DETAILED ACTION
This is a Non-Final Rejection for Application 19/109,531 filed March 6, 2025. The applications is a 371 of PCT/AU2023/050853 filed September 1, 2023 which claims priority to Foreign Application AU2022902608 filed September 9, 2022. Claims 1-20 are currently pending.
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 5 is objected to because of the following informalities: “according to any one Claim 1” should be corrected to “according to Claim 1”. Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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 1-20 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.
Claim 1 recites the limitation "the length of the unstretched tube" in line 27. There is insufficient antecedent basis for this limitation in the claim. Since a length of the unstretched tube is not previously recited, it is unclear what length is being limited by the limitation. This rejection may be overcome with language such as “"a length of the unstretched tube”.
Claim 2 recites the limitation "the tube body" in line 2. There is insufficient antecedent basis for this limitation in the claim. Since a tube body is not previously recited, it is unclear what is being limited by the limitation. It is unclear if this feature is supposed to be a tube body of the tube recited in claim 2 or refer to the body tube recited in claim 1, but will be interpreted as the latter for the purposes of examination.
Claim 3 recites the limitation "the tube body" in line 2. There is insufficient antecedent basis for this limitation in the claim. Since a tube body is not previously recited, it is unclear what tube body is being limited by the limitation. This rejection may be overcome with language such as “the body tube”.
Claim 5 recites the limitation "the two free side edges" in line 4. There is insufficient antecedent basis for this limitation in the claim. Since two free side edges are not previously recited, it is unclear what is being limited by the limitation. This rejection may be overcome with language such as “[[the]] two free side edges”.
Claim 7 recites the limitation "the chest level" in line 3. There is insufficient antecedent basis for this limitation in the claim. Since a chest level is not previously recited as a location on the cover, it is unclear what is being limited by the limitation. This rejection may be overcome with language such as "a point configured to be chest level on a wearer".
Claims 4, 6 and 8-20 are rejected for depending from a rejected claim and not curing the deficiencies thereof.
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 6 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). Claim 6 recites the limitation “which is at chest level” in line 4. This limitation claims the chest of a human as a structural part of the invention. This rejection may be overcome with language such as “which is configured to be at chest level”.
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) 1-12 and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 11,116,338 (Mundt) in view of US 2018/0326175 (Figures).
Regarding claim 1, Mundt discloses a therapeutic body cover made of stretchable and resilient material (Mundt’s invention is described as a body compression sleepwear with a leg opening that preferably includes a body portion, a neck portion and a leg cover. Col. 1, Lns. 60-63 – “The material of the body portion and the neck portion is preferably fabricated from a combination Polyester and Lycra® fabric for stretch and memory.”), the cover comprising:
a body tube (A body portion 44; See Fig. 8.);
a top end including a neck and a top opening for a wearer's head or face and having an upper inner bearing surface to retain the top end at or around the wearer's head or shoulders (A neck portion 46; a body entrance 80; The body 44 comprises a top end which includes a neck portion 46 and a body entrance which as a neck and top opening, respectively. The inner surface of the neck 46 is the upper inner bearing surface and it is capable of retaining the top end of the body 44 around the wearer’s head and shoulder through its elasticity.); and
a lower end comprising a closable lower opening adapted to be closable by a releasable closure to cover the wearer's lower limbs and to present a lower inner bearing surface to retain the lower end at or around the lowermost extent of the wearer's lower limbs (Col. 5, Lns. 2-6 – “bottom corner edges 40, 42 of the first and second body sheets 34, 36 are also not sewn to each other to form a foot opening. However, the foot opening could [be] created at any location in a bottom of the body portion 30 with or without the foot flap 32.” The body 44 comprises a lower end including the foot opening, which is a lower opening, and the foot opening is closable by the foot flap 32, which is a releasable closure. The inner surface about the foot opening is the lower inner bearing surface and it is capable of retaining the lower end of the body 44 around the lowermost extent of the wearer’s lower limbs through its elasticity.),
