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 .
The amendments filed 10/22/2025 have been entered.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1, 4-7 and 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over US PG Pub No. 2003/0116576 (Lang-Boecker hereinafter) in view of US Patent No. 7,661,636 (Burke, of record).
In re claim 1, with reference to Fig. 1 below, Lang-Boecker discloses: A drinkware accessory strap comprising an outer layer of nylon loop fabric (at 8, see paragraph 0020: “The securing elements 6 may also connect to the other side 7 of the material 4 through connecting elements 8 that may cooperate with connector elements 6”); an inner layer of woven polyester elastic fabric (polyester fabric layer of multilayer material 4, see paragraph 0016) joined to said outer layer in sandwiched relation (i.e. insulating layer of multilayer in paragraph 0016), said inner layer having an end section extending beyond said outer layer; and a length of nylon hook fabric covering said end section of said inner layer for overlapping and attaching to said outer layer to form a closed loop about an item of drinkware (paragraph 0015 and 0020).
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Lang-Boecker fails to disclose wherein the end section is elastically stretchable and extending beyond the outer layer.
However, with reference to Fig. 3, Burke discloses a drink accessory strap, wherein a fastener system (369) is utilized on an elastically stretchable (364) end section of a strap (368) for providing tension to a held drink vessel (column 8, lines 16-27).
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Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to have located an elastically stretchable end section between the hook fastener 6 and remainder of the inner layer of Lang-Boecker as taught in Burke such that the strap can be stretched and snuggly wrapped about a portion of a drink vessel, the fastener system and elastic section combine to hold the system securely wrapped (Burke, column 8, lines 16-27).
In re claim 6, with reference to the Fig. noted above, Lang-Boecker in view of Burke discloses in combination an item of drinkware (“cup” paragraph 0015); and an accessory strap removably mounted about said drinkware and including an outer layer of nylon loop fabric, an inner layer of woven polyester elastic fabric joined to said outer layer in sandwiched relation, said inner layer having an elastically stretchable end section extending beyond said outer layer; and a length of nylon hook fabric covering said end section of said inner layer for overlapping and attaching to said outer layer to form a closed loop about said item of drinkware (as in re claim 1 above).
In re claims 4 and 7, with reference to the Fig. noted above, Lang-Boecker in view of Burke discloses the claimed invention including an accessory item mounted on the outer layer (pocket 10), but not a plurality of accessory items mounted on said outer layer.
However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have duplicated the number of accessories/pockets, since it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). Please note that in the instant application, page 6, applicant has not disclosed any criticality for the claimed limitations.
Further, Burke teaches attaching a plurality of accessory items (182a-c, 184, 186) utilizing Velcro or the like (column 7, lines 4-15).
Therefore, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have duplicated the number of accessories/pockets as taught by Burke, since it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). Please note that in the instant application, page 6, applicant has not disclosed any criticality for the claimed limitations.
In re claim 5, with reference to the Fig. noted above, Lang-Boecker in view of Burke discloses the claimed invention except wherein said outer layer has a length of 14 inches and a width of 1.5 inches and said end section has a length of 0.75 inches.
However, it would have been obvious to one having ordinary skill in the art at the time the invention was made to have modified the rough dimensions of the invention, since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). Please note that in the instant application, page 5, applicant has not disclosed any criticality for the claimed limitations, and that one of ordinary skill would be able to size the drink vessel strap of Lang-Boecker in view of Burke appropriately for extending around a drink vessel.
Further, it would have been obvious to one of ordinary skill in the art at the time of the invention to have modified the dimensions of the invention without affecting the functionality and base purpose thereof, since it has been held that the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device (MPEP 2144.04 IV, A).
In re claim 10, with reference to the Fig. noted above, Lang-Boecker discloses the claimed invention including wherein said elastically stretchable end section creates a tension force pulling said strap against said item of drinkware (Burke, column 8, lines 23-27).
Please note that the claims are directed to apparatus which must be distinguished from the prior art in term of structure rather function [MPEP 2144]. Hence, the functional limitations “said elastically stretchable end section creates a tension force pulling said strap against said item of drinkware“ which are narrative in form have not been given any patentable weight. In order to be given patentable weight, a functional recitation must be supported by recitation in the claim of sufficient structure to warrant the presence of the functional language. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997)
Claim(s) 3 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lang-Boecker in view of Burke as applied to claims 1 and 6 above, and further in view of US Patent No. 2013/0270283 (Yang et al. hereinafter).
In re claims 3 and 9, with reference to the Fig. noted above, Lang-Boecker in view of Burke discloses the claimed invention except a plurality of sections bonded to said inner layer opposite said outer layer for frictionally engaging the item of drinkware.
However, with reference to Figs. 7 and 8 below, Yang et al. discloses a drinkware (111) accessory plurality of sections (204) bonded (“adhered”, paragraph 0067) to an inner layer opposite said outer layer for frictionally engaging an item of drinkware (“anti-slip damping”, paragraph 0067).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the invention to have bonded either integrally or through a known process a plurality of sections to the layer of Lang-Boecker in view of Burke for the purposes of providing friction with the drinkware as taught by Yang et al. in order to preventing slipping and potential spilling of a beverage in the drinkware.
In accordance to MPEP 2113, the method of forming the device is not germane to the issue of patentability of the device itself. Therefore, this limitation has not been given patentable weight. Please note that even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product, i.e the inner layer having frictional sections, does not depend on its method of production, i.e. bonding. In re Thorpe, 227 USPQ 964, 966 (Federal Circuit 1985).
Response to Arguments
Applicant’s arguments with respect to claim(s) 1, 3-7, and 9-10 have been considered but are note persuasive.
Applicant argues that Lang-Boecker does not disclose that the securing elements 8 are of loop fabric.
However, a fair reading of paragraph 0020 teaches that “The securing elements 6 may also connect to the other side 7 of the material 4 through connecting elements 8 that may cooperate with connector elements 6”, and therefore it is easily interpreted that the elements 8 “secure” via a compatible fastening system to the hooks of 6.
Applicant argues that Lang-Boecker does not disclose a sandwiched relation.
However, the “multilayer” of paragraph 0016 is considered to teach the claimed limitation as in re claim 1 above.
Applicant argues that Lang-Boecker does not disclose a hook fabric covering the hook elements 6.
However, this limitation is not claimed (hook fabric covering hook elements) and the argument appears to be in error.
Applicant argues that Yang does not disclose wherein the sections 204 are bonded to an inner layer.
However, the rejection of claim 3 is based upon the combination, and that one would have been motivated to attach sections 204 to an inner layer, and the fact that the sections 204 Yang and inner layer of Lang-Boecker are different materials would further steer one ordinary skill in the art to a bonding process.
No further arguments are presented.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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/ANDREW T KIRSCH/ Primary Examiner, Art Unit 3733