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 § 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 factual inquiries 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.
Claims 1, 4-6, 8, 11-13, 15 and 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Young (US 5,114,342) in view of Busch et al (WO 2011/083378 A1) and Engelke (DE 20 2006 011 829 U1)
Regarding claim 1, Young discloses a saliva ejector (figure 2A) comprising:
a body (tube 10) having an exterior surface (see figure 2A), a valve receiving end (end adjacent to valve 14/hose 16), a tip (end adjacent tip 20), a lumen formed between the valve receiving end and the tip with the lumen having a central axis (see figure 2B and col 3, line 48 which discloses the saliva ejector as having tube 10) and a stationary disc (guard flange 18) extending out of the exterior surface at a position along the body away from the valve receiving end (see figure 2A).
Young fails to disclose the disc being integral with the exterior surface, the disc having a front side having a face having a pair of eyes positioned symmetrically on opposite sides of the central axis of the lumen, and a mouth positioned below the pair of eyes and the central axis of the lumen.
Busch teaches a stationary disc (mouth shield 20) which is integral with exterior surface and extends out of the exterior surface of a body (body 12, see figure 1).
Therefore, it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Young to have the stationary disc to be integral with the exterior surface and extends out of the exterior surface of a body, as set forth by Busch for the purpose of acting as a barrier for unintentional splatter or airborne bacteria while providing a singular easily manufacturable body. Furthermore, the use of a one-piece construction instead of the structure disclosed in Young would be merely a matter of obvious engineering choice In re Larson, 340 F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965).
Engelke teaches an attachment (mask 1) having a front side having a face having a pair of eyes positioned symmetrically on opposite sides of a central axis of a lumen (see figures 1 and 2, where the lumen is the “the liquid-conducting connecting tube” that extends along the trunk 2 of the elephant face), and a mouth positioned below the pair of eyes and the central axis of the lumen (see figures 1 and 2, where a mouth is positioned under the trunk and eyes).
Therefore, it would be obvious to one of ordinary skill in the art, at the timed filing to modify Young/Busch to have the disc having a front side having a face having a pair of eyes positioned symmetrically on opposite sides of the central axis of the lumen, and a mouth positioned below the pair of eyes and the central axis of the lumen for the purpose of maintaining the attention and entertaining children during dental procedures.
Regarding claim 4, Young further discloses the body is constructed of plastic (col 3, lines 48-50).
Regarding claim 5, Young further discloses the body is constructed of polyethylene (col 3, lines 48-50).
Regarding claim 6, Young further discloses the body is constructed of high-density polyethylene (col 3, lines 48-50).
Regarding claim 8, Young discloses a saliva ejector (figure 2A) comprising: a body (10) having an exterior surface (see figure 2A), a valve receiving end (end adjacent to valve 14/hose 16), a tip (end adjacent tip 20), a lumen formed between the valve receiving end and the tip with the lumen having a central axis (see figure 2B and disclosure of col 3, line 48 disclosure of the saliva ejector as having tube 10), a stationary disc(18) extending out of the exterior surface (see figure 2A), the disc (18) positioned along the body away from the valve receiving end (14/16,see figure 2A, where away is a relative term and any space between the valve and the disc is considered away) and the disc having a front side and a back side (see figure 2A).
Young fails to disclose the stationary disc integral with the exterior surface and the disc having a face having a pair of eyes positioned symmetrically on opposite sides of the central axis of the lumen, and a mouth positioned below the pair of eyes and the central axis of the lumen
Busch teaches a stationary disc (mouth shield 20) which is integral with exterior surface and extends out of the exterior surface of a body (body 12, see figure 1).
Therefore, it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Young to have the stationary disc to be integral with the exterior surface and extends out of the exterior surface of a body, as set forth by Busch for the purpose of acting as a barrier for unintentional splatter or airborne bacteria while providing protection. Furthermore, the use of a one-piece construction instead of the structure disclosed in Young would be merely a matter of obvious engineering choice In re Larson, 340 F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965)
Engelke teaches an attachment (mask 1) having a front side having a face having a pair of eyes positioned symmetrically on opposite sides of a central axis of a lumen (see figures 1 and 2, where the lumen is the “the liquid-conducting connecting tube” that extends along the trunk 2 of the elephant face), and a mouth positioned below the pair of eyes and the central axis of the lumen (see figures 1 and 2, where a mouth is positioned under the trunk and eyes).
