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 .
Claim Objections
Claim 15 is objected to because of the following informalities: The use “its” and “it” is acknowledged. This language is informal and must be replaced with proper antecedent basis. Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: water dispersal device in claim 1.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 3, 6, 8, and 19 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.
The term “about” in claim 3 is a relative term which renders the claim indefinite. The term “about” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
The term “standard sink faucet” in claims 6 and 19 is a relative term which renders the claim indefinite. The term “standard sink faucet” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. What type of sink? Kitchen, bathroom, laundry, slop, dipper well? These are just a few types of sinks that have faucets.
Regarding claim 8, there is a lack of antecedent basis for “the rear wall portion.” The Examiner will assume that applicant intends to refer to “the back wall portion.”
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, 8 - 9, 12 - 14 and 18- 20 are rejected under 35 U.S.C. 103 as being unpatentable over Kyte (US 3,559,216) in view of Johnson et al. (US 2005/0005350 hereinafter Johnson).
Regarding claim 1, Kyte discloses a lightweight portable bathing apparatus (fig. 1) comprising: a substantially horizontal bottom base (12); a wall extending substantially vertically about a periphery of the bottom base, wherein the wall comprises a front wall portion (16), an opposing back wall portion (17), and first and second opposite sidewall portions (14, 15) thereby forming a wash basin; one or more hand holds (20) formed in an upper portion of one or more of the wall portions (fig. 4); a water outlet (23) disposed in the bottom base, the outlet comprises a drain hole (see fig. 4, where 24 is attached); wherein the wash basin in configured of a length, depth, and width to accommodate a human patient (fig. 2).
Kyte does not show that the basin is substantially oval. Attention is turned to Johnson which teaches that it is known to form a portable bathing apparatus in a substantially oval shape (para. [0031]). It would have been obvious to one having ordinary skill in the art at the time of effective filing to have formed the tub in a substantially oval shape since either configuration still enables a user to be bathed and is acknowledged to be an acceptable shape in portable tubs. A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. MPEP 2144.04 (IV)(B).
Kyte does not show the particulars of the water inlet. Attention is turned to Johnson which teaches a water inlet comprising a water supply hose (36) configured to attach to a water dispersal device (41) at a first end and a water supply source (39) at a second end. It would have been obvious to one having ordinary skill in the art at the time of effective filing to have provided a water inlet of the kind taught by Johnson for ease of filling the tub at a temperature that is comfortable for a user/patient.
Kyte does not show a drain hole plug, instead showing a valve. Attention is again turned to Johnson which teaches a drain hole (15) which is closed by a plug (16)(para. [0033]). It would have been obvious to one having ordinary skill in the art at the time of effective filing to have provided a plug for the drain hole of Johnson instead of the valve closure on the hose so that water can be released from the tub by a caregiver in a standing position without having to reach below the base.
Regarding claim 2, Kyte as modified shows all of the instant invention and further shows wherein the one or more hand holds comprise a first hand hold formed in an upper portion of the first sidewall portion (portion of 20 along 14) and an opposing second hand hold formed in an upper portion of the opposing second sidewall portion (portion of 20 along 15).
Regarding claim 3, Kyte further shows that the one or more hand holds are positioned about midway along the length of their respective wall portion. Note that since hand hold (20) extends the length of each sidewall, they are also located ‘about midway’.
Regarding claim 4, as shown in figures 3 and 4, the hand holds are handles.
Regarding claim 5, Kyte as modified shows all of the instant invention as discussed above, and further provides that the water dispersal device is a handheld shower head. See fig. 17 of Johnson.
Regarding claim 6, Kyte as modified shows all of the instant invention as discussed above, and further provides that the water supply source comprises a ‘standard’ sink faucet (39). See fig. 17 of Johnson.
Regarding claim 8, Kyte as modified shows all of the instant invention as discussed above and further shows that the water outlet is disposed proximate to an intersection of the back wall portion and the bottom base. See fig. 1, outlet portion (23) on bottom wall is located proximate to back wall (17).
Regarding claim 9, Kyte further provides a drain hose (24) configured to be in fluid communication with the drain hole. See fig. 3.
Regarding claim 12, Kyte shows that a bottom surface (26) of the bottom base is substantially flat (col. 4, ln. 2-3).
Regarding claim 13, Kyte discloses a method of using a lightweight portable bathing apparatus comprising: providing a portable bathing apparatus comprising: a substantially horizontal bottom base (12); a wall extending substantially vertically about a periphery of the bottom base, wherein the wall comprises a front wall portion (16), an opposing back wall portion (17), and first and second opposite sidewall portions (14, 15) thereby forming a wash basin; one or more hand holds (20) formed in an upper portion of one or more of the wall portions (fig. 4); a water outlet (23) disposed in the bottom base, the outlet comprises a drain hole (see fig. 4, where 24 is attached); wherein the wash basin in configured of a length, depth, and width to accommodate a human patient (fig. 2), placing the wash basin atop a flat surface (bed, fig. 4), placing the patient into the wash basin and positioning them in the wash basin (col. 3, ln. 25-28), washing the patient, draining the basin via the water outlet, and removing the patient from the wash basin (col. 3, ln. 60-70).
Kyte does not show that the basin is substantially oval. Attention is turned to Johnson which teaches that it is known to form a portable bathing apparatus in a substantially oval shape (para. [0031]). It would have been obvious to one having ordinary skill in the art at the time of effective filing to have formed the tub in a substantially oval shape since either configuration still enables a user to be bathed and is acknowledged to be an acceptable shape in portable tubs. A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. MPEP 2144.04 (IV)(B).
