DETAILED ACTION
This is a Non-Final Rejection for Application 18/850,759 filed September 25, 2024. This Application is a 371 of PCT/FR2023/050504 filed April 7, 2023 and claims the benefit of Foreign Application FR2203950 filed April 27, 2022. Claims 1-6 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 .
Claim Objections
Claim 1 is objected to because of the following informalities. Appropriate correction is required.
The recitation “a so-called active part” in line 4 should recite “an active part” as the term “so-called” is unnecessary and may lead to confusion as to what the active part is.
The recitation “a cylindrical bundle of tubular resonance chambers” in lines 10-11 indicates that the active part is required to comprise multiple tubular resonance chambers when the line before requires only at least one. The recitations should be corrected such that the amount of tubular resonance chambers required in a single claim are consistent.
Claim Rejections - 35 USC § 112(b)
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 1-6 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 1 recites the limitation "at least two straight, circular-based cylindrical resonance chambers (7, 8, 9)" in lines 11-12. There is insufficient antecedent basis for this limitation in the claim. It is unclear if these resonance chambers are two of the at least one tubular resonance chambers recited previously as the language being used to describe the chambers is inconsistent and makes it unclear how many chambers are actually required since one is required previously but this limitation requires two.
Additionally, claim 1 recites the limitation "at least two resonance chambers (7, 9)" in lines 13-14. There is insufficient antecedent basis for this limitation in the claim. It is unclear if these resonance chambers are two of the at least one tubular resonance chambers recited previously as the language being used to describe the chambers is inconsistent and makes it unclear how many chambers are actually required since one is required previously but this limitation requires two.
Additionally, claim 1 recites the limitation "the internal diameter of the resonance chambers" in lines 14-15. There is insufficient antecedent basis for this limitation in the claim. An internal diameter is not previously recited and the limitation requires two resonance chambers. It is unclear if the resonance chambers are the same as the previously recited chambers as the language being used to describe the chambers is inconsistent.
Claims 2-6 are rejected for depending from and not curing the deficiencies of claim 1.
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.
Claim(s) 1-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2013/0161119 (Mulvey) in view of US 2003/0116165 (Huang) and US 2013/0056295 (Campbell et al.).
Regarding claim 1, Mulvey discloses a device (1) for selectively attenuating noise emitted by dental equipment at frequencies between 5600 Hz and 6500 Hz without attenuating the frequencies between 75 Hz and 450 Hz corresponding to the human voice (Mulvaney discloses a device that comprises an ear tip. See the abstract and Figs. 1-7. The recitations of selectively attenuating noise emitted by dental equipment at frequencies between 5600 Hz and 6500 Hz without attenuating the frequencies between 75 Hz and 450 Hz corresponding to the human voice amount to intended use recitations and where a patentee defines a structurally complete invention in the claim body and uses the preamble only to state a purpose or intended use for the invention, the preamble is not a claim limitation. See MPEP 2111.02(II).), said device comprising
a so-called active part (3) whose shapes and dimensions correspond to the shapes and dimensions of an external auditory canal (4) of a human being and adapted to be removably inserted into the external auditory canal (4) (The ear tip 10 of Mulvaney comprises a stem 200 which is interpreted as an active part. The stem is shaped to correspond to the shapes and dimensions of an external auditory canal (4) of a human being and adapted to be removably inserted into the external auditory canal (4). See Figs. 1-5.),
a gripping part (5) of the device (1) (A rear extension flange 127 is interpreted as a gripping part of the ear tip 10 since a user is capable of gripping the flange 127.),
the active part (3) comprising at least one orifice (71, 81, 91) for communication with the external auditory canal (4) and at least one tubular resonance chamber (7, 8, 9) having an open end (71, 81, 91) (The stem 200 comprises a concave opening 118 which is interpreted as an orifice and is configured for communication with the external auditory canal and two hollow sound tubes 210. The hollow sound tubes 210 have an open end that opens into the concave opening 118. See [0030] and Fig. 3.),
characterized in that the active part (3) is configured as a cylindrical bundle of tubular resonance chambers comprising at least two straight, circular-based cylindrical resonance chambers (7, 8, 9) whose longitudinal axes (A7, A8, A9) are parallel to each other and to a longitudinal axis (A3) of the active part (3) (The stem 200 is interpreted as being configured as a cylindrical bundle of tubular resonance chambers since it comprises two hollow sound tubes 210 which are at least partially straight and circular-based. See [0030]. The longitudinal axes of the tubes 210 are parallel to each other and the longitudinal axis of the stem 200. See Figs. 3, 6 and 7.).
