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 .
Election/Restrictions
Applicant’s election without traverse of Group I, and Species C in the reply filed on 09/08/2025 is acknowledged.
Response to Amendment
Applicant’s amendment of claim 5 is acknowledged by the Examiner.
Applicant’s cancelation of claims 9-15 and 17-20 are acknowledged by the Examiner. Applicant’s inclusion of the text of the canceled of claims 9-15 and 17-20 is improper under MPEP 714(C)(c) which states: “A claim being canceled must be indicated as "canceled;" the text of the claim must not be presented. Providing an instruction to cancel is optional. Canceled and not entered claims must be listed by only the claim number and status identifier, without presenting the text of the claims”. The amendments to the remaining claims complies with 37 CFR 1.121, and thus, the Examiner accepts the submitted amendments including the cancelation of claims 9-15, and 17-20. Applicant is required in their response to this action to remove the text of the canceled claims.
Claims 1-8, and 16 are currently pending in the Application.
Claim Objections
Claims 7 and 8 are objected to because of the following informalities:
Claim 7 recites the limitation “a cam surfaced”. This limitation should be amended to recite “a cam surface” as “surfaced” appears to be a typographical error.
Claim 8 recites the limitation “the axis”. While not unclear as Applicant has only presented a linear axis in the claims, this limitation should be amended to recite “the linear axis” to maintain consistency in the claims.
Appropriate correction is required.
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 3 and 5-8 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 3 recites the limitation “a user interface”. This limitation is held to be unclear in view of claim 2, from which claim 3 depends, which also recites “a user interface”. Therefore, it is unclear as to if the user interface of claim 3 is the same user interface of claim 2 or a new user interface. For the purpose of examination, Examiner will interpret the user interface of claim 3 as being the same user interface of claim 2.
Claims 5-8 are rejected under 35 U.S.C. 112(b) as being dependent on a rejected claim, and therefore, contain the same offending limitations.
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.
Claim(s) 1-6, and 8 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Werner et al. (US 2019/0380877 A1) (hereinafter Werner).
In regards to claim 1, Werner discloses an earmuff (14; see [0015]; see figure 1) comprising:
an earmuff ring (ring of 14; see figure 1) configured to sit against a user's head about a user's ear (see figure 1); and
an earmuff cap (30 and 62 taken together; see [0015] and [0017]; see figure 4) including an opening (66; see [0017]; see figure 3) and including a noise reduction member (55; see [0016]; see figure 2) being movable relative to the earmuff ring (ring of 14) between a first position entirely covering the opening (66; see figure 6) and a second position at least partially exposing the opening (66; see figure 5), the earmuff cap (30 and 62) having a first noise reduction rating in the first position (full attenuation position; see [0018]) and a second noise reduction rating in the second position (partial attenuation position; see [0018]) that is different than the first noise reduction rating (see [0018]).
In regards to claim 2, Werner discloses the invention as discussed above.
Werner further discloses wherein the earmuff cap (30 and 62) includes a base portion (62) affixed to the earmuff ring (ring of 14; see figure 3), the noise reduction member (55) including a user interface (77; see [0018]; see figure 4) being movable relative to the base (62) between the first position (full attenuation position) and the second position (partial attenuation position; see [0018]).
In regards to claim 3, Werner discloses the invention as discussed above.
Werner further discloses wherein the noise reduction member (55) includes a user interface (see 112b interpretation above; 77) that moves along a linear axis between the first position (full attenuation position) and the second position (partial attenuation position; 77 moves along a linear axis as claimed to deploy the plug into and out of aperture 66, functioning similar to push button writing instruments; see [0018]; see figures 4-6).
In regards to claim 4, Werner discloses the invention as discussed above.
Werner further discloses further including a seal (80; see [0018]; see figure 2) between the base (62) and the user interface (77) to releasably seal the user interface (77) to the base (62; 80 is selectively moveable into and out of 68, thus 80 releasably seals 77 with 62).
In regards to claim 5, Werner discloses the invention as discussed above.
Werner further discloses wherein the user interface (77) is a push-activated interface, activated by a user moving the user interface (77) toward the earmuff ring (ring of 14) to both move the noise reduction member (55) from the first position (full attenuation position) to the second position (partial attenuation position) and to move the noise reduction member (55) from the second position (partial attenuation position) to the first position (full attenuation position; see [0018] in reference to 85 of 77 functioning similar to push button writing instruments (aka click button pens) which is considered to mean 77 functions as claimed; further evidenced by Applicant’s specification [0051] which states “Referring to FIG 8A an earmuff cap includes a pop-it mechanism… the user simply pushes the middle portion until it clicks and is an open position. The mechanism concept is similar to those found in many pens”).
In regards to claim 6, Werner discloses the invention as discussed above.
Werner further discloses including a biasing member (95; see [0020]; see figure 2) biasing the user interface (77) away from the earmuff ring (ring of 14) in both the first position (full attenuation position) and the second position (partial attenuation position; see [0020]).
