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/Restriction
Distinct Products
Restriction to one of the following inventions is required under 35 U.S.C. 121:
I. Claims 1-11, drawn to the multi-folded structure 11c on the breathing tube, classified in B63C 11/16 and A62B 9/022.
II. Claims 12-18, drawn to the multi-folded structure 75c with a mouthpiece, classified in B63C 11/186 and A62B 9/06.
Inventions Group I and Group II are directed to related multi-folded structures. The related inventions are distinct if: (1) the inventions as claimed are either not capable of use together or can have a materially different design, mode of operation, function, or effect; (2) the inventions do not overlap in scope, i.e., are mutually exclusive; and (3) the inventions as claimed are not obvious variants. See MPEP § 806.05(j). In the instant case, the inventions as claimed in Group I are directed to the multi-folded structure in the breathing tube 11 whereas Group II is directed towards the multi-folded structure in the mouthpiece 75. These products are materially different in design and are located within different aspects of the snorkel equipment. Each product is exclusive of each other. Furthermore, the inventions as claimed do not encompass overlapping subject matter and there is nothing of record to show them to be obvious variants.
Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply:
The two separate groups would require different fields of search as Group I corresponds to a breathing tube and Group II corresponds to a mouthpiece. The two groups have also required two separate classifications. This would require searching different subclasses or electronic resources or employing different search strategies.
Applicant is advised that the reply to this requirement to be complete must include (i) an election of an invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention.
The election of an invention may be made with or without traverse. To reserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Species
This application contains claims directed to the following patentably distinct species:
multi-folded structure 75c with a mouthpiece with a mask (Claims 12-15)
multi-folded structure 75c with a mouthpiece without a mask (Claims 12, 16-18)
The species are independent or distinct because they require different structures such as either the breathing tube is directly connected to the mouthpiece or the breathing tube is connected to the mask. In addition, these species are not obvious variants of each other based on the current record.
Applicant is required under 35 U.S.C. 121 to elect a single disclosed species, or a single grouping of patentably indistinct species, for prosecution on the merits to which the claims shall be restricted if no generic claim is finally held to be allowable. Currently, claim 12 is generic.
There is a serious search and/or examination burden for the patentably distinct species as set forth above because at least the following reason(s) apply: these species require searching different configurations of the mouthpiece, wherein the mouthpiece is directly connected to the breathing tube or connected to the mask. It is also unclear whether a mask its needs to be directly connected to the mouthpiece or whether an intermediate piece can be used to connect them, thus requiring the examiner to search both of these fields.
Applicant is advised that the reply to this requirement to be complete must include (i) an election of a species to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected species or grouping of patentably indistinct species, including any claims subsequently added. An argument that a claim is allowable or that all claims are generic is considered nonresponsive unless accompanied by an election.
The election may be made with or without traverse. To preserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the election of species requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable on the elected species or grouping of patentably indistinct species.
Should applicant traverse on the ground that the species, or groupings of patentably indistinct species from which election is required, are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing them to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the species unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other species.
Upon the allowance of a generic claim, applicant will be entitled to consideration of claims to additional species which depend from or otherwise require all the limitations of an allowable generic claim as provided by 37 CFR 1.141.
During a telephone conversation with Yu-Te Chen on 10/28/2025 and subsequent email correspondence on 10/30/2025, a provisional election was made with traverse to prosecute the invention of Group 1, claims 1-11. Applicant argued that the multi-folded structure is shared by elected claims 1-11 and non-elected claims 12-18 and can be a generic feature of snorkel equipment. Examiner disagrees because the two independent claims are to two different multifold structures that are exclusive of each other. The mouthpiece multifold is not on the breathing tube and the breathing tube multifold is not on the mouthpiece. Although they may be configured together, the claims themselves are drawn to the multi-folded structures, of which there are 2 different multi-folded structures. Affirmation of this election must be made by applicant in replying to this Office action. Claims 12-18 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(4) because reference character “15” has been used to designate both the purge valve and the mouthpiece. Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities:
Paragraphs 0028 and 0029 discuss the stretched state of the multi-folded structure in Fig. 3. However, among the Figs. 3A-3E, Figs. 3C and 3E do not show the stretched state of the multi-folded structure. It is unclear which subfigures of Fig. 3 are described in this statement. Examiner suggests referring to the specific subfigures in these paragraphs.
