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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 18 June 2026 has been entered.
Response to Amendments
The amendments filed with the written response received on 18 June 2026 have been considered and an action on the merits follows. As directed by the amendment, claim(s) 1, 3-6, and 17-19 has/have been amended, claim(s) 2 is/are canceled, and claim(s) 12-13 has/have been withdrawn. Accordingly, claim(s) 1 and 3-21 is/are pending in this application with an action on the merits to follow regarding claim(s) 1, 3-11, and 14-21.
Because of the applicant's amendment, the following in the office action filed 08 April 2026, are hereby withdrawn:
Claim Objections
Rejections under 35 USC 112(b)
Claim Rejections - 35 USC § 103
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, 3-10, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over McNabb US 6401250.
Regarding Independent Claim 1, McNabb discloses an undergarment for a wearer (Figs. 1-4; Col. 2:7-9) comprising: a plurality of fabric regions (Figs. 1-2 #13/14/15/16/17/18/19/21) comprising: a right-side tubular fabric-region (Figs. 1-2 #15/17/25/13) configured to cover an upper portion of a right hip and upper thigh portion of a right thigh of the wearer (Col. 3:36-42); a left-side tubular fabric-region (Figs. 1-2 #14/18/23/13) configured to cover an upper portion of a left hip and upper thigh portion of a right thigh of the wearer (Col. 3:36-42); a front-side fabric-region (Col. 3:36-42) configured to cover genitalia of the wearer (Col. 3:36-42); a rear-side fabric-region (Figs. 1-2 #19), configured to cover at last part of buttocks of the wearer (Col. 3:36-42); and the undergarment further comprising: a waistband (Figs. 1-2 #37) configured to encircle a waist of the wearer (Col. 4:40-43); wherein the right-side tubular fabric region comprises: an adjustable-size right-side fabric-member (Figs. 1-4 #13 right) that is configured to cover a part of an inner region of the upper portion of the right thigh of the wearer (Col. 3:36-42); wherein the left-side tubular fabric-region comprises: an adjustable-size left-side fabric-member (Figs. 1-4 #13 left), that is configured to cover a part of an inner of the upper portion of the region of a left thigh of the wearer (Col. 3:36-42); wherein the adjustable-size right-side fabric member and the adjustable-size left-side fabric member are formed of a first type of fabric (Col. 1:19-32, 2:14-19, 3:36-4:49) having a first elasticity (Col. 1:19-32, 2:14-19, 3:36-4:49); wherein any one of the plurality of fabric-regions that are neighboring to the adjustable-size right-side fabric member or to the adjustable-size left-side fabric member are formed of a second type of fabric (Col. 1:19-32, 2:20-26, 3:36-4:49) having a second elasticity (Col. 1:19-32, 2:14-19, 3:36-4:49).
McNabb does not expressly disclose wherein the first elasticity is at least 1.25 times the second elasticity. However, the first elasticity being 1.25 times the second elasticity is a results effective variable with the results being a change in the composition, size, and type of material used in the undergarment itself. It would have been obvious to one having ordinary skill in the art at the time the invention was made to make the first elasticity at least 1.25 times the second elasticity, in order to give the undergarment the proper fit and stretch for activities, and since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. See MPEP § 2144.05. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP § 2144.07
Regarding Claim 3, the modified undergarment of McNabb discloses the undergarment according claim 1, but does not expressly disclose wherein the first elasticity is at least 1.5 times the second elasticity. However, the first elasticity being 1.5 times the second elastic is a results effective variable with the results being a change in the composition, size, and type of material used in the undergarment itself. It would have been obvious to one having ordinary skill in the art at the time the invention was made to make the first elasticity at least 1.5 times the second elasticity, in order to give the undergarment the proper fit and stretch for activities, and since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. See MPEP § 2144.05. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP § 2144.07
Regarding Claim 4, the modified undergarment of McNabb discloses the undergarment according claim 1, but does not expressly disclose wherein the first elasticity is at least 2 times the second elasticity. However, the first elasticity being 2 times the second elastic is a results effective variable with the results being a change in the composition, size, and type of material used in the undergarment itself. It would have been obvious to one having ordinary skill in the art at the time the invention was made to make the first elasticity at least 2 times the second elasticity, in order to give the undergarment the proper fit and stretch for activities, and since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. See MPEP § 2144.05. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP § 2144.07.
