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 .
DETAILED ACTION
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 6-15 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.
Claims 6-14 all recite either a toothbrush head (1) (Claims 6-13) or a toothbrush head (12) in the first lines. Additionally, Claim 15 recites a ball joint (25) which is not the proper reference character. There is insufficient antecedent basis for these limitations in the claims. Applicant need to review the claims line-by-line and ensure the reference characters are consistent.
Claim 13 is written with reference characters that are all incorrect and thus the invention is unclear and lacking antecedent basis. Applicant need to review the claims line-by-line and ensure the reference characters are consistent.
Claim 13 depends from Claim 15, which is out of order. Moreover, Claim 15 is drawn to just “a toothbrush” whereas Claim 13 is drawn to “a toothbrush head.” Thus, the preambles are inconsistent and unclear.
Claim 13 recites “which varies in a concave cut along the head-handle” in line 3. This is confusing because neither the figures nor the specification discusses a concave cut. Applicant should cancel this claim.
Claim 13 recites “have the same length L2” in the last line. This is confusing because neither the figures nor the specification discusses bristles at the distal end and the proximal end having the same length. Applicant should cancel this claim.
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) 1-12 are rejected under 35 U.S.C. 103 as being unpatentable over EP Patent No. 4 011 241 (EP 241) in view of US Patent No. 10,537,169 to Tschol et al. (Tschol).
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Regarding Claim 1: EP 241 discloses a toothbrush head (1) connected to or connectable to a handle (2) to define a head-handle longitudinal direction and a widthways direction perpendicular to the longitudinal direction, the head (1) having a bristle surface (3) with a distal end (3A) further from the handle (2), a proximal end (3B) closer to the handle (2), a left side and a right side, wherein tufts of bristles extend from the bristle surface (3), wherein the tufts of bristles comprise first tufts (5) comprising first bristles with rounded tips (See Col. 5, lines 55-56) and second tufts (7) comprising second bristles which are tapered (See Col. 7, lines 11-12) . . . and wherein second tufts (7) are arranged on the left side and the right side (See Annotated Fig. A) of the bristle surface (3), with first tufts (5) being arranged between (See Annotated Fig. A) the second tufts (7).
EP 241 does not disclose some of the first tufts being arranged in a circular nest. However, Tschol teaches a toothbrush wherein some of the first tufts (See Annotated Fig. B) are arranged in a circular nest (See Annotated Fig. B) outermost closest to the distal end. It would have been obvious to a person having ordinary skill in the art at a time before the effective date of the claimed invention to modify the apparatus of EP 241 by using a circular nest of first tufts similar to those taught by Tschol to enable the brush to better reach and clean the molars.
Regarding Claim 2: EP 241 discloses a toothbrush head (1) according to claim 1, wherein the second tufts (7) consist solely of second bristles (See Col. 12, lines 24-25).
Regarding Claim 3: EP 241 discloses a toothbrush head (1) according to claim 1, wherein the first tufts (5) of the nest (See Annotated Fig. B) have a diagonal cut (See Annotated Fig. B) of the bristles increasing towards the distal end (3A) of the bristle surface (3).
Regarding Claim 4: EP 241 discloses a toothbrush head (1) according to claim 1 wherein there are six to 16 second tufts (7), preferably eight to 12, most preferably 10 second tufts (7). (See Annotated Fig. A and Col. 6, lines 34-39)
Regarding Claim 5: EP 241 discloses a toothbrush head (1) according to claim 1 wherein there are [10 to 20] first tufts (5). Notably, EP 241 does not disclose that there can be up to 23 first tufts. However, EP 241 also states that “the teachings of the present invention are not limited to the particular number of tufts.” (See Col. 5, lines 32-34)
Moreover, Courts have held that “mere duplication of parts has no patentable significance unless a new and unexpected result is produced.”1 Here, duplicating the essential working part of the first tuft (5) to provide up to 23 first tufts (5) would provide additional cleaning capabilities of the toothbrush. Additionally, such a modification would not produce any new and unexpected results. As such, it would have been obvious to a person of ordinary skill in the art at a time before the effective date of invention to duplicate the essential working cable to provide additional first tufts such that there are up to 23 first tufts to provide additional cleaning capabilities of the toothbrush.
Regarding Claim 6: EP 241 discloses a toothbrush head (1) according to claim 1 wherein the second bristles (bristles of (7)) have a length (L1) which is greater than the length (L2 and L3) of any other bristles on the bristle surface (3). (See also Annotated Fig. A)
Regarding Claim 7: EP 241 discloses a toothbrush head (1) according to claim 1 wherein the length of the second bristles (bristles of (7)) is greater than 12mm (14mm – See Col. 8, lines 21-22), and the length of the first bristles (bristles of (5)) ranges from 9mm to 11.5mm (See Col. 6, lines 20-28).
