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 without traverse of Species C (Fig. 8) in the reply filed on December 1, 2025 is acknowledged.
Claims 6, 9, and 13 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim.
Accordingly, claims 1-20 are pending in this application, with an action on the merits to follow regarding claims 1-5, 7-8, 10-12, and 14-20.
Specification
The use of the terms “Velcro®” (beginning in para. 0043) and “Thinsulate™” (para. 0061), which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term, for example “VELCRO®” and “THINSULATE™ (synthetic thermal insulation)”.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Objections
Claim 10 is objected to because of the following informalities: Claim 10 should recite, “wherein the garment defines a height from a bottom end of the sports garment to a topmost portion of the sports garment of between about 50 inches and about 70 inches when lying flat on [[a]] the surface”.
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, 10-12, and 14 (and claims 2-5, 7-8, and 15-18 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 is indefinite as it recites, “A two-person sports garment, comprising: a first half, and a second half removably attached to the first half, wherein the first half and the second half are secured to each other in a front of the garment by a plurality of snap-on buttons, and the first half and the second half are secured to each other in a rear of the garment by a zipper”. As the claim first recites that the second half is removably attached to the first half, but then that the halves are secured to each other, it is unclear if the “removably attached” and the “secured to each other” are different structures of the garment or if the “secured to each other” is referring to the “removably attached”. Examiner respectfully suggests amending to recite, “A two-person sports garment, comprising: a first half, and a second half removably secured to each other in a front of the garment by a plurality of snap-on buttons, and the first half and the second half are removably secured to each other in a rear of the garment by a zipper”.
Regarding claims 10-12, Applicant recites ranges in terms of “between about X inches and about Y inches”. The claimed ranges of the width and/or heigh is indefinite because it applies an approximating term “about” to the maximum and minimum boundaries of the range, and it is unclear whether a value outside of a non-approximated range of 20 to 30 inches, in the case of width as claimed in claim 10, would be acceptable. For example, one could consider 32 inches to be “about 30”, but 32 would fall outside of a range of 20-30 inches. Therefore, the metes and bounds of the claim are unclear. Examiner notes that the Specification does not define any tolerances regarding how to interpret the broadening term “about”. Correction is required. For purposes of examination, the claimed range is not being interpreted to require that the range must be between X and Y, thus giving importance to the term broadening term “about” (i.e. a width of 32 inches in the prior art will be deemed to meet the claimed approximated range of about 20 to about 30 inches). Examiner respectfully suggests amending each claimed range to recite, “between about X inches and
Claim 14 is indefinite as it recites, “wherein the first half includes a first zipper assembly and a plurality of first buttons, and wherein the second half includes a second zipper assembly and a plurality of second buttons.” As buttons secure with button holes and snap buttons have male and female portions that secure together, it is unclear how both the first zipper assembly and the second zipper assembly can each have a plurality of buttons. Examiner respectfully suggests amending to recite, “wherein the first half includes a first zipper assembly and a plurality of first button[[s]] portions, and wherein the second half includes a second zipper assembly and a plurality of second button[[s]] portions” and amending claims 15-16 accordingly.
Claim Rejections - 35 USC § 102
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 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.
Claim(s) 1, 2, and 8 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Afjeh (US 2019/0008222).
Regarding claim 1, Afjeh discloses a two-person sports garment (100, Figs. 1A-1B), comprising: a first half (10a), and a second half (10b) removably attached to the first half (via 12), wherein the first half and the second half are secured to each other in a front (10d) of the garment by a plurality of snap-on buttons (fastener 12, see paras. 0042, and 0046-0048 where snaps can be used for fastener 12 in interface area 10c on either side of the garment and where the same type of fastener does not have to be used on each side) and the first half and the second half are secured to each other in a rear (10e) of the garment by a zipper (fastener 12 shown as a zipper in Fig. 1b, disclosed a zipper in para. 0042), and wherein the two-person sports garment is configured to be worn by two people at the same time (as this entirely depends on the size of the garment and the size of the wearers, with at least one size garment, two people would be able to fit in the garment at the same time).
