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 .
Status of Claims
Claims 1-14 are pending in this application.
Election/Restrictions
Applicant's election without traverse of claims 1-14 in the reply filed on 6/2/26 is acknowledged.
Claim 15 is withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to the nonelected species.
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 1-14 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 pre-AIA the applicant regards as the invention.
Regarding claim 1, is 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 language is indefinite because the limitation “sweat sensitive area” does not definitively state what the limitation refers to. Any skin areas could be considered sweat-sensitive. All structural elements of the invention must be clearly and consistently identified and positively recited in the claim language. For purposes of examination we are interpreting the limitation to mean “any area of skin on the wearer”. Appropriate clarification is required.
Any remaining claims are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph as being dependent from a rejected base claim.
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.
Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function.
Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function.
Claim elements in this application that use the word “means” (or “step for”) are presumed to invoke § 112(f) except as otherwise indicated in an Office action. Similarly, claim elements that do not use the word “means” (or “step for”) are presumed not to invoke § 112(f) except as otherwise indicated in an Office action.
In the instant case there does not appear to be any means for language in the claims and/or language to be considered under 35 U.S.C. 112(f).
Claim Rejections - 35 USC § 102 AIA
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.
Claims 1, 2, 5, 8, 9, 10, 11 and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Diaz US 20170119063 A1 (herein after Diaz).
.
Regarding claim 1, Diaz discloses a functional bra (Abstract, as seen in annotated Figure 17 and 18), comprising: a front section shaped to cover at least a portion of a chest area of a wearer (as seen in annotated Figure 17 and 18), including a pair of cup portions (as seen in annotated Figure 17 and 18) shaped to accommodate respective ones of breasts of the wearer (as seen in annotated Figure 17 and 18), and a back section (as seen in annotated Figure 17 and 18) shaped to cover at least a portion of a back of the wearer (as seen in annotated Figure 17 and 18), wherein at least one of the cup portions (as seen in annotated Figure 17 and 18), and the back section is formed from knit fabric (Abstract, as seen in annotated Figure 17 and 18) with different knit structures representing zones of different breathability (paragraph 0003 and 0065) including at least a cool zone (as seen in annotated Figure 17 and 18) and a support zone (as seen in annotated Figure 17 and 18), wherein the cool zone is adapted to cover a sweat-sensitive area on skin of a wearer (as seen in annotated Figure 18), and has a different knit structure than the support zone with a higher breathability (paragraph 0099).
[AltContent: arrow][AltContent: arrow][AltContent: textbox (Front section)][AltContent: arrow][AltContent: arrow][AltContent: arrow][AltContent: textbox (Back section)][AltContent: textbox (Cup portions)][AltContent: arrow][AltContent: textbox (Support zone)][AltContent: connector][AltContent: arrow][AltContent: textbox (Cool zone)][AltContent: oval]
PNG
media_image1.png
746
593
media_image1.png
Greyscale
Regarding claim 2, Diaz discloses wherein the knit fabric is fabricated from a single yarn composed of a stretchable material (paragraph 0040), the stretchable material being a blend of polyester and elastane or polyamide and elastane (paragraph 0087).
Regarding claim 5, Diaz discloses wherein the knit structure of the cool zone (as seen in annotated Figure 18) has a wider or coarser mesh than the support zone (paragraph 0111), leading to larger meshes for air passage in the cool zone (372, as seen in annotated Figure 18, paragraph 0099) and a better support of the support zone (as seen in annotated Figure 18).
Regarding claim 8, Diaz discloses wherein the cool zone (as seen in annotated Figure 18) is at least partially enclosed by the support zone (as seen in annotated Figure 18).
Regarding claim 9, Diaz discloses, wherein the cool zone (paragraph 0099, as seen in Figure 18) is adapted to cover at least a portion of a thoracic spine area (as seen in Figure 18) and an upper or lower edge area of the breast (E- paragraph 0065, as seen in Figure 4 – section E includes a pattern of dropped stitches that allow for air permeability and as such better ventilation at the lower central region of the breasts).
Regarding claim 10, Diaz discloses wherein the cool zone is provided on the cup portions and extends at least one of: partially along a pair of neckline portions of respective ones of the cup portions, wherein the neckline portions continuously transition into each other, and partially along a pair of lower edge portions of respective ones of the cup portions; and/or wherein the cool zone is provided on the back section (as seen in annotated Figure 17 and 18 of Diaz) and extends at least partially along a thoracic spine portion of the back section (as seen in annotated Figure 17 and 18 of Diaz).
Regarding claim 11, Diaz discloses wherein the functional bra is composed of the knit fabric as a single layer (paragraph 0093 and 0096).