wherein:
the lower inner bearing surface is opposed to the top inner bearing surface so that a lower force applied axially and outwardly to the lower inner bearing surface is in an opposite direction to an upper force applied axially and outwardly to the upper inner bearing surface (The lower inner bearing surface and top inner bearing surface of the body 44 are opposed to one another so that a lower force applied axially and outwardly to the lower inner bearing surface is in an opposite direction to an upper force applied axially and outwardly to the upper inner bearing surface.);
the therapeutic body cover is adapted to:
(a) selectively cover the wearer's lower limbs at the discretion of the wearer (The body compression sleepwear 1 is capable of selectively covering the wearer's lower limbs at the discretion of the wearer.);
(b) selectively cover the wearer's upper limbs at the discretion of the wearer (The body compression sleepwear 1 is capable of selectively covering the wearer's upper limbs at the discretion of the wearer.); and
(c) lightly compress the wearer's body, generally conforming to the wearer's body shape, permitting limited movement, but restricting expansive limb movement (Col. 2, Lns. 58-60 – “Accordingly, it is an object of the present invention to provide compression sleepwear, which applies compressive forces to the outside surface of a user's body”.);
the lower opening is adapted to be opened by the wearer to allow part or all of one or both of the wearer's lowermost limbs to extend from the lower opening (Col. 3, Lns. 4-7 – “Finally, it is another object of the present invention to provide body compression sleepwear with a leg opening with allows at least one leg to be inserted through a bottom thereof.”);
the length of the unstretched tube from the upper inner bearing surface to the lower inner bearing surface is adapted to position the lower end at or above the wearer's ankles to reduce the risk of the lower end being a tripping hazard in an upright or standing position (Col. 3, Lns. 4-7 – “Finally, it is another object of the present invention to provide body compression sleepwear with a leg opening with allows at least one leg to be inserted through a bottom thereof.” Therefore, the lower end of the length of the body 44 is capable of being positioned at or above the wearer's ankles.).
Mundt does not disclose the lower end is hemmed to form a lower band defining the lower opening; and the lower band is in the form of a skirt that terminates at the lower end at a lowermost edge, the lower opening being at the lowermost edge of the tube.
However, Figures discloses a sensory activity sack with an outer garment comprising an open neck and an open bottom. The open neck and open bottom are formed by hemming an outer front panel and an outer rear panel. See [0011] and Figs. 1-3. Figures teaches the lower end is hemmed to form a lower band defining the lower opening; and the lower band is in the form of a skirt that terminates at the lower end at a lowermost edge, the lower opening being at the lowermost edge of the tube (The open bottom is the lower end and is hemmed to form a lower band defining the open bottom. This forms a skirt that terminated at the lower end at a lowermost edge.).
Therefore, it would have been obvious to an artisan of ordinary skill before the effective filing date to modify the foot opening of Mundt to be hemmed to form a lower band about the foot opening as taught by Figures. A skilled artisan would have been motivated to do so because Figures teaches that the hemmed lower panel 108 provides a useful attachment point for the ties 110 ([0037]). A skilled artisan would have a reasonable expectation of success given that all references are analogous and drawn therapeutic body covers.
Regarding claim 2, Mundt in view of Figures discloses the therapeutic cover according to claim 1 wherein the cover is generally in the form of a tube including the tube body (The body 44 is tubular. See Fig. 8.).
Regarding claim 3, Mundt in view of Figures discloses the therapeutic cover according to claim 1 wherein the tube body has a variable unstretched breadth along its length from top to bottom to cover the full length of the wearer, the body tube is barrel-, frusto-elliptical-, or truncated-conical-shaped, having a larger central diameter than the diameter of the top and lower end portions and the body cover is bisymmetrical along a central longitudinal axis (Fig. 8 shows that the body 44 is barrel-shaped and that the center diameter is larger than the top and lower end portions. The body 44 is also bisymmetrical along a central longitudinal axis that splits the foot opening.).
