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 . 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.
Claim Objections
Claim 13 is objected to because of the following informalities: “a U-shaped basic shape configured for insertion in a mouth; a plate segment configured to partially cover rows of teeth” should be amended to recite --a U-shaped plate segment configured for insertion into a mouth and to partially cover rows of teeth--.
Appropriate correction is required.
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.
Claims 13-16, 19, 21-22 and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Farrell (US Patent No. 5,259,762) in view of Van Der Velden (US 2010/0137756 A1).
Referring to claim 13: Farrell teaches a logopaedic treatment device (see figure 1, #10) comprising: a U-shaped basic shape configured for insertion in a mouth (see figure 1; column 4, lines 1-3); a plate segment (see figures 1-2, #12) configured to partially cover rows of teeth of an upper and lower jaw in the mouth (see figure 15); and at least one bite strip (see figure 1, #11) configured for the teeth of the upper and lower jaw to bite on (see figure 15), wherein the plate segment comprises an arrangement of a plurality of projections (see figures 1 and 16, #28; column 5, line 60-column 6, line 4) configured to stimulate gums of the mouth (see column 5, lines 60-68), wherein the bite strip defines a bite-on plane (see figures 1 and 15-16), and wherein projections of the plurality of projections are arranged both above and below the bite-on plane (see figures 1 and 15-16). Farrell is silent to the plurality of projections being located on a side of the plate segment facing away from the teeth to stimulate a lip of the mouth.
Van Der Velden teaches a logopaedic treatment device for training lips and facial muscles (see paragraph [0001]) comprising: a U-shaped basic shape configured for insertion in a mouth (see figure 4); a plate segment configured to partially cover rows of teeth; and at least one bite strip configured for the teeth to bite on (see figures 1 and 4), wherein the plate segment comprises, on a side facing away from the teeth, an arrangement of a plurality of projections (see figure 4, #5) configured to stimulate a lip of the mouth, wherein the bite strip defines a bite-on plane (see paragraphs [0013]-[0014]; claims 8-10). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to duplicate the projections of Farrell on the plate segment facing away from the teeth like taught by Van Der Velden in order to aid in providing a massaging effect to the lips (see Velden paragraphs [0007] and [0013]-[0014]).
Referring to claim 14: Farrell, as modified by Van Der Velden, further teaches the plurality of projections of the plate segment comprises at least 5 projections configured to stimulate the lip (see Farrell figure 1; wherein when modified by Van Der Velden to duplicate the projections, #28, on the plate segment facing away from the teeth there is clearly at least 5 projections).
Referring to claim 15: Farrell, as modified by Van Der Velden, further teaches the plurality of projections have a cylindrical or frustoconical shape (see Farrell figures 16-18; column 5, lines 60-68). Farrell, as modified by Van Der Velden, is silent to the plurality of projections having a height of greater than 0.5 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 projections of Farrell, as modified by Van Der Velden, to have a height of greater than 0.5 mm since it has been held that “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case, the device of Farrell, as modified by Van Der Velden, would not operate different with the claimed projection height and since the projections are intended to massage the lip of the user the device would function appropriately having the claimed height. Furthermore, it appears that applicant places no criticality on the range claimed, indicating simply that the projections height “can preferably have a height of at least 0.5 mm, preferably greater than 2.0 mm” (specification paragraph [0014] as amended).
Referring to claim 16: Farrell, as modified by Van Der Velden above, does not explicitly teach the plurality of projections comprise movable elements. However, Van Der Velden further teaches the plurality of projections are constructed of a softer material than the material of the remaining material of the device (see claim 11). 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 projections of Farrell, as modified by van Der Velden, to be constructed of a softer material like taught by Van Der Velden in order to be flexible bristle like movable projection in order to reduce occurrence of discomfort of the projections while maintain lip stimulation.
Referring to claim 19: Farrell, as modified by Van Der Velden above, is silent to the plurality of projections comprise an active substance, a flavoring substance, or an indicator substance. However, Van Der Velden further teaches the plurality of projections including agents for stimulating the lip muscles (see paragraphs [0013]-[0014] and [0030]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the projections of Farrell, as modified by Van Der Velden with an active substance or agent like taught by Van Der Velden in order to aid in stimulating the lip muscles (see Van Der Velden paragraphs [0013]-[0014] and [0030]).
