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 .
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 17-18 and 20 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 limitation "said ear cavity" in line 19. There is insufficient antecedent basis for this limitation in the claim. Line 21 also recites “an air cavity”. It is unclear if this air cavity is the same as the inner volume recites in line 6. Claim 18
Claim 20 recites “pushing said push pin to allow said wedgelock earplug assembly to become uncoupled with said ear cavity of said user- wearer and removed or re-adjusted”. Applicant’s specification, however, discloses “The air holes 4 permit air to go into an air cavity when the push pin 1 is fully inserted, thus permitting the wedgelock earplug assembly 110 to lock into the ear cavity of the user-wearer” [0026]. Thus, it is unclear how pushing the earplug uncouples it from the user when pushing the pin causes it to be locked into the ear cavity.
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.
Claims 1-7, 9-16, and 19-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Keady (US 9,138,353).
Regarding claim 1, Keady discloses A wedgelock earplug system to be worn and used to protect the user from hearing loss caused by loud environments (Abstract; Col. 1, lines 54-57) comprising: a wedgelock earplug assembly having; a body (400) with an insertion end as an ear cone (right side of 400 at 460, Figures 4a and 4b); an inner volume (inner volume of 460; Figure 4a); and a distal end comprising a push-pin assembly (420, 410); and wherein said push-pin assembly has a push pin (see unlabeled pin of 420 that pushes membrane 430; Figures 4a and 4b) and is able to move in relation to said ear cone (see Figures 4a and 4b; Col. 5, lines 37-51), said push-pin assembly able to incrementally deform said ear cone for creating a user-preferred fit within an ear cavity of a user-wearer designed to protect hearing of the user-wearer (Figures 4a and 4b; Col. 5, lines 37-51).
Regarding claim 2, Keady discloses wherein said push-pin assembly is able to be manually manipulated by said user-wearer to determine an amount that said ear cone is able to said incrementally deform (Figures 4a and 4b; Col. 5, lines 37-51).
Regarding claim 3, Keady discloses wherein said ear cone is able to be contracted and expanded in relation to said ear cavity of said user-wearer as desired by push and pull movements (Figures 4a and 4b; Col. 5, lines 37-51).
Regarding claim 4, Keady discloses wherein said ear cone comprises silicone (Col. 3, lines 16-22).
Regarding claim 5, Keady discloses wherein said body further comprises air holes (proximal and distal openings of 445).
Regarding claim 6, Keady discloses wherein said ear cone is able to be contracted and expanded in relation to a volume of air in said ear cavity (Figures 4a and 4b; Col. 5, lines 37-51; Col. 3, lines 41-59).
Regarding claim 7, Keady discloses wherein said air holes comprises at least two of said air holes (proximal and distal openings of 445).
Regarding claim 9, Keady discloses wherein said air holes allow air to go into an air cavity (inside of 460) when said push pin is fully inserted, thus permitting said wedgelock earplug assembly to lock into said ear cavity of said user-wearer (Figure 4a; Col. 5, lines 37-51; Col. 3, lines 41-59).
Regarding claims 10-13, Keady discloses wherein said wedgelock earplug assembly further comprises a middle ring (see annotated Figure 4B below), wherein said wedgelock earplug assembly further comprises an outer ring (see annotated Figure 4B below), wherein said middle ring is located relatively adjacent to said outer ring (see annotated Figure 4B below), and wherein said push pin is oriented in series respectively next to said middle ring and then said outer ring, said outer ring adjacent to said ear cavity of said user-wearer when in an in-use condition (see annotated Figure 4B below).
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Regarding claim 14, Keady discloses wherein said in-use condition comprises a position wherein said ear cone is suitably compressed to said ear cavity of said user- wearer (Figure 4a; Col. 3, lines 37-58; Col. 4, lines 32-38).
Regarding claim 15, Keady discloses wherein said in-use condition comprises a comfortable friction-fit (Figure 4a; Col. 3, lines 37-58; Col. 4, lines 32-38; Col. 3, lines 16-22).
Regarding claim 16, Keady discloses wherein said friction-fit is designed to reduce occurrences of said wedgelock earplug assembly losing contact-coupling from said ear cavity of said user-wearer (Figure 4a; Col. 3, lines 37-58; Col. 4, lines 32-38; Col. 3, lines 16-22).
