DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Claims 6 (directed to non-elected Figure 4), 7 (directed to non-elected Figure 4), 15 and 18 (directed to non-elected Figure 4) are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected embodiments of the invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 02/05/26.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the perforations in the spacer pads of claims 10 and 11 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the mesh fabric of claims 12 and 16 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The use of the terms KEVLAR (page 3, lines 2 and lin3 28 and page 9, line 25), NOMEX (page 11, line 12 and line 27), and VELCRO (page 11, line 23), which are trade names or marks used in commerce, has been noted in this application. The terms should be accompanied by the generic terminology; furthermore the terms should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
The disclosure is objected to because of the following informalities: the use of the acronyms “TPP” and “THL” are used throughout the specification, but no mention of what it is abbreviation of.
Appropriate correction is required.
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.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
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 12, 13, 16-17 and 19 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.
Regarding Claims 12 and 16, it is unclear what “TPP” and “THL” are abbreviations of and the specification is silent as to what these acronyms represent. Therefore, it is unclear what is required of the structure of the garment to read on these limitations. For Examination purposes, the examiner is interpreting the “TPP” and “THL” limitations to be met based upon it being a mesh layer as detailed in applicants specification.
Regarding Claims 13 and 19, it is unclear what is required structurally of the gap since its location is based upon variable human anatomy, variable high rates of perspiration and metabolic heat transfer of a human body and not garment structure.
Any remaining claims are rejected depending from a rejected base claim.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 13 and 19 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101). The limitation “wherein the gap is aligned with areas of high rates of perspiration and metabolic heat transfer of a firefighter’s body” should include the language “configured to”, “adapted to”, “when worn” or other similar language to get around this rejection.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Aldridge (US 5,860,163).
In regard to claim 20, Aldridge teaches an outer shell for a firefighter protective garment (figures 1-6, outer shell layer: 12 or 52), the firefighter protective garment comprising at least one liner (liner: 16 or 54), the outer shell comprising: an inner surface contacting said at least one liner when the outer shell is attached to said at least one liner (see figure 1 and 6 show liner and shell contacting each other at attachments); an outer surface defining an outermost surface of the firefighter protective garment (see outer shell 12 or 52 outer surface: figures 1 and 6); and an array of spacer pads distributed across the inner surface of the outer shell (spacer pads/insulating beads: 18 or 60, column 4, lines 60-65 and column 5, lines 29-39), the array of spacer pads being positioned to maintain a gap between said at least one liner and the outer shell (see figures 1, 5 and 6; column 3, lines 38-43), each spacer pad of the array of spacer pads being separated one from another by at least one air circulation channel (column 3, lines 38-43).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-5, 8-14, 16-17 and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Barbeau et al. (US 10,245,454) in view of Aldridge (US 5, 860,163).
In regard to claim 1, Barbeau et al. teaches a firefighter protective garment (see abstract), comprising: a first liner defining an innermost layer of the firefighter protective garment (thermal barrier: 16); a second liner extending over the first liner (moisture barrier: 14); an outer shell defining an outermost layer of the firefighter protective garment and extending over the second liner (outer shell: 12), the outer shell having an inner surface and an outer surface (outer shell: 12 has inner and outer surface); and an array of spacer pads distributed across the inner surface of the first liner (spacer elements: 18), the array of spacer pads being positioned to maintain a gap between the first liner and the user’s body (column 3, lines 39-42), each spacer pad of the array of spacer pads being separated one from another by at least one air circulation channel (column 4, lines 50-58).
However, Barbeau et al. fails to teach the spacer pads being distributed across an inner surface of the outer shell to maintain a gap between the second liner and the outer shell.
Aldridge teaches placing spacer pads distributed across an inner surface of an outer shell to maintain a gap between the second liner and the outer shell (spacer pads/insulating beads: 18 or 16, figures 1, 5 or 6 and column 4, lines 62-65).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the spacer pads of Barbeau et al. positioned between the outer shell and middle/second liner or additionally positioned between the outer shell and middle/second liner as taught by Aldridge, since the firefighters coat of Barbeau et al. provided with the spacer pads additionally or alternatively between the outer shell and second liner/middle layer would provide a firefighter’s coat that has a ventilation zone between the outer layer and middle layer to assist with moisture vapor transport from the wearer and promotes breathability of the garment.
In regard to claim 2, Barbeau et al. teaches wherein the first liner is a thermal barrier (thermal barrier: 16).
In regard to claim 3, Barbeau et al. teaches wherein the second liner is a moisture barrier (moisture barrier: 14).
In regard to claim 4, Barbeau et al. teaches wherein the array of spacer pads is distributed into first and second neighboring columns in a back region of the firefighter's body (see figure 4, spacer elements: 18 are in first and second neighboring columns in the back).
In regard to claim 5, Barbeau et al. teaches wherein the first and second neighboring columns each comprises 6 spacer pads (see figure 4, spacer pads: 18 is first and second columns have 6 spacer pads along the back of the garment).
