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 .
Election/Restrictions
Applicant’s election without traverse of Invention I in the reply filed on November 19, 2025 is acknowledged.
Applicant's election with traverse of Species A, Species C, Sub-species C1, Species E, and Sub-species E1 in the reply filed on November 19, 2025 is also acknowledged.
In response to Applicant’s traversal statements regarding generic claims, as Applicant elected Invention I directed to claims 1-13 for examination, at least independent claim 1 is considered generic to the identified species. Alternatively, if Applicant otherwise disagrees and believes that one or more of the identified species should not be read upon by at least claim 1 and excluded from consideration, Applicant should identify such species. Currently no allowable generic claim is present in the application. Upon the allowance of a generic claim, Applicant will be entitled to consideration of claims to additional species which depend from or otherwise require all the limitations of an allowable generic claim for rejoinder as provided by 37 CFR 1.141.
In response to Applicant’s traversal statements regarding the identified mutually exclusive features and their relation to the pending claims, Examiner notes that the election of species was not based on the claims alone, but on the entirety of Applicant’s disclosure including the disclosure of Applicant’s written description and figures. Indeed, following each identified grouping of species, Examiner has provided reasoning for why the species are considered mutually exclusive. Furthermore, Examiner also notes that Applicant appears to merely state that the identified species are not mutually exclusive without providing specific arguments about why the identified species should not be considered mutually exclusive.
In response to Applicant’s traversal statements regarding the identification of multiple groupings of mutually exclusive species and sub-species (i.e., Applicant’s identified “three axes”), Examiner notes that the use of sub-species is merely a way of compactly and succinctly organizing and presenting the multiple mutually exclusive variations of Applicant’s disclosed invention in the restriction requirement for election by Applicant. Indeed, the identified species groupings (i.e., A and B; C and D; and E and F as well as the associated sub-species) are each directed to different groupings of mutually exclusive species disclosed by Applicant. In the restriction requirement, Applicant was required to select a single species from each of these separate groupings of species. Applicant’s election from each grouping together forms the single embodiment of Applicant’s invention to be examined.
In response to Applicant’s traversal statements regarding a showing of search/examination burden for the species, Examiner notes that while the searches of the identified species may overlap, the overall search would be seriously burdensome because Examiner would need to search for each distinct invention or variation. Furthermore, the search is only part of the examination process, and MPEP § 803 states "[i]f the search and examination of all the claims in an application can be made without serious burden". The examination of the application would also be burdensome because Examiner would be required to apply art and rejections to claims (presently presented or added in future prosecution) directed towards each distinct and different species of invention.
Therefore, for at least the above reasons, the requirement is still deemed proper and is therefore made FINAL.
In the reply, Applicant indicated as claims 1-13 as reading upon the elected invention. That said, claims 6-7 and 11-12 are also withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected species, there being no allowable generic or linking claim. More specifically:
Claims 6-7 appear directed to the non-elected central region shapes of Figs. 4B-4D and as discussed at [0044]. Examiner notes that Applicant elected circular central region shapes of Species C and Sub-species C1 (i.e., Fig. 4A).
Claim 11 appears to be directed to the non-elected layer structure embodiment of Fig. 5B and as discussed at [0058]. Examiner notes that Applicant elected the layer structure of Fig. 5A as described in Species E and Sub-species E1.
Claim 12 appears to be directed to the non-elected undulating profile central region shape of Figs. 4B-4D and as discussed at [0042]. Examiner notes that Applicant elected circular central region shapes of Species C and Sub-species C1 (i.e., Fig. 4A).
Applicant timely traversed the restriction (election) requirement in the reply filed on November 19, 2025.
Status of the Claims
As directed by the reply received on November 19, 2025, claims 14-31 were withdrawn from further consideration. Additionally, as a result of Applicant’s election, claims 6-7 and 11-12 were also withdrawn from further consideration. Accordingly, claims 1-31 are currently pending in this application with claims 6-7, 11-12, and 14-31 being withdrawn from further consideration.
