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
Applicant’s election without traverse of Invention I. Claims 1-18, drawn to a support member, classified in A41D13/0015 in the reply filed on 10/16/2025 is acknowledged.
Claims 19-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 10/16/2025.
Claims 1-20 are presented
Claims 19-20 are withdrawn.
The present office action treats claims 1-18 on the merits.
The present office action is a non-final rejection.
Claim Objections
Applicant is advised that should claim 8 be found allowable, claim 18 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: S140. 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. 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.
Double Patenting
Claim 12 of this application is patentably indistinct from claim 12 of Application No. 19/058,336.
Claim 14 of this application is patentably indistinct from claim 14 of Application No. 19/058,336.
Claim 15 of this application is patentably indistinct from claim 15 of Application No. 19/058,336.
Claim 17 of this application is patentably indistinct from claim 17 of Application No. 19/058,336.
Pursuant to 37 CFR 1.78(f), when two or more applications filed by the same applicant or assignee contain patentably indistinct claims, elimination of such claims from all but one application may be required in the absence of good and sufficient reason for their retention during pendency in more than one application. Applicant is required to either cancel the patentably indistinct claims from all but one application or maintain a clear line of demarcation between the applications. See MPEP § 822.
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 12, 14-15, and 17 are provisionally rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 12, 14-15, and 17, respectively, of copending Application No. 19/058,336 (reference application). This is a provisional statutory double patenting rejection since the claims directed to the same invention have not in fact been patented.
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 and 18 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 of copending Application No. 19/058,336 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the examined application claims are anticipated by the reference claim(s). It is noted that claim 1 of the examined application is anticipated by claim 1 of the reference application in that the “front vertical centerline” of claim 1 of the reference application is a vertical centerline. Each of dependent claims 2-7 of the examined application is therefore anticipated by each of dependent claims 2-7 of the reference application in that the language and dependency of each of dependent claims 2-7 is identical between the reference application and the examined application. Claim 8 of the examined application is anticipated by claim 8 of the reference application because a “compression member is formed from neoprene, rubber, cotton, foam, or polyester” is a compression member formed from neoprene, rubber, cotton, or polyester; likewise, claim 18 of the examined application is anticipated by claim 8 of the reference application because a “compression member is formed from neoprene, rubber, cotton, foam, or polyester” is a compression member formed from neoprene, rubber, cotton, or polyester.
Claims 10-11 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 11 of copending Application No. 19/058,336 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the examined application claims are anticipated by the reference claim(s). It is noted that claim 11 of the copending application depends from claim 1 of the examined application, and claim 1 of the examined is anticipated by claim 1 of the reference application in that the “front vertical centerline” of claim 1 of the reference application is a vertical centerline. Claim 11 of the copending application further recites the subject matter of claim 10 of the examined application (see lines 2-3 and 6-8 of claim 11 of the copending application), and claim 11 of the copending application further recites the subject matter of claim 11 of the examined application (see lines 2-8 of claim 11 of the copending application).
Claim 13 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 13 of copending Application No. 19/058,336 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 13 of the examined application is anticipated by claim 13 of the reference application; it is noted “a front vertical centerline” of claim 13 of the reference application is a vertical centerline
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 9 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 19/058,336 in view of [Spenser, US 2017/0280792].
Claim 1 of the copending application discloses The support member of claim 1; claim 1 of the examined application is anticipated by claim 1 of the reference application in that the “front vertical centerline” of claim 1 of the reference application is a vertical centerline.
Claim 1 of the copending application does not expressly disclose wherein the pair of sleeves extends from the front portion in a direction perpendicular to a coronal plane of an individual wearing the support member.
However, Spenser teaches a support member (“sport performance garment”; Abstract, which is configured “to provide...support”; para 69) wherein a pair of sleeves extends from a front portion in an angular range that includes a direction perpendicular to a coronal plane of an individual wearing the support member: “left sleeve outer edge extends out generally anteriorly from a coronal plane of the garment at an angular range from about −15.0° to at least about +100.0° relative to a second transverse plane transecting the upper torso...right sleeve portion of the garment is biased in an arms-up configuration, such that the right sleeve outer edge extends out generally anteriorly from the coronal plane of the garment at an angular range from about −15.0° to at least about +100.0°”; para 4; Fig. 3.
Because Spenser is concerned with desired arm positioning of a support member and provides a range (i.e. from about -15.0 degrees to about 100.0 degrees wherein zero degrees would be perpendicular to coronal plane; refer to Fig. 3) encompassing the claimed limitation, the claimed directional extension considered as a result-effective variable such that one of ordinary skill could have arrived at the claimed directional extension through routine experimentation in order to provide desired member properties. The claimed directional extension is merely an optimum or workable directional extension the directional extension of the sleeves is expected to affect how a wearer’s arms are oriented relative to his body and the rest of the member when his arms are accommodated by the sleeves.