Regarding claim 4, Mundt in view of Figures discloses the therapeutic cover according to claim 1 wherein the body tube is formed by joining a pair of substantially identical, in plan, front and rear sheets that are joined along spaced side seams (Abstract – “Outer sides of the first and second body sheets are sewn to each other to form a body opening at a top and a leg opening at a bottom.” See Fig. 5.).
Regarding claim 5, Mundt in view of Figures discloses the therapeutic cover according to claim 1 wherein the body tube is formed from a single sheet that is folded over, so that the fold line forms one side of the body tube and the two free side edges of the single sheet are joined along part or all of their length to form a side seam (Col. 3, Ln. 67-Col. 4, Ln. 1 – “The first and second body sheets 14, 16 may be fabricated from a single piece material.” See Fig. 10.).
Regarding claim 6, Mundt in view of Figures discloses the therapeutic cover according to claim 3 wherein the greatest unstretched breadth of the body tube is the mid-unstretched breadth of the body cover which is at chest level and closer to the top end than the lower end to accommodate the wider girth of a typical wearer around the shoulders and arms (See Fig. 8.).
Regarding claim 7, Mundt in view of Figures discloses the therapeutic cover according to claim 3 wherein the variable unstretched breadth of the body cover tapers from the chest level toward the lower end where the lower unstretched breadth is at its smallest and the variable unstretched breadth tapers toward the top end, the upper unstretched breadth being adjacent the neck and greater than the lower unstretched breadth, but less than the mid-unstretched breadth (Col. 5, Lns. 28-34 – “The first and second body sheets 50, 52 include a top width T which is greater than a bottom width B. A side of the first and second body sheets 50, 52 are tapered from the top width T to the bottom width B. The following range is given by way of example and not by way of limitation. The bottom width B is 60-80% of the top width T.” Col. 5, Lns. 56-58 – “A length of the neck portion 46 is preferably about 10 percent of a length of the body portion 44. A width of the neck portion 46 is preferably about 75 percent of a width of the body portion 46, but other dimensions may also be used.” An embodiment with a bottom width of 60% and a neck width of 75% of the top width is disclosed and meets the claimed limitations.).
Regarding claim 8, Mundt in view of Figures discloses the therapeutic cover according to claim 1 wherein the stretchable material of which the body cover is comprised includes a blend of any two or more of bamboo, polyester and elastane (Col. 1, Lns. 60-63 – “The material of the body portion and the neck portion is preferably fabricated from a combination Polyester and Lycra® fabric for stretch and memory.”).
Regarding claim 9, Mundt in view of Figures discloses the therapeutic cover according to claim 1 wherein the body tube extends from the neck to the lower end (Se Fig. 8.).
Regarding claim 10, Mundt in view of Figures discloses the therapeutic cover according to claim 1 wherein the lower end is hemmed in a double layer to form a lower band that has greatest resilience and resistance to stretching compared to the portion of the body cover corresponding to the body tube (Hemming by definition forms a double layer of the material. Additionally, a double layer of the same material will inherently have a greater resilience and resistance to stretching compared to the single layer of the rest of the body.).
Regarding claim 11, Mundt in view of Figures discloses the therapeutic cover according to claim 1 wherein the lower most edge defines the closable lower opening (The lowermost edge defines the foot opening.).
Regarding claim 12, Mundt in view of Figures discloses the therapeutic cover according to claim 1 wherein the lower opening is adapted to be releasably sealed (Col. 5, Lns. 8-12 – “The foot flap 32 is sewn to the bottom corner edge 40 of the first body sheet 34. The bottom corner edge 42 of the second body sheet 36 is inserted into the foot flap 32, but may be removed to allow a foot to be inserted through the foot opening.”).
Regarding claim 20, Mundt in view of Figures discloses the therapeutic cover according to claim 10 wherein the lower inner bearing surface is provided by the lower band and, more positively when the releasable closure is sealed, against exiting of the wearer's lower limbs, by the closed structure provided by the releasable closure (Col. 5, Lns. 8-12 – “The foot flap 32 is sewn to the bottom corner edge 40 of the first body sheet 34. The bottom corner edge 42 of the second body sheet 36 is inserted into the foot flap 32, but may be removed to allow a foot to be inserted through the foot opening.”).
