DETAILED ACTION
This office action is in response to the amendment filed July 9, 2026 in which claims 1-6, 10-13, 17-23 are presented for examination, claims 7-8 are withdrawn, and claims 9 and 14-16 are canceled.
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 Arguments
Applicant’s First Argument: Objections to the drawings should be withdrawn at least in view of current amendments to the drawings.
Examiner’s Response: Examiner respectfully disagrees. As detailed below, it is noted that Figure 11 as filed on July 9, 2026 introduces new matter (see “Drawings” section, below). As such, the objections to the drawings are maintained, albeit now for the introduction of new matter rather than the omission of “protrusion 314.”
Applicant’s Second Argument: Rejection of claims 1, 12, and 18 under 35 USC 102 over US Pub No. 2022/0269090 Zhovnirovsky et al. should be withdrawn at least in view of current amendments to claims 1, 12, and 18 for cited reasons.
Examiner’s Response: Agreed. The rejection is withdrawn.
Applicant’s Third Argument: The ALTERNATE REJECTION of claim 18 under 35 USC 102 over US Pub No. 2022/0269090 Zhovnirovsky et al. should be withdrawn at least in view of current amendments to claim 18 for cited reasons.
Examiner’s Response: Agreed. The rejection is withdrawn.
Applicant’s Fourth Argument: Rejection of claim 12 under 35 USC 103 over USPN 11,341,864 Lehari in view of US Pub No. 2022/0269090 Zhovnirovsky et al. should be withdrawn at least because it is clear that one of ordinary skill in the art would find no need or reason to modify Lehari and provide the housing of Lehari within an inner cavity of an eye goggle since Lehari discloses that its housing may be “comfortable and not noticeable to the swimmer” and that the rejection therefore constitutes improper hindsight reasoning because it is relying on a secondary reference to modify a primary reference to solve a problem not found in the primary reference.
Examiner’s Response: Examiner respectfully disagrees and maintains that it would have been obvious to one of ordinary skill in the art to configure the housing of the swim race data capture system of Lehari to be retained within an inner cavity of an eye goggle as taught by Zhovnirovsky because a swim race data capture system where the housing is included in an inner cavity of an eye goggle would not require the additional housing worn on the back of the wearer’s head as in Lehari, which may cause additional drag in the water while swimming and an additional pressure point on the back of the wearer’s head. That Lehari indicates that the housing may be “comfortable and not noticeable to the swimmer” does not eliminate the obvious drawbacks of attaching an additional housing to the back of the head of the wearer while engaging in race swimming, in particular the drag that such a structure would create through the water as well as the potential for the wearer to feel the structure against their skin. Applicant’s arguments suggest that modification of Lehari would be proper only if Lehari specifically recited that its preferred configuration was inherently flawed and would necessarily suffer from the downsides of drag and discomfort. A motivation to combine does not have to be specifically stated in prior art reference. Rather, in considering the disclosure of a reference, it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom (see MPEP 2144.01). The rejection is further amended to note an additional motivation to combine found in Zhovnirovsky. To wit, as noted in paragraphs 0038 and 0040-0041 of Zhovnirovsky, the housing configuration of Zhovnirovsky has the added advantage of being removable from a swim goggle and toolessly interchanged between different types of eyewear including sunglasses for use in non-swimming activities such as cycling or running (paras. 0038 and 0040-0041 of Zhovnirovsky). This is contrary to the housing of Lehari, which is not disclosed as being toolessly interchangeable between different types of eyewear including sunglasses for use in activities other than swimming.
Applicant’s Fifth Argument: Rejection of claim 12 under 35 USC 103 over USPN 11,341,864 Lehari in view of US Pub No. 2022/0269090 Zhovnirovsky et al. should be withdrawn at least because claim 12 has been further amended to recite that the housing includes an outer geometry, the skirt portion includes an inner geometry at least partially defining the pocket, and the outer geometry and the inner geometry correspond with one another.
