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 .
Drawings
The drawings are objected to because “100” in Figs. 1-3 include a leading line that leads to empty space. It appears that 100 in each of Figs. 1-3 should include an arrow that points to the illustrated device.
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 (Abstract)
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because it begins with a phrase which can be implied (i.e. “Described herein…”). A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Specification (Disclosure)
The disclosure is objected to because of the following informalities: Examiner acknowledges Applicant’s current form of ¶ 0017:
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The underlined sentence renders the interpretation of all instances of the term “and” in the claims unclear, because the term “and” is understood to mean that all components listed before and after “and” in a listing would reasonably be required to meet the limitations of the claim. This statement in Applicant’s Specification appears to indicate that all instances of “and” could be interpreted instead as “and/or”, which is interpretable as “or”, meaning that only one item in the listing separated by “and” would be required to meet the limitation of the claim. If “and” were interpreted in claim 1 as meaning the same as “and/or” which is interpretable as “or”, then claim 1’s body would only require that one of the clauses was met by the prior art in order for the prior art to read on the claim. This would not appear to be Applicant’s intention, since, for example, any boxer brief garment with “at least one waistband” would then meet claim 1 (i.e. if the “and” in line 18 were interpreted as meaning the same as “and/or”, which is interpretable as “or”, as noted above). Examiner suggests Applicant clarifying the Specification so that the interpretation of “and” is established so that all items present in the listed grouping are required to meet the limitation. Alternatively, if Applicant actually intends for “and” to be interpreted as “and/or” (and therefore “and” being interpretable as “or”), then Applicant should indicate in their Remarks that this is intentional.
Appropriate correction is required.
The use of the term “MerakiTay” (¶ 0039; four instances), which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears (i.e. “MERAKITAY”) or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® 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.
Claim Objections
Claims 1, 3, 4, 10, 12 and 13 are objected to because of the following informalities:
Claim 1, line 1: the phrase “, the modified boxer brief” should be added before “comprising”
Claim 1, line 2: “top” should recite “a top”
Claim 1, lines 9-10: “at least on left leg portion” should recite “at least one left leg portion”
Claim 10, line 1: the phrase “, the modified boxer brief” should be added before “comprising”
Claim 10, line 2: “top” should recite “a top”
Claim 10, lines 11-12: “at least on left leg portion” should recite “at least one left leg portion”
Claims 3, 4, 12 and 13: Applicant recites “such as pads and panty liners” in each of these claims; Examiner has reviewed MPEP 2173.05(d) and determined that these phrases do not, at least themselves, render the metes and bounds of the claims indefinite. However, since the phrases are somewhat superfluous and do not add any structural limitations to the claims, the claims would be clearer if the phrases were omitted and merely recited:
Claims 3 and 12: “the fabric is configured to adhere to menstrual products”
Claims 4 and 13: “the at least one additional piece of fabric on the at least one interior pelvic area is configured to hold menstrual products”
Examiner notes that Applicant recites many claimed elements as “at least one” of those elements. The only claimed element that appears to actually have more than one instance is the “at least one longitudinal seam” (see 118 in Fig. 1). All other elements are singularly illustrated in the figures. While “at least one” is not technically inaccurate, the claims would read more clearly if all of the instances of “at least one” were removed from the structural elements that only actually are illustrated to have a single instance of that element (Examiner notes that the open-ended transitional phrase “comprising” in the claims would not prohibit more than one instance of these elements from being present), such as:
“at least one waistband” [Wingdings font/0xE0] “a waistband”
“at least one body” [Wingdings font/0xE0] “a body”
“at least one right leg portion” [Wingdings font/0xE0] “a right leg portion”
“at least one right leg seam” [Wingdings font/0xE0] “a right leg seam”
“at least one right leg opening” [Wingdings font/0xE0] “a right leg opening”
“at least one left leg portion” [Wingdings font/0xE0] “a left leg portion”
“at least one left leg seam” [Wingdings font/0xE0] “a left leg seam”
“at least one left leg opening” [Wingdings font/0xE0] “a left leg opening”
“at least one pelvic area” [Wingdings font/0xE0] “a pelvic area”
“at least one anterior arched seam” [Wingdings font/0xE0] “an anterior arched seam”
“at least one posterior arched seam” [Wingdings font/0xE0] “a posterior arched seam”
“at least one longitudinal seam” could remain as-is, since there appears to be two longitudinal seams 118 in Fig. 1
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b)
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 1 and 10 (and claims 2-9 and 11-18 at least due to dependency from either of independent claims 1 or 10) 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.
