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 .
Response to Amendment
Applicant's preliminary amendment filed on August 12, 2026 has been received. Claims 2, 3, 8, 10, and 15-34 are currently pending.
Claim Objections
Claim 10 is objected to because of the following informalities: “a perimetral edge” (line 3) should read “[[a]] the perimetral edge” to enhance clarity and to maintain consistent antecedent basis within the claims.
Claim 15 is objected to because of the following informalities: “the plurality of second curved extend…” (second to last line) should read “the plurality of second curved sections extend…”
Claim 22 is objected to because of the following informalities: “the textile” (lines 2 and 3) should read “the textile layer” to enhance clarity and to maintain consistent antecedent basis within the claims.
Claim 26 is objected to because of the following informalities: “such that it spans plurality of elongated flexure grooves” should read “such that [[it]] the textile layer spans the plurality of elongated flexure grooves” 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 3, 23, and 25-31 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 3 recites the limitation “wherein the first panel side includes a concave section for each of the first and second cups, and the second panel side includes a convex section for each of the first and second cups.” The limitation appears to contract claim 2, which recites “a first cup comprising a convex section at the first panel side and a concave section at the second panel side, and a second cup comprising a convex section at the first panel side and a concave section at the second panel side.” In other words, claim 2 recites wherein the first panel side is convex, and the second panel side is concave; while claim 3 recites the opposite, i.e., wherein the first panel side is concave, and the second panel side is convex. The Examiner suggests deleting this limitation from claim 3 to enhance clarity and eliminate contradictory limitations. For purposes of examination, the Examiner will interpret the limitation as reciting the same structural limitations of claim 2 (i.e., first panel side = convex, second panel side = concave).
Claim 23 recites the limitation “the panel surface.” There is insufficient antecedent basis for this limitation in the claims.
Claim 25 recites the limitation “the single breast.” There is insufficient antecedent basis for this limitation in the claims.
Claim 29 recites the limitation “the cup.” There is insufficient antecedent basis for this limitation in the claims.
Claim 30 recites the limitation “wherein the molded foam cup body is a laminated structure comprising a textile bonded to a foam material.” The limitation is indefinite, as it is unclear if the recited textile is synonymous with, or provided in addition to, the textile layer previously recited in claim 25. For purposes of examination, the Examiner will interpret “a textile” and “the textile layer” as referring to synonymous structures, and will interpret limitation as follows: “wherein the textile layer is bonded to the molded foam cup body.”
Dependent claims are rejected at least for depending from rejected claims.
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.
Claims 2, 3, 8, 15-18, 20-32, and 34 (regarding claims 3, 23, and 25-31, as best as can be understood) are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Liu (WO 2019/161533 A1).
Regarding claim 2, Liu discloses an athletic bra (brassiere 100, which is capable of being used for athletic purposes, see support panel embodiment of Figs. 6A-6C) comprising:
a unitary molded support panel (112, see Figs. 6A-6B and paragraphs 0059-0064) defining a first panel side (exterior side 112b as seen in Fig. 6A), a second panel side (interior side 112a as seen in Fig. 6B), the panel comprising a foam material (see at least paragraphs 0049 and 0064) and a perimetral edge (perimeter edge of 112a, see Figs. 6A-6B), the panel further including:
a first cup (right portion of 112 corresponding to right bra cup 104 of brassiere 100) comprising a convex section at the first panel side and a concave section at the second panel side (see at least Fig. 6C and paragraph 0004; each cup has a convex outer surface and a concave inner surface so as to accommodate the shape of the wearer’s breasts), and
a second cup (left portion of 112 corresponding to left bra cup 104 of brassiere 100) comprising a convex section at the first panel side and a concave section at the second panel side (see at least Fig. 6C and paragraph 0004; each cup has a convex outer surface and a concave inner surface so as to accommodate the shape of the wearer’s breasts); and
wherein the panel includes a plurality of first sections (sections of panel 112 at full-length, laterally-extending flexure grooves 136) and a plurality of second sections (sections of panel 112 at protrusions 134), each second section has a greater thickness than each first section (see at least Figs. 6B-6C and paragraphs 0059-0064), each section is located at one or more portions of the first cup and/or the second cup (see at least Fig. 6B), and each first section extends along the panel at a location that is between the first cup and the second cup (see at least Figs. 6A-6B, each full-length, laterally-extending flexure groove 136 extends along a central location between cups 104).
Regarding claim 3, Liu further discloses wherein the first panel side includes a concave section for each of the first and second cups, and the second panel side includes a convex section for each of the first and second cups (see rejection of claim 3 above under 35 USC 112(b); this limitation is being interpreted to recite wherein the first panel side is convex, and the second panel side is concave; see at least Fig. 6C and paragraph 0004; each cup has a convex outer surface and a concave inner surface so as to accommodate the shape of the wearer’s breasts), and further wherein:
each first section extends continuously along the first panel side from the first cup to the second cup (see Figs. 6A-6B); and/or
each first section includes a first curved section at the first cup and a second curved section at the second cup (see Figs. 6A-6B, each first section along full-length, laterally-extending flexure grooves 136 has a respective curved section along the bottom of each cup 104); and/or
each first section extends between two second sections at locations between the first cup and the second cup (see Figs. 6A-6B, each first section along full-length, laterally-extending flexure grooves 136 extends between two protrusions 134 and extends at least along center locations of panel 112 between cups 104); and/or
two or more first sections are aligned in a nested configuration with each other (see nested configuration of grooves 136 in at least Fig. 6B and paragraph 0060); and/or
each first section has a substantially complete lemniscate shape (the Examiner notes that the “and/or” language of claim 3 renders this limitation optional; however, Liu does not teach or depict a substantially complete lemniscate shape).
