DETAILED ACTION
This action is in response to the amendment filed 11/14/2025. Currently, claims 1-8, 11 and 12 are pending in the application. Claims 9 and 10 are cancelled by Applicant.
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 .
Response to Arguments
Applicant’s amendment to claim 1 is sufficient to overcome the previous objections to claim 1. Applicant’s amendment to claim 5 is sufficient to overcome the previous objection to claim 5. Applicant’s amendment to claim 6 is sufficient to overcome the previous objections to claim 6. Applicant’s amendment to claim 7 is sufficient to overcome the previous objections to claim 7.
Applicant’s amendment to claim 8 is sufficient to overcome the previous rejection of claim 8 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph.
Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-5 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 1 recites “a first edge of the bendable element is nearer to a tip of the user's chin than any other portion of the bendable element and the first edge of the bendable element is configured to be positioned no closer than one inch away from the tip of the user's chin.” No support is provided for this claim limitation in Applicant’s specification as originally filed. Applicant’s original disclosure explicitly teaches that the “first edge of the bendable element is approximately 1 in. from the tip of the user's chin” (see [0027] of the publication of the present application). This disclosed approximation of the position of the first edge indicates that the first edge can be positioned closer than one inch away for the chin tip and further than one inch away from the chin tip, which is contradictory to the presently recited claim language. Claims 2-5 depend on claim 1 and therefore, include the same error.
Claims 6-8, 11 and 12 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claim 6 recites “a first edge of the bendable element is nearer to a tip of the user's chin than any other portion of the bendable element and the first edge of the bendable element is configured to be positioned no closer than one inch away from the tip of the user's chin.” No support is provided for this claim limitation in Applicant’s specification as originally filed. Applicant’s original disclosure explicitly teaches that the “first edge of the bendable element is approximately 1 in. from the tip of the user's chin” (see [0027] of the publication of the present application). This disclosed approximation of the position of the first edge indicates that the first edge can be positioned closer than one inch away for the chin tip and further than one inch away from the chin tip, which is contradictory to the presently recited claim language. Claims 7, 8, 11 and 12 depend on claim 6 and therefore, include the same error.
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.
Claim(s) 1-3 and 5 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Narihiko et al. (US 2003/0056785 A1).
In regards to claim 1, Narihiko et al. teaches in Figures 1-4, [0021], [0038], [0040], [0043-0045], [0050] and [0058]
a headgear portion (hanging members 10) configured to mount to a top of the head (as shown in Figure 1, hanging members 10 are mounted to an upper/top portion of the user’s head in use; [0040] teaches “soft hanging members 10 such as rubber belts or rubber straps to be hung on the ears or head”), wherein the headgear portion (hanging members 10) includes first and second ends (portions of hanging members 10 defined in the annotated copy of Figure 1 provided below) configured to be positioned near (relatively close to) ears of the head (as shown in Figure 1); and
a bendable element (lower jaw fitting piece 3, stoppers 4, holder 7; [0021] teaches “the lower jaw fitting piece can be made thin and light in weight, and made easy to use for a user” and “particularly, an aluminum plate or thermoplastic resin are preferable since they can be bent into a desired shape so as to be suitable to the lower jaw of a user”; [0038] teaches “the lower jaw fitting piece 3 can be bent”) including a body (holder 7) extending between (as shown in Figures 1 and 2) a first end (left end of holder 7) of the bendable element (lower jaw fitting piece 3, stoppers 4, holder 7) and a second end (right end of holder 7) of the bendable element (lower jaw fitting piece 3, stoppers 4, holder 7), wherein the first end (left end of holder 7) of the bendable element (lower jaw fitting piece 3, stoppers 4, holder 7) is configured to connect to (via left holding portion 9, as shown in Figures 1 and 2; [0058] teaches “hanging members 10 attached to the holding portions 9 at the upper side of the holder 7”) the first end (portion of hanging members 10 defined in the annotated copy of Figure 1 provided below) of the headgear portion (hanging members 10) near ears of the head (as shown in Figure 1, the first end of the hanging members 10 connects to the left end of holder 7 at an intermediate height of the user’s face, that can be considered to be near the user’s ears; Applicant should note that what is considered to be “near” is relative to the opinion of each individual), and wherein the second end (right end of holder 7) of the bendable element (lower jaw fitting piece 3, stoppers 4, holder 7) is configured to connect to (via right holding portion 9, as shown in Figures 1 and 2; [0058] teaches “hanging members 10 attached to the holding portions 9 at the upper side of the holder 7”) the second end (portion of hanging members 10 defined in the annotated copy of Figure 1 provided below) of the headgear portion (hanging members 10) near ears of the head (as shown in Figure 1, the second end of the hanging members 10 connects to the right end of holder 7 at an intermediate height of the user’s face, that can be considered to be near the user’s ears; Applicant should note that what is considered to be “near” is relative to the opinion of each individual);