Regarding Claim 5, the modified undergarment of McNabb discloses the undergarment according claim 1, but does not expressly disclose wherein the first elasticity is at least 1.5 times the second elasticity. However, the first elasticity being at least 1.5 times the second elasticity is a results effective variable with the results being a change in the composition, size, and type of material used in the undergarment itself. It would have been obvious to one having ordinary skill in the art at the time the invention was made to make the first elasticity at least 1.5 times the second elasticity, in order to give the undergarment the proper fit and stretch for activities, and since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. See MPEP § 2144.05. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP § 2144.07.
Regarding Claim 6, the modified undergarment of McNabb discloses the undergarment according claim 1, wherein the first elasticity (Col. 1:19-32, 2:14-19, 3:36-4:49) is in a horizontal direction that enables the first type of fabric to horizontally stretch by at least 25 percent in response to a stretching force (Col. 1:19-32, 2:14-19, 3:36-4:49); wherein the second elasticity (Col. 1:19-32, 2:14-19, 3:36-4:49) is in a horizontal direction that enables the second type of fabric to horizontally stretch by not more than 12 percent in response to said stretching force (Col. 1:19-32, 2:14-19, 3:36-4:49).
Regarding Claim 7, the modified undergarment of McNabb discloses the undergarment according claim 1, wherein each one of the first type of fabric and the second type of fabric is configured to expand upon application of a stretching force (Col. 1:19-32, 2:14-19, 3:36-4:49 notes “6 or 7 times the original length”). Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP § 2144.07.
Regarding Claim 8, the modified undergarment of McNabb discloses the undergarment according claim undergarment according claim 1, wherein the first type of fabric is mesh fabric (Col. 2:14-19, 3:36-4:49); wherein the second type of fabric is non-mesh fabric (Col. 2:20-26, 3:36-4:49).
Regarding Claim 9, the modified undergarment of McNabb discloses the undergarment according claim 1, wherein the first type of fabric is formed of a first type of yarn (Col. 1:19-32, 2:14-19, 3:36-4:49); wherein the second type of fabric is formed of a second type of yarn (Col. 1:19-32, 2:14-19, 3:36-4:49); but does not expressly disclose wherein the first type of yarn has an elasticity that is at least 1.25 times an elasticity of the second type of yarn. However, the first type of yarn having an elasticity that is at least 1.25 times an elasticity of the second type of yarn is a results effective variable with the results being a change in the composition, size, and type of yarn used in the undergarment itself. It would have been obvious to one having ordinary skill in the art at the time the invention was made to make the first type of yarn has an elasticity that is at least 1.25 times an elasticity of the second type of yarn, in order to give the undergarment the proper fit and stretch for activities, and since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. See MPEP § 2144.05. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP § 2144.07.
Regarding Claim 10, the modified undergarment of McNabb discloses the undergarment according claim 1, wherein the first type of fabric has a first knitting structure (Col. 1:19-32, 2:14-19, 3:36-4:49); wherein the second type of fabric has a second knitting structure (Figs. 3-4; Col. 1:19-32, 2:14-19, 3:36-4:49).
Regarding Claim 20, the modified undergarment of McNabb discloses the undergarment according claim 1, wherein the adjustable-size right-side fabric-member has a plurality of ventilation holes (Figs. 3-4 #26 right); wherein the adjustable-size left-side fabric-member has another plurality of ventilation holes (Figs. 3-4 #26 left); wherein any of the plurality of fabric-regions that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member exclude any ventilation holes (Col. 3:36-4:49).
Claim(s) 11 and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over McNabb as applied to claim 1 above, further in view of Padin US 20180263299.
Regarding Claim 11, the modified undergarment of McNabb discloses the undergarment according claim 1, but does not expressly disclose wherein the adjustable-size right-side fabric-member is connected to the adjustable-size left-side fabric-member via a connecting fabric-region that is formed of said first type of fabric, and the connecting fabric-region is configured to cover from beneath a crotch of the wearer.
Padin teaches an undergarment (Figs. 1-5 #100) wherein an adjustable-size right-side fabric-member (Figs. 1-5 #160 right) is connected to an adjustable-size left-side fabric-member (Figs. 1-5 #160 left) via a connecting fabric-region (Figs. 1-5 #160 center) that is formed of a first type of fabric (¶0027, 0032), and the connecting fabric-region is configured to cover from beneath a crotch of the wearer (¶0021).
