DETAILED ACTION
This is in response to application filed on November 8th, 2024 in which claims 1- are presented for examination.
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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the following must be shown or the feature(s) canceled from the claim(s):
“upper and lower layer of a material” in Claim 9 is not in the drawings; Fig. 7 seems to only show one layer 10, whereas Claim 9 seems to indicate that the cubes are encased
Fig. 2, 3, 6, 7 seems to show where the pad is not encased, as the hatch-marks of the foam cubes are visible, whereas only Fig. 5 seems to show an encased pad; however, nowhere in the disclosure is it recited that the Figures are showing cross-sections at different levels of the pad, such that some Figures show encasement and others do not
No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The abstract of the disclosure is objected to because of the following:
Lines 3-4 “The accommodating means may configured as laterally open that extend up into the back area” needs review; it is unclear if it should read “may be configured”, and whether there is missing structure (laterally open pockets)
Correction is required. See MPEP § 608.01(b).
The disclosure is objected to because of the following informalities:
Page 3, paragraph 5 “the pockets extend from approximately the mid-height of the shoulder blade up to the underbust band” needs review whether it should read “down to”, as the band seems to be below the mid-height of the shoulder blade on a same side of the bra
Page 4 paragraph 5 “back portion 12” should delete “12”, as the number “12” is directed to the zip fastener
Page 4 paragraph 6 it is recommended to delete “according to one of the preceding claims” and “described in Claims 7 to 11”, as claims are already part of the disclosure and record
Page 5 paragraph 2 for the description of Fig. 1, the term “breast prosthesis inserted to the right” is unclear; in view of Fig. 2 wherein the opening for the pocket is at the medial side of accommodating means 4, it is unclear how the pad is inserted “from the right” in Fig. 1 on both sides; Fig. 5 also does not further clarify how Fig. 1 prosthesis would be inserted to the right
Page 6 paragraph 2 “A pressure onto the cup 3 is exerted by the lymphatic drainage pad 6” is unclear as it is unclear how the pressure is exerted; does the recitation mean that pressure occurs from the edge of pad 6 onto the side of cup 3?
Appropriate correction is required.
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 10 “the foam cubes have an edge length of 3-15 mm, in particular 4-6mm” is not in the specification and should be added into an appropriate section, such as the summary
Claim 12 “lymphatic pads are cut to size individually with scissors” is not in the specification, and should be added into an appropriate section, such as the summary
Claim Interpretation
Product-by-Process
Regarding Claim(s) 12-- the recitations are being treated as a product-by-process limitation. It is noted that the determination of patentability in a product-by-process claim is based on the product itself, even though the claim may be limited and defined by the process. That is, the product in such a claim is unpatentable if it is the same as or obvious from the product of the prior art, even if the prior product was made by a different process. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985). A product-by-process limitation adds no patentable distinction to the claim, and is unpatentable if the claimed product is the same as a product of the prior art; more specifically:
The structure of Claim(s) 12 is lymphatic pads
112(f) interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. More specifically:
Applicant recites “accommodating means”, which is being interpreted to invoke 35 U.S.C. 112(f) (or to pre-AIA 35 U.S.C. § 112, Sixth Paragraph) because it essentially uses a non-structural term “means” coupled with the functional language “for accommodating” without reciting sufficient structure to achieve the function. Therefore, “accommodating means” as recited in beginning claim 1 Line 5 is limited to the “open pockets” structure recited in the specification (page 3 paragraph 4 and page 6 paragraph 1) and its functional equivalents. See MPEP 2181.
Claim Objections
Claim(s) 1-6, 12, 13 is/are objected to because of the following informalities:
Claim 1 Line 1 before “breast area” delete “the” and substitute –a—for proper antecedent basis
Claim 2 Line 2 after “two accommodating means” add –of the at least one accommodating means—for clear antecedent basis
Claim 3 Line 2 before “accommodating means” add –at least one—for proper antecedent basis with Claim 1 Lines 4-5; however, see 112(b) rejection below for Claim 3
Claim 4 Line 3 before “accommodating means” add –at least one—; however, see 112(b) rejection below for Claim 3
Claim 5 Line 2 before “back area” delete “the” and substitute –a—for proper antecedent basis
Claim 6 Line 2 before “extend” add –configured to—; otherwise, Claim 6 may warrant at least a U.S.C. 101 rejection for positively claiming shoulder blade and armpit
Claim 6 Line 2 before “mid-height” delete “the” and substitute –a— for proper antecedent basis
Claim 6 Lines 2-3 before “shoulder blade” delete “the” and substitute –a—for proper antecedent basis
Claim 6 Line 3 before “armpit” delete “the” and substitute –an—
Claim 12 Line 2 before “pads” add –drainage—for proper antecedent basis
Claim 13 Line 2 before “back portion” delete “the” and substitute –a—for proper antecedent basis
Claim 13 Line 2 before “extends” add –is configured to--; otherwise, Claim 13 6 may warrant at least a U.S.C. 101 rejection for positively claiming cervical vertebra
Disagreement with any of the aforementioned may warrant at least a 112(b) indefiniteness rejection without constituting a new rejection
Appropriate correction is required.
