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 .
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.
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 far-infrared irradiation earmuff comprising a pair of earmuffs, an elastic arm connecting the pair of earmuff bodies and each of the earmuff bodies provided with a power input device and the far-infrared radiation device 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.
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 1-20 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.
Regarding claims 1-20, the phrase "characterized" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. The transitional phrase (i.e. between the preamble and the body of a claim) “characterized” and phrases incorporating it (“characterized by”, “characterized in that”, etc.) are common in applications of European origin in us practice claims containing these words and phrases may be rejected under 35 USC 112 paragraph two when characterized may connote more than mere description (the dictionary definition); in scientific parlance characterization may imply one or more physical steps or procedures (e.g. structure determination, elemental analysis, or qualitative tests) to identify a product. Since it is rare that applicant intends more than a mere description when using this language, physical steps are rarely disclosed. As Such, the reader may be unsure about the meaning of the wording of the claims, and additionally the scope of the claim is often unclear (“characterized” conveys no degree of openness). Usually these troublesome words or phrases can be replaced by the standard transitional words “having”, ”comprising”, and “wherein”.
Claims 11-20 recite the limitation "The far-infrared irradiation earmuff" in line 1. There is insufficient antecedent basis for this limitation in the 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-3 and 11-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over TW 202019515 A to Kuo (Kuo, see machine translation) in view of JP H09140810 A to Endo (Endo, see machine translation).
Regarding claim 1, Kuo teaches a far-infrared radiation device (title “Far Infrared Illumination Device for Improving Blood Micro-Circulation of a Human Small Cavity) for a middle ear and an inner ear (Figs. 1-6), comprising a concave first far-infrared ray emitter comprising a metal sheet (emitting source of concave spherical metal 110), wherein one surface of the emitter is coated with a first far-infrared radiation film (high emissivity film 111), and far infrared rays are generated from the first far-infrared radiation film after heating, a heating component (heating assembly 120) arranged on and fixedly connected to the other surface of the first far-infrared ray emitter and provides thermal energy to the first far-infrared radiation film, a funnel-shaped element (130) which is provided with a hollow horn body (131) and a hollow waveguide tube (132), wherein one side of the hollow horn body Is fixedly connected to the first far-infrared ray emitter and surrounds the surface coated with the first far-infrared radiation film, and the hollow waveguide tube (132) is connected to the other side of the hollow horn body (131) relative to the first far infrared ray emitter (i.e. the first far-infrared radiation film is provided on the surface of the metal sheet close to a large opening); the far-infrared rays generated by the first far-infrared radiation film (111) are focused at a focal point (140) in the funnel-shaped element (130) (i.e. the large opening is provided with the first far-infrared ray emitter used for emitting far-infrared rays converging from the large opening to a small opening), so as to converge the identity of the far-infrared rays and emit the far-infrared rays via the hollow waveguide (132) and improve blood microcirculation of the small cavity, the large opening and the small opening are respectively provided at two axial ends of the funnel-shaped element (130), and the funnel-shaped element (130) is in communication with the waveguide (132) by means of the small opening (see Figs. 1-6).
However, Kuo does not teach that the conical surface is provided with a second far-infrared ray emitter for emitting far-infrared rays diffused outward from the conical surface, and the second far-infrared ray emitter comprising a second far-infrared radiation film arranged on an outer surface of the conical surface of the conical element, wherein the second far-infrared radiation film is heated by the heat transmitted from the metal sheet through the conical element to emit far-infrared rays.
Endo teaches an analogous device (title “Infrared Therapeutic Unit”) to that of Kuo comprising an infrared ray therapeutic instrument (A) provided with a head housing (2) formed at an opening at one end, and accommodates an infrared ray radiation element (B) that radiates infrared rays or far-infrared rays towards the opening side. The far-infrared rays are radiated from the infrared ray radiation element (B) and heat affected parts deeply which can reliably promote a metabolic effect and relieve soreness. The infrared ray radiation element (B) is composed of a heat source (1) provided with a reflective plate (10) made of metal on a boss (21) provided in the head housing (2), a heater (4) provided with an infrared ray radiation plate (12) formed by coating and firing a ceramic having far-infrared radiation characteristics on the front side of a metal plate such as stainless steel or aluminum, the reflective plate (10) may be made of heat-resistant resin (i.e. having an infrared reflective film) subjected to aluminum evaporation and chromium plating, and the reflective plate is horn-shaped (Fig. 20). Therefore, it is asserted that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Kuo with a second far0infrared ray emitter as taught by Endo to reliable promote metabolic effect and relieve soreness as taught by Endo ([0001-0002, 0018]).
Regarding claim 2, the combination teaches the device of claim 1 as well as Kuo teaching a wavelength of the far-infrared rays emitted by either the first far-infrared radiation film and the second far-infrared radiation film is 8um to 12um (Description paragraph 5 which states in part “Its emission wavelength ranges from 8 to 12 um…”) and the production of a heating effect higher than the temperature in the cavity to improve blood circulation (Description paragraph 11). However, Kuo does not specifically discuss the heating being maintained at 39 to 45 degrees Celsius. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Kuo to use a heating range of 39 to 45 degrees Celsius, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art.
Regarding claim 3 Kuo teaches the device of claim 2, but not wherein the conical element is made of a metal material or the second far-infrared radiation film is coated on the outer surface of the conical surface. It is asserted that it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have selected metal material for the conical element, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. With respect to the arrangement of the second far-infrared radiation film being coated on the outer surface of the conical surface, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Kuo with respect to the location of the second far-infrared radiation film, since it has been held that rearranging parts of an invention involves only routine skill in the art.
Regarding claims 11-13, Kuo teaches a far infrared irradiation earmuff (Description paragraph 10 which states “In one embodiment, the far-infrared irradiation device of the present invention for improving blood microcirculation in a small body cavity of a human body further includes a cover body to form an earphone or earmuff-type heating improvement device.”) comprising an earmuff body, an elastic arm connecting of earmuff bodies (earmuff is defined by Merriam-Webster as “one or a pair of ear coverings connected by a flexible band and worn as protection against cold or noises”) and the combination of Kuo in view of Endo teaches the far in-infrared device of claims 1-3 (see rejection above) including Kuo teaching the far-infrared irradiation device including a power input device (151) electrically connected to the heating component of the far-infrared irradiation device. While Kuo does not specifically discuss a pair of earmuff bodies, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have used a pair of earmuff bodies provided with a far-infrared irradiation device and a power input device, since it has been held that mere duplication of the essential working parts of a device involves only routine skill in the art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KAITLYN E SMITH whose telephone number is (571)270-5845. The examiner can normally be reached Monday-Friday 9am-5pm.
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/KAITLYN E SMITH/Primary Examiner, Art Unit 3794
Prosecution Insights