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 Applications” section needs to be updated to include the U.S. Patent Numbers for any allowable Patent Applications.
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 5-15 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.
In claim 5, line 1 and claim 15, line 1, the preamble claims the garment as being an “Adjustable garment". However, the body of claims 1 and 15 do not include any “Adjustable garment structure” therein. Therefore, it is not clear as to how the “garment “ is “adjustable".
Drawings
The drawings are objected to because the Drawings need reference numbers for each
component part that coincides with a reference number in the specification for that same part. The
written words in the figures need to be removed such as in figures 1 A and 1B, 2A, 2B, 3A,3B,3C and 4.
Also, it is not clear as to where the “Adjustable garment structure” as claimed in claims 5-15 is located.
The claimed “Adjustable garment structure” must be canceled from the claims if not already clearly
disclosed.
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.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application
for patent published or deemed published under section 122(b), in which the patent or application, as
the case may be, names another inventor and was effectively filed before the effective filing date of
the claimed invention.
Claim(s) 1-3, 5-8 and 10-15 is/are rejected under 35 U.S.C. 102a2 as being anticipated by
Heimann (US 2012/0324615 A1).
In regard to claim 1 Heimann discloses a garment with sleeves(see Abstract) comprising a front portion
in figure 4 with a first and second cup at bra 62 in figure 4 and para. (0043), aback portion in figure 5
with first and second wings as left and right wings of back band 72 in figure 5 para. (0043) with a first
sleeve attached to the first wing sleeve 66 together with side panel 76 in figures 4 and 5 attached to left
wing with side panel 76 in figures 4-5 and side panels attached to wings and back band in para. (00343);
and a first and second strap as first and second shoulder straps 68 in figure SS 4na d5 and para. (0043)
with edge of the first sleeve extending from the first cup to a point located on the first wing to which
the first strap attaches with sleeve 66 attached to the bra at the should strap 68 at the wing or side strap
70 and as shown in figure 5 and the back band 72 of bra 62 in figure 4 and 5 and para. (0043).
In regard to claim 2 Heimann discloses the garment of claim 1 and further comprising a second sleeve
64 as in figure 4 and 5 and para. (0043), second strap configured to support an edge of the second
sleeve 64 attached to the bra at should strap 68 in figures 4 and 5 and para. (0043) with the edge of
second sleeve extending from the second cup to a point located on the second wing to which the second
strap attaches sleeve 64 attached to the bra at the shoulder S strap 68 at the wing or side strap 70 and
as shown in figure 5 at the back band 72 of the bra 62 in figure 4-5 and para. (0043).
In regard to claim 3 Heimann discloses the garment of claim 1 and further the first and second cups as
being separated by center gore as in figure 4.
In regard to claim 5 Heimann discloses at the adjustable garment sleeve at 60 in figure 4 and para.
(0043), adjustable as straps can be removed para (0043) comprising a front portion in figure 4, with first
and second cups of bra 62 in figure and para. (0043), a back portion in figure 5 with first and second
wings as the left and right wings of back band 72 in figure 5 and para. (0043); a first sleeve removably
attached to the first cup and first wing as sleeve 66 together with side panel 76 in figures 4 and 5,
attached to the left wing via side panel 76 om figures 4 and 5 and see side panels attached to wings and
back band via hook and loop fastener as in para. (0043), wherein the first sleeve comprising a strap 68
fed through channels on the side panels of the sleeve garment in figures 4-5 and para. (0043) and a
plurality of hooks configured to secure the first sleeve and the first strap to the first cup and the first
wing of hooks and hook and loop fastener to attach side panels 76 to wings and back band of bra, (para.
(0043).
In regard to claim 6 Heimann discloses the garment as in claim 5 and further comprising a second sleeve
removably attachable to the second cup and the second wing with sleeve 64 together with side panel
left wing with side panel 76 in figure 4 and 5, and side panels
76 in figures 4 and 5 attached to wings and back band via hook and loop fastener para. (0043) wherein
the second strap is configured to support an edge of the second sleeve 4 and 5 para. (0043) with the
edge of the second sleeve extending from the second cup to a point located on the second wing to
which the second strap attaches to sleeve 64 attached to the bra at the shoulder strap 68 at the wing or
side strap 70 and as shown in figure 5 at the back band 72 of the bra 62 in figures 4-5 and para. (0043).