wherein the bendable element (lower jaw fitting piece 3, stoppers 4, holder 7) is sufficiently rigid to maintain a shape (see [0043-0045), and wherein the bendable element (lower jaw fitting piece 3, stoppers 4, holder 7) is sufficiently bendable to adapt to the head of the user [0021] teaches “the lower jaw fitting piece can be made thin and light in weight, and made easy to use for a user” and “particularly, an aluminum plate or thermoplastic resin are preferable since they can be bent into a desired shape so as to be suitable to the lower jaw of a user”; [0038] teaches “the lower jaw fitting piece 3 can be bent into, for example, as shown in FIG. 4, a U-shape having an inclined inner circumferential surface along the lower jaw 2, particularly from the lower jaw rear edges to the lower jaw lower edge”), and wherein the bendable element (lower jaw fitting piece 3, stoppers 4, holder 7) is configured to be positioned on the underside of the user's chin (as shown in Figure 1; lower jaw fitting piece 3 has a curvature that is capable of being positioned on the underside of the user's chin; [0050] teaches “the lower jaw fitting piece 3 is roughly U-shaped so as to fit the entire lower jaw”) such that a first edge (forward edge of lower jaw fitting piece 3) of the bendable element (lower jaw fitting piece 3, stoppers 4, holder 7) is nearer to a tip of the user's chin than any other portion of (as shown in Figure 1, the forward edge of lower jaw fitting piece 3 is capable of being positioned nearer to a tip of the user's chin than any other portion of lower jaw fitting piece 3/stoppers 4/holder 7) the bendable element (lower jaw fitting piece 3, stoppers 4, holder 7) and the first edge (forward edge of lower jaw fitting piece 3) of the bendable element (lower jaw fitting piece 3, stoppers 4, holder 7) is configured to be positioned no closer than one inch away from the tip of the user's chin (the forward edge of lower jaw fitting piece 3 is capable of being positioned on a user’s chin such that the forward edge of lower jaw fitting piece 3 is no closer than one inch away from the tip of the user's chin).
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In regards to claim 2, Narihiko et al. teaches the apparatus of claim 1. Narihiko et al. teaches in Figures 1 and 2 that the first end (left end of holder 7) of the bendable element (lower jaw fitting piece 3, stoppers 4, holder 7) includes a first ring structure (left holding portion 9; shown in Figures 1 and 2 to be structured as a loop/ring) that connects to (as shown in Figures 1 and 2; [0058] teaches “hanging members 10 attached to the holding portions 9 at the upper side of the holder 7”) the first end (portion of hanging members 10 defined in the annotated copy of Figure 1 provided above) of the headgear portion (hanging members 10), and wherein the second end (right end of holder 7) of the bendable element (lower jaw fitting piece 3, stoppers 4, holder 7) includes a second ring structure (right holding portion 9; shown in Figures 1 and 2 to be structured as a loop/ring) that connects to (as shown in Figures 1 and 2; [0058] teaches “hanging members 10 attached to the holding portions 9 at the upper side of the holder 7”) the second end (portion of hanging members 10 defined in the annotated copy of Figure 1 provided above) of the headgear portion (hanging members 10).
In regards to claim 3, Narihiko et al. teaches the apparatus of claims 1 and 2. Narihiko et al. teaches in Figures 1 and 2 that the first and second ends (portions of hanging members 10 defined in the annotated copy of Figure 1 provided above) of the headgear portion (hanging members 10) include attachment members (portions of the first and second ends of the hanging members 10 that attach to holder 7 by extending through holding portions 9) configured to engage with the first ring structure (left holding portion 9) and the second ring structure (right holding portion 9), respectively (as shown in Figures 1 and 2; [0058] teaches “hanging members 10 attached to the holding portions 9 at the upper side of the holder 7”).
In regards to claim 5, Narihiko et al. teaches the apparatus of claim 1. Narihiko et al. teaches in Figures 1-4 and [0044] that the bendable element (lower jaw fitting piece 3, stoppers 4, holder 7) has a generally concave shape (as indicated in the annotated copy of Figure 2 provided below) between (as shown in Figure 2, the concave shape is positioned between the left and right ends of holder 7) the first (left end of holder 7) of the bendable element (lower jaw fitting piece 3, stoppers 4, holder 7) and second (right end of holder 7) end of the bendable element (lower jaw fitting piece 3, stoppers 4, holder 7), and wherein the bendable element (lower jaw fitting piece 3, stoppers 4, holder 7) includes a chin support bend (jaw fitting piece 3; shown in Figures 1-3 to be bent) having a generally planar shape (Figure 4 teaches the jaw fitting piece 3 having a planar cross-section; [0044] teaches the jaw fitting piece 3 being structured as a “plate”).