Regarding Claim 8: EP 241 discloses a toothbrush head (1) according to claim1 wherein the first bristles (bristles of (5)) are non-tapered, end-rounded (See Col. 5, lines 55-56) soft bristles with a circular cross-section with a diameter of around 0.15mm (See Col. 6, line 3).
Regarding Claim 9: EP 241 discloses a toothbrush head (1) according to claim 1 wherein the second bristles (bristles of (7)) are tapered PBT (See Col. 5, lines 52) bristles with a circular cross-section with a diameter of around 0.15mm (See Col. 3, lines 27-29).
Regarding Claim 10: EP 241 discloses a toothbrush head (1) according to claim 1 wherein there are only first tufts (5) and second tufts (7) on the bristle surface (3), and wherein some of the first tufts (5) are arranged in a row extending widthways closest to the proximal end (3B) and some of the first tufts (5) are arranged centrally, inwardly from second tufts (7), on the bristle surface (3).
Regarding Claim 11: EP 241 discloses a toothbrush head (1) according to claim 10, wherein the row of first tufts (5) extending widthways closest to the proximal end (3B) consists of [two] first tufts (5). Notably, EP 241 does not disclose that there are four first tufts at the proximal end. However, it would have been obvious to a person of ordinary skill at a time before the effective date of invention to duplicate the essential working part of the two first tufts to create a four first tuft row. Here’s why.
Courts have held that “mere duplication of parts has no patentable significance unless a new and unexpected result is produced.”2 Here, duplicating the essential working part of the two first tufts (5) to provide a row of four first tufts (5) would provide additional cleaning capabilities of the toothbrush. Additionally, such a modification would not produce any new and unexpected results. As such, it would have been obvious to a person of ordinary skill in the art at a time before the effective date of invention to duplicate the essential working cable to provide additional first tufts such that there are four first tufts to provide additional cleaning capabilities of the toothbrush.
Regarding Claim 12: EP 241 discloses a toothbrush head (1) according to claim 10 wherein the first tufts (5) which are arranged centrally, inwardly from second tufts (7), on the bristle surface (3) comprise two longitudinal rows of at least three tufts (5). (See generally Annotated Fig. A)
Claim(s) 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over EP 241 in view of Tschol and in further view of US Patent No. 6,327,735 to Kramer (Kramer).
Regarding Claim 14: Neither EP 241 nor Tschol discloses or teaches a flexible S-bend. However, Kramer teaches a toothbrush comprising a toothbrush head (1) further comprising a flexible zone (see S-bend in Figure 6 of Kramer), in particular a s-bend, in an upper region of the handle. It would have been obvious to a person having ordinary skill in the art at a time before the effective date of the claimed invention to modify the apparatus of EP 241 in view of Tschol by using a flexible zone similar to that taught by Kramer to allow the toothbrush to flex and bend so as to avoid excess brushing force imposed by the user.
Regarding Claim 15: Neither EP 241 nor Tschol discloses or teaches a ball joint. However, Kramer teaches a toothbrush comprising a toothbrush head (1) further comprising a ball joint (19) in a neck region. It would have been obvious to a person having ordinary skill in the art at a time before the effective date of the claimed invention to modify the apparatus of EP 241 in view of Tschol by using a ball joint similar to that taught by Kramer to allow the toothbrush to flex and bend so as to avoid excess brushing force imposed by the user.
Regarding Claim 13: EP 241 discloses a toothbrush head (1) according to claim 15, wherein the first bristles (6) have a length, measured from where the first bristles (6) protrude from the bristle surface (3), which varies in a concave cut (See generally Annotated Fig. A) along the head-handle longitudinal direction and wherein the first bristles (6) positioned closest to the distal end (3A) and closest to the proximal end (3B) have the same length (See generally Annotated Fig. A).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. In addition to the references used in this rejection and those cited in the PTO-892, the following references are very relevant to the claimed invention: US 2016/0360874, 2014/0359957.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERET C MCNICHOLS whose telephone number is (571)270-7363. The examiner can normally be reached Monday - Friday: 9:00 - 5:00 (Eastern).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Terrell McKinnon can be reached at 571-272-4797. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ERET C. MCNICHOLS
Primary Examiner
Art Unit 3632
/ERET C MCNICHOLS/Primary Examiner, Art Unit 3632
1 See MPEP 2144.04(VI)(B).
2 See MPEP 2144.04(VI)(B).
