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 .
Response to Amendment
Applicant’s amendment, filed 27 January 2026, is reviewed and entered. This Office Action is a final rejection.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Status of Claims
Amended
26, 28, 35-37
Withdrawn
40-45
Canceled
1-25, 27, and 29
Pending
26, 28, 30-45
Presented for Examination
26, 28, 30-39
Response to Arguments
Applicant's arguments filed 27 January 2026 have been fully considered but they are not persuasive.
Claim Objections
The objections of claims 35-37 are overcome by the amendments and withdrawn. The objections of claim 38 are not addressed by the response and therefore they stand.
102 Rejections
The arguments are drawn to newly amended subject matter and are addressed in the rejections below.
103 Rejections
Applicant argues there is no reason to combine Blair and Murdock because Blair has a crotch member removable for laundering but Blair is not concerned with a wearer being able to go to the bathroom.
This is not persuasive. Even if Blair is not concerned with a wearer going to the bathroom, one of ordinary skill would expect that if worn long enough, eventually the human wearer will need to go to the bathroom. One of ordinary skill would recognize that combining the teachings of Blair and Murdock would advantageously result in a garment wearable with or without a crotch insert (e.g. a wearer may first wear the garment with the insert and later wear the garment without the insert in order to have a fresh crotch portion without having to launder the garment or the crotch insert) that would enable the wearer to use the bathroom with or without removing the garment.
The remaining arguments are drawn to newly amended subject matter and are addressed in the rejections below.
In light of the above, the rejections are believed to be proper.
Election/Restrictions
Applicant's election with traverse of Species B, shown in FIGS 5-9 and 11 in the reply filed on 23 October 2025 is acknowledged.
Claim Objections
Claims 38 is objected to because of the following informalities: for proper antecedent bases, “the” should be amended to –a—or –an—in the following recitations. Appropriate correction is required.
Claim 38, “the elongation” (twice recited), “the length direction,” “the width direction.”
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 26, 28, 30-31 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 of U.S. Patent No. 12,121,075. Although the claims at issue are not identical, they are not patentably distinct from each other because reference claims 1-6 have all of the claim limitations of present claims 26-31; therefore, reference claims 1-6 anticipated present claims 26-31.
Present App 18/893,185
Reference U.S. Patent No. 12,121,075
26. (Currently Amended) A garment comprising:a front body panel;a back body panel;left and right leg portions;a crotch region positioned between the front and back body panels and between the left and right leg portions;a gusset panel extending between the front and back body panels through the crotch region;a left side cover panel extending between the front and back body panels and inward from the left leg portion, the left side cover panel comprising a left front cover panel edge attached to the front body panel, [[and]] a left back cover panel edge attached to the back body panel, and a left inside access edge; anda right side cover panel extending between the front and back body panels and inward from the right leg portion, the right side cover panel comprising a right front cover panel edge attached to the front body panel, [[and]] a right back cover panel edge attached to the back body panel, and a right inside access edge spaced from or directly adjacent to the left inside access edge;wherein a space between the left inside access edge and the right inside access edge is narrower than a space between the left and right leg portions;wherein the left and right side cover panels at least partially overlap the gusset panel.
1. A garment comprising: a front body panel; a back body panel; left and right leg portions; a gusset panel comprising a front gusset panel edge attached to the front body panel by a stitched front seam, a back gusset panel edge attached to the back body panel by a stitched back seam, a free left lateral gusset panel edge unattached to the front body panel or the back body panel, and a free right lateral gusset panel edge unattached to the front body panel or the back body panel; a left side cover panel extending between the front and back body panels and inward from the left leg portion; a right side cover panel extending between the front and back body panels and inward from the right leg portion; the left side cover panel comprising a left front cover panel edge attached to the front body panel and a left back cover panel edge attached to the back body panel; and the right side cover panel comprising a right front cover panel edge attached to the front body panel and a right back cover panel edge attached to the back body panel; wherein the left and right side cover panels at least partially overlap the gusset panel.
2. The garment of claim 1, wherein the left side cover panel has a left inside access edge and the right side cover panel has a right inside access edge spaced from the left inside access edge.