It 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 to have modified the claim 1 support member such that the pair of sleeves extends from the front portion in a direction perpendicular to a coronal plane of an individual wearing the support member in order to yield the predictable result of accommodating a wearer’s arms when the wearer wishes to have his arms extending perpendicularly outwardly from his coronal plane.
Claim 16 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 12 of copending Application No. 19/058,336 in view of [Rydman, US 9,044,051].
Claim 12 of the copending application discloses The support member of claim 12; the claims are identical.
Claim 12 of the copending application does not expressly disclose wherein each compression member is rectangular in shape.
However, Rydman teaches a support member 10 wherein a compression member 25 is rectangular in shape (col. 2 line 58). Rydman further teaches the rectangular shape is such that the compression member “smoothly eases from” a “wider area...where the panel 25 meets the garment...upward...This eliminates the potential of having excess skin and fat being pushed over the top of the panel” such that a body part is “neatly compressed across the entire...length of the panel 25” (col. 2 lines 59-67).
It 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 to have modified the claim 12 support member such that each compression member is rectangular in shape in order to neatly compress a wearer’s body across its length, as suggested by Rydman (col. 2 lines 59-67).
And/or
It 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 to have modified the claim 12 support member such that each compression member is rectangular in shape for the purpose of providing an acceptable shape for providing compression via each compression member insofar as a rectangular shape is one of numerous shapes a person having ordinary skill would have found obvious for the purpose of providing each compression member. One of ordinary skill would have been confronted with a decision as to how to shape each compression member and would have recognized that providing it in rectangular shape would be adequate for providing compression based on the teachings of Rydman.
This is a provisional nonstatutory double patenting rejection.
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.
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.
Claim 9 is 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).
Claim 9 recites “wherein the pair of sleeves extends from the front portion in a direction perpendicular to a coronal plane of an individual wearing the support member”, which is directed to or encompassing a human organism. This 35 USC 101 rejection could be overcome by reciting the human organism functionally, for example by reciting --wherein the pair of sleeves is configured to extend from the front portion in a direction perpendicular to a coronal plane of an individual wearing the support member--
Claim Rejections - 35 USC § 102
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-2, 8, and 18 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by [Berner, US 2010/0024101].
Regarding claim 1:
Berner discloses (Figs. 1-3):
A support member 100 comprising:
(It is noted support member 100 is configured to “exhibit a relatively tight fit that lays adjacent to the skin of the wearer and (b) stretch to conform with the contours of the wearer” such that it is configured to support a wearer; in addition, it meets the limitations identified hereinbelow such that it is a support member as claimed)
a body 111 including a front portion (the portion of 111 presented to the viewer in each of Figs. 1, 2, and 3); and a pair of sleeves 112, 113 extending outwardly from the front portion (Figs. 1-3), each sleeve of the pair of sleeves including an inner surface 118, an outer surface 117, and a compression member 124, 125 (i.e. 125 in sleeve 112 and 124 in sleeve 113; refer to Fig. 3) provided between the inner surface and the outer surface (para 26),
(It is noted that members 124, 125 are compression members as claimed in that each may be “any of...(a) foam members, gas-filled chambers, or plates that attenuate compression forces (i.e., impart padding or cushioning) to provide impact protection to areas of the wearer where the insert elements are located”; para 24; attention is drawn to the present disclosure as filed which states that a “compression member 56 may be formed of a compressible material, such as neoprene, rubber, cotton, polyester, and the like, and may include inner springs, gel, an air pocket, a fluid pocket, and the like” (para [0034]) such that the material of construction (i.e. foam members, gas-filled chambers, and/or plates that attenuate compression forces) and mode of action (i.e. attenuate compression forces, impart padding, and/or impart cushioning) of members 124, 125 is such that each is a compression member as claimed.)
each compression member provided on an outer side of a respective sleeve of the pair of sleeves relative to a vertical centerline of the front portion of the body (Fig. 3, wherein compression member 125 is provided on an outer side of sleeve 112 and compression member 124 is provided on an outer side of sleeve 113; in Fig. 3, compression member 124 is also provided on an inner side of sleeve 113; however, it is nonetheless provided on an outer side as well and is therefore provided on an outer side as claimed).
Regarding claim 2:
Berner discloses The support member of claim 1, as set forth above.
Berner further discloses wherein each compression member extends along a respective tricep of a wearer when worn (Fig. 3, wherein compression member 125 is provided on an outer side of sleeve 112 and compression member 124 is provided on an outer side of sleeve 113 in a region of each sleeve that is configured to cover a respective tricep; it is noted the member will fit wearers of different sizes differently such that the limitation is met and that moreover each of a wearer’s arms is capable of moving within and relative to each sleeve, e.g. by sliding a sleeve up and down his arm and/or by internally and/or externally rotating his arm within the sleeve via his rotator cuff such that the limitation is met).