Claim Rejections - 35 USC § 112
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.
Claim(s) 1-14 is/are rejected under U.S.C. 112(b).
The term “the possible accommodating of breast protheses” in Claim 1 Lines 2-3 is unclear and therefore renders the claim indefinite. Although the term is part of a functional recitation, the metes and bounds of the term are unclear— the cups either are configured for accommodating or not, whereas the claim goes on to positively recite “accommodating means”. Examiner recommends deleting “the possible”.
The term “pad” in Claim 1 Line 5 is unclear and therefore renders the claim indefinite. It is unclear whether the term “pad” is different from the term “breast prostheses” in Claim 1 Line 3. For the purposes of applying art and providing rejections, the terms will be considered different.
The term “lymphatic drainage pad” in Claim 1 Line 5 is unclear and therefore renders the claim indefinite. The term is currently functionally claimed, but based on Claims 7-9, 11, 12 that focus on the pad, it is unclear if Claim 1 meant to positively claim the pad. However, Claim 14 is an independent claim that positively claims a pad, which seems to indicate that Claim 1 is not directed to positively claiming a pad. For the purposes of applying art and providing rejections, the term will be considered functional, as currently written. Should the term be intended to be positive, Claim 1 should positively recite the pad, such as “comprising an underbust band and two cups…at least one accommodating means….at least one lymphatic pads, wherein each of the at least one accommodating means is configured for accommodating a respective one of the at least one lymphatic pads.”
The term “lymphatic drainage pads” in Claim 2 Line 3 is unclear and therefore renders the claim indefinite. Claim 1 Line 5 already established “at least one accommodating means for accommodating a lymphatic drainage pad”, wherein pad is singular. However, Claim 2 then establishes that there are two pads that are different (based on antecedent basis) for the pad established in Claim 1. For the purposes of applying art and providing rejections, Claim 1 will be interpreted as “at least one accommodating means, each accommodating means for accommodating a respective lymphatic drainage pad”, such that Claim 2 is interpreted “wherein the at least one accommodating means are two accommodating means” and the pads are functional.
The term “open pockets” in Claim 3 Line 2 is unclear and therefore renders the claim indefinite. The plurality of pockets seem to include a plurality of accommodating means, but Claim 1, on which Claim 3 depends, only established “at least one accommodating means.” It is unclear whether Claim 3 was meant to depend on Claim 2, or if Claim 3 should have recited that there are more than one accommodating means such that there are a plurality of pockets.
The term “the pocket” in Claim 5 Line 2 is unclear and therefore renders the claim indefinite. Claim 5 depends on Claim 3 which established a plurality of pockets. As such, it is unclear which pocket the term is referring to. For the purposes of applying art and providing rejections, the term will be interpreted “each” pocket.
The term “the lymphatic drainage pads” in Claim 7 Line 2 is unclear and therefore renders the claim indefinite. Claim 1, on which Claim 7 depends, previously only established a single pad. For the purposes of applying art and providing rejections, the term is still functional, and will be interpreted “wherein each of the lymphatic drainage pad of the at least one accommodating means.”
The term “’L-shaped’” in Claim 7 Lines 2-3 is unclear and therefore renders the claim indefinite. The metes and bounds to the quotation marks is unclear. For the purposes of applying art and providing rejections, the term will be interpreted L-shaped without the quotation marks.
The term “the lymphatic drainage pads” in Claim 8 Line 2 is unclear and therefore renders the claim indefinite. Claim 1, on which Claim 8 depends, previously only established a single pad. For the purposes of applying art and providing rejections, the term is still functional, and will be interpreted “wherein each lymphatic drainage pad of the at least one accommodating means.”
