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 .
Claims 1-20, filed 3/23/23, are currently pending.
Claim Objections
Claims 6-7, 11 and 14-17 are objected to because of the following informalities:
Claim 6 recites “the magnetic receiver” suggested to be changed to --the first magnetic receiver-- for consistency.
Claim 7 recites “and magnetic receiver” suggested to be changed to --and the first magnetic receiver-- for consistency.
Claim 11 recites “contains distal” suggested to be changed to --contains a distal-- for grammatical reasons.
Claims 14-17 recite “The mask” suggested to be changed to --The face mask-- for consistency.
Claims 16 and 17 recites “one or more magnet” suggested to be changed to --one or more magnets-- for grammatical reasons. Appropriate correction is required.
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: a coupling device… in claims 2 and 18, a first coupling receiver… in claims 3 and 18, a second coupling receiver…in claims 4 and 19, a magnetic coupling device…in claim 5, a first magnetic receiver…in claim 6, a second magnetic receiver…in claim 8.
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 § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-17 and 20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites “a user’s mouth” in line 4, however it is unclear if applicant is referring back to the user in line 2 or introducing a new and different user.
Claim 9 recites “a user” in line 2, however it is unclear if applicant is referring back to the user claim 1 or introducing a new and different user.
Claims 12 and 20 recite “it” language and it is unclear which structure this is referring back to.
Claim 17 recites “the corresponding material,” which lacks proper antecedent basis.
Any remaining claims are rejected as being dependent on a rejected base claim.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-9, 12-13 and 16-20 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Kanyikirize et al. (2022/0062671).
Regarding claim 1, in fig. 1-4 Kanyikirize discloses a face mask 1000, comprising: a first layer 1200 configured to be positioned adjacent to a user's face (Fig. 2-4); an opening 1400 defined in the first layer, the opening configured to be positioned at least partially over a user's mouth [0027]; and a second layer 1500 positioned to selectively cover the opening defined in the first layer (Fig. 2); wherein, the second layer is movable relative to the first layer to expose the opening (Fig. 3).
Regarding claim 2, Kanyikirize discloses a coupling device (magnet 1600 [0030]) on the second layer to selectively hold the second layer in a closed orientation (Fig. 2 [0030][0032]).
Regarding claim 3, Kanyikirize discloses a first coupling receiver (the 1610 shown on the left side in fig. 3) in the first layer that selectively receives the coupling device when the first layer is in the closed orientation (fig. 2).
Regarding claim 4, Kanyikirize discloses a second coupling receiver (the 1610 shown on the right side in fig. 3) that selectively receives the coupling device when the second layer is in an opened orientation (Fig. 4).
Regarding claim 5, Kanyikirize discloses a magnetic coupling device in the first layer or the second layer (magnet 1600 is in second layer 1500 [0030]).
Regarding claim 6, Kanyikirize discloses a first magnetic receiver in the first layer (the 1610 shown on the left side in fig. 3) or the second layer, wherein the magnetic coupling device selectively couples to the magnetic receiver [0030].
Regarding claim 7, Kanyikirize discloses the magnetic coupler and magnetic receiver are positioned to selectively hold the second layer in a closed configuration (fig. 2 [0030]).
Regarding claim 8, Kanyikirize discloses a second magnetic receiver in the first layer (the 1610 shown on the right side in fig. 3) or the second layer, wherein the magnetic coupling device selectively couples the second magnetic receiver to hold the second layer in an opened configuration.
Regarding claim 9, Kanyikirize discloses the first layer comprises a chin saddle (chin portion of 1200) configured to be positioned on (Fig. 2) or under the chin of a user.
Regarding claim 12, Kanyikirize discloses the second layer is coupled to the first layer such that it cannot extend upwardly past a first layer perimeter (Fig. 1-4).
Regarding claim 13, Kanyikirize discloses the first layer is sized to substantially cover the user's nose (Fig. 2).
Regarding claim 16, Kanyikirize discloses the second layer has one or more magnet positioned therein (1600 [0030]) to selectively couple to a magnetized material (1610 [0030]) in the first layer.
