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 .
Claim Objections
Claims 1, 2, 4, 6, 7, 8, 9, 14, 15, 19, and 20 are objected to because of the following informalities:
“For wearing by a user, a pair of shorts with an integral liner comprising…” (claim 1) should read “A pair of shorts for a user, the pair of shorts having an integral liner and comprising…”
“a short” (claims 1, 8, 15) should read “a pair of shorts” or “Shorts”
“the short” (claims 1, 4, 6, 8, 9, 15, 20) should read “the shorts” or “the pair of shorts”
“with integrated liner” (claim 15) should read “with an integrated liner”
Claim 1 includes an extra “and” between the penultimate and ultimate clauses
“the liner’s partial waistband” (claims 1, 8, 14, 15) should read “the partial waistband of the liner” to enhance clarity
“the short’s waistband” (claims 1, 7, 8, 15) should read “the waistband of the shorts” to enhance clarity
“a genital pouch formed into the liner that supports a male’s genitals” (claim 2) should read “a genital pouch formed into the liner, wherein the genital pouch is configured to support the user’s genitals” to enhance clarity and consistency within the claims
“the fly area of the liner the short” (claim 7) should read “the fly area of the liner
“amid-section of a front wall” (claim 14) should read “a mid-section of a front wall”
“a genital pouch shaped to support a male’s genitalia and phallus” (claim 15) should read “a genital pouch configured and shaped to support a user’s genitalia and phallus” to enhance clarity and consistency within the claims
“a central penis-covering portion thereof” (claim 19) should read “a central penis-covering portion of the inner lining” to enhance clarity
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.
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 1-20 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 limitations “wherein the liner’s partial waistband extends along a portion of the front of the liner and is not attached to the shorts” and “the liner’s partial waistband being attached to the shorts’ waistband on either side of the liner’s fly area.” The limitations in combination are indefinite, as the partial waistband is recited to be not attached to the shorts in the first limitation, but also attached to (the waistband of) the shorts in the second limitation, which is contradictory. It is noted that waistband of the shorts still forms part of the shorts themselves. For purposes of examination, the Examiner will interpret the limitation as follows: “wherein the partial waistband of the liner extends along a portion of the front of the liner, wherein a central portion of the partial waistband is not attached to the waistband of the shorts” and “wherein lateral side portions of the partial waistband are attached to the waistband of the shorts on either side of a fly area of the liner” (note incorporation of additional minor amendments for increased clarity as discussed above in the claim objections).
Claim 8 recites corresponding limitations, is likewise indefinite, and will be interpreted in a likewise manner.
Claim 1 recites the limitations “an integral liner” and “a liner.” The limitations in combination are indefinite, as it is unclear whether the integral liner and the liner are the same structure, or form different, separate structures. For purposes of examination, the Examiner will interpret the recitations as referring to the same structure.
Claim 1 also recites the limitations “the liner’s fly area,” “the remaining portion of the liner,” and “the bottom of the short’s waistband.” There is insufficient antecedent basis for these limitations in the claims.
Similarly, claim 8 recites the limitations “the top front of the liner,” “the fly area of the liner,” “the remainder of the waistband” and “the bottom of the short’s waistband.” There is insufficient antecedent basis for these limitations in the claims.
Similarly, claim 15 recites the limitations “the front of the integrated liner,” “the top portion of the integrated liner,” “the bottom of the short’s waistband,” and “the front wall of the integrated liner.” There is insufficient antecedent basis for these limitations in the claims.
Claims 5, 12, and 16 recite the limitation “wherein the liner is constructed from a stretch material instead of a mesh material.” The limitation is indefinite, as many mesh materials have stretch properties. As such, the phrase “instead of a mesh material” is confusing. Furthermore, claims 1, 8, and 15, upon which claims 5, 12, and 16 depend, previously recite wherein the liner is “constructed of a mesh material.” The limitation is indefinite, as it directly contradicts the limitations of claims 1, 8, and 15.
