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 all of the related Application Numbers and their respective Patent Numbers.
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) 1-5 and 7-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over
Kass (US 2013/0036553 in view of Castelazo (US 2019/0059457 A1).
In regard to claim 1, Kass discloses a breast separator device( in figure 1, 100, and para. (0015), for a wearer having a cleavage area between a first and second breast( in figure 1a- not numbered) comprising:
an elongated body ( as in figure 1 at 100 and with a length defined in para. (0016) ) with a top end 102 in figure 1 and para. (0017), a bottom end 104 in figure 1 and para. (0017), a front portion 101 in figure 1 and para. (0017) , a base portion 210 in figure 2 in para. (0025),
a first ( upper top left corner in figure 1 not numbered) and second wing (upper right corner- not numbered- in figure 1) extending outward from the elongated body (at 101);
wherein the elongated body ( 100 at 101 in figure 1), when placed within the cleavage area between the first and second breast ( not numbered – of wearer in figure 1A), is configured to maintain a separation between the first breast and the second breast in the cleavage area.
However, Kass does not disclose a plurality of openings extending through the elongated body.
Castelazo discloses a breast separator support 1 with perforations (openings) 7 through the separator 1 at front 100 as disclosed in para. (0020) and figure 1 in order to allow for ventilation and cooling to the wearer while the separator is worn to prevent overheating and skin irritation.
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the breast separator of Kass with the teaching of Castelazo to provide the perforations or openings within the breast separator to provide ventilation and cooling to the wearer when worn to avoid overheating and skin irritation to the wearer.
In regard to claim 2, Kass discloses the breast separator 100 in figure 1 as claimed in claim 1 and further discloses the first wing as being made of a different material than the elongated body (as in para. (0018).
In regard to claim 3, Kass discloses the breast separator 100 as claimed in claim 1 and further discloses the base portion 210 in figure 2 as having an hourglass shape.
In regard to claim 4, Kass discloses the breast separator 100 in figure 1 as claimed in claim 1 and further discloses the base portion 210 in figure 2 as being a trapezoid shape.
In regard to claim 5, Kass discloses the breast separator as claimed in claim 1 and further discloses the bottom end 204 in figure 1 as having a rectangular surface and the top end 102 in figure 1 as having a trapezoid surface with a rounded edge.
In regard to claim 7, the separator device of Kass is made at least in part of a silicone (see Kass- para. (0020).
In regard to claim 8, Kass discloses the breast separator 100 as claimed in claim 1 and further discloses the base portion 210 in figure 2 as being substantially flat.
In regard to claim 9 , Kass discloses the breast separator 100 as claimed in claim 1 and further discloses the device as being made at least in part of a sweat resistant material in para. 0015- as breathable- wicking material/fabric.
In regard to claim 10, Kass discloses the breast separator 100 as claimed in claim 1 and further discloses the breast separator device 100 as comprising an attachment portion of gripping material ( para. (0020)).
Claim(s) 11-15 and 17-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kass in view of Castelazo and Scotto (US 2016/0120235 A1).
In regard to claim 11, Kass discloses a breast separator device 100 for a wearer having a cleavage area between a first and second breast ( as in figure 1A- of Kass) comprising:
an elongated body (100 at 101 and para. (0016)with a top end (104-figure 1,para. (0017)), a bottom end (104 in figure 1, para. (0017), a front portion (at 101) in figure 1, para. (0017), a base portion at 210 in figure 2 and para. (0025),
a first (upper left wing in figure 1- not numbered) and second wing(upper right corner of 100 in figure 1- not numbered) extending outward from the elongated body (100 at 101 and para. (0016));
wherein the elongated body, when placed within the cleavage area between the first and second breast, is configured to maintain a separation between the first breast and the second breast in the cleavage area as seen in figure 1A.
However, Kass does not disclose a plurality of openings extending through the elongated body and that the breast separator is placed within a garment as a system and wherein the garments include a bra and tank top.
Castelazo discloses a breast separator support with perforations (openings) 7 through the separator as disclosed in para. (0020) and figure 1 in order to allow for ventilation and cooling to the wearer while the separator is worn to prevent overheating and skin irritation.
Accordingly, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the breast separator of Kass with the teaching of Castelazo to provide the perforations or openings within the breast separator to provide ventilation and cooling to the wearer when worn to avoid overheating and skin irritation to the wearer.
Scotto discloses a garment system of a shirt 10 with a shelf bra therein as in paras. (0019-0020 in Scotto) with a breast separator 26 within a pocket space between layers 18 with flaps 32 and 34 with fastener 36 to keep the support member from falling out.
Accordingly it would have been further obvious to one having ordinary skill in the art at the time of the invention to install the modified breast separator, with the openings- as discussed above - of Kass within a garment system of Scotto in order too securely place the breast separator on the wearer during use.
In regard to claim 12, Kass discloses the breast separator (100) as claimed in claim 11 and further discloses the first wing as being made of a different material than the elongated body as in Kass para. (0018) .
In regard to claims 13 and 14, Scotto discloses the shirt with a shelf bra (see Scotto, para. (0020) within the garment 10 that then holds the breast separator 26 therein.
In regard to claim 15, Kass discloses the breast separator 100 in figure 1 as claimed in claim 11 and further discloses the bottom end as having a rectangular surface and the top end as having a trapezoid surface with a rounded edge as discussed above in regard to claim 5.
In regard to claim 17, the separator device of Kass is made at least in part of a silicone as discussed above in regard to claim 7.
In regard to claim 18, Kass discloses the breast separator as claimed in claim 11 and further discloses the base portion as being substantially flat as discussed above in regard to claim 8.
In regard to claim 19 , Kass discloses the breast separator as claimed in claim 11 and further discloses the device as being made at least in part of a sweat resistant material as discussed above in regard to claim 9.
In regard to claim 20, Kass discloses the breast separator as claimed in claim 11 and further discloses the breast separator device as comprising an attachment portion as discussed above in regard to claim 10.
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 1-10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-3, 5-10 and 12-20 of U.S. Patent No. 11,856,998. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims contain the same breast separator device structure comprising a base and front surface, a top and bottom end, a first and second side surface and being of an elongated length and made of silicone a well as having the shaped ends and being formed of the same claimed materials as in claims 1-10 .
Claims 6 and 16 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 as well as providing the proper Terminal Disclaimer as outlined above.
None of the cited references, alone or in combination, disclose the elongated body as having a first width at a top end that is at least 150 percent of a second width at the bottom end wherein the elongated body has a first thickness at the top end that Is at least 150 percent of a second thickness at the bottom end as om claims 6 and 16.
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