DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of Claims
This is in response to Application filed on May 30, 2025 in which claims 1-20 are presented for examination.
Drawings
Figures 5a, 5b and 6 appear to be photographs that also contain shading, while the use of shading in views is encouraged if it aids in understanding the invention, the shading must not reduce legibility. See MPEP 37 C.F.R 1.84(b)(1) regarding photographs and 37 C.F.R 1.84(m) regarding shading.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The use of the term VELCRO®, which is a trade name or a mark used in commerce, has been noted in this application in [0040]. 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.
In this case, VELCRO® is not capitalized and does not include its proper symbol indicating use in commerce following the term.
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.
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.
Claim 1 and dependent claims are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and dependent claims of U.S. Patent No. 12,342,880. Although the claims at issue are not identical, they are not patentably distinct from each other because instant claim 1 and dependent claims are anticipated by the conflicting patented claim 1 and dependent claims as shown in the table below. The difference between the instant examined claim and the conflicting patented claim is that the conflicting patented claim is narrower in scope and falls within the scope of the examined claim. Thus, the species or sub-genus claimed in the conflicting patent anticipates the examined claimed genus. Therefore, a patent to the examined claim genus would improperly extend the right to exclude granted by a patent to the species or sub-genus should the genus issue as a patent after the species or sub-genus. See MPEP §804(II)(B)(1).
Present Application
Patent No. 12,342,880
1. An article of apparel comprising:
a lower garment comprising one or more leg portions with a bottom cuff;
a flap attached to or integrally formed with the bottom cuff, wherein the flap is movable between
(i) a first position in which the flap is disposed entirely within an interior region of the one or more leg portions of the lower garment and
(ii) a second position in which the flap is disposed over an article of footwear worn by a subject wearing the lower garment,
wherein the flap comprises a proximal end attached or secured to the interior region of the one or more leg portions of the lower garment and a distal end that is detachably securable to
(i) the interior region of the one or more leg portions of the lower garment when the flap is in the first position and
(ii) a lace or a cable associated with the article of footwear when the flap is in the second position.
2. wherein the flap comprises an elastic portion disposed along or adjacent to the proximal end of the flap.
17. wherein the first fastener comprises a hook or a latch, and wherein the second fastener comprises a magnetic element.
1. An article of apparel comprising:
a lower garment comprising one or more leg portions with a bottom cuff comprising
a shortened front cuff portion and a rain flap attached to or integrally formed with the shortened front cuff portion of the bottom cuff,
wherein the rain flap has a proximal end attached to the bottom cuff of the lower garment and a distal end that is configured to cover an upper portion of an article of footwear worn by a subject wearing the article of apparel,
wherein the rain flap further comprises: (i) an elastic portion provided between the proximal end and the distal end of the rain flap to enhance a stretchability of the rain flap or a flexibility of the distal end relative to the proximal end,
wherein the elastic portion is positionable over the upper portion of the article of footwear;
(ii) a fastener for engaging a lace or a cable associated with the article of footwear; and
(iii) a plurality of magnetic attachment mechanisms integrated with the distal end of the rain flap, wherein the plurality of magnetic attachment mechanisms are configured to detachably couple the distal end of the rain flap to an interior region of the one or more leg portions of the lower garment to hide or conceal the rain flap.
6. wherein the proximal end of the rain flap is attached to the interior region of the one or more leg portions of the lower garment.
3. wherein the elastic portion is positioned along the interior region of the one or more leg portions of the lower garment when the flap is in the first position and the second position.
4. wherein the elastic portion is positioned above a bottom edge of the one or more leg portions of the lower garment when the flap is in the first position and the second position.
7. wherein the elastic portion of the rain flap is positioned within the interior region of the one or more leg portions and above a bottom edge of the one or more leg portions when the rain flap is extended downwards to cover the upper portion of the article of footwear.
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 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 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lin (2006/0096008).
