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 of Species C: The “Third Embodiment” of paragraphs [0028]-[0031], paragraphs [0082]-[0110], and Figs. 20-23 in the reply filed on 11/16/2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 1-7 are identified in the reply as reading on the elected species.
The present office action treats claims 1-7 on the merits.
The present office action is a non-final 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.
Claims 1-7 are 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 1 recites “wherein the first member is disposed at least in a region corresponding to an inner thigh side of the first leg in the first cylinder portion and a region corresponding to an inner thigh side of the second leg in the second cylinder portion” and “wherein the second member is disposed at least in a region corresponding to an outer thigh side of the first leg in the first cylinder portion and a region corresponding to an outer thigh side of the second leg in the second cylinder portion”, which are limitations directed to or encompassing a human organism. This 35 USC 101 rejection could be overcome by reciting the human organism functionally, for example by changing each recitation of “a region corresponding to” to --a region configured to correspond to--
Claims 2-7 are rejected if only because they depend from a rejected claim.
In addition, claim 2 recites “a first extending portion extending through a region corresponding to the outer thigh side of the first leg toward a hem in the first cylinder portion and a second extending portion extending through a region corresponding to the outer thigh side of the second leg toward a hem in the second cylinder portion”, 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 changing each recitation of “a region corresponding to” to --a region configured to correspond to--
In addition, claim 6 recites “a degree of stretchability in vertical directions of the wearer's body is greater than a degree of stretchability in left and right directions of the wearer's body”, which is directed to or encompassing a human organism. This 35 USC 101 rejection could be overcome by reciting the human organism functionally.
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.
Claims 5-7 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.
The term “low-stretch” in claim 5 is a relative term which renders the claim indefinite. The term “low-stretch” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is not clear how low in stretch an element must be for it to be low-stretch as claimed. For the purpose of applying art, an element is a low-stretch element if its degree of stretchability is less than or equal to a degree of stretchability of the main body fabric.
Claims 6-7 are indefinite if only because they depend from an indefinite claim. In addition, it is noted that each of claims 6 and 7 further limit the indefinite “low-stretch elements”; for the purpose of applying art, an element is a low-stretch element if its degree of stretchability is less than or equal to a degree of stretchability of the main body fabric.
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) 1-4 and 5, as best understood, is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by [Miller, US 2018/0325196].
Regarding claim 1:
Miller discloses (Figs. 1A-1B):
Sport tights 100, comprising:
a main body fabric 104 including a first cylinder portion (see annotated Figs. 1A-1B – a below) configured to surround a first leg of a wearer, a second cylinder portion (see annotated Figs. 1A-1B – a below) configured to surround a second leg of the wearer, and a third cylinder portion (see annotated Figs. 1A-1B – a below) configured to surround buttocks of the wearer;
a first member 116 disposed on at least one of an inner surface or an outer surface 112 of the main body fabric (para 38); and
a second member 120 disposed on at least one of the inner surface 108 or the outer surface of the main body fabric (para 38),
wherein the sport tights include a first portion (see annotated Figs. 1A-1B – a below) including the main body fabric, a second portion (see annotated Figs. 1A-1B – a below) including the main body fabric and the first member 116, and a third portion (see annotated Figs. 1A-1B – a below) including the main body fabric and the second member 120,
wherein, among the first portion, the second portion, and the third portion, the first portion has the highest degree of stretchability (para 52), and the third portion has the lowest degree of stretchability (“modulus of elasticity...in areas where the first material 116 is applied can be...less than the modulus of elasticity...in areas where the second material 120 is applied”; para 54),
wherein the first member 116 is disposed at least in a region corresponding to an inner thigh side of the first leg in the first cylinder portion (see annotated Figs. 1A-1B – a below) and a region corresponding to an inner thigh side of the second leg in the second cylinder portion (see annotated Figs. 1A-1B – a below), and
wherein the second member 120 is disposed at least in a region corresponding to an outer thigh side of the first leg in the first cylinder portion (see annotated Figs. 1A-1B – a below) and a region corresponding to an outer thigh side of the second leg in the second cylinder portion (see annotated Figs. 1A-1B – a below).
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Regarding claim 2:
Miller discloses The sport tights according to claim 1, as set forth above.
Miller further discloses wherein the second member 120 is attached (para 56), to the main body fabric, as a first extending portion (see annotated Figs. 1A-1B – b below) extending through a region corresponding to the outer thigh side of the first leg toward a hem (see annotated Figs. 1A-1B – b below) in the first cylinder portion and a second extending portion (see annotated Figs. 1A-1B – b below) extending through a region corresponding to the outer thigh side of the second leg toward a hem (see annotated Figs. 1A-1B – b below) in the second cylinder portion.
(It is noted the term “hem” means “4. the bottom edge or border of a garment, drape, etc.