Regarding claim 1, Applicant recites “wherein the at least one pelvic area is configured to include at least one additional piece of fabric on the interior”. First, “at least one additional piece of fabric” is confusing because it implies there has already been positively recited a piece of fabric (if there is no existing piece of fabric, then how would it be an “additional” piece of fabric?). Second, “the interior” lacks antecedent basis in the claim. Third, it is indefinite as to whether the at least one additional piece of fabric is actually required to be structurally present, or the at least one pelvic area is merely capable of (i.e. giving importance to the functional phrase “configured to”) including at least one additional piece of fabric thereon. Correction is required. If Applicant intends for the at least one additional piece of fabric to be structurally present, then Examiner suggests “wherein the at least one pelvic area has an interior and includes at least one additional piece of fabric on the interior”. The term “additional” will be interpreted as best as can be understood when applying any prior art against the claim. Examiner notes the same issues are present in independent claim 10, which is likewise indefinite and similar interpretations/suggestions are made therefor.
Regarding claim 1, Applicant recites the term “and” in line 18. As explained in the Specification objection section above, when interpreting “and” in light of the Specification, the metes and bounds of the claim are unclear because “and” in a normal sense would mean that all of the items among the grouping connected with “and” (i.e. items between lines 5-20, indented under “wherein the at least one body further comprises”) would be required. However, the Specification, in ¶ 0017, appears to indicate that “and” should be interpreted such that not all items listed are required, rendering line 18’s instance of “and” to be the same meaning as “or”, wherein fewer than all of the items are required. Correction/clarification is required. For purposes of examination, “and” in line 18 of claim 1 is being interpreted as “and” in the normal sense, wherein all items are required. However, Applicant should clearly indicate in their response whether “and” should actually be interpreted as “or”. If Examiner has taken the correct (i.e. intended) interpretation, wherein “and” requires all of the items in the grouping of items, then Examiner suggests Applicant delete the underlined sentence in ¶ 0017 of the Specification (see Specification objection section above for the screenshot of the paragraph). Examiner notes the same issue is present in independent claim 10, which is likewise indefinite and similar interpretations/suggestions are made therefor.
Regarding claim 1, Applicant recites the limitation “the at least one arched seam” (line 19). The reference to “the at least one arched seam” is indefinite because claim 1 positively recites “at least one anterior arched seam” (line 15) and “at least one posterior arched seam” (line 17) (i.e. which is “the at least one arched seam”?). Correction is required. Examiner notes the same issue is present in independent claim 10, which is likewise indefinite.
Regarding claim 3, Applicant recites “wherein the fabric is configured to adhere to menstrual products such as pads and panty liners”. It is unclear what is structurally meant by this limitation, absent further distinguishing language in the claim. Correction is required. For purposes of examination, as long as a menstrual product is capable of being adhered to the fabric (i.e. either by self-adhesion, an additional adhesive, or via fastener(s), etc.), then the prior art’s fabric will be deemed to meet the limitation of the claim, as best as can be understood. Examiner notes the same issue is present in claim 12, which is likewise indefinite.
Regarding claim 4, Applicant recites the limitation “the at least one interior pelvic area” which lacks clear antecedent basis. It is noted that independent claim 1, from which claim 4 depends, positively recites “at least one pelvic area”, but there is no “at least one interior pelvic area”. Correction is required. If Applicant adopts the suggested language for claim 1 above, then claim 4 could be remedied by reciting “the interior of the at least one pelvic area”. Examiner notes the same issue is present in claim 13, which is likewise indefinite and similar interpretations/suggestions are made therefor.
Regarding claim 5, Applicant recites “the at least one arched seam is configured on the front and the back body”. The reference to “the at least one arched seam” is indefinite because independent claim 1, from which claim 5 indirectly depends, positively recites “at least one anterior arched seam” and “at least one posterior arched seam” (i.e. which is “the at least one arched seam”?). Also, “the front” and “the back body” lack clear antecedent basis in the claims. Correction is required. For purposes of examination, the claim will be interpreted as “the at least one anterior arched seam is on a front of the at least one body, the at least one posterior arched seam is on a back of the at least one body, wherein the at least one anterior arched seam and the at least one posterior arched seam are configured to hold the at least one additional piece of fabric in place”, as best as can be understood. Examiner notes the same issue is present in claim 14, which is likewise indefinite and similar interpretations/suggestions are made therefor.
