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 .
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 2-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 11804200B2 in view of. Although the claims at issue are not identical, they are not patentably distinct from each other because this application is a continuation of 17/968,100 and this application claims with more words but in a broader manner the invention concisely claimed in 17/968,100.
Instant Application
U.S. Patent No. 11804200B2
Claim 2
A wearable article, comprising:
an electronic control unit; and
a color change portion operatively coupled to the electronic control unit, the color change portion comprising a plurality of panels each having a transparent portion coextensive with one another across a visible area of the color change portion, each of the plurality of panels having a separately variable transparency;
wherein the electronic control unit is configured to selectively induce a current through each of the plurality of panels to change the transparency of each of the plurality of panels independently and across a range of transparency intensity, wherein the transparency of each panel produces an adjustable rendered color of the color change portion.
Claim 1
A wearable article, comprising:
a background material having an interior surface configured to be worn proximate a body of a wearer of the wearable article and an exterior surface configured to be worn distal the body of the wearer;
an electronic control unit; and
a color change portion, secured to the exterior surface and operatively coupled to the electronic control unit, the color change portion comprising a plurality of panels each having a transparent portion coextensive with one another across a visible area of the color change portion, a first panel of the plurality of panels layered on the exterior surface and additional panels of the plurality of panels stacked on the first panel, each of the plurality of panels having a separately variable transparency;
wherein the electronic control unit is configured to selectively induce a current through each of the plurality of panels to change the transparency of each of the plurality of panels independently and across a range of transparency intensity, wherein the current through each of the plurality of panels does not pass through another one of the plurality of panels, and wherein the transparency of each panel produces an adjustable rendered color of the color change portion;
wherein the plurality of panels are comprised of at least one of: electrochromic compounds or electrochromic fibers.
Claim 3
The wearable article of claim 2, wherein the plurality of panels includes a first panel, a second panel, and a third panel, the second panel positioned between the first and third panels.
Claim 2
The wearable article of claim 1, wherein the plurality of panels includes a first panel in proximate the exterior surface, a second panel, and a third panel, the second panel positioned between the first and third panels.
Claim 4
The wearable article of claim 3, wherein the first panel is variably transparent to blue, the second panel is variably transparent to green, and the third panel is variably transparent to red.
Claim 3
The wearable article of claim 2, wherein the first panel is variably transparent to blue, the second panel is variably transparent to green, and the third panel is variably transparent to red.
Claim 5
Claim 4
Claim 6
Claim 5
Claim 7
Claim 6
Claim 8
Claim 7
Claim 9
Claim 8
Claim 10
Claim 9
Claim 11
Claim 10
Claim 12
Claim 11
Claim 13
Claim 12
Claim 14
Claim 13
Claim 15
Claim 14
Claim 16
Claim 15
Claim 17
Claim 16
Claim 18
Claim 17
Claim 19
Claim 12
Claim 20
Claim 13
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.
Claims 2-5, 7-11, 13-17 and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over Donovan et al (US 20130033378 A1) in view of Johnson et al (US 20050270619 A1)..
Regarding claim 2, Donovan a wearable article (Donovan [0008], “an article of footwear”), comprising:
an electronic control unit (Donovan [0062], “control unit 124”); and
a color change portion operatively coupled to the electronic control unit (Donovan [0042], “the article of footwear comprises an upper having one or more distinct color change portions attached to … the upper (a color change portion, secured to the exterior surface) of the article of footwear.”; [0062], “control unit 124 may send signals in the form of current changes … to color change portion 122 (color change portion operatively coupled to the electronic control unit) to control the color of color change portion 122.”),
wherein the electronic control unit is configured to selectively induce a current through each of the plurality of panels (Donovan [0133], “color change portion 2322 may be associated with multiple individual color change portions (a plurality of panels) … control unit 124 may control (by inducing a current) each of the plurality of individual color change portions separately (electronic control unit is configured to selectively induce a current through each of the plurality of panels)”).
Donovan does not disclose
the color change portion comprising a plurality of panels each having a transparent portion coextensive with one another across a visible area of the color change portion, each of the plurality of panels having a separately variable transparency;
to change the transparency of each of the plurality of panels independently and across a range of transparency intensity, wherein the transparency of each panel produces an adjustable rendered color of the color change portion.
