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 .
Amendment
This office action is responsive to the amendment filed on 12/5/25. As directed by the amendment: claims 1, 3-5, 7-8, 11, 14 and 16-18 have been amended, claims 12-13 have been canceled, and no new claims have been added. Thus, claims 1-11 and 14-20 are presently pending in the application.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “an end element configured to engage…” in claim 11 (corresponding structure an opening, c-notch, notch, slot, hook or the like, see paragraph 53 of the specification).
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 1-5 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Howard et al. (2020/0329792) in view of Nyitray et al. (2023/0129150) and McAndrews (2016/0332008).
Regarding claim 1, in fig. 1-2 Howard discloses a face mask 10 for allowing a user to transition between a closed configuration covering a mouth area of a user (Fig. 1) and an open configuration exposing the mouth area (Fig. 2), said face mask comprising: a mask body including a first material (outer layer [0023]) and a second material (inner layer [0023]), the mask body defining an opening 30 configured to expose the mouth area when the mask body is worn on a face of the user [0023]; a flap 16 pivotably associated with the mask body, the flap including a pivot attachment (at end 22), the first material [0023], the flap being configured to cover the opening when in the closed configuration (Fig. 1); a mask fastener 32a provided on the mask adjacent the opening [0021], a flap fastener 32b provided on the flap at an end opposite the pivot attachment (Fig. 1-2), the mask fastener and the flap fastener being mutually engageable to retain the flap to the mask body in the closed configuration (Fig. 1, [0021]); and one or more elastic cords extending from the mask body and configured to secure the mask body to the face of the user (12 [0019]), but is silent regarding a third material, the second material being located between the first material and the third material and that the flap is made of the first, second and third material. However, in fig. 1D Nyitray teaches a first, second and third material of a mask ([0089] the first and third material being the same and the second material being different), the second material being between the first and third material (Fig. 1D). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Howard’s mask layers and flap layers, which form part of the mask, with three layers, the first and third being the same and the second being different, as taught by Nyitray, for the purpose of providing further protection to the user. The modified Howard is silent regarding that the pivot attachment is located below and substantially horizontal with a mouth of the user when wearing the mask and that the mask fastener provided on the mask is provided above the mouth of the user when wearing the mask. However, in fig. 7 McAndrews teaches a pivot attachment (at hinged joint [0023]) that is located below and substantially horizontal with a mouth of the user when wearing the mask (see fig. 7) and a mask fastener 24 provided on the mask is provided above the mouth of the user when wearing the mask (see fig. 1 and 7, [0029]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Howard’s pivot attachment and mask fastener location with locations below the mouth and above the mouth, respectively, as taught by McAndrews, for the purpose of providing an alternate pivoting direction having the predictable results of allowing for the ability to eat without removing the face mask by pivoting the flap to an open position.
Regarding claim 2, the modified Howard discloses that the mask body includes a nose section (above central section 24, Howard), a pair of side sections (26 and 28, Howard) extending from an end of the nose section, and a chin section (where 14 is pointing in fig. 1, Howard) extending between the side sections.
Regarding claim 3, the modified Howard discloses that the flap is pivotably associated with the chin section of the mask body (the flap is associated with the chin section since it is just above the chin section, Howard) by way of the pivot attachment (at end 22, Howard, as modified by McAndrews) located adjacent the opening (22 is adjacent to opening 30, Howard, as modified by McAndrews).
Regarding claim 4, the modified Howard discloses that the mask fastener of the mask body is associated with the nose section (32a is associated with the nose section since it is on the nose section, Howard as modified by McAndrews).
Regarding claim 5, the modified Howard discloses that the mask fastener and the flap fastener are selected from the group consisting of a hook and loop fastener ([0021] Howard), magnets ([0021] Howard), snaps, buttons or adhesives.
Regarding claim 9, the modified Howard discloses that the first material and the third material are made of a same material ([0089] Nyitray), and the second material is made of a different material to that of the first material and the third material ([0089] Nyitray).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Howard, Nyitray and McAndrews, as applied to claim 4 above, in further view of Reaux (2009/0126064).
Regarding claim 6, the modified Howard is silent regarding that the mask body defines a pair of frame openings defined therethrough, each of the frame openings being configured to receive therethrough a frame arm of an eyeglass frame. However, in fig. 19 Reaux teaches a mask body 705 that defines a pair of frame openings (apertures 707 of mask 705 that frame 101 extends through on left and right upper sides [0064], see also fig. 7) defined therethrough, each of the frame openings being configured to receive therethrough a frame arm (portions of 101 that are on either side of nose central portion of frame 101) of an eyeglass frame 101 as well as elastic cords (1701 [0077]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Howard’s mask body and one or more elastic cords with a pair of frame openings, a frame and elastic cords, as taught by Reaux, for the purpose of providing an alternate attachment having the predictable results of securing a mask to a user’s head.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Howard, Nyitray, McAndrews and Reaux, as applied to claim 6 above, in further view of Welchel et al. (2007/0252946).