Paragraph 0038 mentions purge valve 15 during the discussion of Fig. 5, however, there is no element 15 labeled in Fig. 5. Paragraph 0042 mentions mouthpiece 15 in Fig. 6 but element 15 has already been assigned to the purge valve. Examiner suggests reassigning elements so that the mouthpiece and purge valve have distinct element numbers which are appropriately reflected in Fig.5 and Fig. 6.
Appropriate correction is required.
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 nonobviousness.
Claims 1-3 and 9-11 are rejected under 35 U.S.C. 103 as being unpatentable over McCarthy (US 20070267012 A1) in view of Xiao (US 20190118917 A1).
Regarding claim 1, McCarthy discloses a multi-folded structure of a snorkel equipment, wherein the multi-folded structure is formed between the upper portion and the lower portion, thereby the breathing tube is capable of being bent by the multi-folded structure (paragraph 0117 "Flexible tube 2 is seen to have connection ends 8 that connect to a lower snorkel portion 10 and an upper snorkel portion 12").
McCarthy is silent regarding the snorkel equipment comprising a breathing tube and a mask, the breathing tube including an upper portion, and a lower portion opposite to the upper portion, the lower portion being connected to the mask and being in fluid communication with an interior of the mask.
However, Xiao teaches snorkel equipment comprising a breathing tube and a mask where the breathing tube includes an upper portion, and a lower portion opposite to the upper portion (Fig. 1, there is a distal end 46 that is the upper portion and 42 which is the lower portion), the lower portion being connected to the mask and being in fluid communication with an interior of the mask (paragraph 0058 "the snorkel device 40 comprises an elongated body 44, which slidably couples to the snorkel coupling 26 on one end 42, and includes an air-permeable enclosure 48 on the distal end", where 42 is the lower portion of a breathing tube that is connected to the mask via 26).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the product of McCarthy to include a mask that is in fluid communication with a breathing tube composed of an upper portion and lower portion. The breathing tube connected to the mask provides an air pathway into and out of the mask (paragraph 0014), creating more efficient airflow than if these components were separate.
Regarding claim 2, modified McCarthy discloses the multi-folded structure of claim 1.
McCarthy further teaches wherein the multi-folded structure has at least one of a continuous zigzag shaped cross section, a continuous rectangular shaped cross section, and a continuous convex-concave shaped cross section (claim 15 "has a predetermined cross sectional shape that is selected from the group consisting of rounded, cornered, ovular, rectangular, triangular, multi-faceted, D-shaped, tear-drop shaped, eye-shaped, elliptical, hydrofoil shaped, airfoil shaped, symmetrical or asymmetrical”).
Regarding claim 3, modified McCarthy discloses the multi-folded structure of claim 2.
McCarthy further teaches wherein the multi-folded structure is made of a soft material, and the soft material has a Shore A hardness of 20-70 (paragraph 0250 "The flexible material within flexible portion 6 may have any desired Shore A hardness. For example, the Shore A hardness may be less than 40, between 40 and 70, greater than 70, greater than 75, greater than 80, greater than 85 and greater than 90") and is selected from silicone, thermoplastic rubber (TPR), thermoplastic polyurethane (TPU), polyvinylchloride (PVC) or combinations thereof (paragraph 0230 "flexible portion 6 made with a suitable thermoplastic material such as thermoplastic PVC, thermoplastic rubber, thermoplastic elastomers, thermoplastic olefins, thermoplastic silicones, EVA, polypropylene, as well as any other suitable material").
Regarding claim 9, modified McCarthy discloses the multi-folded structure of claim 1.
Modified McCarthy is silent regarding wherein the mask comprises: a main frame; a lens connected with the main frame; a waterproof skirt having a portion embedded in the main frame and having a partition to divide the interior of the mask into an upper chamber and a lower chamber, so that when a user puts on the mask, eyes of the user are suitably accommodated in the upper chamber and at least a nose of the user is suitably accommodated in the lower chamber; and a purge valve disposed in a lower portion of the mask and being in one-way fluid communication with the lower chamber.