Regarding claim 6, Applicant recites “the left and the right side”, which lacks antecedent basis in the claims. It is indefinite as to what claimed element “the left and the right side” belongs. Correction is required. For purposes of examination, the claim will be interpreted as best as can be understood when applying any prior art thereagainst. Examiner notes the same issue is present in claim 15, which is likewise indefinite and a similar interpretation is made therefor.
Regarding claim 7, Applicant recites “wherein at least one longitudinal seam” (line 1). It is indefinite as to whether claim 7 is positively reciting an additional at least one longitudinal seam, or claim 7 should refer to “the at least one longitudinal seam” that was positively recited in independent claim 1, from which claim 7 indirectly depends. Correction is required. For purposes of examination, claim 7 is being interpreted as reciting “the at least one longitudinal seam”. Examiner notes the same issue is present in claim 16, which is likewise indefinite and similar interpretations/suggestions are made therefor.
Regarding claim 7, Applicant recites “the left side and the right side of the at least one additional piece of fabric”, which lacks antecedent basis in the claims. Examiner notes that adopting the above interpretation (see claim 6’s rejection above) would obviate the issue in claim 7. Examiner notes the same issue is present in claim 16, which is likewise indefinite and similar interpretations/suggestions are made therefor.
Regarding claim 8, Applicant recites “the waist”, which lacks antecedent basis in the claims. Correction is required. Examiner suggests “a waist of a wearer”. Examiner notes the same issue is present in claim 17, which is likewise indefinite and similar interpretations/suggestions are made therefor.
Regarding claim 11, Applicant recites “further comprising forming the fabric used is cotton, nylon, rayon, spandex, polyester, silk, or modal” (emphasis added). It appears that claim 11, which closely resembles claim 2, merely involved copying and pasting the claim language and replacing “wherein” with “further comprising forming” which caused the grammar of the claim to be distorted. Correction is required. Examiner suggests claim 11 recite the same as claim 2, since independent claim 10 already includes the “forming” language. Examiner notes that the same distorted grammar appears in dependent claims 12-14, 17 and 18, which may also be recited more clearly if they matched the language of associated claims 3-5, 8 and 9, respectively (i.e. removing the “further comprising forming” language from the dependent claims and replacing with “wherein”, generally), as best as can be understood.
Regarding claim 18, Applicant recites the limitation “the pelvic area”. In independent claim 10, from which claim 18 depends, Applicant positively recites “at least one pelvic area”. In the event there is more than one pelvic area, the mere reference to “the pelvic area” would be indefinite. Correction is required. One correction for this issue would be to recite “the at least one pelvic area” (similarly as is currently recited in similar claim 9).
An effort has been made to identify all indefinite language with the pending claims. However, Examiner notes the above listing of 35 U.S.C. § 112 rejections may not be conclusive and Applicant is required to review every claim for compliance to 35 U.S.C. § 112(b) so as to facilitate a clear understanding of the claimed invention and proper application of the prior art.
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.
Claims 1-18, as best as can be understood, are rejected under 35 U.S.C. 103 as being unpatentable over Polstein et al. (hereinafter “Polstein”) (WO 2020/086330 A1).