Regarding claim 8:
Berner discloses The support member of claim 1, as set forth above.
Berner further discloses wherein each compression member is formed from neoprene, rubber (“rubber...incorporated into...insert elements 121-126”; para 33), cotton, or polyester.
Regarding claim 18:
Berner discloses The support member of claim 1, as set forth above.
Berner further discloses wherein each compression member is formed from neoprene, rubber (“rubber...incorporated into...insert elements 121-126”; para 33), cotton, or polyester.
Claim(s) 12-13 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by [Berner, US 2010/0024101].
Regarding claim 12:
Berner discloses (Figs. 1-3):
A support member 100 comprising:
(It is noted support member 100 is configured to “exhibit a relatively tight fit that lays adjacent to the skin of the wearer and (b) stretch to conform with the contours of the wearer” such that it is configured to support a wearer; in addition, it meets the limitations identified hereinbelow such that it is a support member as claimed)
a body 111 including a front portion (the portion of 111 presented to the viewer in each of Figs. 1, 2, and 3); and a pair of sleeves 112, 113 extending outwardly from the front portion (Figs. 1-3), each sleeve of the pair of sleeves including an inner surface 118, an outer surface 117, and a compression member 124, 125 (i.e. 125 in sleeve 112 and 124 in sleeve 113; refer to Fig. 3) provided between the inner surface and the outer surface (para 26),
(It is noted that members 124, 125 are compression members as claimed in that each may be “any of...(a) foam members, gas-filled chambers, or plates that attenuate compression forces (i.e., impart padding or cushioning) to provide impact protection to areas of the wearer where the insert elements are located”; para 24; attention is drawn to the present disclosure as filed which states that a “compression member 56 may be formed of a compressible material, such as neoprene, rubber, cotton, polyester, and the like, and may include inner springs, gel, an air pocket, a fluid pocket, and the like” (para [0034]) such that the material of construction (i.e. foam members, gas-filled chambers, and/or plates that attenuate compression forces) and mode of action (i.e. attenuate compression forces, impart padding, and/or impart cushioning) of members 124, 125 is such that each is a compression member as claimed.)
wherein each compression member extends along a respective tricep of a wearer when worn (Fig. 3, wherein compression member 125 is provided on an outer side of sleeve 112 and compression member 124 is provided on an outer side of sleeve 113 in a region of each sleeve that is configured to cover a respective tricep; it is noted the member will fit wearers of different sizes differently such that the limitation is met and that moreover each of a wearer’s arms is capable of moving within and relative to each sleeve, e.g. by sliding a sleeve up and down his arm and/or by internally and/or externally rotating his arm within the sleeve via his rotator cuff such that the limitation is met).
Regarding claim 13:
Berner discloses The support member of claim 12, as set forth above.
Berner further discloses wherein: the outer surface of each sleeve of the pair of sleeves defines an inner side facing a vertical centerline of the front portion of the body (the side closest to the front portion) and an outer side (the side furthest away from the front portion) opposite the inner side; and each compression member is provided on the outer side of a respective sleeve of the pair of sleeves (Fig. 3, wherein compression member 125 is provided on an outer side of sleeve 112 and compression member 124 is provided on an outer side of sleeve 113; in Fig. 3, compression member 124 is also provided on an inner side of sleeve 113; however, it is nonetheless provided on an outer side as well and is therefore provided on an outer side as claimed).
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.
Claim(s) 3-5 and 10-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Berner, US 2010/0024101].
Regarding claim 3:
Berner discloses The support member of claim 1, as set forth above.
Berner Figs. 1-3 does not expressly disclose wherein each compression member extends from a free end of a respective sleeve of the pair of sleeves toward an edge of the respective sleeve of the pair of sleeves extending from the front portion of the body.
As embodied in Fig. 3, compression member 124 extends from an area configured to overlie an upper arm of a wearer toward an edge of the respective sleeve extending from the front portion, while compression member 125 extends from an area configured to overlie an elbow of a wearer toward an edge of the respective sleeve extending from the front portion.
However and in further view of Berner:
Berner teaches that although the member is a “long-sleeved shirt” (para 39), it “may have the configuration of other shirt-type garments, including short-sleeved shirts” (para 39). Moreover, each compression member “may be removed from apparel 110, as depicted in FIG. 2, and positioned in different locations, as depicted in FIG. 3. Accordingly, each of insert elements 121-126 may be relocated depending upon the particular function of each of insert elements 121-126 and the desires, needs, or preferences of the wearer”; para 24.