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Claim(s) 6-8, 11 and 12 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by ROGERS (US 2,711,730 A).
In regards to claim 6, ROGERS teaches in Figures 1-5, column 2, lines 12-15 and 50-53 and column 3, lines 22-33 and 44-45
a headgear portion (support strap means 15, elastic band 16, elastic band 17, inelastic portion 18, inelastic portion 19) configured to mount to a top of the head (as shown in Figures 1 and 2; column 2, lines 50-53 teaches “sling 10 should be equipped with support strap means of adjustable length, designated generally at 15, connected to the upper end portions of cheek-engaging strips 12 and 13 for passing over the crown of the head”), wherein the headgear portion (support strap means 15, elastic band 16, elastic band 17, inelastic portion 18, inelastic portion 19) includes first and second connection points (inelastic portion 18, inelastic portion 19; taught in column 3, lines 22-26 to include longitudinally spaced eyes 22, 23) configured to be positioned near ears of the head (as shown in Figures 1 and 2);
a first adjustment member and a second adjustment member (longitudinally spaced eyes 22, 23) connected to (as shown in Figures 1-5; column 3, lines 22-26 teaches “inelastic portions 18 and 19 are each formed from two superimposed pieces of material, being stitched to bands 16 and 17 at 203 and 21, and are provided with longitudinally spaced eyes 22 and 23 in the outer pieces of material;” column 3, lines 44-45 teaches “eyes 22 and 23 in the inelastic portions 18 and 19”) the first connection point and the second connection point (inelastic portion 18, inelastic portion 19), respectively, of the headgear portion (support strap means 15, elastic band 16, elastic band 17, inelastic portion 18, inelastic portion 19), wherein each of the first adjustment member and the second adjustment member (longitudinally spaced eyes 22, 23) include (inasmuch as they are structured as) a plurality of first adjustment points and a plurality of second adjustment points (longitudinally spaced eyes 22, 23), respectively; and
a bendable element (sling 10, chin-receiving pocket 11, cheek-engaging strip 12, cheek-engaging strip 13, strap 26, strap 27; shown in Figures 1-5 to be bent; column 2, lines 12-15 that “an excellent elasticized material for use in forming sling 10 consists of a soft rubber film sandwiched between outer layers of elastically woven cloth and adhesively bound thereto,” which is a bendable material) including a body (sling 10, chin-receiving pocket 11, cheek-engaging strip 12, cheek-engaging strip 13) extending between (as shown in Figure 3) a first end (strap 26 or strap 27) of the bendable element (sling 10, chin-receiving pocket 11, cheek-engaging strip 12, cheek-engaging strip 13, strap 26, strap 27) and a second end (strap 26 or strap 27) of the bendable element (sling 10, chin-receiving pocket 11, cheek-engaging strip 12, cheek-engaging strip 13, strap 26, strap 27), wherein the first end (strap 26 or strap 27) of the bendable element (sling 10, chin-receiving pocket 11, cheek-engaging strip 12, cheek-engaging strip 13, strap 26, strap 27) connects to a first adjustment point of the first adjustment member, and wherein the second end (strap 26 or strap 27) of the bendable element (sling 10, chin-receiving pocket 11, cheek-engaging strip 12, cheek-engaging strip 13, strap 26, strap 27) connects to a second adjustment point of the second adjustment member (column 3, lines 28-33 teaches “Threaded on the loop of straps 26 and 27 are fasteners 28 and 29, which provide strap-receiving slots 28a and 29a at their lower ends, and hooks 28b and 29b at their upper ends. Hooks 28b and 29b are received within eyes 22 and 23 respectively for adjusting the length of strap support means 15.”);
wherein the bendable element (sling 10, chin-receiving pocket 11, cheek-engaging strip 12, cheek-engaging strip 13, strap 26, strap 27) is configured to be positioned on the underside of the user's chin (as shown in Figures 1 and 2) such that a first edge (forward edge of chin-receiving pocket 11) of the bendable element (sling 10, chin-receiving pocket 11, cheek-engaging strip 12, cheek-engaging strip 13, strap 26, strap 27) is nearer to a tip of the user's chin than any other portion of (as shown in Figures 1 and 2, the forward edge of chin-receiving pocket 11 is capable of being positioned on the user’s chin such that the forward edge of chin-receiving pocket 11 is nearer to a tip of the user's chin than any other portion of sling 10/chin-receiving pocket 11/cheek-engaging strip 12/cheek-engaging strip 13/strap 26/strap 27) the bendable element (sling 10, chin-receiving pocket 11, cheek-engaging strip 12, cheek-engaging strip 13, strap 26, strap 27) and the first edge (forward edge of chin-receiving pocket 11) of the bendable element (sling 10, chin-receiving pocket 11, cheek-engaging strip 12, cheek-engaging strip 13, strap 26, strap 27) is configured to be positioned no closer than one inch away from the tip of the user's chin (the forward edge of chin-receiving pocket 11 is capable of being positioned on a user’s chin such that it is no closer than one inch away from the tip of the user's chin; Applicant should note that this is an intended use claim limitation; a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art; if the prior art structure is capable of performing the intended use, then it meets the claim).