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 “second material layer between the inner face of the first material layer and the central region” as recited in claim 10 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered. See rejection under 112(b) below for additional discussion.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description: “232b” in Fig. 4B
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: “290” is not included in Fig. 5B as discussed at least at [0067]
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 – Abstract
Applicant is reminded of the proper content of an abstract of the disclosure.
A patent abstract is a concise statement of the technical disclosure of the patent and should include that which is new in the art to which the invention pertains. The abstract should not refer to purported merits or speculative applications of the invention and should not compare the invention with the prior art.
If the patent is of a basic nature, the entire technical disclosure may be new in the art, and the abstract should be directed to the entire disclosure. If the patent is in the nature of an improvement in an old apparatus, process, product, or composition, the abstract should include the technical disclosure of the improvement. The abstract should also mention by way of example any preferred modifications or alternatives.
Where applicable, the abstract should include the following: (1) if a machine or apparatus, its organization and operation; (2) if an article, its method of making; (3) if a chemical compound, its identity and use; (4) if a mixture, its ingredients; (5) if a process, the steps.
Extensive mechanical and design details of an apparatus should not be included in the abstract. The abstract should be in narrative form and generally limited to a single paragraph within the range of 50 to 150 words in length.
See MPEP § 608.01(b) for guidelines for the preparation of patent abstracts.
The abstract of the disclosure is objected to because at least the first sentence of the abstract refers to the purported merits of the invention and compares the invention with the prior art (e.g., “lighter weight”, “more sustainable”, “more comfortable”). It is suggested that the first sentence of the abstract be removed. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Specification – Disclosure
The disclosure is objected to because of the following informalities:
At least at [0026], [0072], and [0075], reference is made to seemingly non-existent Fig. 5E. Fig. 5E is also not included in the brief description of the drawings.
At [0034], “back shoulder straps 162” should read “back shoulder straps 164”
At [0036], “hole170” should read “hole 170”
At [0063], “UV light” should read “ultraviolet (UV) light”
At [0069], “foam layer 200” should read “foam layer 270”
Appropriate correction is required.
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 1-5, 8-10, and 13 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 1 recites the limitation “a laminate affixed adjacent the inner face and comprising a peripheral region that at least partially circumscribes a central region and that is thinner than the central region” at lines 4-6. As several structures were previously introduced in the claim, it is unclear to which structure the central region belongs. Therefore, the metes and bounds of the claim are unclear, and the claim is rendered indefinite. Based on Applicant’s disclosure, it is suggested that the limitation instead read “a laminate affixed adjacent the inner face, the laminate comprising a peripheral region and a central region at least partially circumscribed by the peripheral region, the peripheral region being thinner than the central region”. For the purposes of examination, the limitation will be interpreted as best can be understood according to the suggested language above when applying prior art.
Claim 8 recites the limitation “the laminate outer face is flat at a portion of the outer face” at line 5. It is unclear if “the outer face” is meant to refer back to the laminate outer face or the outer face of the first material layer introduced in claim 1. If meant to refer back to the outer face of the first material layer, it is unclear how the laminate can be at a portion of the outer face when it was previously recited that the laminate is affixed adjacent the inner face. Therefore, the metes and bounds of the claim are unclear, and the claim is rendered indefinite. Based on Applicant’s disclosure, it is suggested that the limitation instead read “the laminate outer face is flat at a portion of the laminate outer face”. For the purposes of examination, the limitation will be interpreted as best can be understood according to the suggested language above when applying prior art.