Mulvey does not disclose the at least one tubular chamber having a closed end (70, 90), and in that at least two resonance chambers (7, 9) have different lengths (L7, L9), and in that the internal diameter of the resonance chambers (7, 8, 9) is between 2 mm and 5 mm.
However, Huang discloses an ear piece with multiple axial holes therethrough. See Figs. 8-9 and [0023]. The axial holes are analogous to the sound tubes of Mulvey and are closed at one end by a diaphragm 43. The diaphragm 43 prohibits water and high noises from passing through the axial holes 421 to the inside of the ear in which the earpiece 4 is installed, but allows a certain amount of sound waves to pass.
Therefore, it would have been obvious to an artisan of ordinary skill before the effective filing date to add a diaphragm to one end of the two hollow sound tubes 210 of Mulvey as taught by Huang. As a result, Mulvey in view of Huang teaches the at least one tubular chamber having a closed end (70, 90) (The two hollow sound tubes 210 of Mulvey comprise a diaphragm.). A skilled artisan would have been motivated to do so because Huang teaches that the diaphragm is useful to prohibit water and high noises from passing through the axial holes 421 to the inside of the ear in which the earpiece 4 is installed, but allows a certain amount of sound waves to pass ([0023]). A skilled artisan would have a reasonable expectation of success given that all references are analogous and drawn to ear pieces with hollow tubes.
Additionally, Campbell discloses an ear tip piece for attenuating sound comprising two channels configured for the transmission of sound. The two channels of Campbell may be different lengths as shown in Figs. 6 and 7 by passing the first channel through a projection. This allows the first channel to better project sound to the ear drum while simultaneously allowing the second channel to remain unobstructed thereby reducing the occlusive effect. See [0051]-[0053]. Campbell also discloses that the two channels may be a variety of widths, shapes, and slopes and that the width of the first channel ranges from approximately 0.06 inches to 0.13 inches, preferably 0.10 inches, and the second channel ranges in width from about 0.02 inches to 0.13 inches, preferably 0.09 inches. See [0041]. Since the channels are tubular, the width is interpreted as being the same as the diameter.
Therefore, it would have been obvious to an artisan of ordinary skill before the effective filing date to shorten the length of one of the hollow sound tubes 210 of Mulvey and for the hollow sound tubes to be 1.5-3.3 mm in diameter as taught by Campbell. As a result, Mulvey in view of Huang and Campbell teaches in that at least two resonance chambers (7, 9) have different lengths (L7, L9) (Campbell teaches two different length channels that are analogous channels to the tubes of Mulvey.), and
in that the internal diameter of the resonance chambers (7, 8, 9) is between 2 mm and 5 mm (Campbell teaches that a diameter of 2.54 mm (0.10 in), which is between 2 mm and 5 mm, is acceptable for both channels and is preferred for the first channel.). A skilled artisan would have been motivated to do so because Campbell teaches that the shortened tube allows for the open end of the tube to remain unobstructed and reduces the occlusive effect ([0053]) and that a diameter of 2.54 mm (0.10 in) is an acceptable diameter to allow various tubes, receivers and monitors to be fit therein ([0041]). A skilled artisan would have a reasonable expectation of success given that all references are analogous and drawn to ear pieces with hollow tubes.
Regarding claim 2, Mulvey in view of Huang and Campbell discloses the device according to claim 1.
Mulvey in view of Huang and Campbell as modified above does not disclose that the number of circular-based cylindrical resonance chambers (7, 8, 9) is three.
However, Huang discloses an ear piece with multiple axial holes therethrough. See Figs. 8-9 and [0023]. The embodiment in Fig. 8 shows 7 axial through holes as an example.
Therefore, it would have been obvious to an artisan of ordinary skill before the effective filing date to add a third tube to the stem 200 of Mulvey as taught by Huang. As a result, Mulvey in view of Huang and Campbell teaches that the number of circular-based cylindrical resonance chambers (7, 8, 9) is three (Huang teaches at least three axial holes and Mulvey discloses at least one tube, therefore three tubes are obvious). A skilled artisan would have been motivated to do so because one of ordinary skill in the art would recognize that more tubes allows for more customization options of the tubes as different tubes, receivers and monitors may be placed in each tube and more tubes allow for more devices while preventing the devices from interfering with one another. A skilled artisan would have a reasonable expectation of success given that all references are analogous and drawn to ear pieces with hollow tubes.
Additionally, it would have been an obvious matter of design choice to add another tube to Mulvey, since such a modification would have involved a mere duplication of a component. A duplication of parts has no patentable significance unless a new and unexpected result is produced. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). See MPEP 2144.04.
