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 .
Drawings
The amendment to the drawings filed June 26th 2025 is objected to under 35 U.S.C. 132(a) because it introduces new matter into the disclosure. 35 U.S.C. 132(a) states that no amendment shall introduce new matter into the disclosure of the invention. The added material which is not supported by the original disclosure is as follows: the drawings significantly change the size of the lobes and their proportion relative to the rest of the device.
Applicant is required to cancel the new matter in the reply to this Office Action.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 12 and 13 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 12 only broadens the claimed lobe thickness to 0.1 to 3 cm, thus failing to further limit claim 8 from which it depends. Claim 13 recites limitations already recited in claim 8 from which it depends without adding any further limitations. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 non-obviousness.
Claims 1, 3 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Acquanetta (US 4,580,980) in view of Hazen (US 5,324,198).
Regarding claim 1, Acquanetta discloses an apparatus (10; Figure 1) for reducing nasolabial folds (Abstract; claim 1), the apparatus comprising: an upstanding wall (either solid line in diagram below can define the top of one side of the upstanding wall - above the line being the lobe)
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having a first surface configured to face a user's lip (evident from Figure 6), and a second surface possibly facing the upper teeth (interior surface of above wall - the interior surface of the above wall would face at least the root portion of the upper teeth for users having broken-off exterior portions of teeth) the upstanding wall having two lobes (12 and 14 - the lobe can be regarded as the area above either solid line in the above diagram) positioned apart on either side of the upstanding wall, wherein the lobes extend upward from a top portion of the upstanding wall to an area where an upper lip and a gum join (evident from above diagram and Figure 6), wherein the lobes are of a size and thickness to lift a skin between each corner of a nose and each corner of the lip above from the gum, and wherein the first surface bulges outward at locations of the lobes (Figure 3; col. 1, lines 52-57); and a tray having a second surface (surface having teeth - Figure 3) facing occlusal surfaces of lower teeth; and a handle coupled to a front portion of the upstanding wall (the front prosthetic teeth can be used as a handle); and wherein the lobes are of a size and thickness to lift the skin and form a suctional interface with the inner cheek surface through surface tension, thereby modulating facial muscle activation (the above lobes would interact with the cheek of at least some users to define a suctional interface as claimed).
Acquanetta fails to disclose that the upstanding wall and the tray define a third surface having recesses for receiving upper teeth. In an alternative interpretation, the upper wall does not have a second surface facing the upper teeth. The device of Acquanetta is also intended to serve as a denture (Abstract).
Hazen teaches providing a denture with the ability to fit over existing teeth via recesses formed in a tray surface (col. 1, lines 12-13; col. 2, lines 14-16; Figure 5).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the third surface of Acquanetta with form fit recesses for teeth in order to better secure the denture within people having some existing teeth. When provided with the above recesses, the wall would more definitely and directly face at least some of the upper teeth.
Regarding claim 3, each of the lobes spans between first premolar and first molar of the upper teeth (evident from above diagram).
Regarding claim 4, each of the lobes spans between canine and first molar of the upper teeth (evident from above diagram).
Claims 8 and 10-14 are rejected under 35 U.S.C. 103 as being unpatentable over Acquanetta (US 4,580,980) in view of Amernick (US 6,328,756).
Regarding claims 8 and 12-14, Acquanetta discloses an apparatus (10; Figure 1) for reducing nasolabial folds (Abstract; claim 1), the apparatus comprising: an upstanding wall (either solid line in diagram below can define the top of one side of the upstanding wall - above the line being the lobe)
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having a first surface configured to face a user's lip (evident from Figure 6), the upstanding wall having two lobes (12 and 14 - the lobe can be regarded as the area above either solid line in the above diagram) positioned apart on opposing lateral sides of the upstanding wall, wherein the lobes extend upward from a top portion of the upstanding wall to an area where an upper lip and a gum join (evident from above diagram and Figure 6), wherein the lobes are of a size and thickness to lift a skin between each corner of a nose and each corner of the lip above from the gum, and wherein the first surface bulges outward at locations of the lobes (Figure 3; col. 1, lines 52-57); and a handle coupled to a front portion of the upstanding wall (the front prosthetic teeth can be used as a handle).
Acquanetta fails to disclose any specific dimensions for the lobes.
Amernick teaches that an implant (1) for the upper lip area to reduce facial wrinkles (Abstract) can be 0.25-1.3 cm thick with a height of 0.64-1.9 cm (col. 3, lines 60-65).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have provided the lobes of Acquanetta with the above dimensions of Amernick as suitable prior art dimensions for a dental implant to raise an upper lip area and reduce wrinkles.
Regarding claim 10, each of the lobes spans between first premolar and first molar of the upper teeth (evident from above diagram).
Regarding claim 11, each of the lobes spans between canine and first molar of the upper teeth (evident from above diagram).
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Acquanetta (US 4,580,980) in view of Hazen (US 5,324,198), as applied to claim 1 above, and further in view of Sweet (US 2004/0194788).
Regarding claim 2, Acquanetta in view of Hazen fails to disclose a wire positioned within the upstanding wall, wherein the wire is of a substantially same length as the upstanding wall.
Sweet discloses a wire (235; Figure 15) positioned with a wall of a dental prosthetic for the upper lip area where the wire extends substantially along the entire length of the wall (Figure 15) in order to provide a stable structure for the prosthetic while allowing a comfortable outer layer (¶¶ [0047], [0048]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention and in view of Acquanetta to have provided the upstanding wall with a wire as claimed and covered by a softer material in order to provide a stable structure for the prosthetic while maintaining comfort for the wearer.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Acquanetta (US 4,580,980) in view of Amernick (US 6,328,756), as applied to claim 8 above, and further in view of Sweet (US 2004/0194788).
Regarding claim 9, Acquanetta in view of Amernick fails to disclose a wire positioned within the upstanding wall, wherein the wire is of a substantially same length as the upstanding wall.
Sweet discloses a wire (235; Figure 15) positioned with a wall of a dental prosthetic for the upper lip area where the wire extends substantially along the entire length of the wall (Figure 15) in order to provide a stable structure for the prosthetic while allowing a comfortable outer layer (¶¶ [0047], [0048]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention and in view of Acquanetta to have provided the upstanding wall with a wire as claimed and covered by a softer material in order to provide a stable structure for the prosthetic while maintaining comfort for the wearer.
Response to Arguments
Applicant's arguments filed June 26th 2025 have been fully considered but they are not persuasive. Applicant has argued that the lobes of Acquanetta fail to create a suctional interface as claimed. The claimed suctional interface is not described in the specification. It can only be assumed that the lobes of Acquanetta, being of very similar structure and position as Applicant’s lobes (as depicted in the original drawings), are capable of creating this interface. Applicant has argued that Amernick fails to disclose the claimed thickness of the lobes. Applicant has not explained whether or not Amernick discloses a thickness within the claimed range for an upper lip pad and whether or not this thickness would be obvious to combine with the lobes of Acquanetta. Applicant has argued that there is no motivation to combine Acquanetta, Hazen and Amernick to arrive at the claimed invention but has not challenged the motivation/reason(s) to combine given in the above rejection. Therefore, it is respectfully asserted that the claimed invention remains obvious in view of Acquanetta as modified above.
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 Thomas McEvoy whose telephone number is (571) 270-5034 and direct fax number is (571) 270-6034. The examiner can normally be reached on Monday-Friday, 9:00 am – 6:00 pm.
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, please contact the examiner’s supervisor, Elizabeth Houston at (571) 272-7134. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/THOMAS MCEVOY/Primary Examiner, Art Unit 3771