DETAILED ACTION
This office action is in response to the application filed December 20, 2024 in which claims 1-8 are presented for examination.
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-5 and 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over WO 02/00061 Roberts in view of USPN 5,928,046 Constan-Tatos and in further view of USPN 10,499,697 Posta.
To claim 1, Roberts discloses a harness for securely wearing a hydration scarf while reducing heat transfer to the beverage in the hydration scarf (see Figures 1-2, reproduced below for convenience; pg. 1, line 22 – pg. 3, line 18), the hydration scarf including a U-shaped beverage tube (24) having a right descending portion, a left descending portion, and a curved portion connecting the right descending portion with the left descending portion (see Figure 2; pg. 1, line 22 – pg. 2, line 14), the harness comprising: a U-shaped insulating layer (12,14) including: a right insulating layer portion, a left insulating layer portion, and a curved insulating layer portion connecting the right insulating layer portion with the left insulating layer portion (see Figure 1; pg. 1, line 22 – pg. 2, line 5); a strap (pg. 3, lines 5-9); a waist belt (16) (see Figure 1; pg. 1, line 22 – pg. 2, line 5); and an insulating sleeve surrounding the curved insulating layer portion, and configured to surround the curved portion of the U-shaped beverage tube (pg. 2, lines 18-24).
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Roberts does not explicitly disclose a harness wherein the strap is an adjustable chest strap having a right end connected to the right insulating layer portion and a left end connected to the left insulating layer portion or the belt is an adjustable waist strap having a right end slidably connected to the right insulating layer portion and a left end slidably connected to the left insulating layer portion.
However, Constan-Tatos teaches a U-shaped harness (see Figures 1-2B, 3D, and 5-6; col. 2, line 66 – col. 5, line 67) comprising an adjustable chest strap (24) having a right end connected to a right portion and a left end connected to a left portion; an adjustable waist strap (16) having a right end slidably connected to the right portion and a left end slidably connected to the left portion (see especially Figures 1-2B, reproduced below for convenience; col. 3, lines 46-59).
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Roberts and Constan-Tatos teach analogous inventions in the field of U-shaped harnesses. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the strap and belt of Roberts to include adjustable chest and waist straps as taught by Constan-Tatos because Constan-Tatos teaches that this configuration is known in the art and beneficial for allowing size adjustment for the wearer.
The modified invention of Roberts (i.e., Roberts in view of Constan-Tatos, as detailed above) does not expressly teach a harness further comprising a layer of dry fabric backing the U-shaped insulating layer, the layer of dry fabric configured to wick away moisture from a person wearing the harness.
However, Posta teaches a U-shaped harness (see Figures 1-4, Figures 1 and 4 reproduced below for convenience; col. 2, line 33 – col. 7, line 27) comprising a layer of dry fabric, the layer of dry fabric configured to wick away moisture from a person wearing the harness (col. 2, lines 45-64).
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The modified invention of Roberts and Posta teach analogous inventions in the field of U-shaped harnesses. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the U-shaped harness of the modified invention of Roberts to include a layer of dry fabric as taught by Posta because Posta teaches that this configuration is known in the art and beneficial for wicking moisture from a wearer.
To claim 2, the modified invention of Roberts (i.e., Roberts in view of Constan-Tatos and Postas, as detailed above) further teaches a harness wherein the adjustable chest strap includes a buckle (30,32 of Posta) (see especially Figure 1 of Posta).
To claim 3, the modified invention of Roberts (i.e., Roberts in view of Constan-Tatos and Postas, as detailed above) further teaches a harness wherein the adjustable waist strap includes a buckle (30,32 of Posta) (see especially Figure 1 of Posta).
To claim 4, the modified invention of Roberts (i.e., Roberts in view of Constan-Tatos and Postas, as detailed above) further teaches a harness further comprising: a right pocket attached to the right insulating layer portion, the right pocket configured to hold an end of the right descending portion of the U-shaped beverage tube (pg. 2, lines 25-30 of Roberts; see Figures 1 and 3-4 of Posta); and a left pocket attached to the left insulating layer portion, the left pocket configured to hold an end of the left descending portion of the U-shaped beverage tube (pg. 2, lines 25-30 of Roberts; see Figures 1 and 3-4 of Posta).