Claim 6 recites the limitation “wherein the stitching of the partial waistband to the short comprises clean stitching the partial waistband to the short.” The limitation is indefinite, as it is unclear what is included or excluded by the term “clean stitching.” It is also unclear what is considered “clean stitching” vs. “unclean stitching,” etc. As such, the metes and bounds of the claim limitation cannot be readily ascertained. For purposes of examination, the Examiner will interpret the limitation as follows, in accordance with at least paragraph 0030 of the specification: “wherein the stitching of the partial waistband to the short comprises clean finish stitching the partial waistband to the short.”
Claim 18 recites the limitations “the scrotum” and “the perineum.” There is insufficient antecedent basis for these limitations in the claims.
Dependent claims are rejected at least for depending from rejected claims.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 5, 12, and 16-17 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
As discussed above, claims 5, 12, and 16 recite the limitation “wherein the liner is constructed from a stretch material instead of a mesh material.” Claims 1, 8, and 15, upon which claims 5, 12, and 16 depend, previously recite wherein the liner is constructed of a mesh material. As such, claims 5, 12, and 16 fail to further include all of the limitations of claims 1, 8, and 15, upon which they depend.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Dependent claims are rejected at least for depending from rejected claims.
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 1-20, as best as can be understood, are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of US Patent No. 12,156,549. Although the claims at issue are not identical, they are not patentably distinct from each other because claims 1-20 of US Patent No. 12,156,549 anticipate each and every limitation of claims 1-20 of the pending application.
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 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.
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, 3-8, and 11-12, as best as can be understood, are rejected under 35 U.S.C. 103 as being unpatentable over Belpaume (FR 2,564,706) in view of Curran (US PG Pub 2016/0095367).
Regarding claim 1, Belpaume discloses a pair of shorts (1) for a user (see Figs. 1-2), the pair of shorts having an integral liner (4) and comprising:
a short (2) having a waistband (5);
a liner (4; see lines 67-98 of Description), the liner having a partial waistband (18, see Figs. 1-2);
wherein the partial waistband of the liner extends along a portion of the front of the liner and is not attached to the shorts (see Figs. 1-2 and lines 80-101 of Description; partial waistband 18 is a “floating” waistband that is not directly attached to outer shorts 2 along its main length);
the partial waistband of the liner being attached to the waistband of the shorts on either side of a fly area of the liner (area of liner 4 that corresponds with/underlaps fly area 21; see Figs. 1-2 lines 80-101 of Description; partial waistband 18 is attached to waistband 5 at opposing attachment points 12, 14 which are located on either side of fly area 21); and
wherein a remaining portion of the liner (top edge 11 of liner 4, excluding partial liner 18) is attached to a bottom of the waistband of the shorts (see Figs. 1-2 and lines 72-98 of Description).
Belpaume substantially discloses the invention as claimed above but fails to specifically disclose wherein the shorts are constructed of a non-stretch material, and the liner is constructed of a mesh material.
However, Curran teaches a pair of shorts (4, see paragraphs 0036 and 0048) having a liner (44, see paragraph 0128-130), wherein the shorts are made of any suitable fabric such as non-stretch woven fabric, stretch woven fabric, or stretch knit fabric (see paragraph 0114; the Examiner notes that non-stretch woven fabrics are generally sturdier and more durable than stretch wovens or knits), and the liner is constructed of a mesh material (see paragraph 0130), so as to provide additional ventilation (see paragraph 0130).
Therefore, based on Curran’s teachings, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have formed Belpaume’s shorts from a non-stretch material and to have formed Belpaume’s liner from a mesh material, as doing so would provide a sturdier and/or more durable fabric for the outer shorts while also providing additional ventilation inside the shorts. Furthermore, it has been held to be 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.
Regarding claim 3, the modified pair of shorts of Belpaume (i.e., Belpaume in view of Curran) is further disclosed wherein the partial waistband (18 of Belpaume) of the liner (4 of Belpaume) is constructed from a stretch material (see lines 57-58 and 101 of Description of Belpaume).
