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 .
Claims 1-20 are pending in this application.
Response to Amendment
The amendments filed with the written response received on 04/10/2026 have been considered and an action on the merits follows. As directed by the amendment, claims 1, 5-6, 9, and 14 have been amended. Accordingly, claims 1-20 are pending in this application. Because of the applicant's amendment, the following in the office action filed 12/10/2025, are hereby withdrawn: the drawing objections; the prior claim objections; and the rejection of claims under 35 USC § 112(b).
Response to Arguments
Applicant's arguments filed 04/10/2026 have been fully considered but they are not persuasive.
With respect the recitation “opening device” invoking an interpretation under 35 USC § 112(f), in claims 1 and 14, Applicant argues the claim limitation “opening device” is neither a nonce word, nor a mere “verbal construct” that is intended to substitute for the term “means for.” Applicant further argues that one of ordinary skill in the art, having read the specification, would understand “opening device” to be the name for the structure that perform the function even when the term covers a broad class of structures or identifies the structures by their function.
Examiner disagrees. First, the term “opening device” uses a generic place holder (“device”) that has no specific structural meaning for performing the claimed function of opening. The term “device” is not preceded by a structural modifier. Second, the modifier “opening” identifies the function performed by the device rather than imparting any structural meaning. One skilled in the art would understand “opening device” as equivalent to “device for opening” or “device configured to open,” wherein “opening” merely links the generic term “device” to its intended function. Third, the claim does not recite any structural component of “opening device” that would inform one of ordinary skill in the art of the particular structure for performing the opening function. Instead, the claims relies solely on the generic term “device” without reciting sufficient structure, material, or acts to perform the claimed function, thereby invoking 35 USC § 112(f) since the three-prong test has been considered satisfied.
Applicant's arguments, filed 04/10/2026, with respect to the rejection of claims under 35 USC § 103 have been considered but are moot because the arguments do not apply to the current grounds of rejection. Applicant's arguments, which appear to be drawn only to the newly amended limitations and previously presented rejections, have been considered but are moot in view of the updated ground(s) of rejection.
Drawings
The drawings were received on 04/10/2026. These drawings are acceptable and are hereby entered.
Claim Objections
Claims 2 and 15 are objected to because of the following informalities:
Claims 2 and 15 contains the trademark/trade name lycra. It is suggested the term is rephrased or amended to further define the intended material being claimed
It is suggested the claim is rephrased to recite “the one or more seams” for consistency with the rest of the claim and/or for antecedent basis purposes.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “opening device” in claims 1 and 14 and are interpreted under 35 USC 112(f) and in Applicant’s specification, the “opening device” is one or more snaps, one or more buckles, one or more clips, one or more buttons, one or more magnets, lace or fabric, one or more clamps, one or more rings, one or more, one or more adjustors, one or more zippers, one or more drawstrings, one or more fold over flaps, see para 0060, or at least a functional equivalent. As explained above and repeated here: First, the term “opening device” uses a generic place holder (“device”) that has no specific structural meaning for performing the claimed function of opening. The term “device” is not preceded by a structural modifier. Second, the modifier “opening” identifies the function performed by the device rather than imparting any structural meaning. One skilled in the art would understand “opening device” as equivalent to “device for opening” or “device configured to open,” wherein “opening” merely links the generic term “device” to its intended function. Third, the claim does not recite any structural component of “opening device” that would inform one of ordinary skill in the art of the particular structure for performing the opening function. Instead, the claims relies solely on the generic term “device” without reciting sufficient structure, material, or acts to perform the claimed function, thereby invoking 35 USC § 112(f) since the three-prong test has been considered satisfied.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 103
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.
Claims 1-3 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over US 2020/0221799 A1 to Williams.
For claim 1, Williams discloses an apparatus (fig. 1a), comprising: a first tubular structure (100) comprising a first end (121) and a second end (122), wherein the first tubular structure further comprises one or more pieces of fabric (para 0064).
The above embodiment of Williams does not specifically disclose an opening device that is fixedly connected to the first end and the second end of the first tubular structure.