4. The garment of claim 1, wherein the left side cover panel has a left inside access edge and the right side cover panel has a right inside access edge directly adjacent to the left inside access edge.
28. (New) The garment of claim 26, wherein the gusset panel has a gusset panel width, and wherein the left inside access edge and the right inside access edge define an access space having an access space width that is less than the gusset panel width.
3. The garment of claim 2, wherein the gusset panel has a gusset panel width, and wherein the left inside access edge and the right inside access edge define an access space having an access space width that is less than the gusset panel width.
30. (New) The garment of claim 26, wherein the garment has an interior and an exterior opposite the interior, wherein the left side cover panel and the right side cover panel are located on the interior of the garment, and wherein the gusset panel is located on the exterior of the garment.
5. The garment of claim 1, wherein the garment has an interior and an exterior opposite the interior, wherein the left side cover panel and the right side cover panel are located on the interior of the garment, and wherein the gusset panel is located on the exterior of the garment.
31. (New) The garment of claim 26, wherein the garment has an interior and an exterior opposite the interior, wherein the left side cover panel and the right side cover panel are located on the exterior of the garment, and wherein the gusset panel is located on the interior of the garment.
6. The garment of claim 1, wherein the garment has an interior and an exterior opposite the interior, wherein the left side cover panel and the right side cover panel are located on the exterior of the garment, and wherein the gusset panel is located on the interior of the garment.
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 space between the inside access edges and the space between the leg portions (claim 26, the drawings have support for an access space 60 and an access space 66 and it appears one or both of these is the space between the inside access edges, but it is not clear which one or both; however, an “access space” is recited in at least dependent claim 28 suggesting the ”space” and “access space” are different; there is no support in the figures for the space between the leg portions; however, providing an existing figure with a reference number for the space between the leg portions would be sufficient to overcome this objection) must be shown or the feature(s) canceled from the claim(s). 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 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: “wherein a space between the left inside access edge and the right inside access edge is narrower than a space between the left and right leg portions” (claim 26, the specification is silent as to this feature).
Claim Rejections - 35 USC § 112(a)
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 26, 28, 30-39 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The new matter is “wherein a space between the left inside access edge and the right inside access edge is narrower than a space between the left and right leg portions” (claim 26, the disclosure is silent as to this feature).
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 26, 28, 30-39 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 26 is rendered indefinite by the recitation “spaced from or directly adjacent” followed by “space between.” If the inside access edges are directly adjacent, how can there also be a space between them?
Claim Rejections - 35 USC § 102
Claim(s) 26, 28, 30, 33, and 39 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Torchia (US 1469287 A).
As to claim 26, Torchia discloses a garment (bloomers, title) comprising:
a front body panel (FIG 1);
a back body panel (FIGS 2-4);
left and right leg portions (14 and 15 or portions thereof);
a crotch region positioned between the front and back body panels and between the left and right leg portions (region between 14 and 15 and the front and back as shown in FIGS 1-4);
a gusset panel extending between the front and back body panels through the crotch region (21);
a left side cover panel extending between the front and back body panels and inward from the left leg portion (16 is inward of at least portions of the leg portion as shown in FIGS 3-4), the left side cover panel comprising a left front cover panel edge attached to the front body panel and a left back cover panel edge attached to the back body panel (see FIGS, it is noted that all of the component parts of the garment are attached to one another directly or indirectly), and a left inside access edge (see annotated FIG 4 below); and
a right side cover panel extending between the front and back body panels and inward from the right leg portion (17 is inward of at least portions of the leg portion as shown in FIGS 3-4), the right side cover panel comprising a right front cover panel edge attached to the front body panel and a right back cover panel edge attached to the back body panel (see FIGS, it is noted that all of the component parts of the garment are attached to one another directly or indirectly), and a right inside access edge spaced from or directly adjacent to the left inside access edge (see annotated FIG 4 below, the two access edges are spaced from one another to define the edges of opening 20);
wherein a space between the left inside access edge and the right inside access edge is narrower than a space between the left and right leg portions (see annotated FIG 4 below);
wherein the left and right side cover panels at least partially overlap the gusset panel (FIGS 1-2).