Therefore, it would be obvious to one of ordinary skill in the art, at the timed filing to modify Young/Busch to have the disc having a front side having a face having a pair of eyes positioned symmetrically on opposite sides of the central axis of the lumen, and a mouth positioned below the pair of eyes and the central axis of the lumen for the purpose of maintaining the attention and entertaining children during dental procedures.
Regarding claim 11, Young further discloses the body is constructed of plastic (col 3, lines 48-50).
Regarding claim 12, Young further discloses the body is constructed of polyethylene (col 3, lines 48-50).
Regarding claim 13, Young further discloses the body is constructed of high-density polyethylene (col 3, lines 48-50).
Regarding claim 15, Young discloses a saliva ejector (figure 2A) comprising: a body (10) having an exterior surface (see figure 2A), a valve receiving end (end adjacent to valve 14/hose 16), a tip (end adjacent tip 20), a lumen formed between the valve receiving end and the tip with the lumen having a central axis (see figure 2B and disclosure of col 3, line 48 disclosure of the saliva ejector as having tube 10), a stationary disc element having an outer perimeter(18), and extending out of the exterior surface at a position along the body away from the valve receiving end and the tip (see figure 2a, where away is a relative term and any space between the valve and the disc is considered away).
Young fails to disclose the stationary disc element being integrally molded with the exterior surface, the disc element comprising a face having a pair of eyes positioned symmetrically on opposite sides of the central axis of the lumen, a pair of eats extending out beyond the outer perimeter of the disc element to provide three-dimensional ear projections, and a mouth positioned below the pair of eyes and the central axis of the lumen, wherein the combination of the pair of eyes, the pair of ears and the mouth created a three-dimensional facial representation having anatomical proportions that provides enhanced patient recognition and calming engagement during a dental procedure.
Busch teaches a stationary disc element (mouth shield 20) which is integrally molded with exterior surface and extends out of the exterior surface of a body (body 12, see figure 1, where “integrally molded” is examined based on the resulting structure a stationary disc element integral to the exterior surface, in view of molded being a product by process limitation).
Therefore, it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Young to have the stationary disc to be integral with the exterior surface and extends out of the exterior surface of a body, as set forth by Busch for the purpose of acting as a barrier for unintentional splatter or airborne bacteria while providing. Furthermore, the use of a one-piece construction instead of the structure disclosed in Young would be merely a matter of obvious engineering choice In re Larson, 340 F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965)
Engelke teaches an attachment (mask 1) having a front side having a pair of eyes positioned symmetrically on opposite sides of a central axis of the lumen (see figures 1 and 2, where the lumen is the “the liquid-conducting connecting tube” that extends along the trunk 2 of the elephant face), a pair of ears extending out beyond the outer perimeter of the to provide three-dimensional ear projections attachment (see figures 1 and 2), and a mouth positioned below the pair of eyes and the central axis of the lumen (see figures 1 and 2, where a mouth is positioned under the trunk and eyes).
Therefore, it would be obvious to one of ordinary skill in the art, at the timed filing to modify Young/Busch to have the disc element having a front side having a pair of eyes positioned symmetrically on opposite sides of the central axis of the lumen, a pair of eats extending out beyond the outer perimeter of the disc element to provide three-dimensional ear projections, and a mouth positioned below the pair of eyes and the central axis of the lumen, wherein the combination of the pair of eyes as taught by Engelke for the purpose of maintaining the attention and entertaining children during dental procedures.
The limitation “provides enhanced patient recognition and calming engagement during a dental procedure” is interpreted as intended use/functional statement based on a contingency, specifically the tip being placed or not placed in the mouth of the patient. As the specification is silent regarding this limitation and any required structure, the examiner is interpreting the disc being positioned closer to the tip than the valve receiving end as recited in the claim. As set forth above, Engelke teaches the combination of the pair of eyes, the pair of ears and the mouth created a three-dimensional facial representation having anatomical proportions (figure 1). As such, Young/Busch/Engelke is capable of being used as claimed if so desired. In re Casey, 152 USPQ 235 (CCPA 1967) and In re Otto, 136 USPQ 458, 459 (CCPA 1963). Furthermore, the manner in which a device is intended to be employed does not differentiate the claimed apparatus from prior art apparatus satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647 (1987).
Regarding claim 17, Young further discloses the body is constructed of plastic (col 3, lines 48-50).