It 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 to have modified the support member of Berner Figs. 1-3 such that it is a short-sleeved shirt and such that each compression member 124, 125 extends from a free end of a respective sleeve of the pair of sleeves of the short-sleeved shirt toward an edge of the respective sleeve of the pair of sleeves of the short-sleeved shirt extending from the front portion of the body in order to yield the predictable result of providing compression force attenuation, padding, and/or cushioning to a wearer’s body at the location from the free end toward the edge in each respective sleeve.
Regarding claim 4:
Berner teaches The support member of claim 3, as set forth above.
Berner does not expressly disclose wherein each compression member extends from the free end of the respective sleeve of the pair of sleeves past the edge of the respective sleeve of the pair of sleeves onto the front portion of the body.
However and in further view of Berner:
Berner teaches “In the configuration of FIGS. 1-3, each of outer layer 117 and inner layer 118 extend through substantially all of regions 111-113, which permits insert elements 121-126 to be secured to any area of apparel 110” (para 39; emphasis provided by Examiner). And Berner further teaches “a majority of layers 117 and 118 are unconnected to each other and lay adjacent to each other, thereby defining areas for receiving insert elements 121-126. That is, insert elements 121-126 may be positioned between unconnected areas of layers 117 and 118”; para 26. Moreover, each compression member “may be removed from apparel 110, as depicted in FIG. 2, and positioned in different locations, as depicted in FIG. 3. Accordingly, each of insert elements 121-126 may be relocated depending upon the particular function of each of insert elements 121-126 and the desires, needs, or preferences of the wearer”; para 24.
It 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 to have modified the modified Berner such that each compression member extends from the free end of the respective sleeve of the pair of sleeves past the edge of the respective sleeve of the pair of sleeves onto the front portion of the body in order to yield the predictable result of providing compression force attenuation, padding, and/or cushioning to a wearer’s body at the location from the free end toward and past the edge in each respective sleeve.
Regarding claim 5:
Berner discloses The support member of claim 1, as set forth above.
Berner does not expressly disclose wherein each compression member is rectangular in shape.
However and in further view of Berner:
Berner compression member 123 is rectangular in shape (para 30; Figs. 1-3); Berner further teaches “the shapes and sizes of attachment elements 121-126 may vary significantly”; para 30.
It 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 to have modified the support member of Berner Figs. 1-3 such that each compression member is rectangular in shape, as is compression member 123, in order to yield the predictable result of providing compression force attenuation, padding, and/or cushioning to a rectangular-shaped portion of the wearer’s body.
Regarding claim 10:
Berner discloses The support member of claim 1, as set forth above.
Bernfer further discloses further comprising a restriction panel 122 provided on the front portion between the pair of sleeves (Fig. 3) and extending toward a bottom edge of the front portion (Fig. 3), wherein the compression members are provided on the outer side of the respective sleeve of the pair of sleeves opposite an inner side of the respective sleeve of the pair of sleeves (Fig. 3), the inner side of the respective sleeve of the pair of sleeves facing the restriction panel (Fig. 3).
Berner does not expressly disclose the restriction panel 122 extending from a top edge of the front portion toward a bottom edge of the front portion.
However and in further view of Berner:
Berner teaches “In the configuration of FIGS. 1-3, each of outer layer 117 and inner layer 118 extend through substantially all of regions 111-113, which permits insert elements 121-126 to be secured to any area of apparel 110” (para 39; emphasis provided by Examiner). And Berner further teaches “a majority of layers 117 and 118 are unconnected to each other and lay adjacent to each other, thereby defining areas for receiving insert elements 121-126. That is, insert elements 121-126 may be positioned between unconnected areas of layers 117 and 118”; para 26. Moreover, each compression member “may be removed from apparel 110, as depicted in FIG. 2, and positioned in different locations, as depicted in FIG. 3. Accordingly, each of insert elements 121-126 may be relocated depending upon the particular function of each of insert elements 121-126 and the desires, needs, or preferences of the wearer”; para 24.
It 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 to have modified the support member of Berner such that restriction panel 122 is extending from a top edge of the front portion toward a bottom edge of the front portion in order to yield the predictable result of providing compression force attenuation, padding, and/or cushioning to a wearer’s body at the location from the top edge of the front portion toward a bottom edge.
Regarding claim 11:
Berner teaches The support member of claim 10, as set forth above.
Berner further teaches further comprising a protective pad 126 positioned at the front portion of the body (Fig. 3),
Berner does not expressly disclose the protective pad 126 having a width that is greater than a width of the restriction panel 122. Looking to Fig. 3, protective pad 126 appears to be about the same width as restriction panel 122; however, Fig. 3 is not expressly to scale.
