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 5- 9 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.
Claim 5, Lines 1-3 recites the limitation “wherein the flexible, breathable stretch band has a length of about 2 inches, when joined with the adhesive end piece”, it is unclear if the length is the total length, including the length of the stretch band and the adhesive end piece, or if the length is solely the length of the flexible, breathable stretch band. If the length is intending to include the length of the adhesive end piece tab, it is unclear which adhesive end piece is referred to, or if it is when the band is connected to both end pieces. For purposes of examination, the length is herein interpreted as solely the length of the stretch band, as there is evidence for this within applicant’s drawings (Fig. 2 of Applicant’s Drawings).
Claims 6- 8 are rejected for being dependent on or from rejected claim 5.
Claim 7, Lines 1-2 recite the limitation “the adhesive end piece tab has a length of about 1 ¾ inches when joined with the flexible, breathable stretch band”, it is unclear if the length is the total length including the flexible, breathable stretch band, or if the length solely includes the length of one of the adhesive end piece tabs. It is also unclear which adhesive end piece tab has this length, if each adhesive end piece has a different length or if both adhesive end piece tabs have this length. For purposes of examination, this limitation is herein interpreted as solely the length of one of the adhesive end piece tabs, as there is support for this within applicant’s drawings (Fig. 2 of Applicant’s drawings).
Claim 8 is rejected for being dependent on or from rejected claim 7.
Claim 8, Lines 1-2 recite the limitation “the adhesive end piece tab has a width of about 1 ½ inches”, it is unclear which adhesive end piece tab has this width, if each adhesive end piece tab has a different width, or if both adhesive end piece tabs have this width. For purposes of examination, this limitation is herein interpreted as each adhesive end piece tab having a length of about 1 1/2 inches.
Claim 9, Lines 1-2 recite the limitation “the adhesive end piece tab is formed of a transparent material”, it is unclear which adhesive end piece tab is formed of a transparent material or if each adhesive end piece tab is formed of a transparent material. For purposes of examination, this limitation is herein interpreted as each adhesive end piece tab being formed of a transparent material.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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) 1 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kantor (US 10,603,221) in view of Jensen (US 5,429,592).
Regarding claim 1, Kantor teaches a non-surgical chin lifting device (10)(abstract, Column 1, Lines 16- 18)(Figs. 1- 2), comprising:
A flexible, breathable stretch band (body 4)(Column 3, Lines 1- 3 and Lines 46- 48) disposed between two adhesive end piece tabs (adhesive layers 5)(see annotated Fig. 2 below)(Column 2, Line 66- Column 3, Line 1), each adhesive end piece tab having a first side having an adhesive layer (see annotated Fig. 2 below); and a release paper (peelable layer 6) disposed over the adhesive layer to protect the adhesive carried on the adhesive end piece tabs (see annotated Fig. 2 below)(As this language is functional, the structure only needs to have the ability to complete the function, since the release paper is disposed over the adhesive layer, it would protect the adhesive carried on the adhesive end piece tabs.).
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Kantor is silent to wherein the release paper is coated.
Jensen teaches a device (10)(Figs. 1- 4) for attaching to the skin (abstract, Column 3, Lines 44- 54), the device having an adhesive layer (12) and a coated release paper (11) disposed over the adhesive layer to protect the adhesive (see Fig. 2)(Column 4, Lines 25- 31).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the release paper to be coated, since Jensen teaches that this type of release paper is well-known in the art (Column 4, Lines 31- 35) and that the coating prevents “the sheet from adhering too securely to the barrier layer” (Column 4, Lines 27- 31).
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kantor (US 10,603,221) in view of Jensen (US 5,429,592), as applied to claim 1 above, in further view of Farrow et al. (US 2011/0257575).
Regarding claim 2, Kantor and Jensen make obvious the non-surgical chin lifting device as discussed above.
The combination does not teach the non-surgical chin lifting device further comprising a plurality of index marks disposed in a spaced apart relation along a longitudinal length of the release paper and its corresponding adhesive end piece tab.
Farrow (Farrow et al.) teaches a similar device (compression garment 12)(Fig. 12) for being applied to a part of the body (abstract), wherein there are a plurality of index marks (Other markings 16, fiducials 16c) disposed in a spaced apart relation along a longitudinal length on the device (Paragraphs 0062 and 0064)(see annotated Fig. 12 below).
