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 .
Information Disclosure Statement
The information disclosure statement filed August 27, 2024 has been received and made of record. Note the acknowledged PTO-1449 form enclosed herewith.
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.
Claim Rejections - 35 USC § 102
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) 1-3 and 19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent No. 2011/0208104 (“Sellier”).
Regarding claim 1, Sellier discloses a garment serving to combat cellulite and/or venous and lymphatic insufficiency that anticipates Applicant’s presently claimed invention. More specifically, Sellier discloses compression pants (sports leggings 1, see Fig. 1 and para. [0041]) for lipedema (applicant is reminded that "apparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). 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. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987; thus, the compression garment of Sellier is capable of use to treat lipedema), comprising a lower waist portion; (see annotated figure 1 below); a hip portion positioned below and depending from the lower waist portion (see annotated figure 1 below), the hip portion being larger than the lower waist portion (as can be seen from annotated figure 1, the hip portion has a larger length than the lower waist portion); and a right thigh portion and a left thigh portion positioned below and depending from the lower waist portion (see annotated figure 1 below), each of the right thigh portion and the left thigh portion having an upper part and a lower part (see annotated figure 1 below), the upper part being larger in diameter than the lower part (see annotated figure 1 below), and the upper part tapering in size into the lower part (see annotated figure 1 below). It must be noted that the length dimension is equivalent to the diameter.
Regarding claim 2, Sellier discloses the compression pants for lipedema of claim 1 further comprising an upper waist portion positioned above and depending from the lower waist portion (see annotated figure 1 below).
Regarding claim 3, Sellier discloses the compression pants for lipedema of claim 1, further comprising a right lower leg portion and a left lower leg portion (see annotated figure 1 below), the right lower leg portion depending from the lower part of the right thigh portion (see annotated figure 1 below), the left lower leg portion depending from the lower part of the left thigh portion (see annotated figure 1 below), each of the right lower leg portion and the left lower leg portion having a knee portion and a calf portion (note that lower leg section D, shown in figure 1 includes knee portion and a calf portion), and an ankle portion (see annotated figure 1 below and para. [0041]), the calf portion being smaller in diameter than the lower part of the right thigh portion and the left thigh portion (as can be seen from figure 1, the designated calf portion has a length less than length of the length of the lower part of the right and left thigh portions), the ankle portion being smaller in diameter than the calf portion (as can be seen from annotated figure 1, the length of the ankle portion is less than the length of the calf portion). It must be noted that the length dimension is equivalent to the diameter.
Regarding claim 19, Sellier discloses the compression pants for lipedema of claim 1 wherein at least a portion of the compression pants for lipedema are circular-knit (see para. [0041]).
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Claim(s) 1, 10, 13, 15 and 16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by US Patent No. 2015/0196070 A1 (“Burger et al.”)
Regarding claim 1, Burger et al. discloses a full length padded compression garment that anticipates Applicant’s claimed invention. More specifically, Burger et al. discloses the compression pants (constituted by compression garment 10, see Figs 1 and 2) for lipedema (applicant is reminded that "apparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). 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. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987; thus, the compression garment of Burger et al. is capable of use to treat lipedema), comprising: a lower waist portion (see annotated Fig. 1 below); a hip portion positioned below and depending from the lower waist portion (see annotated Fig. 1 below), the hip portion being larger than the lower waist portion (while not drawn to scale, it is clear from Fig. 1 that the designated lower waist portion has a length less than the length of the hip portion), and a right thigh portion and a left thigh portion positioned below and depending from the lower waist portion (see annotated Fig. 1 below), each of the right thigh portion and the left thigh portion having an upper part and a lower part (see annotated Fig. 1 below), the upper part being larger in diameter than the lower part (see annotated Fig. 1 below), and the upper part tapering in size into the lower part (see annotated Fig. 1 below). It must be noted that the length dimension is equivalent to the diameter.
Regarding claim 10, Burger et al. discloses the compression pants for lipedema of claim 1, further comprising a foam pad (106, see para. [0025]) positioned at a predetermined location of the compression pants for lipedema (applicant is reminded that "apparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). 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. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987; thus, the pads of Burger et al. are capable of use to treat lipedema).
Regarding claim 13, Burger et al. discloses the compression pants for lipedema of claim 10, wherein the predetermined location is a side of the wearer's hip (note hip pads 101 in Fig. 1 and see para. [0026]).
Regarding claim 15, Burger et al. discloses the compression pants for lipedema of claim 10, wherein a pad pocket (constituted by a sleeve, see para. [0025]) is provided at the predetermined location for holding the foam pad (the foam pad is inserted either externally or internally within a sleeve).
Regarding claim 16, Burger et al. discloses the compression pants for lipedema of claim 10, wherein the foam pad is held in position through compression of the compression pants for lipedema (since Burger et al. discloses the foam pad may be placed permanently within the garment 10 or be removably located within a sleeve on either the interior or exterior of the garment 10, see para. [0025], it is inherent that when positioned on the interior the foam pad will be held in compression by the compression garment, and is capable of use in treating lipedema).
