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 .
Claim Objections
Claim 10 is objected to because of the following informalities: the claim is listed as “Previously Presented” but includes markings (i.e., underlining at the end of the claim). Appropriate correction is required.
Claim 24 is objected to because of the following informalities: the claim should include a space following the number “1” in line 1. Appropriate correction is required.
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 1-27 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.
With respect to claim 1, line 10 recites that “the fabric saddle and the distal location of the fabric saddle boundary” attach to the fabric assembly. The scope of the claim unclear because the fabric saddle as a whole should encompass any location, including a distal one. It is unclear if the applicant intends to refer to the fabric saddle and a second element. Correction and clarification are required.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c).
In the present instance:
claim 14 recites the broad recitation of layers of fabric, and the claim also recites a fabric mesh which is the narrower statement of the range/limitation
claim 16 recites the broad recitation of a synthetic fabric, and the claim also recites a nylon/spandex blend which is the narrower statement of the range/limitation
claim 21 recites the broad recitation of general fabrics, and the claim also recites specific types of fabrics including Merino wool and brushed Merino wool which is the narrower statement of the range/limitation
claim 22 recites the broad recitation of fluid barrier fabric, and the claim also recites fluid proof fabric, fluid resistant fabric or fluid repellent fabric which is the narrower statement of the range/limitation
The claims are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Regarding claim 21, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
With reference to claim 26, the use of the pronoun “its” renders the claim indefinite because it is not clear which element the pronoun is referencing.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-19 and 23-27 are rejected under 35 U.S.C. 103 as being unpatentable Kwan (US 2020/0337912).
With reference to claim 1, Kwan discloses a moisture management outer wear pant garment (10) for exercise [0004] comprising a moisture management fabric assembly (420) for managing bodily fluid secretions disposed in an internal crotch region of the pant garment so as to closely contact a wearer's skin during use (figure 1);
a fabric saddle (410) which is fixedly attached to an interior surface of the pant garment along a part or full length of an outer boundary of the fabric saddle (see claim 8 on page 3 where it is disclosed that the gusset is sewn at the bottom seam of the waist portion), which outer boundary is distally located from the internal crotch region where the moisture management fabric assembly is disposed [0037], wherein the moisture management fabric assembly is at least partially attached to the fabric saddle [0029], wherein the fabric saddle and the distal location of the fabric saddle boundary indirectly attaches the moisture management fabric assembly to the outer wear pant garment [0029] in a manner that avoids externally visible seams in the crotch region as set forth in [0030].
The difference between Kwan and claim 1 is the explicit recitation that the garment is launderable.
It would have been obvious to one of ordinary skill in the art at the time of the invention to reasonably presume that the garment of Kwan is launderable because the garment of Kwan is composed of the same material as the instant application and the garment of Kwan is disclosed as leggings, yoga pants and/or technical apparel in [0004], all of which are known to be garments that may be laundered and worn or used multiple times.
As to claim 2, Kwan discloses a garment wherein no portion of the moisture management fabric assembly is directly attached to the crotch region of the pant garment as shown in figure 4 where the moisture management fabric assembly (420) is enclosed within layers (410) and (430).
With reference to claim 3, Kwan teaches the invention substantially as claimed as set forth in the rejection of claim 1.
The difference between Kwan and claim 3 is the provision that the fabric saddle has a specific attachment to the interior surface of the pant garment.
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the attachment of the fabric saddle to the garment of Kwan since it has been held that the mere rearrangement of elements previously set forth in the prior art is considered to be within the level of ordinary skill in the art.
With respect to claim 4, Kwan discloses a garment wherein the moisture management fabric assembly is at least partially attached to a fabric saddle which is fixedly attached to an interior surface of the pant garment along a full length of a fabric saddle boundary which is distally located from the crotch region as set forth in [0029-0030].
As to claim 5, Kwan discloses a garment wherein the fabric saddle has extremities that extend in length from at least two edges of the moisture management fabric assembly to the fabric saddle boundary as shown in the figures.
Regarding claim 6, Kwan discloses a garment wherein the fabric saddle has extremities that extend in length to the fabric saddle boundary as set forth in [0030] and as shown in figure 4.
As to claim 7, Kwan discloses a garment wherein the moisture management fabric assembly (420) is located over a central saddle point of the fabric saddle as shown in figure 4.
With respect to claim 8, Kwan discloses a garment wherein the fabric saddle flares upwardly towards a torso opening of the pant garment such that the fabric saddle boundary is partially situated in at least a front abdominal region and at least a lower back region of the torso opening and shown in figure 1 and 5.
With reference to claim 9, Kwan discloses a garment wherein the fabric saddle has extremities that extend in length and in opposite directions from at least two edges of the moisture management fabric assembly to the fabric saddle boundary, wherein the extremities of the fabric saddle flare upwardly towards a torso opening of the pant garment such that the fabric saddle boundary is partially situated in at least a front abdominal region and at least a lower back region of the torso opening as shown in figures 1-4.