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It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the device of the combination to have a plurality of index marks as taught by Farrow, since Farrow teaches that the plurality of index marks “may be used to align a compression garment 12 to anatomical landmarks on a patient” and “help determine where, how, how far, or the like to stretch a compression garment during application to get a proper therapeutic effect” (Paragraph 0062).
Regarding wherein the plurality of index marks are disposed in a spaced apart relation along a longitudinal length of the release paper and its corresponding adhesive end piece tab, in the combination, as Farrow teaches that the plurality of index marks are disposed on the sides of the device (see Fig. 12), then for the combination the plurality of index marks would be disposed in a spaced apart relation along a longitudinal length of the release paper and its corresponding adhesive end piece tab, as the release paper and adhesive end piece tab are on the sides of the device.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kantor (US 10,603,221) in view of Jensen (US 5,429,592) and Farrow et al. (US 2011/0257575), as applied to claim 2 above, in further view of Buteux et al. (WO 2015188225).
Regarding claim 3, Kantor, Jensen, and Farrow make obvious the non-surgical chin lifting device as discussed above.
The combination does not teach wherein the adhesive layer is a hypoallergenic and waterproof adhesive.
Buteux (Buteux et al.) teaches a device (300)(Fig. 3B) for attaching to the skin (abstract), the device comprising a body (320) and an adhesive layer (330), wherein the adhesive layer is hypoallergenic and waterproof (Paragraph 128).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the adhesive layer to be hypoallergenic and waterproof, since Kantor teaches that the adhesive can be bioinert and designed to “adhere even with moisture” (Column 3, Line 63- Column 4, Line 1) and the adhesive as taught by Buteux is hypoallergenic and waterproof (Paragraph 128).
Claim(s) 4- 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kantor (US 10,603,221) in view of Jensen (US 5,429,592), Farrow et al. (US 2011/0257575), and Buteux et al. (WO 2015188225), as applied to claim 3 above, in further view of Nash- Morgan (US 5,116,675).
Regarding claim 4, Kantor, Jensen, Farrow, and Buteux make obvious the non-surgical chin lifting device as discussed above.
The combination does not teach the non-surgical chin lifting device further comprising a stitch joining each adhesive end piece tab with the flexible breathable stretch band.
Nash-Morgan teaches a similar non-surgical lifting device (10)(abstract and Column 1, Line 66- Column 2, Line 2)(Figs. 1,2, and 4- 5) comprising a band (central elastic material 12), adhesive end piece tabs (non-elastic adhesive material 14 and 16), wherein a stitch joins each adhesive end piece tab with the flexible breathable stretch band (Column 2, Lines 28- 40).
It would have been obvious to one of ordinary skill in the art to modify the device as taught by the combination to have the adhesive end piece tabs be attached to the band through a stitch as taught by Nash-Morgan, since Nash Morgan teaches it is a conventional means for attaching an adhesive to a band within a non-surgical lifting device (Column 2, Lines 36- 40).
Regarding claim 5, Kantor, Jensen, Farrow, Buteux, and Nash-Morgan make obvious the non-surgical chin lifting device as discussed above.
Kantor further teaches wherein the flexible, breathable stretch band has a length of about 2 inches, when joined with each adhesive end piece tab (In Column 3, Lines 26- 28, Kantor teaches that the device can have a length between 1 inches and 10 inches, therefore as 2 inches is within the range as taught by Kantor, Kantor teaches that the band can have a length of about 2 inches.).
Regarding claim 6, Kantor, Jensen, Farrow, Buteux, and Nash-Morgan make obvious the non-surgical chin lifting device as discussed above.
Kantor further teaches wherein the flexible, breathable stretch band has a width of about 1 ½ inches (In Column 3, Lines 41- 45, Kantor teaches that the device can have a width ranging from 0.25 inches to 2 inches, as 1.5 inches is within the range as taught by Kantor, Kantor teaches that the band can have a width of about 1.5 inches.).
Regarding claim 7, Kantor, Jensen, Farrow, Buteux, and Nash-Morgan make obvious the non-surgical chin lifting device as discussed above.
