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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 9/16/26 has been entered.
Claim Objections
Claims 5-7, 14 and 16-20 are objected to because of the following informalities: Each of these claims contains the word “surface” when referring to the retaining body or faceplate inner/outer faces. Each instance of the word “surface” should be changed to “face”. Appropriate correction is required.
Claim 16 is further objected to because of the following informalities: after the word “is” should be inserted after the word “is generally flat”. Appropriate correction is required.
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 1-8 and 14-26 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lowry (8,111,861).
With respect to claim 1, Lowry teaches an earpiece (Figures 3-6 and 12, #20), comprising: a retaining body (34) configured to dispose within a concha (10) of an ear (seen in Figure 3) of a wearer, said retaining body (34) having a retaining body outer face (34b) opposite a retaining body inner face (34a) extending to a retaining body periphery (circular periphery of body #34 clearly seen), said retaining body inner face (34a) including a projection element (22) configured to project into an ear canal opening (opening of ear canal #7) of said wearer upon disposing said retaining body (34) within said concha (10) said retaining body inner face (34a) and said projection element (22) engage with said concha (10) and said ear canal (7), respectively, said projection element (22) adapted to retain an earpiece tip (32) configured to engage an ear canal wall (wall of ear canal #7) of said wearer; and a faceplate (could be #47 or #58/58’/58”) configured to cover said retaining body outer face (34b) of said retaining body (34), said retaining body (34) and said faceplate (47 or 58/58’/58”) including releasably engageable mateable parts (defined by snap fit between cap #58 and recess #48 and/or 42a/b and 34c) to removably affix said faceplate (47 or 58/58’/58”) to said retaining body.
With respect to claim 2, Lowry teaches wherein said retaining body (34) configured to dispose within said concha (10) of a left ear of said wearer (Col. 4, Lines 45-48).
With respect to claim 3, Lowry teaches wherein said retaining body (34) configured to dispose within said concha (10) of a right ear of said wearer (Col. 4, Lines 45-48).
With respect to claim 4, Lowry teaches wherein said earpiece (20) comprises a pair of earpieces (See Figure 12, #20), wherein one of said pair of earpieces is configured to dispose within said concha (10) of a left ear of said wearer, wherein one of said pair of earpieces (20) is configured to dispose within said concha (10) of a right ear of said wearer (Col 13, Lines 12-34).
With respect to claim 5, Lowry teaches wherein said faceplate (47 or 58/58’/58”) configured to removably affix to said outer
With respect to claim 6, Lowry teaches wherein said faceplate (47 or 58/58’/58”) configured to removably affix to said outer body (34) configured to dispose within said concha (10) of a right ear of said wearer (Col. 4, Lines 45-48).
With respect to claim 7, Lowry teaches wherein said faceplate (47 or 58/58’/58”) comprises a pair of faceplates (see Figure 12 - Col 13, Lines 12-34), wherein one of said pair of faceplates (47 or 58/58’/58”) configured to removably affix to said outer surface (34b) of said retaining body (34) configured to dispose within said concha (10) of a left ear of said wearer, wherein one of said pair of faceplates (47 or 58/58’/58”) configured to removably affix to said outer surface (34b) of said retaining body (34) configured to dispose within said concha (10) of a right ear of said wearer (Col. 4, Lines 45-48).
With respect to claim 8, Lowry teaches wherein said releasably engageable mateable parts (42a/b and 34c) comprise a faceplate plug (42a/b) extending from said faceplate (47 or 58/58’/58”) and a retaining body aperture (34c) defined by an aperture wall (wall of hole 34c), said retaining body aperture (34c) open between said retainer body outer face (34b) and said retaining body inner face (34a), said faceplate plug (42a/b) configured to insert into said retainer body aperture (34c) to engage said aperture wall to removably affix said faceplate (47 or 58/58’/58”) to said retaining body (34).
With respect to claim 14, Lowry teaches wherein said faceplate (47 or 58/58’/58”) has a faceplate inner face (surface of #47 facing surface #34b; inner surface opposite surface #58a facing surface #34b) opposite a faceplate outer face (surface of #47 facing #58; or surface #58a) extending to a faceplate periphery, wherein said releasably engageable mateable parts (defined by snap fit between cap #58 and recess #48 and/or 42a/b and 34c) of said faceplate extend from said faceplate inner
With respect to claim 15, Lowry teaches wherein said faceplate (58/58’/58”) periphery configured to generally match said retaining body (34) periphery (clearly seen in the Figures 4-5).
With respect to claim 16, Lowry teaches wherein said faceplate outer is generally flat.