Regarding claim 8, Liu further discloses a plurality of perforations (132) extending through the panel (112), wherein at least some of the perforations are located at the first sections (along 136, see at least Fig. 6C and paragraphs 0059-0062).
Regarding claim 15, Liu discloses an athletic garment (brassiere 100, which is capable of being used for athletic purposes, see support panel embodiment of Figs. 6A-6C) comprising:
a unitary molded support panel (112, see Figs. 6A-6B and paragraphs 0059-0064) defining a first panel side (exterior side 112b as seen in Fig. 6A), a second panel side (interior side 112a as seen in Fig. 6B), the panel comprising a foam material (see at least paragraphs 0049 and 0064) and a perimetral edge (perimeter edge of 112a, see Figs. 6A-6B), the panel including a cup (at least one of right or left cups 104) comprising a convex section at the first panel side and a concave section at the second panel side (see Fig. 6C and paragraphs 0004 and 0061; each cup has “a three-dimensional configuration” defining a convex outer surface and a concave inner surface, so as to accommodate the shape of the wearer’s breasts); and
a plurality of first curved sections (sections of panel 112 at full-length, laterally-extending flexure grooves 136) and a plurality of second curved sections (sections of panel 112 at protrusions 134) disposed at one of the first and second panel sides (i.e., the inner/second panel side 112a, see Fig. 6B), wherein:
the plurality of first curved sections and the plurality of second curved sections are formed into the one of the first panel side and the second panel side sides (i.e., the inner/second panel side 112a, see Fig. 6B and paragraphs 0059-0063),
the plurality of first curved sections and the plurality of second curved sections extend continuously along the cup and across a centerline of the panel (at least as a whole, see at least Fig. 6B), and
a first curved section of the plurality of first curved sections (section of panel 112 at top-most full-length, laterally-extending flexure groove 136) possesses a first thickness, a second curved section of the plurality of second curved sections (section of panel 112 at protrusion 134 below the top-most groove 136) possesses a second thickness, the second thickness being greater than the first thickness (see at least Figs. 6B-6C and paragraphs 0059-0063).
Regarding claim 16, Liu further discloses wherein two or more first curved sections (sections of panel 112 at full-length, laterally-extending flexure grooves 136) are aligned in a nested configuration with one another (see at least Fig. 6B and paragraph 0060).
Regarding claim 17, Liu further discloses a plurality of perforations (132) extending through the support panel (112; see at least Fig. 6C and paragraphs 0059-0062).
Regarding claim 18, Liu further discloses wherein at least some of the perforations are located at the first curved sections (along 136; see at least Fig. 6C and paragraphs 0059-0062).
Regarding claim 20, Liu further discloses a textile layer (116) secured to the support panel (112) and covering the first panel side (112b) or the second panel side (112a; see Fig. 2B and paragraphs 0048-0049 and 0063).
Regarding claim 21, Liu further discloses a textile (116) bonded to a side (112b) of the support panel (112), the textile spanning the plurality of first sections and the plurality of second sections (see Figs. 2B and 6B and paragraphs 0048-0049 and 0063; textile layer 116 is generally coextensive with support panel 112 and therefore spans the plurality of first sections and the plurality of second sections defined by grooves 136 and protrusions 134, respectively).
Regarding claim 22, Liu further discloses wherein the textile (116) is generally coextensive with the side (112b) of the support panel (112); and the textile is bonded continuously along the side of the support panel (see at least Fig. 2B and paragraph 0063).
Regarding claim 23, Liu further discloses a textile (116) including strands (see paragraphs 0048-0049; Liu discloses wherein textile 116 forms a fabric sheet, which is formed of yarns/threads/strands), wherein substantially all of the strands of the textile are bonded to the panel surface (see at least Fig. 2B and paragraph 0063).
Regarding claim 24, Liu discloses a molded support panel (112) configured to provide support to the wearer’s breasts (see at least paragraphs 0048-0051 and 0062) and wherein flexure grooves (136) provide “higher deformability to conform to varying sized and shaped breasts” (see at least Figs. 6B-6C and paragraphs 0059-0064 and 0067), such that the support panel structure taught by Liu is capable of slowing acceleration of breast tissue during athletic activity via expansion and/or contraction along the first curved sections. 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).
It is noted that the recitation of “configured to slow acceleration via expansion and/or contraction along the first curved sections” is a functional limitation. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the limitation is not patentable and is fully met by the reference. See In re Swinehart, 169 USPQ 226. See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art. Liu discloses the structure as claimed and therefore would have a reasonable expectation of performing such function. See MPEP 2173.05(g).
