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 10/3/25. As directed by the amendment, Claims 1-9 are pending in this application.
Arguments
Applicant’s arguments have been fully considered and are convincing. In view of Applicant's submission, the search has been updated, and a rejection on the claims is applied below. This action is NON-FINAL.
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 1-9 are rejected under 35 U.S.C. 103 as being unpatentable over Acevedo US 20090247047 A1 (herein after Acevedo).
Regarding claim 1, Acevedo discloses a bra cup (Abstract) for a brassiere (100, as seen in annotated Figure 1 and 4), comprising:
a body (as seen in annotated Figure 1) including
an under bust perimeter (as seen in annotated Figure 1 and 4),
an inner surface (117, as seen in annotated Figure 1 and 4), and a fabric layer (as seen in annotated Figure 1 and 4); and
a pad (as seen in annotated Figure 1 and 4) coupled to the fabric layer (111, as seen in annotated Figure 1 and 4), the pad including:
an upper edge (as seen in annotated Figure 1 and 4),
an exterior edge (as seen in annotated Figure 1 and 4), and
an under bust edge (as seen in annotated Figure 1 and 4); and
a protrusion (as seen in annotated Figure 1 and 4) extending outwardly and away from the inner surface of the pad (as seen in annotated Figure 1 and 4),
the protrusion comprising:
a first edge (as seen in annotated Figure 1 and 4) positioned opposite a second edge (as seen in annotated Figure 1 and 4),
wherein the first edge (as seen in annotated Figure 1 and 4) is proximate to the under bust edge of the pad (as seen in annotated Figure 1 and 4).
[AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (First edge)][AltContent: arrow][AltContent: arrow][AltContent: textbox (A bra cup for a brassiere.)][AltContent: textbox (A pad coupled to the fabric layer. )][AltContent: ][AltContent: arrow][AltContent: textbox (A body.)][AltContent: textbox (The pad including: an upper edge. )][AltContent: arrow][AltContent: textbox (An exterior edge.)][AltContent: arrow][AltContent: textbox (Second edge)][AltContent: textbox (An under bust edge.)][AltContent: textbox (An under bust perimeter.)][AltContent: arrow]
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[AltContent: textbox (Wherein the first edge is proximate to the under bust edge of the pad.)][AltContent: textbox (The protrusion comprising: a first edge positioned opposite a second edge.)]
.
[AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (An inner surface.)][AltContent: textbox (A fabric layer.)][AltContent: textbox (A protrusion extending outwardly and away from the inner surface of the pad.
. )]`
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the protrusion comprising a first boundary (as seen in annotated Figure 4) positioned opposite a second boundary (as seen in annotated Figure 4) and wherein the protrusion is imparted with a first width (as seen in annotated Figure 4).
[AltContent: arrow][AltContent: textbox (A first boundary.)]
[AltContent: textbox (The protrusion is imparted with a first width.)][AltContent: connector][AltContent: ][AltContent: arrow]
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[AltContent: textbox (A secondary boundary.)]
While Acevedo do not specifically disclose the protrusion being imparted with a first width of at least about 26 mm, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have constructed the protrusion within the bra cup of Acevedo having the protrusion having a first width of at least about 26 mm, since it has been held that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable measurement that would be discovered through routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, would be deemed through routine experimentation and as such is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions. See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Having the protrusion having a first width of at least about 26 mm would ensure the largest and heaviest part of the breast is supported properly to provide a better lift and appearance.
Regarding claim 2, the modified bra cup for a brassiere of Acevedo discloses wherein a portion of the first edge (as seen in annotated Figure 4 of Acevedo) is positioned away from the under bust edge (as seen in annotated Figure 4 of Acevedo).
[AltContent: arrow][AltContent: arrow][AltContent: textbox (A portion of the first edge is positioned away from the under bust edge.)]
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While Acevedo does not specifically disclose the first edge is positioned at least about 2 mm and no more than about 4 mm away from the under bust edge, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have constructed the pad of Acevedo having the first edge is positioned at least about 2 mm and no more than about 4 mm away from the under bust edge, since it has been held that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable measurement that would be discovered through routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, would be deemed through routine experimentation and as such is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions. See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Having the first edge of the pad being positioned at least about 2 mm and no more than about 4 mm away from the under bust edge would ensure the comfortable positioning of breast withing the cup; allowing flexibility and support to the wearer.
Regarding claim 3, the modified bra cup for a brassiere of Acevedo discloses wherein: the first boundary is proximate to the upper edge of the pad (as seen in annotated Figure 4), the first boundary and the upper edge define a region (as seen in annotated Figure 1) of the bra cup (as seen in annotated Figure 1), the region having a second width (as seen in annotated Figure 1).
