DETAILED ACTION
Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
2. A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 11/20/2025 (“11/20/25 Amendment") has been entered, and fully considered.
Response to Amendment
3. In the 11/20/25 Amendment, claims 1, 7, 15, 17, & 18 were amended. No claims were cancelled, or newly added. Therefore, claims 1-20 remain pending in the application.
4. New claim objections, and new grounds of rejection under § 112(b) are set forth herein, necessitated by Applicant’s Amendment.
5. The 11/20/25 Amendment has overcome the prior rejection(s) of independent claims 1 & 15 under § 103 previously set forth in the Final Office Action mailed 08/20/2025 (“08/20/25 Action”). New grounds of rejection under § 103 are set forth herein, necessitated by Applicant’s Amendment.
6. The prior rejection of independent claim 18 under § 103 has been maintained.
Claim Objections
7. Claim 15 is objected to because of the following informalities:
In claim 15, line 8, the recitation of “forming a single, unitary piece with, the eye shield portion” should recite --forming a single, unitary piece with the eye shield portion--.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
8. 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.
9. Claims 1-17 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
10. Claim 1 recites the limitation “wherein said notch comprises at least part of each of a subset plurality of interior chambers of said second plurality of interior chambers” in lines 13-14.
This recitation renders the claim indefinite, as it is not clear how a “notch,” which is a space or opening, can physically comprise or define a component (a subset plurality of interior chambers). As such the structure required by the claim is not clear, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Clarification is required. Examiner suggests amending the limitation to clarify that said notch “is defined by at least part of each of a subset plurality of interior chambers of said second plurality of interior chambers.”
11. Claims 2-14 are rejected as ultimately depending from a claim (claim 1) rejected under 35 U.S.C. 112(b).
12. Claim 15 recites the limitation “wherein said notch comprises at least part of each of a subset plurality of interior chambers of said second plurality of interior chambers” in lines 19-20.
This recitation renders the claim indefinite, as it is not clear how a “notch,” which is a space or opening, can physically comprise or define a component (a subset plurality of interior chambers). As such the structure required by the claim is not clear, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Clarification is required. Examiner suggests amending the limitation to clarify that said notch “is defined by at least part of each of a subset plurality of interior chambers of said second plurality of interior chambers.”
13. Claims 16 & 17 are rejected as ultimately depending from a claim (claim 1) rejected under 35 U.S.C. 112(b).
14. Claim 17 recites the limitation “applying pressure and/or absorbing heat energy to the user's head and/or face, including said each of a subset plurality of interior chambers of said second plurality of interior chambers” in lines 5-7. The recitation of “including said each of a subset plurality of interior chambers of said second plurality of interior chambers” renders the claim indefinite, at least because it is grammatically unclear what the “including” step is being associated with, or modifying. As such, one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Clarification is required.
Claim Rejections - 35 USC § 103
15. 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.
16. The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
I. INDEPENDENT CLAIM 1 (& DEPENDENT CLAIMS 2-14)
17. Claims 1-4, 7, & 9-13 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application Publication No. 2016/0051404 to Choucair et al. (“Choucair”) in view of U.S. Patent Application Publication No. 2021/0045922 to Lockett ("Lockett"), and further in view of U.S. Patent Application Publication No. 2024/0115424 to Oliver et al. (“Oliver”) [NOTE: the subject matter of Oliver relied upon herein is fully supported by the 04/07/2021 Priority Application (U.S. 63/171,939)].
18. Regarding claim 1, Choucair teaches a device for aiding in rest, comprising:
an eye shield portion [the “portion” of cold compress (500)/(100) that covers the eyes; NOTE: Choucair teaches a cold compress (100) that may be applied to a patient’s face (see ¶’s [0047], [0072]; FIGS. 1, 3 (reproduced below), 5A, & 5B];
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FIG. 3 OF CHOUCAIR
an at least partially fore-head-covering portion [the “portion” of cold compress (500)/(100) that covers the forehead - FIG. 3], located vertically above, and forming a single, unitary piece with, the eye shield portion [the “portion” of compress (500)/(100) covering the forehead is located vertically above the “portion” of compress (500)/(100) covering the eyes (if the compress is held straight up-and-down (FIG. 1); and both portions are a part of the same bag (502)/(102) - ¶’s [0045], [0077]; FIGS. 1, 3, 5A, 5B], which at least partially fore-head-covering portion and which eye shield portion comprise a first plurality of interior chambers and a second plurality of interior chambers, respectively [NOTE: Choucair teaches that the compress may include a series of sealed compartments (506), internally separated by dividers, that may be arranged longitudinally or transversely - see ¶[0077] (“In an exemplary embodiment illustrated in FIGS. 5A and 5B, the cold compress 500 includes a bag 502 that is separated internally by dividers 504 into a series of compartments 506, and sealed permanently at each end with end seals 510. Each compartment 506 is at least partially filled with a particulate 200, such as a sphere, that contains the cooling medium, for example, but not limited to frozen water… The compartments may vary in size, depending upon the contoured human body part it is intended to conform to as a cold compress… Further, the compartments may extend longitudinally or transversely, depending upon the intended use of the cold compress”); Choucair further teaches variability in both the number