Regarding claim 25, Liu discloses an athletic garment (brassiere 100, which is capable of being used for athletic purposes, see support panel embodiment of Figs. 6A-6C) comprising:
a molded foam cup body (112, see Figs. 6A-6B and paragraphs 0059-0064) having a three-dimensional shape (see Fig. 6C and paragraphs 0004 and 0061; each cup has “a three-dimensional configuration” defining a convex outer surface and a concave inner surface, so as to accommodate the shape of the wearer’s breasts), the molded foam cup body defining:
a front side (exterior side 112b as seen in Fig. 6A) including a generally convex cup surface (see Fig. 6C and note above),
a rear side (interior side 112a as seen in Fig. 6B) defining a generally concave cup surface configured to face the single breast (see Fig. 6C and note above);
a perimetral edge (perimeter edge of 112a, see Figs. 6A-6B), and
a central cup location within the generally concave cup surface (central location proximate the cup apex, see Figs. 2B and 6B-6C);
a plurality of elongated flexure grooves (full-length, laterally-extending grooves of 136) recessed into the molded foam cup body (see at least Figs. 6B-6C and paragraphs 0059-0063), the plurality of elongated flexure grooves including at least a first arcuate flexure groove and a second arcuate flexure groove (e.g., top two full-length, laterally-extending grooves of 136, see Fig. 6B), each of the first and second arcuate flexure grooves extending along a curved path within a surface of the molded foam cup body without extending through the molded foam cup body (see at least Figs. 6B-6C and paragraphs 0059-0063); and
a textile layer (116) positioned over at least one of the generally convex cup surface and the generally concave cup surface (see at least Fig. 2B and paragraphs 0048-0049 and 0063),
wherein the first arcuate flexure groove and the second arcuate flexure groove are non-intersecting and nested relative to the central cup location (see at least Fig. 6B);
wherein each of the first and second arcuate flexure grooves defines a groove bottom surface (bottom surface of 136) recessed below adjacent non-recessed surface portions (134) of the side such that the molded foam cup body has a first thickness at each of the first and second arcuate flexure grooves and a second thickness at the adjacent non-recessed surface portions, the second thickness being greater than the first thickness (see at least Figs. 6B-6C and paragraphs 0059-0063); and
wherein the first and second arcuate flexure grooves define flexure zones configured to permit localized bending or stretching of the molded foam cup body along the curved paths while the adjacent non-recessed surface portions resist stretching to enable contouring (see at least Figs. 6B-6C and paragraphs 0059-0064 and 0067; note that Liu discloses wherein the groove structure of support panel 112 provides “higher deformability to conform to varying sized and shaped breasts” and therefore provide flexure grooves and flexure zones that permit localized bending/stretching along grooves 136; the Examiner further notes that the non-recessed portions/protrusions 134 would naturally define areas of greater resistance to stretching due to their increased thickness relative to the grooved portions).
It is noted that the recitation of “configured to permit localized bending or stretching of the molded foam cup body along the curved paths while the adjacent non-recessed surface portions resist stretching to enable contouring” is a functional limitation. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the limitation is not patentable and is fully met by the reference. See In re Swinehart, 169 USPQ 226. See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art. Liu discloses the structure as claimed and therefore would have a reasonable expectation of performing such function. See MPEP 2173.05(g).
Regarding claim 26, Liu further discloses wherein the textile layer (116) is bonded to the generally convex cup surface (112b; see at least Fig. 2B and paragraph 0063) such that it spans the plurality of elongated flexure grooves (136; see Figs. 2B and 6B and paragraphs 0048-0049 and 0063; textile layer 116 is generally coextensive with support panel 112 and therefore spans the plurality of elongated flexure grooves 136).
Regarding claim 27, Liu further discloses wherein the adjacent non-recessed surface portions (134) define an arcuate ridge located between the first arcuate flexure groove and the second arcuate flexure groove (top two full-length, laterally-extending grooves 136), the arcuate ridge extending along a curved path that is nested relative to the central cup location (see at least Fig. 6B).
Regarding claim 28, Liu further discloses wherein the flexure grooves are arranged in a nested array of grooves (see at least Fig. 6B and paragraph 0060), the array being configured to permit degrees of motion during active use (see at least Figs. 6B-6C and paragraphs 0059-0064 and 0067; note that Liu discloses wherein the groove structure of support panel 112 provides “higher deformability to conform to varying sized and shaped breasts” and therefore provide flexure grooves 136 that are capable of permitting degrees of motion during active use).
It is noted that the recitation of “configured to permit degrees of motion during active use” is a functional limitation. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the limitation is not patentable and is fully met by the reference. See In re Swinehart, 169 USPQ 226. See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art. Liu discloses the structure as claimed and therefore would have a reasonable expectation of performing such function. See MPEP 2173.05(g).
Regarding claim 29, Liu discloses a molded cup body (112) configured to provide support to the wearer’s breasts (see at least paragraphs 0048-0051 and 0062) and wherein flexure grooves (136) provide “higher deformability to conform to varying sized and shaped breasts” (see at least Figs. 6B-6C and paragraphs 0059-0064 and 0067), such that the cup structure taught by Liu is capable of slowing acceleration of breast tissue during athletic activity via expansion/contraction along the grooves. 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).
It is noted that the recitation of “wherein the cup slows acceleration via expansion/contraction along the grooves” is a functional limitation. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the limitation is not patentable and is fully met by the reference. See In re Swinehart, 169 USPQ 226. See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art. Liu discloses the structure as claimed and therefore would have a reasonable expectation of performing such function. See MPEP 2173.05(g).
