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 .
Status of Claims
This Office Action is in response to the amendment filed 2/9/26. As directed by the amendment, claims 2-9, 11, 12, 14, 15, 18 and 19 have been amended; claim 1 has been cancelled. Claims 2-19 are pending in this application.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 2 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for pre-AIA the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claim 2, is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as introducing the phrase “…two-part system…” without support in the specification as originally filed.
CLAIM INTERPRETATION
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function.
Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function.
Claim elements in this application that use the word “means” (or “step for”) are presumed to invoke § 112(f) except as otherwise indicated in an Office action. Similarly, claim elements that do not use the word “means” (or “step for”) are presumed not to invoke § 112(f) except as otherwise indicated in an Office action.
In the instant case there does not appear to be any means for language in the claims and/or language to be considered under 35 U.S.C. 112(f).
Claim Rejections - 35 USC § 103 AIA
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 2-19 are rejected under 35 U.S.C. 103 as being unpatentable over Jones US 6857936 B2 (herein after Jones) in view of CLIM US 20110269376 A1 (herein after Clim).
Regarding claim 2, Jones discloses a bra garment comprising a bra garment (Abstract) without arm straps (claim 1), the bra garment configured for covering a chest of a wearer (as seen in Figure 7), the bra garment (Abstract, as seen in annotated Figures 7, 8 and 9) comprising: a pair of support cups 14, 16, (as seen in annotated Figures 7, 8 and 9); and a back strap (6, 7), an elastic portion (159, as seen in annotated Figures 7, 8 and 9) and, each end of the elastic portion having at least one fastener (Col 6, lines 61 and 62, as seen in annotated Figures 7, 8 and 9) and a set of loops (Col 6, lines 61 and 62, as seen in annotated Figures 7, 8 and 9) positioned proximal to the fastener (as seen in annotated Figures 7, 8 and 9); the elastic portion made of an elastic material (Col 6 lines 36-38), wherein the fastener on each end of the elastic portion is configured to be fed through openings on the pair of support cups (as seen in annotated Figures 7, 8 and 9) and to be fastened back to one of the loops on the elastic portion (as seen in annotated Figures 7, 8 and 9) positioned proximal to the fastener (as seen in annotated Figures 7, 8 and 9), the fastening of each of the fasteners (Col 6, lines 61 and 62, as seen in annotated Figures 7, 8 and 9) providing an elastic connection to hold up the bra garment (as seen in annotated Figures 7, 8 and 9) while also creating a tension force (as seen in annotated Figures 7, 8 and 9) to position when the bra garment is worn (as seen in annotated Figures 7, 8 and 9).
[AltContent: textbox (An elastic portion.)].
[AltContent: arrow][AltContent: textbox (The fastening of each of the hooks providing an elastic connection to hold up the bra garment.)][AltContent: arrow][AltContent: arrow][AltContent: textbox (A set of loops positioned proximal to the fastener.)][AltContent: textbox (Wherein the fastener on each end of the elastic portion is configured to be fed through openings on the pair of support cups and to be fastened back to one of the loops on the elastic portion positioned proximal to the fastener. )][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (A pair of support cups.)][AltContent: textbox (A back strap. )][AltContent: textbox (Each end of the elastic portion having at least one fastener.)]
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However, Jones does not specifically disclose the bra garment is composed of a two-part system comprising: an embellished portion comprising the embellished portion made of a material that is embellished, the embellished portion designed to be positioned on top of the elastic portion when worn, the embellished portion adjustably attached to the elastic portion.
Clim teaches the bra garment is composed of a two-part system (as seen in annotated Figures 1 and 2) comprising an embellished portion (Abstract) comprising the embellished portion (14) made of a material that is embellished (paragraph 0020 and Abstract), the embellished portion designed to be positioned on top of the elastic portion when worn (as seen in Figures 1 and 2), the embellished portion adjustably attached (15, paragraphs 0016 and 0017) to the elastic portion (13, as seen in annotated Figures 1 and 2).
[AltContent: textbox (Two part system.)][AltContent: textbox (Embellished portion)].
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Jones and Clim are analogous art to the claimed invention in that it relates to bra garments with decorative strap features.