Regarding wherein one of the adhesive end piece tabs has a length of about 1 ¾ inches when joined with the flexible, breathable stretch band, as Kantor teaches that the device can have a length ranging from 1 to 10 inches (Column 3, Lines 26- 28) and that the adhesive may cover between 5% and 40% of the body (Column 3, Lines 7- 8), then calculating the length of the adhesive would result in a range of 0.05 inches (5% of 1 inch) to 4 inches (40% of 10 inches). Therefore, as 1 ¾ inches is within this range, Kantor teaches that one of the adhesive end piece tabs can have a length of about 1 ¾ inches.
Regarding claim 8, Kantor, Jensen, Farrow, Buteux, and Nash- Morgan make obvious the non-surgical chin lifting device as discussed above.
Kantor further teaches wherein one of the adhesive end piece tabs has a width of about 1 ½ inches (In Column 3, Lines 41- 45, Kantor teaches that the device can have a width ranging from 0.25 inches to 2 inches, as 1.5 inches is within the range as taught by Kantor, Kantor teaches that the adhesive end piece tabs can have a width of about 1.5 inches.).
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kantor (US 10,603,221) in view of Jensen (US 5,429,592), as applied to claim 1 above, in further view of Nash- Morgan (US 5,116,675).
Regarding claim 9, Kantor and Jensen make obvious the non-surgical chin lifting device as discussed above.
The combination does not teach wherein each adhesive end piece tab is formed of a transparent material.
Nash-Morgan teaches a similar non-surgical lifting device (10)(abstract and Column 1, Line 66- Column 2, Line 2)(Figs. 1,2, and 4- 5) comprising a band (central elastic material 12), adhesive end piece tabs (non-elastic adhesive material 14 and 16), wherein each adhesive end piece tab is formed of a transparent material (Column 1, Lines 52- 56).
It would have been obvious to one of ordinary skill in the art to modify the adhesive end piece tabs of the combination to be transparent as taught by Nash-Morgan for the purpose of attaching the device to the skin (Kantor, Column 3, Lines 63- 66; Nash-Morgan, Column 2, Lines 34- 36). Furthermore, it would have been obvious to one of ordinary skill in the art to substitute one adhesive end piece tab for another because both adhesive end piece tabs are disclosed as equivalent structures for attaching the device to the skin (Kantor, Column 3, Lines 63- 66; Nash-Morgan, Column 2, Lines 34- 36) and substitution of one for the other would have resulted in the predictable result of providing an adhesive end piece tab that is transparent and lifts the skin (Nash-Morgan, abstract). KSR, 550 U.S. 398, 82 USPQ2d 1385 (2007).
Alternatively, it would have been obvious to one of ordinary skill in the art to modify the adhesive end piece tabs as taught by the combination to be transparent as taught by Nash-Morgan, as Kantor teaches that the body of the device can be transparent (Column 3, Lines 46- 48) and making the adhesive end piece tabs transparent would render the entire device transparent, aiding in disguising the device when it is applied to the body.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kantor (US 10,603,221) in view of Jensen (US 5,429,592), as applied to claim 1 above, in further view of McLaurin- Smith (US 4,961,418).
Regarding claim 10, Kantor and Jensen make obvious the non-surgical chin lifting device as discussed above.
The combination does not teach wherein the flexible, breathable stretch band is formed of a knit stretch jersey material.
McLaurin- Smith teaches a knit jersey material (14) that is stretchable in all directions (Column 4, Lines 17- 20) is known in the art to be used with devices covering the body (abstract, Column 3, Lines 43- 49).
It would have been obvious to one of ordinary skill in the art to modify the material of the flexible, breathable stretch band as taught by the combination to be made of a knit stretch jersey material, since McLaurin-Smith teaches that the material is used in devices that cover the body (abstract, Column 3, Lines 43- 49), and that the fabric “provides a pleasant appearance” (Column 4, Lines 17- 20).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LINDSEY R. RIVERS whose telephone number is (571)272-0251. The examiner can normally be reached Monday- Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jackie Ho can be reached at (571) 272- 4696. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/L.R.R./Examiner, Art Unit 3771 /TAN-UYEN T HO/Supervisory Patent Examiner, Art Unit 3771