The term “the lymphatic drainage pads” in Claim 9 Line 2 is unclear and therefore renders the claim indefinite. Claim 1, on which Claim 9 depends, previously only established a single pad. For the purposes of applying art and providing rejections, the term is still functional, and will be interpreted “wherein each lymphatic drainage pad of the at least one accommodating means.”
The term “upper and a lower layer of a material” in Claim 9 Line 3 is unclear and therefore renders the claim indefinite. Especially in light of the drawing objections, it is unclear whether this is a material of the accommodating means (the material that forms a pocket), any upper/lower layer of material, or of upper/lower layered pads (as recited on page 4 paragraphs 2 and 4). For the purposes of applying art and providing rejections, the term will be interpreted as any upper/lower layer of material that are capable of holding a pad between.
The term “in particular” in Claim 10 is unclear and therefore renders the claim indefinite. It is unclear which of the edge lengths the recitation means to positively claim, or if the claims mean to recite two different options, or if the claim is improperly narrowing within the same claim. For the purposes of applying art and providing rejections, the term will be interpreted as having an edge length of 4-6mm.
The term “several lymphatic drainage pads” in Claim 11 Line 2 is unclear and therefore renders the claim indefinite. Claim 1, on which Claim 11 depends, previously only established a single pad. For the purposes of applying art and providing rejections, the term is still functional, and will be interpreted “wherein each of the lymphatic drainage pad of the at least one accommodating means.”
The term “the lymphatic pads” in Claim 12 Line 2 is unclear and therefore renders the claim indefinite. Claim 1, on which Claim 12 depends, previously only established a single pad. For the purposes of applying art and providing rejections, the term is still functional, and will be interpreted “wherein each of the lymphatic drainage pad of the at least one accommodating means.”
The term “A lymphatic drainage pad for use in the compression bra according to claim 1” is unclear and therefore renders the claim indefinite. It is unclear whether the claims meant to claim a system of a bra and pad positively, or if the claim meant to claim only a lymphatic drainage capable of being used with a bra of claim 1 as is currently written. For the purposes of applying art and providing rejections, the term will be considered the latter, such that the only positive structure recited is a pad, and the rest of functional and/or intended use, as currently written.
Dependent claims are rejected at the least for depending on rejected claims.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
As best understood in light of the 112(b) rejections-- Claim(s) 1-4, 7, 13, 14 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Barbe-Vicuna et al (USPN 5800245), herein Barbe.
Regarding Claim 1, Barbe teaches a compression bra for decongestion care of the breast area (it is noted that 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 satisfying the claimed structural limitations; however, see Figs. 1a-3c and Col. 4 Lines 47-55 for their relevance to one another; Col. 4 Line 65 "compression brassiere 1"; Barbe teaches the bra which meets the structural limitations in the claims and performs the functions as recited such as being capable of being for compression and for decongestion care of the breast area, especially further in light of Col. 1 Lines 9-10 "mastectomy…problems involved here are…(lymphatic) oedema of the breast and/or of the chest wall"), comprising
an underbust band (see Figs. 1a-3c for illustration; Col. 5 Lines 3-5 "lower edge of the brassiere could also be broadened by using an additional stomach band"; Barbe teaches the band which meets the structural limitations in the claims and performs the functions as recited such as being capable of being for an underbust)
and two cups arranged above the underbust band for the possible accommodating of breast prostheses (see Fig. 1b; Col. 1 Lines 1-2 "invention relates to a brassiere, the cup assembly of which is constructed around the two cups"; Barbe teaches the two cups above the underbust band which meets the structural limitations in the claims and performs the functions as recited such as being capable of accommodating breast prostheses),
wherein the compression bra comprises at least one accommodating means for accommodating a lymphatic drainage pad (see claim interpretation for open pockets meeting the term “at least one accommodating means”; see Figs. 2a-2c; Col. 5 Lines 14-16 "views shown in Fig. 1a and 1b…supplemented by lining pockets, which are indicated by broken lines 5"; see Fig. 2c for open; abstract "pockets (5)…in which compression pads (10)…can be removably accommodated"; Col. 5 Lines 22-24 “compression pad…can be inserted in the lining pocket in the location indicated by the lines 6 and 7”; Barbe teaches the open pockets which meets the structural limitations in the claims and performs the functions as recited such as being capable of being for compression pads and therefore lymphatic drainage, especially in light of Col. 5 Lines 27-33 "Figs. 3a to 3c show the way in which a compression pad 8 is accommodated in the lining pocket...the boundary of the compression pad is indicated by the dash-and-dot line 9"; Col. 1 Lines 61-67 "compression pad is made of...foam rubber").