However and in further view of Berner:
Berner teaches “the shapes and sizes of attachment elements 121-126 may vary significantly. For example, insert elements 121 and 122 exhibit generally square configurations, with insert element 122 being larger than insert element 121 to cover a greater area of the wearer. Whereas insert element 123 has an elongate and rectangular shape, insert element 124 is triangular and insert element 125 is circular. Although insert elements 121-125 each have geometrical shapes, insert element 126 has an undefined and non-geometrical shape. The thicknesses of insert elements 121-126 may also vary significantly to include generally flat, non-uniform, tapered, or protruding configurations, depending upon the composition and intended use of insert elements 121-126. Accordingly, the general shapes and sizes of insert elements 121-126 may vary significantly” (para 30).
It 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 to have modified the modified Berner such that its protective pad 126 is having a width that is greater than a width of the restriction panel 122 in order to yield the predictable result of a support member whose protective pad is capable of affording compression force attenuation, padding, and/or cushioning to a wearer’s body over a wider portion of the wearer’s body configured to underlie protective pad 126 than a portion of the wearer’s body configured to underlie restriction panel 122.
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Berner, US 2010/0024101] in view of [Ito, US 2019/0037937] and [Schofalvi, US 2014/0045962].
Regarding claim 6:
Berner discloses The support member of claim 1, as set forth above.
Berner further discloses wherein: each sleeve of the pair of sleeves has a sleeve elasticity (“at least one of layers 117 and 118 are formed from a textile that stretches at least thirty percent prior to tensile failure”; para 37; see also claim 2 and 18 disclosing both inner and outer layers being formed from textiles that stretch at least thirty percent prior to tensile failure).
Berner does not expressly disclose and each compression member has a compression member elasticity less than the sleeve elasticity.
However and in further view of Berner:
In Berner, the elasticity of the layers of the sleeve are such that “the positions of insert elements 121-126 may be secured through...compression forces from at least outer layer 117” (para 32) and are provided “with a relatively tight fit that stretches (e.g., at least thirty percent prior to tensile failure) to conform with the contours of the wearer. When outer layer 117 stretches, outer layer 117 is placed in tension and applies a compression force to the wearer, as well as to each of insert elements 121-126. In general, the force necessary to overcome friction (i.e., the force that moves insert elements 121-126) is at least partially dependent upon the degree to which insert elements 121-126 and layers 117 and 118 are compressed together. As the compressive force from outer layer 117 increases, therefore, the positions of insert elements 121-126 become more secure. Accordingly, compression forces from at least outer layer 117 may also be utilized to secure the positions of insert elements 121-126 within apparel 110” (para 34).
Compression members 124, 125 are “any of...(a) foam members, gas-filled chambers, or plates that attenuate compression forces (i.e., impart padding or cushioning) to provide impact protection to areas of the wearer where the insert elements are located” (para 24). Berner is silent as to whether either compression member has an elasticity less than the sleeve elasticity.
Berner is silent as to any express value or relative degree of elasticity of sleeve vs compression member.
However, Ito teaches a textile (“fabric”; para 280) configured to provide compression in a garment (para 75) wherein said textile has an elasticity correspondent to an “elastic modulus” of “1.9 MPa or less” (para 128) further wherein “there is a positive correlation between the elastic modulus of a knee supporter and the sense of fixation to the leg of the knee supporter. That is, it has become clear that as the elastic modulus of a knee supporter increases, the compression applied to the leg at the time of wearing may be increased all the more (namely, the tightening force against the leg can be strengthened), and as a result, the sense of fixation to the leg may be improved as the bodily sensation of a wearer” (para 75).
Schofalvi teaches an impact absorbing foam (title, abstract) appropriate for “padding” in wearing apparel (“shoe,...helmet”; para 25) wherein said impact absorbing foam has an elasticity correspondent to “a Young's modulus in the range from about 0.3 to about 75 GPa, or from about 0.3 to about 5 GPa, or from about 0.5 to about 2 GPa, or from about 5 to about 75 GPa, or from about 5 to about 15 GPa” (para 28).
Accordingly, Ito teaches a compression textile having a compression textile elasticity correspondent to an elastic modulus of 1.9 MPa or less; and Schoflavi teaches an impact absorbing foam having an elasticity correspondent to an elastic modulus about 0.3 to about 75 GPa. The present disclosure states “A material having a higher, or greater, elasticity than another material stretches a further distance than the other material under the same application of force. A material having a lower, or lesser, elasticity than another material stretches a lesser distance than the other material under the same application of force. Specifically, elasticity may be measured in pounds per square inch (psi) or gigapascals (GPa) using Young's modulus or any other suitable unit for measuring elasticity and strain. For example, when a first material has a greater elasticity than a second material, the first material has a Young's modulus lower or less than the Young's modulus of the second material, e.g., the first material has a lower psi and GPa measurement than the second material. Alternatively, when the first material has a lower elasticity than the second material, the first material has a Young's modulus higher or greater than the Young's modulus of the second material, e.g., the first material has a higher psi and GPa measurement than the second material” (para [0018] as filed) such that an impact absorbing foam having an elasticity correspondent to an elastic modulus about 0.3 to about 75 GPa as taught by Schofalvi has an elasticity which is less a compression textile elasticity correspondent to an elastic modulus of 1.9 MPa or less of Ito insofar as 1.9 MPa is equivalent to 0.0019 GPa.
