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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 06/21/26 has been entered.
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.
Claim(s) 1-3 and 5-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fournier et al. (US 5,950,244) in view of Chilson (US 2015/0047110).
In regard to claim 1, Fournier et al. teaches teaches a helmet (helmet: 10) comprising: at least an energy-absorbing insert (second material: 18); a foam liner comprising at least one recess shaped to accommodate the at least one cellular energy-absorbing insert (liner: 14 see figures 4 and 5, recess is dies 27, 28 in insert/liner); the foam liner also comprises at least one vent (vent in figures 4 and 5 called plug holes: 25); a protective layer (shell: 12) bonded to the foam liner (16) in correspondence of a bottom of said at least one recess (see figures 4 and 5, column 3, lines 51-56), wherein the protective layer (12) is a continuous layer that crosses and closes the at least one vent (see figures 4 and 5) and the protective layer is configured such that no cell of the at least one cellular energy-absorbing insert is completely visible through the at least one vent when viewed from outside the helmet (see figures 4 and 5).
However, Fournier et al. fails to teach the energy-absorbing insert being a cellular energy-absorbing insert.
Chilson teaches a energy-absorbing insert that is a cellular energy-absorbing insert (paragraph 0012 and 0014).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the helmet of Fournier et al. with the energy-absorbing insert being a cellular energy absorbing insert as taught by Chilson, since the energy-absorbing insert of Fournier et al. being a cellular insert would provide an insert that allows for improved shock absorbing protection while allowing air to freely flow within the cells/tubes.
In regard to claim 2, the combined references teach wherein the cellular energy-absorbing insert comprises a plurality of interconnected open cells configured to absorb energy by plastic deformation in response to a longitudinal compressive load applied to said cells (Chilson: cellular energy-absorbing insert: 126, paragraph 0014 detailing honeycomb structure of insert).
In regard to claim 3, the combined references teach wherein each cell comprises a tube having sidewall/s and a longitudinal axis, and the cells are connected to each other through their sidewalls (Chilson: cellular energy-absorbing insert: 126, paragraph 0014 detailing honeycomb structure of insert).
In regard to claim 5, Fournier et al. wherein protective layer (12) is a sheet (column 3, lines 42-49).
In regard to claim 6, Fournier et al. teaches wherein cellular energy-absorbing insert (18) has synclastic properties (see figures 4 and 5).
In regard to claim 7, Fournier et al. teaches wherein the cellular energy-absorbing insert (18) is configured to provide an improved shock absorbing protection as compared with the foam liner (column 4, lines 13-16 and column 4, lines 44-55).
In regard to claim 8, Fournier et al. teaches that the foam liner (16) can be made from a variety of high density polymers (column 3, lines 57-67 though column 4, lines 1-2). However, Fournier et al. fails to specifically teach the foam liner being made of a polymeric expanded foam.
Chilson teaches the foam liner being made of a polymeric expanded foam (foam liner: 130, paragraph 0014 details EPS).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the foam liner of Fournier et al. in an expanded polymeric foam as taught by Chilson, since the foam liner of Fournier et al. being expanded polymeric foam would provide a good impact protection layer.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-3 and 5-8 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 6, and 13-15 of copending Application No. 19/157,363 (reference application) in view of Fournier et al. (US 5,950,244).
OR
Claims 1-3 and 5-8 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 6 and 13-15 of U.S. Patent No. issue fee pad, no patent issued yet for application 19/157,363in view of Fournier et al. (US 5,950,244).
It is noted that the issue fee for 19/157,363 has been paid, but a patent number has not yet been issued.
Claim 1 of Current Application:
A helmet comprising: at least a cellular energy-absorbing insert (see line 2 of claim 1 of 19/157,363); a foam liner comprising at least one recess shaped to accommodate the at least one cellular energy-absorbing insert (see lines 3-4 of claim 1 of 19/157,363); the foam liner also comprises at least one vent see lines 3-4 of claim 1 of 19/157,363); a protective layer attached to the foam liner in correspondence of a bottom of said at least one recess (see claim 4 of 19/157,363), wherein the protective layer is a continuous layer that crosses and closes the at least one vent (see claim 6 of 19/157,363) and the protective layer is configured such that no cell of the at least one cellular energy-absorbing insert is completely visible through the at least one vent when viewed from outside (see claims 1, lines 7-8 detailing that the vent is partially closed and claim 1, lines 5-7 detailing micro-holes that would allow for partial visibility of the cells).
However, 19/157,363 fails to teach the protective layer bonded to the foam liner.
Fournier et al. teaches a protective layer bonded to a foam liner (column 3, lines 51-56) in a helmet.
It would have been obvious to one having ordinary skill in the art before the effective filing date to have provided the protective layer of 19/157,363 bonded to the foam liner as taught by Fournier et al., since the foam liner and the protective layer being bonded together by adhesive would provide layers that are securely attached to each other in a helmet.
Claim 2 of the instant application is the same as claim 2 of 19/157,363; Claim 3 of the instant application is the same as claim 3 of 19/157,363; Claim 3 of the instant application is the same as claim 3 of 19/157,363; Claim 5 of the instant application is the same as claim 6 of 19/157,363, except the instant application claim has amended out “layered over the recess of the foam liner; Claim 6 of the instant application is the same as claim 13 of 19/157,363; Claim 7 of the instant application is the same as claim 14 of 19/157,363; Claim 8 of the instant application is the same as claim 15 of 19/157,363.
Response to Arguments
Applicant's arguments filed 09/25/26 have been fully considered but they are not persuasive.
Applicant remarks that Chilson in view of Pritz fails to teach the protective layer bonded to the foam layer as amended into claim 1.
The examiner agrees that Chilson in view of Pritz fails to teach this, the reference to Fournier et al. (US 5,950,244) has been used in the reject with Chilson as detailed above in the office action.
Applicant remarks that the Double Patenting rejection does not apply since the patented claims in application 19/157,363 do not teach a “completely closed” vent.
It is noted that the claims do not require a completely closed vent. The protective layer of 19/157,363 has micro holes, but is still a continuous sheet that closes the vent and does not allow for a cell of the insert to be completely visible.
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 Bologna et al. (US 9,314,063) is of particular relevance to the claimed invention.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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
