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 .
Response to Amendment
The amendments filed with the written response received on 09/08/2026 have been considered and an action on the merits follows. As directed by the amendment, claims 1-9, 11-12, 14, 16-18, and 20 have been amended; claims 10, 13, 15, and 19 are canceled; and claims 21-23 have been added. Accordingly, claims 1-9, 11-12, 14, 16-18, and 20-23 are pending in this application.
Because of the applicant's amendment, the following in the office action filed 05/13/2026, are hereby withdrawn: the prior claim objections, and prior rejection of claims under 35 USC §112.
Response to Arguments
Applicant's arguments, filed 09/08/2026, 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 grounds of rejection.
Further, applicant’s argument that “providing a peak impact force reduction of at least 50%” is a measurable physical property supported by the specification, rather than a statement of intended use, is acknowledged.
In response, MPEP 2173.05(g) provides “a claim term is functional when it recites a feature by what it does rather than by what it is.” In this case, the recitations “configured to deform under impact to absorb impact forces” and “providing a peak impact force reduction of at least 50%” are describing that the protective cup does.
MPEP 2114 provides “where the Patent Office has reason to believe that a functional limitation asserted to be critical for establishing novelty in the claimed subject matter may, in fact, be an inherent characteristic of the prior art, it possesses the authority to require the applicant to prove that the subject matter shown to be in the prior art does not possess the characteristic relied on” and “A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim.”
First, US 2005/0255789 A1 to Gaudet (and US 2003/0181129 A1 to Getman for purposes of this rejection) teaches all the structural limitations of the claim. Gaudet discloses the claimed structure of a protective cup formed of an elastomer (polyurethane foam), having a central region surrounded by peripheral edges, the peripheral edges being thinner than the central region, and wherein a thickness of the protective cup tapers from the central region to the peripheral edges (see annotated fig. 4 below).
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Further, Gaudet further provides “the foam may be stretchable and/or have elastic properties such that the foam may be capable of resuming its substantially original shape after stretching or compressing” (para 0029 of Gaudet). Thus, Gaudet’s cup structure is employable for protective purposes and its foam construction would be readily understood by one of ordinary skill in the art as providing an inherent degree of deformability and an inherent degree of impact force reduction. The burden shifts to applicant to establish that the cup structure of Gaudet does not possess the ability to deform under impact to absorb impact forces and provide force reduction.
Finally, although Gaudet does not assign a specific percentage value for the amount of force reduction, it would have been obvious to one of ordinary skill in the art before the effective filing date wherein to adjust and optimize the specific material properties (durometer/density) and structural dimensions (thickness and taper profile) of Gaudet to achieve a desired impact force reduction of at least 50%. One skilled in the art would recognize optimizing the material and structural variables to achieve the claimed percentage force reduction represents only routine experimentation and is well within the ordinary skill in the 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 1-2, 4-7, 11 and 21 rejected under 35 U.S.C. 103 as being unpatentable over US 2005/0255789 A1 to Gaudet.
For claim 1, Gaudet discloses a protective cup (fig. 4) dimensioned to accommodate a breast of a user, the protective cup being formed of an elastomer (para 0029) and having a central region surrounded by peripheral edges with the peripheral edges being thinner than the central region, wherein a thickness of the protective cup tapers from the central region to the peripheral edges (see annotated fig. 4 below)
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Gaudet does not specifically disclose that the peripheral edges are configured to deform under impact to absorb impact forces, the protective cup providing a peak impact force reduction of at least 50%.
However, Gaudet does teach the foam may be stretchable and/or have elastic properties such that the foam may be capable of resuming its substantially original shape after stretching or compressing (para 0029). Therefore, Gaudet discloses the general conditions of a cup that is configured to deform under impact. Specifically, the cup structure would be understood as being employable for protective purposes and its foam construction would be readily understood by one of ordinary skill in the art as providing an inherent degree of deformability and an inherent degree of impact force reduction. Although Gaudet does not assign a specific percentage value for the amount of force reduction, it would have been obvious to one of ordinary skill in the art before the effective filing date wherein to adjust and optimize the specific material properties (durometer/density) and structural dimensions (thickness and taper profile) of the cup to achieve a desired impact force reduction of at least 50%. In support of this rational, one skilled in the art would recognize optimizing the material and structural variables described above to achieve the claimed percentage force reduction represents only routine experimentation and is well within the ordinary skill in the art. As a result, the burden shifts to Applicant to establish that the cup structure of Gaudet does not possess the ability to deform under impact to absorb impact forces and provide force reduction.