However, Johnson discloses
the color change portion comprising a plurality of panels each having a transparent portion coextensive with one another across a visible area of the color change portion, each of the plurality of panels having a separately variable transparency (Johnson figs. 2-3; [0036], “FIG. 3 … comprises three different electrochrome materials EL1, EL2, EL3 in three separate layers (color change portion comprising a plurality of panels, layered with respect to one another) … Each of the three electrochrome materials EL1, EL2, EL3 (a plurality of panels coextensive with one another across a visible area of the color change portion) switches between a fully transparent state and a state that absorbs either red or green or blue light while being transparent for the other two colors. (each having a separately variable transparency)” figs. 2-3 disclose - a first panel, e.g., EL3, of the plurality of panels layered on exterior surface, TL, and additional panels of the plurality of panels stacked on the first panel.);;
to change the transparency of each of the plurality of panels independently and across a range of transparency intensity, wherein the transparency of each panel produces an adjustable rendered color of the color change portion (Johnson [0028], “FIG. 1 shows a block diagram of an electrochromic display and its driving circuit. (electronic control unit)”; paragraphs 50-54 – example of selectively inducing a current, by applying corresponding voltages (induce current), to each of the plurality of panels EL1-EL3 respectively (independently to each panel) to change the transparency of each corresponding panels (across a range of transparency intensity).)
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Donovan with Johnson to incorporate a driving circuit for individually driving each electrochromic panel to generate individual colors in the panel. This would have been done to rapidly produce a wide variety of desired colors in a power efficient manner. See for example Johnson paragraphs 55-56.
Regarding claim 3, Donovan in view of Johnson discloses the wearable article of claim 2, wherein the plurality of panels includes a first panel, a second panel, and a third panel, the second panel positioned between the first and third panels (Johnson [0031], “top to bottom: a transparent layer TL (exemplary exterior surface) … a third electrochromic layer EL3 (exemplary first panel in proximate the exterior surface), a second electrochromic layer EL2 (a second panel positioned between the first and third panels), a first electrochromic layer EL1 (exemplary third panel)”).
Regarding claim 4, Donovan in view of Johnson discloses the wearable article of claim 3, wherein the first panel is variably transparent to blue, the second panel is variably transparent to green, and the third panel is variably transparent to red (Johnson [0036], “Each of the three electrochrome materials EL1 (exemplary third panel), EL2 (exemplary second panel), EL3 (exemplary first panel) switches (variably) between a fully transparent state and a state that absorbs either red (third panel variably transparent to red while being transparent for the green and blue colors) or green (second panel variably transparent to green while being transparent for the red and blue colors) or blue (first panel variably transparent to blue while being transparent for the red and green colors) light while being transparent for the other two colors.”).
Regarding claim 5, Donovan in view of Johnson discloses the wearable article of claim 4, further comprising a background material positioned proximate the first panel, wherein the background material comprises an exterior surface and a background surface, wherein the exterior surface is transparent, wherein the background surface is white and visible through the exterior surface (Johnson [0031], “FIG. 2 shows the structure of an electrochrome pixel 10 … from top to bottom: a transparent layer TL (transparent exterior surface) … a substrate SU” [0036], “electrochrome materials EL1, EL2, EL3 in three separate layers placed on a white reflecting substrate SU (a white background surface visible through the exterior surface). Each of the three electrochrome materials EL1, EL2, EL3 switches between a fully transparent state”).
Regarding claim 7, Donovan in view of Johnson discloses the wearable article of claim 2, wherein the adjustable rendered color is one of a spectrum of target colors (Johnson [0036], “Each of the three electrochrome materials EL1, EL2, EL3 switches between a fully transparent state and a state that absorbs either red or green or blue light (adjustable rendered color is one of a spectrum of target colors respectively for each panel EL1, EL2, EL3) while being transparent for the other two colors.”).
Claim 8 recites a system which corresponds to the function performed by the wearable article of claim 2. As such, the mapping and rejection of claim 2 above is considered applicable to the system of claim 8.