In regard to claim 7 Heimann discloses the garment as in claim 5 and further comprising a second strap
at 68 of bra 62 in para. (0043) wherein the garment does not comprise a second sleeve or hook and lop
fasteners to allow removal of sleeves from the bra strap para (0055) thus second sleeve can be removed
from the second strap.
In regard to claim 8 Heimann discloses the garment as in claim 5 and further wherein the first and
second cups are separated at the center gore in figure 4.
In regard to claim 10 Heimann discloses the garment as in claim 6 and wherein the edge of the fist
sleeve comprises a plurality of hooks ,snaps and clasps and the first wing comprises a plurality of
corresponding hooks, snaps or clasps at side panels attached to wings and back band via hook and
loop fastener in para. (0043).
In regard to claim, 11 Heimann discloses the garment as in claim 7 and further wherein the second
strap is removably attachable to the second cup and the second wing with the removable shoulder
straps 68 that can be worn without the shoulder straps as in para. (0043).
In regard to claims 12 and 13 Heimann discloses the garment as in claim 5 and further wherein the first
strap is detachable from the first sleeve (removable shoulder straps 68 that can be fed through channels
74 of the sleeve garment as in para. (0043) and the first sleeve and first strap contained in a single
portion as the left portion in figures 4 and 5.
In regard to claim 14 Heimann discloses the garment as in claim 6 and further wherein the second
sleeve and the second strap ate contained in a single portion as in the single right portion as in figures 4
and 5.
In regard to claim 15 Heimann discloses the adjustable garment at 60 in figure 7 and para. (0043)
adjustable wherein the straps can be removed as in para. (0043) comprising a front portion in figure 4
with the first and second cups of bra 62 in figure 4 and para. (0043), a back portion in figure 5
comprising a first wing and a second wing of left and right wings of back band 72 in figure 5 para. (0043)
a first strap at 68 in figure 5 and para. (0043) and a second strap 68 in figure 4 and para. (0043) a first
sleeve removably attached to the first cup and wings at sleeve 66 together with side panel 76 in figure
4-5 attached to left wing with side panel or side strap 70 and as in figure 5 at the back band 72 of the bra
62 in figure 4-5 and para. (0043) and wherein the second sleeve attaches to a point on the second cup
and a point on the second wing with sleeve 66 attached to the bra at the shoulder strap 68 at wing or
side strap 70 as in figure 5 at the back band 72 in figure 4-5 of bra 62 in para. (0043).
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, 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) 4 and 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Heimann.
In regard to claim 4 Heimann discloses the garment as claimed in claim 1. However Heimann does not
specifically discloses the first and second cups as not being separated by a gore. Heimann discloses an
alternative embodiment with the first and second cups as not being separated at a center gore as in
figure 8. It would have been obvious to one of ordinary skill in the art at the time of the invention that
the garment of Heimann could have been modified as claimed for desired positioning of the cups on the
wearer.
In regard to claim 9 Heimann discloses the garment as in claim 5.
However, Heimann does not disclose the first and second cups as not being separated at a center gore
as in figure 8. It would have been obvious to one of ordinary skill in the art at the time of the invention
that the garment of Heimann could have been modified as claimed for desired positioning of the cups
on the wearer.
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 1-15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 11857000. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims claim the same elements of (i) – (iv) without the bonded fabric of a moisture barrier in claims 1, 5 and 15 and over claims 1-14 of U.S. Patent Number 12389957. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims claim the same elements of (i) – (iv) without the bonded fabric of a moisture barrier in claims 1 and 11. Omitting or substituting the bonded material form the structure would have been an obvious modification.
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..
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,
Alissa Tompkins can be reached on 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