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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the plurality of spacers being a helical structure of claim 4 attached to a must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
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. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. 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.
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the absorbent material wrapping the support structure of claim 5 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
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. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. 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.
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the absorbent pad attached to the support structure of claim 7 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
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. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. 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.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 1 and the claims that depend therefrom are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. It is unclear what structure is required to read on “a plane representing the wearer’s scalp”, how does the human scalp relate to the garment structure?
Claims 1 and 10 and the claims that depend therefrom are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. It is unclear what the “open area” is and how it relates to the headband structure.
Claim 2 and the claims that depend therefrom are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. It is unclear what the metes and bounds of “discrete” would be when referring to the spacers. What would or would not be considered discrete?
Claim 4 and the claims that depend therefrom are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. It is unclear how the helical structure form a plurality of spacers attached to the support structure and have an air space between adjacent spacers. Isn’t a helical structure a continuous structure and therefore would not be a plurality of spacers spaced apart?
Claim 5 and the claims that depend therefrom are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. It is unclear what “the spacing structure” is an how it relates to the headband structure. Further, there is a lack of antecedent basis for this limitation in the claim.
Claim 6 and the claims that depend therefrom are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. It is unclear what the metes and bounds would be of the limitation “soft” when referring to the absorbent material. The term “soft” is a indefinite term, since it can be defined differently by different people. It is unclear what would or would not be required of the absorbent material to read on “soft”.
Claims 8 and 9 and the claims that depend therefrom are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. It is unclear if “each scalp touch zone” is the same or in addition to “a scalp touch zone” previously presented in claim 1.
Claims 11 and 12 and the claims that depend therefrom are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. It is unclear what “substantially” would require of the circular band and the flat ring, is the band required to be circular or not and is the ring required to be a ring or flat?
Claim 17 and the claims that depend therefrom are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. It is unclear if an additional support structure and plurality of spacers are being required by the claim, or if claim 17 is only some of the subject matter of claim 17, which is improper. It is unclear what structure is required to read on the claim. Applicant should make this claim an independent claim to avoid confusion.
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 1 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). The limitation “the wearer’s scalp” should include the language “configured to”, “adapted to”, “when worn” or other similar language to overcome this rejection.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-3, 10-15 and 17-19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Sullivan (US 5,787,507).
In regard to claim 1, Sullivan teaches a headband for reducing sweat accumulation and increasing airflow to a wearer's scalp when worn on the wearer's head (apparatus: 30), the headband comprising: a support structure configured to be positioned adjacent to the wearer's head (apparatus: 30); and a plurality of spacers attached to the support structure (spacers/fingers: 20), wherein each spacer is configured to extend between the support structure and the wearer's scalp and to penetrate the wearer's hair (see figures 6-8), if any, when the headband is worn (see figures 6-8), wherein each spacer (20) has a contact portion defining a scalp touch zone configured to contact the wearer's scalp (see figures 6 and 8), and wherein the spacers are arranged to define an air space between adjacent spacers (see figures 6-8), the air space extending from the support structure to a plane representing the wearer's scalp (see figures 6 and 8), excluding the scalp touch zones, and wherein the air space has at least 70% open area (see figures 6-8).
In regard to claim 2, Sullivan teaches wherein the plurality of spacers are discrete spacers (see figure 7).
In regard to claim 3, Sullivan teaches wherein at least one of the plurality of discrete spacers comprises a post (see figure 1-4).
In regard to claim 10, Sullivan teaches wherein the air space has at least 50% open area (see figures 3, 4, 7 and 8).
In regard to claim 11, Sullivan teaches wherein the support structure is a substantially circular band (see figures 2 and 7).
In regard to claim 12, Sullivan teaches wherein the support structure is a substantially flat ring (see figures 2 and 7).
In regard to claim 13, Sullivan teaches wherein the support structure comprises a portion of a hat body, and wherein the plurality of spacers are attached directly to the hat body (see figures 6-8).
In regard to claim 14, Sullivan teaches wherein the spacers are made of a material selected from the group consisting of: plastic, rubber, silicone, foam, and a combination thereof (column 4, lines 10-13).
In regard to claim 15, Sullivan teaches wherein each of the plurality of spacers has a cross-sectional shape selected from the group consisting of: circular, oval, rectangular, and semi-circular (see figures 1-4).
In regard to claim 17, Sullivan teaches a method of making a headband comprising: providing a support structure; and attaching a plurality of spacers to the support structure according to claim 1 (figures 1-4 and column 4, lines 57-61).
In regard to claim 18, Sullivan teaches a method of wearing a headband comprising placing the headband of claim 1 on a wearer's head (see figures 6 and 8), wherein the spacers penetrate the wearer's hair, if any, and contact the wearer's scalp (see figures 6 and 8).
In regard to claim 19, Sullivan teaches a hat, comprising: a crown; and a headband according to claim 1, wherein the headband is secured to the crown (figures 7 and 8).
Claim(s) 1-3, 5-7 and 10-15 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Scarnato (US 5,101,516).
In regard to claim 1, Scarnato teaches a headband for reducing sweat accumulation and increasing airflow to a wearer's scalp when worn on the wearer's head (figures 6 and 10), the headband comprising: a support structure configured to be positioned adjacent to the wearer's head (see figures 6, 9 and 10); and a plurality of spacers attached to the support structure (spacers: 42, 28), wherein each spacer is configured to extend between the support structure and the wearer's scalp and to penetrate the wearer's hair (see figures 8 and 9), if any, when the headband is worn, wherein each spacer has a contact portion defining a scalp touch zone configured to contact the wearer's scalp (see figures 8 and 9), and wherein the spacers are arranged to define an air space between adjacent spacers (see figures 3, 5 and 8), the air space extending from the support structure to a plane representing the wearer's scalp (see figures 3, 5 and 8), excluding the scalp touch zones, and wherein the air space has at least 70% open area (see figure 5).