Regarding claim 7, the modified Howard is silent regarding that the one or more elastic cords each include a hook configured to engage with an ear member of the frame arm. However, in fig. 1 Welchel teaches a cord (lower 64) that each include a hook 62 configured to engage with an ear member 34 of the frame arm 28. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Howard’s elastic cord connection with a hook attaching to the ear member, as taught by Welchel, for the purpose of providing an alternate attachment mechanism having the predictable results of attaching the elastic cords to the frame arms.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Howard, Nyitray, McAndrews and Kling, as applied to claim 6 above, in further view of Welchel et al. (2007/0252946) and Smerdon, Jr. (6,092,897).
Regarding claim 8, the modified Howard is silent regarding that the one or more elastic cords each are configured to engage with an ear member of the frame arm. However, in fig. 1 Welchel teaches a cord (lower 64) that each include a hook 62 configured to engage with an ear member 34 of the frame arm 28. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Howard’s elastic cord connection with the ear member, as taught by Welchel, for the purpose of providing an alternate attachment mechanism having the predictable results of attaching the elastic cords to the frame arms. The modified Howard is silent regarding that the connection is by a loop. However, in fig. 1-2 Smerdon, Jr. teaches elastic cords that each are a loop configured to engage with an ear member of the frame arm (see loop formed in fig. 2). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Howard’s hoopks with loops, as taught by Smerdon, Jr., for the purpose of providing an alternate attachment mechanism having the predictable results of attaching the elastic cords to the frame arms.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Howard, Nyitray and McAndrews, as applied to claim 3 above, in further view of Crenshaw et al. (2020/0353296).
Regarding claim 10, the modified Howard is silent regarding that the second material is removable from the first material and the third material. However, Crenshaw teaches that a second material is removable from the first material and the third material (layers 120, 130 and 140 are all removable from one another [0017][0029][0030][0035]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Howard’s three layers with removable layers, as taught by Crenshaw, for the purpose of allowing for the exchange of layers as needed ([0035] Crenshaw).
Claims 11, 14-17 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Howard et al. (2020/0329792) in view of Nyitray et al. (2023/0129150), McAndrews (2016/0332008), Reaux (2009/0126064) and Welchel et al. (2007/0252946).
Regarding claim 11, in fig. 1-2 Howard discloses a face mask system comprising: a face mask 10 comprising: a mask body including a nose section (above central section 24), a pair of side sections (26 and 28) extending from an end of the nose section, and a chin section (where 14 is pointing in fig. 1) extending between the side sections, a first material (outer layer [0023]) and a second material (inner layer [0023]), the mask body defining an opening 30 configured to expose the mouth area when the mask body is worn on a face of the user [0023]; a flap 16 pivotably associated with the chin section the mask body (the flap is associated with the chin section since it is just above the chin section) by way of a pivot point (at end 22), the flap including the first material [0023], the flap being configured to cover the opening when in the closed configuration (Fig. 1); a fastening means (32a and 32b) associated with the flap and the mask body [0021], the fastening means being configured to retain the flap to the mask body in the closed configuration (Fig. 1, [0021]); and one or more elastic cords extending from the mask body and configured to secure the mask body to the face of the user (12 [0019]), but is silent regarding a third material, the second material being located between the first material and the third material and that the flap is made of the first, second and third material. However, in fig. 1D Nyitray teaches a first, second and third material of a mask ([0089] the first and third material being the same and the second material being different), the second material being between the first and third material (Fig. 1D). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Howard’s mask layers and flap layers, which form part of the mask, with three layers, the first and third being the same and the second being different, as taught by Nyitray, for the purpose of providing further protection to the user. The modified Howard is silent regarding that the pivot point is located below and substantially horizontal with a mouth of the user when wearing the mask. However, in fig. 7 McAndrews teaches a pivot point (at hinged joint [0023]) that is located below and substantially horizontal with a mouth of the user when wearing the mask (see fig. 7). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Howard’s pivot attachment and associated magnets’ locations with locations below the mouth and above the mouth, respectively, as taught by McAndrews, for the purpose of providing an alternate pivoting direction having the predictable results of allowing for the ability to eat without removing the face mask by pivoting the flap to an open position. The modified Howard is silent regarding an eyeglass frame comprising: a central section featuring a nose brace; and a pair of frame arms each extending from opposite ends of the central section, each of the frame arms including an ear member featuring an end element configured to engage with at least one of the one or more elastic cords. However, in fig. 19 Reaux teaches an eyeglass frame 101 comprising: a central section featuring a nose brace 105; and a pair of frame arms (where 115 is pointing in fig. 1) each extending from opposite ends of the central section, each of the frame arms including an ear member (distal portion of arm) featuring an end element (distal top of arm). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Howard’s mask body and one or more elastic cords with a pair of frame openings, a frame and elastic cords, as taught by Reaux, for the purpose of providing an alternate attachment having the predictable results of securing a mask to a user’s head. The modified Reaux is silent regarding that the end elements are configured to engage with at least one of the elastic cords. However, in fig. 1 Welchel teaches a cord (lower 64) that each include a hook 62 configured to engage with an end element 34 of the frame arm 28. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Howard’s elastic cord connection with a hook attaching to the end element, as taught by Welchel, for the purpose of providing an alternate attachment mechanism having the predictable results of attaching the elastic cords to the frame arms.