As to claim 10, Kwan discloses a garment wherein the fabric saddle has a generally flared hyperbolic paraboloid shape comprising a central saddle point disposed in the crotch region of the pant garment as shown in figures 1-4.
With reference to claim 11, Kwan discloses a garment wherein the fabric saddle extends internally into each leg opening of the pant garment such that at portion of the fabric saddle boundary is partially situated in each of leg opening as shown in figure 1.
As to claim 12, Kwan discloses a garment wherein at least a portion of the fabric saddle boundary is located proximate to a general knee area of the pant garment and/or at least a portion of the fabric saddle boundary is located proximate to a general lower thigh area of the pant garment as shown in figures 1 and 3.
Regarding claim 13, Kwan discloses a garment wherein the fabric saddle comprises two or more fabric pieces connected together as set forth in [0029-0030].
As to claim 14, Kwan discloses a garment wherein fabric of the fabric saddle comprises one or more layers of a fabric as set forth [0028-0030].
With reference to claim 15, Kwan discloses a garment wherein fabric of the fabric saddle comprises one or more layers of a natural fabric, a synthetic fabric, a semi synthetic fabric or a combination thereof as set forth in [0031-0032].
Regarding claim 16, Kwan discloses a garment wherein fabric of the fabric saddle comprises a synthetic fabric as set forth in [0031-0032].
As to claim 17, Kwan discloses a garment wherein the moisture management fabric assembly has opposing long edges situated between a wearer's legs proximate each leg opening of the pant garment and opposing short edges (figures 1-4), wherein the moisture management fabric assembly is fixedly attached to the fabric saddle at least along the opposing long edges as set forth in [0037].
With respect to claim 18, Kwan discloses a garment wherein the moisture management fabric assembly comprises a fluid absorbing fabric core for trapping bodily fluid secretions as set forth in [0011].
As to claim 19, Kwan discloses a wherein the moisture management fabric assembly comprises a fluid absorbing fabric core including one or more layers of an absorbent, quick drying fabric as set forth in [0011].
As to claim 22, Kwan discloses a moisture management fabric assembly comprising a fluid barrier fabric (430) to prevent fluid leaking outside the pant during use, wherein the fluid barrier fabric is positioned adjacent to the fluid absorbing fabric core as set forth in [0030].
With reference to claim 23, Kwan does not include externally visible seams in the crotch as discussed in [0037].
As to claim 24, Kwan discloses a garment in the form of tights, leggings or shorts, including cycle shorts as set forth in [0009].
Regarding claim 25, Kwan discloses a garment wherein the fabric saddle includes a ventral portion and a dorsal portion, and the ventral portion and the dorsal portion only connect with each other at the internal crotch region, thus providing a gap between the ventral portion and the dorsal portion along all outer thigh areas of the pant garment as shown in annotated figure 4 below.
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As to claim 26, see the rejection of claim 3.
With reference to claim 27, Kwan teaches the invention substantially as claimed as set forth in the rejection of claim 1.
The difference between Kwan and claim 3 is the provision that the fabric saddle comprises Merino wool.
Kwan recognizes that the garment may include wool as set forth in [0004].
It would have been obvious to one of ordinary skill in the art at the time of the invention to include wool, and any specific type of wool, within the article of Kwan because Kwan acknowledges the use of wool within the garment as set forth in [0004].
Claims 20-21 are rejected under 35 U.S.C. 103 as being unpatentable Kwan (US 2020/0337912) and further in view of Moretz et al. (US 5,291,617)
With reference to claims 20-21, Kwan teaches the invention substantially as claimed as set forth in the rejection of claim 1.
The difference between Kwan and claims 20 and 21 is the provision that the moisture management fabric assembly comprises a fluid wicking fabric, selected from a specific material (cl. 21), for directly contacting a wearer's skin in use, wherein the fluid wicking fabric is positioned adjacent to a fluid absorbing fabric core.
Moretz et al. (hereinafter “Moretz”) teaches an analogous moisture management garment including a fluid wicking fabric formed of cotton (cl. 21) for directly contacting a wearer's skin in use, wherein the fluid wicking fabric is positioned adjacent to a fluid absorbing fabric core as set forth in col. 6, line 31 to col. 7, line 5.
It would have been obvious to one of ordinary skill in the art at the time of the invention to provide the assembly of Kwan with a fluid wicking fabric as taught by Moretz in order to pull moisture against the pull of gravity upwardly away from the crotch and towards the waist of the garment where the moisture can more easily be dispersed, thereby promoting quick evaporation as taught by Moretz in col. 2, lines 56-61.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Barrett (US 4,875,240) discloses pants constructed in sections.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHELE M KIDWELL whose telephone number is (571)272-4935. The examiner can normally be reached Monday-Friday, 7AM-4PM EST.
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/MICHELE KIDWELL/ Primary Examiner, Art Unit 3781
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