Regarding claim 30, Liu further discloses wherein the molded foam cup body (112) is a laminated structure comprising a textile (116) bonded to a foam material (foam material of 112; see at least paragraphs 0048-0049 and 0063).
Regarding claim 31, Liu further discloses wherein the plurality of elongated flexure grooves (full-length, laterally-extending grooves 136) extend continuously along a centerline (between cups 104) of the molded foam cup body (112; see at least Fig. 6B).
Regarding claim 32, Liu discloses an athletic support panel (112, see embodiment of Figs. 6A-6C) for an article of apparel (brassiere 100, note that support panel 112 and brassiere 100 are both capable of being used for athletic purposes), the athletic support panel comprising:
a first side having a convex shape (exterior side 112b as seen in Fig. 6A) and a second side opposing the first side and having a concave shape (interior side 112a as seen in Fig. 6B; see also Fig. 6C and paragraphs 0004 and 0061; each cup has “a three-dimensional configuration” defining a convex outer surface and a concave inner surface, so as to accommodate the shape of the wearer’s breasts); and
a plurality of flexure grooves (full-length, laterally-extending flexure grooves 136) formed into and extending along one of the first and second sides of the support panel (see at least Figs. 6B-6C and paragraphs 0059-0064 and 0067; note that Liu discloses wherein the groove structure of support panel 112 provides “higher deformability to conform to varying sized and shaped breasts” and therefore provide flexure grooves inasmuch as claimed);
wherein each flexure groove of the plurality of flexure grooves extends continuously to form an arcuate shape (see at least Fig. 6B), no flexure groove intersects with any other flexure grooves (see at least Fig. 6B, none of the full-length, laterally-extending flexure grooves 136 intersects with another full-length, laterally-extending flexure groove 136), and two or more flexure grooves are aligned in a nested configuration with each other (see Fig. 6B and paragraph 0060).
Regarding claim 34, Liu further discloses wherein the plurality of flexure grooves (full-length, laterally-extending flexure grooves 136) extend continuously across a centerline of the support panel (112; see at least Figs. 6A-6B, each full-length, laterally-extending flexure groove 136 extends along a central line/location between cups 104).
Claims 2, 3, 15, 16, 20-25, and 30-34 (regarding claims 3, 23, 25, 30, and 31, as best as can be understood) are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sokolowski et al. (herein Sokolowski)(US PG Pub 2012/0094575).
Regarding claim 2, Sokolowski discloses an athletic bra (600, see Figs. 6A-6B and detail views of Figs. 3A-3B; the Examiner further notes that while Figs. 3A-3B are detail views of Fig. 2, the same double groove structure 340/640 is present in the embodiment of Figs. 6A-6B, although arranged in a different shape) comprising:
a unitary molded support panel (outer layer 330 of front region 610, see Figs. 3A-3B and 6A and paragraphs 0021-0027) defining a first panel side (exterior side of 330) and a second panel side (interior side of 330), the panel comprising a foam material (see at least paragraphs 0023 and 0026) and a perimetral edge (at least one perimeter edge of 610, adjacent the armholes, neckline, and/or chest band of bra 600, see Figs. 6A-6B), the panel further including:
a first cup (right 620) comprising a convex section at the first panel side and a concave section at the second panel side (see Fig. 6B and at least paragraphs 0020 and 0027, each cup 620 has a convex outer surface and a concave inner surface so as to accommodate the shape of the wearer’s breasts), and
a second cup (left 620) comprising a convex section at the first panel side and a concave section at the second panel side (see Fig. 6B, paragraphs 0020 and 0027, and note above);
wherein the panel includes a plurality of first sections (panel sections at grooves 640) and a plurality of second sections (uncompressed sections between and surrounding the first sections 640), each second section has a greater thickness than each first section (see Figs. 3A-3B, 5, and 6A-6B; each second section is defined by an uncompressed thickness of panel 330, and therefore has a greater thickness than a thickness of the panel at grooves 340/640), each second section is located at one or more portions of the first cup and/or the second cup (see Figs. 6A-6B), and each first section extends along the panel at a location that is between the first cup and the second cup (see Figs. 6A-6B, each groove 640 extends at least along a center portion of panel 610 between cups 620).
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Regarding claim 3, Sokolowski further discloses wherein the first panel side includes a concave section for each of the first and second cups, and the second panel side includes a convex section for each of the first and second cups (see rejection of claim 3 above under 35 USC 112(b); this limitation is being interpreted to recite wherein the first panel side is convex, and the second panel side is concave; see Fig. 6B and at least paragraphs 0020 and 0027, each cup 620 has a convex outer surface and a concave inner surface so as to accommodate the shape of the wearer’s breasts), and further wherein:
each first section extends continuously along the first panel side from the first cup to the second cup (see Figs. 6A-6B); and/or
each first section includes a first curved section at the first cup and a second curved section at the second cup (see Figs. 6A-6B, each first section along 640 has a respective curved section along the bottom of each cup 620); and/or
each first section extends between two second sections at locations between the first cup and the second cup (see Figs. 6A-6B, each first section along 640 extends between two uncompressed second sections and extends at least along center locations of panel 610 between cups 620); and/or
two or more first sections are aligned in a nested configuration with each other (see nested configuration of grooves 640 in at least Fig. 6A); and/or
each first section has a substantially complete lemniscate shape (the Examiner notes that the “and/or” language of claim 3 renders this limitation optional; however, Sokolowski does not teach or depict a substantially complete lemniscate shape).