Regarding Claim 2, Barbe further teaches the compression bra according to claim 1, wherein the compression bra comprises two accommodating means for accommodating lymphatic drainage pads (see Fig. 2c).
Regarding Claim 3, Barbe further teaches the compression bra according to claim 1, wherein the accommodating means are configured as open pockets (see Fig. 2c; Abstract "pockets (5)…in which compression pads (10)…can be removably accommodated"; Col. 5 Lines 22-24).
Regarding Claim 4, Barbe further teaches the compression bra according to claim 3, wherein the accommodating means are configured as laterally open pockets (see Fig. 2c; Col. 5 Lines 22-24).
Regarding Claim 7, Barbe further teaches the compression bra according to claim 1, wherein the lymphatic drainage pads have approximately an 'L-shape' (Barbe teaches the compression bra which meets the structural limitations in the claims and performs the functions as recited such as being capable of having lymphatic drainage pads of approximately an L-shape, especially in light of Fig. 3a).
Regarding Claim 13, Barbe further teaches the compression bra according to claim 1, wherein the back portion extends 12 cm to 16 cm below a cervical vertebra (see Fig. 3a; Barbe teaches a back portion of the compression bra which meets the structural limitations in the claims and performs the functions as recited such as being capable of extending 12-16cm below a cervical vertebra, especially as it depends on the size of the user; it is noted that the compression bra, and therefore back portion, will fit differently sized wearers in different manners and an intended relative position of the back portion to the wearer's cervical vertebra anatomy is functional and not patentably significant).
Regarding Claim 14, Barbe teaches a lymphatic drainage pad (abstract “compression pads (10)”; Barbe teaches the pad which meets the structural limitations in the claims and performs the functions as recited such as being capable of being for lymphatic drainage, especially in light of Col. 5 Lines 27-33 "Figs. 3a to 3c show the way in which a compression pad 8 is accommodated in the lining pocket...the boundary of the compression pad is indicated by the dash-and-dot line 9"; Col. 1 Lines 61-67 "compression pad is made of...foam rubber"),
for use in the compression bra according to claim 1 (Barbe teaches the pad which meets the structural limitations in the claims and performs the functions as recited such as being capable of being for use in the compression bra according to claim 1; even if this were a system claim, see rejection of Claim 1).
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.
As best understood in light of the 112(b) rejections--Claim(s) 5, 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Barbe-Vicuna et al (USPN 5800245), herein Barbe, in view of Pollock (USPN 10918556).
Regarding Claim 5, Barbe teaches all the claimed limitations as discussed above in Claim 3.
Barbe does not explicitly teach wherein the pocket extends up into the back area of the compression bra.
However, Barbe’s pocket is intended for a compression pad (abstract; Figs. 2c-3c).
Pollock teaches compression extending up into the back area of the compression bra (see Fig. 7; Col. 8 Lines 40-50 "therapeutic support 32 embodied by the invention is illustrated in FIG. 6 and FIG. 7. In this instance the support 32 is a brassier type garment suitable for use in the prophylaxis or treatment of lymphoedema or other forms of oedema in the chest wall and/or under arm region of the upper torso, as may occur following a mastectomy and removal of auxiliary lymph nodes for the treatment of breast cancer…such that…mounds 14 is pressed against the relevant area of the subject’s body", wherein mounds 14 are found on the back area).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Barbe’s compression to extend up into the back area (and therefore pocket) as taught by Pollock as known treatment post mastectomy and/or for edema, which Barbe is directed to as well (Col. 1 Lines 9-10; Col. 1 Lines 25-27).
Regarding Claim 6, modified Barbe teaches all the claimed limitations as discussed above in Claim 5.
Modified Barbe further teaches wherein the pockets extend from approximately the mid-height of the shoulder blade to the underbust band and extend under the armpit to above the cups (see Pollock Fig. 7 for extent of compression and therefore the extent of modified pocket of Barbe).
As best understood in light of the 112(b) rejections--Claim(s) 8, 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Barbe-Vicuna et al (USPN 5800245), herein Barbe, in view of Chardon-Bras et al (US Publication 2015/0209217), herein Chardon.
Regarding Claim 8, Barbe teaches all the claimed limitations as discussed above in Claim 1.
Barbe teaches wherein the lymphatic drainage pads are formed from a structured material, which comprises elevations and depressions (Barbe teaches the compression bra which meets the structural limitations in the claims and performs the functions as recited such as being capable of having lymphatic drainage pads formed from structured material of elevations and depressions).
