surround eyes of the user (as seen in Fig. 1), wherein the forehead portion is positioned to, when the head garment is worn by the user, cover a forehead of the user (as seen in Figs. 1-2 at least a portion of the forehead is covered), wherein the nose bridge portion is positioned to, when the head garment is worn by a user, cover a bridge of a nose of the user (as seen in Fig. 1), wherein the upper lip portion is positioned to, when the head garment is worn by the user, cover an upper lip of the user (as understood between Figs. 1-2), and wherein the through-hole is positioned to, when the head garment is worn by the user, provide a passageway between nostrils of the user and an external environment of the head garment (as seen in Fig. 1).
While Carey discloses the nose bridge portion and the upper lip portion are a single piece of material without any joinder between portions, Carey does not expressly disclose wherein the nose bridge portion, the upper lip portion, and the forehead portion are a single piece of material without any joinder between portions.
Sisolak teaches a cold weather hood wherein the nose bridge portion, the upper lip portion, and the forehead portion are a single piece of material without any joinder between portions (as seen in Fig. 1 and disclosed in col. 2, line 57 – col. 3, line 15, 30 is formed of a laminate material).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to form the head garment of Carey so that the nose bridge portion, the upper lip portion, and the forehead portion are a single piece of material without any joinder between portions, as taught by Sisolak, in order to minimize any seams around they eyes where the goggles sit, as when worn with goggles, the goggles would press against any such seams and cause discomfort to the wearer.
Examiner notes that italicized limitations in the prior art rejections are functional and do not positively recite a structural limitation, but instead require an ability to so perform and/or function. As the prior art discloses the structure of the head garment, there would be a reasonable expectation for the head garment to perform such functions, as Examiner has explained after each functional limitation.
Regarding claim 2, the modified head garment of Carey discloses wherein the material is a stretchable material comprising a fabric, fleece, or fleece fabric (see col. 3, lines 40-53 12 is neoprene and fleece which are known to capable of stretching and 40 is an elastic material, therefore the material is fabric).
Regarding claim 5, the modified head garment of Carey discloses further comprising: a head covering portion (14) affixed to the nose covering portion (as seen in Figs. 1-2), wherein the head covering portion is positioned to, when the head garment is worn by the user, cover the forehead and a back of a head of the user (as shown in Fig. 1).
Claim(s) 10-11 and 15-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combined references of Carey and Sisolak, as applied to claim 1 above, and further in view of Murphy (US 2017/0196280).
Regarding claim 10, the modified head garment of Carey discloses further comprising a neck covering portion (16) comprising an upper edge (edge where 16 meets 26, see annotated Fig. 2), wherein the nose covering portion further comprises a lower edge (26), but Carey does not expressly disclose a first fastener portion in an upper region of the neck covering portion, wherein the nose covering portion comprises a second fastener portion, and wherein the first fastener portion and the second fastener portion are configured to engage to each other and disengage from each other via manual force.
Murphy teaches a balaclava style head garment with head, nose, and neck covering portions wherein of the neck covering portion (see annotated Fig. 1A) comprises a first fastener portion (100 in cavity 82 of upper edge 80) in an upper region (region containing upper edge 80) of the neck covering portion (as 100 is in the upper edge), and the nose covering portion (30) comprising a second fastener portion (corresponding magnets 100 in cavity 92 of 90), and wherein the first fastener portion and the second fastener portion are configured to engage to each other and disengage from each other via manual force (see paras. 0038-0039).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention add a resealable opening via magnets between the nose and neck covering portions of the modified head garment of Carey, as taught by Murphy, “in order to allow excess heat to escape and the allow the user to effectively communicate” (see para. 0005 of Carey).
Regarding claim 11, the modified head garment of Carey discloses wherein, when the head garment is worn by the user, while the first fastener portion and the second fastener portion are engaged, the first fastener portion and the second fastener portion are positioned on a front of the head of the user (as can be seen in Figs. 1A, 1B, and 2A of Murphy).
Regarding claim 15, the modified head garment of Carey discloses wherein each of the first fastener portion and the second fastener portion (100 of Murphy) comprises one or more magnets (see para. 0038 of Murphy).
Regarding claim 16, the modified head garment of Carey discloses wherein each of the first fastener portion (100 on 80 of Murphy) and the second fastener portion (100 on 90 of Murphy) comprises two or more fastening components (as each 100 are a plurality; Examiner notes that “fastening component(s)” has been interpreted under 35 USC 112(f) and are disclosed as magnets in para. 11 of the specification), wherein each fastening component of the two or more fastening components of the first fastener portion is configured to engage with a corresponding fastening component of the two or more fastening components of the second fastener portion (see paras. 0038-0039 of Murphy).
Regarding claim 17, the modified head garment of Carey discloses wherein the two or more fastening components of the second fastener portion (90 of Murphy) comprises a first fastening component (one of plurality of 100 of Murphy) on a first side of the through-hole, and a second fastening component (a second one of plurality of 100 of Murphy) on a second side of the through-hole (as in 90 of Murphy, there is magnet on each side of 76 as shown in Fig. 2A of Murphy, when included in Carey, the components would at least be on first and second lower sides of the through-hole).
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Annotated Fig. 1 (Frislie)
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Annotated Fig. 2 (Carey)
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Annotated Fig. 1A (Murphy)
Response to Arguments
Applicant’s arguments, filed January 16, 2026, with respect to 35 USC 102 and 103 rejection of claims 1-2, 5, 10-11, and 15-17 have been considered but are moot because the arguments do not apply to the current grounds of rejection. In view of Applicant’s amendment, the search has been updated, and new prior art has been identified and applied. 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 new ground(s) of rejection.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HEATHER MANGINE, Ph.D. whose telephone number is (571)270-0673. The examiner can normally be reached Monday-Friday 8AM-4PM.
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/HEATHER MANGINE, Ph.D./ Primary Examiner, Art Unit 3732