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 .
Information Disclosure Statement
The information disclosure statement filed 25 March 2025 attempts to cite two non-patent literature references, citing “All Office Actions” in two different US Patent applications. In each of these applications there have not been any Office Actions issued, thus these citations have not been considered.
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 sensor-cooperation unit” in claim 1 (corresponds to a permanent magnet, a dielectric object, reflective object; see page 4 lines 7-25), “a spring unit” in claim 1 (corresponds to a leaf spring, spring rod, two spring rods; see page 5 line 16 to page 6 line 6), “a vibration-cancellation unit” in claim 21 (corresponds to a mass and springs; see page 13 line 26 to page 14 line 5).
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 20-21 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 20 recites the limitation "the motor drive signal" in line 2. There is insufficient antecedent basis for this limitation in the claim.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1, 3, 6, 14-16, and 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Miller, US 2015/0202030 in view of Ziegler et al., US 2012/0019079.
Regarding claim 1, Miller discloses a personal hygiene device (toothbrush, Abstract) comprising: a handle having a longitudinal extension and structured and configured to be grasped by a user (housing of handle not shown, Abstract); a motorized treatment head structured and configured to be pressed against a body portion of a user (38, configured to be pressed against teeth as a toothbrush) wherein the treatment head is pivotably connected to the handle (about pivot point 52, Figure 1, paragraph [0015]) so that applying a treatment force (54) against the treatment head at least a treatment direction leads to a pivoting of the treatment head relative to the handle about a pivot axis (paragraph [0015]); a sensor for measuring a measurement variable (58, paragraph [0016], measures force or load during brushing) and a sensor-cooperation unit for defining or influencing the measurement variable in dependence on a relative position of the sensor and the sensor-cooperation unit (magnet 56, Neodymium, paragraph [0016]), wherein the sensor is fixedly secured with respect to one of the handle and treatment head, and the sensor-cooperation unit is fixedly secured with respect to the other one of the handle and treatment head (paragraph [0016] and Figure 2 describes the sensor 58 mounted to the frame of the handle with the sensor-cooperation unit magnet 56 being secured to the treatment head); and a spring unit (includes leaf spring 40) for defining a rest position of the treatment head (rest positions shown in Figure 1). Regarding claim 3, the spring unit comprises at least a first rod-like spring element (40) that extends essentially along the longitudinal extension of the handle between a support structure disposed within the handle and the handle (paragraph [0012], mounted between the housing not shown and a support structure 16, Figure 2), wherein the support structure is connected to the treatment head so that the support structure pivots around the pivot axis together with the treatment head (Figure 2). Regarding claim 6, the at least first rod-like spring element has an essentially rectangular cross-sectional shape (in that spring 40 is a leaf spring, paragraph [0013]). Regarding claim 14, the sensor comprises a Hall sensor (58, paragraph [0016]). Regarding claim 15, the sensor-cooperation unit comprises a permanent magnet (Neodymium, paragraph [0016]). Regarding claim 16, the support structure comprises a motor carrier (not shown, component within handle housing where the motor rests or is provided physical support, paragraph [0012] describes the motor within the handle). Regarding claim 20, the device comprises a spring-mass resonance motor having a first resonance frequency of a motor drive signal (motor 11 is designed as part of a spring-mass resonance system, back-and-forth action, the motion output by the motor has a frequency, see Abstract, paragraphs [0001] and [0015]).
Miller does not disclose any properties of the leaf spring (40), including a first or second spring constant. The spring of Miller (14, 40) elastically twists or rotates during use as supported to convert the direction of the output of the motor (paragraph [0006]).
Like Miller, Ziegler et al. disclose a personal hygiene device (toothbrush or shaver, paragraph 0030) comprising: a handle having a longitudinal extension and structured and configured to be grasped by a user (housing, 2 extends longitudinally in Figures 1-3; see also paragraph 0015 that states that a user grips the housing); a motorized treatment head structured and configured to be pressed against a body portion of a user (not shown, paragraphs 0062-0063, head configured to be pressed against teeth). Regarding claim 1, Ziegler et al. teach that the device has a spring unit (5, 6, 7, or 20), the spring unit has a first spring constant in the treatment direction and a second spring constant in a lateral direction perpendicular to the treatment direction, wherein the second spring constant is at least about twice as high as the first spring constant (by factors of 5, 10, 20, 50 or even 100 in paragraphs [0019] or [0021]) in order to provide a rigid support across different perpendicular directions of the spring (paragraph [0023]).