For claim 2, the modified Gaudet teaches the protective cup as claimed in claim 1 wherein the elastomer is polyurethane (para 0029).
For claim 4, the modified Gaudet teaches the protective cup as claimed in claim 1 having a generally teardrop shape in plan view (see fig. 5).
For claim 5, the modified Gaudet teaches the protective cup as claimed in claim 4 having recurved side walls (see fig. 5).
For claim 6, the modified Gaudet teaches the protective cup as claimed in claim 5 having a wing section extending to one side to provide dampening (see fig. 5).
For claim 7, the modified Gaudet teaches the protective cup as claimed in claim 1 wherein the peripheral edges of the cup are configured and dimensioned avoid the peripheral edges digging in (see fig. 4 wherein the edges taper inward and would therefore be considered as being capable to promote deformation so as to absorb impact forces and avoid the peripheral edges digging in).
For claim 11, the modified Gaudet teaches the protective cup as claimed in claim 1 wherein a textured surface is provided on peripheral edges of the cup to locate and retain the cup in position within a bra (cloth forming inner layer 34 and outer layer 36 is considered as inherent having a textured surface).
For claim 21, the modified Gaudet teaches the protective cup of claim 1 wherein the protective cup is a unitary, self-supporting molded elastomeric cup (the foam layer may be molded by means including bullet molding, hot or cold forming or pressing, injection molding, die molding or any other way and the inner and first outer cloths may first be attached to the foam layer and then the entire pad component may be molded as a unit, paras 0038-0040).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Gaudet as applied to claims 1-2 above, and further in view of EP 1,774,862 A2 to Fildan.
For claim 3, the modified Gaudet teaches the protective cup as claimed in claim 2, but does not specifically disclose wherein the polyurethane has a Shore A hardness of 92.
However, one skilled in the art would readily understand the polyurethane material comprises an inherent hardness. Therefore, Gaudet discloses the general conditions of the claim.
Attention is also directed to Fildan teaching a body that forms a pocket for a breast support component that is incorporated into a brassiere cup (abstract of Fildan). Specifically, Fildan teaches the soft plastic body is preferably polyurethane with a Shore A hardness of 90 or equivalent hardness for purposes of providing a body with appropriate flexibility, stiffness, and softness (para 0013 of Fildan). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein the modified Gaudet would be further modified wherein the polyurethane has a Shore A hardness of 90 for purposes of providing a cup construction with the appropriate amount of flexibility, stiffness, and softness, as taught by Fildan. It would have been further obvious to one of ordinary skill in the art before the effective filing date wherein to further modify the hardness of the polyurethane material form Shore A 90 to Shore A 92 since it is not inventive to discover the optimum or workable range by routine experimentation (See MPEP 2144.05(II)). In this case, the relevant facts, supporting the modification to the specific hardness include optimizing the hardness value would provide an appropriate amount of flexibility, stiffness, and softness to the wearer of the cup, as taught by Fildan. Further, the specification fails to provide details of criticality and/or unexpected results with respect to the claimed hardness not already known to those of ordinary skill in the art.
Claims 8 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Gaudet as applied to claims 1 and 7 above, and further in view of US 2003/0181129 A1 to Getman.
For claim 8, Gaudet teaches the protective cup as claimed in claim 7 but does not specifically disclose wherein a thickness of the peripheral edges is less than 1.5mm.
However, Gaudet does illustrate that the thickness of the peripheral edges taper to a point (see fig. 4).