and configuration of compartments - see ¶[0077] (“Thus, by selecting compartment dimension, number of compartments, divider configuration (for added flexibility), number of particulates (illustrated as spheres) per compartment and size of particulates, and the amount of fluid substance, if any in each compartment along with the spheres, the configurability of the cold compress to more closely conform to both simple and compound body parts may be facilitated”)]; Choucair additionally teaches a configuration wherein in an array of cavities is provided - see ¶[0089]; FIG. 8]; as such it is the Examiner’s position that it would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to modify Choucair such that the dividers of FIG. 5 be arranged both longitudinally and transversely so as to form an array of compartments as a matter of design choice, with a number of compartments (506) in the array that extend across the forehead “portion” comprising a first plurality of interior chambers, and a number of compartments (506) in the array that extend across the eye “portion” comprise a second plurality of interior chambers];
[a]… head band,… attached to or integral with ends of said at least partially fore-head-covering portion [e.g., ¶’s [0011], [0047], [0079]];
wherein the first plurality of interior chambers [extending transversely across the forehead “portion”] and the second plurality of interior chambers [extending transversely across the eye “portion”] are each filled with a plurality of cooling pieces, comprising a material with a relatively high specific heat [see ¶[0077] (“Each compartment 506 is at least partially filled with a particulate 200, such as a sphere, that contains the cooling medium, for example, but not limited to frozen water. Note that the “particulates” can encompass any convenient shape and is not limited to spherical shapes, although these are convenient, especially if these are formed with an outer shell, and are filled with a heat transfer medium…”); and ¶[0071] (“While one embodiment describing spheres 200 filled with a fluid has been disclosed, in another embodiment a solid object can be utilized. For example, the sphere 200 can comprise glass beads. These solid beads operate as previously described. For example, these solid beads are frozen or cooled to lower temperatures. When applied, heat is transferred from the object to be cooled to the solid beads. Other beads such as titanium beads, brass beads, copper beads, and other such beads which offer desirable heat transfer properties can also be suitably used. These include, but are not limited to, other metals and ceramics which have a high specific heat such as aluminum”)].
A. NOTCH
As noted above, Choucair teaches placement of the compress on a user’s face [e.g., ¶[0047]; FIG. 3].
Choucair further teaches that the size and shape of the cold compress can be varied based on the application [¶[0047], and that the size of the compartments can also vary [see ¶[0077]].
Choucair does not, however, teach that the compress includes a “notch” for accommodating a user’s nose, and therefore does not explicitly teach the following emphasized claim limitations:
an eye shield portion, comprising a notch adapted for accommodating and applying pressure to, and surrounding, a bridge and wings of a user's nose; [and]
wherein said notch comprises at least part of each of a subset plurality of interior chambers of said second plurality of interior chambers.
Lockett, in a similar field of endeavor, teaches that it was known for a cooling mask [see Abstract (“A sleep mask assembly includes a mask that is worn on a user's face when the user is sleeping. The mask has a compartment that is integrated therein. A pad is insertable into the compartment in the mask and the pad is comprised of a thermally conductive material. In this way the pad can be cooled to reduce swelling on the user's face when the mask is worn and the pad is inserted into the compartment”)] to include a notch adapted for accommodating and applying pressure to, and surrounding, a bridge and wings of a user's nose [notch (30) - ¶[0019]; FIGS. 1, 4; NOTE: notch (30) is capable of accommodating and surrounding both a bridge and wings of a user's nose; the claim does not specify a nose size, nor an overall width of the notch; additionally, pressure is applied to at least a portion of the user’s nose via the weight of the mask itself].
Given Choucair’s explicit teachings (noted above) that that the size and shape of the cold compress can be varied based on the application, and that the compress can be worn a user’s face, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to modify Choucair such that the compress include a notch adapted for accommodating and applying pressure to, and surrounding, a bridge and wings of a user's nose, as taught by Lockett, since such a modification would provide the benefit(s)/advantage(s) of, e.g., allowing the wearer to breathe through his/her nose while the compress is placed on the face, thereby facilitating comfort during use.
Additionally, as modified, the notch would be defined by at least part of each of a subset plurality of interior chambers of said second plurality of interior chambers [i.e., the subset of compartments (506) in the array that extend across the eye “portion,” and that are intersected by (or define) the notch].
B. “ELASTOMERIC” HEAD BAND
As noted above, Choucair teaches a strap for securing the compress to or around a body part, but does not explicitly teach that the strap is elastomeric.
As such, Choucair fails to teach the following emphasized claim limitation:
[a]… elastomeric head band.
Lockett further teaches the use of an elastomeric strap to secure the mask around a user’s head [see, e.g., ¶[0021] (“A band 34 is coupled to the mask 12 wherein the band 34 is configured to be worn around the user's head. The band 34 has a first end 36, a second end 38 and a first surface 40 extending therebetween. The first end 36 is coupled to the first lateral side 26 of the perimeter edge 20 of the mask 12. The second end 38 is coupled to the second lateral side 28 of the perimeter edge 20 of the mask 12. Moreover, the band 34 may be comprised of an elastomeric material for retaining the mask 12 against the user's face”)].