It would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify the leaf spring or spring unit of Miller so that it has first and second spring constants, the second spring constant in a lateral direction perpendicular to the treatment direction of the first spring constant, wherein the second spring constant is at least twice as high as the first, as taught by Ziegler et al., so that the spring is designed and supported to flex or bias to a greater in one direction while remaining more rigid in the other direction.
Claim(s) 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Miller, US 2015/0202030 and Ziegler et al., US 2012/0019079 in view of Lev et al., US 6,952,855.
Miller and Ziegler et al. disclose all elements previously discussed above, however fails to disclose that the treatment head is mounted for driven oscillatory rotation around a rotation axis that is substantially perpendicular to the longitudinal extension of the handle.
Lev et al. teach a personal hygiene device (toothbrush, Title) wherein the treatment head (18) is mounted for driven oscillatory rotation around a rotation axis that is substantially perpendicular to the longitudinal extension of the handle (column 4 lines 2-6, Figures 1 and 5; via motor 14, drive 24, and mechanical system shown in many components in Figure 5). Lev et al. also teach that it is known for a treatment/toothbrush head to be oscillated in a rotational manner to provide motion to aid in cleaning teeth (column 1 lines 16-19).
It would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify the hygiene device of Miller and Ziegler et al. so that the head that is mounted for driven oscillatory rotation about a rotation axis perpendicular to the longitudinal extension of the handle, as taught by Lev et al., so that the head is driven in an oscillatory manner to provide motion to the treatment head to improve teeth cleaning.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-16 and 19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. US 10,893,746 (‘746) in view of Lev et al., US 6,952,855.
Claims 1 of ‘746 recite all of the limitations found in claim 1 of the present application, except do not include (in italics) the handle having “a longitudinal extension and structured and configured” to be grasped by a user or that the personal hygiene device comprises “a motorized treatment head”. Instead, claim 1 of ‘746 recites that “a handle intended for” being grasped by a user and recites a general “treatment head”. It is well known that handles have a longitudinal dimension and by definition are structured and configured to be grasped by a user (www.merriam-webster.com defines handle as “a part that is designed especially to be grasped by the hand”). Further, claim 1 of ‘746 is not verbatim in the recitation of the sensor and sensor cooperation unit, however does include the same limitations of the sensor and sensor cooperation unit of the present application (the language is written in a different order). Claim 1 of ‘746 also includes the limitations found in claims 2 and 14-15 of the present application. Claims 2-12 of ‘746 correspond to and are near verbatim to dependent claims 3-13, 16, and 19 of the present application (claim 2 of ‘746 corresponds to claim 3, claim 3 of ‘746 corresponds to claim 4, claim 4 of ‘746 corresponds to claim 5, claim 5 of ‘746 corresponds to claim 6, claim 6 of ‘746 corresponds to claim 7, claim 7 of ‘746 corresponds to claim 8, claim 8 of ‘746 corresponds to claim 9, claim 9 of ‘746 corresponds to claim 10, claim 10 of ‘746 corresponds to claim 11, claim 11 of ‘746 corresponds to claim 12, claim 12 of ‘746 corresponds to claim 13, claim 2 of ‘746 includes the limitation of claim 16, claim 9 of ‘746 includes the limitation of claim 19).
Lev et al. teach a personal hygiene device (toothbrush) that includes a handle having a longitudinal extension and structured and configured to be grasped by a user (13, Figure 1, the length of handle 13 is the longitudinal extension) and teach that it is known for a treatment/toothbrush head to be motorized to provide motion to aid in cleaning teeth (column 1 lines 16-19).
It would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify the hygiene device of claim 1 of ‘746 so that the handle has a longitudinal extension and also to have a head that is motorized, as taught by Lev et al., so that a user can easily grasp the hygiene device and also so that the head is driven to provide motion to the treatment head to improve teeth cleaning.
Allowable Subject Matter
Claims 17-18 are 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 and taking into account the nonstatutory double patenting rejection.
Claim 21 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include 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: As best understood, none of the prior art made of record discloses, teaches, or suggests the invention of claims 17-18 or 21. Note that US 2009/0188058 to Schwarz-Hartmann et al. teach an personal hygiene device that includes many of the aspects of the claimed invention and includes a spring unit (16) that has a first spring constant in the treatment direction and a second spring constant in a lateral direction perpendicular to the treatment direction, the second spring constant is at least 25% as high as the first spring constant (see paragraphs [0004]-[0005], [0038]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Laura C Guidotti whose telephone number is (571)272-1272. The examiner can normally be reached typically M-F, 6am-9am, 10am-4:30pm.
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/LAURA C GUIDOTTI/Primary Examiner, Art Unit 3723
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