Attention is also directed to Getman teaching an analogous breast cup assembly (abstract of Getman). Specifically, Getman teaches the thickness of the peripheral edges tapers down to a thickness of 1 to 5 mm (para 0022 of Getman) for purposes of adding fullness, lift, natural enhancement, and added support to the breast area (para 0017 of Getman). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein Gaudet would be further modified wherein the thickness of the peripheral edges is less than 1.5mm for purposes of adding fullness, lift, natural enhancement, and added support to the breast area, as taught by Getman (para 0017 of Getman).
For claim 9, Gaudet teaches the protective cup as claimed in claim 1, but does not specifically disclose wherein a thickness of the central region is greater than 1.5mm.
However, Gaudet does illustrate that the central region has a thickness (see fig. 4).
Attention is also directed to Getman teaching an analogous breast cup assembly (abstract of Getman). Specifically, Getman teaches the thickness of the a central portion of the breast pad preferably has a thickness of about 6 to about 25 mm (para 0022 of Gaudet) for purposes of adding fullness, lift, natural enhancement, and added support to the breast area (para 0017 of Getman). It would have been obvious to one of ordinary skill in the art before the effective filing date wherein Gaudet would be further modified wherein the thickness of the central region is greater than 1.5mm, specifically 6 to about 25 mm, for purposes of adding fullness, lift, natural enhancement, and added support to the breast area, as taught by Getman (para 0017 of Getman).
Claims 12, 14, 16-18 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Getman.
For claim 12, Getman discloses a bra (16) including a pair of protective cups, each protective cup dimensioned to accommodate a breast of a user and formed of an elastomer (paras 0018-0019), each protective cup having a central region surrounded by peripheral edges with the peripheral edges being thinner than the central region (see fig. 1 wherein cup 10 comprises a central region surrounded by peripheral edges with the peripheral edges being thinner than the central region), wherein a thickness of each protective cup tapers from the central region to the peripheral edges (see fig. 10 wherein cup 10 tapers from the central region to the peripheral edges), wherein the bra includes a pair of pockets and each pocket receiving a respective protective cup (paras 0024-0025), and wherein a material layer of the bra between each protective cup and the user is configured to suspend the respective protective cup away from the breast of the user (paras 0024-0025 and fig. 4).
Getman does not specifically disclose that the peripheral edges are configured to deform under impact to absorb impact forces and the protective cup providing a peak impact force reduction of at least 50%.
However, Getman does teach the cushioning material is a flexible polyurethane foam, rubber foam, or PVC foam (para 0019). Therefore, Getman discloses the general conditions of a cup that is configured to deform under impact. Specifically, the cup structure would be understood as being employable for protective purposes and its foam construction would be readily understood by one of ordinary skill in the art as providing an inherent degree of deformability and an inherent degree of impact force reduction. Although Getman does not assign a specific percentage value for the amount of force reduction, it would have been obvious to one of ordinary skill in the art before the effective filing date wherein to adjust and optimize the specific material properties (durometer/density) and structural dimensions (thickness and taper profile) of the cup to achieve a desired impact force reduction of at least 50%. In support of this rational, one skilled in the art would recognize optimizing the material and structural variables described above to achieve the claimed percentage force reduction represents only routine experimentation and is well within the ordinary skill in the art. As a result, the burden shifts to Applicant to establish that the cup structure of Getman does not possess the ability to deform under impact to absorb impact forces and provide force reduction.
For claim 14, the modified Getman teaches the bra as claimed in claim 12 wherein each protective cup has a wing section extending towards side straps of the bra and each protective cup is able to slide within its respective pocket, guided by the wing section (side portions of the pads 10 may be considered the wing portions of the pads).
For claim 16, the modified Getman teaches the bra as claimed in claim 12 wherein the material layer between each protective cup and a user is a moisture wicking textile (supplex, paras 0024-0025).