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Claim(s) 1, 10 and 11 is/are rejected under 35 U.S.C. 102(a(1) as being anticipated by WO 2014/114925 (“Barker”).
Regarding claim 1, Barker discloses compression pants (constituted by short pants shown in Figure 3) for lipedema (applicant is reminded that "apparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). 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. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987; thus, the compression garment of Barker is capable of use to treat lipedema), comprising: a lower waist portion (see annotated Figure 3 below); a hip portion positioned below and depending from the lower waist portion (see annotated Figure 3 below), the hip portion being larger than the lower waist portion (the length of the hip portion is larger than the length of the lower waist portion); and a right thigh portion and a left thigh portion positioned below and depending from the lower waist portion( see annotated Figure 3 below), each of the right thigh portion and the left thigh portion having an upper part and a lower part (see annotated Figure 3 below), the upper part being larger in diameter than the lower part, and the upper part tapering in size into the lower part (the upper part has a longer length than the lower part and as can be seen from Figure 3, the upper part tapers to the lower part).
Regarding claim 10, Barker discloses the compression pants for lipedema of claim 1 further comprising a foam pad positioned at a predetermined location of the compression pants for lipedema (foam panels positioned on the inner thigh, buttocks and hips capable of use to treat lipedema, see Figs. 3 and 4, page 9, lines 1-7, page 11, lines 20-24).
Regarding claim 11, Barker discloses the compression pants for lipedema of claim 10, wherein the foam pad has a contacting surface, the contacting surface being positioned such that it is adjacent a wearer's body (see page 9, lines 9-11, the pads are comfortable against the skin), the contacting surface having at least one lymph channel (the spaces between the pads, see Figures 3 and 4).
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Claim(s) 1, 3 and 4 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by WO 2022/253440 (“Voss”).
Regarding claim 1, Voss discloses a compression garment (10, see Fig. 3A) which anticipates Applicant’s claimed invention. More specifically, Voss discloses compression pants (constituted by compression garment 10, see Fig. 3A) for lipedema (applicant is reminded that "apparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). 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. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987; thus, the compression garment of Voss is capable of use to treat lipedema), comprising: a lower waist portion (see annotated Fig. 3A below); a hip portion positioned below and depending from the lower waist portion (see annotated Fig. 3A below), the hip portion being larger than the lower waist portion (the length of the hip portion is larger than the length of the lower waist portion, see Fig. 3A); and a right thigh portion and a left thigh portion positioned below and depending from the lower waist portion (see annotated Fig. 3A below), each of the right thigh portion and the left thigh portion having an upper part and a lower part (see annotated Fig. 3A below), the upper part being larger in diameter than the lower part, and the upper part tapering in size into the lower part (the length of the upper part is larger than the length of the lower part, and as can be seen from annotated Fig. 3A, the upper part tapers in size into the lower part). It must be noted that the length dimension is equivalent to the diameter.
Regarding claim 3, Voss discloses the compression pants for lipedema of claim 1 further comprising a right lower leg portion and a left lower leg portion (see annotated Fig. 3A below), the right lower leg portion depending from the lower part of the right thigh portion (see annotated Fig. 3A below), the left lower leg portion depending from the lower part of the left thigh portion (see annotated Fig. 3A below), each of the right lower leg portion and the left lower leg portion having a knee portion (see annotated Fig. 3A below), a calf portion (see annotated Fig. 3B below), and an ankle portion (see annotated Fig. 3A below), the calf portion being smaller in diameter than the lower part of the right thigh portion and the left thigh portion (see annotated Fig. 3A below), the ankle portion being smaller in diameter than the calf portion.
Regarding claim 4, Voss discloses the compression pants for lipedema of claim 3 further comprising a foot portion depending from the ankle portion, the foot portion extending from the ankle portion towards a wearer's toes (see annotated Fig. 3A below).
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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.
Claim(s) 5-9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sellier.
Regarding claim 5, Sellier discloses the compression pants for lipedema of claim 1, except wherein the lower waist portion is 25% smaller to 5% larger in diameter than the hip portion, each of the upper part of the right thigh portion and the upper part of the left thigh portion are 30 - 45% smaller in diameter than the hip portion, and each of the lower part of the right thigh portion and the lower part of the left thigh portion are 50 - 60% smaller in diameter than the hip portion.
However, it has been held that a change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Therefore. it would have been obvious to one having ordinary skill in the art before the filing of the claimed invention to have manufactured the compression pants of Sellier such that the lower waist portion is 25% smaller to 5% larger in diameter than the hip portion, each of the upper part of the right thigh portion and the upper part of the left thigh portion are 30 - 45% smaller in diameter than the hip portion, and each of the lower part of the right thigh portion and the lower part of the left thigh portion are 50 - 60% smaller in diameter than the hip portion in order to fit various sized bodies to combat cellulites and venous and lymphatic insufficiency.
