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 .
This Office Action is responsive to the Request for Reconsideration filed 19 August 2025. Claims 26-38 are currently under consideration. No claims have been amended, canceled, or added.
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.
Claims 26 and 35 are rejected under 35 U.S.C. 103 as being unpatentable over Kutsko et al. (U.S. Provisional Application No. 62/770,204; provisional priority application of U.S. No. 11,102,341 B1; hereinafter known as “Kutsko”), in view of Zhang et al. (TWM582353 U; hereinafter known as “Zhang”).
Regarding claim 26, Kutsko discloses a kit (Abstract; Figs. 1, 8, 9, 13, 20) comprising: (a) an apparatus for exercising the voice of a user, wherein the apparatus is composed of silicone formed as a hollow cylinder ([0030]; [0089]; cylindrical straw comprising silicone; capable of being used in such a manner), the outer diameter of said hollow cylinder is dimensioned to be gripped by said user between a thumb and index finger of said user at a location away from a distal end of said hollow cylinder and the distal end is dimensioned to be inserted into the mouth of said user (drinking straws are capable of being used in such a manner); and (b) a container capable of storing two or more of said apparatuses ([0030]; [0040]; [0045]; [0056]-[0057]; [0083]-[0084]; the case can include multiple chambers for storing straws). To the extent that Kutsko fails to expressly teach that the kit comprises two or more straws, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make such a modification. As noted, Kutsko does expressly teach multiple chambers for storing straws. Kutsko also teaches that the chambers can accommodate a variety of straws ([0030]) and that straws (plural) are referred to throughout the disclosure and in conjunction with the various embodiments, as well as that the embodiments can be compatible with more than one type of straw. Kutsko also contemplates the need for cleaning a straw ([0037]-[0038]). Thus, Kutsko clearly contemplates the use of multiple straws and their storage; accordingly, it would have been obvious to have the kit include multiple straws in order to utilize the multiple storage chambers and to allow for use of an additional straw if the primary straw is dirty. Kutsko fails to expressly disclose that the silicone straws are a unitary piece of silicone. Zhang discloses a silicone straw that is formed as a hollow cylinder and is composed of a unitary piece of silicone (“the tube body is made of liquid silicone rubber integrally formed and cured”). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of Kutsko so that each straw is composed of a unitary piece of silicone, as taught by Zhang, as this is a known effective method for manufacturing such straws. Zhang further teaches that such manufacturing provides properties of bendability, non-toxicity, resistance to high temperatures, freedom from heavy metal residues, and convenience for cleaning.
Regarding claim 35, the combination of Kutsko and Zhang discloses the invention as claimed, see rejection supra, and Kutsko further discloses that said kit further comprises a brush ([0038]; rod with bristles).
Claims 27-32 and 34 are rejected under 35 U.S.C. 103 as being unpatentable over Kutsko and Zhang as applied to claim 26 above, and further in view of Pepper (U.S. Pub. No. 2019/0313820 A1).
Regarding claims 27-29, the combination of Kutsko and Zhang discloses the invention as claimed, see rejection supra, but fails to expressly disclose the inner diameter of its apparatuses and thus does not teach that at least one of said apparatuses has an inner diameter of less than 8 mm, less than 5 mm, or between 2 mm and 4 mm. Pepper discloses a similar apparatus (Abstract) comprising an inner diameter of less than 8 mm in order to suit different intended purposes ([0049]-[0051]; e.g., 7 mm or 2 mm). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Kutsko and Zhang with the dimensions taught by Pepper in order to suit an intended purpose.
Regarding claims 30-32, the combination of Kutsko and Zhang discloses the invention as claimed, see rejection supra, but fails to expressly disclose the inner diameter of its apparatuses and thus does not teach that each of said apparatuses has an inner diameter of less than 8 mm, less than 5 mm, or between 2 mm and 4 mm. Pepper discloses a similar apparatus (Abstract) comprising an inner diameter of less than 8 mm in order to suit different intended purposes ([0049]-[0051]; e.g., 7 mm or 2 mm). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Kutsko and Zhang with the dimensions taught by Pepper in order to suit an intended purpose. It is noted that Kutsko teaches that its container comprises a plurality of the same chambers for storing the straws, so these straws are the same size.