Regarding claim 14, the modified Howard discloses that the fastening means of the mask body is associated with the nose section (the fastening means 32a and 32b are associated with the nose section since they connect in nose section, Howard, as modified by McAndrews).
Regarding claim 15, the modified Howard discloses that the fastening means is a hook and loop fastener ([0021] Howard), magnets ([0021] Howard), snaps, buttons or adhesives.
Regarding claim 16, the modified Howard discloses that the mask body defines a pair of frame openings defined therethrough (openings of 12 that frame 11 extends through on left and right upper sides, Kling), each of the frame openings being configured to receive therethrough at least one of the frame arms (arm portions of 11, Kling) of the eyeglass frame (11, Kling).
Regarding claim 17, the modified Howard discloses that the one or more elastic cords each include a hook configured to engage with the end element of the ear member of the frame arms (Fig. 1, Welchel).
Regarding claim 19, the modified Howard discloses that the first material and the third material are made of a same material ([0089] Nyitray), and the second material is made of a different material to that of the first material and the third material ([0089] Nyitray).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Howard, Nyitray, McAndrews, Reaux and Welchel, as applied to claim 11 above, in further view of Smerdon, Jr. (6,092,897).
Regarding claim 18, the modified Howard is silent regarding that the one or more elastic cords each are a loop configured to engage with the end element of the ear member of the frame arms. However, in fig. 1-2 Smerdon, Jr. teaches elastic cords that each are a loop configured to engage with an end element (opening of free ends of 10) of an ear member (distal end of 10) of the frame arm (see loop formed in fig. 2 on frame 10). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Howard’s elastic hooks with loops, as taught by Smerdon, Jr., for the purpose of providing an alternate attachment mechanism having the predictable results of attaching the elastic cords to the frame arms.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Howard, Nyitray, McAndrews, Reaux and Welchel, as applied to claim 11 above, in further view of Crenshaw et al. (2020/0353296).
Regarding claim 20, the modified Howard is silent regarding that the second material is removable from the first material and the third material. However, Crenshaw teaches that a second material is removable from the first material and the third material (layers 120, 130 and 140 are all removable from one another [0029][0030][0035]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Howard’s three layers with removable layers, as taught by Crenshaw, for the purpose of allowing for the exchange of layers as needed ([0035] Crenshaw).
Response to Arguments
Applicant’s arguments, see pages 9-12, filed 12/5/25, with respect to the rejections of claims 1 and 11 under Howard and Nyitray, and Howard, Nyitray, Reaux and Welchel, respectively, have been fully considered and are persuasive. Therefore, the rejections have been withdrawn. However, upon further consideration, a new ground of rejection is made in view of Howard, Nyitray and McAndrews, and Howard, Nyitray, McAndrews, Reaux and Welchel, respectively.
Applicant's arguments with respect to claim 10, filed 12/5/25, have been fully considered but they are not persuasive. Applicant argues on page 13 that Crenshaw fails to teach that the second layer is removable from the first and third layer. Applicant argues that the first layer is removable from the second layer and that the third layer is removable from the second layer.
This argument is not taken well. As applicant noted, both the third and first materials are removable from the second layer, making the second layer then also removable from the first and third layers. Said another way, if the first and third layers are removed from the second layer, then the second layer is removable from the first and third layers. For further support please see paragraph 17 as well as the first sentence of paragraph 29, which recites “Mask body portion 110 is preferably comprised of a plurality of fixedly or removably attached layers, namely a decorative cover 120, a filter layer 130, and a moisture wicking layer 140.”
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 RACHEL T SIPPEL whose telephone number is (571)270-1481. The examiner can normally be reached M-F 9:00-5:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Timothy Stanis can be reached at (571) 272-5139. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RACHEL T SIPPEL/Primary Examiner, Art Unit 3785