Regarding claim 3, Mulvey in view of Huang and Campbell discloses the device according to claim 1, characterized in that all the resonance chambers have the same internal diameter (As modified in claim 1, the diameters of the two tubes of Mulvey are both 2.54 mm.).
Regarding claim 4, Mulvey in view of Huang and Campbell discloses the device according to claim 1.
Mulvey in view of Huang and Campbell as modified above does not disclose that at least two resonance chambers (7, 9) have a different internal diameter (D7, D9).
However, Campbell discloses that the two channels may be a variety of widths, shapes, and slopes and that the width of the first channel ranges from approximately 0.06 inches to 0.13 inches, preferably 0.10 inches, and the second channel ranges in width from about 0.02 inches to 0.13 inches, preferably 0.09 inches. See [0041]. The preferred diameters are different.
Therefore, it would have been obvious to an artisan of ordinary skill before the effective filing date for the hollow sound tubes to be different diameters as taught by Campbell. As a result, Mulvey in view of Huang and Campbell teaches that at least two resonance chambers (7, 9) have a different internal diameter (D7, D9) (The preferred diameter of the first channel in view of Campbell is 0.10 inches while the second channel is 0.09 in.). A skilled artisan would have been motivated to do so because Campbell teaches that a first channel’s diameter of 2.54 mm (0.10 in) and a second channels diameter of 2.286 mm (0.09 in) are preferred diameters to allow various tubes, receivers and monitors to be fit therein ([0041]). A skilled artisan would have a reasonable expectation of success given that all references are analogous and drawn to ear pieces with hollow tubes.
Additionally, it would have been an obvious matter of design choice for the size of diameters of the two tubes of Mulvaney to be different, since such a modification would have involved a mere change in size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955).
Regarding claim 5, Mulvey in view of Huang and Campbell discloses the device according to claim 1, characterized in that at least one of the resonance chambers (7, 8, 9) has a diameter of around 3.3 mm (Campbell discloses that the channels may be up to 3.3 mm (0.13 in), therefore Mulvey as modified by Campbell teaches that the tubes may have a diameter of around 3.3 mm.).
Additionally, it would have been an obvious matter of design choice to for the tubes of Mulvey to have a diameter of 3.3 mm, since such a modification would have involved a mere change in size of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955).
Regarding claim 6, Mulvey in view of Huang and Campbell discloses the device of claim 1.
Mulvey in view of Huang and Campbell does not disclose a kit comprising at least two devices (1) in accordance with claim 1, each device (1) having a different attenuation volume and/or frequency range from the other device (1).
However, it would have been an obvious matter of design choice to provide a second device, thereby forming a kit, since such a modification would have involved a mere duplication of a component. A duplication of parts has no patentable significance unless a new and unexpected result is produced. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). See MPEP 2144.04. Providing a second device in a kit is obvious for many reasons such as for allowing for replacements, for providing different sizes to fit different users, for accounting for a device intended for the left ear and the right ear, and for providing different properties. Campbell discloses both a left and right ear tip piece in Figs. 6 and 7, respectively.
Additionally, Campbell discloses a range of diameters for the channels and multiple embodiments with different length channels. See [0041]. Changing the diameter and length inherently changes the attenuation volume and frequency range of the device.
Therefore, it would have been obvious to an artisan of ordinary skill before the effective filing date to provide two or more devices of Mulvey with different lengths and diameters as taught by Campbell. As a result, Mulvey in view of Huang and Campbell teaches that it is obvious to disclose a kit comprising at least two devices (1) in accordance with claim 1, each device (1) having a different attenuation volume and/or frequency range from the other device (1) (Mulvey in view of Huang and Campbell discloses the device of claim 1. Duplicating the device to provide two or more is supported by Campbell and is within the skill of one of ordinary skill in the art and is not inventive. Modifying the two or more devices to have different lengths and diameters is supported by Campbell and is within the skill of one of ordinary skill in the art and is not inventive. Modifying the length and diameter of the tubes inherently changes the attenuation volume and frequency range.). A skilled artisan would have been motivated to do so because one of ordinary skill in the art would recognize that providing at least a second device with a different attenuation volume and/or frequency range allows for multiple people to be protected using one kit, for varying sound sources to be protected against, and for different size and shape ears to be protected. A skilled artisan would have a reasonable expectation of success given that all references are analogous and drawn to ear pieces with hollow tubes.
Conclusion
The following prior art made of record and not relied upon are considered pertinent to
applicant's disclosure.
US 2025/0249278 (Carillo et al.)
US 3,688,863 (Johnson)
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/SETH R. BROWN/Examiner, Art Unit 3786
/RACHAEL E BREDEFELD/Supervisory Patent Examiner, Art Unit 3786