5. the edge, border, or margin of anything.”; hem. (n.d.) Random House Kernerman Webster’s College Dictionary. (2010). Retrieved December 1 2025 from https://www.thefreedictionary.com/hem)
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Regarding claim 3:
Miller discloses The sport tights according to claim 2, as set forth above.
Miller further discloses wherein the first extending portion includes a first rear extending portion (see annotated Figs. 1A-1B – c below) extending through a back body of the first cylinder portion toward the hem and a first front extending portion (see annotated Figs. 1A-1B – c below) extending through an area of the first cylinder portion closer to a front body side than the first rear extending portion toward the hem.
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Regarding claim 4:
Miller discloses The sport tights according to claim 3, as set forth above.
Miller further discloses wherein the first rear extending portion and the first front extending portion are connected (see annotated Figs. 1A-1B – d below) at (it is noted the term “at” means “1.
a. In or near the area occupied by; in or near the location of; b. In or near the position of”; at. (n.d.) American Heritage® Dictionary of the English Language, Fifth Edition. (2011). Retrieved December 1 2025 from https://www.thefreedictionary.com/at) a position corresponding to the third cylinder portion (see annotated Figs. 1A-1B – d below).
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Regarding claim 5:
Miller discloses The sport tights according to claim 1, as set forth above.
Miller further discloses wherein the first member 116 is attached as a plurality (“in a first pattern 124” of; para 60; Fig. 2) of low-stretch (“modulus...greater than the modulus...of the fabric panel 104”; para 52 and therefore low-stretch consistent with how the term is used in para [0040] of the present disclosure) elements 116 to the main body fabric.
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) 6, as best understood, is/are rejected under 35 U.S.C. 103 as being unpatentable over [Miller, US 2018/0325196] in view of [Yamakazi, JP-2008002014-A].
Regarding claim 6:
Miller discloses The sport tights according to claim 5, as set forth above.
Miller further discloses wherein the plurality of low-stretch elements are arranged in a predetermined repeating pattern (para 60; Fig. 2).
Miller does not expressly disclose and wherein, in a region in which the plurality of low- stretch elements are arranged, a degree of stretchability in vertical directions of the wearer's body is greater than a degree of stretchability in left and right directions of the wearer's body.
However, Yamakazi teaches a sport tights (“spats”; p. 2 line 5) wherein in a region comprising a “patch fabric” element that “form[s] a highly elastic region having a high elastic modulus”, a degree of stretchability in vertical directions of the wearer’s body is greater than a degree of stretchability in left and right directions of the wearer's body (“elastic modulus of the patch is higher in the horizontal direction than in the vertical direction” and the main body fabric to which the patch fabric is applied is also “having a higher elastic modulus in the horizontal direction than in the vertical direction” (the paragraph spanning p. 2-3) such that the in a region in which the patch fabric element is arranged a degree of stretchability in vertical directions of the wearer's body is greater than a degree of stretchability in left and right directions of the wearer's body.
Yamakazi further teaches “by arranging the high elastic direction...in the lateral direction of the lower limb, wearing the slim garment 1 tightens the waist 10 and the leg 11 of the wearer as a whole to maintain the body shape. A correction effect can be obtained. Further, the entire lower limbs are tightened to prevent or reduce swelling of the lower limbs, and the entire lower limbs are tightened to give a load, thereby promoting energy consumption and obtaining a better slimming effect (p. 6 lines 31-35) and “the elastic fabric and the application fabric forming the high elastic region have the elastic modulus higher in the horizontal direction than in the vertical direction, and the elastic modulus in the high elastic region is determined by the muscle belly of each muscle. By increasing the direction of crossing the muscle fibers compared to the direction along the muscle fibers, it is possible to apply a load by tightening the muscles by wearing, without requiring special training etc. Continuously load muscles such as the thighs by daily living behavior to burn fat, increase muscle mass by continuous loads, improve basal metabolism and promote energy consumption, excellent A slimming effect can be obtained” (final full paragraph of p. 7).
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 sport tights of Miller such that in a region in which the plurality of low- stretch elements are arranged, a degree of stretchability in vertical directions of the wearer's body is greater than a degree of stretchability in left and right directions of the wearer's body in order permit the tights to tighten around the body to maintain body shape; to prevent or reduce swelling of a lower limb; to promote energy consumption; to obtain a slimming effect; to burn fat; to increase muscle mass; to improve basal metabolism; and/or to promote energy consumption, as suggested by Yamakazi (p. 6 lines 31-35 and the final full paragraph of p. 7).
Claim 7
Claim 7 is free from art rejections and is subject to 35 USC 101 and 35 USC 112 rejection.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GRADY A NUNNERY whose telephone number is (571)272-2995. The examiner can normally be reached 8-5 M-F.
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/GRADY ALEXANDER NUNNERY/Examiner, Art Unit 3732