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 13-24 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.
Regarding claims 13-24, the phrase "preferably", “can be”, “optionally”, and “for example” render the claims indefinite because it is unclear whether the limitations following the phrase(s) are part of the claimed invention. See MPEP § 2173.05(d). Any limitation following “preferably”/”can be”/”optionally”/”for example” will not be considered required or positively claimed, for the purposes of examination.
Claim Rejections - 35 USC § 102
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) 13-19, 23, and 24 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Fraden (U.S. Patent Application Publication No. 2005/0209516) hereinafter referred to as Fraden.
Regarding claim 13, Fraden teaches device for measuring physiological parameters which is insertable into an external auditory canal of a human (¶[0043] plug and extension inserted into ear canal), comprising
a hose line for insertion into the external auditory canal of a human (element 13, channel, see Fig. 3) and
a housing connected to the hose line, into which at least a sensor device for measuring a physiological parameter (Figs. 2-3 housing element 2, Figs. 1-2) is integrated,
the hose line having a section at a distal end facing the eardrum when worn (Fig. 3, lightguide element 17), the section having at least one wing element (Fig. 3, sensor extension element 3) with at least one first sensor component for measuring physiological parameters (¶[0043] PPG sensor, Fig. 4),
wherein the wing element has a restoring force (¶[0043] resilient ear plug has a restoring force, Fig. 2, extended ribs with extension element 3), so that, when the device is worn, the at least one first sensor component can be brought into contact with an inner wall of the external auditory canal (¶[0043]) by the restoring force of the wing element (¶[0019] compresses both the first temperature sensor and the optical assembly against ear canal walls, ¶[0043]).
Regarding claim 14, Fraden teaches device according to claim 13.
Fraden further teaches wherein the wing element comprises at least one second sensor component (¶[0065] thermal and optical components including 2 LEDs for each wavelength of light, thermistor), so that, when the device is worn, the at least one second sensor component can be brought into contact with an inner wall of the external auditory canal by the restoring force the wing element (¶[0019] compresses both the first temperature sensor and the optical assembly against ear canal walls, ¶[0043]).
Regarding claim 15, Fraden teaches device according to claim 13.
Fraden further teaches additionally comprising at least one third sensor component at the distal end of the section (¶[0065] thermal and optical components including 2 LEDs for each wavelength of light, thermistor), wherein, when the device is worn, the at least one third sensor component can be stably positioned in the external auditory canal (¶[0019] compresses both the first temperature sensor and the optical assembly against ear canal walls, ¶[0043]).
Regarding claim 16, Fraden teaches device according to claim 13.
Fraden further teaches additionally comprising an elastic umbrella for positioning in the external auditory canal (Fig. 3, extending ribs element 7 form an umbrella), wherein the elastic umbrella is detachably connected to the section (Fig. 2, detachable connection to the remainder of the earpiece).
Regarding claim 17, Fraden teaches the device according to claim 16.
Fraden further teaches wherein the elastic umbrella comprises a recess adapted in size and shape to receive the section therein (Fig. 2, recesses element 8), thereby connecting the elastic umbrella with the section in a detachable manner (Fig. 3 showing assembly).
Regarding claim 18, Fraden teaches device according to claim 16.
Fraden further teaches wherein the elastic umbrella comprises one or more holes (Fig. 13, channel), so that, when the device is worn, the at least one first sensor component can be brought into contact with an inner wall of the external auditory canal through the one or more holes (Fig. 3, thermocouple).
Regarding claim 19, Fraden teaches device according to claim 16.
Fraden further teaches wherein the elastic umbrella has one or more depressions with a residual material with a low material thickness (Fig. 3, edge of ribs 7 are lower thickness), so that, when the device is worn, the at least one first sensor component can be brought into measuring connection to an inner wall of the external auditory canal via the residual material of the one or more depressions (Fig. 2, wing element 3 at edge of element 8, in contact with auditory canal).
Regarding claim 23, Fraden teaches device according to claim 13.
Fraden further teaches wherein the at least one wing element essentially consists of an inelastic material (¶[0050] glass or polycarbonate resin) and comprises at least one spring element for providing a restoring force (¶[0047] probe cover element 31 is conforming and therefore provides a restoring force as it resiliently conforms to a contour).
Regarding claim 24, the claim is directed to a method comprising substantially the same subject matter as claim 13 and is rejected under substantially the same sections of Fraden.
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.
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) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fraden.
Regarding claim 20, Fraden teaches device according to claim 19.
Fraden further teaches the at least one first sensor component is at least one light sensor (¶[0065] thermal and optical components including 2 LEDs for each wavelength of light, thermistor).
Fraden, in another embodiment, further teaches wherein the residual material of the one or more depressions is translucent (¶[0054]).
It would have been obvious to one of ordinary skill in the art at the time of filing to modify the first embodiment of Fraden to use a transparent ear plug, as taught in the second embodiment of Fraden, because it simplifies the design and use of the device (Fraden ¶[0054]).
Claim(s) 21-22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Fraden as applied to claim 13 above, and further in view of Aase et al. (U.S. Patent Application Publication No. 2019/0230450) hereinafter referred to as Aase.
Regarding claim 21, Fraden teaches device according to claim 13.
Fraden does not teach at least two wing elements.
Attention is drawn to the Aase reference, which teaches at least two wing elements (Fig. 14, clip tip comprises a plurality of flexi-fingers/petals, ¶[0024]).
It would have been obvious to one of ordinary skill in the art at the time of filing to modify the wing of Fraden to include a plurality of wings, as taught by Aase because Aase teaches that the flexi-fingers act as a securing mechanism ensuring comfortable extended wearing (Aase ¶[0087]).
Regarding claim 22, Fraden teaches device according to claim 13.
Fraden does not teach wherein the at least one wing element essentially consists of an elastic material.
Attention is drawn to the Aase reference, which teaches a wing element (Fig. 14, clip tip comprises a plurality of flexi-fingers/petals, ¶[0024]) consisting essentially of an elastic material (¶[0087]).
It would have been obvious to one of ordinary skill in the art at the time of filing to modify the wing of Fraden to include the wing consisting essentially of an elastic material, as taught by Aase because Aase teaches that the flexi-fingers act as a securing mechanism ensuring comfortable extended wearing (Aase ¶[0087]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
U.S. patent Application Publication No. 2021/0000373 to Prevoir et al. teaches sensors in a resilient umbrella structure comprising a winged shape.
U.S. Patent Application Publication No. 2017/0188126 to Hirano teaches an embodiment with a spring.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMANDA L STEINBERG whose telephone number is (303)297-4783. The examiner can normally be reached Mon-Fri 8-4.
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, Unsu Jung can be reached at (571) 272-8506. 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.
/AMANDA L STEINBERG/Examiner, Art Unit 3792
Prosecution Insights