[AltContent: arrow][AltContent: arrow][AltContent: textbox (The first boundary and the upper edge define a region of the bra cup, the region having a second width.)]
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While Acevedo does not specifically disclose the second width is imparted with a value of at least about 8 mm, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have constructed the pad of Acevedo having the second width is imparted with a value of at least about 8 mm, since it has been held that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable measurement that would be discovered through routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, would be deemed through routine experimentation and as such is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions. See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Having the second width being at least about 8 mm would ensure the pad accommodates the shape of the breast and allows for the most comfortable positioning, lift and support of the breast.
Regarding claim 4, the modified bra cup for a brassiere of Acevedo discloses wherein a second width (as seen in annotated Figures 4 and 6) defines a distance between the second boundary and the exterior edge (as seen in annotated Figures 4 and 6).
[AltContent: textbox (Second boundary.)][AltContent: arrow][AltContent: arrow][AltContent: textbox (Exterior edge.)][AltContent: connector][AltContent: ][AltContent: textbox (A second width defines a distance between the second boundary and the exterior edge.)]
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While Acevedo does not specifically disclose the second width is imparted with a value of at least about 8 mm, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have constructed the pad of Acevedo having the second width is imparted with a value of at least about 8 mm, since it has been held that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable measurement that would be discovered through routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, would be deemed through routine experimentation and as such is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions. See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Having the second width being at least about 8 mm would ensure the pad accommodates the shape of the breast and allows for the most comfortable positioning, lift and support of the breast.
Regarding claim 5, the modified bra cup for a brassiere of Acevedo discloses wherein: the under bust edge (as seen in annotated Figure 1 of Acevedo) includes a first end (as seen in annotated Figure 1 of Acevedo) positioned opposite a second end (as seen in annotated Figure 1 of Acevedo), the first boundary (as seen in annotated Figure 1 of Acevedo) is positioned proximate to the second end of the under bust edge (as seen in annotated Figure 1 of Acevedo) and the upper edge of the pad (as seen in annotated Figure 1 of Acevedo), and the second boundary is positioned proximate to the first end of the under bust edge (as seen in annotated Figure 1 and 4 of Acevedo) and proximate to the exterior edge of the pad (as seen in annotated Figure 1 and 4 of Acevedo).
[AltContent: arrow][AltContent: textbox (The first boundary is positioned proximate to the second end of the under bust edge.)][AltContent: arrow][AltContent: arrow][AltContent: textbox (A second end.)][AltContent: arrow][AltContent: textbox (A first end.)][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (Second edge)][AltContent: textbox (First edge)]
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[AltContent: textbox (The under bust edge includes a first end positioned opposite a second end. )]
Regarding claim 6, the modified bra cup for a brassiere of Acevedo discloses wherein at least a portion of each of the first boundary (as seen in annotated Figure 9) and the second boundary (as seen in annotated Figure 9) is positioned proximate to the upper edge of the pad (as seen in annotated Figure 9).
[AltContent: textbox (At least a portion of each of the first boundary and the second boundary is positioned proximate to the upper edge of the pad.)]
[AltContent: arrow][AltContent: arrow]
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Regarding claim 7, the modified bra cup for a brassiere of Acevedo discloses wherein the first edge (as seen in annotated Figure 1 of Acevedo) and the second edge (as seen in annotated Figure 1 of Acevedo) are imparted with a substantially arcuate shape (as seen in annotated Figure 1 of Acevedo).
Regarding claim 8, the modified bra cup for a brassiere of Acevedo discloses wherein the first boundary (as seen in annotated Figure 4) is proximate to the upper edge of the pad (as seen in annotated Figure 4) and the second boundary is proximate to the exterior edge of the pad (as seen in annotated Figure 4).
[AltContent: arrow][AltContent: arrow][AltContent: textbox (The first boundary is proximate to the upper edge of the pad.)][AltContent: textbox (The second boundary is proximate to the exterior edge of the pad.)]
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Regarding claim 9, the modified bra cup for a brassiere of Acevedo discloses wherein the first width is a linear distance between a first central point of the first edge (as seen in annotated Figure 4 of Acevedo) and a second central point of the second edge (as seen in annotated Figure 4 of Acevedo).
[AltContent: connector][AltContent: textbox (First width.)][AltContent: textbox (Second edge)][AltContent: arrow][AltContent: textbox (First edge)][AltContent: connector][AltContent: ]
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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
Prosecution Insights