Accordingly, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to additionally modify Choucair to utilize a known, art-recognized material for the head band, or, more particularly, wherein the headband [strap] comprises an elastomeric headband [strap], since use of an elastomeric material provides the benefits/advantages of increased adjustability (to accommodate users having different-sized heads), flexibility, comfort, and, per Lockett, would help to retain the compress against the face.
C. DUAL ELASTOMERIC HEAD BANDS
Finally, the combination of Choucair and Lockett, as set forth above, teaches an elastomeric head band.
The combination of Choucair and Lockett does not, however, teach dual head bands, and therefore fails to teach the following emphasized claim limitations:
dual elastomeric head bands, each attached to or integral with ends of said at least partially fore-head-covering portion.
Oliver, in a similar field of endeavor, teaches sleep mask products [e.g., Abstract], and further teaches the use of a dual strap configuration [see FIG. 7B (reproduced below)] which Oliver teaches allows for maximum adjustment and hold for the wearer to achieve optimal personal fit and comfort [see ¶[0017]].
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It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to further modify the combination of Choucair and Lockett such that the device comprise dual elastomeric head bands, each attached to or integral with ends of said at least partially fore-head-covering portion, since such a modification would allow for maximum adjustment and hold for the wearer to achieve optimal personal fit and comfort, as explicitly taught by Oliver.
19. Regarding claim 2, the combination of Choucair, Lockett, & Oliver teaches all of the limitations of claim 1 for the reasons set forth in detail (above) in the Office Action.
Choucair further teaches wherein said cooling pieces comprise a material including glass [¶’s [0054], [0071]].
20. Regarding claim 3, the combination of Choucair, Lockett, & Oliver teaches all of the limitations of claim 2 for the reasons set forth in detail (above) in the Office Action.
Claim 3 further requires the limitation:
wherein said glass is a recycled glass.
While the combination of Choucair, Lockett, & Oliver does not explicitly teach “recycled glass,” it would have been an obvious matter of design choice to one having ordinary skill in the art, before the effective filing date of the claimed invention, to utilize recycled glass with, or in lieu of, the glass of Choucair, Lockett, & Oliver, since Applicant has not disclosed that the use of recycled glass per se solves any stated problem, is for any particular purpose, or presents any novel or unexpected result over the other well-known materials (including glass) having a relatively high specific heat used in the references.
21. Regarding claim 4, the combination of Choucair, Lockett, & Oliver teaches all of the limitations of claim 1 for the reasons set forth in detail (above) in the Office Action.
Choucair further teaches wherein said cooling pieces comprise a material including water [e.g., ¶’s [0012], [0063]].
22. Regarding claim 7, the combination of Choucair, Lockett, & Oliver teaches all of the limitations of claim 1 for the reasons set forth in detail (above) in the Office Action.
Choucair further teaches wherein both the first plurality of interior chambers and the second plurality of interior chambers are configured to apply pressure [as broadly as claimed, the spheres filling the compartments of Choucair add weight to the compress, which therefore applies pressure to a region of the user’s head and/or face when worn (the claim does not quantify the amount of pressure)] and/or absorb heat energy from a defined region of the user's head and/or face [the compress of Choucair is a cooling compress; see also, e.g., ¶’s [0018], [0078]].
23. Regarding claim 9, the combination of Choucair, Lockett, & Oliver teaches all of the limitations of claim 1 for the reasons set forth in detail (above) in the Office Action.
Choucair further teaches wherein the first plurality of interior chambers and/or the second plurality of interior chambers are each flattened by an effect of the cooling pieces held within each of the plurality of interior chambers having different densities [see ¶[0014] (“Optionally, the spheres may be in the size range from about 3 to about 10 mm. Mixed sizes may be used in any cold compress embodiment”); because Choucair/Lockett/Oliver teaches the same structure as that of the claimed invention (i.e., the cooling pieces held within each of the plurality of interior chambers having different densities), the combination of Choucair/Lockett/Oliver would be expected to perform in the same manner as the claimed device, and would therefore have the same effect/result of flattening the first plurality of interior chambers and/or the second plurality of interior chambers by an effect of the cooling pieces held within each of the plurality of interior chambers having different densities].
24. Regarding claim 10, the combination of Choucair, Lockett, & Oliver teaches all of the limitations of claim 1 for the reasons set forth in detail (above) in the Office Action.
Choucair further teaches wherein each of the first plurality of interior chambers and/or the second plurality of interior chambers comprise(s) cross-members, bridging between a plurality of walls forming said each of the first plurality of interior chambers and/or the second plurality of interior chambers [each compartment is defined by dividers (504) bridging between compartments - ¶[0077]].
25. Regarding claim 11, the combination of Choucair, Lockett, & Oliver teaches all of the limitations of claim 1 for the reasons set forth in detail (above) in the Office Action.
Choucair further teaches wherein at least one of the first plurality of interior chambers and/or the second plurality of interior chambers comprises at least part of a fabric panel(s) [see ¶’s [0051], [0077]] and stitching [the recitation of “stitching” is regarded as a product-by-process limitation. “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted)].
