DETAILED ACTION
This is the initial Office action for non-provisional application 18/837,730 filed August 12, 2024, which is a national stage entry of PCT/JP2023/004582 filed February 10, 2023 and claims foreign priority from JP2022-020255 filed February 14, 2022. Claims 1-11, as presented in the preliminary amendments filed March 3, 2025, are currently pending.
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 . 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.
Priority
Acknowledgment is made of Applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). Certified copies of papers as required by 37 CFR 1.55 have been received.
Information Disclosure Statement
The information disclosure statement filed August 12, 2024 fails to comply with 37 CFR 1.98(a)(3)(i) because it does not include a concise explanation of the relevance, as it is presently understood by the individual designated in 37 CFR 1.56(c) most knowledgeable about the content of the information, of each reference listed that is not in the English language. It has been placed in the application file, but the information referred to therein has not been considered.
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.
Claim 9 is 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 9 recites the limitation “a user” in lines 4-5; however, since claim 1 previously introduces a user, it is unclear whether or not claim 9 is referring to the same user. For examination purposes, the limitation “a user” as recited in claim 9 has been interpreted as “the user” in order to clearly refer to the same user throughout the claims.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claim 9 is rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101).
Claim 9 recites the limitations “a rod-shaped body that pushes up and supports a jaw of a user” in lines 4-5 and “the pressing portion presses a back of the user” in line 8; however, these limitations positively recite parts of the user’s body to define the claimed invention. For examination purposes, the above limitations of claim 9 have been interpreted as “a rod-shaped body configured to push up and support a jaw of a user” and “the pressing portion configured to press a back of the user”, respectively.
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.
Claims 1-6 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Miller (US 5,501,646) in view of Giontella (US 2011/0004136).
Regarding claim 1, Miller discloses an instrument (apparatus 14) capable of being used as a posture correction instrument, the instrument (14) comprising a jaw receiving portion (piston rod 18 + chin cup 28) and a support portion (collar strap 22 + chest plate 46 + cylinder 54), wherein the jaw receiving portion (18+28) includes a jaw receiving portion main body (chin cup 28) at one end thereof, the support portion (22+46+54) includes a support portion main body (chest plate 46 + cylinder 54) and a shoulder portion (collar strap 22), the support portion main body (46+54) is configured to able to support the jaw receiving portion (18+28), and the shoulder portion (22) is configured to able to suspend the support portion main body (46+54) from a shoulder of a user (Figs. 1-10; column 3, lines 59-67; column 4, lines 5-9).
The limitation “a posture correction instrument” has been interpreted as a recitation of the intended use of the claimed invention which must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
However, Miller fails to teach that the support portion further includes a wearing portion configured to be able to fix the support portion main body to a body of the user.
Giontella discloses an analogous instrument comprising a jaw receiving portion (chin rest 2 + means 8) and a support portion (support element 1 + belts 5+6), wherein the support portion (1+5+6) includes a support portion main body (support element 1), a shoulder portion (belt 5), and a wearing portion (belts 6) configured to be able to fix the support portion main body (1) to a body of a user (Figs. 2-4; ¶ 0023).
Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to modify the support portion of the instrument taught by Miller to further include a wearing portion configured to be able to fix the support portion main body to a body of the user as taught by Giontella for the purpose of more securely fixing the support portion main body to the user thus providing increased stability of the instrument.
Regarding claim 2, the combination of Miller and Giontella discloses the invention substantially as claimed, as described above, and Miller further discloses that the jaw receiving portion (18+28) is configured such that the jaw receiving portion main body (28) is capable of spherical movement (via ball joint socket 38) (column 4, lines 17-20).
Regarding claim 3, the combination of Miller and Giontella discloses the invention substantially as claimed, as described above, and Miller further discloses that the jaw receiving portion (18+28) is a stretchable rod-shaped body (via piston rod 18 being slidably received in cylinder 54 for movement in the direction of arrows 30) (Figs. 3 & 6-7; column 4, lines 30-31).