Referring to claim 21: Farrell further teaches the logopaedic treatment device is a monolithic single piece (see figure 1).
Referring to claim 22: Farrell, as modified by Van Der Velden, is silent to the logopaedic treatment device has a modular structure, wherein the plurality of projections are interchangeably arranged on the plate segment, however, 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 device of Farrell, as modified by Van Der Velden, to a modular structure with the plurality of projections being interchangeably arranged on the plate segment in order to allow the user to selectively adjust area of desired stimulation.
Referring to claim 24: Farrell further teaches the plate segment, beyond the plurality of projections and on a side facing the teeth, has regions with different surface roughness (see figures 1 and 16-18; wherein the surface facing the teeth includes a plurality of projections resulting in a different surface roughness than the surfaces without projections).
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Farrell in view of Van Der Velden, as applied to claim 13 above, in view of Lowe et al. (US 2014/0272761 A1) (Lowe).
Referring to claim 17: Farrell, as modified by Van Der Velden, is silent to the plurality of projections comprise sensor elements or actuators. Lowe teaches an oral massaging device for positioning within the oral cavity (see abstract), the device comprising a plurality of projections comprising actuators (see figures 6A-D; paragraphs [0091], [0117]-[0118]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide projections of Farrell, as modified by Van Der Velden, with one or more actuators like taught by Lowe in order to provide a vibratory effect to the projections so as to enhance the massaging stimulation of the tissue.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Farrell in view of Van Der Velden, as applied to claim 13 above, in view of Ochel (US Patent No. 5,970,981).
Referring to claim 18: Farrell, as modified by Van Der Velden, is silent to a retaining surface configured for clamping or latching retention of an active substance depot or flavoring substance depot. Ochel teaches an oral appliance comprising a U-shaped basic shape (see figure 3) configured for insertion in a mouth including a retaining surface (see figure 4, #122) configured for clamping or latching retention of an active substance depot or flavoring substance depot (see figure 4, #124; column 4, lines 11-36). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the device of Farrell, as modified by Van Der Velden, with retaining surface flavoring substance depot like taught by Ochel in order to aid in masking the plastic/silicon taste of the device during use.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Farrell in view of Van Der Velden, as applied to claim 13 above, in view of Mizrahi (US 2012/0301846 A1).
Referring to claim 20: Farrell further teaches the device may be made of different sizes so as to suit a range of mouth sizes (see column 6, lines 42-44). Farrell, as modified by Van Der Velden, is silent to a telescopic extension configured to adapt the logopaedic treatment device to a size of the teeth of the mouth. Mizrahi teaches an oral treatment device comprising a telescopic mechanism in the form of a telescopic extension (see figure 7, #38) for adjusting the device in order to fit the mouth dimensions of a patient (see paragraphs [0058]-[0059]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the device of Farrell, as modified by Van Der Velden, with a telescopic extension like taught by Mizrahi in order to allow for adjusting the device in order to fit the mouth dimensions of a patient (see Mizrahi paragraphs [0058]-[0059]).
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over Farrell in view of Van Der Velden, as applied to claim 13 above, in view of Turkbas (US 2019/0209911 A1).
Referring to claim 23: Farrell, as modified by Van Der Velden, further teaches the logopaedic treatment device being formed of a flexible material such as latex rubber, silicone or PVC material (see column 3, lines 27-30; column 6, lines 1-5). Farrell, as modified by Van Der Velden, is silent to the logopaedic treatment device being specifically formed, at least in some areas, from a material with a Shore hardness A of 40-80. Turkbas teaches an oral appliance (see figure 1, #100) comprising a U-shaped basic shape (see figure 5) configured for insertion in a mouth; a plate segment (see figure 1, #120); and at least one bite strip (see figure 5, #110a/b), the device formed, at least in some areas, from a material with a Shore hardness A of 40-80 (see paragraphs [0047]-[0048]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KAYLEE R WILSON whose telephone number is (571)270-7517. The examiner can normally be reached Monday thru Friday 8 AM-5:00 PM ET.
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, Boyer Ashley can be reached at (571)272-4502. 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.
/KAYLEE R WILSON/Primary Examiner, Art Unit 3700
Prosecution Insights