Claim(s) 13-15 and 17-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 11,116,338 (Mundt) in view of US 2018/0326175 (Figures), and further in view of US 4,507,805 (Calutoiu).
Regarding claim 13, Mundt in view of Figures discloses the therapeutic cover according to claim 1.
Mundt in view of Figures does not disclose wherein the releasable closure is adapted to allow the wearer to open the releasable closure by breaking a reversible seal, which breakage is reversible by re-engaging the releasable closure to re-seal the closable lower opening.
However, Calutoiu discloses a convertible sleeping bag for use as a sleeping bag and an ambulatory garment having integral upper torso and lower torso portions. Col. 2, Lns. 54-59 – “In addition, the individual leg receiving portions are provided at their respective lower extremities with individual closure elements shown at 20 and 21 so that the user may open each element and then extend his feet through the respective openings so as to move about freely.” Col. 3, Lns. 19-24 – “ In other embodiments, not shown, it is also contemplated that fasteners other than zippers may be employed. For example, the cloth hook and loop-type materials known by the trademark VELCRO may be employed effectively as well as other fasteners including buttons and snaps.” Calutoiu teaches wherein the releasable closure is adapted to allow the wearer to open the releasable closure by breaking a reversible seal, which breakage is reversible by re-engaging the releasable closure to re-seal the closable lower opening (By breaking the connection between the buttons and snaps that close openings 20, 21, the openings can open, and then be resealed.).
Therefore, it would have been obvious to an artisan of ordinary skill before the effective filing date to modify the foot opening of Mundt to include buttons and snaps as taught by Calutoiu. A skilled artisan would have been motivated to do so because Calutoiu teaches that buttons and snaps are effective fasteners that allow the openings 20, 21 to be opened and closed. A skilled artisan would have a reasonable expectation of success given that all references are analogous and drawn body coverings with appendage openings.
Regarding claim 14, Mundt in view of Figures and Calutoiu discloses the therapeutic cover according to claim 13, wherein the releasable closure is adapted to allow the wearer to break the seal using the wearer's lower limbs to push through the releasable closure to disengage one or more fasteners (The buttons and snaps are capable of breaking their connection using a wearer’s lower limb.).
Regarding claim 15, Mundt in view of Figures and Calutoiu discloses the therapeutic cover according to claim 14 wherein the fasteners include press studs (Buttons and snaps are interpreted as press studs.).
Mundt in view of Figures and Calutoiu does not directly disclose two or more pairs of tab fasteners.
However, it would have been an obvious matter of design choice to modify the number of buttons and snaps to be two or more pairs, since such a modification would have involved a mere duplication of a component. A duplication of parts has no patentable significance unless a new and unexpected result is produced. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). See MPEP 2144.04. One would also be motivated to provide more than one pair of buttons and snaps as more fasteners yield a stronger seal which may prevent accidental uncoupling.
Regarding claim 17, Mundt in view of Figures discloses the therapeutic cover according to claim 1.
Mundt in view of Figures does not disclose wherein the body cover includes a pair of arm holes immediately below a pair of shoulders of the body cover.
However, Calutoiu discloses a convertible sleeping bag for use as a sleeping bag and an ambulatory garment having integral upper torso and lower torso portions. Col. 2, Lns. 25-32 – “In addition to the foregoing, horizontal zippers 7 and 8 are provided with fasteners which can either be actuated from the inside of the sleeping bag (as illustrated) and/or from the inside of the sleeping bag to provide openings, through which the arms of the user can be extended to the outside of the bag for manipulative freedom.” Calutoiu teaches wherein the body cover includes a pair of arm holes immediately below a pair of shoulders of the body cover (The arm holes sealed by zippers 7 and 8 are immediately below a pair of shoulders of the body cover. See Fig. 2.).
