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 .
Priority
Acknowledgment is made of applicant’s claim for priority under 35 U.S.C. § 119(e) with reference to Application Number: 63/305265 filed on 01/31/2022.
Drawings
The drawing(s) have been reviewed by the examiner and are found to comply with the provisions of 37 CFR 1.81 to 1.85.
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. Such claims include 1-5, 12, and 13.
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)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1 - 13 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Miyake (US 5954055).
Regarding claim 1, Miyake discloses a facemask (c. 4: 36), comprising: a proximal layer (see Figs. 1b and 5, layer to the right of the page); a distal layer (see Figs. 1b and 5, layer to the left of the page, or otherwise opposite layer interposing the structural member); a structural member oriented collateral with a user’s mouth (20, see for example Fig. 9); and a means to affix the facemask to the user’s face (30); wherein the proximal layer and distal layers are configured to enclose the structural member from opposite sides (see Fig. 1b, Fig. 5, c. 5: 1 – 3); wherein the structural member is configured to inhibit the proximal layer from engaging the user’s mouth or nose (c. 1: 55 – 58, c. 5: 23 - 29; see also Fig. 9, wherein the proximal layer does not engage the nose at its underside) and wherein the structural member is adapted to reduce movement of the facemask during speech (c. 1: 35 – 42, c. 1: 55-58).
2. The facemask of claim 1, wherein the facemask encloses the user’s mouth and nose (c. 5: 57 – 59, Fig. 9).
3. The facemask of claim 1, wherein the structural member protrudes away from the user’s mouth (c. 5: 18 – 28, Fig. 3, Fig. 9).
4. The facemask of claim 1, wherein the structural member is made of a flexible material (plastic, c. 6: 8 – 9; see applicant’s specification, [0018]).
5. The facemask of claim 1, wherein the structural member is made of a semirigid material (metal, c. 8: 48 – 60; see applicant’s specification, [0018]).
6. The facemask of claim 1, wherein the means to affix the facemask to the user’s face comprises ear loops (Fig. 1, 30).
7. The facemask of claim 1, wherein the means to affix the facemask to the user’s face comprises straps (see Fig. 4, 30a/b, considered as straps, which are defined as narrow flat strips of flexible material).
8. A facemask (c. 4: 36), comprising: a proximal layer (see Figs. 1b and 5, layer to the right of the page); a distal layer (see Figs. 1b and 5, layer to the left of the page, or otherwise opposite layer interposing the structural member); and a structural member (20) enclosed from opposite sides by the proximal and distal layers (see Fig. 1b, Fig. 5, c. 5: 1 – 3) and adapted to reduce movement of the facemask during speech (c. 1: 35 – 42, c. 1: 55-58); wherein the structural member is configured to inhibit the proximal layer from engaging a user’s mouth or nose (c. 1: 55 – 58, c. 5: 23 - 29; see also Fig. 9, wherein the proximal layer does not engage the nose at its underside).
9. The facemask of claim 8, wherein the structural member is made of a flexible material oriented collateral with the user’s mouth (plastic, c. 6: 8 – 9; see applicant’s specification, [0018]; see Fig. 9).
10. The facemask of claim 8, wherein the structural member is made of a semirigid material oriented collateral with the user’s mouth (metal, c. 8: 48 – 60; see applicant’s specification, [0018]; see Fig. 9).
11. The facemask of claim 9, wherein the facemask encloses the user’s mouth and nose (c. 5: 57 – 59, Fig. 9).
12. The facemask of claim 8, further comprising a means to affix the facemask to the user’s face (30).
13. A facemask (c. 4: 36) configured to inhibit engaging a user’s mouth or nose (c. 1: 55 – 58, c. 5: 23 - 29; see also Fig. 9, wherein the proximal layer does not engage the nose at its underside), comprising: a proximal layer (see Figs. 1b and 5, layer to the right of the page); a distal layer (see Figs. 1b and 5, layer to the left of the page, or otherwise opposite layer interposing the structural member); a structural member (20) enclosed from opposite sides by the proximal and distal layers (see Fig. 1b, Fig. 5, c. 5: 1 – 3); and a means for affixing the facemask to the user’s face (20); wherein the structural member is made of a flexible material oriented collateral with the user’s mouth (plastic, c. 6: 8 – 9; see applicant’s specification, [0018]; see Fig. 9); and wherein the structural member is adapted to reduce movement of the facemask during speech (c. 1: 35 – 42, c. 1: 55-58).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
US 20200163392 – structural member limiting movement during speech
US 5699791 – structural member limiting movement during speech
US 5699791 – structural member limiting movement during speech
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRADLEY H PHILIPS whose telephone number is (571)270-5180. The examiner can normally be reached 8:00 - 5:00 M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian Casler can be reached at (571) 272-4956. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRADLEY H PHILIPS/Primary Examiner, Art Unit 3799