Examiner notes that italicized limitations in the prior art rejections are functional and do not positively recite a structural limitation, but instead require an ability to so perform and/or function. As Afjeh discloses the structure of the garment, there would be a reasonable expectation for the garment to perform such functions, as Examiner has explained after each functional limitation.
Regarding claim 2, Afjeh discloses wherein the first half includes a first arm sleeve that forms a first armhole and the second half includes a second arm sleeve that forms a second armhole (see annotated Fig. 1B where sleeves and armholes are pointed out and where it is understood that armholes are present at the end of each sleeve as the garment is a shirt).
Regarding claim 8, Afjeh wherein the first half represents a first sports team and the second half represents a second sports team different than the first sports team (as disclosed in para. 0015 and 0041).
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) 3-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Afjeh, as applied to claims 1-2 above, and further in view of Short (US 2016/0073716).
Regarding claim 3, Afjeh discloses all the limitations of claims 1-2 above, but does not expressly disclose wherein the first half includes a first arm slit and the second half includes a second arm slit.
Short teaches an upper body garment wherein the first half (half left of plackets 116 and zipper 126, see Figs. 1-3) includes a first arm slit (112) and the second half (half right of plackets 116 and zipper 126, see Figs. 1-3) includes a second arm slit (112, best seen in Fig. 2).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to add arm slits on the front side of each half of the garment of Afjeh, as taught by Short, for “allowing a wearer to access an inside surface of the garment” (see para. 0002 of Short) since “In severe climate conditions, such access may be greatly advantageous to the wearer” (see para. 0004 of Short) and “This would allow, for example, a wearer to remover a cell phone or the like from a shirt pocket of an inside garment without opening the front of the upper body garment” (see para. 0005 of Short).
Regarding claim 4, the modified garment of Afjeh discloses wherein the first arm slit and the second arm slit (slits 112 of Short) are positioned closer to the plurality of snap on buttons (arranged at 12 on front side 10d of Afjeh) than the first armhole and the second armhole, respectively (see annotated Fig. 1B of Afjeh) (as when the slits are added to the garment of Afjeh, they are closer to the front opening than they are to the armholes, at least when the garment is laid out flat).
Regarding claim 5, the modified garment of Afjeh discloses wherein the two-person sports garment is configured to have a first arm of a first person extend through the first armhole and a second arm of the first person extend through the first arm slit, and wherein the two-person sports garment is further configured to have a first arm of a second person extend through the second armhole and a second arm of the second person extend through the second arm slit (as when two people are positioned in the garment, the modified garment is capable of such an arrangement).
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Afjeh, as applied to claims 1 above, further in view of Gooch (US 2014/0189929).
Regarding claim 7, Afjeh discloses wherein the first half and the second half each includes a plurality of indicia thereon (“logos” as shown in circles and squares in Figs. 1A-1B, and para. 0015), but does not expressly disclose wherein the indicia is text.
Gooch teaches an athletic jersey having separate sections representing different sports teams wherein the first half and the second half each includes a plurality of text thereon (as shown in Figs. 21-22).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include text in the indicia of the garment of Afjeh as taught by Gooch in order to represent specific players on the sports teams. Further, a Change in aesthetic (ornamental) design generally will not support patentability. See MPEP 2144.04. Finally, Examiner notes that “a plurality of text” in the following claims is a limitation of printed matter. Once it is determined that the limitation is directed to printed matter, Examiner must then determine if the matter is functionally or structurally related to the associated physical substrate, and only if the answer is ‘no’ is the printed matter owed no patentable weight. In this case, where the product (garment) merely serves as a support for printed matter, and no functional relationship exists since there is no new relation of printed matter to physical structure. The claim(s) as a whole is directed towards conveying a message or meaning to a human reader independent of the supporting product and the printed matter is given no patentable weight. See MPEP 2111.05.
Claim(s) 10-12 , 14-16, and 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Afjeh in view of Speciale (US 2020/0008500).
Regarding claim 10, Afjeh discloses a two-person sports garment (100, Figs. 1A-1B), comprising: a first half (10a), and a second half (10b) removably attached to the first half (via 12), and a garment neck opening formed by the first half and the second half (see annotated Fig. 1B), wherein the garment defines a height from a bottom end of the sports garment to a topmost portion of the sports garment (see annotated Fig. 1B), and wherein the sports garment is configured to be worn by two people at the same time (as this entirely depends on the size of the garment and the size of the wearers, with at least one size garment, two people would be able to fit in the garment at the same time).