Regarding claims 4 and 5, the combination of Miller and Giontella discloses the invention substantially as claimed, as described above, and Miller further discloses that the jaw receiving portion (18+28) is capable of being detached from the support portion main body (46) (via collar 55 and/or sleeve 70), wherein the collar (55) and/or sleeve (70) would be capable of functioning as a tabletop fixing portion that is detachable from the jaw receiving portion (18+28) and can detachably fix the jaw receiving portion (18+28) to an arbitrary tabletop (Figs. 3 & 6-7; column 4, lines 34-36; column 5, lines 13-32).
Regarding claim 6, the combination of Miller and Giontella discloses the invention substantially as claimed, as described above, and Miller further discloses that the support portion (22+46+54) is configured to able to adjust a horizontal position of the support portion main body (46+54) (by means of buckle 42) (Figs. 1-2; column 4, lines 5-7; column 6, lines 13-14).
Regarding claim 9, the combination of Miller and Giontella discloses the invention substantially as claimed, as described above, and Miller further discloses that the shoulder portion (22) includes a pressing portion (strap 22 presses against shoulders of user), the jaw receiving portion (18+28) is a rod-shaped body (piston rod 18) configured to push up and support a jaw of the user, the support portion main body (46+54) supports the jaw receiving portion (18+28) from below, the shoulder portion (22) suspends and supports the support portion main body (46+54), and the pressing portion (22) is configured to press a back of the user by a weight of a head of the user applied to the shoulder portion (22) via the jaw receiving portion (18+28) and the support portion main body (46+54) (Fig. 8).
Claims 7, 8, 10, and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Miller in view of Giontella as applied to claim 1 above, and in further view of Ray (US 2008/0156332).
Regarding claim 7, the combination of Miller and Giontella discloses the invention substantially as claimed, as described above, but fails to teach that the support portion main body is a bag body.
Ray discloses an analogous instrument (device 100) comprising a jaw receiving portion (chin support 101 + upper portion 105) and a support portion (base 102 + lower portion 107 + strap 108), wherein the support portion (102+107+108) includes a support portion main body (base 102) formed as a bag body (socket) to receive a lower end (ball) of lower portion (107) (Figs. 1-2; ¶ 0031 & 0033).
Therefore, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the invention, to modify the support portion main body of the instrument taught by the combination of Miller and Giontella to be a bag body as taught by Ray for the purpose of providing pivoting movement of the jaw receiving portion relative to the support portion.
Regarding claim 8, the combination of Miller / Giontella / Ray discloses the invention substantially as claimed, as described above, and Miller further discloses a cylindrical body (cylinder 54) is disposed in the support portion main body (46+54) (Fig. 6; column 4, lines 42-43).
Regarding claim 10, the combination of Miller / Giontella / Ray discloses the invention substantially as claimed, as described above, and Miller further discloses a spring (coil spring 50) disposed in the support portion main body (46+54), wherein the spring (50) supports a lower end (piston 52) of the jaw receiving portion (18+28) (Figs. 6-7; column 40-41).
Regarding claim 11, the combination of Miller / Giontella / Ray discloses the invention substantially as claimed, as described above, and Miller further discloses a cylindrical body (cylinder 54) is disposed in the support portion main body (46+54) and the spring (50) is disposed in the cylindrical body (54) (Figs. 6-7; column 4, lines 40-43).
Conclusion
The following prior art made of record and not relied upon is considered pertinent to Applicant’s disclosure: Gwak (US 2021/0022503), Biggs (US 9,770,110), Hardcastle et al. (US 2015/0245940), Aguilera (US 8,814,106), Schiffman et al. (US 2013/0289460), Gallegos (US 8,042,775), Catipovic et al. (US 5,320,596), McGuiness et al. (US 4,793,334), and Nitschke (US 3,724,452).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Keri J. Nelson whose telephone number is 571-270-3821. The examiner can normally be reached Monday - Friday, 9am - 4pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Rachael E. 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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/KERI J NELSON/Primary Examiner, Art Unit 3786 12/29/2025