Regarding claim 34, the combination of Kutsko and Zhang discloses the invention as claimed, see rejection supra, but fails to expressly disclose the outer diameter of its apparatuses and thus does not teach that each of said apparatuses has an outer diameter of from 3 mm to 8 mm. Pepper discloses a similar apparatus (Abstract) comprising an outer diameter of from 3 mm to 8 mm in order to suit different intended purposes ([0049]-[0051]; e.g., 3 mm). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Kutsko and Zhang with the dimensions taught by Pepper in order to suit different intended purposes. It is noted that Kutsko teaches that its container comprises a plurality of the same chambers for storing the straws, so these straws are the same size.
Claims 36-38 are rejected under 35 U.S.C. 103 as being unpatentable over Kutsko and Zhang as applied to claims 26 and 35 above, and further in view of Chang et al. (U.S. Pub. No. 2015/0190004 A1; hereinafter known as “Chang”).
Regarding claim 36, the combination of Kutsko and Zhang discloses the invention as claimed, see rejection supra, but fails to expressly disclose that said brush is a thin bristle wire brush. Chang discloses a similar kit (Abstract) that includes a thin bristle wire brush in order to properly clean the apparatus ([0025]-[0027]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Kutsko and Zhang with the brush taught by Chang in order to properly clean the apparatuses.
Regarding claim 37, the combination of Kutsko and Zhang discloses the invention as claimed, see rejection supra, but fails to disclose that a portion of the outer diameter of each of said apparatuses has a roughened surface for said gripping by user. Chang discloses a similar apparatus (Abstract) comprising a roughened surface 19 on the outer diameter in order to enable a user to firmly hold the apparatus and improve aesthetics (Figs. 1, 7; [0031]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Kutsko and Zhang with a roughened outer surface on the apparatuses, as taught by Chang, in order to enable a user to firmly hold the apparatus and improve aesthetics.
Regarding claim 38, the combination of Kutsko, Zhang, and Chang discloses the invention as claimed, see rejection supra, and Chang further discloses that the roughened portion comprises one or more concentric scored grips that extend more than 90% around the periphery of the hollow cylinders in a plane perpendicular to the longitudinal axis of said hollow cylinder ([0031]).
Allowable Subject Matter
Claim 33 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: none of the prior art of record teaches or reasonably suggests such a length range for such a kit of apparatuses. Reusable straws are typically much longer than the recited range.
Response to Arguments
Applicant's arguments regarding the rejections under 35 U.S.C. 103 have been fully considered but they are not persuasive. Applicant argues that Zhang fails to teach a straw composed of a unitary piece of silicone; instead, Applicant contends that Zhang’s straw comprises a tube body and a protective cover, thus comprising multiple pieces/components. Applicant also contends that Zhang’s entire purpose is to provide a straw having a protective cover that protects the mouthpiece, and so the proposed combination would change the principle of operation of Zhang.
The examiner disagrees that the proposed combination fails to render obvious the present claims. Certainly, Zhang does teach the protective cover discussed by Applicant, but this cover is not relevant to the proposed combination. As cited in this Office action and the previous Office action, as well as admitted by Applicant, Zhang expressly teaches that the tubular body of the straw is made of integrally formed silicone rubber. The proposed combination does not seek to replace the straws of Kutsko with the straw taught by Zhang; it merely adopts this manufacturing technique taught by Zhang. Thus, the proposed combination does not include a protective cover and also does not change the principle of operation of Zhang.
Conclusion
THIS ACTION IS MADE FINAL. 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 THADDEUS B COX whose telephone number is (571)270-5132. The examiner can normally be reached M-F 9am-6pm.
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/THADDEUS B COX/Primary Examiner, Art Unit 3791