Regarding claim 19, Keady discloses a method of using a wedgelock earplug system (Abstract) comprising the steps of: providing a wedgelock earplug system including wedgelock earplug assembly having; a body (400) with an insertion end as an ear cone (right side of 400 at 460, Figures 4a and 4b); an inner volume (inner volume of 460; Figure 4a); and a distal end comprising a push-pin assembly (420, 410); and wherein said push-pin assembly has a push pin (see unlabeled pin of 420 that pushes membrane 430; Figures 4a and 4b) and is able to move in relation to said ear cone (see Figures 4a and 4b; Col. 5, lines 37-51), said push-pin assembly able to incrementally deform said ear cone for creating a user-preferred fit within an ear cavity of a user-wearer designed to protect hearing of the user-wearer (Figures 4a and 4b; Col. 5, lines 37-51); and inserting each said wedgelock earplug assembly within a respective said ear cavity of said user-wearer (Col. 3, lines 37-58; Col. 4, lines 32-38; Col. 3, lines 16-22); and taking up a gap, via manual manipulation, such that said wedgelock earplug assembly is friction-fit to said ear cavity of said user-wearer (See Figures 4b and 4a where pushing the plate 420 takes up gap in 430; Col. 3, lines 37-58; Col. 4, lines 32-38; Col. 3, lines 16-22; Col. 5, lines 37-51).
Regarding claim 20, Keady discloses pushing said push pin to allow said wedgelock earplug assembly to become uncoupled with said ear cavity of said user- wearer and removed or re-adjusted (see Figures 4a to 4b where pushing the push pin and plate 420 out deflates element 460 thus uncoupling; Col. 3, lines 37-58; Col. 4, lines 32-38; Col. 3, lines 16-22; Col. 5, lines 37-51).
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 8 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Keady (US 9,138,353) in view of Wasserman (US 2,876,767).
Regarding claim 8, Keady discloses that as applied above wherein the air holes comprise at least two air holes. Keady does not disclose exactly seven air holes. Wasserman teaches an inflatable ear plug having at least 7 air holes (81; see Figure 3), although does not teach exactly seven. At the time the invention was made, it would have been an obvious matter of design choice to a person of ordinary skill in the art to provide 7 air holes because Applicant has not disclosed that providing exactly seven air holes versus 2, 15, or any other number of holes provides an advantage, is used for a particular purpose, or solves a stated problem. One of ordinary skill in the art, furthermore, would have expected Keadyand Wasserman and applicant’s invention, to perform equally well with either the two air holes by Keady, more than seven taught by Wasserman, or the claimed seven because each number would perform the same function of inflating the ear cone. Therefore, it would have been prima facie obvious to modify Keady to obtain the invention as specified in claim 8 because such a modification would have been considered a mere design consideration which fails to patentably distinguish over the prior art of Keady. This particular arrangement is deemed to have been known by those skilled in the art since the instant specification and evidence of record fail to attribute any significance (novel or unexpected results) to a particular arrangement. In re Kuhle, 526 F.2d 553,555,188 USPQ 7, 9 (CCPA). Furthermore, it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art. St. Regis Paper Co. v. Bemis Co., 193 USPQ 8.
