DETAILED OFFICE ACTION
The response received 05/26/2026 has been acknowledged.
35 U.S.C. 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.
The claim is finally rejected under 35 U.S.C. 103 as being unpatentable over J.VER Men's Banded Collar Dress Shirt, posted to amazon.com, in view of German Patent Application M9102198.7.
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Although the invention is not identically disclosed or described as set forth in 35 U.S.C. 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 designer having ordinary skill in the art to which the claimed invention pertains, the invention is not patentable.
J.VER Men's Banded Collar Dress Shirt teaches a shirt having an overall appearance with design characteristics that are visually similar to those of the claimed design, in showing a long sleeve button down dress shirt having cuffs, a single breast pocket and a standing collar with a button closure.
The claimed design differs from J.VER Men's Banded Collar Dress Shirt in that the collar of the claim is taller, being able to fold down.
German Patent Application M9102198.7 teaches a taller collar that is capable of folding down.
It would have been obvious to a designer of ordinary skill in the art before the effective filing date of the claimed invention to modify J.VER Men's Banded Collar Dress Shirt by showing a taller collar as taught by German Patent Application M9102198.7 since the secondary reference demonstrates that the ornamental feature of a taller collar is commonplace in the field of dress shirts and would therefore have been an obvious design choice.
The applicant’s arguments presented 05/26/2026 have been fully considered but are not found persuasive in overcoming the prior art rejection under 35 U.S.C. 103.
The applicant argues the claimed design has a collar that is tapered upward, with the top edge having a smaller circumference than the base of the collar, and states the primary reference J.VER and the secondary reference German Application M9102198.7 have collars that are not tapered upward.
Contrary to the applicant’s statement, the primary reference J.VER discloses the design characteristic of a collar being tapered upward, as described by the applicant as a distinguishing feature of the claim over the prior art. Note the annotated image below that includes arrows along the edges of the collar of the primary reference.
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The applicant further argues that the primary reference J.VER is worn up, regardless of whether the button on the collar is opened or closed, and the secondary reference German Application M9102198.7 is high enough to be folded down but the variation of a standing and folded collar is not disclosed. The applicant is attempting to rely on a position of use as a patentable distinction among designs. The design characteristics of a tall tapered collar with a button are present among the claim and the combination of prior art references. The lack of an image showing a collar folded down is insufficient to support patentability. Similarly, if the claimed design disclosed sleeves rolled up, it is understood the prior art is also capable of having sleeves rolled up and would not warrant a patent. The applicant explicitly states “the collar [of German Application M9102198.7] is high enough to be folded down,” (see page 4 of applicant’s arguments).
Furthermore, the applicant argues there would be no reason for a designer of ordinary skill to look to women’s blouses to modify men’s dress shirts. The motivation comes from the appearance themselves of the references. A designer of ordinary skill in garments would not limit themselves to a subsection of shirts, but rather would look at all collars applied to all shirts, since collars exist throughout the garment art. A rejection under 35 U.S.C. 103 would be appropriate if a designer of ordinary skill would have been motivated to modify a primary reference by deleting features thereof or by interchanging with or adding features from pertinent secondary references. In order for secondary references to be considered, there must be some suggestion in the prior art to modify the basic design with features from the secondary references. See In re Borden, 90 F.3d 1570, 1572, 39 USPQ2d 1524, 1526 (Fed. Cir. 1996). Interchanging one collar for another, would have been a simple modification obvious to a designer in the art of garments.
Finally, the applicant argues the combination of references does not render the claimed design obvious. The applicant states “a unique cut is applied to the claimed design … to maintain an aesthetically pleasing overall appearance in both styles of banded and open collars,” (see page 4 of applicant’s arguments). The applicant fails to point to a specific ornamental feature that is different among the claim and the combination of prior art references. The applicant states the combination of references does not have the “claimed contour, proportions and resulting visual transition.” The applicant points to the upward tapered appearance of the collar and the transition within the arguments, however, as discussed above, the prior art teaches an upward tapered collar and the alternate position of use is insufficient to provide a patentable distinction.
Accordingly, all design characteristics of the claimed design are present in the cited prior art.
Conclusion
The claim is rejected under 35 U.S.C. 103.
THIS ACTION IS MADE FINAL. 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 KEVIN KEITH RUDZINSKI whose telephone number is (571) 272-2171. The examiner can normally be reached on Monday through Friday 8:00am-4:30pm EST.
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/KEVIN K RUDZINSKI/Primary Examiner, Art Unit 2911
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