Regarding claim 14, Diaz discloses a pair of shoulder portions (as seen in annotated Figure 17 and 18) extending between respective ones of cup portions (as seen in annotated Figure 17 and 18) and the back section (as seen in annotated Figure 17 and 18) and adapted to extend over respective ones of shoulders of the wearer (as seen in annotated Figure 17 and 18), and/or a midriff portion which underlies the cup portions and is adapted to extend at least partially around a portion of a wearer (as seen in annotated Figure 17 and 18), and/or an opposed pair of side sections extending between the front section (as seen in annotated Figure 17 and 18) and the back section (as seen in annotated Figure 17 and 18) and shaped to cover at least a portion of respective ones of sides under arms of the wearer (as seen in annotated Figure 17 and 18).
[AltContent: arrow][AltContent: textbox (Cup portion)][AltContent: textbox (Shoulder portion)][AltContent: arrow][AltContent: arrow][AltContent: textbox (Side portion)][AltContent: arrow][AltContent: textbox (Back portion)][AltContent: arrow][AltContent: textbox (Midriff portion)][AltContent: arrow][AltContent: arrow]
PNG
media_image1.png
746
593
media_image1.png
Greyscale
Claim Rejections - 35 USC § 103 AIA
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 3, 4 and 6, are rejected under 35 U.S.C. 103 as being unpatentable over Diaz US 20170119063 A1 (herein after Diaz).
Regarding claim 3, the functional bra of Diaz discloses all the limitations of claim 3 except Diaz does not disclose wherein the knit fabric is composed of a blend including 80 to 98% polyamide/nylon and an inversely corresponding percentage of elastane/spandex.
Diaz discloses wherein the knit fabric is composed of a blend including polyamide/nylon and elastane/spandex (paragraph 0087 of Diaz).
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have constructed bra being made of a material with a percentage of polyamide/nylon being between 80- 98%, and the percentage of elastane/spandex being between 20-2%, proportionally to the polyamide/nylon, since it has been held that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges that would be discovered through routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, would be deemed through routine experimentation and as such is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions. See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Constructing the bra being made of a material with a percentage of polyamide/nylon being between 80- 98%, and the percentage of elastane/spandex being between 20-2%, proportionally to the polyamide/nylon, would provide necessary support and elasticity to the bra to ensure comfort for the wearer.
Regarding claim 4, the modified functional bra of Diaz discloses all the limitations of claim 4 and further teaches wherein the functional bra further comprises a midriff portion (as seen in annotated Figures 17 and 18), which underlies the cup portions (as seen in annotated Figures 17 and 18) and is adapted to extend at least partially around a portion of a torso under the breast of the wearer (as seen in annotated Figures 17 and 18), and is formed from knit fabric (as seen in annotated Figures 17 and 18) composed of a blend including polyamide/nylon and an inversely corresponding percentage of elastane/spandex (paragraph 0087), however, Diaz does not disclose thebra being made of a material with a percentage of polyamide/nylon being between 70-95%, and the percentage of elastane/spandex being between 30-5%%, inversely proportional to the polyamide/nylon.
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have constructed bra being made of a material with a percentage of polyamide/nylon being between 70-95%, and the percentage of elastane/spandex being between 30-5%%, proportionally to the polyamide/nylon, since it has been held that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges that would be discovered through routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, would be deemed through routine experimentation and as such is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions. See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Constructing the bra being made of a material with a percentage of polyamide/nylon being between 70-95%, and the percentage of elastane/spandex being between 30-5%, proportionally to the polyamide/nylon, would provide necessary support and elasticity to the bra to ensure comfort for the wearer.
Regarding claim 6, the modified functional bra of Diaz discloses all the limitations of claim 6 and further teaches wherein the volumetric mass density of the knit fabric in the cool zone is lower than in the support zone (paragraph 0063 – Diaz teaches the knit structures and stitch density being varied throughout the garment the cool zone includes patterns that are more open, the support zones having less stretch having less resilience or openess), however, Diaz does not disclose the bra having a knitted cool zone with a volumetric mass density that is about 1,5 to 20 times lower than the support zone.
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have constructed bra having a knitted cool zone with a volumetric mass densitythat is about 1,5 to 20 times lower than the support zone, since it has been held that where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges that would be discovered through routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, would be deemed through routine experimentation and as such is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions. See also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Constructing the bra having a knitted cool zone with a volumetric mass density that is about 1, 5 to 20 times lower than the support zone would make the material in the cool zones lighter, improve its breathability and ultimately make the bra more comfortable to wear.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Diaz US 20170119063 A1
(herein after Diaz) in view of Gunasekara WO 2022035381 A1 (herein after Gunasekara).
Regarding claim 7 the functional bra of Diaz discloses all the limitations of 7 except Diaz does not disclose wherein the knit structure of the cool zone is at least one of a jacquard knit and an open knit mesh and/or wherein the knit structure of the support zone is a jersey knit.
Gunasekara teaches wherein the knit structure of the cool zone is at least one of a jacquard knit and an open knit mesh (Page 2, lines 8-13) and/or wherein the knit structure of the support zone is a jersey knit (Page 40, lines 9-14).