Nevertheless, even if the pads were positively recited—
Barbe teaches the pads of structured material which meets the structural limitations in the claims and performs the functions as recited such as being capable of being for lymphatic drainage (especially in light of being compressive, foam rubber, and/or of a compression bra, see rejection of Claim 1; wherein the existence of pads indicates structured material).
Chardon teaches wherein the pads are formed from a structured material, which comprises elevations and depressions (see Figs. 1, 2; abstract " device (1) includes ... multiple discrete projecting elements. The projecting elements include pieces of foam (3)", wherein the foam makes the material a pad).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Barbe’s pads with the elevations/depressions as taught by Chardon as a known structure for treatment for various types of edema and excessive tissue infiltration (abstract), which Barbe is directed to as well (Col. 1 Lines 25-27).
Regarding Claim 9, Barbe teaches all the claimed limitations as discussed above in Claim 1.
Barbe teaches wherein the lymphatic drainage pads are formed from a plurality of foam cubes, which are held by an upper and a lower layer of a material (see Figs. 2c-3c for upper/lower material of pocket for a pad; Barbe teaches the upper/lower layers of a material which meets the structural limitations in the claims and performs the functions as recited such as being capable of being for lymphatic drainage pads formed from a plurality of foam cubes).
Nevertheless, even if the pads were positively recited—
Barbe teaches the pads which meets the structural limitations in the claims and performs the functions as recited such as being capable of being for lymphatic drainage (especially in light of being compressive, foam rubber, and/or of a compression bra, see rejection of Claim 1).
Chardon teaches wherein pads are formed from a plurality of foam cubes, which are held by an upper and a lower layer of a material (see Figs. 1, 2; abstract " device (1) includes ... multiple discrete projecting elements. The projecting elements include pieces of foam (3)", wherein the foam makes the device a pad),
which are held by an upper and a lower layer of a material (see Figs. 1, 2; abstract " The projecting elements include pieces of foam (3) spaced apart [from] one another and integral with the first web (5). The pieces of foam are compressed between the first web (5) and a second web (7) of soft material, the two webs mutually adhering between the projecting elements. The device is useful for treating various types of edemas and excessive tissue infiltration").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Barbe’s pads with the foam cubes to be held as recited as taught by Chardon as a known structure for treatment for various types of edema and excessive tissue infiltration (abstract), which Barbe is directed to as well (Col. 1 Lines 25-27).
As best understood in light of the 112(b) rejections--Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Barbe-Vicuna et al (USPN 5800245), herein Barbe, in view of Chardon-Bras et al (US Publication 2015/0209217), herein Chardon, further in view of Kornas (USPN 9596892).
Regarding Claim 10, modified Barbe teaches all the claimed limitations as discussed above in Claim 9.
Modified Barbe further teaches wherein the foam cubes have an edge length of 3-15 mm (as aforementioned—the foam cubes are functional; Barbe-- Col. 6 Lines 2-4 "The shape of the compression pad...can be determined depending on the area to be treated"; Chardon-- [0033] "size and shape of the blocks vary according to the pathology…in the embodiment shown, the pieces of foam are in the form of regular blocks of height h"; [0033] "height h preferably varies from 8 to 12 mm").
wherein the edge length is 4-6mm (as aforementioned, the foam cubes are functional and therefore are capable of being such an edge length).
Nevertheless, even if the foam cubes were positively recited—
Barbe teaches the pads which meets the structural limitations in the claims and performs the functions as recited such as being capable of being for lymphatic drainage (especially in light of being compressive, foam rubber, and/or of a compression bra, see rejection of Claim 1).
Kornas teaches wherein foam cubes of a pad have an edge length of 4-6 mm (see Fig. 1A; abstract "textured bra insert/s"; Col. 1 Lines 18-22 "people today want to augment, shape, or enhance their breast appearance for a variety of reasons and applications...experiencing a mastectomy"; Col. 4 Lines 32-35 "raised pattern 330 (texture) may be formed by using evenly spaced…square…shapes"; Col. 4 Line 65-Col. 5 Line 1 "size of the 'raised pattern'…may be…0.1875 inches in height 320 (4.763 mm)"; Col. 6 Lines 26-27 “padding layer may be…foam”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Barbe’s foam cubes to be the edge length as recited by Kornas as a known size for inserts to stay in place, especially in breast surgery/mastectomy applications (Col. 3 Lines 27-35; Col. 1 Lines 18-22), which both Barbe and Chardon are directed to (see aforementioned motivations).