It 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 to have modified the support member of Berner such that each compression member has a compression member elasticity less than the sleeve elasticity in order render each compression member capable of absorbing impact (as suggested by Schofalvi) and to render the sleeve capable of providing compression to a limb (as suggested by Ito). One of ordinary skill would have been confronted with a decision of which materials to use for constructing the support member and would have expected that providing the materials having relative elasticity as claimed would result in the garment being configured to absorb impact and provide compression based on the teachings of Schofalvi and Ito.
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Berner, US 2010/0024101], [Ito, US 2019/0037937], and [Schofalvi, US 2014/0045962] as applied to claim 6 above and further in view of [Shen, US 2014/0366585]
Regarding claim 7:
Berner in view of Ito and Schofalvi teach The support member of claim 6, as set forth above.
Berner further discloses wherein the body has a body elasticity (“at least one of layers 117 and 118 are formed from a textile that stretches at least thirty percent prior to tensile failure”; para 37; see also claim 2 and 18 disclosing both inner and outer layers being formed from textiles that stretch at least thirty percent prior to tensile failure)
Berner does not expressly disclose wherein the body has a body elasticity and the sleeve elasticity is greater than the body elasticity.
However, Shen teaches a support member 540 (“shirt 540”; para 32; Figs. 13A-13B) wherein a body 110 (i.e. the panel 110 configured to overlie a chest of a wearer) has a body elasticity (of “high-power zone 230”, which is provided on a front portion directly adjacent a sleeve seam 120; Fig. 13B and configured to overlie a chest of a wearer; Fig. 13B) and a sleeve 110 (i.e. the sleeve panel 110 configured to cover a left arm of a wearer; Fig. 13B) has a sleeve elasticity (of “low-power zone 210”, which is directly adjacent a sleeve seam 120 and configured to overlie an arm of a wearer; Fig. 13B) wherein the sleeve elasticity (of “low-power” 210) is greater than (“Modulus is a measure of power in textile fabrics...it can be characterized as tensile stress of a fabric at a selected elongation (e.g., 40% elongation). A higher modulus corresponds to higher power and compression”; para 44) the body elasticity (of “high-power” 230).
(It is noted the present disclosure states that “A material having a higher, or greater, elasticity than another material stretches a further distance than the other material under the same application of force. A material having a lower, or lesser, elasticity than another material stretches a lesser distance than the other material under the same application of force. Specifically, elasticity may be measured in pounds per square inch (psi) or gigapascals (GPa) using Young's modulus or any other suitable unit for measuring elasticity and strain. For example, when a first material has a greater elasticity than a second material, the first material has a Young's modulus lower or less than the Young's modulus of the second material, e.g., the first material has a lower psi and GPa measurement than the second material. Alternatively, when the first material has a lower elasticity than the second material, the first material has a Young's modulus higher or greater than the Young's modulus of the second material, e.g., the first material has a higher psi and GPa measurement than the second material” (para [0018] as filed) such that low-modulus, low-power sleeve elasticity 210 of Shen is greater than high-modulus, high-power 230 of Shen.)
Shen further teaches “performance apparel may have different performance characteristics at different zones relative to the body of a wearer. For example, performance apparel may apply relatively higher compression to relatively larger muscle groups, may apply relatively lower compression to relatively smaller muscle group” (para 30).
It 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 to have modified the modified Berner such that its sleeve elasticity is greater than its body elasticity in order to permit the support member to apply higher compression to the area of the wearer’s body covered by the member body than the area of the wearer’s body covered by the sleeve, as suggested by Shen (para 30).
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Berner, US 2010/0024101] in view of [Spenser, US 2017/0280792].
Regarding claim 9:
Berner discloses The support member of claim 1, as set forth above.
Berner does not expressly disclose wherein the pair of sleeves extends from the front portion in a direction perpendicular to a coronal plane of an individual wearing the support member.
However, Spenser teaches a support member (“sport performance garment”; Abstract, which is configured “to provide...support”; para 69) wherein a pair of sleeves extends from a front portion in an angular range that includes a direction perpendicular to a coronal plane of an individual wearing the support member: “left sleeve outer edge extends out generally anteriorly from a coronal plane of the garment at an angular range from about −15.0° to at least about +100.0° relative to a second transverse plane transecting the upper torso...right sleeve portion of the garment is biased in an arms-up configuration, such that the right sleeve outer edge extends out generally anteriorly from the coronal plane of the garment at an angular range from about −15.0° to at least about +100.0°”; para 4; Fig. 3.