26. Regarding claim 12, the combination of Choucair, Lockett, & Oliver teaches all of the limitations of claim 11 for the reasons set forth in detail (above) in the Office Action.
Choucair further teaches wherein at least one of the at least one fabric panel(s) comprises a knit fabric [¶[0051]].
27. Regarding claim 13, the combination of Choucair, Lockett, & Oliver teaches all of the limitations of claim 12 for the reasons set forth in detail (above) in the Office Action.
Choucair further teaches wherein the at least partially fore-head-covering portion and/or the eye shield portion comprise(s) at least one exterior panel, comprising a flexible, but non-stretch material [¶[0051] (“polyester blend”)].
28. Claims 5 & 6 are rejected under 35 U.S.C. 103 as being unpatentable over the combination of Choucair, Lockett, & Oliver, as applied to claim 1 above, and further in view of U.S. Patent Application Publication No. 2021/0059860 to Alary et al. ("Alary").
29. Regarding claims 5 & 6, the combination of Choucair, Lockett, & Oliver teaches all of the limitations of claim 1 for the reasons set forth in detail (above) in the Office Action.
The combination of Choucair, Lockett, & Oliver does not, however, teach:
[claim 5] wherein said cooling pieces comprise a material including a plant-derived polymer.
[claim 6] wherein the cooling pieces comprise a material derived from algae.
Alary, in a similar field of endeavor, teaches that it was known for a device (patch) formed for application to a desired region of human skin [Abstract] to additionally include a therapeutic agent including a botanical extract such as, e.g., algae [see ¶[0059]].
It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to further modify the combination of Choucair, Lockett, & Oliver such that said cooling pieces comprise a material including a plant-derived polymer, and wherein the cooling pieces comprise a material derived from algae, since adding a botanical extract such as algae to the cooling pieces of Choucair, Lockett, & Oliver would provide the benefit or advantage of further serving to improve, relieve, reduce, or treat symptoms or conditions of the skin, ether cosmetic or therapeutic [see Alary, ¶[0020]].
30. Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over the combination of Choucair, Lockett, & Oliver, as applied to claim 1 above, and further in view of U.S. 2007/0225782 to Taylor (“Taylor”).
31. Regarding claim 8, the combination of Choucair, Lockett, & Oliver teaches all of the limitations of claim 1 for the reasons set forth in detail (above) in the Office Action.
The combination of Choucair, Lockett, & Oliver does not, however, teach:
wherein each of the first plurality of interior chambers and the second plurality of interior chambers is flattened by rigid fibers placed in a greater concentration at bases of each of the first plurality of interior chambers and the second plurality of interior chambers.
Taylor, in a similar field of endeavor, teaches that it was known for chambers of a body cooling device to include a plurality of fibers coupled to an interior portion (as broadly as claimed, a “base”) thereof to prevent pooling of particles, thereby keeping a more even distribution of particles through a chamber [¶[0038]]. NOTE: As broadly as claimed, the claim does not currently define the “bases” vis-à-vis other structures of the chamber, nor does the claim specify the location of the chamber or other structure having the lesser concentration of fibers. As such, the interior portion of the chamber including the fibers would have a greater concentration than another interior portion having no fibers. Finally, preventing pooling of particles in a given location results in a flatter chamber (i.e., there is no “bulging” at certain spots due to an undesired pooling of particles).
It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to further modify the combination of Choucair, Lockett, & Oliver such that each of the first plurality of interior chambers and the second plurality of interior chambers is flattened by rigid fibers placed in a greater concentration at bases of each of the first plurality of interior chambers and the second plurality of interior chambers, as taught by Taylor, so as to prevent pooling of the cooling pieces therein, thereby resulting in a more even distribution of cooling pieces and, as such, a more even application of cooling therapy.
32. Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over the combination of Choucair, Lockett, & Oliver, as applied to claim 13 above, and further in view of U.S. Patent Application Publication No. 2021/0267793 to Bruder et al. ("Bruder").
33. Regarding claim 14, the combination of Choucair, Lockett, & Oliver teaches all of the limitations of claim 13 for the reasons set forth in detail (above) in the Office Action.
The combination of Choucair, Lockett, & Oliver does not, however, teach:
wherein the flexible, but non-stretch material comprises silk.
Bruder, in a similar field of endeavor, teaches a therapeutic mask or compress system with eye coverage portions positioned over both eyes of a patient [e.g., ¶[0010]] that can be used for, e.g., cooling [¶[0083]].
Bruder teaches that the mask can be constructed from, e.g., silk or other natural and/or synthetic fabrics or materials [Bruder, ¶[0073]]. Silk is a known knit fabric.
It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to further modify the combination of Choucair, Lockett, & Oliver such that the mask be constructed of silk, a knit fabric that comprises a flexible, but non-stretch material, so as to provide the benefit/advantage of increased comfort for a user.
II. INDEPENDENT CLAIM 15 (& DEPENDENT CLAIMS 16 & 17)
34. Claims 15-17 are rejected under 35 U.S.C. 103 as being unpatentable over the combination of Choucair & Lockett, further in view of Oliver.