As best understood in light of the 112(b) rejections--Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Barbe-Vicuna et al (USPN 5800245), herein Barbe, in view of Martz (USPN 6811463).
Regarding Claim 11, Barbe teaches all the claimed limitations as discussed above in Claim 1.
Barbe further teaches wherein several lymphatic drainage pads are able to be inserted over one another (Barbe teaches the compression bra which meets the structural limitations in the claims and performs the functions as recited such as being capable of having several lymphatic drainage pads inserted over another).
Nevertheless, even if the pads were positively claimed—
Barbe teaches the pads which meets the structural limitations in the claims and performs the functions as recited such as being capable of being for lymphatic drainage (especially in light of being compressive, foam rubber, and/or of a compression bra, see rejection of Claim 1).
Martz teaches wherein several pads are able to be inserted over one another (see Fig. 3; abstract "impact resistant woman's brassiere includes two fabric breast cups...two or more pads may be inserted into each breast cup to enhance protection and simulate a greater bust size"; Col. 4 Lines 37-38 "bra layer insert pads 13 or 14 of Fig. 3"; Col. 4 Lines 57-67 "Fig. 4 shows optional use of two discrete layer pads 13 and 14...on top of each other"; "pad 14 alone provides least enhancement. Pad 13 alone provides a medium level, while the use of both pads stacked as shown provides even more separation between layers 11 and 12").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Barbe’s pads to be inserted over one another for breast enhancement, which is known to be desirable after a mastectomy (see extrinsic evidence Kornas USPN 9596892 Col. 1 Lines 18-22), which Barbe is in the context of as well (Col. 1 Lines 9-10).
As best understood in light of the 112(b) rejections--Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Barbe-Vicuna et al (USPN 5800245), herein Barbe.
Regarding Claim 12, Barbe teaches all the claimed limitations as discussed above in Claim 1.
Barbe further teaches wherein the lymphatic pads are cut to size individually with scissors (Barbe teaches the compression bra which meets the structural limitations in the claims and performs the functions as recited such as being capable of having lymphatic pads that were cut to size individually with scissors).
Nevertheless, even if the pads are positively recited—
Barbe teaches the pads which meets the structural limitations in the claims and performs the functions as recited such as being capable of being for lymphatic drainage (especially in light of being compressive, foam rubber, and/or of a compression bra, see rejection of Claim 1).
Barbe still at least suggests wherein the lymphatic pads are cut to size individually with scissors (see claim interpretation; the recitation “cut to size individually with scissors” is being treated as a product-by-process limitation. Therefore, even if Barbe’s method of providing pads results in different structural characteristics of the end product than other pad providing methods, it still would have been prima facie obvious at the time the invention was made to use the scissor method above as claimed since such a process is a well-known technique in the art. See aforementioned rejection of Claim 1 wherein Barbe has all the structure of Claim 12; in other words, the pads of Barbe teaches the lymphatic pads of Claim 12 because it has the structure of Claim 12).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure and can be used to formulate a rejection if necessary: Pennington et al (USPN 12201166), McCusker (USPN 4607640), Holliday (USPN 6688942), Lucas Gaus et al (USPN 11918058) directed to compression bra with underbust band, two cups, and at least one open pocket arrangement means for pads; Aerts (US Publication 2006/0003668), Hermann (DE 202013011873), Izzo et al (USPN 8562388), Grippaudo (US Publication 2013/0143469), Hepworth (US Publication 2022/0296164) directed to bra with cups and at least one open pocket arrangement means for pads; Sherwood (USPN 4699144), Balow (USPN 3701168) directed to extent of pockets; Casillas (USPN 12127608), Walsh (US Publication 2013/0084776) directed to foam cubes having an edge length of 4-6mm; Marshall et al (US Publication 2015/0044943), Hu (USPN 8808057), Degirmenci (USPN 6213842) directed to layered pads; Howard et al (USPN 3502083) directed to scissored pads; Looney et al (US Publication 2018/0126052), Osetek et al (USPN 9781954), Emmet L Smith (USPN 0492172) directed to bra medial side pocket openings; Kemp-Dorsey (USPN 7448936), Kalmus (USPN 5690537) directed to applied pads; Newman (USPN 7118444) directed to pocket sized for pads.
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/GRACE HUANG/Primary Examiner, Art Unit 3732