However, in a separate embodiment, Williams does teach the garment may include fastening mechanism (1110) and (1112) at the ends of the garment that allows the ends of the garment to be selectively affixed or joined to one another for purposes of reconfiguring the garment (para 0125). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the above embodiment of Williams would be modified such that to including an opening device in the form of fastening mechanisms connected, or formed as a part of, each of the first and second ends of the garment to selectively affixed or join the ends to one another for purposes of reconfiguring the garment, as taught by Williams. Therefore, since the fastening mechanisms are included and a part of each respective first end and second end, said fastening mechanisms are also considered fixedly connected to each end.
For claim 2, the modified Williams teaches the apparatus of claim 1, wherein the one or more pieces of fabric is at least in part polyester, nylon, spandex, lycra, elastane, cotton, bamboo, and/or modal (para 0093).
For claim 3, the modified Williams teaches the apparatus of claim 1, but does not specifically disclose wherein the opening device is one or more snaps, one or more buckles, one or more clips, one or more buttons, one or more magnets, lace or fabric, one or more clamps, one or more rings, one or more, one or more adjustors, one or more zippers, one or more drawstrings, or one or more fold over flaps.
However, Williams teaches the fasteners may be respective male and female portions of a hook and loop fastener system (para 0125). In other parts of the garment, Williams also provides that fastening mechanisms, such as hook and loop fasteners, snap fasteners, magnetic fasteners, a zipper, or any other suitable mechanism may be used for detachably affixing other portions of the garment from to itself (para 0067). Therefore, the hook and loop fasteners and the one or more zipper of Williams have the same function of securing different parts of the garment to each other and are known in the art. It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the modified Williams would be further modified wherein the hook and loop fasteners of the above embodiment are substituted for one or more zippers since the modification would amount to a simple substitution of known components for a predictable result. In this case, the substitution would yield the predictable result of detachably affixing portions of the garment to other portions of the garment without requiring more than ordinary skill in the art to accomplish (see MPEP 2143(I)(B)).
Claims 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Williams as applied to claim 1 above, and further in view of US 6,145,131 A to Huff.
For claim 4, the modified Williams teaches the apparatus of claim 1 further comprising one or more seams at one or more locations (130, para 0065).
The modified Williams does not specifically disclose the seam pinches the first tubular structure.
However, attention is directed to Huff teaching an analogous warp (abstract of Huff) and seam (34) formed by a pinch type of seam on the tubular structure (figs. 5-6) for purposes of hiding the seam and creating a desirable aesthetic (col. 5, lines 21-34 of Huff). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the modified Williams would be further modified such that the seam is a pinch seam that pinches the first tubular structure and is turned inside out for purposes of hiding the seam and creating a desirable aesthetic, as taught by Huff (col. 5, lines 21-34 of Huff).
For claim 5, the modified Williams teaches the apparatus of claim 4, wherein the one or more seams are parallel to a longitudinal axis of the first tubular structure (see fig. 1 of Williams wherein seam 130 runs parallel to the longitudinal axis).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Williams in view of Huff, as applied to claims 1 and 4 above, and further in view of US 2016/0143424 A1 to Stephens.
For claim 6, Williams teaches the apparatus of claim 4, but does not specifically disclose wherein the one or more seams are perpendicular to a longitudinal axis of the first tubular structure.
However, attention is directed to Stephens teaching a wearable elastic band also including a pouch for holding an article (abstract of Stephens). Specifically, Stephens teaches the tube (10) comprises a tack stitch (38) in a direction perpendicular to the longitudinal axis of the tube (fig. 2a of Stephens) for purposes of maintaining the layers of the tube in a folded state (para 0026 of Stephens). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the modified Williams would be further modified to include a tack stitch in a direction perpendicular to the longitudinal axis of the tube for purposes of maintaining the layers of the tube in a folded state, as taught by Stephens (para 0026 of Stephens).
Claims 7, 8, and 10-13 are rejected under 35 U.S.C. 103 as being unpatentable over Williams as applied to claim 1 above, and further in view of US 6,463,608 B1 to Moe.
For claim 7, the modified Williams teaches the apparatus of claim 1, but does not specifically disclose further comprising a second tubular structure.
However, attention is directed to Moe teaching an analogous tubular structure in the form of a multipurpose pillow (10) made from a similar cotton or polyester outer shell (22) (fig. 4; col. 1, lines 41-50 of Moe). Specifically, Moe teaches a second panel (14) tubular in shape (fig. 4) disposed on top and around of the inner outer shell (22) by stitching seam at (40), (fig. 4) for purpose of providing the waist worn tubular structure with a hand warming pocket (col. 3, lines 13-20 of Moe). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the modified Williams would be further modified to comprise a second tubular panel having ends disposed around the outer surface of William’s first tubular structure by a stitching seam for purpose of proving an additional hand warming feature, as taught by Moe (col. 1, lines 41-50; col. 3, lines 13-20; and fig. 4 of Moe).