Diaz and Gunasekara are analogous art to the claimed invention in that they relate to ventilated support bras.
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have modified the material of Diaz by constructing the knit structure of the cool zone being at least one of a jacquard knit and an open knit mesh and/or wherein the knit structure of the support zone is a jersey knit as taught by Gunasekara, in order to be able to vary the stiches and patterns creating areas of lesser density stitches and areas of greater stitch density. The modification would be a simple modification to create a garment that had different properties in different areas, such as a more open pattern allowing for air to pass through an area with higher stich density allowing for less stretch and greater rigidity hence better support.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Diaz US 20170119063 A1
(herein after Diaz) in view of Sze US 20160360801 A1 (herein after Sze).
Regarding claim 10 the functional bra of Diaz discloses all the limitations of 10 and further discloses the cool zone is provided on the back section (as seen in annotated Figure 17 and 18 of Diaz) and extends at least partially along a thoracic spine portion of the back section (as seen in annotated Figure 17 and 18 of Diaz) however, Diaz does not disclose wherein the cool zone is provided on the cup portions and extends at least one of: partially along a pair of neckline portions of respective ones of the cup portions, wherein the neckline portions continuously transition into each other, and partially along a pair of lower edge portions of respective ones of the cup portions.
Sze teaches wherein the cool zone is provided on the cup portions (as seen in annotated Figure 1) and extends at least one of: partially along a pair of neckline portions of respective ones of the cup portions (as seen in annotated Figure 1), wherein the neckline portions continuously transition into each other (as seen in annotated Figure 1), and partially along a pair of lower edge portions of respective ones of the cup portions (as seen in annotated Figure 1).
[AltContent: arrow][AltContent: arrow][AltContent: textbox (Cool zone)][AltContent: arrow][AltContent: textbox (Cup portion)][AltContent: oval]
PNG
media_image2.png
477
483
media_image2.png
Greyscale
Diaz and Sze are analogous art to the claimed invention in that they relate to ventilated support bras.
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have modified the configuration of the bra of Diaz by constructing the cool zone being on the cup portions and extending at least one of: partially along a pair of neckline portions of respective ones of the cup portions, wherein the neckline portions continuously transition into each other, and partially along a pair of lower edge portions of respective ones of the cup portions as taught by Sze, in order to better ventilate the bra top. The modification would be a simple modification to, make the garment more comfortable to wear, reduce perspiration and ensure the wearer could comfortably wear the garment for extended periods of time.
Claims 12 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Diaz US 20170119063 A1 (herein after Diaz) in view of Gaudet US 20050255789 A1 (herein after Gaudet).
Regarding claim 12, the functional bra of Diaz discloses all the limitations of claim 12 and further discloses wherein the functional bra comprises a double layer of knit fabric (paragraph 0027) disposed to overlap the front section (as seen in Figure 22, paragraph 0102), wherein the layers are composed of the same material (paragraph 0078) and knit structure (paragraph 0078), however Diaz does not disclose wherein the layers may define a cavity for receiving a foam cup.
Gaudet teaches wherein the layers may define a cavity (Abstract, paragraph 0008, as seen in Figures 3 and 4) for receiving a foam cup (Abstract).
[AltContent: arrow][AltContent: textbox (Foam pad with ventilation openings.)][AltContent: arrow][AltContent: arrow]
PNG
media_image3.png
602
528
media_image3.png
Greyscale
PNG
media_image4.png
590
263
media_image4.png
Greyscale
PNG
media_image5.png
336
251
media_image5.png
Greyscale
Gaudet is analogous art to the claimed invention in that it relates to ventilated support bras.
It would have been obvious to one having ordinary skill in the art before the effective filing date
of the invention to have modified the bra top of Diaz by constructing the layers having a cavity for receiving a foam cup as taught by Gaudet, in order to provide more support for the breast and better fit and placement of the cup portion. The modification would be a simple modification to ensure the garment provided shape and support to the breast.
Regarding claim 13, the modified functional bra of the combined references discloses wherein the functional bra comprises a foam cup between the layers (Abstract, paragraph 0008, as seen in Figures 3 and 4 of Gaudet), wherein the foam cup is provided with ventilation elements (38, Abstract, paragraph 0008, as seen in Figures 3 and 4 of Gaudet) for enhanced breathability (Abstract, paragraph 0008, as seen in Figures 3 and 4 of Gaudet).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CATHERINE M FERREIRA whose telephone number is (571)270-5916, fax number (571) 270-6916. The examiner can normally be reached on Monday - Thursday 9:00 am- 5:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, ALISSA J. TOMPKINS, at (571) 272-3425. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Catherine M. Ferreira/
Examiner, Art Unit 3732
/ALISSA J TOMPKINS/Supervisory Patent Examiner, Art Unit 3732
Prosecution Insights