Regarding claim 17, Kanyikirize discloses both the one or more magnet and the magnetized material are substantially positioned within a cavity of the corresponding material such that neither the magnet or the magnetized material are visible from the outside ([0030] “each side of the magnetic fastener 1600, 1610 is sandwiched between an inner layer and an outer layer of fabric”).
Regarding claim 18, in fig. 1-4 Kanyikirize discloses method for manufacturing a face mask, comprising: providing a first layer 1200 sized to be positioned adjacent to a user's face and defining an opening 1400 at around the location of the user's mouth [0027]; coupling a second layer 1500 to the first layer to selectively cover the opening defined in the first layer (Fig. 2); attaching a coupling device 1600 to the second layer and a first coupling receiver (the 1610 on the left side in fig. 3) to the first layer to selectively hold the second layer in a closed orientation over the opening (Fig. 2 [0030]).
Regarding claim 19, Kanyikirize discloses attaching a second coupling receiver to one or both of the first layer (1610 on the right side in fig. 3) and second layer to selectively receive the coupling device when the second layer is in an opened orientation (Fig. 4 [0030]).
Regarding claim 20, Kanyikirize discloses coupling the second layer to the first layer such that it cannot extend upwardly past a first layer perimeter (Fig. 1-4).
Claims 1 and 11 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Mallady, Jr. et al. (11,617,402).
Regarding claim 1, in fig. 5-6 Mallady discloses a face mask 10D, comprising: a first layer 20 configured to be positioned adjacent to a user's face (Fig. 1); an opening 25 defined in the first layer, the opening configured to be positioned at least partially over a user's mouth (Col. 3, ll. 17-21); and a second layer 30 positioned to selectively cover the opening defined in the first layer (Fig. 5); wherein, the second layer is movable relative to the first layer to expose the opening (Fig. 6).
Regarding claim 11, Mallady discloses that the second layer contains distal end with a nose profile (distal end of 30 that attaches to top of 20 in fig. 6 forms a nose profile in use since it covers the user’s nose), wherein the nose profile substantially matches a profile of an upper seam of the first layer when in an opened position (Fig. 6).
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.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Kanyikirize as applied to claim 1 above, and further in view of Pham (10,633,787).
Regarding claim 10, Kanyikirize discloses a tag pocket defined along a seam of the face mask (a tag pocket is the inside portion of first layer 1200 that forms a pocket with the user’s face), but is silent regarding a tag that is positioned along the tag pocket and transitionable between an exposed position extending away from the tag pocket and a hidden position wherein the tag is substantially contained within the pocket. However, in fig. 1-3 Pham teaches a tag (110a, 112a) that is positioned along the tag pocket (inside portion of a mask Col. 11, ll. 37-38) and transitionable between an exposed position extending away from the tag pocket (Fig. 3) and a hidden position wherein the tag is substantially contained within the pocket (Fig. 2, Col. 12, ll. 6-9). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kanyikirize’s mask with the addition of a tag, as taught by Pham, for the purpose of identifying the mask.
Claims 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Mallady, as applied to claim 1 above, and further in view of Ru (CN 105559198).
Regarding claim 14, Mallady discloses that the first layer is formed from a first side (left side) and a second side (right side) coupled to one another, but is silent regarding that the first and second side are coupled along a substantially central seam. However, in fig. 1-2 Ru teaches a first layer 1 that is formed from a first side (left side of 1) and a second side (right side of 1) and are coupled to one another along a substantially central seam (vertical line extending down the first layer) as well as a line extending down the second layer 5 It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Kanyikirize’s first and second layers with a seam, as taught by Ru, for the purpose of providing an alternate first and second layer structure having the predictable results of providing a first and second side of the first and second layers, respectively.
Regarding claim 15, the modified Mallady discloses that the second layer (5, Ru) is formed from a first side (left side of 5, Ru) and a second side (right side of 5, Ru) coupled to one another along a seam (line that extend vertically along 5, Ru) that is substantially aligned with the central seam (Fig. 1-2 Ru).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Arujo (2022/0022571), Yeh (2021/0283433) and Coleman (2023/0232916) directed towards face masks with closeable openings.
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, Justine Yu can be reached at 571-272-4835. 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