Because Spenser is concerned with desired arm positioning of a support member and provides a range (i.e. from about -15.0 degrees to about 100.0 degrees wherein zero degrees would be perpendicular to coronal plane; refer to Fig. 3) encompassing the claimed limitation, the claimed directional extension considered as a result-effective variable such that one of ordinary skill could have arrived at the claimed directional extension through routine experimentation in order to provide desired member properties. The claimed directional extension is merely an optimum or workable directional extension the directional extension of the sleeves is expected to affect how a wearer’s arms are oriented relative to his body and the rest of the member when his arms are accommodated by the sleeves.
It 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 to have modified the support member of Berner such that the pair of sleeves extends from the front portion in a direction perpendicular to a coronal plane of an individual wearing the support member in order to yield the predictable result of accommodating a wearer’s arms when the wearer wishes to have his arms extending perpendicularly outwardly from his coronal plane.
Claim(s) 14-16 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Berner, US 2010/0024101].
Regarding claim 14:
Berner discloses The support member of claim 12, as set forth above.
Berner Figs. 1-3 does not expressly disclose wherein each compression member extends from a free end of a respective sleeve of the pair of sleeves toward an edge of the respective sleeve of the pair of sleeves extending from the front portion of the body.
As embodied in Fig. 3, compression member 124 extends from an area configured to overlie an upper arm of a wearer toward an edge of the respective sleeve extending from the front portion, while compression member 125 extends from an area configured to overlie an elbow of a wearer toward an edge of the respective sleeve extending from the front portion.
However and in further view of Berner:
Berner teaches that although the member is a “long-sleeved shirt” (para 39), it “may have the configuration of other shirt-type garments, including short-sleeved shirts” (para 39). Moreover, each compression member “may be removed from apparel 110, as depicted in FIG. 2, and positioned in different locations, as depicted in FIG. 3. Accordingly, each of insert elements 121-126 may be relocated depending upon the particular function of each of insert elements 121-126 and the desires, needs, or preferences of the wearer”; para 24.
It 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 to have modified the support member of Berner Figs. 1-3 such that it is a short-sleeved shirt and such that each compression member 124, 125 extends from a free end of a respective sleeve of the pair of sleeves of the short-sleeved shirt toward an edge of the respective sleeve of the pair of sleeves of the short-sleeved shirt extending from the front portion of the body in order to yield the predictable result of providing compression force attenuation, padding, and/or cushioning to a wearer’s body at the location from the free end toward the edge in each respective sleeve.
Regarding claim 15:
Berner teaches The support member of claim 14, as set forth above.
Berner does not expressly disclose wherein each compression member extends from the free end of the respective sleeve of the pair of sleeves past the edge of the respective sleeve of the pair of sleeves onto the front portion of the body.
However and in further view of Berner:
Berner teaches “In the configuration of FIGS. 1-3, each of outer layer 117 and inner layer 118 extend through substantially all of regions 111-113, which permits insert elements 121-126 to be secured to any area of apparel 110” (para 39; emphasis provided by Examiner). And Berner further teaches “a majority of layers 117 and 118 are unconnected to each other and lay adjacent to each other, thereby defining areas for receiving insert elements 121-126. That is, insert elements 121-126 may be positioned between unconnected areas of layers 117 and 118”; para 26. Moreover, each compression member “may be removed from apparel 110, as depicted in FIG. 2, and positioned in different locations, as depicted in FIG. 3. Accordingly, each of insert elements 121-126 may be relocated depending upon the particular function of each of insert elements 121-126 and the desires, needs, or preferences of the wearer”; para 24.
It 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 to have modified the modified Berner such that each compression member extends from the free end of the respective sleeve of the pair of sleeves past the edge of the respective sleeve of the pair of sleeves onto the front portion of the body in order to yield the predictable result of providing compression force attenuation, padding, and/or cushioning to a wearer’s body at the location from the free end toward and past the edge in each respective sleeve.
Regarding claim 16:
Berner discloses The support member of claim 12, as set forth above.
Berner does not expressly disclose wherein each compression member is rectangular in shape.
However and in further view of Berner:
Berner compression member 123 is rectangular in shape (para 30; Figs. 1-3); Berner further teaches “the shapes and sizes of attachment elements 121-126 may vary significantly”; para 30.
It 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 to have modified the support member of Berner Figs. 1-3 such that each compression member is rectangular in shape, as is compression member 123, in order to yield the predictable result of providing compression force attenuation, padding, and/or cushioning to a rectangular-shaped portion of the wearer’s body.
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over [Berner, US 2010/0024101] in view of [Ito, US 2019/0037937] and [Schofalvi, US 2014/0045962].