Both McNabb and Padin teach analogous inventions in the art of thigh covering undergarments with gussets. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify McNabb with the teachings of Padin such that the adjustable-size right-side fabric-member is connected to the adjustable-size left-side fabric-member via a connecting fabric-region that is formed of said first type of fabric, and the connecting fabric-region is configured to cover from beneath a crotch of the wearer, “system can provide a garment with additional flexibility and breathability in target areas of the garment to increase comfort for a wearer of the garment,” (Paden ¶0009) as well as add strength to the gusset area for activities such as bending and squatting.
Regarding Claim 21, the modified undergarment of McNabb discloses the undergarment according claim 1, wherein the right- and left-adjustable-size fabric-member are structured as a singular adjustable-size saddle fabric-member (Col. 1:19-32, 2:14-19, 3:36-4:49) that has an elasticity that is different from an elasticity of all other fabric-regions of the plurality of fabric regions of said undergarment (Col. 1:19-32, 2:14-19, 3:36-4:49), but does not expressly disclose wherein the adjustable-size right-side fabric-member and the adjustable-size left-side fabric-member are interconnected via a central under-crotch adjustable-size fabric-member; wherein the adjustable-size right-side fabric-member, and the adjustable-size left-side fabric-member, and the central under-crotch adjustable-size fabric-member are structured as a singular adjustable-size saddle fabric-member that has an elasticity that is different from an elasticity of all other fabric-regions of said undergarment.
Padin teaches an undergarment (Figs. 1-5 #100) wherein an adjustable-size right-side fabric-member (Figs. 1-5 #160 right) and an adjustable-size left-side fabric-member (Figs. 1-5 #160 left) are inter-connected via a central under-crotch adjustable-size fabric-member (Figs. 1-5 #160 center) wherein the adjustable-size right-side fabric-member, and the adjustable-size left-side fabric-member, and the central under-crotch adjustable-size fabric-member are structured as a singular adjustable-size saddle fabric-member (¶0021), and the central under-crotch adjustable-size fabric-member, are structured as a singular adjustable-size saddle fabric-member that has an elasticity that is different from an elasticity of all other fabric-regions of the plurality of fabric regions of said undergarment (¶0005, 0007, 0022-0023, 0029).
Both McNabb and Padin teach analogous inventions in the art of thigh covering undergarments with gussets. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify McNabb with the teachings of Padin such that the adjustable-size right-side fabric-member and the adjustable-size left-side fabric-member are inter-connected via a central under-crotch adjustable-size fabric-member, and are structured as a singular adjustable-size saddle fabric-member, that has an elasticity that is different from an elasticity of all other fabric-regions of the plurality of fabric regions of said undergarment so that the, “system can provide a garment with additional flexibility and breathability in target areas of the garment to increase comfort for a wearer of the garment,” (Paden ¶0009) as well as add strength to the gusset area for activities such as bending and squatting.
Claim(s) 14 and 16-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over McNabb as applied to claim 1 above, further in view of Kehler US 20160339286.
Regarding Claim 14, the modified undergarment of McNabb discloses the undergarment according claim 1, but does not expressly disclose wherein the adjustable-size right-side fabric-member comprises thermoplastic polyurethane (TPU) yarns; wherein the adjustable-size left-side fabric-member comprises TPU yarns; wherein fabric-regions that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member exclude any TPU yarn.
Kehler teaches a lower body garment (Figs. 1-2 #100) with an adjustable-size right-side fabric-member (Figs. 1-2 #112) comprises thermoplastic polyurethane (TPU) yarns (¶0023); wherein the adjustable-size left-side fabric-member (Figs. 1-2 #114) comprises TPU yarns (¶0023); wherein fabric-regions that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member exclude any TPU yarns (¶0018-0023 note that fabrics are chosen based on need and design and that includes those without TPU such as rayon or wool).
Both McNabb and Kehler teach analogous inventions in the art of lower body garments that cover the thighs, that are made of two or more knit materials, and have gussets. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify McNabb with the teachings of Kehler such that the adjustable-size right-side fabric-member and the adjustable-size left-side fabric-member are both formed of a TPU yarn, and wherein fabric-regions that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member exclude any TPU yarn so that the fabric will, “closely conform to the wearer's body when worn. …materials used to form the tights are selected to provide breathability, moisture-management properties, and opacity,” (Kehler ¶0019). Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP § 2144.07.