35. Regarding independent claim 15, Choucair teaches a method for enhancing rest, comprising the following steps:
providing a device for aiding in rest, comprising:
an eye shield portion [the “portion” of cold compress (500)/(100) that covers the eyes; NOTE: Choucair teaches a cold compress (100) that may be applied to a patient’s face (see ¶’s [0047], [0072]; FIGS. 1, 3 (reproduced below), 5A, & 5B] …;
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FIG. 3 OF CHOUCAIR
an at least partially ear-covering portion [NOTE: Choucair teaches that the compress may have a length about the size of a sheet of paper (28 cm in length) - see ¶[[0047]; the instant claim does not, however, specify any measurements/size, or age, of an intended wearer/user; as such, it is the Examiner’s position that the compress of Choucair could at least partially cover the ear(s) of a child];
an at least partially fore-head-covering portion [the “portion” of cold compress (500)/(100) that covers the forehead - FIG. 3], located vertically above and forming a single, unitary piece with, the eye shield portion [the “portion” of compress (500)/(100) covering the forehead is located vertically above the “portion” of compress (500)/(100) covering the eyes (if the compress is held straight up-and-down (FIG. 1); and both portions are a part of the same bag (502)/(102) - ¶’s [0045], [0077]; FIGS. 1, 3, 5A, 5B], which at least partially fore-head-covering portion and which eye shield portion comprise a first plurality of interior chambers and a second plurality of interior chambers, respectively [NOTE: Choucair teaches that the compress may include a series of sealed compartments (506), internally separated by dividers, that may be arranged longitudinally or transversely - see ¶[0077] (“In an exemplary embodiment illustrated in FIGS. 5A and 5B, the cold compress 500 includes a bag 502 that is separated internally by dividers 504 into a series of compartments 506, and sealed permanently at each end with end seals 510. Each compartment 506 is at least partially filled with a particulate 200, such as a sphere, that contains the cooling medium, for example, but not limited to frozen water… The compartments may vary in size, depending upon the contoured human body part it is intended to conform to as a cold compress… Further, the compartments may extend longitudinally or transversely, depending upon the intended use of the cold compress”); Choucair further teaches variability in both the number and configuration of compartments - see ¶[0077] (“Thus, by selecting compartment dimension, number of compartments, divider configuration (for added flexibility), number of particulates (illustrated as spheres) per compartment and size of particulates, and the amount of fluid substance, if any in each compartment along with the spheres, the configurability of the cold compress to more closely conform to both simple and compound body parts may be facilitated”)]; Choucair additionally teaches a configuration wherein in an array of cavities is provided - see ¶[0089]; FIG. 8]; as such it is the Examiner’s position that it would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to modify Choucair such that the dividers of FIG. 5 be arranged both longitudinally and transversely so as to form an array of compartments as a matter of design choice, with a number of compartments (506) in the array that extend across the forehead “portion” comprising a first plurality of interior chambers, and a number of compartments (506) in the array that extend across the eye “portion” comprise a second plurality of interior chambers];
[a]… head band… attached to or integral with ends of said at least partially ear-covering portion and said at least partially fore-head-covering portion [e.g., ¶’s [0011], [0047], [0079]];
wherein the first plurality of interior chambers [extending transversely across the forehead “portion”] and the second plurality of interior chambers [extending transversely across the eye “portion”] are each filled with a plurality of cooling pieces, comprising a material with a relatively high specific heat [see ¶[0077] (“Each compartment 506 is at least partially filled with a particulate 200, such as a sphere, that contains the cooling medium, for example, but not limited to frozen water. Note that the “particulates” can encompass any convenient shape and is not limited to spherical shapes, although these are convenient, especially if these are formed with an outer shell, and are filled with a heat transfer medium…”); and ¶[0071] (“While one embodiment describing spheres 200 filled with a fluid has been disclosed, in another embodiment a solid object can be utilized. For example, the sphere 200 can comprise glass beads. These solid beads operate as previously described. For example, these solid beads are frozen or cooled to lower temperatures. When applied, heat is transferred from the object to be cooled to the solid beads. Other beads such as titanium beads, brass beads, copper beads, and other such beads which offer desirable heat transfer properties can also be suitably used. These include, but are not limited to, other metals and ceramics which have a high specific heat such as aluminum”)].
A. NOTCH
As noted above, Choucair teaches placement of the compress on a user’s face [e.g., ¶[0047]; FIG. 3].
Choucair further teaches that the size and shape of the cold compress can be varied based on the application [¶[0047], and that the size of the compartments can also vary [see ¶[0077]].
Choucair does not, however, teach that the compress includes a “notch” for accommodating a user’s nose, and therefore does not explicitly teach the following emphasized claim limitations:
a notch adapted for accommodating and applying pressure to, and, surrounding both a bridge and wings of a user's nose; [and]
wherein said notch comprises at least part of each of a subset plurality of interior chambers of said second plurality of interior chambers.