Regarding claim 15, Sokolowski discloses an athletic garment (600, see Figs. 6A-6B and detail views of Figs. 3A-3B; the Examiner further notes that while Figs. 3A-3B are detail views of Fig. 2, the same double groove structure 340/640 is present in the embodiment of Figs. 6A-6B, although arranged in a different shape), comprising:
a unitary molded support panel (outer layer 330 of front region 610, see Figs. 3A-3B and 6A and paragraphs 0021-0027) defining a first panel side (exterior side of 330) and a second panel side (interior side of 330), the panel comprising a foam material (see at least paragraphs 0023 and 0026) and a perimetral edge (at least one perimeter edge of 610, adjacent the armholes, neckline, and/or chest band of bra 600, see Figs. 6A-6B),
the panel including a cup (at least one of left and right 620) comprising a convex section at the first panel side and a concave section at the second panel side (see Fig. 6B and at least paragraphs 0020 and 0027, each cup 620 has a convex outer surface and a concave inner surface so as to accommodate the shape of the wearer’s breasts); and
a plurality of first curved sections (panel sections along grooves 640) and a plurality of second curved sections (uncompressed sections between and surrounding the first sections 640) disposed at one of the first and second panel sides (see Figs. 3A-3B and Figs. 6A-6B and paragraphs 0021-0027), wherein:
the plurality of first curved sections and the plurality of second curved sections are formed into the one of the first panel side and the second panel side (i.e., the second/ inner panel side; see Figs. 3A-3B, 5, and 6A-6B and paragraphs 0023-0027),
the plurality of first curved sections and the plurality of second curved sections extend continuously along the cup and across a centerline of the panel (see at least Fig. 6A), and
a first curved section (along top groove 640) of the plurality of first curved sections possesses a first thickness, a second curved section (uncompressed section between the two grooves 640) of the plurality of second curved sections possesses a second thickness, the second thickness being greater than the first thickness (see Figs. 3A-3B, 5, and 6A-6B; each second section is defined by an uncompressed thickness of panel 330, and therefore has a greater thickness than a thickness of the panel along each groove 340/640).
Regarding claim 16, Sokolowski further discloses wherein two or more first curved sections of the plurality of first curved sections (panel sections along 640) are aligned in a nested configuration with each other (see nested configuration of grooves 640 in at least Fig. 6A).
Regarding claim 20, Sokolowski further discloses a textile layer (310) secured to the support panel (330, via middle bonding material layer 320) and covering the first panel side and/or the second panel side (i.e., the second/inner panel side; see at least Figs. 3A-3B, paragraphs 0023 and 0026, and claims 5 and 7).
Regarding claim 21, Sokolowski further discloses a textile layer (310) bonded to a side (i.e., the second/inner panel side) of the support panel (330, via middle bonding material layer 320; see at least Figs. 3A-3B and 5, paragraphs 0023 and 0026, and claims 5 and 7), the textile spanning the plurality of first sections (panel sections along 640) and the plurality of second sections (uncompressed sections between and surrounding the first sections 640; see Figs. 3A-3B and 6A and paragraphs 0023-0024).
Regarding claim 22, Sokolowski further discloses wherein the textile layer (310) is generally coextensive with the (second/inner) side of the support panel (330, see Figs. 3A-3B and 6A and paragraphs 0023-0024); and the textile layer is bonded continuously along the side of the support panel (via middle bonding material layer 320; see at least Figs. 3A-3B and 5, paragraphs 0023 and 0026).
Regarding claim 23, Sokolowski further discloses a textile (310) including strands (see paragraphs 0023 and 0026, and claims 5 and 7; Sokolowski discloses textile materials such as spandex, cotton, and nylon, which are formed of yarns/threads/strands), wherein substantially all of the strands of the textile are bonded to the panel surface (via middle bonding material layer 320; see at least Figs. 3A-3B and 5, paragraphs 0023 and 0026).
Regarding claim 24, Sokolowski discloses a support panel (330) with first curved sections (panel sections along grooves 640) that are configured to provide support to, and prevent excessive motion of, a wearer’s breast tissue during athletic activities (see at least Abstract and paragraphs 0002-0003, 0018-0021, and 0027). Sokolowski also discloses wherein the grooves (640) are pressed into a compressible foam material to create a moderate rigidity for supporting the wearer’s breast tissue (see at least paragraph 0021), and are therefore capable of flexing to some degree. As such, Sokolowski’s support panel would be capable of slowing acceleration of said breast tissue via expansion and/or contraction of the foam material along the grooved structure (640) of the first curved sections. 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).
It is noted that the recitation of “configured to slow acceleration via expansion and/or contraction along the first curved sections” is a functional limitation. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the limitation is not patentable and is fully met by the reference. See In re Swinehart, 169 USPQ 226. See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art. Sokolowski discloses the structure as claimed and therefore would have a reasonable expectation of performing such function. See MPEP 2173.05(g).