Regarding independent claim 1, Polstein discloses a modified boxer brief (athletic garment #100; see Figs. 1-2C of Polstein, which shows a boxer brief; Examiner notes that the adjective term “modified” does not further structurally define the boxer brief in any patentably-distinguishing sense) for menstrual cycles (¶ 017 of Polstein details that female wearers can benefit from wearing the garment during menstruation; Examiner notes that the emphasized/italicized language is a statement of intended use that does not further structurally define the claimed invention in any patentably-distinguishing sense) comprising: at least one waistband (waistband portion #110) at [a] top of the boxer brief (see Figs. 1-2C of Polstein); at least one body (see Figs. 1-2C of Polstein; the “body” is made up of everything below the waistband portion #110); wherein the at least one body further comprises; at least one right leg portion (see Figs. 1, 2A and 2C, which show that the garment #100 has arbitrary left and right leg portions; Examiner notes that the term "portion" is very broad and merely means "a section or quantity within a larger thing; a part of a whole" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)); at least one right leg opening (#118); at least one left leg portion (see Figs. 1, 2A and 2C, which show that the garment #100 has arbitrary left and right leg portions); at least one left leg opening (#116); at least one pelvic area in between the at least one right leg portion and the at least [one] left leg portion (a pelvic area is generally occupied by crotch panel #112, in between the two leg portions; Examiner notes that the term "area" is very broad and merely means "a section, portion, or part". (Defn. No. 3 of "Collins English Dictionary – Complete and Unabridged, 12th Edition 2014" entry via TheFreeDictionary.com)); wherein the at least one pelvic area is configured to include at least one additional piece of fabric on the interior (see Fig. 3; first layer #130 is an additional piece of fabric on an interior of the crotch panel #112; ¶ 027 of Polstein describes first layer #130 as being a fabric); at least one anterior arched seam (#120) configured to span from the at least one right leg portion to the at least one left leg portion (see Figs. 1 and 2A); at least one posterior arched seam (#122) configured to span from the at least one right leg portion to the at least one left leg portion (see Fig. 2C). Polstein appears to illustrate that the at least one right leg portion is configured with at least one right leg seam and the at least one left leg portion is configured with at least one left leg seam, and at least one longitudinal seam configured to span from the at least one arched seam to the at least one waistband (see Figs. 1-2C of Polstein, which shows horizontal dashed lines close to and parallel with the leg openings and the vertical dashed central line in Figs. 1 and 2A between seam #120 and the waistband portion #110, wherein the horizontal and vertical dashed lines have the exact same appearance as seams #126/120/124/128), but Polstein does not explicitly disclose that these dashed lines at the leg openings and the dashed lines that extend in the vertical front center downward from the waistband portion in Figs. 1 and 2A are, in fact, seams. However, it would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art for these dashed lines (i.e. at the leg openings and at the vertical front center between the waistband portion #110 and seam #120) to have been seams in order to have provided a sewn hem at the leg openings, wherein sewn hems are very well known in the art for the purpose of reinforcing leg openings to prevent fraying, and to have provided additional frontal structural integrity at the center between the waistband and the crotch panel, to assist in maintaining the vertical front shape of the garment in use and to keep the crotch panel in closer proximity to the user, whereas the absence of a front central seam would be more likely to cause the garment’s crotch area to sag and be weighed down if excessive amounts of fluid are retained in the crotch panel’s absorbent layer #130. As a result of the modification, the at least one right leg portion would be configured with at least one right leg seam, the at least one left leg portion would be configured with at least one left leg seam, and there would be at least one longitudinal seam configured to span from the at least one arched seam to the at least one waistband.
Regarding claim 2, the modified garment of Polstein (i.e. as such modification is applied to address claim 1 above) renders obvious all the limitations of claim 1, as set forth above, and further that the fabric used is cotton, nylon, rayon, spandex, polyester, silk, or modal (the fabric of the first layer #130 (i.e. the at least one additional piece of fabric) can comprise or consist of various fibers, including cotton, a cotton blend, or cotton/spandex blends (see ¶ 026-027 of Polstein)).
Regarding claim 3, the modified garment of Polstein (i.e. as such modification is applied to address claim 1 above) renders obvious all the limitations of claims 1 and 2, as set forth above, and that the fabric is configured to adhere to menstrual products such as pads and panty liners (as noted above, Polstein indicates that the first layer #130 can be cotton; Applicant’s Specification provides no additional structural details that describe what is actually meant by “configured to adhere to menstrual products” and the Specification in ¶ 0008, 0009 and 0034 discloses that cotton is an acceptable material for the fabric; since Polstein discloses that the fabric can be cotton, then it is deemed to meet this limitation the claim, as best as can be understood).
Regarding claim 4, the modified garment of Polstein (i.e. as such modification is applied to address claim 1 above) renders obvious all the limitations of claim 1, as set forth above, and further that the at least one additional piece of fabric on the at least one interior pelvic area is configured to hold menstrual products such as pads and panty liners (a hypothetical menstrual product, such as a pad or panty liner, is capable of being held on the first layer #130, inasmuch as the claim structurally has defined the at least one additional piece of fabric).