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As to claim 28, Torchia discloses the garment of claim 26, wherein the gusset panel has a gusset panel width (see FIGS), and wherein the left inside access edge and the right inside access edge define an access space (20) having an access space width that is less than the gusset panel width (see FIGS, and particularly FIGS 1-2 which show the gusset panel completely conceals the access space).
As to claim 30, Torchia discloses the garment has an interior and an exterior opposite the interior (see figures, the interior faces the wearer when worn and the exterior is opposite the wearer when worn), wherein the left side cover panel and the right side cover panel are located on the interior of the garment, and wherein the gusset panel is located on the exterior of the garment (see figures).
As to claim 33, Torchia discloses the garment of claim 26, wherein the gusset panel comprises hosiery fabric (“rubberized cloth or equivalent material,” page 2 line 10-15, where cloth is synonymous with fabric and the rubberized cloth or equivalent material is capable of being used in hosiery and the term “hosiery” does not lend any particular structure to the fabric).
As to claim 39, Torchia discloses the garment of claim 26, wherein the gusset panel is fixedly attached to each of the front body panel and the back body panel (via snaps 23 and 24 at the front and stitches 22 at the back, and the attachment is fixed unless acted on by an outside force).
Claim Rejections - 35 USC § 103
Claim(s) 26 and 31 is/are rejected under 35 U.S.C. 103 as being unpatentable over Blair (US 2246714 A) in view of Murdock (US 2969068 A).
As to claim 26, Blair discloses a garment (“Lady's undergarment,” title) comprising:
a front body panel (figs 1 and 3);
a back body panel (figs 1 and 3);
left and right leg portions (figs 1 and 3);
a gusset panel comprising a front gusset panel edge attached to the front body panel (crotch member 20, attached via snap fastener elements 32), a back gusset panel edge attached to the back body panel (via snap fastener elements 32), a free left lateral gusset panel edge unattached to the front body panel or the back body panel (fig 2), and a free right lateral gusset panel edge unattached to the front body panel or the back body panel (fig 2).
Blair does not disclose a left side cover panel extending between the front and back body panels and inward from the left leg portion, the left side cover panel comprising a left front cover panel edge attached to the front body panel, [[and]] a left back cover panel edge attached to the back body panel, and a left inside access edge; and
a right side cover panel extending between the front and back body panels and inward from the right leg portion, the right side cover panel comprising a right front cover panel edge attached to the front body panel, a right back cover panel edge attached to the back body panel, and a right inside access edge spaced from or directly adjacent to the left inside access edge;
wherein a space between the left inside access edge and the right inside access edge is narrower than a space between the left and right leg portions.
Murdock teaches a similar garment (“Foundation garment,” title) including left (18) and right (19) leg portions; a left side cover panel extending between the front and back body panels (45) and inward from the left leg portion (the center of the garment being the innermost point), the left side cover panel comprising a left front cover panel edge attached to the front body panel (FIG 1, at 30), a left back cover panel edge attached to the back body panel (FIG 2, at 40), and a left inside access edge (50); and
a right side cover panel extending between the front and back body panels (46) and inward from the right leg portion (the center of the garment being the innermost point), the right side cover panel comprising a right front cover panel edge attached to the front body panel (FIG 1, at 30), a right back cover panel edge attached to the back body panel (FIG 2, at 40), and a right inside access edge (47) spaced from or directly adjacent to the left inside access edge (the inside access edges are directly adjacent);
wherein a space between the left inside access edge and the right inside access edge is narrower than a space between the left and right leg portions (see annotated FIG 2 below).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide the left and right leg portions of Blair with the combination of left and right leg portions and left and right side cover panels taught by Murdock, for the purpose of allowing the wearer to pull “an elongated opening between the leg sections permitting full freedom for performance of natural functions” (Murdock col 2 line 60-65).
Furthermore, providing the cover panels in the crotch region of Blair would result in the left and right side cover panels at least partially overlapping the gusset panel.