Regarding Claim 16, the modified undergarment of McNabb discloses the undergarment according claim 1, but does not expressly disclose wherein the adjustable-size right-side fabric-member comprises hydrophobic yarns; wherein the adjustable-size left-side fabric-member comprises the hydrophobic yarns; wherein fabric-regions that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member exclude any of the hydrophobic yarn.
Kehler teaches a lower body garment (Figs. 1-2 #100) with an adjustable-size right-side fabric-member (Figs. 1-2 #112) comprises hydrophobic yarns (¶0023 notes polyester which is inherently hydrophobic); wherein the adjustable-size left-side fabric-member (Figs. 1-2 #114) comprises the hydrophobic yarns (¶0023 notes polyester which is inherently hydrophobic); wherein fabric-regions that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member exclude any of the hydrophobic yarns (¶0018-0023 note that fabrics are chosen based on need and design and that includes those without hydrophobic yarns such as rayon or wool).
Both McNabb and Kehler teach analogous inventions in the art of lower body garments that cover the thighs, that are made of two or more knit materials, and have gussets. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify McNabb with the teachings of Kehler such that the adjustable-size right-side fabric-member and the adjustable-size left-side fabric-member are both formed of a hydrophobic yarn, and wherein fabric-regions that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member exclude any of the hydrophobic yarns so that the fabric will, “closely conform to the wearer's body when worn. …materials used to form the tights are selected to provide breathability, moisture-management properties, and opacity,” (Kehler ¶0019). Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP § 2144.07.
Regarding Claim 17, the modified undergarment of McNabb discloses the undergarment according claim 1, but does not expressly disclose wherein the adjustable-size right-side fabric-member comprises polyether-polyurea copolymer yarns; wherein the adjustable-size left-side fabric-member comprises the polyether-polyurea copolymer yarns; wherein fabric-regions that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member exclude any of the polyether-polyurea copolymer yarns.
Kehler teaches a lower body garment (Figs. 1-2 #100) with an adjustable-size right-side fabric-member (Figs. 1-2 #112) comprises polyether-polyurea copolymer yarns (¶0023); wherein the adjustable-size left-side fabric-member (Figs. 1-2 #114) is comprises the polyether-polyurea copolymer yarns (¶0023); wherein fabric-regions that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member exclude any of the polyether-polyurea copolymer yarns (¶0018-0023 note that fabrics are chosen based on need and design and that includes those without polyether-polyurea copolymers such as rayon or wool).
Both McNabb and Kehler teach analogous inventions in the art of lower body garments that cover the thighs, that are made of two or more knit materials, and have gussets. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify McNabb with the teachings of Kehler such that the adjustable-size right-side fabric-member and the adjustable-size left-side fabric-member are both formed of a yarn blend that comprises the polyether-polyurea copolymer yarns, and wherein fabric-regions that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member exclude any of the polyether-polyurea copolymer yarn so that the fabric will, “closely conform to the wearer's body when worn. …materials used to form the tights are selected to provide breathability, moisture-management properties, and opacity,” (Kehler ¶0019). Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP § 2144.07.
Regarding Claim 18, the modified undergarment of McNabb discloses the undergarment according claim 1, but does not expressly disclose wherein the adjustable-size right-side fabric-member is formed of a yarn blend that comprises: 10 to 15 percent of polyether-polyurea copolymer yarns, and a remainder quantity of polyester yarns and/or cotton yarns; wherein the adjustable-size left-side fabric-member is formed of the yarn blend that comprises: the 10 to 15 percent of the polyether-polyurea copolymer yarns, and the remainder quantity of the polyester yarns and/or the cotton yarns; wherein any of the plurality of the fabric-regions that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member exclude any of the polyether-polyurea copolymer yarns.
Kehler teaches a lower body garment (Figs. 1-2 #100) with an adjustable-size right-side fabric-member (Figs. 1-2 #112) that is formed of a yarn blend (¶0023) that comprises: polyether-polyurea copolymer yarns (¶0023), and a remainder quantity of polyester yarns and/or cotton yarns (¶0023 notes “Lycra” which is well known in the art to be a blend of polyester/spandex); wherein the adjustable-size left-side fabric-member (Figs. 1-2 #114) is formed of the yarn blend that comprises: the polyether-polyurea copolymer yarns (¶0023), and the remainder quantity of the polyester yarns and/or the cotton yarns (¶0023 notes “Lycra” which is well known in the art to be a blend of polyester/spandex); wherein any of the plurality of the fabric-regions that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member exclude any of the polyether-polyurea copolymer yarns (¶0018-0023 note that fabrics are chosen based on need and design and that includes those without polyether-polyurea copolymers such as rayon or wool).