Examiner’s Response: Examiner respectfully disagrees. It is noted there are clear structural distinctions between the housing and eye goggle configuration of the invention of the instant application versus the housing and eye goggle configuration of Zhovnirovsky. However, it is respectfully asserted that, inasmuch as currently claimed, the housing and eye goggle configuration of Zhovnirovsky properly renders obvious the very broadly recited limitations in claim 12 that the housing and the eye goggle include surfaces having respective contours corresponding to one another and that inner surfaces of the eye goggle define a pocket. In particular, it is respectfully noted that the eye goggle in claim 12 is recited functionally and not positively (i.e., “wherein the housing is configured to be retained within an inner cavity of an eye goggle in a fixed position relative to the eye goggle … wherein the housing is configured to be retained within an inner cavity of an eye goggle…”), which is made more clear by claim 13 positively reciting the eye goggle (i.e., “The swim race data capture system of claim 12, comprising the eye goggle…”). As such, to properly read on independent claim 12, the housing merely needs to be capable of being retained within an inner cavity of an eye goggle in a fixed position relative to the eye goggle and to comprise a plurality of outer surfaces each comprising a respective outer contour capable of corresponding to an eye goggle with the recited structural elements. As depicted in Figures 2A-2C, housing (12) of swim race data capture system (10) of Zhovnirovsky is capable of being retained within an inner cavity of an eye goggle in a fixed position relative to the eye goggle and includes a plurality of outer surfaces each comprising a respective outer contour that would be capable of corresponding to an eye goggle with corresponding recited structural elements. The rejection is maintained.
Drawings
The drawings were received on July 9, 2026. These drawings are unacceptable. Figure 11 has been amended to include “protrusion 314.” This amendment to Figure 11 constitutes new matter because although the specification provides support for the existence of “protrusion 314,” it does not provide sufficient support for the precise details of the “protrusion 314” added to Figure 11 including, inter alia, the particular size, shape, and precise location of the purported “protrusion 314.”
Claim Objections
Claim 23 is objected to because of the following informalities: Line 4 of claim 23 appears to include a superfluous space between the word “goggle” and the period.
Appropriate correction is required.
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.
Claims 1-2, 10-12, 17-18, and 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over USPN 11,341,864 Lehari in view of US Pub No. 2022/0269090 Zhovnirovsky et al.
To claim 1, Lehari discloses a swim race data capture system (10) (see Figures 1-13; col. 10, line 23 – col. 29, line 29), comprising:
an eye goggle configured to be biased against a face of a wearer and to circumscribe an eye of the wearer, wherein the eye goggle defines an inner cavity (see especially Figure 7; col. 4, lines 53-63); and
a sensor system (12) wherein the sensor system comprises an inertial measurement unit (see especially Figures 5-11; col. 10, line 23 – col. 11, line 12), and
wherein the swim race data capture system does not include a display configured to project light from the inner cavity in an operational configuration of the swim race data capture system (see Figures 10-11; col. 11, lines 4-12; col. 12, lines 58-67; Lehari discloses embodiments which rely on audio user outputs instead of a display and therefore lack a display).
Lehari discloses a swim race data capture system (10) comprising a sensor system (12) that may be detachable from eye goggles and may be provided in other configurations in different embodiments (col. 10, line 44 – col. 11, line 12).
Lehari does not expressly disclose a swim race data capture system wherein the sensor system is configured to be removably disposed within the inner cavity in a fixed position relative to the eye goggle.
However, Zhovnirovsky teaches a swim race data capture system (10) (see Figures 1-13; paras. 0037-0091), comprising a sensor system (12) (see Figures 2A-2C; para. 0045) wherein the sensor system is configured to be removably disposed within an inner cavity in a fixed position relative to an eye goggle (14) (see Figures 2A-2C; paras. 0045-0047; at least portions of sensor system 12 are configured to be disposed within the inner cavity).
Lehari and Zhovnirovsky teach analogous inventions in the field of swim data race capture systems. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the sensor system of the swim race data capture system of Lehari to be retained within an inner cavity of an eye goggle as taught by Zhovnirovsky because Zhovnirovsky teaches that this configuration is known in the art. It would further have been obvious to one of ordinary skill in the art that a swim race data capture system where the sensor system is included in an inner cavity of an eye goggle would not require the additional housing worn on the back of the wearer’s head as in Lehari, which may cause additional drag in the water while swimming and an additional pressure point on the back of the wearer’s head. It would additionally further have been obvious to one of ordinary skill in the art to modify the system of Lehari to include the form factor of the system of Zhovnirovsky because Zhovnirovsky teaches that this configuration allows the system to be removable from a swim goggle and toolessly interchanged between different types of eyewear including sunglasses for use in non-swimming activities such as cycling or running (paras. 0038 and 0040-0041 of Zhovnirovsky).
To claim 2, the modified invention of Lehari (i.e., Lehari in view of Zhovnirovsky, as detailed above) further teaches a swim race data capture system wherein the sensor system comprises a housing, the inertial measurement unit is contained within the housing, and the housing is configured to be removably disposed within the inner cavity (see Figures 2A-2C and paras. 0037 and 0045-0047 of Zhovnirovsky).