Regarding claim 17:
Berner discloses The support member of claim 12, as set forth above.
Berner further discloses wherein: each sleeve of the pair of sleeves has a sleeve elasticity (“at least one of layers 117 and 118 are formed from a textile that stretches at least thirty percent prior to tensile failure”; para 37; see also claim 2 and 18 disclosing both inner and outer layers being formed from textiles that stretch at least thirty percent prior to tensile failure).
Berner does not expressly disclose and each compression member has a compression member elasticity less than the sleeve elasticity.
However and in further view of Berner:
In Berner, the elasticity of the layers of the sleeve are such that “the positions of insert elements 121-126 may be secured through...compression forces from at least outer layer 117” (para 32) and are provided “with a relatively tight fit that stretches (e.g., at least thirty percent prior to tensile failure) to conform with the contours of the wearer. When outer layer 117 stretches, outer layer 117 is placed in tension and applies a compression force to the wearer, as well as to each of insert elements 121-126. In general, the force necessary to overcome friction (i.e., the force that moves insert elements 121-126) is at least partially dependent upon the degree to which insert elements 121-126 and layers 117 and 118 are compressed together. As the compressive force from outer layer 117 increases, therefore, the positions of insert elements 121-126 become more secure. Accordingly, compression forces from at least outer layer 117 may also be utilized to secure the positions of insert elements 121-126 within apparel 110” (para 34).
Compression members 124, 125 are “any of...(a) foam members, gas-filled chambers, or plates that attenuate compression forces (i.e., impart padding or cushioning) to provide impact protection to areas of the wearer where the insert elements are located” (para 24). Berner is silent as to whether either compression member has an elasticity less than the sleeve elasticity.
Berner is silent as to any express value or relative degree of elasticity of sleeve vs compression member.
However, Ito teaches a textile (“fabric”; para 280) configured to provide compression in a garment (para 75) wherein said textile has an elasticity correspondent to an “elastic modulus” of “1.9 MPa or less” (para 128) further wherein “there is a positive correlation between the elastic modulus of a knee supporter and the sense of fixation to the leg of the knee supporter. That is, it has become clear that as the elastic modulus of a knee supporter increases, the compression applied to the leg at the time of wearing may be increased all the more (namely, the tightening force against the leg can be strengthened), and as a result, the sense of fixation to the leg may be improved as the bodily sensation of a wearer” (para 75).
Schofalvi teaches an impact absorbing foam (title, abstract) appropriate for “padding” in wearing apparel (“shoe,...helmet”; para 25) wherein said impact absorbing foam has an elasticity correspondent to “a Young's modulus in the range from about 0.3 to about 75 GPa, or from about 0.3 to about 5 GPa, or from about 0.5 to about 2 GPa, or from about 5 to about 75 GPa, or from about 5 to about 15 GPa” (para 28).
Accordingly, Ito teaches a compression textile having a compression textile elasticity correspondent to an elastic modulus of 1.9 MPa or less; and Schoflavi teaches an impact absorbing foam having an elasticity correspondent to an elastic modulus about 0.3 to about 75 GPa. The present disclosure states “A material having a higher, or greater, elasticity than another material stretches a further distance than the other material under the same application of force. A material having a lower, or lesser, elasticity than another material stretches a lesser distance than the other material under the same application of force. Specifically, elasticity may be measured in pounds per square inch (psi) or gigapascals (GPa) using Young's modulus or any other suitable unit for measuring elasticity and strain. For example, when a first material has a greater elasticity than a second material, the first material has a Young's modulus lower or less than the Young's modulus of the second material, e.g., the first material has a lower psi and GPa measurement than the second material. Alternatively, when the first material has a lower elasticity than the second material, the first material has a Young's modulus higher or greater than the Young's modulus of the second material, e.g., the first material has a higher psi and GPa measurement than the second material” (para [0018] as filed) such that an impact absorbing foam having an elasticity correspondent to an elastic modulus about 0.3 to about 75 GPa as taught by Schofalvi has an elasticity which is less a compression textile elasticity correspondent to an elastic modulus of 1.9 MPa or less of Ito insofar as 1.9 MPa is equivalent to 0.0019 GPa.
It 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 to have modified the support member of Berner such that each compression member has a compression member elasticity less than the sleeve elasticity in order render each compression member capable of absorbing impact (as suggested by Schofalvi) and to render the sleeve capable of providing compression to a limb (as suggested by Ito). One of ordinary skill would have been confronted with a decision of which materials to use for constructing the support member and would have expected that providing the materials having relative elasticity as claimed would result in the garment being configured to absorb impact and provide compression based on the teachings of Schofalvi and Ito.
Conclusion
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/GRADY ALEXANDER NUNNERY/Examiner, Art Unit 3732