Regarding claim 18, Young further discloses the body is constructed of polyethylene (col 3, lines 48-50).
Regarding claim 19, Young further discloses the body is constructed of high-density polyethylene (col 3, lines 48-50).
Claims 2, 7, 9, 14 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Young in view of Busch et al and Engelke as applied to claims 1, 8 and 15 above, and further in view of Hershey et al (US 2008/0145816).
Regarding claim 2, Young/Busch/Engelke fail to disclose a coating of an antimicrobial agent.
Hershey teaches a coating of a suction tube being antimicrobial (par 48) for the purpose of reducing the microbial load (par 48).
Therefore, it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to modify Young/Busch/Engelke to have a coating of an antimicrobial agent as taught by Hershey for the purpose of reducing the microbial load.
Regarding claim 7, Young discloses the body is constructed of high-density polyethylene (col 3, lines 48-50), Young/Busch/Engelke fail to disclose a coating of an antimicrobial agent.
Hershey teaches a coating of a suction tube being antimicrobial (par 48) for the purpose of reducing the microbial load (par 48).
Therefore, it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to modify Young/Busch/Engelke to have a coating of an antimicrobial agent as taught by Hershey for the purpose of reducing the microbial load.
Regarding claim 9, Young/Busch /Engelke fail to disclose a coating of an antimicrobial agent.
Hershey teaches a coating of a suction tube being antimicrobial (par 48) for the purpose of reducing the microbial load (par 48).
Therefore, it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to modify Young/Busch/Engelke to have a coating of an antimicrobial agent as taught by Hershey for the purpose of reducing the microbial load.
Regarding claim 14, Young discloses the body is constructed of high-density polyethylene (col 3, lines 48-50), Young/Busch/Engelke fail to disclose a coating of an antimicrobial agent.
Hershey teaches a coating of a suction tube being antimicrobial (par 48) for the purpose of reducing the microbial load (par 48).
Therefore, it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to modify Young/Busch/Engelke to have a coating of an antimicrobial agent as taught by Hershey for the purpose of reducing the microbial load.
Regarding claim 20, Young discloses the body is constructed of high-density polyethylene (col 3, lines 48-50), Young/Busch/Engelke fail to disclose a coating of an antimicrobial agent.
Hershey teaches a coating of a suction tube being antimicrobial (par 48) for the purpose of reducing the microbial load (par 48).
Therefore, it would be obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention to modify Young/Busch/Engelke to have a coating of an antimicrobial agent as taught by Hershey for the purpose of reducing the microbial load.
Claims 3, 10, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Young in view of Busch et al and Engelke as applied to claims 1, 8 and 15 above, and further in view of Salehi (US 2015/0359950).
Regarding claim 3, Young/Busch/Engelke fail to disclose the body is constructed of metal.
However, Salehi teaches a body of a suction tube (10) being constructed of metal (par 86 discloses the materials being metals such as stainless steel, aluminum or other suitable metals) for the purpose of enabling sterilization (par 86).
Therefore, it would be obvious to one of ordinary skill to modify Young/Busch/Engelke to have the body be constructed of a metal as taught by Salehi for the purpose of enabling sterilization.
Regarding claim 10, Young/Busch/Engelke fail to disclose the body is constructed of metal.
However, Salehi teaches a body of a suction tube (10) being constructed of metal (par 86 discloses the materials being metals such as stainless steel, aluminum or other suitable metals) for the purpose of enabling sterilization (par 86).
Therefore, it would be obvious to one of ordinary skill to modify Young/Busch/Engelke to have the body be constructed of a metal as taught by Salehi for the purpose of enabling sterilization.
Regarding claim 16, Young/Busch/Engelke fail to disclose the body is constructed of metal.
However, Salehi teaches a body of a suction tube (10) being constructed of metal (par 86 discloses the materials being metals such as stainless steel, aluminum or other suitable metals) for the purpose of enabling sterilization (par 86).
Therefore, it would be obvious to one of ordinary skill to modify Young/Busch/Engelke to have the body be constructed of a metal as taught by Salehi for the purpose of enabling sterilization.
Response to Arguments
Applicant’s arguments with respect to claims 1-20 have been considered but are moot because the new ground of rejection does not rely on the combination of reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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.
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/S.N.B./Examiner, Art Unit 3772
/EDELMIRA BOSQUES/Supervisory Patent Examiner, Art Unit 3772