However, Xiao teaches a mask comprising a main frame (Fig. 1 where the frame is reference 10; paragraph 0048 “the snorkel mask 100 comprises a faceplate 10 affixed to a rigid annular support rib or frame 30”), a lens (Fig. 1 where reference 12 is the lens; paragraph 0049 "the upper portion 14 of the faceplate 10 includes a transparent lens section 12"), and a waterproof skirt embedded in the frame and having a partition to separate the interior into an upper and lower chamber (Fig. 1 where reference 50 is the skirt; paragraph 0054 "the flexible sealing skirt 50 also includes a lateral nose piece section 54 attached to the partition 20 of the faceplate 10. The lateral nose piece section 54 effectively seals off at the partition 20 the upper chamber 22 from the lower chamber 24 when the mask 100 is worn") so that the eyes and at least the nose of a user is accommodated within the mask (paragraph 0049 "the user's mouth and nose are positioned in the lower chamber 24, whereas the user's eyes are positioned in the upper chamber 22") and a purge valve disposed in the lower chamber of the mask and is in one-way communication with the lower chamber (paragraph 0050 "water contained in the lower chamber 16 can be expelled to outside the mask 100 via the purge valve 4 by means of sharp exhalation").
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the product of McCarthy to include a mask that is comprises a main frame, a lens, and a waterproof skirt with a partition creating an upper chamber to accommodate the user’s eyes and a lower chamber to accommodate at least a user’s nose along with a purge valve in the lower chamber. The lens allows the user to see through the mask for improved visibility and the waterproof skirt with a partition creates a clear delineation between the upper and lower chamber (paragraph 0049) and better seal a user’s face with the mask (paragraph 0054). Partitioning the mask into an upper chamber and lower chamber allows for clear positioning of the user’s eyes in the upper chamber and the user’s mouth and nose in the lower chamber (paragraph 0079) and allows the user to utilize both mouth and nasal breathing (paragraph 0002). The purge valve allows the user to expel any liquid within the mask to outside the mask (paragraph 0050), increasing the utility of the breathing tube and mask system.
Regarding claim 10, modified McCarthy discloses the multi-folded structure of claim 9.
Xiao further teaches wherein when the user puts on the mask, the user’s nose and mouth are both accommodated in the lower chamber (paragraph 0049 "the user's mouth and nose are positioned in the lower chamber 24, whereas the user's eyes are positioned in the upper chamber 22”).
Regarding claim 11, modified McCarthy discloses the multi-folded structure of claim 10.
McCarthy further teaches wherein the snorkeling equipment further comprises: a mouthpiece including a connecting end and a user contact end opposite to the connecting end (paragraph 0117 "a mouthpiece 14 having bite tabs 250 is connected to lower portion 10 with a mouthpiece breathing tube 16"), in which the connecting end is connected with the purge valve (paragraph 0117 " lower portion 10 has a lower end 18 that has an opening 20 and a purge valve one-way membrane 22 shown with dotted lines to be recessed within lower end 18"), and the user contact end is adapted to be contained in the mouth of the user (paragraph 0117 "a mouthpiece 14 having bite tabs 250”).
Claims 4 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over McCarthy (US 20070267012 A1) in view of Xiao (US 20190118917 A1) as applied to claim 3 and in further view of Winefordner (US 6079410 A).
Regarding claim 4, modified McCarthy teaches the multi-folded structure of claim 3.
Modified McCarthy is silent wherein the multi-folded structure is telescopic.
However, Winefordner teaches wherein the breathing tube is telescopic (using the Oxford Dictionary definition of telescopic meaning “made of sections that can slide into each other to make the object longer or shorter”, Winefordner teaches the telescopic structure in paragraph 21 "the corrugated tube is fully compressed into the body when the snorkel is in its fully collapsed configuration. When the snorkel is in its deployed configuration, the corrugated tube is fully extended and then curved near the extended mouthpiece end to form a conventional snorkel/mouthpiece configuration").
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the product of McCarthy to include a telescopic folded structure. This allows for the tube to collapse to a significantly smaller size (column 1, lines 60-61) to be stored easier (column 1, line 64) and make diving more pleasurable (column 2, line 1).
Regarding claim 5, modified McCarthy teaches the multi-folded structure of claim 4.