Regarding claim 4, Belpaume and Curran together teach the limitations of claim 1, as discussed above, and further teach a partial waistband (18 of Belpaume) that is capable of curving downward from the waistband (5 of Belpaume) of the short, at least in use, due to the position and elasticity of the partial waistband (see Figs. 1-2 and lines 57-58 and 91-104 of Description of Belpaume). It has been held 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. Ex parte Masham, 2 USPQ2d 1647 (1987). See MPEP 2114 (II).
Regarding claim 5, Belpaume, Curran, and Lindquist together teach the limitations of claim 1, as discussed above. Belpaume fails to further disclose wherein the liner is constructed of a stretch material instead of a mesh material.
However, Curran further teaches wherein various woven stretch fabrics and knit stretch fabrics, in mesh and non-mesh varieties, are known in the art to be suitable for constructing shorts or undergarments (see paragraphs 0036, 0048, 0114-0116, and 0121), so as to provide various desired stretch or performance qualities to the undergarment (see paragraphs 0117-0119)
Therefore, based on Curran’s teachings, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have modified Belpaume’s liner to be constructed of a stretch material instead of a mesh material, as doing so provide various desired stretch or performance qualities to the liner. Furthermore, it has been held to be 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.
Regarding claim 6, the modified pair of shorts of Belpaume (i.e., Belpaume in view of Curran and Lindquist) is further disclosed wherein the non-stretch material that the shorts are constructed from is polyester (see paragraph 00114 of Curran).
Regarding claim 7, the modified pair of shorts of Belpaume (i.e., Belpaume in view of Curran and Lindquist) is further disclosed wherein the attachment of the liner (4 of Belpaume) to the bottom of the waistband of the shorts (5 of Belpaume) extends from approximately one side of the fly area of the liner to approximately another side of the fly area of the liner (see Figs. 1-2 and lines 72-98 of Description of Belpaume).
Regarding claim 8, Belpaume discloses a pair of shorts (1) with an integrated liner (4) comprising:
shorts (2) having a waistband (5);
a liner (4; see lines 67-98 of Description), the liner having a partial waistband (18);
wherein the partial waistband of the liner extends along a portion of a top front of the liner and is not attached to the shorts (see Figs. 1-2 and lines 80-101 of Description; partial waistband 18 is a “floating” waistband that is not directly attached to outer shorts 2 along its main length);
the partial waistband of the liner being attached to the waistband of the shorts at both sides of a fly area of the liner (area of liner 4 that corresponds with/underlaps fly area 21; see Figs. 1-2 lines 80-101 of Description; partial waistband 18 is attached to waistband 5 at opposing attachment points 12, 14 which are located on both sides of fly area 21); and
wherein a remainder of the waistband of the liner (top edge 11 of liner 4, excluding partial liner 18) is attached to a bottom of the waistband of the shorts (see Figs. 1-2 and lines 72-98 of Description).
Belpaume substantially discloses the invention as claimed above but fails to specifically disclose wherein the shorts are constructed of a non-stretch material, and the liner is constructed of a mesh material.
However, Curran teaches a pair of shorts (4, see paragraphs 0036 and 0048) having a liner (44, see paragraph 0128-130), wherein the shorts are made of any suitable fabric such as non-stretch woven fabric, stretch woven fabric, or stretch knit fabric (see paragraph 0114; the Examiner notes that non-stretch woven fabrics are generally sturdier and more durable than stretch wovens or knits), and the liner is constructed of a mesh material (see paragraph 0130), so as to provide additional ventilation (see paragraph 0130).
Therefore, based on Curran’s teachings, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have formed Belpaume’s shorts from a non-stretch material and to have formed Belpaume’s liner from a mesh material, as doing so would provide a sturdier and/or more durable fabric for the outer shorts while also providing additional ventilation inside the shorts. Furthermore, it has been held to be 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.
Regarding claim 11, Belpaume, Curran, and Lindquist together teach the limitations of claim 8, as discussed above. Belpaume fails to further disclose wherein the material of the integrated liner is a blend of polyester, spandex, and nylon.
