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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “wherein the lower guard has a mandibular advancement layer forming a flat surface opposite the occlusal surface” (claim 4) must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
New corrected drawings in compliance with 37 CFR 1.121(d) are required in this application because:
Some of the reference numbers appear to be drawn in by pen/pencil, Figure labels appear written in by pen/pencil, the drawings appear to be a mix of proper line drawings with portions of them drawn in by pen or pencil.
Applicant is advised to employ the services of a competent patent draftsperson outside the Office, as the U.S. Patent and Trademark Office no longer prepares new drawings. The corrected drawings are required in reply to the Office action to avoid abandonment of the application. The requirement for corrected drawings will not be held in abeyance.
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: “wherein the lower guard has a mandibular advancement layer forming a flat surface opposite the occlusal surface”.
Appropriate correction is required.
Claim Objections
Claim 2 objected to because of the following informalities: “wherein the flap curves to form a ramp against which an anterior portion of the user’s tongue rests when the lower guard is placed in the user’s mouth” should be -wherein the flap curves to form a ramp, where the ramp is configured to be resting against an anterior portion of the user’s tongue when the lower guard is placed in the user’s mouth-. Appropriate correction is required.
Claim 3 objected to because of the following informalities: “wherein the flap arches to rest under the tongue when the lower guard is placed in the user’s mouth” should be -wherein the flap arches and is thus configured to rest under the tongue when the lower guard is placed in the user’s mouth- . Appropriate correction is required.
Claim 5 objected to because of the following informalities: “operative to urge” should be -configured to urge-. 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 2, 3 and 5 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 2 recites the limitation "the user’s tongue" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 2 recites the limitation "the user’s mouth" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "the tongue" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "the user’s mouth" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 5 recites the limitation "the user’s upper dentition" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 5 recites the limitation "the user’s lower mandible" in line 3. There is insufficient antecedent basis for this limitation in the claim.
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.
Claim(s) 1-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Greenburg (US 10383758 B1) in view of Li (US 20100294283 A1).
Regarding claim 1, Greenburg discloses an anti-snoring dental appliance (1, Figure 1, see Abstract), comprising a lower guard (5, Figure 1-3, 5 is a lower guard) including:
(a) an occlusal surface (lower piece 7, Figure 2-3) with a buccal-labial flange extending therefrom and with a lingual flange extending therefrom, the occlusal surface, buccal-labial flange, and lingual flange forming a substantially U-shaped channel therebetween configured to accommodate a user’s lower teeth (Col. 3 lines 19-45, lower piece 7 is molded to the teeth via biting into the material by the user, this will inherently form a buccal-labial flange on the exterior of the teeth, a lingual flange on the interior side of the teeth, and the flat top of teeth will form the occlusal surface, thus providing a U-shaped channel to accommodate the user’s teeth), the U-shaped channel (lower piece 7) having a first end and a second end (Figures 2-3, wherein the end of the arcuate lower piece 7 having the U-shaped channel are the first and second ends);
(b) a posterior strap (band 3, Figure 2) joining a first portion of the lingual flange (7) proximal to the first end with a second portion of the lingual flange (7) proximal to the second end (Figure 2, band 3 joins the first and second ends of the guard 5 and lower piece 7 together, wherein as the formed lingual portions of the lower piece 7 would be “joined” via being part of the lower piece 7).
Greenburg does not disclose explicitly disclose the occlusal surface with a buccal-labial flange extending therefrom and with a lingual flange extending therefrom, the occlusal surface, buccal-labial flange, and lingual flange forming a substantially U-shaped channel therebetween configured to accommodate a user’s lower teeth and disclose (c) a flap extending from a central portion of the lingual flange.
However, Li teaches an analogous anti-snoring mouth piece (10, Abstract, Figure 1), wherein the mouth piece (10) comprises an analogous lower guard (14, Figure 1) comprising an occlusal surface, buccal-labial flange, and lingual flange forming a U-shaped channel (Figure 2B), wherein there is a flap (30, Figures 2A-2B, [0052]) extending from a central portion of the lingual flange (Figure 2A-2B, the flap 30 is extending from a central portion of the lingual flange).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to having been provided the flap (30) (and lower guard) as taught by Li to the lower guard (5) of Greenburg in order to provide an improved anti-snoring device as the flap (30) (attached to the lower guard) of Li further ensures the tongue will be pulled forward and not collapse thus ensuring ordered breathing and stopping disordered breathing events such as snoring (Li [0049-0050]).
Regarding claim 2, Greenburg in view of Li discloses the invention of claim 1 above.
Li further teaches wherein the flap (30) curves to form a ramp against which an anterior portion of the user’s tongue rests when the lower guard is placed in the user's mouth (Li Figure 2B and Figure 7A-7B, flap 30 has a ramp portion 102 that the anterior tongue rests against).
Regarding claim 3, Greenburg in view of Li discloses the invention of claim 1 above.
Li further teaches wherein the flap (30) arches to rest under the tongue when the lower guard is placed in the user’s mouth (Li Figure 2B and Figure 7A-7B, flap 30 has a portion 102 that arches to rest under the tongue of the user).
Regarding claim 4, Greenburg in view of Li discloses the invention of claim 1 above.
Greenburg further discloses wherein the lower guard (5) has a mandibular advancement layer (9a/9b, Figure 2, posts 9a/9b are on a flat layer of material) forming a flat surface opposite the occlusal surface (See Figure 2, wherein 9a/9b have a flat surface that would vertically opposite the occlusal surface 7) (Col. 3 line 44 – Col. 4 line 26, the posts 9a/9b mate with the holes of the upper section 4 in order to provide mandibular advancement).
Regarding claim 5, Greenburg in view of Li discloses the invention of claim 1 above.
Greenburg further discloses an upper guard (4/6, Figure 3), configured to accommodate the user’s upper dentition (Col. 3 lines 24-35), having a mandibular advancement layer (4, Figure 3) operative to urge the user’s lower mandible anteriorly (Col. 3 line 44 – Col. 4 line 26, the posts 9a/9b mate with the holes of the upper section 4 in order to provide mandibular advancement), and wherein the upper guard (4/6) aligns with the lower guard (5) and is configured to prevent movement of the upper guard relative to the lower guard (Col. 3 line 44 – Col. 4 line 26, the posts 9a/9b mate with the holes of the upper section 4 thus locking the upper and lower guards/sections into alignment).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 9204991 B1 (Harkins) – provides for a strap connecting lingual walls of first and second ends of a lower guard
US 20210162156 A1 (Myosa) – provides for another flap structure
US 5467783 A (Meade) – provides for flap structure closer in line with explicit instant disclose
US 5316020 A (Truffer) - provides for further flap structure
US 4304227 A (Samelson) – provides for further tongue flap structure
US 20160106571 A1 (Vaska) – provides for further strap structure directly connecting from lingual walls
US 20140053851 A1 (Podmore) – provides for having a posterior tongue restraining structure while also pulling tongue forward anteriorly with a flap
US 20160193074 A1 (Thynne) – provides for further flap structure
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KEVIN S ALBERS whose telephone number is (571)272-0139. The examiner can normally be reached Monday-Friday 7:30 am to 5:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Rachael Bredefeld can be reached at (571) 270-5237. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KEVIN S ALBERS/Patent Examiner, Art Unit 3786
/RACHAEL E BREDEFELD/Supervisory Patent Examiner, Art Unit 3786