Afjeh does not expressly disclose the garment neck opening defining a width of between about 20 inches and about 30 inches when lying flat on a surface, wherein the height is between about 50 inches and about 70 inches when lying flat on a surface.
Speciale teaches a torso covering garment with sleeves wherein “the garment is quite large and its length, widths, proportions, and material construction are sufficiently different from conventional garments” (see para. 0021 and para. 0042 where the height is 49-69 inches).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention for the neck opening width to be between 20 and 30 inches and the height of the garment of Afjeh to be between 50 and 70 inches, as taught by Speciale, to “thereby enable the garment to be used in different and unexpected ways” thus providing a “spacious covering which can be worn in a reclining position, in a sitting position, in a fetal position, in a standing position, and even while walking” (see para. 0021 of Speciale) and since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See MPEP 2144.05. Further, Examiner notes a change in size is generally recognized as being within the level of ordinary skill in the art. See MPEP 2144.04.
Regarding claim 11, the modified garment of Afjeh discloses all the limitations of claim 10 above, but does not expressly disclose wherein the width is between about 22 inches and about 26 inches when lying flat on the surface.
Speciale teaches a torso covering garment with sleeves wherein “the garment is quite large and its length, widths, proportions, and material construction are sufficiently different from conventional garments” (see para. 0021).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention for the neck opening width to be between 22 and 36 inches and the height of the garment of Afjeh, as taught by Speciale, to “thereby enable the garment to be used in different and unexpected ways” thus providing a “spacious covering which can be worn in a reclining position, in a sitting position, in a fetal position, in a standing position, and even while walking” (see para. 0021 of Speciale) and since the claimed values are merely an optimum or workable range. It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. See MPEP 2144.05. Further, Examiner notes a change in size is generally recognized as being within the level of ordinary skill in the art. See MPEP 2144.04.
Regarding claim 12, the modified garment of Afjeh discloses wherein the height is between about 58 inches and about 62 inches when lying flat on the surface (see para. 0042 of Speciale where the height between 49 and 65 inches and therefore at least one height within the claimed range).
Regarding claim 14, the modified garment of Afjeh discloses wherein the first half (10a) includes a first zipper assembly (the portion of the zipper on the back side 10e of the first half 10a, see Fig. 1B and para. 0042) and a plurality of first buttons (the portion of the snaps (i.e. male or female), which are also known as snap buttons, on the front side 10d of the first half 10a, referred to as fastener 12, see paras. 0042, and 0046-0048 where snaps can be used for fastener 12 in interface area 10c on either side of the garment and where the same type of fastener does not have to be used on each side), and wherein the second half (10b) includes a second zipper assembly (the other portion of the zipper on the b ack side 10e of the second half 10b, see Fig. 1B and para. 0042) and a plurality of second buttons (the opposing portion of the snaps (i.e. the male or female, whichever is not used on the first half), which are also known as snap buttons, on the front side 10d of the second half 10b, referred to as fastener 12, see paras. 0042, and 0046-0048 where snaps can be used for fastener 12 in interface area 10c on either side of the garment and where the same type of fastener does not have to be used on each side).
Regarding claim 15, the modified garment of Afjeh discloses wherein the first zipper assembly is configured to be secured with the second zipper assembly by a zipper (as seen in Fig. 1B), and wherein the plurality of first buttons is configured to be secured with the plurality of second buttons (as snap buttons are used, and as understood from basic snap structure).
Regarding claim 16, the modified garment of Afjeh discloses wherein the plurality of first buttons and the plurality of second buttons are snap on buttons that mate with each other (as disclosed in paras. 0046-0048).
Regarding claim 18, Afjeh wherein the first half represents a first sports team and the second half represents a second sports team different than the first sports team (as disclosed in para. 0015 and 0041).
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combined references of Afjeh and Speciale, as applied to claim 10 above, and further in view of Gooch.