However, Curran further teaches wherein stretch materials such as a combination of any of polyester, nylon, spandex, and lycra are known in the art to be suitable for constructing shorts or undergarments (see paragraphs 0036, 0048, and 0114). It is noted that polyester is known in the art for being moisture-resistant, shape-retentive, and durable.
Therefore, based on Curran’s teachings, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have modified Belpaume’s integrated liner to be a polyester-nylon-spandex blend, as doing so would enhance properties such as moisture resistance, shape retention, and durability. Furthermore, it has been held to be 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.
Regarding claim 12, Belpaume, Curran, and Lindquist together teach the limitations of claim 8, as discussed above. Belpaume fails to further disclose wherein the liner is constructed of a stretch material instead of a mesh material.
However, Curran further teaches wherein various woven stretch fabrics and knit stretch fabrics, in mesh and non-mesh varieties, are known in the art to be suitable for constructing shorts or undergarments (see paragraphs 0036, 0048, 0114-0116, and 0121), so as to provide various desired stretch or performance qualities to the undergarment (see paragraphs 0117-0119)
Therefore, based on Curran’s teachings, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have modified Belpaume’s liner to be constructed of a stretch material instead of a mesh material, as doing so provide various desired stretch or performance qualities to the liner. Furthermore, it has been held to be 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.
Claims 15-20, as best as can be understood, are rejected under 35 U.S.C. 103 as being unpatentable over Belpaume, in view of Curran, further in view of Kitsch et al. (herein Kitsch)(US PG Pub 2008/0178369).
Regarding claim 15, Belpaume discloses a pair of shorts (1) with an integrated liner (4) comprising:
shorts (2) having a waistband (5);
the integrated liner (4; see lines 67-98 of Description), the liner having a partial waistband (18) and a fly area (area of liner 4 that corresponds with/underlaps fly area 21);
wherein the partial waistband of the integrated liner extends along a portion of a front of the integrated liner (see Figs. 1-2);
the partial waistband of the integrated liner being attached to the waistband of the shorts at positions on the shorts that are approximately the same width as the fly area of the liner (see Figs. 1-2 lines 80-101 of Description; partial waistband 18 is attached to waistband 5 at opposing attachment points 12, 14 which are located on opposite sides of fly area 21); and
wherein a top portion of the integrated liner that is not the partial waistband (top edge 11 of liner 4, excluding partial liner 18) is attached to a bottom of the waistband of the shorts (see Figs. 1-2 and lines 72-98 of Description).
Belpaume substantially discloses the invention as claimed above but fails to specifically disclose wherein the shorts are constructed of a non-stretch material, and the liner is constructed of a mesh material.
However, Curran teaches a pair of shorts (4, see paragraphs 0036 and 0048) having a liner (44, see paragraph 0128-130), wherein the shorts are made of any suitable fabric such as non-stretch woven fabric, stretch woven fabric, or stretch knit fabric (see paragraph 0114; the Examiner notes that non-stretch woven fabrics are generally sturdier and more durable than stretch wovens or knits), and the liner is constructed of a mesh material (see paragraph 0130), so as to provide additional ventilation (see paragraph 0130).
Therefore, based on Curran’s teachings, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have formed Belpaume’s shorts from a non-stretch material and to have formed Belpaume’s liner from a mesh material, as doing so would provide a sturdier and/or more durable fabric for the outer shorts while also providing additional ventilation inside the shorts. Furthermore, it has been held to be 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.
Belpaume further discloses wherein the shorts may be formed as an undergarment configured to support a wearer’s genitals (see lines 60-61) but fails to explicitly disclose a genital pouch shaped to support a male’s genitalia and phallus, wherein the genital pouch is on a front wall of the integrated liner, the pouch being formed from a pair of side panels being substantially parallel and laterally spaced apart.
However, Kitsch teaches a male undergarment (10,) comprising a front wall (26) and a genital pouch (18, 12) on a front wall of the undergarment (see Fig. 1 and paragraphs 0026-0037), wherein the genital pouch is shaped to support a male’s genitalia and phallus, the pouch being formed from a pair of side panels (12) being substantially parallel and laterally spaced apart (see Figs. 1-4 and 8 and paragraphs 0026-0037), so as to provide enhanced support and comfort for the wearer’s genitals (see paragraphs 0004-0005, 0008, 0013, and 0029-0033).