Therefore, it would have been obvious to an artisan of ordinary skill before the effective filing date to modify the body 44 of Mundt to include arm holes as taught by Calutoiu. A skilled artisan would have been motivated to do so because Calutoiu teaches that the arm holes allow for manipulative freedom of the arms outside of the bag (Col. 2, Lns. 25-32). A skilled artisan would have a reasonable expectation of success given that all references are analogous and drawn body coverings with appendage openings.
Regarding claim 18, Mundt in view of Figures and Calutoiu discloses the therapeutic cover according to claim 17.
Mundt in view of Figures and Calutoiu does not directly disclose wherein the arm holes are defined by a sleeve band that is formed from a double layer of material.
However, Figures discloses hemming the openings in the sensory activity sack. Figures discloses that the hemmed lower panel 108 provides a useful attachment point for the ties 110 ([0037]). Calutoiu discloses horizontal zippers 7 and 8 that are provided with fasteners which can either be actuated from the inside of the sleeping bag (as illustrated) and/or from the inside of the sleeping bag to provide openings, through which the arms of the user can be extended to the outside of the bag for manipulative freedom. The combined teachings of these references teach that it would be obvious to modify Mundt such that the arm holes are defined by a sleeve band that is formed from a double layer of material (Applying arm openings in view of Calutoiu and hemming the body 44 around the openings in view of Figures would result in a sleeve band of double layered material about the arm holes.).
Therefore, it would have been obvious to an artisan of ordinary skill before the effective filing date to modify the body of Mundt such that the arm holes are defined by a sleeve band formed of a double layer of material as taught by Figures and Calutoiu. A skilled artisan would have been motivated to do so because Figures teaches that the hemmed lower panel 108 provides a useful attachment point for the ties 110 ([0037]). Additionally, Calutoiu teaches that the arm holes allow for manipulative freedom of the arms outside of the bag (Col. 2, Lns. 25-32). A skilled artisan would have a reasonable expectation of success given that all references are analogous and drawn body coverings with appendage openings.
Regarding claim 19, Mundt in view of Figures and Calutoiu discloses the therapeutic cover according to claim 17 wherein the shoulders provide at least part of the upper inner bearing surface that resists the pulling of the neck downwardly, the wearer's shoulders adapted to bear against the upper inner bearing surface when one or more of the wearer's lower limbs are retained in the body tube and bear against the lower inner bearing surface (The shoulders of the body 44 and the upper inner bearing surface are adapted to resist pulling of the neck downward due to their elasticity and compressive properties.).
Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 11,116,338 (Mundt) in view of US 2018/0326175 (Figures), and further in view of US 4,759,082 (Mulligan).
Regarding claim 16, Mundt in view of Figures discloses the therapeutic cover according to claim 1.
Mundt in view of Figures does not disclose wherein the top end includes a hood releasably attached to an upper edge of the neck.
However, Mulligan discloses a garment which may be worn by the user, especially by infants and small children, as daywear and sleepwear. The garment comprises a detachable pillow portion which is formed as a hood. See Figs. 1-4 and Col. 3, Lns. 12-30. Mulligan teaches wherein the top end includes a hood releasably attached to an upper edge of the neck (The pillow portion 34 is a hood and is releasably attached to an upper edge of the neck.).
Therefore, it would have been obvious to an artisan of ordinary skill before the effective filing date to modify the top end of the body 44 if Mundt to include a pillow portion in the form of a hood as taught by Mulligan. A skilled artisan would have been motivated to do so because Mulligan teaches that the pillow portion allows for a user to rest their head on a pillow when reclining (Abstract). A skilled artisan would have a reasonable expectation of success given that all references are analogous and drawn body coverings including sleepwear.
Conclusion
The following prior art made of record and not relied upon are considered pertinent to
applicant's disclosure.
US 2019/0274366 (Hilton)
US 2018/0103689 (DeLisa)
US 2020/0359713 (Bakouros)
US 2011/0098616 (Ben-Nun)
US 2005/0240132 (Jones et al.)
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/SETH R. BROWN/Examiner, Art Unit 3786
/RACHAEL E BREDEFELD/Supervisory Patent Examiner, Art Unit 3786
