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 .
Election/Restrictions
Applicant’s election without traverse of Group 1, drawn to a disposable saliva collector product, and Species A and B, embodiment drawn to Figures 1-4, in the reply filed on 9/2/25 is acknowledged.
Initially the Examiner notes Applicant’s reply appears nonresponsive when electing both Species and B without traverse while simultaneously arguing in support thereof noting they Species A and B ”correspond to the same embodiment”.
The Examiner respectfully notes Applicant’s instant Specification (see page 6) details identified Species A as Figures 1 and 2 as “the disposable saliva collector attachment according to an embodiment”, and Species B as Figures 3 and 4 as “another disposable saliva collector according to an embodiment”.
However, in the interest of advancing compact prosecution, the Examiner hereby combines Species A and B, drawn to Figures 1-4, as elected and noted by Applicant. Figures 5 and 6 remain non-elected Species C and D, respectively.
Claims 9 and 10 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention/species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 9/2/25.
Information Disclosure Statement
The listing of references in the specification is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
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.
Claim Objections
Claims 1-8 are objected to because of the following informalities:
The claims are objected to because they include reference characters which are not enclosed within parentheses.
Claim 4 should apparently read “where the at least one anchoring hole” to avoid ambiguity or indefiniteness with the anchoring hole of claim 1.
Claim 8 contains apparent unnecessary capitalization when reciting “Trombone, Trumpet, etc.” in line 2.
Appropriate correction is required.
Reference characters corresponding to elements recited in the detailed description of the drawings and used in conjunction with the recitation of the same element or group of elements in the claims should be enclosed within parentheses so as to avoid confusion with other numbers or characters which may appear in the claims. See MPEP § 608.01(m).
Claim Rejections - 35 USC § 112(b)
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 1-8 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.
The term “polygonal soft and flexible material” in claim 1 is a relative term which renders the claim indefinite. The term “polygonal soft and flexible material” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. In light of the instant Specification which details the “polygonal soft and flexible material” as composite fiber, cloth or paper (see at least instant Specification page 7), the scope of the claim is indeterminate with respect to what may necessarily by required and/or excluded by the recitation “polygonal soft and flexible material”. The degree of softness and/or flexibility required or excluded by the claim is indeterminate in light of the Specification and in light of the outstanding breadth. The examples in the Specification may also be considered nonpolygonal, hard, and/or inflexible materials, such as composite fiber or rigid paper for example at least. The examiner would respectfully recommend reciting the material(s) while removing the relative adjective descriptors leading the indefiniteness. One of ordinary skill in the art would not be reasonably apprised of the metes and bounds of the claimed invention given the infinite number of possibilities that may be considered “polygonal soft and flexible material(s)”, owning to indeterminate degree of softness and/or flexibility.
Claim 1 recites the limitation "the water key lever" in lines 2-3. There is insufficient antecedent basis for this limitation in the claim.
Claim 1 recites the limitation "the sides of the absorbent material" in line 4. There is insufficient antecedent basis for this limitation in the claim. The absorbent material is not defined as having an particular shape or sides. It is possible that a square absorbent material have 4 lateral sides as well as a top side and bottom side. If the leak guards are placed on all sides of the absorbent material, then it is possible that the saliva will not access the absorbent material.
Claim 1 recites the limitations “the opposite axis of the leak guard" and “the same axis as the leak guards” in lines 5 and 6. There is insufficient antecedent basis for these limitations in the claim. There are no axes previously defined in relation to the leak guards, so it is impossible to determine what is the opposite axis. Compounding the issue is that only a single leak guard is referred to in the aforementioned limitation, so it is unclear which of the plurality of leak guards recited at line 4 that the limitation at line 5 refers to. A similar issue of indefiniteness exists in regard to the limitation "the same axis as the leak guards" at line 6 of the claim.
Claim 3 recites the limitation "both sides of the collector 16" in line 2. There is insufficient antecedent basis for this limitation in the claim. The collector has not been defined as having any particular number of sides, and particularly not limited to two sides. As a comment, the wrong reference characters is assigned to the collector which is otherwise denoted as "10."