Therefore, based on Kitsch’s teachings, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have modified Belpaume’s liner to include a genital pouch shaped to support a male’s genital and phallus, wherein the genital pouch is on a front wall of the liner, the pouch being formed from a pair of side panels being substantially parallel and laterally spaced apart, as doing so would provide enhanced support and comfort for the wearer’s genitals.
Regarding claim 16, Belpaume, Curran, and Kitsch together teach the limitations of claim 15, as discussed above. Belpaume fails to further disclose wherein the integrated liner is constructed of a stretch material instead of a mesh material.
However, Curran further teaches wherein various woven stretch fabrics and knit stretch fabrics, in mesh and non-mesh varieties, are known in the art to be suitable for constructing shorts or undergarments (see paragraphs 0036, 0048, 0114-0116, and 0121), so as to provide various desired stretch or performance qualities to the undergarment (see paragraphs 0117-0119)
Therefore, based on Curran’s teachings, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have modified Belpaume’s integrated liner to be constructed of a stretch material instead of a mesh material, as doing so provide various desired stretch or performance qualities to the liner. Furthermore, it has been held to be 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.
Regarding claim 17, the modified pair of shorts of Belpaume (i.e., Belpaume in view of Curran and Kitsch) is further disclosed to comprise a gusset (30 of Kitsch, see Figs. 7-8 and paragraph 0041).
Kitsch fails to teach wherein the gusset is made of a mesh material.
However, Kitsch further teaches wherein other portions of the inner brief (10) are made of an elasticized mesh material, so as to wick away moisture and enhance wearer comfort (see paragraphs 0027, 0030, and 0041).
Therefore, based on Kitsch’s teachings, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have modified the gusset to also be made of an elasticized mesh material, as doing so would provide enhanced moisture wicking and comfort in the gusset area. Furthermore, it has been held to be 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.
Regarding claim 18, the modified pair of shorts of Belpaume (i.e., Belpaume in view of Curran and Kitsch) is further disclosed wherein a lower extremity of the pouch (18, 12 of Kitsch) extends under and rearwardly of the front wall to form a perineum portion (rear portion of pouch 18, 12 adjacent to 24 of Kitsch) for covering rearwardly past a scrotum and to a perineum of the user (see at least Figs. 3, 7, and 8 and paragraph 0035 of Kitsch).
Regarding claim 19, the modified pair of shorts of Belpaume (i.e., Belpaume in view of Curran and Kitsch) is further disclosed wherein the pouch (18, 12 of Kitsch) has an inner lining that is smooth and seamless over a central penis-covering portion thereof (see paragraph 0010 of Kitsch).
Regarding claim 20, the modified pair of shorts of Belpaume (i.e., Belpaume in view of Curran and Kitsch) is further disclosed to comprise a fly (21 of Belpaume) formed as part of the shorts (2 of Belpaume; see Figs. 1-2 and lines 102-104 of Description of Belpaume).
Claim 2, as best as can be understood, is rejected under 35 U.S.C. 103 as being unpatentable over Belpaume and Curran, as applied to claim 1 above, in view of Kitsch.
Regarding claim 2, Belpaume, Curran, and Lindquist together teach the limitations of claim 1, as discussed above. Belpaume further discloses wherein the shorts may be formed as an undergarment configured to support a wearer’s genitals (see lines 60-61) but fails to explicitly disclose a genital pouch formed into the liner that is configured to support a user’s genitals.
However, Kitsch teaches a male undergarment (10,) comprising a front wall (26) and a genital pouch (18, 12) on the front wall of the undergarment (see Fig. 1 and paragraphs 0026-0037), wherein the genital pouch is shaped and configured to support a user’s genitals (see Figs. 1-4 and 8 and paragraphs 0026-0037), so as to provide enhanced support and comfort for the wearer’s genitals (see paragraphs 0004-0005, 0008, 0013, and 0029-0033).