To claim 10, the modified invention of Lehari (i.e., Lehari in view of Zhovnirovsky, as detailed above) further teaches a swim race data capture system wherein the sensor system comprises a battery disposed within the housing and a memory device (52 of Zhovnirovsky) disposed within the housing, the inertial measurement unit is communicatively coupled to the memory device, the inertial measurement unit is configured to capture data indicative of a head position of the wearer, and the memory device is configured to store the data (paras. 0048, 0055, 0057-0059 of Zhovnirovsky).
To claim 11, the modified invention of Lehari (i.e., Lehari in view of Zhovnirovsky, as detailed above) further teaches a swim race data capture system wherein the sensor system comprises communication circuity configured to wirelessly transmit the data stored on the memory device to an external device, and the inertial measurement unit comprises an accelerometer and a gyroscope (paras. 0042-0044, 0055, 0057 of Zhovnirovsky).
To claim 12, Lehari discloses a swim race data capture system (10) (see Figures 1-13; col. 10, line 23 – col. 29, line 29), comprising:
a housing (12) (see especially Figures 5-11; col. 10, line 44 – col. 12, line 67; col. 16, line 36 – col. 18, line 13);
a printed circuit board (64) disposed within the housing (see Figure 6; col. 16, lines 37-49);
an accelerometer disposed within the housing and communicatively coupled to the printed circuit board (col. 16, line 36 – col. 18, line 13);
a gyroscope disposed within the housing and communicatively coupled to the printed circuit board (col. 16, line 36 – col. 18, line 13); and
a battery (66) disposed within the housing and configured to supply power to the accelerometer and the gyroscope (see Figure 6; col. 16, line 36 – col. 18, line 13),
wherein the swim race data capture system does not include a display configured to project light from the housing (see Figures 10-11; col. 11, lines 4-12; col. 12, lines 58-67; Lehari discloses embodiments which rely on audio user outputs instead of a display and therefore lack a display).
Lehari discloses a swim race data capture system (10) comprising a housing (12) that may be detachable from eye goggles and may be provided in other configurations in different embodiments (col. 10, line 44 – col. 11, line 12).
Lehari does not expressly disclose a swim race data capture system wherein the housing is configured to be retained within an inner cavity of an eye goggle in a fixed position relative to the eye goggle in an installed configuration of the housing within the eye goggle.
However, Zhovnirovsky teaches a swim race data capture system (10) (see Figures 1-13; paras. 0037-0091), comprising a housing (see Figures 2A-2C; para. 0045) wherein the housing is configured to be retained within an inner cavity of an eye goggle (14) in a fixed position relative to the eye goggle in an installed configuration of the housing within the eye goggle (see Figures 2A-2C; paras. 0045-0047), wherein the housing comprises a plurality of outer surfaces, each outer surface of the plurality of outer surfaces comprises a respective outer contour (see Figures 2A-2C; paras. 0045-0047; as depicted in Figures 2A-2C, the outer surfaces of housing 12 includes a variety of outer contours on its outer surfaces).
Lehari and Zhovnirovsky teach analogous inventions in the field of swim data race capture systems. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the housing of the swim race data capture system of Lehari to be capable of being retained within an inner cavity of an eye goggle as taught by Zhovnirovsky because Zhovnirovsky teaches that this configuration is known in the art. It would further have been obvious to one of ordinary skill in the art that a swim race data capture system where the housing is included in an inner cavity of an eye goggle would not require the additional housing worn on the back of the wearer’s head as in Lehari, which may cause additional drag in the water while swimming and an additional pressure point on the back of the wearer’s head. It would additionally further have been obvious to one of ordinary skill in the art to modify the housing of the system of Lehari to include the form factor of the system of Zhovnirovsky because Zhovnirovsky teaches that this configuration allows the system to be removable from a swim goggle and toolessly interchanged between different types of eyewear including sunglasses for use in non-swimming activities such as cycling or running (paras. 0038 and 0040-0041 of Zhovnirovsky).
It is respectfully noted that the limitation “corresponding to a respective inner contour of a corresponding inner surface of a plurality of inner surfaces defining a pocket of the eye goggle” is functional and does not positively recite a structural limitation but instead requires an ability to so perform and/or function. As the modified invention of Lehari (i.e., Lehari in view of Zhovnirovsky, as detailed above) teaches that structure of the swim race data capture system as claimed, there would be a reasonable expectation for the swim race data capture system of the modified invention of Lehari to perform such function.