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As to claim 31, Blair as modified discloses the garment has an interior and an exterior opposite the interior (Blair figures), wherein the left side cover panel and
the right side cover panel are located on the exterior of the garment (this is the structure that results from the modification presented in the rejection above), and wherein the gusset panel is located on the interior of the garment (this is the structure that results from the modification presented in the rejection above).
Claim(s) 32, 34-38 is/are rejected under 35 U.S.C. 103 as being unpatentable over Torchia (US 1469287 A).
As to claim 32, Torchia does not disclose the garment of claim 26, wherein an elongation of each of the right cover panel and the left cover panel is greater in a width direction than a length direction.
One of ordinary skill would recognize that there are only three options: 1), the elongation is the same in both directions, 2) the elongation is greater in a width direction, or 3) the elongation is greater in a length direction. With there being only three options, one of ordinary skill would be able to arrive at a solution with minimal experimentation. It is noted that Applicant also discloses all of these options as alternative embodiments (page 14 line 1-15), suggesting they are functional equivalents.
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide the claimed elongation, for the purpose of providing a garment that stretches or compresses as desired for the intended end use and aesthetic.
As to claim 34, Torchia does not disclose the garment of claim 26, wherein the gusset panel comprises two or more layers of fabric.
However, Torchia does disclose attaching another layer to 21. Page 2 lines 1-10 discloses attaching a sanitary napkin 25 to the inner face of 21. Therefore, providing a second layer is within the scope of the Torchia reference.
Furthermore, Torchia discloses the purpose of 21 is to prevent staining (page 2 line 10-20) by providing a layer of material between menstrual flow and an outer garment, and one of ordinary skill would recognize that providing an additional layer would provide an additional physical barrier that would improve the ability to prevent staining.
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide the gusset panel with two or more layers of fabric, for the purpose of preventing staining outer garments due to menstrual flow.
As to claim 35, Torchia does not disclose the garment of claim 26, wherein the gusset panel has an elongation of 100-700% in a length direction.
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to provide the gusset panel has an elongation of 100-700% in a length direction, since it is 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.
Furthermore, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide the claimed elongation, for the purpose of providing a garment that stretches or compresses as desired for the intended end use and aesthetic.
As to claim 36, Torchia does not disclose the garment of claim 26, wherein the gusset panel has an elongation of 100-700% in a width direction.
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to provide the gusset panel has an elongation of 100-700% in a width direction, since it is 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.
Furthermore, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide the claimed elongation, for the purpose of providing a garment that stretches or compresses as desired for the intended end use and aesthetic.
As to claim 37, Torchia does not disclose the garment of claim 26, wherein elongation of the gusset panel in a length direction is greater than elongation of a gusset panel in the width direction.
One of ordinary skill would recognize that there are only three options: 1), the elongation is the same in both directions, 2) the elongation is greater in a width direction, or 3) the elongation is greater in a length direction. With there being only three options, one of ordinary skill would be able to arrive at a solution with minimal experimentation. It is noted that Applicant also discloses all of these options as alternative embodiments (page 14 line 1-15), suggesting they are functional equivalents.
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide the claimed elongation, for the purpose of providing a garment that stretches or compresses as desired for the intended end use and aesthetic.
As to claim 38, Torchia does not disclose the garment of claim 26, wherein the elongation of the gusset panel in the length direction is equal to the elongation of the gusset panel in the width direction.
One of ordinary skill would recognize that there are only three options: 1), the elongation is the same in both directions, 2) the elongation is greater in a width direction, or 3) the elongation is greater in a length direction. With there being only three options, one of ordinary skill would be able to arrive at a solution with minimal experimentation. It is noted that Applicant also discloses all of these options as alternative embodiments (page 14 line 1-15), suggesting they are functional equivalents.
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was filed to provide the claimed elongation, for the purpose of providing a garment that stretches or compresses as desired for the intended end use and aesthetic.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SALLY HADEN whose telephone number is (571)272-6731. The examiner can normally be reached M-F 9-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Clinton Ostrup can be reached at 571-272-5559. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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SALLY HADEN
Primary Examiner
Art Unit 3732
/SALLY HADEN/ Primary Examiner, Art Unit 3732