Claim 10 recites the limitation “a second material layer between the inner face of the first material layer and the central region” at lines 1-2. It is unclear what relative positioning is intended between the recited layer and region, as the terms are not readily comparable. For example, a layer can extend as a plane while a region is broader and can potentially extend in three dimensions. Therefore, the metes and bounds of the claim are unclear, and the claim is rendered indefinite. As best can be understood based on Applicant’s disclosure (including those embodiments shown in the drawings), it is suggested that the limitation instead read “a second material layer between the inner face of the first material layer and a layer of the laminate”. For the purposes of examination, the limitation will be interpreted as best can be understood according to the suggested language above when applying prior art.
Claims 2-5, 8-10, and 13 are similarly rejected for being dependent on a rejected claim.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-5, 8-10, and 13, as best can be understood, are rejected under 35 U.S.C. 103 as being unpatentable over US 2022/0248775 to Todaro et al. (hereinafter, “Todaro”) in view of US 2006/0030238 to Jagaric et al. (hereinafter, “Jagaric”).
Regarding claim 1, Todaro teaches an upper-body support garment (See Todaro, Figs. 1-7; brassiere (10); abstract) comprising: a chest-covering portion comprising: a first material layer comprising an outer face and an inner face (See Todaro, Figs. 1-7; portion of brassiere (10) comprising outer layer (50) and breast cup (16) capable of covering a chest of a wearer; outer layer (50) includes an outer face and inner face; Examiner notes that the term "portion" is very broad and merely means "a section or quantity within a larger thing; a part of a whole" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)); and a laminate affixed adjacent the inner face (See Todaro, Figs. 1-7; breast cup (16) is a laminated structure and is affixed adjacent inner face of outer layer (50); Examiner notes that the term "adjacent" is very broad and merely means "close to; lying near". (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)) and comprising a peripheral region that at least partially circumscribes a central region (See Todaro, Figs. 1-7; peripheral region of breast cup (16) adjacent upper, lower, and underarm edges (18, 20, 22) of breast cup and surrounding an interior central region of breast cup (16); Examiner notes that the term "region" is very broad and merely means "any large, indefinite, and continuous part of a surface or space" (Defn. No. 1 of "Collins English Dictionary – Complete and Unabridged, 12th Edition 2014" entry via TheFreeDictionary.com)); wherein the first material layer is affixed to the peripheral region along a seam (See Todaro, Figs. 1-7; outer layer (50) is bonded to at least upper and underarm edges (18, 22) of breast cup (16); [0060]).
Although Todaro teaches the peripheral and central regions, Todaro is silent to the peripheral region being thinner than the central region.
However, Jagaric, in a related upper body support garment art, is directed to a breast-covering garment having varying thickness across a bread pad (See Jagaric, Figs. 1-9; abstract). More specifically, Jagaric teaches a peripheral region being thinner than the central region (See Jagaric, Figs. 7-9; formed pads have a central, summit region (17) surrounded by a thinner peripheral region (19); [0052]).
It would have been obvious for one of ordinary skill in the art at the time of the effective filing date of the invention to have a thicker central region in the breast cup of Todaro as disclosed by Jagaric for a variety of reasons including for example, but not limited to, providing a thicker portion to conceal the usual location of the nipple of a wearer when the garment is worn (See Jagaric, [0006], [0022]; abstract).
Regarding claim 2, the modified upper body support garment of Todaro (i.e., Todaro in view of Jagaric, as discussed with respect to claim 1 above) further teaches wherein the laminate comprises a first laminate layer, a second laminate layer, and a foam layer between the first laminate layer and the second laminate layer (See Todaro, Fig. 3; breast cup (16) includes foam layer (34) between inner liner (30) and outer liner (32); layers (30, 32, 34) are laminated together; [0045]).