Lockett, in a similar field of endeavor, teaches that it was known for a cooling mask [see Abstract (“A sleep mask assembly includes a mask that is worn on a user's face when the user is sleeping. The mask has a compartment that is integrated therein. A pad is insertable into the compartment in the mask and the pad is comprised of a thermally conductive material. In this way the pad can be cooled to reduce swelling on the user's face when the mask is worn and the pad is inserted into the compartment”)] to include a notch adapted for accommodating and applying pressure to, and surrounding, a bridge and wings of a user's nose [notch (30) - ¶[0019]; FIGS. 1, 4; NOTE: notch (30) is capable of accommodating and surrounding both a bridge and wings of a user's nose; the claim does not specify a nose size, nor an overall width of the notch; additionally, pressure is applied to at least a portion of the user’s nose via the weight of the mask itself].
Given Choucair’s explicit teachings (noted above) that that the size and shape of the cold compress can be varied based on the application, and that the compress can be worn a user’s face, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to modify Choucair such that the compress include a notch adapted for accommodating and applying pressure to, and surrounding, a bridge and wings of a user's nose, as taught by Lockett, since such a modification would provide the benefit(s)/advantage(s) of, e.g., allowing the wearer to breathe through his/her nose while the compress is placed on the face, thereby facilitating comfort during use.
Additionally, as modified, the notch would be defined by at least part of each of a subset plurality of interior chambers of said second plurality of interior chambers [i.e., the subset of compartments (506) in the array that extend across the eye “portion,” and that are intersected by (or define) the notch].
B. “ELASTOMERIC” HEAD BAND
As noted above, Choucair teaches a strap for securing the compress to or around a body part, but does not explicitly teach that the strap is elastomeric.
As such, Choucair fails to teach the following emphasized claim limitation:
[a]… elastomeric head band.
Lockett further teaches the use of an elastomeric strap to secure the mask around a user’s head [see, e.g., ¶[0021] (“A band 34 is coupled to the mask 12 wherein the band 34 is configured to be worn around the user's head. The band 34 has a first end 36, a second end 38 and a first surface 40 extending therebetween. The first end 36 is coupled to the first lateral side 26 of the perimeter edge 20 of the mask 12. The second end 38 is coupled to the second lateral side 28 of the perimeter edge 20 of the mask 12. Moreover, the band 34 may be comprised of an elastomeric material for retaining the mask 12 against the user's face”)].
Accordingly, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to additionally modify Choucair to utilize a known, art-recognized material for the head band, or, more particularly, wherein the headband [strap] comprises an elastomeric headband [strap], since use of an elastomeric material provides the benefits/advantages of increased adjustability (to accommodate users having different-sized heads), flexibility, comfort, and, per Lockett, would help to retain the compress against the face.
C. DUAL ELASTOMERIC HEAD BANDS
Finally, the combination of Choucair and Lockett, as set forth above, teaches an elastomeric head band.
The combination of Choucair and Lockett does not, however, teach dual head bands, and therefore fails to teach the following emphasized claim limitations:
dual elastomeric head bands, each attached to or integral with ends of said at least partially ear-covering portion and said at least partially fore-head-covering portion.
Oliver, in a similar field of endeavor, teaches sleep mask products [e.g., Abstract], and further teaches the use of a dual strap configuration [see FIG. 7B (reproduced below)] which Oliver teaches allows for maximum adjustment and hold for the wearer to achieve optimal personal fit and comfort [see ¶[0017]].
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It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to further modify the combination of Choucair and Lockett such that the device comprise dual elastomeric head bands, each attached to or integral with ends of said at least partially ear-covering portion and said at least partially fore-head-covering portion, since such a modification would allow for maximum adjustment and hold for the wearer to achieve optimal personal fit and comfort, as explicitly taught by Oliver.
36. Regarding claim 16, the combination of Choucair, Lockett, & Oliver teaches all of the limitations of claim 15 for the reasons set forth in detail (above) in the Office Action.
Choucair further teaches chilling said cooling pieces, to below water-freezing temperatures, in a freezer [e.g., ¶’s [0015], [0056], [0066], [0067], [0075]].
37. Regarding claim 17, the combination of Choucair, Lockett, & Oliver teaches all of the limitations of claim 16 for the reasons set forth in detail (above) in the Office Action.
Choucair, as modified, further teaches donning the device for aiding in rest [clearly shown in FIG. 3], and positioning each of the first plurality of interior chambers and/or each of the second plurality of interior chambers on or about a different, defined region of the user's head and/or face [FIG. 3], applying pressure [“weight” - ¶’s [0017], [0019], [0082]] and/or absorbing heat energy to the user's head and/or face [e.g., ¶[0010]], including said each of a subset plurality of interior chambers of said second plurality of interior chambers [the chablers are part of the device applied to the head and/or face].
III. INDEPENDENT CLAIM 18 (& DEPENDENT CLAIMS 19 & 20)
38. Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application Publication No. 2018/0008468 to Bamberg ("Bamberg") in view of U.S. Patent Application Publication No. 2017/0027744 to Floyd (“Floyd”), and further in view of U.S. Patent Application Publication No. 2014/0288624 to Wasko et al. (“Wasko”).