Kyte does not show the particulars of the water inlet. Attention is turned to Johnson which teaches a water inlet comprising a water supply hose (36) configured to attach to a water dispersal device (41) at a first end and a water supply source (39) at a second end. It would have been obvious to one having ordinary skill in the art at the time of effective filing to have provided a water inlet of the kind taught by Johnson for ease of filling the tub at a temperature that is comfortable for a user/patient. The step of washing the patient via the water dispersal device is an obvious consequence of the modification of Kyte and Johnson.
Kyte does not show a drain hole plug, instead showing a valve. Attention is again turned to Johnson which teaches a drain hole (15) which is closed by a plug (16)(para. [0033]). It would have been obvious to one having ordinary skill in the art at the time of effective filing to have provided a plug for the drain hole of Johnson instead of the valve closure on the hose so that water can be released from the tub by a caregiver in a standing position without having to reach below the base.
Regarding claim 14, Kyte as modified shows the method as discussed above, and further provides the method step of adding a desired amount of water to the basin prior to washing the patient (see Johnson, para. [0004], [0045]-[0046]).
Regarding claim 18, Kyte as modified shows all of the instant invention as discussed above and further shows the method step of attaching the water supply hose to the water supply source prior to washing the patient (see Johnson fig. 17).
Regarding claim 19, Kyte as modified shows all of the instant invention as discussed above, and further provides that the water supply source comprises a ‘standard’ sink faucet (39). See fig. 17 of Johnson.
Regarding claim 20, Kyte as modified shows all of the instant invention as discussed above, and further provides that the water dispersal device is a handheld shower head. See fig. 17 of Johnson.
Claim(s) 7 is rejected under 35 U.S.C. 103 as being unpatentable over Kyte and Johnson, as applied to claim 1, in view of Raphael et al. (US 5,181,284 hereinafter Raphael).
Regarding claim 7, Kyte as modified shows all of the instant invention as discussed above, but does not show a holder. Attention is turned to Raphael which teaches a similar portable bathing apparats with a water dispersal device (45, 44) and a holder (47) attached to one of the wall portions (14) of the basin, the holder configured to releasably hold the water dispersal device in a stationary position when place therein (col. 3, ln. 5-11). It would have been obvious to one having ordinary skill in the art at the time of effective filing to have provided a holder like that taught by Raphael in the device of Kyte as modified so that there is a convenient place for the hose and showerhead when not needed.
Claim(s) 10, 11, 16, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Kyte and Johnson, as applied to claims 1 and 13, in view of Ko (KR 1020130052950).
Regarding claims 10, 11, and 16, Kyte as modified shows all of the instant invention as discussed above, but does not show a head and neck support of first and second configurable portions. Attention is turned to Ko which teaches a similar bathing device having a head and neck support (300) with a fist portion (310) and a second portion (320) which are configurable to form an elevated head and neck support (fig. 3b), with a groove (formed by the two parts hingedly fixed together) and configured to lock the first and second portions in an elevated position (via interference of 410 and 420 in the bent/elevated position)(see attached machine translation, p. 5, discussion of Fig. 5a-c), the head rest being fixedly attached to the base (abstract). It would have been obvious to one having ordinary skill in the art at the time of effective filing to have provided a flat, but tiltable head/neck rest instead of the rounded cutout in the device of Kyte in order to provide better upper shoulder support to a user. The method of providing the head and neck support is performed during the normal use of the combined device of Kyte, Johnson, and Ko.
Regarding claim 17, the step of positioning including elevating the patient’s head/neck to a desired height using the support is performed during normal use of the combined device of Kyte, Johnson, and Ko.
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Claim(s) 15 are rejected under 35 U.S.C. 103 as being unpatentable over Kyte and Johnson, as applied to claims 1 and 13, in view of Place Patient on a Backboard (2/15/2010, https://www.youtube.com/watch?v=hXtCKkaEeOs, hereinafter CERPP).
Regarding claim 15, Kyte shows all of the instant invention as discussed above, and further shows that placing the patient in the wash basin comprises rolling the patient on their side (fig. 4), placing the wash basin on its side and placing it next to the patient such that the basin is coupled behind the patient (fig. 4), and rolling the patient and wash basin back to the flat position (fig. 4)(col. 3, ln. 25-34) Kyte however does not show that the patient and wash basin are simultaneously rolled back to the flat position. Attention is turned to CERPP which teaches that it is known in the art to simultaneously roll a patient and a backboard from a side vertical position back down to a flat horizontal position (see video at t:30-35s). It would have been obvious to one having ordinary skill to have rolled the basin and patient at the same time, since this is a commonly accepted way to safely transfer patients without risking exacerbation of existing injury or condition.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Williams (US 5,247,712), Wheeler (US D353,446), Malone (US 9,888,814), and Ruiz (US 5,924,146) all show portable bathtubs for bathing disabled patients of interest to the instant invention and generally representing the state of the art. Pearlman (US 2024/0172897) shows a tub having two hand holds that are formed as handles which project from the midway point of opposed sidewalls as claimed in the alternative.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIN L DEERY whose telephone number is (571)270-1928. The examiner can normally be reached Mon - Thur, 7:30am - 4:30pm; Fri 8:00am-12:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Angwin can be reached at (571) 270-3735. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ERIN DEERY/Primary Examiner, Art Unit 3754