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 .
Specification
The disclosure is objected to because of the following informalities:
The “Related Application Information” needs to be updated to include any “patent Numbers” for the allowed related patent applications.
Appropriate correction is required.
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.
Claim(s) 1-7 and 10-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over MUHLENFELD (US 2017273365 A1) in view of TORRES (US 2013 0203319 A1).
In regard to claim 1, Muhlenfeld discloses an adaptive support garment 100 in figure 1, para. (0037), comprising:
a support structure, (102) and paras. (0036-0040) configured to wrap around a portion of anatomy of a wearer and apply a compression on the portion of anatomy, the support structure including a tubular support structure (102) and paras. (0036-0040) open along a region to form a first edge at 112 para (0036-0037, in figure 12) and a second edge and
a compression apparatus of laces (134, 136) in fig. 12, to bring the first edge(at 124B, 122B,126B) and the second edge (at 122A,124A,126A) together.
However, Muhlenfeld does not disclose the support garment as including an adaptive engine coupled to the support structure and engaged with the compression apparatus wherein the adaptive engine is configured to increase or decrease tension on the compression apparatus to increase or decrease compression of the support structure on the portion of anatomy, respectively.
Torres discloses a support garment with a lace 240 ( in Torres, at para. (0038) one on each of the left and right sides of the garment) and that extends throughout the garment to adjust and tighten the garment and lace about the wearer for increased compression and that further includes an adaptive engine that tightens the lace as desired to increase and decrease the compression and tension of the lace about the wearer in use. (See Torres para. (0037 and figure 1). The tension adjusting tension or adaptive engine 110 is on the outside of the Torres bra 100 on the frontal center girth portion of the bra as in figure 1. The device includes a ratcheted spool of wire 130 with an adjusting dial 120 and the device is known as a BOA #L3. The device lifts and pulls on the shoulder straps that begin at the breasts and lift the breasts when adjusted.
Accordingly it would have been obvious to one having ordinary skill in the art a t the time of the invention to modify the compressive adjustment of the bra of Muhlenfeld to further tighten the Muhlenfeld straps to compress the bra around the wearer in use and to do so with the Torres device used above.
In regard to claim 2, Muhlenfeld discloses the adaptive support garment 100 as in fig. 1, para. (0037) as clamed in claim 1, and further wherein the compression apparatus (lace 134,136 as seen in figure 12 of Torres)forms a crisscross pattern over the region.
In regard to claim 3, Muhlenfeld discloses the adaptive support garment(100 in figure 1 and para,. (0037) as claimed in claim 2 and further wherein the crisscross pattern(lace 134, 136 in figure 12 , extends across a separation (at 112 in figure 12) between the first edge and the second edge along the region
In regard to claim 4, Muhlenfeld discloses the adaptive support garment(100 in figure 1 and para,. (0037) of claim 1 and Torres further discloses the adaptive engine as being disposed in a center of the support structure as seen in figure 1 at 120 of Torres.
In regard to claim 5, Muhlenfeld discloses the adaptive support garment (100 in figure 1 and para,. (0037) of claim 4 wherein the compression apparatus, lace , extends above and below the front central bottom- hem location of the garment that is the same location as the engine of Torres adaptive engine 120 in figure 1 and along a longitudinal axis of the support structure.
In regard to claim 6, Muhlenfeld discloses the adaptive garment (100 in figure 1 and para,. (0037) of claim 1 and further wherein the Torres compression apparatus, lace in figure 1 , extends from opposing sides of the adaptive engine 120 in figure 1.
In regard to claim 7, Muhlenfeld discloses the adaptive support garment(100 in figure 1 and para,. (0037) of claim 6 and wherein the adaptive engine 120 in figure 1, of Torres includes a spool as in para. (0037 of figure 1)l configured to take up the compression apparatus (lace, 134,136)that is configured to exit the spool on the opposing sides of the spool.
In regard to claim 10 Muhlenfeld discloses the adaptive support garment (100 in figure 1 and para,. (0037) of claim 1 and further wherein the compression apparatus forms a split helix pattern as seen in figure 1 of Muhlenfeld.
In regard to claim 11, Muhlenfeld discloses the adaptive support garment(100 in figure 1 and para,. (0037) as claimed in claim 10 and further wherein the split helix pattern is formed along a medial section of an inferior portion of the support structure and along a lateral section of the super portion of the support structure as seen in figure 1 of Muhlendfeld.
In regard to claim 12, Muhlenfeld discloses an adaptive support garment (100 in figure 1 and para,. (0037)comprising a support structure ( garment, ) configured to wrap around a portion (the torso as in figure 1) of anatomy of a wearer and apply a compression on the portion of anatomy; a compression apparatus (laces,134,136 in figure 1)forming a criss cross pattern 134,136 over a region of the support structure as seen in figure of Muhlenfeld.
However, Muhlenfeld does not specifically disclose an adaptive engine(100 in figure 1 and para,. (0037) coupled to the support structure and engaged with the compression apparatus(laces 134,136 in fig. 1) and wherein the adaptive engine is configured to increase or decrease tension on the compression apparatus to increase or decrease compression of the support structure on the portion of anatomy, respectively.