In regards to claim 8, Werner discloses the invention as discussed above.
Werner further discloses, wherein the user interface (77) does not rotate about the linear axis as the user interface (77) is moved along the axis (77 functioning similar to push button writing instruments (aka click button pens) is considered to not rotated about the linear axis; this consideration is further evidenced by Applicant’s specification [0051] which discloses a similar functionality of the claimed user interface).
Claim(s) 7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Werner as evidenced by Rhoades (US 3,205,863).
In regards to claim 7, Werner discloses the invention as discussed above.
Werner further discloses including a fixed structure (120; see [0021]; see figure 7) having a cam surfaced (122; see [0021]; see figure 7) secured to the base (62; 120 is indirectly secured to 62 as each structure is a portion of 14, and thus, when 14 is fully assembled, all structures are secured to one another), and a rotating structure (128; see [0021-0022]; see figure 6) rotating with respect to the fixed structure (120) and the user interface (77; see [0022]), the rotating structure (122) rotating from a first location on the cam surface (122) in the first position (full attenuation position) and a second location on the cam surface (122) in the second position (partial attenuation portion; see [0022]; see figures 7-10).
Werner is silent to the fixed structure and rotating structure being a fixed ring and a rotating ring.
Werner, as discussed above, discloses in [0018] that 85 (and therefore, 120 and 122 of 85) of 77 functions similar to push button writing instruments (aka click button pens). It is known in the art of push-button writing instruments that structures similar to 120 and 128 of Werner are formed as rings. The assertion is evidenced by Rhoades who teaches one such push button user interface (8; see [col 3 ln 30-35]; see figure 4) of a writing implement (see figure 1) having a first position (deployed; see figure 2) and a second position (undeployed; see figure 1); wherein the user interface (8) has a fixed ring (34; see [col 4 ln 1-5]; see figure 4; see figures 3 and 7 that 34 is in the shape of a ring) and a rotating ring (20; see [col 3 ln 50-70]; see figure 4).
Thus, the fixed structure of Werner (120) is a fixed ring, and the rotating structure of Werner (128) is a rotating ring as evidenced by Rhoades.
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.
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.
Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Werner in view of Goldstein et al. (US 2008/0181419 A1) (hereinafter Goldstein).
In regards to claim 2, Werner discloses the invention as discussed above.
Werner does not disclose further including a speaker proving an audio sound that is automatically lowered in volume when the user interface is moved from the first position to the second position.
However, Goldstein teaches an analogous noise attenuation device (100; see [0033] and [0043]; see figure 1) further including a speaker (125; see [0034]; see figure 1) proving an audio sound (audio content; see [0015]) that is automatically lowered in volume when there is a higher decibel level as compared to a lower decibel level (see [0070]) for the purpose of ensuring the speaker does not provide high-levels of sound in combination with high levels of ambient noise which may cause temporary or permanent hearing threshold shift (see [0070]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the earmuff as disclosed by Werner by including the speaker which provides an audio sound that is automatically lowered in volume when there is a higher decibel level as compared to a lower decibel level as taught by Goldstein in order to have provided an improved earmuff that would add the benefit of allowing the earmuff to provide the user with a desired audio content from a media player or cell phone which adjusts the audio to within a safe and subjectively optimized listening level range (see [0037]) to ensure the speaker does not provide high-levels of desired audio content in combination with high levels of ambient noise which may cause temporary or permanent hearing threshold shift (see [0070]).
Thus, as now combined, Werner as now modified by Goldstein discloses a speaker proving an audio sound that is automatically lowered in volume when the user interface is moved from the first position to the second position as claimed because the earmuff of Werner when in the first position provides full noise attenuation (a lower total decibel level), and when in the second position provides partial attenuation (a higher total decibel level; see [0018]), and the included speaker of Goldstein provides an audio sound that is automatically lowered in volume when there is a higher decibel level as compared to a lower decibel level (see [0037] and [0070]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Gates (US 10,130,517 B2) which discloses a hearing protection system similar to the non-elected species A seen in Applicant’s figures 1a-6.
Vlacic (CA 2,665,891 C) which discloses a similar earmuff (10; see figure 1) comprising a push activated user interface (1; pg4; see figure 3) which moves from a first to a second position to alter a level of attenuation provided by the earmuff (see abstract) which reads on claims 1-6, and 8 of Applicant’s elected invention and is capable of being utilized as a primary reference.
Masalin (US 2022/0354699 A1) which discloses a similar earmuff (ear protection device; see [0018]; see figure 1) comprising a user interface (1; [0018]; see figure 1) which moves from a first to a second position to alter a level of attenuation provided by the earmuff (see [0008]) which reads on claims 1-4 of Applicant’s elected invention and is capable of being utilized as a primary reference.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL MILLER whose telephone number is (571)270-5445. The examiner can normally be reached Mon-Fri 8am-4pm.
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/DANIEL A MILLER/Examiner, Art Unit 3786