To claim 5, the modified invention of Roberts (i.e., Roberts in view of Constan-Tatos and Postas, as detailed above) further teaches a harness further comprising: a right pocket attached to the right insulating layer portion, the right pocket configured to hold a right freezer pack in thermal contact with the right descending portion of the U-shaped beverage tube (pg. 2, lines 25-30 of Roberts; see Figures 1 and 3-4 of Posta; holding freezer pack is functional); and a left pocket attached to the left insulating layer portion, the left pocket configured to hold a left freezer pack in thermal contact with the left descending portion of the U-shaped beverage tube (pg. 2, lines 25-30 of Roberts; see Figures 1 and 3-4 of Posta; holding freezer pack is functional).
To claim 7, the modified invention of Roberts (i.e., Roberts in view of Constan-Tatos and Postas, as detailed above) further teaches a harness further comprising: at least one right hook and loop material fastener configured to secure the right descending portion of the U-shaped beverage tube to the right insulating layer portion (pg. 1, line 22 – pg. 2, line 5 of Roberts); and at least one left hook and loop material fastener configured to secure the left descending portion of the U-shaped beverage tube to the left insulating layer portion (pg. 1, line 22 – pg. 2, line 5 of Roberts).
To claim 8, the modified invention of Roberts (i.e., Roberts in view of Constan-Tatos and Postas, as detailed above) further teaches a harness, wherein the right descending portion of the U-shaped beverage tube includes a right tab, the left descending portion of the U-shaped beverage tube includes a left tab (pg. 1, line 22 – pg. 2, line 5 of Roberts), further comprising: a right hook and loop material fastener configured to secure the right tab of the U-shaped beverage tube to the right insulating layer portion (pg. 1, line 22 – pg. 2, line 5 of Roberts); and a left hook and loop material fastener configured to secure the left tab of the U-shaped beverage tube to the left insulating layer portion (pg. 1, line 22 – pg. 2, line 5 of Roberts).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Roberts in view of Constan-Tatos and Posta and in further view of US Pub No. 2017/0129687 Atkins.
To claim 6, the modified invention of Roberts (i.e., Roberts in view of Constan-Tatos and Posta, as detailed above) teaches a harness as recited in claims 1 and 5, above.
The modified invention of Roberts does not expressly disclose a harness further comprising freezer packs.
However, Atkins teaches a U-shaped harness (see Figure 1, reproduced below for convenience; paras. 0028-0035) comprising freezer packs (paras. 0005, 0014, 0028).
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The modified invention of Roberts and Atkins teach analogous inventions in the field of U-shaped harnesses. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to configure the U-shaped harness of the modified invention of Roberts to include freezer packs as taught by Atkins because Atkins teaches that this configuration is known in the art and beneficial for regulating the body temperature of a wearer (para. 0014).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-8 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-9 of U.S. Patent No. 12,193,534.
Although the claims at issue are not identical, they are not patentably distinct from each other because they each claim harnesses for wearing a hydration scarf while reducing heat transfer to the beverage in the hydration scarf including substantially the same elements including a U-shaped insulating layer including: a right insulating layer portion, a left insulating layer portion, and a curved insulating layer portion connecting the right insulating layer portion with the left insulating layer portion; an adjustable chest strap having a right end connected to the right insulating layer portion and a left end connected to the left insulating layer portion; and an adjustable waist strap having a right end slidably connected to the right insulating layer portion and a left end slidably connected to the left insulating layer portion.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Additional U-shaped harnesses and/or body-worn hydration devices analogous to the instant invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GRIFFIN HALL whose telephone number is (571)270-0546. The examiner can normally be reached Monday - Friday, 9:00 am - 5:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alissa Tompkins can be reached 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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/F Griffin Hall/Primary Examiner, Art Unit 3732