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
Claims 5, 6, 11, 12, and 14-16 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected speices, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 06/12/2026.
Applicant's election with traverse of species A and 1 in the reply filed on 06/12/2026 is acknowledged. The traversal is on the ground(s) that none of the claims recite or encompass the training resistance. This is not found persuasive because although not claimed the application contains multiple embodiments of the training resistance and therefore would be a search burden if amendments were made to further claim the different species.
The requirement is still deemed proper and is therefore made FINAL.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “wherein the closed curve forms an ellipse, wherein a deviation of a length of the first and second main axes from one another corresponds to less than 25%, or less than 15%, or less than 10%, or less than 5%” of Claim 3 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
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. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. 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.
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: “securing system” in claims 1-4, 7-10, 13, 17, and 18.
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. Paragraph [0052]:” The securing system 103 includes at least one tension and/or compression component 108, in the present case multiple tension and/or compression component 108, for adjusting a circumference of the closed curve of the securing system 103. In the illustrated example, the securing system 103 includes a BOA closure with a BOA dial and BOA cords as tension and/or compression component 108. In a simple case, the securing system 103 can also be formed as a band, in particular an elastic band such as a headband, or as latch, wherein the tension and/or compression component 108 is then formed as a latching closure.
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 17 and 18 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 17 recites “the coupling elements”, however only at least one coupling element has been claimed in Claim 2 and therefore it is unclear if there are multiple coupling elements or at least one coupling element. In order to proceed, “the coupling elements” has been interpreted as --the at least one coupling element--.
Claim 18 Line 1 recites “the coupling elements” and “ear cups” in line 3, however only at least one coupling element has been claimed in Claim 2 and therefore it is unclear if there are multiple coupling elements or at least one coupling element. In order to proceed, “the coupling elements” has been interpreted as --the at least one coupling element are formed as ear cups--.
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.
(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) 1, 2, 4, and 17 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Casali (US 5984836).
Regarding Claim 1, Casali teaches a device to support a head of a person, the device comprising: at least two lips 50,52 that are placed around a first main axis and around a second main axis oriented substantially perpendicular to the first main axis, the at least two lips form, together with at least one securing system 62,68,76,80,82 a closed curve with a hollow space formed therein for supporting the person's head, wherein the securing system is designed, by matching a circumference of the curve, to form a homogeneously acting positive engagement or frictional engagement between the lips and the person's head (Refer to Fig. 4 Col 6 Lines 10-16:” As can be seen, the harness ring 68 attaches to each of the side pieces 50,52 in two places including the rear and front. The harness ring 68 is attached to the rear ends of the side pieces 50,52 by two bolts 76. When assembled, the bolts 76 extend through holes 62 of the side pieces 50,52 and slots 70 of the harness ring 68. The slots 70 enable the position of the side pieces 50,52 to be adjusted horizontially to fit the head of the user, as described previously.”).
Regarding Claim 2, Casali continues to teach further comprising at least one coupling element 40,44 to couple to a structural body and/or to a training apparatus 10 (Refer to Fig. 1).
Regarding Claim 4, Casali continues to teach wherein the securing system has at least one tension and/or compression component 80,82 to adjust the circumference of the closed curve, and wherein a change in the circumference of the closed curve brought about by the tension and/or compression component 80,82 causes an application of force to the lips 50,52 (Refer to Fig. 4 Col 6 Lines 17-28:” The harness ring 68 attaches to the front of the side pieces 50,52 by two spring loaded pin assemblies 80. Each of the assemblies 80 include a spring 82, a threaded pin 84, a washer 85 and a knob 86, as shown. When assembled, each of the pins 84 extend through holes 72 of the harness ring 68 and are screwed into holes 60 of the side pieces 50,52 in order to attach the harness ring 68 to the side pieces 50,52. The knobs 86 attach to the pins 84 which are utilized to rotate the pins 84 relative to the harness ring 68. The pins 84 being rotated either in or out respectively tightens or loosens the wrap 48 on the head of the user. This enables the head harness 46 to be further adjusted to fit a variety of head sizes.”).
Regarding Claim 17, Casali teaches a combination of a training apparatus 10 and the device according to claim 2 to support a head, wherein the device is adapted to be coupled to the training apparatus via the coupling elements 44 (Refer to Figs. 1&5).
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.
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.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Casali (US 5984836).
Regarding Claim 3, Casali teaches that the closed curve forms an ellipse (Refer to annotated Fig. 4 below) but fails to expressly disclose wherein a deviation of a length of the first and second main axes from one another corresponds to less than 25%, or less than 15%, or less than 10%, or less than 5%. The Office takes the position that Applicant does not provide criticality for less than 25%, 15%, 10% or 5% and that since the closed curve of Casali is meant to be positioned around a user’s head it would have been obvious to come to the claimed ranges through routine experimentation and such ranges lacking criticality over other possible ranges such as that shown by Casali and therefore does not patentably distinguish the invention over prior arts. Refer to MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions [R-01.2024].
PNG
media_image1.png
622
514
media_image1.png
Greyscale
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Casali (US 5984836) in view of Purnell (US 6557186).
Regarding Claim 13, Casali teaches the claimed invention as noted above but fails to teach wherein an ear cup is provided for surrounding an associated ear. Purnell teaches a lightweight head support comprising an ear cup 8. Purnell is analogous with Applicants invention in that they both teach supports on a user’s head and therefore it would have been obvious to modify the device of Casali to comprise ear cups to protect the ears during exercise as taught by Purnell and therefore such modification does not patentably distinguish the invention over prior arts.
Allowable Subject Matter
Claims 7-10 and 19 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.
The following is an examiner’s statement of reasons for allowance: Casali is the closest prior art to the claimed invention but fails to teach the claimed invention as a whole being a device to support a head of a person, the device comprising: at least two lips that are placed around a first main axis and around a second main axis oriented substantially perpendicular to the first main axis, the at least two lips form, together with at least one securing system, a closed curve with a hollow space formed therein for supporting the person's head, wherein the securing system is designed, by matching a circumference of the curve, to form a homogeneously acting positive engagement or frictional engagement between the lips and the person's head and further comprising wherein the lips are grippers that are connected to the securing system, wherein the grippers each have two curved, mutually converging, outer sidewalls that are connected to one another via struts and that are in operative connection with one another such that a force exerted on at least one of the outer sidewalls in a direction of force causes a deflection of the gripper opposite the direction of force to create a positive engagement between the grippers and the person's head. And/or wherein the device is adapted to be coupled to the training apparatus via the at least one coupling element and wherein the at least one coupling element are formed as an ear cups, and wherein the training apparatus is adapted to be coupled to the ear cups via a connecting element such that a coupling axis running along the connecting elements approximately coincides with an auditory canal axis running between the auditory canals.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Refer to attach list of references cited for prior arts pertinent to claimed and unclaimed subject matter.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NYCA T NGUYEN whose telephone number is (571)272-7168. The examiner can normally be reached Mon-Fri 9:00-5:00.
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, Loan Jimenez can be reached at 571-272-4966. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/NYCA T NGUYEN/ Primary Examiner, Art Unit 3784