Additionally Donovan discloses a system (Donovan [0040], “Article 100 can include color change system 120. The term "color change system" as used throughout this detailed description”).
Claim 9 recites a system which corresponds to the function performed by the wearable article of claim 3. As such, the mapping and rejection of claim 3 above is considered applicable to the system of claim 9.
Claim 10 recites a system which corresponds to the function performed by the wearable article of claim 4. As such, the mapping and rejection of claim 4 above is considered applicable to the system of claim 10.
Claim 11 recites a system which corresponds to the function performed by the wearable article of claim 5. As such, the mapping and rejection of claim 5 above is considered applicable to the system of claim 11.
Claim 13 recites a system which corresponds to the function performed by the wearable article of claim 7. As such, the mapping and rejection of claim 7 above is considered applicable to the system of claim 13.
Claim 14 recites a method which corresponds to the function performed by the wearable article of claim 2. As such, the mapping and rejection of claim 2 above is considered applicable to the method of claim 14.
Claim 15 recites a method which corresponds to the function performed by the wearable article of claim 3. As such, the mapping and rejection of claim 3 above is considered applicable to the method of claim 15.
Claim 16 recites a method which corresponds to the function performed by the wearable article of claim 4. As such, the mapping and rejection of claim 4 above is considered applicable to the method of claim 16.
Claim 17 recites a method which corresponds to the function performed by the wearable article of claim 5. As such, the mapping and rejection of claim 5 above is considered applicable to the method of claim 17.
Claim 19 recites a method which corresponds to the function performed by the wearable article of claim 7. As such, the mapping and rejection of claim 7 above is considered applicable to the method of claim 19.
Regarding claim 20, Donovan in view of Johnson discloses the method of claim 14, wherein the plurality of panels are comprised of at least one of: electrochromic compounds or electrochromic fibers (Donovan [0044], “electrochromographic materials, electrochromic fibers or fabrics”; Donovan [0133], “color change portion 2322 may be associated with multiple individual color change portions (a plurality of panels)”; Johnson [0034], “The three electrochrome layers EL1, EL2 and EL3 may correspond in any order with materials (exemplary electrochromic compounds) showing a yellow, magenta or cyan coloration, respectively.”; [0057], “The above drive schemes are related to a full color display with three different electrochromic materials (plurality of panels are comprised of electrochromic compounds).”).
Claims 6, 12 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Donovan in view of Johnson and further view of Oishi (US 20040184390 A1).
Regarding claim 6, Donovan in view of Johnson discloses the wearable article of claim 4, further comprising a background material positioned proximate the first panel, wherein the background material comprises an exterior surface and a background surface, wherein the exterior surface is transparent (Johnson [0031], “top to bottom: a transparent layer TL (exemplary exterior surface) … a first electrochromic layer EL1 (exemplary first panel) … a substrate SU (a background material positioned proximate the first panel)”), and
Donovan does not disclose wherein the background surface is fluorescent and visible through the exterior surface.
However, However, Oishi discloses wherein the background surface is fluorescent and visible through the exterior surface (exterior transparent surface) and a fluorescent base layer 41 (fluorescent background color) ... UV rays of the solar light beam L2 excite a fluorescent color former, causing it to illuminate.”)
It would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify Donovan further with Oishi to utilize a fluorescent background. This would have been done to create a basic product consisting of attractive and vibrant colors which could be modified easily as needed. See, for example, Oishi [0091], “The user can see the image in vivid colors”.
Claim 12 recites a system which corresponds to the function performed by the wearable article of claim 6. As such, the mapping and rejection of claim 6 above is considered applicable to the system of claim 12.
Claim 18 recites a method which corresponds to the function performed by the wearable article of claim 6. As such, the mapping and rejection of claim 6 above is considered applicable to the method of claim 18.
Conclusion
See the notice of references cited (PTO-892) for prior art made of record, including art that is not relied upon but considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JITESH PATEL whose telephone number is (571)270-3313. The examiner can normally be reached 8am - 5pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Said A. Broome can be reached at (571) 272-2931. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JITESH PATEL/Primary Examiner, Art Unit 2612
Prosecution Insights