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 § 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 Tang (2017/0026738).
With respect to claim 1, Tang teaches an earpiece (Figures 1-2B, #10 – see annotated view of Figure 2b provided below), comprising: a retaining body (27) configured to dispose within a concha of an ear of a wearer in the same way as Applicant’s ([0015]), said retaining body (27) having a retaining body outer face (defined by upper facing surface of #27 adjacent/engaging with tab #33 – see annotated Figure below) opposite a retaining body inner face (defined by lower facing surface of #27, opposite tab #33 – see annotated Figure below) extending to a retaining body periphery (defined by periphery of 27 surrounding speaker assembly #25), said retaining body inner face including a projection element (defined by housing portion #21 sound channel #24) configured to project into an ear canal opening of said wearer upon disposing said retaining body within said concha, said projection element (21/24) adapted to retain an earpiece tip (26) configured to engage an ear canal wall of said wearer; and a faceplate (33) configured to cover said retaining body outer face of said retaining body (27), said retaining body (27) and said faceplate (33) including releasably engageable mateable parts (defined by cavities in #29 accommodating legs #31) to removably affix said faceplate (302) to said retaining body (27), wherein said releasably engageable mateable parts (29/31) comprises a faceplate plug (31) wherein said faceplate plug (31) extends through said retaining body (27) and a retaining body aperture (29) and exits said retaining body inner face.
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With respect to claim 2, Tang teaches wherein said retaining body (27) configured to dispose within said concha of a left ear of said wearer ([0015]). It is considered to be inherent and well known that the earbud #10 can be disposed in a user’s left or right ear. Further, Figures 1a-e appear to show left/right earbud pairs.
With respect to claim 3, Tang teaches wherein said retaining body (27) configured to dispose within said concha of a right ear of said wearer ([0015]). It is considered to be inherent and well known that the earbud #10 can be disposed in a user’s left or right ear. Further, Figures 1a-e appear to show left/right earbud pairs.
With respect to claim 4, Tang teaches wherein said earpiece (10) comprise a pair of earpieces (10), wherein one of said pair of earpieces (10) is configured to dispose within said concha of a left ear of said wearer, wherein one of said pair of earpieces (10) is configured to dispose within said concha of a right ear of said wearer ([0015]). It is considered to be inherent and well known that the earbud #10 can be disposed in a user’s left or right ear. Further, Figures 1a-e appear to show left/right earbud pairs.
With respect to claim 5, Tang teaches wherein said faceplate (33) configured to removably affix to said outer surface of said retaining body (27) configured to dispose within said concha of a left ear of said wearer ([0015]). It is considered to be inherent and well known that the earbud #10 can be disposed in a user’s left or right ear. Further, Figures 1a-e appear to show left/right earbud pairs.
With respect to claim 6, Tang teaches wherein said faceplate (33) configured to removably affix to said outer surface of said retaining body (27) configured to dispose within said concha of a right ear of said wearer ([0015]). It is considered to be inherent and well known that the earbud #10 can be disposed in a user’s left or right ear. Further, Figures 1a-e appear to show left/right earbud pairs.
With respect to claim 7, Tang teaches wherein said faceplate (33) inherently comprises a pair of faceplates (i.e. one for an earbud for each of a user’s left and right ears as is inherent and well known, and seen in Figures 1a-e), wherein one of said pair of faceplates (33) configured to removably affix to said outer surface of said retaining body (27) configured to dispose within said concha of a left ear of said wearer, wherein one of said pair of faceplates (33) configured to removably affix to said outer surface of said retaining body (27) configured to dispose within said concha of a right ear of said wearer ([0015]). It is considered to be inherent and well known that the earbud #10 can be disposed in a user’s left or right ear. Further, Figures 1a-e appear to show left/right earbud pairs.
With respect to claim 8, Tang teaches wherein said faceplate plug (31) extends from said faceplate (33) and said retaining body aperture (defined by cavities in # 29 receiving leg components #31) defined by an aperture wall (walls defining openings though #29 and accommodating legs #31), said retaining body aperture (29) open between said retainer body outer face and said retaining body inner face (clearly see as legs #31 pass through from outer side to inner side), said faceplate plug (33) configured to insert into said retainer body aperture (29) to engage said aperture wall to removably affix said faceplate (33) to said retaining body (27).
With respect to claim 14, Tang teaches wherein said faceplate (33) has a faceplate inner face (surface of #33 having legs #31) opposite a faceplate outer face (surface of #33 facing an exterior of earbud #10) extending to a faceplate periphery (clearly seen in Figures 2a-c), wherein said releasably engageable mateable parts (31) of said faceplate extend from said faceplate inner surface.
With respect to claim 15, Tang teaches wherein said faceplate periphery (periphery of #33) configured to generally match said retaining body periphery (periphery of #27).
With respect to claim 16, Tang teaches wherein said faceplate outer surface (surface of #33 facing an exterior of earbud #10) generally flat.
With respect to claim 17, Tang teaches wherein said faceplate (33) comprises a plurality of faceplates (33) interchangeably removably affixable with said retaining body outer surface ([0010]-[0011], [0015]-[0016]).
With respect to claim 18, Tang teaches wherein each of said plurality of faceplates (33) having a faceplate outer surface inherently having the same visual appearance ([0010]-[0011], [0015]-[0016]).