With respect to claim 17, Lowry teaches wherein said faceplate (58/58’/58”) comprises a plurality of faceplates interchangeably removably affixable with said retaining body outer
With respect to claim 18, Lowry teaches wherein each of said plurality of faceplates (58/58’/58”) having a faceplate outer
With respect to claim 19, Lowry teaches wherein each of said plurality of faceplates (58/58’/58”) having a faceplate outer
With respect to claim 20, Lowry teaches wherein said visual appearance of said faceplate outer
With respect to claim 21, Lowry teaches wherein said projection element (22) integrally formed with said retaining body (34).
With respect to claim 22, Lowry teaches wherein said projection element (22) and said retaining body (34) formed as a one-piece construct (Col. 5, Lines 54-67). Note, that attachment of #22 and #34 of Lowry to be sold as a single unit is considered to be the same as being “united to form a one-piece construct” as defined in Applicant’s Specification, Page 16, Lines 23-29.
With respect to claim 23, Lowry teaches wherein said earpiece tip (32) engages with said ear canal wall (wall of ear canal #7) when said earpiece is worn by said wearer.
With respect to claim 24, Lowry teaches wherein said earpiece tip (32) sealably engages with said ear canal wall (wall of ear canal #7) when said earpiece is worn by said wearer. It is noted that the tip member #32 can come in different sizes, and it is well known that user’s ears and ear canal come in many different sizes (See Lowry, Col. 5, Lines 26-32). There inherently exists a combination of tip member #32 and ear canal sizes, that when used together, said earpiece tip (32) sealably engages with said ear canal wall (wall of ear canal #7) when said earpiece is worn by said wearer.
With respect to claim 25, Lowry teaches faceplate (Figures 3-6 and 12, could be (could be #47 and/or #58/58’/58”), comprising: a faceplate (47 and 58/58’/58”) configured to removably affix to an outer face (34b) of a retaining body (34) of an earpiece (20), said retaining body (34) configured with a retaining body outer face (34b) and retaining body inner face (34a), said retaining body inner face (34a) to dispose within and engage with a concha (10) of an ear of a wearer, wherein said faceplate (47 and 58/58’/58”) includes releasably engageable mateable parts (defined by snap fit between cap #58 and recess #48, and 42a/b and 34c) wherein said releasably engageable mateable parts engage with said retaining body outer face (34b) and a retaining body aperture (34c), said retaining body aperture (34c) having a solid retaining body aperture wall (wall of hole 34c) spanning from said retaining body outer face (34b) to said retaining body inner face (34a).
With respect to claim 26, Lowry teaches wherein, said retaining body (34) having said retaining body inner face (34a) opposite a retaining body outer face (34b) extending to a retaining body periphery (circular periphery of body #34 clearly seen), said retaining body inner face (34a) including a projection element (22) configured to project into an ear canal opening (opening of ear canal #7) of said wearer upon disposing said retaining body (34) within said concha (10), said projection element (22) adapted to retain an earpiece tip (32) configured to engage an ear canal wall (wall of ear canal #7) of said wearer.
Claim Rejections - 35 USC § 103
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 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 9 is rejected under 35 U.S.C. 103 as being unpatentable over Lowry (8,111,861).
With respect to claim 9, Lowry teaches the earpiece of claim 8. Lowry further teaches wherein said faceplate plug (42a/b) comprise a arcuate or crescent-shaped plug (42a/b) terminating in a radially extending annular shoulder (defined by surface of enlarged portion of #42a/b that rests against surface #34a, best seen in Figures 4-6), said radially extending annular shoulder passes through said retaining body aperture (34c) to engage said retaining body inner face (34a). It is noted that the plug #42a/b may have any shape (Col. 6, Lines 62-66).
Lowry fails to explicitly teach wherein the plug is a cylindrical plug.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide wherein the plug is a cylindrical plug, since it has been held by the courts that a change in shape or configuration, without any criticality, is nothing more than one of numerous shapes that one of ordinary skill in the art will find obvious to provide based on the suitability for the intended final application. See In re Dailey, 149 USPQ 47 (CCPA 1976). It appears that the disclosed device would perform equally well shaped as disclosed by Lowry. In this case, it would be obvious to one of ordinary skill to for the plug element #42a/b of Lowry in a cylindrical shape, as Lowry states that component #42a/b can be any shape.
Allowable Subject Matter
Claims 10-13 are allowed.
Response to Arguments
Applicant’s arguments with respect to claims 1-9 and 1-26 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. The Examiner considers Lowy to teach all of the limitations as claimed by Applicant.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEREMY AUSTIN LUKS whose telephone number is (571)272-2707. The examiner can normally be reached Monday-Friday (9:00-5:00).
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/JEREMY A LUKS/Primary Examiner, Art Unit 2837