39. Regarding claim 18, Bamberg teaches a device for aiding in rest, comprising:
an eye shield portion [the portion of eye covering (10) comprising central cells (20) - ¶’s [0028], [0029]; FIGS. 1, 5], comprising at least two exterior panels of flexible material [top/outward facing surface of flexible fabric material, and the bottom/inward facing surface of flexible fabric material - see ¶[0029]; FIG. 2],…;
an at least partially forehead-covering portion [the portion of eye covering (10) comprising lateral cells (30) - ¶’s [0028], [0029]; FIGS. 1, 5], abutting and attached to, or integral with, the eye shield portion [lateral cells (30) and central cells (20) are a part of the same eye covering (10) - see, e.g., FIGS. 1, 5];
at least one… head band [comprising two end structures (40) - ¶[0029]; FIGS. 1, 4], attached to or integral with ends of said at least partially head-covering portion [the end structures (40) are attached to/integral with the ends of lateral cells (30) that comprise the at least partially head-covering portion - clearly shown in FIGS. 1, 4; see also FIGS. 6, 8];
a notch [nose arch (24) - ¶[0033]; FIGS. 1, 5], comprising a linear portion [comprising the linear portions extending downward from the notch (24) as shown in annotated FIG. 5 below], adapted for accommodating and applying pressure to, and surrounding, both a bridge and wings of a user's nose [NOTE: as broadly as currently claimed, the claim specifies neither a length/size of the linear portion, nor requires that the linear portion surround the entirety of the nose; as shown in FIG. 5 (below), arch (24) accommodates and surrounds a bridge of the nose, the indicated linear portion(s) at least partially surround the wings of the nose, and pressure is applied to at least a portion of the user’s nose via the weight of the eye covering (10) itself - ¶[0034]];
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Annotated FIG. 5 of Bamberg
wherein each of the plurality of interior chambers are each filled with a plurality of cooling pieces comprising a material with a relatively high specific heat [see ¶[0034] (“Each of the cells 20 is filled with media, such as in the form of plastic beads, rice, or other natural or synthetic media materials. This media gives a weight to the eye covering 10 and allows for the cells 20, 30 to be conformed in shape, and to provide a gentle pressure upon the person wearing the eye covering 10, which can be relaxing and promote quality sleep”)]; see also ¶[0039]; NOTE: Applicant’s Specification provides examples of materials considered to have a relatively high specific heat, one of which is plastic - see Applicant’s published specification (U.S. 2023/0131013), at ¶’s [0008], [0067]].
A. INTERIOR PLIES
Bamberg does not, however, teach that the eye shield portion comprises:
at least two interior plies of flexible material, permanently fastened to and integral with said eye-shield portion, wherein the at least two interior plies of flexible material form a plurality of interior chambers and air-filled voids.
Floyd, in a similar field of endeavor, teaches a cooling blanket comprising at least two exterior panels of flexible material [top/outward facing surface (17) and the bottom/inward facing surface (17a) – FIGS. 3, 4 - see ¶’s [0018]; FIG. 2] that form individualized compartments (15) for holding a cooling medium (19) – see ¶’s [0018], [0020], [0022]].
Floyd further teaches at least two interior plies of flexible material [any two of additional layers 17b, 17c, 17d that may comprise layers 17 and 17a (see ¶[0019]; FIG. 3A); note that a ply is a layer of material which has been combined with other layers in order to provide strength] that are permanently fastened to and integral with the blanket, wherein the at least two interior plies of flexible material form a plurality of interior chambers [(15)] and air-filled voids [as broadly as claimed, the layers of the blanket are integrally formed via seams, welds, or bonds (11) that define the interior chambers (15) and that include ventilation openings (¶’s [0021]-[0024])].
It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to modify Bamberg to include at least two interior plies of flexible material, permanently fastened to and integral with said eye-shield portion, wherein the at least two interior plies of flexible material form a plurality of interior chambers and air-filled voids, since such a modification would allow for greater integrity while also allowing for ventilation while cooling [Floyd, ¶’s [0011], [0023]-[0024]].
B. ELASTOMERIC HEADBAND
While Bamberg contemplates various fastening configurations [see, e.g., ¶’s [0011], [0029], [0045]], Bamberg does not teach that the head band is elastomeric, and therefore fails to teach:
at least one elastomeric head band.
Wasko, in a similar field of endeavor, teaches an example mask heating/cooling system (20) configured to retain one or more heating/cooling packs adjacent to or against a person’s anatomy [e.g., ¶[0018]; FIG. 5].
Wasko additionally teaches a strap (26) configured to wrap about a person’s anatomy to secure and hold the mask against the person’s anatomy [¶[0022]], and that may have ends releasably securable to one another [see FIG. 3], or that may comprise a single continuous elastic band [see FIG. 4].
Wasko further teaches that the strap may comprise an elastomeric strap [see claim 16 (“the strap comprises an elastomeric strap to encircle the anatomy”)].