With respect to claim 19, Tang teaches wherein each of said plurality of faceplates (33) having a faceplate outer surface inherently having different visual appearance ([0010]-[0011], [0015]-[0016]).
With respect to claim 20, Tang teaches wherein said visual appearance of said faceplate (33) outer surface comprises one or more of a color, a text, an image, a two dimensional design, a three dimensional structure ([0010]-[0011], [0015]-[0016]).
With respect to claim 21, Tang teaches wherein said projection element (21/24) integrally formed with said retaining body (27). Note Applicant’s definition of “integrally formed” merely requires components “connected together so as to make up a single complete piece or unit, or so as to work together as a single complete piece or unit, and so as to be incapable of being easily dismantled without destroying the integrity of the piece or unit” (Applicant’s Specification, Page 16, Lines 23-29), and components #21/24 and #27 of Tang are clearly “integrally formed” as defined by Applicant.
With respect to claim 22, Tang teaches wherein said projection element (21/24) and said retaining body (27) formed as a one-piece construct. Note Applicant’s definition of “one-piece construct” merely requires that two or more components be united together (Applicant’s Specification, Page 16, Lines 23-29), and components #21/24 and #27 of Tang are clearly a “one-piece construct” as defined by Applicant.
With respect to claim 23, Tang teaches wherein said earpiece tip (26) inherently engages with said ear canal wall when said earpiece (10) is worn by said wearer.
With respect to claim 24, Tang teaches wherein said earpiece tip (26) inherently sealably engages with said ear canal wall when said earpiece (10) is worn by said wearer as is well known in the art
With respect to claim 25, Tang teaches a faceplate (33), comprising: a faceplate (33) configured to removably affix to an outer face of a retaining body (27) of said earpiece (10), said retaining body (27) configured with a retaining body inner face (defined by lower facing surface of #27, opposite tab #33 – see annotated Figure above), said retaining body inner face to dispose within a concha of an ear of a wearer ([0015]), wherein said faceplate (33) includes releasably engageable mateable parts (defined by cavities in #29 accommodating legs #31) wherein said releasably engageable mateable parts (31/29) comprise a faceplate plug (31) wherein said faceplate plug (31) is configured to extend through said retaining body (27) and a retaining body aperture (29) and exit said retaining body inner face.
With respect to claim 26, Tang teaches wherein said retaining body (27) having a retaining body inner face (defined by lower facing surface of #27, opposite tab #33 – see annotated Figure above) opposite a retaining body outer face (defined by upper facing surface of #27 adjacent/engaging with tab #33 – see annotated Figure above) extending to a retaining body periphery (defined by periphery of 27 surrounding speaker assembly #25), said retaining body inner face including a projection element (defined by housing portion #21 sound channel #24) configured to project into an ear canal opening of said wearer upon disposing said retaining body within said concha in the same way as Applicant’s ([0015]), said projection element (21/24) adapted to retain an earpiece tip (26) configured to engage an ear canal wall 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 Tang (2017/0026738).
With respect to claim 9, Tang teaches the earpiece of claim 8. Tang further teaches wherein said faceplate plug (31) comprise a plug terminating in a shoulder (defined by lower body of legs #31, the shoulder allowing the legs #31 to snap of click into cavities in #29), said shoulder passes through said retaining body aperture (aperture through #29) to engage said retaining body inner face (defined by lower facing surface of #29, opposite tab #33).
Tang fails to explicitly teach wherein the plug is a cylindrical plug terminating in a radially extending annular shoulder.
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 terminating in a radially extending annular shoulder, 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 Tang. In this case, the legs of Tang are only shown in a cross-sectional view so the shape is unclear, but selecting a cylindrical shape for the legs would have been obvious to one or ordinary skill in the art.
Allowable Subject Matter
Claims 10-13 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicant's arguments filed 4/13/26 have been fully considered but they are not persuasive. The Examiner considers Tang to teach all of the limitations of claims 1-9 and 14-26.
Regarding claims 1, 8 and 26, Applicant argues that “the "opening" or "cavity components" of Tang does not open between an outer face and inner face. Tang's cavity components and leg components extend into the interior of body cavity.” The Examiner disagrees with this interpretation of Tang. As is clearly seen in the annotated view of Figure 2b provided above and copied below, leg #31 clearly engages and extends through the opening #29, as the lower portion of leg #31 clearly extends beyond the retaining body inner face of component. It is unclear how Applicant views the Figure below and does not believe that opening #29 is a “true hole” such that leg #31 extends completely through opening #29 from the retaining body outer face, completely through the opening #29, and beyond the plane of the retaining body inner face. It is very clear from the Figure that leg #31 extends completely though and beyond the exit opening plane of the opening/retaining body inner face. Therefore Applicant’s arguments are unpersuasive.
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Regarding claim 9, Applicant’s arguments hinge on the same premise as arguments against claims 1, 8 and 26, that the leg #31 of Tang does not extend all of the way through opening #29. As the Examiner detailed in the above paragraph, leg #31 does in fact extend all of the way though opening/aperture #29, so these arguments are unpersuasive for the reasons detailed above.
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 JEREMY AUSTIN LUKS whose telephone number is (571)272-2707. The examiner can normally be reached Monday-Friday (9:00-5:00).
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, Dedei Hammond can be reached at (571) 270-7938. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JEREMY A LUKS/Primary Examiner, Art Unit 2837
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