Both McNabb and Kehler teach analogous inventions in the art of lower body garments that cover the thighs, that are made of two or more knit materials, and have gussets. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify McNabb with the teachings of Kehler such that the adjustable-size right-side fabric-member and the adjustable-size left-side fabric-member are both formed of a yarn blend that comprises polyether-polyurea copolymer yarns and a remainder quantity of the polyester yarns and/or the cotton yarns, and wherein any of the plurality of the fabric-regions that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member exclude any polyether-polyurea copolymer yarn so that the fabric will, “closely conform to the wearer's body when worn. …materials used to form the tights are selected to provide breathability, moisture-management properties, and opacity,” (Kehler ¶0019).
The modified undergarment of McNabb does not expressly disclose that the yarn blend is specifically 10 to 15 percent polyether-polyurea and the remainer of the yarn is specifically polyester and/or cotton. However, the yarn blend being specifically 10 to 15 percent polyether-polyurea is a results effective variable with the results being a change in the mix and type of yarn used in the undergarment itself. It would have been obvious to one having ordinary skill in the art at the time the invention was made to make the yarn blend being specifically 10 to 15 percent polyether-polyurea and the remainer of the yarn is specifically polyester and/or cotton, in order to give the undergarment the proper fit, moisture resistance or wicking, and stretch for activities, and since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. See MPEP § 2144.05. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP § 2144.07.
Regarding Claim 19, the modified undergarment of McNabb discloses the undergarment according claim 1, but does not expressly disclose wherein the adjustable-size right-side fabric-member is formed of a yarn blend that comprises: 10 to 15 percent of polyether-polyurea copolymer yarns, and a remainder quantity of polyester yarns and/or cotton yarns; wherein the adjustable-size left-side fabric-member is formed of the yarn blend that comprises: the 10 to 15 percent of the polyether-polyurea copolymer yarns, and the remainder quantity of the polyester yarns and/or the cotton yarns; wherein any of the plurality of fabric-regions that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member comprise less than 5 percent of the polyether-polyurea copolymer yarns.
Kehler teaches a lower body garment (Figs. 1-2 #100) with an adjustable-size right-side fabric-member (Figs. 1-2 #112) that is formed of a yarn blend (¶0023) that comprises: polyether-polyurea copolymer yarns (¶0023), and a remainder quantity of polyester yarns and/or cotton yarns (¶0023 notes “Lycra” which is well known in the art to be a blend of polyester/spandex); wherein the adjustable-size left-side fabric-member (Figs. 1-2 #114) is formed of the yarn blend that comprises: the polyether-polyurea copolymer yarns (¶0023), and the remainder quantity of polyester yarns and/or cotton yarns (¶0023 notes “Lycra®” which is well known in the art to be a blend of polyester/spandex); wherein any of the plurality of the fabric-regions that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member comprise less than 5 percent of the polyether-polyurea copolymer yarns (¶0018-0023 note that fabrics are chosen based on need and design and that includes those blends of polyether-polyurea copolymers such as elastane and Lycra®).
Both McNabb and Kehler teach analogous inventions in the art of lower body garments that cover the thighs, that are made of two or more knit materials, and have gussets. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify McNabb with the teachings of Kehler such that the adjustable-size right-side fabric-member and the adjustable-size left-side fabric-member are both formed of the yarn blend that comprises polyether-polyurea copolymer yarns and the remainder quantity of polyester yarns and/or cotton yarns, and wherein fabric-regions that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member comprise less than 5 percent of polyether-polyurea copolymer yarns so that the fabric will, “closely conform to the wearer's body when worn. …materials used to form the tights are selected to provide breathability, moisture-management properties, and opacity,” (Kehler ¶0019).
The modified undergarment of McNabb does not expressly disclose that the yarn blend is specifically 10 to 15 percent polyether-polyurea and the remainer of the yarn is specifically polyester and/or cotton, and the other type of yarn comprise less than 5 percent of polyether-polyurea copolymer yarns. However, the yarn blend being specifically 10 to 15 percent polyether-polyurea is a results effective variable with the results being a change in the mix and type of yarn used in the undergarment itself. It would have been obvious to one having ordinary skill in the art at the time the invention was made to make the yarn blend being specifically 10 to 15 percent polyether-polyurea and the remainer of the yarn is specifically polyester and/or cotton, and the other type of yarn comprise less than 5 percent of polyether-polyurea copolymer yarns, in order to give the undergarment the proper fit, moisture resistance or wicking, and stretch for activities, and since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. See MPEP § 2144.05. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP § 2144.07.