Modified McCarthy is silent wherein the multi-folded structure is disposed between a periphery of a lower end of the upper portion and a periphery of an upper end of the lower portion, thereby when the multi-folded structure is compressed, the lower end of the upper portion and the upper end of the lower portion are adapted to tightly couple with each other.
However, Winefordner teaches wherein the folded structure is disposed between an upper and lower portion and when the folded structure is compressed, the upper and lower portion are adapted to couple with each other (Fig. 1 demonstrates a fully compressed folded structure in which 13 and 16 are tightly coupled with each other and then separated from each other in Fig. 2 when the folded structure is not compressed).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the product of McCarthy to include the multi-folded structure to be disposed between an upper and lower portion and when the folded structure is compressed, the upper and lower portion are adapted with each other. This allows for the product to be stored easier (column 1, line 64) and take up less room while traveling (column 1, line 65).
Claims 6 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over McCarthy (US 20070267012 A1) in view of Xiao (US 20190118917 A1) and Winefordner (US 6079410 A) as applied to claim 5 and in further view of Barone (US 20190225312 A1).
Regarding claim 6, modified McCarthy teaches the multi-folded structure of claim 5.
Modified McCarthy is silent wherein one of the lower end of the upper portion and the upper end of the lower portion has a male fastener and the other thereof has a female fastener to be coupled with the male fastener.
However, Barone teaches a breathing tube where the lower end of the upper portion and the upper end of the lower portion are couples together with a fastener (paragraph 0081 “this consists of a tongue or a bridge of flexible and elastic material that is fastened with one of its two opposite ends respectively to the ventilation tube 4 and the hub 5”, Fig. 14 demonstrates 804 and 805 functioning as the male and female fasteners that are fastened via 110 and couple together the lower end of 4 and the upper end of 5).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the product of McCarthy to include these fasteners between the upper and lower portions. This can secure the upper and lower portions and seal the two portions together in an operating position (paragraph 0009).
Regarding claim 7, modified McCarthy teaches the multi-folded structure of claim 6.
Modified McCarthy is silent wherein at least one of the lower end of the upper portion and the upper end of the lower portion is slightly bendable after the male fastener is coupled with the female fastener.
However, Barone teaches where the lower end of the upper portion is slightly bendable when the fasteners are coupled together (paragraph 0076 "In practice the tube can be brought from an operating position to a resting position and vice versa thanks to the use of a combined translatory and rotary movement"; Fig. 6 and Fig. 7 show the tube being able to be bent and rotated freely after being connected with the fastener).
Thus, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the product of McCarthy to include fasteners to make one of the upper portion or lower portion slightly bendable. This allows the breathing tube to freely swing around an axis of rotation (paragraph 0009), which can increase the flexibility of the device during usage and create more optimal angles during storage or to receive air while the user is underwater.
Allowable Subject Matter
Claim 8 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 8, the closest prior art of record is Hutter (US 20050051164), Pan (US 20180065720), Alberto (IT 202100010400 A1), and Quentin (CA 3058809 A1).
None of the prior art teaches or suggests the different segments on the lower end of the upper portion along with two angle adjustable devices located on opposite sides of the outside of the lower end of the tube where each device is fixed on one end and pivoting onto another end. The prior art also does not suggest the plurality of recesses on the devices and bumps disposed on the second segment that engage the recesses and position the segments with a stepped angle adjustment. While Hutter teaches flexible intermediary pieces in Figs. 3 and 8-9, these pieces cannot perform the stepped angle adjustments as claimed. Sorigue and Alberto teach an angle adjustable breathing tube but do not utilize two angle adjustable devices that are disposed on the outside of the tube. Pan teaches a similar mechanism of angle adjustment using two hinges rotatably attached on a tube that attaches as a cap to a snorkel breathing tube. However, Pan does not teach the plurality of recesses nor a bump to engage the recesses. Given that Pan teaches this structure within a splash guard and not does not teach the claimed recesses and bums, it would not have been obvious to one having ordinary skill in the art to combine the teachings of Pan with art that teaches the recesses and bump in a nonanalagous field.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AKHIL A JAYAN whose telephone number is (571)272-6099. The examiner can normally be reached Monday-Friday 8am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kendra Carter can be reached at 5712729034. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AKHIL A JAYAN/Examiner, Art Unit 3785
/KENDRA D CARTER/Supervisory Patent Examiner, Art Unit 3785