For claim 8, the modified Williams teaches the apparatus of claim 7, wherein the second tubular structure comprises a first end and a second end (see 44 and 42 of fig. 3 of Moe).
For claim 10, the modified Williams teaches the apparatus of claim 7, wherein the first tubular structure is at least in part disposed within the second tubular structure (see fig. 4 of Moe wherein the second tubular structure is in part disposed around the first tubular structure).
For claim 11, the modified Williams teaches the apparatus of claim 10, wherein the second tubular structure is sown to the first tubular structure (see discussion for claim 7 above wherein the second tubular panel is disposed around the outer surface of the first tubular structure by a stitching seam).
For claim 12, the modified Williams teaches the apparatus of claim 7, wherein a first outer surface of the first tubular structure is at least in part in contact with a second outer surface of the second tubular structure (see discussion for claim 7 above and fig. 4 of Moe wherein the second tubular structure outer surface is configured to be in contact with the outer surface of the first tubular structure).
For claim 13, the modified Williams teaches the apparatus of claim 12, wherein the first outer surface of the first tubular structure is sown to the second outer surface of the second tubular structure (see discussion for claim 7 above and fig. 4 of Moe wherein the first outer surface of the first tubular structure is sown to the second outer surface of the second tubular structure).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Williams in view of Moe, as applied to claims 1, 7 and 8 above, and further in view of US 2006/0137072 A1 to Visco.
For claim 9, the modified Williams teaches the apparatus of claim 8, but does not specifically disclose wherein the first end and the second end of the second tubular structure are hemmed.
However, attention is directed to Visco teaching a technique for constructing an analogous tubular structure in the form of a neck warmer (para 0037 of Visco). Specifically, Visco teaches it is preferable for fabric edges to be hemmed or otherwise finished for purpose of creating a desirable aesthetic for unfinished edges (para 0048 of Visco). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the modified Williams would be further modified wherein the first end and the second end of the second tubular structure are hemmed or otherwise finished for purpose of creating a desirable aesthetic for unfinished edges, as taught by Visco (para 0048 of Visco).
Claims 14-16, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Williams in view of US 2018/0140026 A1 to Nijmeh.
For claim 14, Williams discloses a method comprising: sewing one or more pieces of fabric together to form a first tubular structure (tubular garment 100 is formed by joining longitudinal sides of 100 at longitudinal seam 130 which is considered a sewing seam and would be understood by one skilled in the art as inherently including a method for sewing; paras 0065, 0078, and fig. 1a), comprising a first end (121) and a second end (122).
The above embodiment of Williams does not specifically disclose sewing an opening device fixedly connected to the first end and the second end of the first tubular structure.
However, in a separate embodiment, Williams does teach the garment may include fastening mechanism (1110) and (1112) at the ends of the garment that allows the ends of the garment to be selectively affixed or joined to one another for purposes of reconfiguring the garment (para 0125).
It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the above embodiment of Williams would be modified such that to include the step of providing an opening device in the form of fastening mechanisms at each of the first and second ends of the garment to selectively affixed or join the ends to one another for purposes of reconfiguring the garment, as taught by Williams. Therefore, since the fastening mechanisms are included and a part of each respective first end and second end, said fastening mechanisms are also considered fixedly connected to each end.
As modified, Williams does not specifically disclose wherein the opening devices are attached to the first end and second end by sewing.
However, attention is directed to Nijmeh teaching a method of attaching fasteners wherein corresponding zippers are sewn on two corresponding panels (para 0049 of Nijmeh) for purposes of securing the zipper fasteners in place. It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the modified Williams would be further modified wherein the opening devices are attached to the first end and the second end by sewing, as taught by Nijmeh (para 0049 of Nijmeh) for purposes of firmly securing the opening devices in place such that the opening devices do not separate in an unwanted fashion.
For claim 15, the modified Williams teaches the method of claim 14, wherein the one or more pieces of fabric is at least in part polyester, nylon, spandex, lycra, elastane, cotton, bamboo, and/or modal (para 0093).