Regarding claim 17, Keady discloses a wedgelock earplug system to be worn and used to protect the user from hearing loss caused by loud environments (Abstract; Col. 1, lines 54-57) comprising: a wedgelock earplug assembly having; a body (400) with an insertion end as an ear cone (right side of 400 at 460, Figures 4a and 4b); an inner volume (inner volume of 460; Figure 4a); and a distal end comprising a push-pin assembly (420, 410); and wherein said push-pin assembly has a push pin (see unlabeled pin of 420 that pushes membrane 430; Figures 4a and 4b) and is able to move in relation to said ear cone (see Figures 4a and 4b; Col. 5, lines 37-51), said push-pin assembly able to incrementally deform said ear cone for creating a user-preferred fit within an ear cavity of a user-wearer designed to protect hearing of the user-wearer (Figures 4a and 4b; Col. 5, lines 37-51), wherein said push-pin assembly is able to be manually manipulated by said user-wearer to determine an amount that said ear cone is able to said incrementally deform (Figures 4a and 4b; Col. 5, lines 37-51), wherein said ear cone is able to be contracted and expanded in relation to said ear cavity of said user-wearer as desired by push and pull movements (Figures 4a and 4b; Col. 5, lines 37-51), wherein said ear cone comprises silicone (Col. 3, lines 16-22), wherein said body further comprises air holes (proximal and distal openings of 445), wherein said ear cone is able to be contracted and expanded in relation to a volume of air in said ear cavity (Figures 4a and 4b; Col. 5, lines 37-51; Col. 3, lines 41-59), wherein said air holes comprises at least two of said air holes (proximal and distal openings of 445), wherein said air holes allow air to go into an air cavity (inside of 460) when said push pin is fully inserted, thus permitting said wedgelock earplug assembly to lock into said ear cavity of said user-wearer (Figure 4a; Col. 5, lines 37-51; Col. 3, lines 41-59), discloses wherein said wedgelock earplug assembly further comprises a middle ring (see annotated Figure 4B below), wherein said wedgelock earplug assembly further comprises an outer ring (see annotated Figure 4B below), wherein said middle ring is located relatively adjacent to said outer ring (see annotated Figure 4B below), and wherein said push pin is oriented in series respectively next to said middle ring and then said outer ring, said outer ring adjacent to said ear cavity of said user-wearer when in an in-use condition (see annotated Figure 4B below), wherein said in-use condition comprises a position wherein said ear cone is suitably compressed to said ear cavity of said user- wearer (Figure 4a; Col. 3, lines 37-58; Col. 4, lines 32-38), wherein said in-use condition comprises a comfortable friction-fit (Figure 4a; Col. 3, lines 37-58; Col. 4, lines 32-38; Col. 3, lines 16-22), wherein said friction-fit is designed to reduce occurrences of said wedgelock earplug assembly losing contact-coupling from said ear cavity of said user-wearer (Figure 4a; Col. 3, lines 37-58; Col. 4, lines 32-38; Col. 3, lines 16-22).
Keady discloses that as applied above wherein the air holes comprise at least two air holes. Keady does not disclose exactly seven air holes. Wasserman teaches an inflatable ear plug having at least 7 air holes (81; see Figure 3), although does not teach exactly seven. At the time the invention was made, it would have been an obvious matter of design choice to a person of ordinary skill in the art to provide 7 air holes because Applicant has not disclosed that providing exactly seven air holes versus 2, 15, or any other number of holes provides an advantage, is used for a particular purpose, or solves a stated problem. One of ordinary skill in the art, furthermore, would have expected Keady and Wasserman and applicant’s invention, to perform equally well with either the two air holes by Keady, more than seven taught by Wasserman, or the claimed seven because each number would perform the same function of inflating the ear cone. Therefore, it would have been prima facie obvious to modify Keady to obtain the invention as specified in claim 8 because such a modification would have been considered a mere design consideration which fails to patentably distinguish over the prior art of Keady. This particular arrangement is deemed to have been known by those skilled in the art since the instant specification and evidence of record fail to attribute any significance (novel or unexpected results) to a particular arrangement. In re Kuhle, 526 F.2d 553,555,188 USPQ 7, 9 (CCPA). Furthermore, it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art. St. Regis Paper Co. v. Bemis Co., 193 USPQ 8.
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Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Keady (US 9,138,353) in view of Wasserman (US 2,876,767) in view of Cook (US 2020/0405023).
Regarding claim 18, Keady and Wasserman teach that as applied above but do not specify a kit including at least a pair of earplugs, a carrying case, and a set of user instructions. Cook teaches a kit including at least a pair of earplugs (earplugs Fig. 32), a carrying case (bag), and a set of user instructions (see Figure 32 and [0075]). It would have been obvious to one of ordinary skill in the art at the time of filing to provide the device of Keady and Wasserman having case, instructions and pair of earplugs provided as a kit taught by Cook for providing a portable easily transportable device that is easy to use by the user.
Conclusion
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/KARI K RODRIQUEZ/Primary Patent Examiner, Art Unit 3786