In regard to claim 8, Barbeau et al. teaches wherein the array of spacer pads is permeable to air, water vapor and liquid water (column 5, lines 16-17).
In regard to claim 9, Barbeau et al. teaches wherein each spacer pad is made of closed cell foam (column 5, lines 9-12).
In regard to claim 10, Barbeau et al. teaches wherein the closed cell foam of said spacer pads comprises at least one perforation therein (column 5, lines 9-12).
In regard to claim 11, Barbeau et al. teaches wherein said at least one perforation has a diameter of about 0.5 inch (column 5, lines 9-12).
In regard to claim 12, Barbeau et al. teaches further comprising a mesh fabric at least partially covering each spacer pad (mesh: column 4, lines 54-56 and column 5, lines 21-22), the mesh fabric decreasing the THL value of the firefighter protective garment and increasing the TPP value of the firefighter protective coat (see column 2, lines 4-10, mesh fabric meets this as stated in applicant’s specification in page 12, lines 16-18).
In regard to claim 13, Barbeau et al. teaches wherein the gap is aligned with areas of high rates of perspiration and metabolic heat transfer of a firefighter's body (column 4, lines 62-64).
In regard to claim 14, Barbeau et al. teaches wherein the firefighter protective garment comprises a firefighter protective coat (claims detail garment being a firefighter coat).
In regard to claim 16, Barbeau et al. teaches a firefighter protective garment (see abstract), comprising: a first liner defining an innermost layer of the firefighter protective garment (thermal barrier: 16); a second liner extending over the first liner (moisture barrier: 14); an outer shell defining an outermost layer of the firefighter protective garment and extending over the second liner (outer shell: 12), the outer shell having an inner surface and an outer surface (outer shell: 12 has inner and outer surface); and an array of spacer pads distributed across the inner surface of the first liner (spacer elements: 18), the array of spacer pads being positioned to maintain a gap between the first liner and the user’s body (column 3, lines 39-42), each spacer pad of the array of spacer pads being separated one from another by at least one air circulation channel (column 4, lines 50-58); and a mesh fabric at least partially extending over the array of spacer pads(mesh: column 4, lines 54-56 and column 5, lines 21-22), said at least one portion being aligned with areas of high rates of perspiration and metabolic heat transfer of a firefighter's body when the firefighter protective garment is worn by the firefighter (column 4, lines 62-64), wherein the areas of high rates of perspiration and metabolic heat transfer comprise at least one of the front torso of the firefighter, the back of the firefighter (see figure 1 and 4, back of firefighter: column 4, lines 62-64), a side torso of the firefighter, arms of the firefighter, or upper legs of the firefighter, the mesh fabric decreasing the THL value of the firefighter protective garment and increasing the TPP value of the firefighter protective coat (see column 2, lines 4-10, mesh fabric meets this as stated in applicant’s specification in page 12, lines 16-18).
However, Barbeau et al. fails to teach the spacer pads being distributed across an inner surface of the outer shell to maintain a gap between the second liner and the outer shell and the mesh that extends over the spacer pads being over the inner surface of the outer shell.
Aldridge teaches placing spacer pads distributed across an inner surface of an outer shell to maintain a gap between the second liner and the outer shell (spacer pads/insulating beads: 18 or 16, figures 1, 5 or 6 and column 4, lines 62-65); the spacer pads being located between the second liner and the outer shell would provide the mesh of Barbeau et al. to be located along an inner surface of the outer shell (see column 4, lines 62-65 of Aldridge and figure 1, mesh: 22).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the spacer pads of Barbeau et al. positioned between the outer shell and middle/second liner or additionally positioned between the outer shell and middle/second liner as taught by Aldridge, since the firefighters coat of Barbeau et al. provided with the spacer pads additionally or alternatively between the outer shell and second liner/middle layer would provide a firefighter’s coat that has a ventilation zone between the outer layer and middle layer to assist with moisture vapor transport from the wearer and promotes breathability of the garment.
In regard to claim 17, Barbeau et al. teaches wherein the first liner is a thermal barrier and the second liner is a moisture barrier (thermal barrier: 16 and moisture barrier: 14).
In regard to claim 19, Barbeau et al. teaches wherein the gap is aligned with areas of high rates of perspiration and metabolic heat transfer of a firefighter's body (column 4, lines 62-64).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure and can be found cited in PTO-892 form submitted herewith. The cited prior art to Holdsworth-Layton (US 2013/0298589) is of particular relevance to the claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALISSA L HOEY whose telephone number is (571)272-4985. The examiner can normally be reached M-F: 9:00-5:30 EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Clinton T Ostrup can be reached at (571)272-5559. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ALISSA L. HOEY
Primary Examiner
Art Unit 3732
/ALISSA L HOEY/Primary Examiner, Art Unit 3732