In regard to claim 2, Scarnato teaches wherein the plurality of spacers are discrete spacers (see figures 3, 5 and 8).
In regard to claim 3, Scarnato teaches wherein at least one of the plurality of discrete spacers comprises a post (figure 7, 42 and 28).
In regard to claim 5, Scarnato teaches wherein a portion of the spacing structure located in a forehead region of the support structure is wrapped with an absorbent material (absorbent material 28 is wrapping support structure: see figures 6 and 7).
In regard to claim 6, Scarnato teaches wherein the absorbent material is soft (column 2, lines 66-68 though column 3, lines 1-7).
In regard to claim 7, Scarnato teaches further comprising an absorbent pad attached to the support structure in a forehead region (absorbent pad: 28, column 3, lines 66-68 through column 3, lines 1-7).
In regard to claim 10, Scarnato teaches wherein the air space has at least 50% open area (see figure 2).
In regard to claim 11, Scarnato teaches wherein the support structure is a substantially circular band (sweatband: 16).
In regard to claim 12, Scarnato teaches wherein the support structure is a substantially flat ring (sweatband: 16).
In regard to claim 13, Scarnato teaches wherein the support structure comprises a portion of a hat body, and wherein the plurality of spacers are attached directly to the hat body (see figures 1-2, 6 and 9).
In regard to claim 14, Scarnato teaches wherein the spacers are made of a material selected from the group consisting of: plastic, rubber, silicone, foam, and a combination thereof (spacers absorbent material 28 is made from sponge, which is foam: column 2, lines 66-68).
In regard to claim 15, Scarnato teaches wherein each of the plurality of spacers has a cross-sectional shape selected from the group consisting of: circular, oval, rectangular, and semi-circular (see figure 6 and 7).
Claim(s) 1 and 4 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Getler (US 1,140,812).
In regard to claim 1, Getler teaches a headband for reducing sweat accumulation and increasing airflow to a wearer's scalp when worn on the wearer's head (see figure 1), the headband comprising: a support structure configured to be positioned adjacent to the wearer's head (hat: 5); and a plurality of spacers attached to the support structure (spacers/coil: 9), wherein each spacer is configured to extend between the support structure and the wearer's scalp and to penetrate the wearer's hair (see figures 1, 2 and 3), if any, when the headband is worn, wherein each spacer has a contact portion defining a scalp touch zone configured to contact the wearer's scalp (contact portion 6), and wherein the spacers are arranged to define an air space between adjacent spacers (see figure 6), the air space extending from the support structure to a plane representing the wearer's scalp (see figure 2 and 3), excluding the scalp touch zones, and wherein the air space has at least 70% open area (see figures 1-3).
In regard to claim 4, Getler teaches wherein the plurality of spacers are formed by a helical structure (coil: 9).
Claim(s) 1, 8 and 9 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Abudusalam (US 2021/0030093).
In regard to claim 1, Abudusalam teaches a headband for reducing sweat accumulation and increasing airflow to a wearer's scalp when worn on the wearer's head (figures 1-6, paragraph 0060), the headband comprising: a support structure configured to be positioned adjacent to the wearer's head (headband: 10); and a plurality of spacers attached to the support structure (figure 2, element: 40), wherein each spacer is configured to extend between the support structure and the wearer's scalp and to penetrate the wearer's hair (paragraph 0059), if any, when the headband is worn, wherein each spacer has a contact portion defining a scalp touch zone configured to contact the wearer's scalp (paragraph 0059, figure 2), and wherein the spacers are arranged to define an air space between adjacent spacers (see figure 2 and paragraph 0059), the air space extending from the support structure to a plane representing the wearer's scalp (paragraph 0059), excluding the scalp touch zones, and wherein the air space has at least 70% open area (see figures 2 and paragraph 0059).
In regard to claim 8, Abudusalam The headband of claim 1, wherein each scalp touch zone has a surface area between 0.1 mm2 and 25 mm2 (paragraph 0060).
In regard to claim 9, Abudusalam teaches wherein each scalp touch zone has a surface area between 0.5 mm2 and 10 mm2 (paragraph 0060).
Claim(s) 16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Abbott (US 174,998).
In regard to claim 16, Abbott teaches a jig for assembling a headband (crown of hat: figures 1 and 2), the jig comprising a base with a channel sized to receive a portion of a helical spacer (base is hat: A and sweat band: B and channel/orifice: a), and a surrounding skirt configured to support a ring-shaped support structure (surrounding skirt is brim capable of supporting a ring-shaped support structure as required, no ring-shaped support structure is required by the claim).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure and can be found cited in PTO-892 form submitted herewith. The cited prior art to Yoon (US 4,951,320) is of particular relevance to the claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALISSA L HOEY whose telephone number is (571)272-4985. The examiner can normally be reached M-F: 9:00-5:30 EST.
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, Clinton T Ostrup can be reached at (571)272-5559. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ALISSA L. HOEY
Primary Examiner
Art Unit 3732
/ALISSA L HOEY/Primary Examiner, Art Unit 3732