Regarding claim 25, Sokolowski discloses an athletic garment (600, see Figs. 6A-6B and detail views of Figs. 3A-3B; the Examiner further notes that while Figs. 3A-3B are detail views of Fig. 2, the same double groove structure 340/640 is present in the embodiment of Figs. 6A-6B, although arranged in a different shape), comprising:
a molded foam cup body (outer layer 330 of front region 610, see Figs. 3A-3B and 6A and paragraphs 0021-0027) having a three-dimensional shape (via cups 620, see at least Fig. 6B and at least paragraphs 0020 and 0027), the molded foam cup body defining:
a front side including a generally convex cup surface (see Fig. 6B and at least paragraphs 0020 and 0027, each cup 620 has a convex outer surface and a concave inner surface so as to accommodate the shape of the wearer’s breasts),
a rear side including a generally concave cup surface and configured to face the single breast (see Fig. 6B and note above),
a perimetral edge (at least one perimeter edge of 610, adjacent the armholes, neckline, and/or chest band of bra 600, see Figs. 6A-6B), and
a central cup location (adjacent apex of each cup 620) within the generally concave cup surface (see Fig. 6A);
a plurality of elongated flexure grooves (640) recessed into the molded foam cup body (see Figs. 3A-3B and 6A-6B and paragraphs 0021-0027; note that grooves 640 are pressed into a compressible foam material to create moderate rigidity for supporting the wearer’s breast tissue, and are therefore capable of flexing to some degree and defining flexure grooves; Sokolowski also discloses in paragraphs 0002-0003 wherein groove structure 640 provides enhanced flexibility in comparison to traditional underwires, to accommodate an athlete’s range of motion), the plurality of elongated flexure grooves including at least a first arcuate flexure groove (top 640) and a second arcuate flexure groove (bottom 640), each of the first and second arcuate flexure grooves extending along a curved path within a surface of the molded foam cup body without extending through the molded foam cup body (see Figs. 3A-3B and 6A-6B and paragraphs 0021-0027); and
a textile layer (310) positioned over at least one of the generally convex cup surface and the generally concave cup surface (see at least Figs. 3A-3B, paragraphs 0023 and 0026, and claims 5 and 7),
wherein the first arcuate flexure groove and the second arcuate flexure groove are non- intersecting and nested relative to the central cup location (see at least Fig. 6A);
wherein each of the first and second arcuate flexure grooves defines a groove bottom surface (see bottom surface of each groove 340/640 in Fig. 3A) recessed below adjacent non-recessed surface portions (see top surfaces of second/uncompressed sections) of the side such that the molded foam cup body has a first thickness at each of the first and second arcuate flexure grooves and a second thickness at the adjacent non-recessed surface portions, the second thickness being greater than the first thickness (see Figs. 3A-3B, 5, and 6A-6B; each non-recessed portion is defined by an uncompressed thickness of panel 330, and therefore defines a greater thickness than the thickness of the panel at each groove 340/640); and
wherein the first and second arcuate flexure grooves define flexure zones (along the wearer’s sternum and bottom of the wearer’s breasts, see Figs. 6A-6B and paragraphs 0003 and 0020-0021) configured to permit localized bending or stretching of the molded foam cup body along the curved paths while the adjacent non-recessed surface portions resist stretching to enable contouring (see paragraphs 0021-0023 and note above; grooves 640 are pressed into a compressible foam material to create moderate rigidity for supporting the wearer’s breast tissue, and are therefore capable of flexing to some degree and defining flexures zones along the wearer’s sternum and bottom of the wearer’s breasts; Sokolowski also discloses in paragraphs 0002-0003 wherein groove structure 640 provides enhanced flexibility in comparison to traditional underwires, to accommodate an athlete’s range of motion; the Examiner further notes that the non-recessed portions would naturally define areas of greater resistance to stretching due to their increased thickness relative to the grooved portions).
It is noted that the recitation of “configured to permit localized bending or stretching of the molded foam cup body along the curved paths while the adjacent non-recessed surface portions resist stretching to enable contouring” is a functional limitation. It is well settled that it is possible for functional language to define structure, but that where no distinguishing structure has been defined, the limitation is not patentable and is fully met by the reference. See In re Swinehart, 169 USPQ 226. See also General Electric v. United States, 198 USPQ 73 which further reinforced the concept that functional language which defines no structure cannot distinguish over the prior art. Sokolowski discloses the structure as claimed and therefore would have a reasonable expectation of performing such function. See MPEP 2173.05(g).
Regarding claim 30, Sokolowski further discloses wherein the molded foam cup body is a laminated structure comprising a textile (310) bonded (via 320) to a foam material (330; see Figs. 3A-3B and at least paragraphs 0023-0034).
Regarding claim 31, Sokolowski further discloses wherein the plurality of elongated flexure grooves (640) extend continuously along a centerline (between cups 620) of the molded foam cup body (330; see at least Figs. 6A-6B).