Claim 5 recites the limitation "the apparatus " in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 5 recites the limitation “wherein has anchoring holes, provided at opposite ends of the length of the apparatus, that can be inserted into the water key of the wind instrument”. The scope of the claim is indeterminate as it is unclear what structure(s) has/have anchoring holes. It appears there is a missing noun. Further, the claim is indefinite as the relationship amongst the “anchoring holes’ of claim 5 and the “anchoring hole” of claim 1 is indeterminate. For example at least, are these two additional anchoring holes separate and distinct from the anchoring hole of claim 1? One of ordinary skill in the art would not be reasonably apprised of the metes and bounds of the claimed invention given the instant Specification and in light of the claimed anchoring holes.
Claim 6 recites the limitation "the liquid" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 7 recites the limitation "the adhesive" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 recites the limitation "”the wind instrument can be any wind instrument such as Trombone, Trumpet, etc." in lines 1-2. The scope of the claim is indeterminate for two reasons (i) the scope of the invention required by the recitation of “any wind instrument” is indeterminate in light of the Specification such that one of ordinary skill would not be apprised of the metes and bounds of the claimed invention because they would not be able to reasonably understand what is required and/or excluded by the unbounded term “any wind instrument” and/or (ii) the scope of the invention required by the recitation of “etc.” is indeterminate in light of the Specification such that one of ordinary skill would not be apprised of the metes and bounds of the claimed invention because they would not be able to reasonably understand what is required and/or excluded by the unbounded term “etc.” such that it includes infinite possibilities.
Claim Rejections - 35 USC § 102
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.
(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.
Claim(s) s 1-8 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Jones (US 4,766,797).
For claim 1, Jones discloses a disposable saliva collector for wind instruments (Figs 1-6) (Cols 2-4), comprising:
polygonal soft and flexible material (44) bounded by straight or curved sides placed under the water key lever (Figs 1-6) (Cols 2-4);
wherein, polygonal soft and flexible material is encompassing an absorbent material (44) and leak guards (28) placed on the sides of the absorbent material;
an anchoring hole (22) on the opposite axis of the leak guard (Fig 5); and
elastic fastening straps (32) and hook and loop fasteners (Col 3 Li 50) on the same axis as the leak guards allowing the disposable saliva collector to be fastened to the wind instruments (Figs 1-6) (Cols 2-4).
For claim 2, Jones discloses the disposable saliva collector as claimed in claim 1, wherein the polygonal soft and flexible material is a rectangular soft and flexible material made up of composite fiber, cloth, or paper, and combinations thereof (absorbent media 44) (Figs 1-6) (Cols 2-4) and the disposable saliva collector is placed under the water key lever (Figs 1-6) (Cols 2-4).
For claim 3, Jones discloses the disposable saliva collector as claimed in claim 1, wherein the absorbent material is on both sides of the collector (especially both and/or all sides of 26 and 28) (Figs 1-6) (Cols 2-4).
For claim 4, Jones discloses the disposable saliva collector as claimed in claim 1, wherein the at least one anchoring hole is provided on the opposite axis of the leak guard (Figs 1-6) (Cols 2-4).
For claim 5, Jones discloses the disposable saliva collector as claimed in claim 1, wherein has anchoring holes, provided at opposite ends of the length of the apparatus, that can be inserted into the water key of the wind instrument (Figs 1-6) (Cols 2-4).
For claim 6, Jones discloses the disposable saliva collector as claimed in claim 1, wherein leak guards prevent the liquid from leaking at the sides (Figs 1-6) (Cols 2-4).
For claim 7, Jones discloses the disposable saliva collector as claimed in claim 1, wherein the adhesive or hook and loop fastener conveniently reversibly secures the disposable saliva collector to the wind instrument while allowing the water key lever to be operated without restricting its normal operation, allowing its full range of operation with minimal or no effect on the quality of sound from the musical instrument (Figs 1-6) (Cols 2-4).
For claim 8, Jones discloses the disposable saliva collector as claimed in claim 1, wherein the wind instrument can be any wind instrument (Figs 1-6) (Cols 2-4).
Conclusion
The cited prior art made of record on the accompanying PTO-892 and not relied upon is considered pertinent to applicant's disclosure, relating to means for hygienically collecting saliva from musical instrument openings intended to discharge saliva and/or the structural equivalents inherently capable thereof.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Jeffrey G. Hoekstra whose telephone number is (571)272-7232. The examiner can normally be reached Monday through Thursday from 5am-3pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles A. Marmor II can be reached at (571)272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Jeffrey G. Hoekstra
Primary Examiner
Art Unit 3791
/JEFFREY G. HOEKSTRA/ Primary Examiner, Art Unit 3791