In regards to claim 7, ROGERS teaches the apparatus of claim 6. ROGERS teaches in column 3, lines 28-33 and Figures 1-5 connecting elements (hooks 28b and 29b) for connecting (column 3, lines 28-33 teaches “Threaded on the loop of straps 26 and 27 are fasteners 28 and 29, which provide strap-receiving slots 28a and 29a at their lower ends, and hooks 28b and 29b at their upper ends. Hooks 28b and 29b are received within eyes 22 and 23 respectively for adjusting the length of strap support means 15.”) the first end (strap 26 or strap 27) of the bendable element (sling 10, chin-receiving pocket 11, cheek-engaging strip 12, cheek-engaging strip 13, strap 26, strap 27) and the second end (strap 26 or strap 27) of the bendable element (sling 10, chin-receiving pocket 11, cheek-engaging strip 12, cheek-engaging strip 13, strap 26, strap 27) to the first adjustment point and the second adjustment point (longitudinally spaced eyes 22, 23).
In regards to claim 8, ROGERS teaches the apparatus of claims 6 and 7. ROGERS teaches in column 3, lines 28-33 and Figures 1-5 that the connecting elements (hooks 28b and 29b) are selected from the group consisting of loops, hooks (as shown in Figures 1-5; column 3, lines 28-33 teaches “Threaded on the loop of straps 26 and 27 are fasteners 28 and 29, which provide strap-receiving slots 28a and 29a at their lower ends, and hooks 28b and 29b at their upper ends. Hooks 28b and 29b are received within eyes 22 and 23 respectively for adjusting the length of strap support means 15.”), buttons, and hook and loop fasteners.
In regards to claim 11, ROGERS teaches the apparatus of claims 6-10. ROGERS teaches in column 2, lines 30-37 that the bendable element (sling 10, chin-receiving pocket 11, cheek-engaging strip 12, cheek-engaging strip 13, strap 26, strap 27) is configured to lift a jaw of the user upwards during use (column 2, lines 30-37 teaches “the cheek-engaging strips 12 and 13 of sling 10 should preferably overlie a substantial portion of the cheeks of the wearer, so that the upward tension exerted by partially stretching strips 12 and 13, while they are held against the face of the wearer, will exert an upward urging on both the muscles holding the lower jaw in closed position and the muscles holding the lower lip in closed position”).
In regards to claim 12, ROGERS teaches the apparatus of claims 6-11. ROGERS teaches in column 2, lines 30-37 that the bendable element (sling 10, chin-receiving pocket 11, cheek-engaging strip 12, cheek-engaging strip 13, strap 26, strap 27) is configured to minimize forces applying the chin backwards toward a throat of the user (by counteracting such forces by pulling the chin forward to close the jaw, as taught in column 2, lines 30-37).
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.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Narihiko et al. (US 2003/0056785 A1) in view of Tsujino (US 5,685,021 A).
In regards to claim 4, Narihiko et al. teaches the apparatus of claims 1-3. Narihiko et al. does not teach that each of the first and second ends of the headgear portion includes hook and loop material such that each end extends through and around the respective ring structure.
However, Tsujino teaches in Figures 1-3 and column 5, lines 23-33 an analogous device in which each of the first and second ends (end portion 56, 58) of the headgear portion (forehead strap 38) includes hook and loop material (releasable engageable hook 48a and pile 48b retainers) such that each end (end portion 56, 58) extends through and around (see Figures 1-3 and column 5, lines 23-33) the respective ring structure (loops 34).
It would have been obvious to one having ordinary skill in the art before the effective filing of the present invention to modify the headgear portion of Narihiko et al. to provide that each of the first and second ends of the headgear portion includes hook and loop material such that each end extends through and around the respective ring structure as taught by Tsujino because this element is known to be a suitable mechanism known in the art “to provide adjustable, releasable engageable retainers on each end portion,” as Tsujino teaches in column 5, lines 23-33.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 VICTORIA H FISHER whose telephone number is (571)270-7033. The examiner can normally be reached M-TH 6:00AM-4:00PM EST.
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/VICTORIA HICKS FISHER/Primary Examiner, Art Unit 3786 2/26/2026