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 garment of Jones by constructing the garment having an embellished portion, the embellished portion designed to be positioned on top of the elastic portion when worn, and embellished portion adjustably attached to the elastic portion as taught by Clim, in order to provide a way for the wearer to still be able to wear a bra and have breast support while disguising the strap to make it appear as if it were a part of the garment. The modification would be a simple modification to allow the wearer to comfortably wear a backless garment and have multiple design options for the garment.
Regarding claim 3, the modified bra garment of the combined references discloses wherein the embellished portion (14 of Clim) comprises a plurality of jewelry ornaments (paragraph 0020 of Clim).
Regarding claim 4, the modified bra garment of the combined references discloses wherein the embellished portion (14 of Clim) is positioned to be visible within an exposed portion of the back of the wearer when a backless article of clothing is worn (as seen in annotated Figure 2 of Clim– while the garment is a one shoulder garment, portions of the back are exposed and the garment exposes the straps beneath).
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Regarding claim 5, the modified bra garment of the combined references discloses wherein each of the hooks (152 of Jones) and the sets of loops (153 of Jones) are located behind either the embellished portion or behind a non-backless portion of the backless article of clothing (as seen in annotated Figure 8 of Jones) such that they are not visible (as seen in annotated Figure 8 of Jones).
[AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (Loops)][AltContent: textbox (Hooks)]
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Regarding claim 6, the modified bra garment of the combined references discloses wherein the bra garment is a brassiere or bralette (as seen in Figures 20, 21 and 23 of Jones).
Regarding claim 7, the modified bra garment of the combined references discloses wherein the bra garment is a bandeau or is swimwear (Abstract of Jones).
Regarding claim 8, the modified bra garment of the combined references discloses wherein the embellished portion (14 of Clim) is made from a material selected from a group consisting of: synthetic fabrics, denim, cotton, leather, plastic, stone (paragraphs 0020 and 0021 of Clim), rubber, polyester, satin, suede, natural fur, synthetic fur, vinyl, metal, silk, or combinations thereof.
Regarding claim 9, the modified bra garment of the combined references discloses wherein the set of loops (153 of Jones) comprise a set of eyelets (as seen in annotated Figures 8 and 9 of Jones) and the fastener comprises a hook (152 of Jones), wherein the hook is designed to engage the eyelets to fasten the bra garment (as seen in annotated Figures 8 and 9 of Jones).
Regarding claim 10, the modified bra garment of the combined references discloses wherein the eyelets are positioned at varying lengths along the elastic portion (as seen in annotated Figures 8 and 9 of Jones) allowing for engagement by the at least one hook (as seen in annotated Figures 8 and 9 of Jones) with different ones of the eyelets (as seen in annotated Figures 8 and 9 of Jones) so the back strap may be tightened or loosened (as seen in annotated Figures 8 and 9 of Jones).
[AltContent: arrow][AltContent: arrow][AltContent: textbox (The eyelets are positioned at varying lengths along the elastic portion allowing for engagement by the at least one hook with different ones of the eyelets so the back strap may be tightened or loosened.)]
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Regarding claim 11, the modified bra garment of the combined references discloses wherein the back strap (159 of Jones) is interchangeable with other back straps (as seen in annotated Figures 8 and 9 of Jones) that have different embellished portions comprising different materials or ornaments (paragraphs 0020 and 0021 of Clim), each designed for covering the elastic portion (Abstract, as seen in annotated Figures 1 and 2) for adjusting the back strap to the wearer (Col 2, lines 53-55 of Jones).
Regarding claim 12, the modified bra garment of the combined references discloses wherein the fastener is a hook (152 of Jones).
Regarding claim 13, the modified bra garment of the combined references discloses wherein the elastic portion (139 of Jones) loops (153 of Jones) around to allow the hook (152 of Jones) on each end to engage with a plurality of opposing loops (as seen in annotated Figures 8 and 9 of Jones) on a nonvisible back side of the elastic portion (as seen in annotated Figures 8 and 9 of Jones), the opposing loops positioned at varying lengths (as seen in annotated Figure 9 of Jones) along the nonvisible back side so the back strap may be tightened or loosened wearer (Col 2, lines 53-55 of Jones), and wherein the embellished portion sits on top of the elastic portion (14, as seen in annotated Figure 9 of Clim).