Regarding claim 5, the modified garment of Polstein (i.e. as such modification is applied to address claims 1 and 4 above) renders obvious all the limitations of claims 1 and 4, as set forth above, and that the at least one arched seam is configured on the front and the back body to hold the at least one additional piece of fabric in place (anterior arched seam (#120) is on the front and is joined to the crotch panel #112 (i.e. which has the first layer #130, which is the additional piece of fabric); posterior arched seam #122 is on the rear and is joined to the crotch panel #112, as well, and therefore the arched seams hold layer #130 in place along the front and rear peripheral edges of the crotch panel #112).
Regarding claim 6, the modified garment of Polstein (i.e. as such modification is applied to address claims 1 and 4 above) renders obvious all the limitations of claims 1 and 4, as set forth above, and that the at least one additional piece of fabric is configured to be stitched on the left and the right side by the at least one longitudinal seam (the vertical front central seam (via the 35 U.S.C. 103 modification addressing claim 1 above) is joined to the seam #120, which is coincident with the first layer #130 of the crotch panel #112; the left side of the crotch panel #112 meets the longitudinal seam and the right side of the crotch panel #112 meets the longitudinal seam at the lowermost point of the longitudinal seam; see the 35 U.S.C. 112(b) rejection of claim 6 above regarding the interpretation of this claim, as best as can be understood).
Regarding claim 7, the modified garment of Polstein (i.e. as such modification is applied to address claims 1, 4 and 6 above) renders obvious all the limitations of claims 1, 4 and 6, as set forth above, and that [the] at least one longitudinal seam is configured from the left side and the right side of the at least one additional piece of fabric to the at least one waistband to further secure the at least one additional piece of fabric (see Fig. 1 of Polstein, which shows the vertical central seam (i.e. longitudinal seam) to divide the left and right sides of the garment and the bottom endpoint of the vertical seam divides the left half and the right half of the seam #120 that defines the front peripheral edge of the crotch panel #112 (i.e. which includes the first layer #130, which is the additional piece of fabric), wherein the vertical central seam extends up to the waistband portion #110).
Regarding claim 8, the modified garment of Polstein (i.e. as such modification is applied to address claim 1 above) renders obvious all the limitations of claim 1, as set forth above, and further that the at least one waistband is configured to secure the at least one modified boxer brief onto the waist (¶ 020 of Polstein teaches that the waistband may be formed from an elastic material; an elastic material would be capable of securing the garment onto a waist of a user, depending on the size of the waist of the user (i.e. if the user’s waist is larger than the relaxing circumference of the waistband, then the elasticity would hold the waistband on the user)).
Regarding claim 9, the modified garment of Polstein (i.e. as such modification is applied to address claim 1 above) renders obvious all the limitations of claim 1, as set forth above, and further that the at least one right leg opening and the at least one left leg opening allows for breathability of the at least one pelvic area (garment may be formed of a first substrate for placement around a lower torso and upper ledges of the user, and defining openings for the legs of the user (¶ 004 of Polstein); ¶ 029 of Polstein discloses that the first substrate may be formed of at least one of the same materials of the multi-layered substrate, which defines crotch panel #112; ¶ 023 describes the tr-layer substrate as being breathable, which indicates that the first substrate (i.e. which includes the leg openings) is considered as being formed from a breathable material, which would allow for breathability of the at least one pelvic area (i.e. crotch panel area)).