For claim 17, Getman teaches a breast protector cup (16) comprising a pocket including an outer layer and an inner layer (paras 0024-0025; fig. 4) surrounding the protective cup dimensioned to accommodate a breast of a user and formed of an elastomer (para 0019), the protective cup having a central region surrounded by peripheral edges with the peripheral edges being thinner than the central region (see fig. 1 wherein cup 10 comprises a central region surrounded by peripheral edges with the peripheral edges being thinner than the central region), wherein a thickness of the protective cup tapers from the central region to the peripheral edges (see fig. 10 wherein cup 10 tapers from the central region to the peripheral edges), and wherein the inner layer is configured to suspend the protective cup away from the breast of the user (paras 0024-0025 and fig. 4).
Getman does not specifically disclose that the peripheral edges are configured to deform under impact to absorb impact forces and the protective cup providing a peak impact force reduction of at least 50%.
However, Getman does teach the cushioning material is a flexible polyurethane foam, rubber foam, or PVC foam (para 0019). Therefore, Getman discloses the general conditions of a cup that is configured to deform under impact. Specifically, the cup structure would be understood as being employable for protective purposes and its foam construction would be readily understood by one of ordinary skill in the art as providing an inherent degree of deformability and an inherent degree of impact force reduction. Although Getman does not assign a specific percentage value for the amount of force reduction, it would have been obvious to one of ordinary skill in the art before the effective filing date wherein to adjust and optimize the specific material properties (durometer/density) and structural dimensions (thickness and taper profile) of the cup to achieve a desired impact force reduction of at least 50%. In support of this rational, one skilled in the art would recognize optimizing the material and structural variables described above to achieve the claimed percentage force reduction represents only routine experimentation and is well within the ordinary skill in the art. As a result, the burden shifts to Applicant to establish that the cup structure of Getman does not possess the ability to deform under impact to absorb impact forces and provide force reduction.
For claim 18, the modified Getman teaches the breast protector as claimed in claim 17 wherein the protective cup has a wing section locating the protective cup in the pocket (side portions of the pads 10 may be considered the wing portions of the pads).
For claim 20, the modified Getman teaches the breast protector as claimed in claim 17 wherein the material inner layer between each cup and a user is a moisture wicking textile (supplex, paras 0024-0025).
Claims 22-23 are rejected under 35 U.S.C. 103 as being unpatentable over Getman as applied to claims 12 and 17 above, and further in view of Gaudet
For claim 22, the modified Getman teaches the bra as claimed in claim 12 wherein each protective cup is a self-supporting molded elastomeric cup (as best understood by applicant’s disclosure, pad 10 is considered self-supporting and is molded to the shape of the wearer, para 0018).
Getman does not specifically disclose each protective cup is unitary.
However, attention is directed to Gaudet teaching an analogous cup construction (abstract of Gaudet). Specifically, Gaudet teaches the entire pad component may be molded as a unit by means including bullet molding, hot or cold forming or pressing, injection molding, die molding or any other way and the inner and first outer cloths may first be attached to the foam layer (paras 0038-0040 of Gaudet). It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the protective bra cup of Getman such that the cup is formed as a unit, or unitary component, as taught by Gaudet. Applying, and forming the cup in accordance with, the techniques disclosed by Gaudet would result in the structural components of the protective bra cup being formed together as a unitary component, thereby reducing the number of separately formed components and associated assembly steps.
For claim 23, the modified Getman teaches the bra as claimed in claim 17 wherein each protective cup is a self-supporting molded elastomeric cup (as best understood by applicant’s disclosure, pad 10 is considered self-supporting and is molded to the shape of the wearer, para 0018).
Getman does not specifically disclose each protective cup is unitary.
However, attention is directed to Gaudet teaching an analogous cup construction (abstract of Gaudet). Specifically, Gaudet teaches the entire pad component may be molded as a unit by means including bullet molding, hot or cold forming or pressing, injection molding, die molding or any other way and the inner and first outer cloths may first be attached to the foam layer (paras 0038-0040 of Gaudet). It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the protective bra cup of Getman such that the cup is formed as a unit, or unitary component, as taught by Gaudet. Applying, and forming the cup in accordance with, the techniques disclosed by Gaudet would result in the structural components of the protective bra cup being formed together as a unitary component, thereby reducing the number of separately formed components and associated assembly steps.
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