Regarding claim 14, the modified bra garment of the combined references discloses wherein the embellished portion is made of a non- elastic material (paragraph 0020 of Clim).
Regarding claim 15, the modified bra garment of the combined references discloses a pair of reinforcement members (as seen in annotated Figure 8 of Jones) made of a rigid material (as seen in annotated Figure 8 of Jones) stitched into fabric on first edge section of the pair of support cups (as seen in annotated Figure 8 of Jones) and a pair of reinforcement members made of rigid material stitched into fabric of a second edge section of the pair of support cups (Col 12 lines 24-26, as seen in annotated Figure 8 of Jones).
[AltContent: arrow][AltContent: arrow][AltContent: textbox (A pair of reinforcement members made of rigid material stitched into fabric on first edge section of the pair of support cups and a pair of reinforcement members made of rigid material stitched into fabric of a second edge section of the pair of support cups. )]
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Regarding claim 16, the modified bra garment of the combined references discloses wherein the pair of reinforcement members (as seen in annotated Figure 8 of Jones) on the first edge section are positioned on either side of a first one of the openings (as seen in annotated Figure 8 of Jones) on the pair of support cups (as seen in annotated Figure 8 of Jones) and the pair of reinforcement members on the second edge section are positioned on either side of a second one of the openings on the pair of support cups (as seen in annotated Figure 8 of Jones).
Regarding claim 17, the modified bra garment of the combined references discloses wherein the pair of reinforcement members (2 – breast support members of Jones and as seen in annotated Figure 8) are stays or are stiffening elements (2, 612 and 812 - the breast support portions, Col 12 lines 24- 26 of Jones).
Regarding claim 18, the modified bra garment of the combined references discloses wherein the fastener comprises at least one of the following: a hook-and-eyelet closure (152 and 153 of Jones as seen in annotated Figures 8 and 9), a button fastener, a clamp, a swimsuit clip, a clasp device, a grommet hook, a snap fastener, a Velcro fastener, or a magnet fastener.
Regarding claim 19, the modified bra garment of the combined references discloses wherein the embellished portion (14 of Clim) is attachable to a strap of a different bra garment to embellish or hide the strap (as seen in annotated Figures 1 and 2 of Clim).
Arguments
Applicant’s arguments have been fully considered. In view of Applicant's amendments, the search has been updated, and a rejection on the amended claims is applied above.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). The combined references teach all the structural limitations as written and as outlined in the annotated figures and rejection above.
In response to the applicant’s arguments that the combined references do not teach a two-part system comprising an elastic portion and an embellished portion, the examiner respectfully disagrees. Jones and Clim teach a two-part system. The elastic portion/strap (159 of Jones) and Clim (as seen in annotated Figures 1 and 2) discloses an embellished portion that is capable of covering a garment strap.
In response to the applicant’s arguments that the combined references do not teach an underlying breast-support garment and connectors with a decorative cover, such that it would have been obvious to arrive at claim 2, the examiner respectfully disagrees. Clim (as seen in annotated Figure 2) teaches underlying breast-support garment and connectors with a decorative cover.
[AltContent: textbox (An underlying breast-support garment and connectors with a decorative cover.)][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (A decorative cover.)][AltContent: textbox (Connectors.)]
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In response to the applicant’s arguments that the combined references do not teach the specific structural configuration and tension-based functional interaction recited in claim 2, the examiner respectfully disagrees. As seen in Figure 2, the cover is gathered due to the tensioned bra strap beneath which the cover is attached to. When the garment is not on the body the cover becomes gathered reflecting the smaller length of the bra garment strap. When worn the bra strap is capable of stretching to the same length of the cover. The tension created by the garment strap allows the garment to be held in place against the wearer.
In response to the applicant’s arguments that Jones is silent to a back strap composed of a two-part system, the examiner respectfully disagrees. Jones, Figure 8, clearly shows element 159 as being a back strap and further, Jones addresses the issue of exposed traditional bras under garments.