Regarding independent claim 10, Polstein discloses a modified boxer brief (athletic garment #100; see Figs. 1-2C of Polstein, which shows a boxer brief; Examiner notes that the adjective term “modified” does not further structurally define the boxer brief in any patentably-distinguishing sense) for menstrual cycles (¶ 017 of Polstein details that female wearers can benefit from wearing the garment during menstruation; Examiner notes that the emphasized/italicized language is a statement of intended use that does not further structurally define the claimed invention in any patentably-distinguishing sense) comprising: forming at least one waistband (waistband portion #110 is shown to be formed; ¶ 020 states that the waistband portion #110 is “formed” of an elastic material; Examiner notes that the term “forming” is a product-by-process limitation; although the structure of the at least one waistband in the prior art may potentially be formed by a different process, the end product is the same as that of Applicant' s claimed invention. The determination of patentability in a product-by-process claim is based on the product itself, even though the claim may be limited and defined by the process. That is, the product in such a claim is unpatentable if it is the same as or obvious from the product of the prior art, even if the prior product was made by a different process. A product-by-process limitation adds no patentable distinction to the claim, and is unpatentable if the claimed product is the same as a product of the prior art. In re Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985). See MPEP 2113.; Examiner notes that this same product-by-process analysis applies to all other instances of an element derived in the claim from “forming” that element, hereinafter in claims 10-18) at [a] top of the boxer brief (see Figs. 1-2C of Polstein); forming at least one body (see Figs. 1-2C of Polstein; the “body” is made up of everything below the waistband portion #110); wherein the at least one body further comprises; forming at least one right leg portion (see Figs. 1, 2A and 2C, which show that the garment #100 has arbitrary left and right leg portions; Examiner notes that the term "portion" is very broad and merely means "a section or quantity within a larger thing; a part of a whole" (Defn. No. 1 of "American Heritage® Dictionary of the English Language, Fifth Edition" entry via TheFreeDictionary.com)); forming at least one right leg opening (#118); forming at least one left leg portion (see Figs. 1, 2A and 2C, which show that the garment #100 has arbitrary left and right leg portions); forming at least one left leg opening (#116); forming at least one pelvic area in between the at least one right leg portion and the at least [one] left leg portion (a pelvic area is generally occupied by crotch panel #112, in between the two leg portions; Examiner notes that the term "area" is very broad and merely means "a section, portion, or part". (Defn. No. 3 of "Collins English Dictionary – Complete and Unabridged, 12th Edition 2014" entry via TheFreeDictionary.com)); wherein the at least one pelvic area is configured to include at least one additional piece of fabric on the interior (see Fig. 3; first layer #130 is an additional piece of fabric on an interior of the crotch panel #112; ¶ 027 of Polstein describes first layer #130 as being a fabric); forming at least one anterior arched seam (#120) configured to span from the at least one right leg portion to the at least one left leg portion (see Figs. 1 and 2A); forming at least one posterior arched seam(#122) configured to span from the at least one right leg portion to the at least one left leg portion (see Fig. 2C). Polstein appears to illustrate that the at least one right leg portion is configured with at least one right leg seam and the at least one left leg portion is configured with at least one left leg seam, and forming at least one longitudinal seam configured to span from the at least one arched seam to the at least one waistband (see Figs. 1-2C of Polstein, which shows horizontal dashed lines close to and parallel with the leg openings and the vertical dashed central line in Figs. 1 and 2A between seam #120 and the waistband portion #110, wherein the horizontal and vertical dashed lines have the exact same appearance as seams #126/120/124/128), but Polstein does not explicitly disclose that these dashed lines at the leg openings and the dashed lines that extend in the vertical front center downward from the waistband portion in Figs. 1 and 2A are, in fact, seams. However, it would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art for these dashed lines (i.e. at the leg openings and at the vertical front center between the waistband portion #110 and seam #120) to have been seams in order to have provided a sewn hem at the leg openings, wherein sewn hems are very well known in the art for the purpose of reinforcing leg openings to prevent fraying, and to have provided additional frontal structural integrity at the center between the waistband and the crotch panel, to assist in maintaining the vertical front shape of the garment in use and to keep the crotch panel in closer proximity to the user, whereas the absence of a front central seam would be more likely to cause the garment’s crotch area to sag and be weighed down if excessive amounts of fluid are retained in the crotch panel’s absorbent layer #130. As a result of the modification, the at least one right leg portion would be configured with at least one right leg seam, the at least one left leg portion would be configured with at least one left leg seam, and there would be at least one longitudinal seam formed and configured to span from the at least one arched seam to the at least one waistband.
Regarding claim 11, the modified garment of Polstein (i.e. as such modification is applied to address claim 10 above) renders obvious all the limitations of claim 10, as set forth above, and further that forming the fabric used is cotton, nylon, rayon, spandex, polyester, silk, or modal (the fabric of the first layer #130 (i.e. the at least one additional piece of fabric) can comprise or consist of various fibers, including cotton, a cotton blend, or cotton/spandex blends (see ¶ 026-027 of Polstein)).
Regarding claim 12, the modified garment of Polstein (i.e. as such modification is applied to address claims 10 and 11 above) renders obvious all the limitations of claims 10 and 11, as set forth above, and further that forming the fabric is configured to adhere to menstrual products such as pads and panty liners (as noted above, Polstein indicates that the first layer #130 can be cotton; Applicant’s Specification provides no additional structural details that describe what is actually meant by “configured to adhere to menstrual products” and the Specification in ¶ 0008, 0009 and 0034 discloses that cotton is an acceptable material for the fabric; since Polstein discloses that the fabric can be cotton, then it is deemed to meet this limitation the claim, as best as can be understood).