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over McNabb as applied to claim 1 above, further in view of Kolmes US 20090301139.
Regarding Claim 15, the modified undergarment of McNabb discloses the undergarment according claim 1, but does not expressly disclose wherein the adjustable-size right-side fabric-member comprises elastomeric monofilament yarns; wherein the adjustable-size left-side fabric-member comprises the elastomeric monofilament yarns; wherein fabric-regions that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member exclude any of the elastomeric monofilament yarn.
Kolmes teaches a lower body garment (Fig. 1 #10) with an adjustable-size right-side fabric-member (Fig. 1 #16 right) comprises elastomeric monofilament yarns (¶0030); wherein the adjustable-size left-side fabric-member (Fig. 1 #16 left) comprises the elastomeric monofilament yarns (¶0030); wherein fabric-regions (Fig. 1 #17) that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member exclude any of the elastomeric monofilament yarns (¶0030 note that fabrics are chosen based on need and design and that includes those without elastomeric monofilament yarns such as multifilament yarns).
Both McNabb and Kolmes teach analogous inventions in the art of lower body garments that cover the thighs, that are made of two or more knit materials, and have gussets. Therefore it would have been obvious to one of ordinary skill in the art prior to the effective filing date to modify McNabb with the teachings of Kolmes such that the adjustable-size right-side fabric-member and the adjustable-size left-side fabric-member are both formed of a yarn blend that comprises the elastomeric monofilament yarns, and wherein fabric-regions that are neighboring to the adjustable-size right-side fabric-member or to the adjustable-size left-side fabric-member exclude any of the elastomeric monofilament yarns so that the fabrics, “are lightweight, having improved comfort, flexibility and pliability, and are cut and/or abrasion resistant, particularly suitable for use as hosiery products such as pantyhose and tights, or for protective coverings for the limbs of the wearer,” (Kolmes ¶0002). Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP § 2144.07. Further, it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. See MPEP § 2144.07.
Response to Arguments
Applicant’s arguments, filed 18 June 2026, with respect to the 35 USC § 102 rejection of claims 1, 6, 8, 10, and 20, and the 35 USC § 103 rejections of claims 2-5, 7, 9, 11, 14-19, and 21 have been considered but are not persuasive.
Regarding the 35 USC § 102 of claims 1, 6, 8, 10, and 20, and the 35 USC § 103 rejections of claims 2-5, 7, 9, 11, 14-19, and 21, Applicant argues:
“it would not have been obvious to a person of ordinary skill in the art, based on McNabb's teachings concerning improved ventilation, to select two different materials having the specific relative elasticities as presently claimed, for the entirely different purposes of the present invention, such as enhancing comfort, ease of expansion, and the like,” “Kehler does not address the different elasticity of materials at the specific sections of the garment as defined in claim 1 as currently amended, and certainly does not teach the essential requirement that the elasticity of a first material at a specified location should be at least 1.25 the elasticity of a second material at a specified location,” and “Kolmes does not teach or suggest the use of different materials in the specific areas as defined by claim 1 as currently amended, and certainly does not teach the essential requirement that the elasticity of a first material at a first location should be at least 1.25 the elasticity of a second material at a second specified location, as recited in claim 1 as currently amended,” (Remarks Pg. 9-11).
The Examiner respectfully disagrees. While McNabb does not teach two different elasticities specifically, it does teach making a garment from two different materials in Col. 3:35-4:25. McNabb notes that each material is chosen for the properties it provides that address the needs of the design. Further, it is well known in the art that garments are made from a number of combined fabrics. Further, while McNabb does not specifically teach that the first elasticity is at least 1.25 times the second elasticity, this is a property that would be well within the general skill of someone in the art to ascertain based on material design choices. See 35 USC § 103 rejection above.
Applicant submits that the dependent claims are patentable based on their dependencies from claim(s) 1; however, as discussed in the rejection and in the arguments above, claim(s) 1 is/are not allowable over the prior art. Therefore, these arguments have not been found convincing and the rejections of the independent claims under 35 USC § 102 and/or 103 have been maintained.
Conclusion
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/RAQUEL M. WEIS/Examiner, Art Unit 3732
/HEATHER MANGINE, Ph.D./Primary Examiner, Art Unit 3732
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