Regarding claim 1, Lin teaches, An article of apparel comprising: a lower garment comprising one or more leg portions with a bottom cuff (22 comprising: 22 comprising one or more leg portions with a bottom cuff, figures 6-11); a flap attached to or integrally formed with the bottom cuff, wherein the flap is movable between (i) a first position in which the flap is disposed entirely within an interior region of the one or more leg portions of the lower garment and (ii) a second position in which the flap is disposed over an article of footwear worn by a subject wearing the lower garment (60 attached to or integrally formed with the bottom cuff, wherein 60 is movable between (i) a first position in which 70/60 is disposed entirely within an interior region of the one or more leg portions of 22 ([0039], figure 6) and (ii) a second position in which 60 is disposed over an article of footwear worn by a subject wearing 20 ([0040], figures 7, 8 and 10), figures 6-11), wherein the flap comprises a proximal end attached or secured to the interior region of the one or more leg portions of the lower garment and a distal end that is detachably securable to (i) the interior region of the one or more leg portions of the lower garment when the flap is in the first position and (ii) a lace or a cable associated with the article of footwear when the flap is in the second position (wherein 60 comprises a proximal end (at 700) attached or secured to the interior region of the one or more leg portions of 22 and a distal end that is detachably securable to (i) the interior region of the one or more leg portions of the lower garment when the flap is in the first position (at 700 (701/702)) and (ii) a lace or a cable associated with the article of footwear (as shown in figure 10, the footwear has a lace associated with 60) when 60 is in the second position, [0041], [0042], figure 10).
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 14-16 and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over by Lin (2006/0096008) in view of Roelofs (2002/0174565).
Regarding claim 14, Lin teaches, the flap (60, figures 6-11) and the lace or the cable associated with the article of footwear (figure 10).
Lin fails to teach, wherein the flap comprises a first fastener configured to engage the lace or the cable associated with the article of footwear.
Roelofs, a leg covering that attaches to footwear, Abstract, teaches, wherein the flap comprises a first fastener configured to engage the lace or the cable associated with the article of footwear (“the hook 20 is attached to laces of the shoe or a tubular member that surrounds a portion of the laces, if the mid-foot receiving section 12 is of the type that includes uppers which are laced together”, [0048], wherein 16 comprises a 20 configured to engage the lace or the cable associated with the article of footwear, figures 2 and 7).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide flap of Lin with a first fastener as taught by Roelofs in order to provide a secure attachment between the flap and the article of footwear.
Regarding claim 15, the combined references teach, wherein the flap comprises a second fastener configured to detachably couple the flap to the interior region of the one or more leg portions of the lower garment to hide or conceal the flap (Lin, wherein 60 comprises 702 configured to detachably couple 60 to the interior region of the one or more leg portions of 22 to hide or conceal 60, [0039], [0040], figure 9).
Regarding claim 16, the combined references teach, wherein the first fastener and the second fastener comprise different types of fasteners (as combined above, wherein 20 of Roelofs and 702 of Lin comprise different types of fasteners, see Roelofs figures 2 and 7 and Lin figure 9).
Regarding claim 18, the combined references teach, wherein the flap comprises a first surface and a second surface extending between the proximal end and the distal end of the flap, wherein the first fastener is disposed on the first surface or the second surface, and wherein the second fastener is disposed between the first surface and the second surface (wherein 60 comprises a first surface and a second surface extending between the proximal end (at 700) and the distal end of 60, wherein the first fastener 20 of Roelofs is disposed on the first surface or the second surface, and wherein 702 is disposed between the first surface and the second surface, see Roelofs figures 2 and 7 and Lin figure 9).
Regarding claim 19, the combined references teach, wherein the lower garment comprises a third fastener configured to engage the second fastener to secure the first surface or the second surface of the flap to an inner surface of the one or more leg portions of the lower garment (Lin, wherein 22 comprises 702 configured to engage 701 to secure the first surface or the second surface of 60 to an inner surface of the one or more leg portions of 22, [0039], [0040], figure 9).
Regarding claim 20, the combined references teach, wherein the third fastener is integrated into a portion or a section of the one or more leg portions of the lower garment (Lin, wherein 702 is integrated into a portion or a section of the one or more leg portions of 22, [0039], [0040], figure 9).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
1. 2,705,326 by Lahnstein discloses a lower garment having leg portions, a flap movable between a first position attached or secured to the interior region of the one or more leg portions of the lower garment and a second lower position.
2. 5,887,359 by Falguere discloses a lower leg garment with a flap integrally formed with a cuff portion of the garment. The flap being configured to cover an upper portion of footwear. The flap including a fastener for engaging a lace of an article of footwear.
3. 2004/0055074 by Lin discloses a lower garment with a flap integrally formed with a cuff portion of the pant garment. The flap having a connection that allows the flap to be detachably coupled from leg portions of the pants. The flap being configured to cover an upper portion of footwear.
4. 4,896,397 by Kape discloses a lower garment with a flap integrally formed with a cuff portion of the pant garment. The flap including a fastener at the distal end to detachably coupled the flap from leg portions of the pants.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JILLIAN PIERORAZIO whose telephone number is (571)270-0553. The examiner can normally be reached M-F 8:30-4:30.
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 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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Jillian K Pierorazio/ Primary Examiner, Art Unit 3732