Regarding claim 6, Sellier discloses the compression pants for lipedema of claim 3, except wherein the calf portion is 55 - 75% smaller in diameter than the hip portion and the ankle portion is 75 - 85% smaller in diameter than the hip portion. However, it has been held that a change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Therefore. it would have been obvious to one having ordinary skill in the art before the filing of the claimed invention to have manufactured the compression pants of Sellier such that the calf portion is 55 - 75% smaller in diameter than the hip portion and the ankle portion is 75 - 85% smaller in diameter than the hip portion in order to fit various sized bodies to combat cellulites and venous and lymphatic insufficiency.
Regarding claim 7, Sellier discloses the compression pants for lipedema of claim 3, except wherein the calf portion is 60 - 70% smaller in diameter than the hip portion and the ankle portion is 70 - 85% smaller in diameter than the hip portion.
However, it has been held that a change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Therefore. it would have been obvious to one having ordinary skill in the art before the filing of the claimed invention to have manufactured the compression pants of Sellier such that the calf portion is 60 - 70% smaller in diameter than the hip portion and the ankle portion is 70 - 85% smaller in diameter than the hip portion in order to fit various sized bodies to combat cellulites and venous and lymphatic insufficiency.
Regarding claim 8, Sellier discloses the compression pants for lipedema of claim 3, except wherein the calf portion is 50 - 60% smaller in diameter than the hip portion and the ankle portion is 70 -80% smaller in diameter than the hip portion.
However, it has been held that a change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). Therefore. it would have been obvious to one having ordinary skill in the art before the filing of the claimed invention to have manufactured the compression pants of Sellier such that the calf portion is 50 - 60% smaller in diameter than the hip portion and the ankle portion is 70 -80% smaller in diameter than the hip portion in order to fit various sized bodies to combat cellulites and venous and lymphatic insufficiency.
Regarding claim 9, Sellier discloses the compression pants for lipedema of any one of claims 3, 6, 7, or 8, except wherein the left thigh portion and the left lower leg portion accommodate a combined left leg volume of at least 9000 mL and the right thigh portion and the right lower leg portion accommodate a combined right leg volume of at least 9000 mL.
However, it would have been obvious to one having ordinary skill in the art before the filing of the claimed invention to have manufactured the compression pants of Sellier such that a combined left leg volume of at least 9000 mL and the right thigh portion and the right lower leg portion accommodate a combined right leg volume of at least 9000 mL in order to compressively a user to combat cellulites and venous and lymphatic insufficiency.
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Barker.
Regarding claim 12, Barker discloses the compression pants for lipedema of claim 10, except wherein the predetermined location is a side of the wearer's knees.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have added panels on a side or sides of the wearer’s knees in order to target a specific plexus of veins, a specific lymphatic plexus, a specific drainage plexus or a collection of lymphatic vessels (page 4, lines 24-28) depending on need of the user.
Claim(s) 14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Burger et al. in view of U.S. Patent Application No. 2014/0283281 A1 (“Willis”).
Regarding claim 14, Burger et al. discloses the compression pants for lipedema of claim 10, except wherein a closure is positioned adjacent the predetermined location to facilitate insertion of the foam pad. However, Willis in the disclosure of an analogous compression garment (100, see FIG. 10a) teaches it is known to provide a pocket (110) with a hook and loop fastening apparatus (112) in order to maintain the pad within the pocket (see para. [0051]).
In view of Willis, it would have been obvious to one having ordinary skill in the art before the effective filing date of the presently claimed invention to have modified Burger et al. by adding a closure feature to the sleeves in order to maintain the pads within the sleeves.
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Burger et al. in view of WO 96/08174 (“Aldridge”).
Regarding claim 17, Burger et al. discloses the compression pants for lipedema of claim 3, except wherein a removable inner liner is positionable between the compression pants for lipedema and a wearer's lower leg. However, Aldridge an analogous garments (See Figs. 1-12) teaches it is known to provide a garment with a removable inner liner in order to provide increase resistance to wear (see claim 8).
In view of Aldridge, it would have been obvious to one having ordinary skill in the art before the effective filing date of the presently claimed invention to have modified the garment of Burger et al. such that it includes an inner liner in order to increase resistance to wear.
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Sellier in view of U.S. Patent No. 2020/0288797 (“Krysinski et al.”).
Regarding claim 18, Sellier discloses the compression pants for lipedema of claim 1, except wherein at least a portion of the compression pants for lipedema are flat-knit. However, Krysinski et al. in its disclosure of analogous compression pants (100, see Fig. 4) teaches it is known to construct a compression garment by flat knitting in multiple pieces and joined together with seam for use as a garment for moderate to severe edema (see para. [0015]).
In view of Krysinski et al., it would have been obvious to one having ordinary skill in the art before the effective filing date of the presently claimed invention to have constructed the compression garment of Sellier by flat-knitting when being used a garment for moderate to severe edema.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KIM M LEWIS whose telephone number is (571)272-4796. The examiner can normally be reached Monday -Friday 5:30 am -11:30 am.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alireza Nia can be reached at (571)270-3076. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KIM M LEWIS/Primary Examiner, Art Unit 3786