Regarding claim 17, the modified garment of Afjeh discloses all the limitations of claim 10 above, but does not expressly disclose wherein the sports garment includes a name plate that is positioned partially on the first half and partially on the second half of the sports garment.
Gooch teaches an athletic jersey having separate sections replicating different athletic jerseys wherein the sports garment (Figs. 21-22) includes a name plate (56) that is positioned partially on the first half (26A) and partially on the second half (26B) of the sports garment (as can be seen in Fig. 22).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to add a name plate spanning the first and second halves of the modified garment of Afjeh, as taught by Gooch, on order to “associate the first and second teams with the particular athlete” (see para. 0047 of Gooch).
Claim(s) 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Afjeh in view of Short.
Regarding claim 19, Afjeh discloses a garment (100), comprising: a first half (10a) including a first arm sleeve that forms a first armhole (see annotated Fig. 1B); and a second half (10b) including a second arm sleeve that forms a second armhole (see annotated Fig. 1B), the second half being removably attached to the first half (via 12), wherein the garment is configured to be worn by a first person and a second person at the same time (as this entirely depends on the size of the garment and the size of the wearers, with at least one size garment, two people would be able to fit in the garment at the same time).
Afjeh does not expressly disclose wherein the first half includes a first arm slit spaced from the first armhole; and the second half including a second arm slit spaced from the second armhole, and wherein the garment is configured for the first person to put their first hand through the first armhole and their second hand through the first arm slit and is further configured for the second person to put their first hand through the second arm slit and their second hand through the second armhole.
Short teaches an upper body garment wherein the first half (half left of plackets 116 and zipper 126, see Figs. 1-3) includes a first arm slit (112) spaced from the first armhole (as seen in Figs. 1-3), and the second half (half right of plackets 116 and zipper 126, see Figs. 1-3) includes a second arm slit (112, best seen in Fig. 2) spaced from the second armhole (as seen in Figs. 1-3), and wherein the garment is configured for the first person to put their first hand through the first armhole and their second hand through the first arm slit and is further configured for the second person to put their first hand through the second arm slit and their second hand through the second armhole (as when two people are positioned in the garment, the modified garment is capable of such an arrangement).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to add arm slits on the front side of each half of the garment of Afjeh, as taught by Short, for “allowing a wearer to access an inside surface of the garment” (see para. 0002 of Short) since “In severe climate conditions, such access may be greatly advantageous to the wearer” (see para. 0004 of Short) and “This would allow, for example, a wearer to remover a cell phone or the like from a shirt pocket of an inside garment without opening the front of the upper body garment” (see para. 0005 of Short).
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over the combined references of Afjeh and Speciale, as applied to claim 19 above, and further in view of Gooch.
Regarding claim 20, the modified garment of Afjeh discloses all the limitations of claim 19 above, but does not expressly disclose wherein the first half of the garment is a different color than the second half of the garment (but does discloses each half representing rival teams, see para. 0041).
Gooch teaches an athletic jersey having separate sections replicating different athletic jerseys wherein the first half of the garment is a different color than the second half of the garment (see para. 0044).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to make each half of the modified garment of Afjeh, a different color, as taught by Gooch, in order to more clearly represent rival teams in a way that is more noticeable from a distance and/or in a large crowd. Further, it is noted that a change in color is generally recognized as being within the level of ordinary skill in the art. A change in the color of the garment would have been obvious due to design incentives or market forces providing a reason to make an adaptation, and the invention resulted from application of the prior knowledge in a predictable manner. Furthermore, it is noted that matters relating to ornamentation which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art. See MPEP 2144.01 (I).
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Annotated Fig. 1B (Afjeh)
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. For example, Miller (US 2015/0052657) teaches a two part joinable garment representing different themes, Armour (US 2009/0007310) teaches a jersey to represent different teams on each half, and Velasco (US 4089067) teaches a garment sized for two people to extend out of a single neck opening.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HEATHER MANGINE, Ph.D. whose telephone number is (571)270-0673. The examiner can normally be reached Monday-Friday 8AM-4PM.
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/HEATHER MANGINE, Ph.D./Primary Examiner, Art Unit 3732