[AltContent: arrow][AltContent: arrow][AltContent: textbox (Fastener – hook and eye.)][AltContent: arrow][AltContent: arrow][AltContent: textbox (Set of loops)][AltContent: arrow][AltContent: textbox (Back strap)]
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Jones discloses an elastic portion (159, Col 6 lines 36-38) having at least one fastener (152, 153) and a set of loops (as seen in annotated Figure 8- the loop created by the elastic strap going through the holes and looping back and fastening the hook with loops to hold the strap tightly against the wearers back 152, 153 as seen in annotated Figure 8) proximal to the fastener at each end (as seen in annotated Figure 8).
Clim discloses an embellished portion (14) designed to be positioned on top of the elastic portion (as seen in annotated Figure 2) when worn, and adjustably attached to the elastic portion (via clips 15), and positioned by elastic tension force that biases the embellished portion into a position that covers the elastic portion when the bra garment is worn (as seen in Figure 2, the cover is gathered due to the tensioned bra strap beneath which the cover is attached to. When the garment is not on the body the cover becomes gathered reflecting the smaller length of the bra garment strap. When worn the bra strap is capable of stretching to the same length of the cover. The tension created by the garment strap allows the garment to be held in place against the wearer).
In response to the applicant’s arguments that Clim is directed to a decorative cover for an undergarment strap used to conceal an existing bra strap when worn with shoulder-revealing garments. Clim's cover is a separate decorative sleeve or a cover with multiple clips applied over a pre-existing strap. The underlying straps are "unaltered by the addition of the cover 14 and are concealed from view" since this cover is a separate piece, not a component of a two-part system.
It is unclear what is being argued here. It appears the applicant is arguing the amended limitation “two-part system”, however as pointed out in the rejection above, there is no support for this amended limitation in the Specification nor is there any further defining or limiting information in the disclosure as to what is meant by the limitation “two-part system”. For example, are the two portions permanently connected now? Or separate? If attached, where? While the applicant has presented a detailed explanation of the inventive concept in his arguments, the claim language used to define the invention is very broad and can be interpreted in many ways. The applicant has not positively claimed or provided any further defining language/ structural limitations in the claims that would prevent the device of the combined references from reading on the claims as written. The applicant is reminded the prior art is applied with the broadest reasonable interpretation, and the prior art references meet all the structural elements of the claims as written. Jones and Clim teach the limitation as written.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge cited generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385.
In response to applicant's arguments that the combination of references still would not yield the specific configuration recited in claim 2, as the combination of references are non-analogous art. The Examiner respectfully disagrees. As stated in the MPEP 2141.01a, a reference is analogous art if the reference is from the same field of endeavor as the claimed invention (even if it addresses a different problem); or (2) the reference is reasonably pertinent to the problem faced by the inventor (even if it is not in the same field of endeavor as the claimed invention). See Bigio, 381 F.3d at 1325. Both references are directed towards bra garments that cover the upper torso having special strap configuration allowing the wearer to customize and reconfigure the garment in various ways.
In response to applicant's arguments that the combined references do not disclose a back strap composed of a two-part system comprising an inner elastic portion and an outer embellished portion, adjustably attached, having a tension-based positioning of the embellished portion creating an elastic connection to hold the garment in place against the wearers body, the examiner respectfully disagrees. As seen in Figure 2 of Clim, the cover is gathered due to the tensioned bra strap beneath which the cover is attached to. When the garment is not on the body the cover becomes gathered reflecting the smaller length of the bra garment strap. When worn the bra strap is capable of stretching to the same length of the cover. The tension created by the garment strap allows the garment to be held in place against the wearer.
In response to applicant's arguments that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CATHERINE M FERREIRA whose telephone number is (571)270-5916, fax number (571) 270-6916. The examiner can normally be reached on Monday - Thursday 9:00 am- 5:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, ALISSA J. TOMPKINS, at (571) 272-3425. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Catherine M. Ferreira/
Examiner, Art Unit 3732
/ALISSA J TOMPKINS/Supervisory Patent Examiner, Art Unit 3732