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 .
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 1-4 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 1, lines 2 and 6, there is no antecedent basis for “The breast”. In claim 2, line 3, there is no antecedent basis for “the user’s chest” .
In claim 1, lines 2 and 6, it appears that applicant is attempting to claim “The breasts” and in line 3, “a user’s back”. However, human anatomy or body parts cannot be claimed since it is non-statutory subject matter. The language before any human anatomy should be amended to claim in claim 1, line 2, “comprising two cups configured for supporting a user’s breast”. In claim 1, lines 2-3, should be amended to read - - a transition piece is configured to join to the cups and run transverse across a user’s back - - .
In claim 1, line 4, - - wherein each cup is formed a convex receptacle that is configured to define at least 5/8’s of a sphere to thereby reproduce an anatomical shape of the breast - --. However, applicant’s specification and claims do not define the size of the sphere and therefore it is not clear as to how even the 5/8’s structure of the sphere would fit or encompass the breast of a wearer. The sphere needs to be defined in regard to the breast size itself and 5/8’s of the breast size to fit a user’s breasts. In claim 1, line 2, is claiming “the breast straps” but they appear to be “shoulder straps”.
In claim 2, lines 2-3, it appears that applicant is attempting to claim a “central part” and allows lower ribs to be freed - - . The user’s chest and ribs is non-statutory subject matter. The claims need to be amended to claim - - the transition piece is configured to wrap around a central part of the user’s chest and allows lower ribs to be freed - - . In claim 3, line 3 there is no antecedent basis for “The length” of the straps.
The language in claim 1, line 3 of “ that joins the cups” is not clear in that it is not clear if the language is stating that the “transition piece” joins the two cups together when actually the “transition piece joins each of the cups lateral end to the back band . Applicant is not claiming all of the necessary structure that defines a breast cup for a wearer in that it is not clear as to what the size of the “Sphere” encompasses to fit a breast of a wearer. And the “reproducing of an anatomical shape of the breast” should be configured to reproduce an anatomical shape of a wearer’s breasts.
In claim 2, line 2, the location of “a central part of the user’s chest” is not clear in that it is not clear as to what the metes and bounds of the user’s chest encompasses in order to locate the “Central part” and as to whether it is a “vertical” or “horizontal” center.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 1-4 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101).
In claim 1, line 3, applicant appears to be claiming non -statutory subject matter of human anatomy including a “user’s back” and a” user’s breast” and in claim 2 , line 3 of “ a user’s chest” and “lower ribs” and as discussed above in regard to 35 USC 112, second paragraph.
Specification
The disclosure is objected to because of the following informalities: Applicant’s Specification does not clearly define the structure of the brassiere cup as being “5/8’s” of a sphere and wherein the sphere is of a size to replicate a size of a user’s breasts”. The original specification and claims only define the “sphere” As being a generic sphere and not of the size to replicate an anatomical shape and size of a user’s breasts .
Allowable Subject Matter
Claims 1-4 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
None of the cited references , alone or in combination, disclose the structure of the breast cup as being “5/8’s” of a sphere that is configured and sized to reproduce an anatomical shape of a user’s breast and a transition piece that runs transversely across a user’s upper back when the bra is worn and not compressing a wearer’s ribs as in claim 1. Claims 2-4 depend from claim 1 and are allowable for the same reasons as claim 1.
Appropriate correction is required.
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..
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alissa Tompkins can be reached at 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