Regarding claim 3, the modified upper body support garment of Todaro (i.e., Todaro in view of Jagaric, as discussed with respect to claims 1-2 above) further teaches wherein the laminate further comprises a perimeter terminal edge around the peripheral region, and wherein the perimeter terminal edge is affixed to the first material layer along the seam (See Todaro, Figs. 1-7; breast cup (16) includes perimeter edge around outside of peripheral region; outer layer (50) is bonded to at least upper and underarm edges (18, 22) of breast cup (16); [0060])
Regarding claim 4, the modified upper body support garment of Todaro (i.e., Todaro in view of Jagaric, as discussed with respect to claims 1-3 above) further teaches wherein the perimeter terminal edge comprises the foam layer laminated between the first laminate layer and the second laminate layer (See Todaro, Figs. 1-7; foam layer (34) of breast cup (16) is laminated between inner and outer liner layers (30, 32) including at least at upper and underarm edges (18, 22) which form part of perimeter edge).
Regarding claim 5, the modified upper body support garment of Todaro (i.e., Todaro in view of Jagaric, as discussed with respect to claims 1-4 above) further teaches wherein the perimeter terminal edge is affixed to the first material layer along the seam and around an entirety of the laminate (See Todaro, Figs. 1-7; outer layer (50) is bonded directly to upper and underarm edges (18, 22) of breast cup (16) and indirectly to lower edge (20) of breast cup (16) via chest band (12)); [0054], [0060]).
Regarding claim 8, the modified upper body support garment of Todaro (i.e., Todaro in view of Jagaric, as discussed with respect to claim 1 above) further teaches wherein: the laminate comprises a laminate outer face and a laminate inner face (See Todaro, Fig. 3; laminated breast cup (16) includes outer face of outer liner (32) and inner face of inner liner (30)); the laminate inner face comprises a shoulder that transitions from the peripheral region to the central region (inner face of the breast cup of the modified upper body support garment of Todaro, as discussed above, includes thicker central region that tapers down to a thinner peripheral region surrounding the central region thereby forming a shoulder as seen in Figs. 7-8 of Jagaric); and the laminate outer face is flat at a portion of the outer face that is opposite the shoulder (outer face opposite the shoulder of the breast cup of the modified upper body support garment of Todaro, as discussed above, includes a smooth, even outer surface; the outer face and overall laminate structure is formed of flexible material and is manipulatable to being laid flat inasmuch as Applicant’s invention when in an unworn state).
Regarding claim 9, the modified upper body support garment of Todaro (i.e., Todaro in view of Jagaric, as discussed with respect to claim 1 above) further teaches wherein: the peripheral region comprises a thickness in a range of about 0.8 mm to about 1.2 mm (See Jagaric, Figs. 1-9; thinner peripheral region is 1 mm in thickness; [0052]); and the central region comprises a thickness in a range of about 1.8 mm to about 2.2 mm (See Jagaric, Figs. 1-9; thicker central region includes 2 mm transition region before tapering down to 1 mm thick peripheral region; [0052]).
Regarding claim 10, the modified upper body support garment of Todaro (i.e., Todaro in view of Jagaric, as discussed with respect to claim 1 above) further teaches a second material layer between the inner face of the first material layer and the central region (See Todaro, Fig. 3; breast cup (16) includes outer liner (32) positioned between outer layer (50) and foam layer (34); see rejection under 112(b) above for additional discussion and interpretation).
Regarding claim 13, the modified upper body support garment of Todaro (i.e., Todaro in view of Jagaric, as discussed with respect to claim 1 above) further teaches wherein a perimeter of the central region is fully circumscribed by the peripheral region (See Todaro, Figs. 1-7; peripheral region of breast cup (16) adjacent upper, lower, and underarm edges (18, 20, 22) of breast cup fully surrounds a perimeter of the interior central region of breast cup (16) as discussed in the modification above).
Conclusion
The prior art made of record and not relied upon is considered pertinent to Applicant's disclosure. US 2008/0153388 to Liu; and US 2020/0085113 to Rendone are each directed to layered upper body support garment structures.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW R MARCHEWKA whose telephone number is (571) 272-4038. The examiner can normally be reached M-F: 9:00AM-5:00PM EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, CLINTON T 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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/MATTHEW R MARCHEWKA/Examiner, Art Unit 3732