To claim 17, the modified invention of Lehari (i.e., Lehari in view of Zhovnirovsky, as detailed above) further teaches a swim race data capture system wherein the swim race data capture system comprises a memory device disposed within the housing, the accelerometer, the gyroscope, or both are configured to capture data indicative of a head position of a wearer of the eye goggle, and the memory device is configured to store the data (paras. 0048, 0055, 0057-0059 of Zhovnirovsky).
To claim 18, Lehari discloses a swim race data capture system (10) (see Figures 1-13; col. 10, line 23 – col. 29, line 29), comprising:
an eye goggle configured to be biased against a face of a wearer and to circumscribe an eye of the wearer, wherein the eye goggle comprises a front lens portion and a frame portion extending from the front lens portion, the front lens portion and the frame portion cooperatively define an inner cavity configured to be exposed to the eye of the wearer in an operational configuration of the eye goggle (see especially Figure 7; col. 4, lines 53-63); and
a sensor system, wherein the sensor system comprises:
a housing (12) (see especially Figures 5-11; col. 10, line 44 – col. 12, line 67; col. 16, line 36 – col. 18, line 13);
an inertial measurement unit disposed within the housing (col. 16, line 36 – col. 18, line 13); and
a memory device disposed within the housing and communicatively coupled to the inertial measurement unit (col. 14, lines 31-52),
wherein the swim race data capture does not include a display disposed within the housing and configured to project light from the housing in the operational configuration of the eye goggle (see Figures 10-11; col. 11, lines 4-12; col. 12, lines 58-67; Lehari discloses embodiments which rely on audio user outputs instead of a display and therefore lack a display).
Lehari discloses a swim race data capture system (10) comprising a sensor system that may be detachable from eye goggles and may be provided in other configurations in different embodiments (col. 10, line 44 – col. 11, line 12).
Lehari does not expressly disclose a swim race data capture system wherein the sensor configured to be removably disposed within the inner cavity of an eye goggle and wherein the housing is configured to be coupled to the eye goggle within the inner cavity in a fixed position relative to the eye goggle.
However, Zhovnirovsky teaches a swim race data capture system (10) (see Figures 1-13; paras. 0037-0091), comprising a sensor system (see Figures 2A-2C; para. 0045) wherein the sensor configured to be removably disposed within the inner cavity of an eye goggle (14) and wherein the housing is configured to be coupled to the eye goggle within the inner cavity in a fixed position relative to the eye goggle (see Figures 2A-2C; paras. 0045-0047).
Lehari and Zhovnirovsky teach analogous inventions in the field of swim data race capture systems. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the sensor system of the swim race data capture system of Lehari to be retained within an inner cavity of an eye goggle as taught by Zhovnirovsky because Zhovnirovsky teaches that this configuration is known in the art. It would further have been obvious to one of ordinary skill in the art that a swim race data capture system where the sensor system is included in an inner cavity of an eye goggle would not require the additional housing worn on the back of the wearer’s head as in Lehari, which may cause additional drag in the water while swimming and an additional pressure point on the back of the wearer’s head. It would additionally further have been obvious to one of ordinary skill in the art to modify the system of Lehari to include the form factor of the system of Zhovnirovsky because Zhovnirovsky teaches that this configuration allows the system to be removable from a swim goggle and toolessly interchanged between different types of eyewear including sunglasses for use in non-swimming activities such as cycling or running (paras. 0038 and 0040-0041 of Zhovnirovsky).
To claim 20, the modified invention of Lehari (i.e., Lehari in view of Zhovnirovsky, as detailed above) further teaches a swim race data capture system wherein the inertial measurement unit comprises an accelerometer and a gyroscope (paras. 0055, 0057 of Zhovnirovsky).
To claim 21, the modified invention of Lehari (i.e., Lehari in view of Zhovnirovsky, as detailed above) further teaches a swim race data capture system wherein the housing comprises a protrusion extending from an outer surface of the plurality of outer surfaces of the housing (see Figures 2A-2C of Zhovnirovsky; various portions of housing 12 of Zhovnirovsky include areas which protrude and can therefore be considered a “protrusion”).
It is respectfully noted that the limitation “configured to engage with an inner surface of the plurality of inner surfaces defining the pocket of the eye goggle” is functional and does not positively recite a structural limitation but instead requires an ability to so perform and/or function. As the modified invention of Lehari (i.e., Lehari in view of Zhovnirovsky, as detailed above) teaches that structure of the swim race data capture system as claimed, there would be a reasonable expectation for the swim race data capture system of the modified invention of Lehari to perform such function.
Allowable Subject Matter
Claims 3-6, 13, 19, and 22-23 are objected to as being dependent upon a rejected base claim but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
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.
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/F Griffin Hall/Primary Examiner, Art Unit 3732
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