Regarding claim 32, Sokolowski discloses an athletic support panel (610) for an article of apparel (610; see Figs. 6A-6B and detail views of Figs. 3A-3B; the Examiner further notes that while Figs. 3A-3B are detail views of Fig. 2, the same double groove structure 340/640 is present in the embodiment of Figs. 6A-6B, although arranged in a different shape), the athletic support panel comprising:
a first side (outer side of outer layer 330 of support panel 610, see Figs. 3A-3B and 6A and paragraphs 0021-0027) having a convex shape and a second side (inner side of 330) opposing the first side and having a concave shape (see Fig. 6B and at least paragraphs 0020 and 0027, each cup 620 has a convex outer surface and a concave inner surface so as to accommodate the shape of the wearer’s breasts);
a plurality of flexure grooves (640) formed into and extending along one of the first and second sides (i.e., the second/inner side) of the support panel (see Figs. 3A-3B and 6A-6B and paragraphs 0021-0027; note that grooves 640 are pressed into a compressible foam material to create moderate rigidity for supporting the wearer’s breast tissue, and are therefore capable of flexing to some degree and defining flexure grooves; Sokolowski also discloses in paragraphs 0002-0003 wherein groove structure 640 provides enhanced flexibility in comparison to traditional underwires, to accommodate an athlete’s range of motion);
wherein each flexure groove of the plurality of flexure grooves extends continuously to form an arcuate shape (see Figs. 6A-6B), no flexure groove intersects with any other flexure groove (see Figs. 6A-6B), and two or more flexure grooves are aligned in a nested configuration with each other (see Figs. 6A-6B).
Regarding claim 33, Sokolowski further discloses a plurality of surface sections (non-recessed/uncompressed sections located between and around each groove 640), each surface section being defined between a corresponding pair of flexure grooves (640) along one of the first and second sides of the support panel (see at least Figs. 3A-3B and 6A-6B); wherein each surface section extends continuously to form an arcuate shape (along each groove 640) with no flexure groove intersecting the surface section (see at least Figs. 3A-3B and 6A-6B).
Regarding claim 34, Sokolowski further discloses wherein the plurality of elongated flexure grooves (640) extend continuously along a centerline (between cups 620) of the support panel (610; see at least Figs. 6A-6B).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Liu, as applied to claim 2 above, in view of Moses-Jones et al. (herein Moses-Jones)(US PG Pub 2012/0149277).
Regarding claim 10, Liu discloses the limitations of claim 2, as discussed above, and further discloses a textile layer (116) secured to the first panel side (112b; see Fig. 2B and paragraphs 0048-0049 and 0063), but fails to further disclose wherein the textile layer is secured only at the perimetral edge of the panel such that at least 90% of the surface area of the textile layer is unsecured to the first panel side. Instead, Liu discloses wherein the outer textile layer (116) is preferably bonded and/or laminated with the support panel (112) but further discloses wherein other assembly variations are possible (see paragraphs 0048-0049, 0063, and 0066).
However, Moses-Jones teaches a bra (10) having an inner support layer (12b), and an outer textile layer (12a), wherein the textile layer is secured only at the perimetral edge of the support layer (see Figs. 1 and 3 and paragraphs 14-0018), so as to allow the layers of the bra to move freely with respect to each other and more easily conform to the individual shape and/or size of the wearer (see paragraph 0017).
Therefore, based on Moses-Jones’ 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 Liu’s bra such that the textile layer and the panel would be secured together only at the perimetral edge of the panel; as doing so would allow the layers of the bra to move freely with respect to each other and more easily conform to the individual shape and/or size of the wearer.
Moses-Jones further teaches wherein the layers are configured to move freely with respect to each other “within almost all of a region contacting the wearer” (see paragraph 0017) but fails to specify a ratio of at least 90% of the surface area of the textile layer.
However, absent a teaching of criticality for the particular claimed range of at least 90%, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have experimented with different ranges of secured/unsecured surface areas, in order to achieve an optimal configuration to accommodate a desired balance between secure attachment of the layers to one another (see paragraph 0063 of Liu), and freedom of movement (see paragraph 0017 of Moses-Jones), since discovering the optimum or workable ranges of the degrees of attachment between brassiere layers involves only routine skill in the art. See MPEP 2144.05.
The Examiner notes that the claimed ratio of unattached surface area appears to be disclosed in the instant specification merely as an exemplary, non-critical value. See paragraph 0047 which states: “The remainder or a substantial portion (e.g., at least 90% of the surface area) of one of both of the textile layers 405, 410 may be left unsecured or uncoupled to the panel side 205, 210. That is, the textile 405, 410, instead of being laminated to the panel via an adhesive (applied, e.g. via spraying), the fabric is tethered to the panel, along its perimeter.” Since Moses-Jones already teaches wherein the bra layers are attached to one another only along their respective perimeters (see above), one of ordinary skill in the art would expect Moses-Jones’ bra to perform in a similar manner to the claimed invention, such that the claimed ratio of at least 90% would not produce any unexpected results.
Liu further discloses wherein the support panel is formed of foam (see at least paragraphs 0049 and 0064) and wherein the support panel varies in thickness along a lengthwise dimension and/or a widthwise dimension (at least due to the grooves 136 and/or apertures 132, see Figs. 6A-6C and paragraphs 0059-0063), but fails to further disclose wherein the varied thickness range is from about 2 mm to about 4 mm. Instead, Liu discloses wherein the panel may have a base thickness of about 1mm (see paragraph 0066).
However, absent a teaching of criticality for the particular claimed range of 2-4mm inches, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have experimented with different ranges of support panel thickness, in order to achieve an optimal configuration to accommodate a desired amount of modesty, coverage, padding, and/or shape enhancement, since discovering the optimum or workable ranges of bra panel thicknesses involves only routine skill in the art. See MPEP 2144.05. Furthermore, a change in size or proportion is generally recognized as being within the level of ordinary skill in the art. See MPEP 2144.04 (IV)(A).