It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to further modify the combination of Bamberg and Floyd to implement any known, art-recognized mask head band configuration including, e.g., a single continuous elastomeric head band such as that shown in FIG. 4 of Wasko, since such a modification amounts merely to the simple substitution of one known head band configuration for another, yielding only predictable results [securing the mask to the head of a user] to one of ordinary skill in the art. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007). Further, modifying Bamberg/Floyd to include such an elastomeric head band would provide the benefit/advantage of enabling an individual to more quickly don/doff the mask of Bamberg/Floyd.
40. Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over the combination of Bamberg, Floyd, & Wasko, as applied to claim 18 above, and further in view of U.S. Patent Application Publication No. 2003/0014096 to Burkhart (“Burkhart”).
41. Regarding claim 19, the combination of Bamberg, Floyd, & Wasko teaches all of the limitations of claim 18 for the reasons set forth in detail (above) in the Office Action.
Floyd further teaches wherein the air-filled voids are at locations causing folding between pressure points of a user's face [the voids of Floyd are at positions facilitating folding – e.g., ¶[0024]].
The combination of Bamberg, Floyd, & Wasko does not, however, teach:
wherein at least one of the at least two exterior panel(s) of flexible material comprise(s) silk.
Burkhart, in a similar field of endeavor, teaches a therapeutic face mask [¶[0002]] comprising, inter alia, exterior panels of material comprising silk [e.g., ¶[0022]].
It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to further modify the combination of Bamberg, Floyd, & Wasko such that at least one of the at least two exterior panel(s) of flexible material comprise(s) silk, due to its comfort and ease of washing, as explicitly taught by Burkhart [¶[0022]].
42. Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over the combination of Bamberg, Floyd, & Wasko, as applied to claim 18 above, and further in view of U.S. Patent Application Publication No. 2021/0267793 to Bruder et al. ("Bruder").
43. Regarding claim 20, the combination of Bamberg, Floyd, & Wasko teaches all of the limitations of claim 18 for the reasons set forth in detail (above) in the Office Action.
The combination of Bamberg, Floyd, & Wasko does not, however, teach:
wherein at least some of the cooling pieces comprise materials with a lower density from others of the cooling pieces, causing a more even distribution of cooling pieces at a top and a base of at least one of the plurality of interior chambers than if all of the cooling pieces had the same density.
Bruder, in a similar field of endeavor, teaches a therapeutic mask or compress system with eye coverage portions positioned over both eyes of a patient [e.g., ¶[0010]] that can be used for, e.g., cooling [¶[0083]].
Bruder further teaches that the eye coverage portions of the mask each include receivers configured to releasably secure a therapy pod that contains a fill material capable of delivering therapy treatment, for example, cold treatments [¶[0078]].
Bruder teaches use of a wide variety of fill materials, including blends, mixtures, or combinations thereof [see, e.g., ¶[0079] (“The pods or granules contained in the pods optionally also contain a metallic or other antimicrobial agent, such as for example a silver, copper, copper oxide, gold, magnesium oxide, aluminum oxide, titanium dioxide, zinc oxide, cobalt, nickel, zirconium, molybdenum, tin, lead and/or other metals, metal oxides, metal ions, metal particles or nanoparticles, and alloys, mixtures or combinations thereof deposited therein”) and ¶[0080] (“The fill granules may comprise a blend of both metals loaded and unloaded (i.e., not containing metal) zeolite or other substance(s) retaining silver or other metals”)].
It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to further modify the combination of Bamberg, Floyd, & Wasko such that the cooling pieces comprise blends, mixtures, or combinations of fill materials, as taught by Bruder, since such a modification amounts merely to the simple substitution of one known, art-recognized fill material composition for another (suitable for a cooling mask), yielding only predictable results to one of ordinary skill in the art. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
As modified, the cooling pieces of Bamberg, Floyd, Wasko, and Bruder would include blends, mixtures, or combinations of various fill materials. The different fill materials have different densities. Therefore, because the combination of Bamberg/Floyd/Wasko/Bruder teaches the same structure as that of the claimed invention (i.e., the cooling pieces held within each of the plurality of interior chambers having different densities), the combination of Bamberg/Floyd/Wasko/Bruder would be expected to perform in the same manner as the claimed device, and would therefore have the same effect/result of causing a more even distribution of cooling pieces at a top and a base of at least one of the plurality of interior chambers than if all of the cooling pieces had the same density.
Response to Arguments
44. As noted above, new claim objections, and new grounds of rejection under § 112(b) are set forth herein, necessitated by Applicant’s Amendment.
45. Regarding independent claims 1 & 15, Applicant's arguments concerning the prior rejections under § 103 have been fully considered and are persuasive (in view of the current Amendment). Therefore, these rejections have been withdrawn. However, upon further consideration, new grounds of rejection under § 103 are set forth in detail above, necessitated by Applicant’s Amendment.
46. The prior rejection of independent claim 18 under § 103 has been maintained, as this claim was not separately argued in the 11/20/25 Amendment.
Conclusion
47. Any inquiry concerning this communication or earlier communications from the examiner should be directed to Bradford C. Blaise whose telephone number is (571)272-5617. The examiner can normally be reached on Monday - Friday 8 AM-5 PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Linda Dvorak can be reached on 571-272-4764. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Bradford C. Blaise/Examiner, Art Unit 3794