For claim 16, the modified Williams teaches the method of claim 14, but does not specifically disclose wherein the opening device is one or more snaps, one or more buckles, one or more clips, one or more buttons, one or more magnets, lace or fabric, one or more clamps, one or more rings, one or more, one or more adjustors, one or more zippers, one or more drawstrings, or one or more fold over flaps.
However, Williams teaches teach the fasteners may be respective male and female portions of a hook and loop fastener system (para 0125). In other parts of the garment, Williams also provides that fastening mechanisms, such as hook and loop fasteners, snap fasteners, magnetic fasteners, a zipper, or any other suitable mechanism may be used for detachably affixing other portions of the garment from to itself (para 0067). Therefore, the hook and loop fasteners and the one or more zipper of Williams have the same function of securing different parts of the garment to each other and are known in the art. It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the modified Williams would be further modified wherein the hook and loop fasteners of the above embodiment are substituted for one or more zippers since the modification would amount to a simple substitution of known components for a predictable result. In this case, the substitution would yield the predictable result of detachably affixing portions of the garment to other portions of the garment without requiring more than ordinary skill in the art to accomplish (see MPEP 2143(I)(B)).
Claims 17 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Williams in view of Nijmeh, as applied to claim 14 above, and further in view of Huff.
For claim 17, the modified Williams teaches the method of claim 14 further providing one or more seams at one or more locations (130, para 0065).
The modified Williams does not specifically disclose the seam pinches the first tubular structure.
However, attention is directed to Huff teaching an analogous warp (abstract of Huff) and seam (34) formed by a pinch type of seam on the tubular structure (figs. 5-6) for purposes of hiding the seam and creating a desirable aesthetic (col. 5, lines 21-34 of Huff). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the modified Williams would be further modified such that the method of providing the seam is a method of sewing a pinch seam that pinches the first tubular structure and is turned inside out for purposes of hiding the seam and creating a desirable aesthetic, as taught by Huff (col. 5, lines 21-34 of Huff).
For claim 18, the modified Williams teaches the method of claim 17, wherein the seams are parallel to a longitudinal axis of the first tubular structure (see fig. 1 wherein seam 130 runs parallel to the longitudinal axis).
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Williams in view of Nijmeh and Huff, as applied to claims 14 and 17 above, and further in view of Stephens.
For claim 19, Williams teaches the method of claim 17, but does not specifically disclose wherein the seams are perpendicular to a longitudinal axis of the first tubular structure.
However, attention is directed to Stephens teaching a wearable elastic band also including a pouch for holding an article (abstract of Stephens). Specifically, Stephens teaches the tube (10) comprises a tack stitch (38) in a direction perpendicular to the longitudinal axis of the tube (fig. 2a of Stephens) for purposes of maintaining the layers of the tube in a folded state (para 0026 of Stephens). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the modified Williams would be further modified to include a tack stitch in a direction perpendicular to the longitudinal axis of the tube for purposes of maintaining the layers of the tube in a folded state, as taught by Stephens (para 0026 of Stephens).
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Williams in view of Nijmeh, as applied to claim 14 above, and further in view of Moe.
For claim 20, the modified Williams teaches the method of claim 14, but does not specifically disclose sewing one or more pieces of fabric together to form a second tubular structure and sewing the second tubular structure to the first tubular structure.
However, attention is directed to Moe teaching an analogous tubular structure in the form of a multipurpose pillow (10) made from a similar cotton or polyester outer shell (22) (fig. 4; col. 1, lines 41-50 of Moe). Specifically, Moe teaches a second panel (14) tubular in shape (fig. 4) disposed on top and around of the inner outer shell (22) by stitching seam at (40), (fig. 4) for purpose of providing the waist worn tubular structure with a hand warming pocket (col. 3, lines 13-20 of Moe). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the modified Williams would be further modified to comprise the method step of sewing a second tubular panel having ends disposed around the outer surface of William’s first tubular structure by a stitching seam for purpose of proving an additional hand warming feature, as taught by Moe (col. 1, lines 41-50; col. 3, lines 13-20; and fig. 4 of Moe).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 ERICK I LOPEZ whose telephone number is (571)272-3262. The examiner can normally be reached Monday - Friday: 9:00am - 5:30pm EST.
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/ERICK I LOPEZ/Examiner, Art Unit 3732
