Status under America Invents Act
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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 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.
Rejections based on Prior Art
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.
Claims 1-4, 8, 10, 17 and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Greenwald (US D826,414).
Like applicant, Greenwald discloses a dinosaur shaped teething device having a three-dimensional body with a protruding tail member configured to act as a bite block when inserted in a user’s mouth. The width of the protruding tail member varies and is different than a thickness (note Figure 4) and is capable of propping the user’s mouth open at different positions. In regard to claim 2, note the surface (“first surface”) of the spines on the back of dinosaur capable of contacting an exterior portion of the user’s mouth when the dinosaur tail protruding member is inserted into the user’s mouth. In regard to claim 3, there are numerous “second surfaces” that extend from the Greenwald dinosaur back spines (“first surface”) at an angle of less than 90 degrees. In regard to claim 17, note the channel/opening in the Greenwald dinosaur body.
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.
Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Greenwald (US D826,414) in view of Marcus et al (US 2009/0069848).
In regard to claims 1, 18, and 20, to the limited extent that one were to determine that Greenwald does not implicitly require that the disclosed teething device is made of a “substantially robust and flexible material,” then Marcus et al is disclosed as teaching that it is known to make such teething device of flexible materials including food grade silicone (note paragraph [0030]). To have constructed the Greenwald dinosaur teething device of a flexible food grade silicone as taught by Marcus et al to be a proper material for such teething device would have been obvious to of ordinary skill in the art before the effective filing date of the claimed invention.
In regard to the particular dimensions set forth in claims 5, 6, 7, 11 and 12, one of ordinary skill in the art would have found such dimensions obvious in the construction of the Greenwald dinosaur teething device so that the dinosaur teething device could be positioned within the user’s mouth and the occlusal biting surfaces of the user’s teeth/gums.
In regard to claim 9, the construction of the Greenwald teething device of material that is flexible and does not cause injury to the user would have been obvious to one of ordinary skill in the art. Moreover, it is noted that the claimed less than hardness is inherent/obvious in view of the materials taught by Marcus et al (see paragraph [0030]).
In regard to claim 11, note the aperture in the center of the Greenwald dinosaur body.
In regard to claims 13 and 14, note paragraph [0029] of Marcus et al.
In regard to claims 18 and 19, Marcus et al teach making such teething device vibratory and with lights in order to simulate the user (paragraph [0039]). To have provided the Greenwald dinosaur teething device with a vibrator mechanism and a light as taught by Marcus et al in order to stimulate the user would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Ralph Lewis whose telephone number is (571)272-4712. The examiner can normally be reached Monday-Friday from 9AM-4PM.
If attempts to reach the examiner by telephone are unsuccessful, please contact the examiner’s supervisor, Cris Rodriguez, at (571) 272-4964. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RALPH A LEWIS/Primary Examiner, Art Unit 3772 (571) 272-4712