Therefore, based on Kitsch’s teachings, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have modified Belpaume’s liner to include a genital pouch that is configured to support a user’s genitals, as doing so would provide enhanced support and comfort for the user’s genitals.
Claim 9 as best as can be understood, is rejected under 35 U.S.C. 103 as being unpatentable over Belpaume and Curran, as applied to claim 8 above, in view of Lindquist (US Patent No. 9,968,147).
Regarding claim 9, Belpaume and Curran together teach the limitations of claim 8, as discussed above. Belpaume further discloses wherein the partial waistband of the liner is attached to the waistband of the shorts by seams/stitching (see Figs. 1-2 and lines 80-03 and 121-125) but fails to specify clean stitching.
However, Lindquist teaches wherein it is well known in the garment-making art to provide seam finishes such as clean finish seams (see Figs. 8-13; column 2, lines 1-11; column 4, lines 52-62; and claims 5-6), to provide reinforcement along the seam (see column 1, line 52 – column 2, line 32).
Therefore, based on Lindquist’s teachings, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, to have provided the seams attaching the partial waistband of the liner to the waistband of the shorts as clean finish stitching, as doing so would provide reinforcement along the seam/attachment points.
Claim 10, as best as can be understood, is rejected under 35 U.S.C. 103 as being unpatentable over Belpaume and Curran, as applied to claim 8 above, in view of Wright (US PG Pub 2007/0283484).
Regarding claim 10, Belpaume, Curran, and Lindquist together teach the limitations of claim 8, as discussed above. Belpaume fails to further disclose a fly that is constructed as part of the integrated liner. Instead, Belpaume only discloses wherein the outer pair of shorts (2) includes a fly (21, see Fig. 1).
However, Wright teaches a pair of shorts with an integrated liner (100), comprising an outer pair of shorts (250) and an integrated liner (200), wherein both the outer pair of shorts and the integrated liner include respective flies (214+216, 266+268, see Figs. 1-2 and paragraphs 0013-0015), so as to allow the flies to be operatively aligned for easy use and access (see paragraphs 0019-0026).
Therefore, based on Wright’s teachings, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have modified Belpaume’s liner to also include a fly aligned with the outer fly of the pair of shorts, as doing so would allow for easy use and access of the aligned flies.
Claims 13-14, as best as can be understood, are rejected under 35 U.S.C. 103 as being unpatentable over Belpaume and Curran, as applied to claim 8 above, in view of Perry et al. (herein Perry)(US PG Pub 2019/0387809).
Regarding claim 13, Belpaume and Curran together teach the limitations of claim 8, as discussed above. Belpaume further discloses wherein the shorts may be formed as an undergarment configured to support a wearer’s genitals (see lines 60-61) but fails to explicitly disclose a genital pouch for supporting the user’s genitals.
However, Perry teaches a male undergarment (100) for use as a liner for swimwear (see paragraph 0019), wherein the liner includes a waistband (108) and a genital pouch (112) for supporting the wearer’s genitals (see Figs. 1-6 and paragraphs 0019-0020 and 0030-0031), so as provide a pouch structure for comfortably and flexibly surrounding and supporting the male anatomy of the user (see paragraphs 0018 and 0031).
Therefore, based on Perry’s teachings, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have modified Belpaume’s shorts to include a genital pouch for supporting the user’s genitals, as doing so would provide a pouch structure for comfortably and flexibly surrounding and supporting the male anatomy of the user.
Regarding claim 14, the modified pair of shorts of Belpaume (i.e., Belpaume in view of Curran and Perry) is further disclosed wherein the genital pouch (112 of Perry) comprises side panels (panels forming pouch 112 of Perry, joined together at center seam 13 of Perry) that are formed in a mid-section of a front wall of the liner (front wall of body panel 114 of Perry) depending from the integrated partial waistband of the liner (see Figs. 1-6 and paragraphs 0019-0020 and 0030-0031 of Perry).
Conclusion
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/JOCELYN BRAVO/Primary Examiner, Art Unit 3732
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