Torres discloses a support garment with a lace 240 ( one on each of the left and right sides of the garment) and that extends throughout the garment to adjust and tighten the garment and lace about the wearer for increased compression and that further includes an adaptive engine that tightens the lace as desired to increase and decrease the compression and tension of the lace about the wearer in use. (See Torres para. (0037 and figure 1). The tension adjusting tension or adaptive engine 110 is on the outside of the Torres bra 100 on the frontal center girth portion of the bra as in figure 1. The device includes a ratcheted spool of wire 130 with an adjusting dial 120 and the device is known as a BOA #L3. The device lifts and pulls on the shoulder straps that begin at the breasts and lift the breasts when adjusted.
Accordingly it would have been obvious to one having ordinary skill in the art a t the time of the invention to modify the compressive adjustment of the bra of Muhlenfeld to further tighten the Muhlenfeld straps to compress the bra around the wearer in use.
In regard to claim 13, Muhlenfeld discloses the adaptive support garment(100 in figure 1 and para,. (0037) as claimed in claim 12 and further wherein the support structure comprises a first edge and a second edge drawn together to form a tubular support structure, and wherein the criss cross pattern (134,136 in fig.12)extends across a separation(at 112 in fig. 12, between the first edge and the second edge along the region at left and right side of the medial line 112 in figure 12.
In regard to claim 14, Muhlenfeld discloses the adaptive support garment (100 in figure 1 and para,. (0037)as claimed in claim 1 2 and Torres further discloses the adaptive engine 120 in figure 1 that is positioned within the region of the support structure bra as previously discussed above.
In regard toc alim 15, Muhlenfeld discloses the adaptive support apparatus(100 in figure 1 and para,. (0037) as claimed in claim 14 and further wherein the adaptive engine 120 in figure 1 of Torres is positioned over a center of the region of the support structure.
In regard to claim 16, Muhlenfeld discloses the adaptive support garment(100 in figure 1 and para,. (0037) as claimed in claim 15 and Torres further discloses the compression apparatus, lace 134,136 in figure Para. (0037) of Torres that extends from opposing sides of the adaptive engine 120.
In regard to claim 17 Muhlenfeld discloses the adaptive support garment(100 in figure 1 and para,. (0037) as claimed in clam 16 and further wherein the compression apparatus of Muhlenfeld forms a criss cross pattern (134,136 in fig. 12) across the region of the support structure above and below the adaptive engine location of the front center of the garment - as it is located in Torres 120 in figure 1 of Torres.
In regard to claim 18 Muhlenfeld discloses the adaptive support garment(100 in figure 1 and para,. (0037) of claim 12 and further wherein the compression apparatus includes a first compression apparatus (lace ) and a second compression apparatus (lace ) separate from the first compression apparatus as in figure 1 of Muhlenfeld.
In regard to claim 19, Muhlenfeld discloses the adaptive support garment(100 in figure 1 and para,. (0037) as claimed in claim 18 and wherein the first compression apparatus forms a first zone extending proximally form a proximal side of the adaptive engine and the second compression apparatus forms a second lacing zone extending distally from a distal side of the adaptive engine.
However, Muhlenfeld does not disclose the adaptive engine tightening apparatus. Torres discloses the use of an adaptive engine as discussed above in regard toc alim 1 on page 4 above.
Accordingly, it would have been obvious to on e having ordinary skill in the art at the time of the invention to modify the bra of Muhlenfeld with the teaching of Torres to include an adaptive engine 120 in figure 1 of Torres to easily tighten and un tighten the laces as desired to increase the compression of the tubular bra about the wearer as desired when worn to provide additional support and comfort to the wearer of the bra in use.
In regard to claim 20, Muhlenfeld discloses the adaptive support garment (100 in figure 1 and para,. (0037)of claim 19, and further wherein the second compression apparatus is routed from a distal end of the adaptive support garment along a perimeter of the support structure to a proximal end.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-22 of U.S. Patent No. 11825886. Although the claims at issue are not identical, they are not patentably distinct from each other because applicant is claiming the same support garment structure with the tubular structure, compression apparatus that brings a first and second edge together and an adaptive engine coupled to the support structure and engaged with the compression apparatus of the lace to increase or decrease the tension on the compression apparatus as in claim 1 and wherein the support garment further includes the crisscross pattern over the support structure as in claim 12. Claims 2-11 are rejected since they depend from claim 1 and claims 13-20 are rejected because they depend from claim 12 .
Claims 8 and 9 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims and with the filing of the proper Terminal Disclaimer as outlined above.
None of the cited references alone or in combination disclose the support structure as further including the zipper structure as claimed in claims 8 and 9.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to GLORIA M HALE whose telephone number is (571)272-4984. The examiner can normally be reached MON.-THURS..
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alissa Tompkins can be reached at 1-571-272-3425. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/GLORIA M HALE/Primary Examiner, Art Unit 3732