Regarding claim 13, the modified garment of Polstein (i.e. as such modification is applied to address claim 10 above) renders obvious all the limitations of claim 10, as set forth above, and further that forming the at least one additional piece of fabric on the at least one interior pelvic area is configured to hold menstrual products such as pads and panty liners (a hypothetical menstrual product, such as a pad or panty liner, is capable of being held on the first layer #130, inasmuch as the claim structurally has defined the at least one additional piece of fabric).
Regarding claim 14, the modified garment of Polstein (i.e. as such modification is applied to address claims 10 and 13 above) renders obvious all the limitations of claims 10 and 13, as set forth above, and further that forming the at least one arched seam is configured on the front and the back body to hold the at least one additional piece of fabric in place (anterior arched seam (#120) is on the front and is joined to the crotch panel #112 (i.e. which has the first layer #130, which is the additional piece of fabric); posterior arched seam #122 is on the rear and is joined to the crotch panel #112, as well, and therefore the arched seams hold layer #130 in place along the front and rear peripheral edges of the crotch panel #112).
Regarding claim 15, the modified garment of Polstein (i.e. as such modification is applied to address claims 10 and 13 above) renders obvious all the limitations of claims 10 and 13, as set forth above, and further that the at least one additional piece of fabric is configured to be stitched on the left and the right side by the at least one longitudinal seam (the vertical front central seam (via the 35 U.S.C. 103 modification addressing claims 1 and 10 above) is joined to the seam #120, which is coincident with the first layer #130 of the crotch panel #112; the left side of the crotch panel #112 meets the longitudinal seam and the right side of the crotch panel #112 meets the longitudinal seam at the lowermost point of the longitudinal seam; see the 35 U.S.C. 112(b) rejection of claims 6 and 15 above regarding the interpretation of this claim, as best as can be understood).
Regarding claim 16, the modified garment of Polstein (i.e. as such modification is applied to address claims 10, 13 and 15 above) renders obvious all the limitations of claims 10, 13 and 15, as set forth above, and further that [the] at least one longitudinal seam is configured from the left side and the right side of the at least one additional piece of fabric to the at least one waistband to further secure the at least one additional piece of fabric (see Fig. 1 of Polstein, which shows the vertical central seam (i.e. longitudinal seam) to divide the left and right sides of the garment and the bottom endpoint of the vertical seam divides the left half and the right half of the seam #120 that defines the front peripheral edge of the crotch panel #112 (i.e. which includes the first layer #130, which is the additional piece of fabric), wherein the vertical central seam extends up to the waistband portion #110).
Regarding claim 17, the modified garment of Polstein (i.e. as such modification is applied to address claim 10 above) renders obvious all the limitations of claim 10, as set forth above, and further that forming the at least one waistband is configured to secure the at least one modified boxer brief onto the waist (¶ 020 of Polstein teaches that the waistband may be formed from an elastic material; an elastic material would be capable of securing the garment onto a waist of a user, depending on the size of the waist of the user (i.e. if the user’s waist is larger than the relaxing circumference of the waistband, then the elasticity would hold the waistband on the user)).
Regarding claim 18, the modified garment of Polstein (i.e. as such modification is applied to address claim 10 above) renders obvious all the limitations of claim 10, as set forth above, and further that forming the at least one right leg opening and the at least one left leg opening allows for breathability of the [at least one] pelvic area (garment may be formed of a first substrate for placement around a lower torso and upper ledges of the user, and defining openings for the legs of the user (¶ 004 of Polstein); ¶ 029 of Polstein discloses that the first substrate may be formed of at least one of the same materials of the multi-layered substrate, which defines crotch panel #112; ¶ 023 describes the tr-layer substrate as being breathable, which indicates that the first substrate (i.e. which includes the leg openings) is considered as being formed from a breathable material, which would allow for breathability of the at least one pelvic area (i.e. crotch panel area)).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. All art cited on the PTO-892 and not relied upon in an art rejection above is deemed relevant in the field of boxer brief style garments with additional pieces of fabric disposed in the crotch region and/or designed for holding absorbent articles therein.
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/JAMESON D COLLIER/ Primary Examiner, Art Unit 3732