The Examiner notes that the claimed thicknesses appear to be disclosed in the instant specification merely as exemplary, non-critical values. See paragraph 0039 which states: “The dimensions of the grooves 240, 250, the non-recessed areas 245, 255, and/or protrusions 260 may be any suitable for its described purpose (e.g., to generate a desired amount of contouring and/or support for the wearer's breasts). By way of example, the non-recessed areas 245, 255 may possess a thickness of about 4 mm to 8 mm (e.g., 6 mm), corresponding with general panel thickness. The recessed areas or grooves 240, 250 may possess a depth of about 1- 4 mm, corresponding to a panel thickness of about 2 - 5 mm along the grooves. Finally, the protrusions 260 may possess a height of about 3 - 5 mm, corresponding to a panel thickness of about 9 - 11 mm. Accordingly, the support panel 170 can vary in thickness along its lengthwise and/or widthwise dimension from about 1 mm to about 11 mm.”
Claims 8 and 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Sokolowski, as applied to claims 2 and 15 above, in view of Liu ‘154 (US PG Pub 2019/0000154).
Regarding claim 8, Sokolowski discloses the limitations of claim 2, as discussed above, but fails to further disclose a plurality of perforations extending through the panel, wherein some of the perforations are located at the first sections.
However, Liu ‘154 discloses a molded breast support panel (140, see paragraphs 0016- 0017) comprising at least one groove (142-1, 142-2) and plurality of perforations (141) extending through the panel, wherein some of the perforations are within the groove (see Figs. 3A-3B and paragraph 0017), so as to enhance air circulation through the support panel (see paragraph 0017).
Therefore, based on Liu ‘154’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 Sokolowski's molded support panel to include a plurality of perforations extending through the panel, wherein some of the perforations are located at the first sections; as doing so would enhance air circulation through the support panel.
Regarding claim 17, Sokolowski discloses the limitations of claim 15, as discussed above, but fails to further disclose a plurality of perforations extending through the panel.
However, Liu ‘154 discloses a molded breast support panel (140, see paragraphs 0016- 0017) comprising at least one groove (142-1, 142-2) and plurality of perforations (141) extending through the panel (see Figs. 3A-3B and paragraph 0017), so as to enhance air circulation through the support panel (see paragraph 0017).
Therefore, based on Liu ‘154’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 Sokolowski's molded support panel to include a plurality of perforations extending through the panel, as doing so would enhance air circulation through the support panel.
Regarding claim 18, the modified garment of Sokolowski (i.e., Sokolowski in view of Liu ‘154) is further disclosed wherein at least some of the perforations (141 of Liu ‘154) are located at the first curved sections (along grooves 142-1, 142-2 of Liu ‘154; see Figs. 3A-3B and paragraph 0017 of Liu ‘154).
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Liu, as applied to claim 15 above.
Regarding claim 19, Liu discloses the limitations of claim 15, as discussed above. Liu further discloses wherein the support panel varies in thickness along a lengthwise dimension and/or a widthwise dimension (at least due to the grooves 136 and/or apertures 132, see Figs. 6A-6C and paragraphs 0059-0063), but fails to further disclose wherein the varied thickness range is from about 2 mm to about 4 mm. Instead, Liu discloses wherein the panel may have a base thickness of about 1mm (see paragraph 0066).
However, absent a teaching of criticality for the particular claimed range of 2-4mm inches, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have experimented with different ranges of support panel thickness, in order to achieve an optimal configuration to accommodate a desired amount of modesty, coverage, padding, and/or shape enhancement, since discovering the optimum or workable ranges of bra panel thicknesses involves only routine skill in the art. See MPEP 2144.05. Furthermore, a change in size or proportion is generally recognized as being within the level of ordinary skill in the art. See MPEP 2144.04 (IV)(A).
The Examiner notes that the claimed thicknesses appear to be disclosed in the instant specification merely as exemplary, non-critical values. See paragraph 0039 which states: “The dimensions of the grooves 240, 250, the non-recessed areas 245, 255, and/or protrusions 260 may be any suitable for its described purpose (e.g., to generate a desired amount of contouring and/or support for the wearer's breasts). By way of example, the non-recessed areas 245, 255 may possess a thickness of about 4 mm to 8 mm (e.g., 6 mm), corresponding with general panel thickness. The recessed areas or grooves 240, 250 may possess a depth of about 1- 4 mm, corresponding to a panel thickness of about 2 - 5 mm along the grooves. Finally, the protrusions 260 may possess a height of about 3 - 5 mm, corresponding to a panel thickness of about 9 - 11 mm. Accordingly, the support panel 170 can vary in thickness along its lengthwise and/or widthwise dimension from about 1 mm to about 11 mm.”
Conclusion
The prior art made of record and not relied upon is considered pertinent to Applicant's disclosure. For example, Morris et al. (herein Morris)(US PG Pub 2020/0237027) teaches a multi-layer bra wherein the layers may be bonded only at their edges, along their entire interfacing surfaces, or a combination thereof.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOCELYN BRAVO whose telephone number is (571)270-0581. The examiner can normally be reached Monday, Tuesday, Thursday, and Friday, 12:00 pm - 5:00 pm.
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/JOCELYN BRAVO/ Primary Examiner, Art Unit 3732
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