Detailed Action
Notice of Pre-AIA or AIA Status
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Priority
2. Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Specification
3. Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because it contains legal phraseology in particular the term “said”. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Double Patenting
4. The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-10 and 13-20 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 18/918,309 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 of the present application is detailed in claims 1 and 4-6 of the ’309 application, claim 2 of the present application is detailed in claim 4 of the ‘309 application, claim 3 of the present application is detailed in claim 1 of the ‘309 application, claim 4 of the present application is detailed in claim 7 of the ‘309 application, claim 5 of the present application is detailed in claim 8 of the ‘309 application, claim 6 of the present application is detailed in claim 9 of the ‘309 application, claim 7 of the present application is detailed in claim 10 of the ‘309 application, claim 8 of the present application is detailed in claim 11 of the ‘309 application, claim 9 of the present application is detailed in claim 12 of the ‘309 application, claim 10 of the present application is detailed in claim 13 of the ‘309 application, claim 13 of the present application is detailed in claim 14 of the ‘309 application, claim 14 of the present application is detailed in claim 15 of the ‘309 application, claim 15 of the present application is detailed in claim 16 of the ‘309 application, claims 16 and 17 of the present application are detailed in claim 17 of the ‘309 application, claim 18 of the present application is detailed in claim, claim 19 of the present application is detailed in claim 19 of the ‘309 application and claim 20 of the present application is detailed in claim 20 of the ‘309 application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claims 1-7 and 13-19 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 18/918,333 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 of the present application is detailed in claims 1 and 8-9 of the ‘333 application, claim 2 of the present application is detailed in claim 1 of the ‘333 application, claim 3 of the present application is detailed in claim 5 of the ’333 application, claim 4 of the present application is detailed in claim 10 of the ‘333 application, claim 5 of the present application is detailed in claim 11 of the ‘333 application, claim 6 of the present application is detailed in claim 12 of the ‘333 application, claim 7 of the present application is detailed in claim 13 of the ‘333 application, claim 13 of the present application is detailed in claim 14 of the ‘333 application, claim 14 of the present application is detailed in claim 15 of the ‘333 application, claim 15 of the present application is detailed in claim 16 of the ‘333 application, claim 16 of the present application is detailed in claim 17 of the ‘333 application, claim 17 of the present application is detailed in claim 18 of the ‘333 application, claim 18 of the present application is detailed in claim 19 of the ‘333 application and claim 19 of the present application is detailed in claim 20 of the ‘333 application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Interpretation
5. 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.
Regarding claim 1, applicant has not invoked 35 U.S.C. 112(f) means plus function analysis with respect to the claimed snap-fit element in that applicant claims specific structure related to the snap-fit element being the claimed base portion and resilient arm.
Claim Rejections - 35 USC § 112
6. 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 15-18 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 15 recites the limitation "the proximal end" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 102
7. 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.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1, 11-15 and 19-20 is/are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by U.S. Patent Application Publication No. 2022/0142344 to Jungnickel.
Referring to claim 1, Jungnickel discloses a connector – at 16,18,38-52, for repeatedly attaching and detaching a head – at 14, to and from a handle – at 12, of a personal care implement – at 10, the connector – at 16,18, being unitarily formed as one piece – see figures 1-3 and paragraphs [0082] and [0094], the connector – at 16,18, comprising a first substantially cylindrical section – at 16, a second substantially cylindrical section – at 18, and an intermediate section – at 38-52, connecting the first and the second cylindrical sections – at 16,18 – see figures 1-3, wherein the intermediate section – at 38-52, comprises a snap-fit element – at 38,52, having a base portion – at 52 and material of 16 surrounding 52, and a resilient arm – at 38, extending from the base portion – at 52 – see figures 1-3 and paragraphs [0034] and [0083] where the connector can be made of materials that have elasticity/resilience.
Referring to claim 11, Jungnickel further discloses the first and the second substantially cylindrical sections – at 16 and 18, and the intermediate section – at 38-52, define a longitudinal length extension of the connector – see at 36,39,41, in figures 1-3, and the first substantially cylindrical section and the second substantially cylindrical section – at 16,18, are placed off-center with respect to the longitudinal length extension – see at 36,39,41, in figures 1-3.
Referring to claim 12, Jungnickel further discloses the first substantially cylindrical section has a cross-sectional area – at 30, being smaller than the cross-sectional area of the second substantially cylindrical section – at the connection of 18 to 38-41 – see figures 1-3.
Referring to claim 13, Jungnickel discloses a handle – at 12, for a personal care implement – at 10, the handle – at 12, comprising a connector – at 16,18,38-52, according to claim 1 – see rejection of claim 1 detailed earlier.
Referring to claim 14, Jungnickel further discloses the handle has a distal end and a proximal end – see figures 1-3, the proximal end being closest to a head – at 14, attachable to the handle – at 12 – see figures 1-3, the proximal end of the handle comprising a hollow portion into which a portion of the connector – at 38-41, is fixed – see figures 1-3.
Referring to claim 15, Jungnickel further discloses the proximal end of the handle comprises a chamfered surface – see at connection of 12 with 38-41 in figures 1-3.
Referring to claim 19, Jungnickel discloses a personal care implement – at 10, comprising a head – at 14, a handle – at 12 according to claim 13 – see rejection of claim 13 detailed earlier, the handle – at 12, comprising a connector – at 16,18-38-52, the head – at 14 being repeatedly attachable to and detachable from the handle – at 12, via the connector – at 16,18,38-52 – see figures 1-3.
Referring to claim 20, Jungnickel further discloses the head – at 14, comprises a hollow portion – receiving item 16, having an inner wall – see figures 1-3, and the inner wall comprising a recess for receiving at least a portion of the resilient arm – at the connection of 38 to 52 – see figures 1-3.
Claim Rejections - 35 USC § 103
8. 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.
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) 2-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jungnickel as applied to claim 1 above, and further in view of U.S. Patent No. 9,724,181 to Schaefer et al.
Referring to claim 2, Jungnickel further discloses the connector is made from a plastic material – see paragraph [0083], but does not disclose the plastic material having an e-modulus from about 5 N/mm² to about 15 N/mm². Schaefer et al. does disclose the connector – at 150, made of a plastic material having an e-modulus from about 5 N/mm² to about 15 N/mm² - see column 3 lines 3-37 with an e-modulus of not more than 500 MPa. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Jungnickel and add the connector made of a plastic material having an e-modulus from about 5 N/mm² to about 15 N/mm² as disclosed by Schaefer et al., so as to yield the predictable result of making the connector both durable and flexible for repeated use.
Referring to claim 3, Jungnickel does not disclose the resilient arm has a first section and a second section, the first section having the form of a semi-sphere, and the second section being a bridge connecting the first section with the base portion, and the bridge applying a force onto the first section in a direction towards an outer lateral surface of the connector. Schaefer et al. does disclose the resilient arm – at 150, has a first section and a second section – see figures 3 and 4b, the first section having the form of a semi-sphere – see at 152, and the second section being a bridge – at 150,151, connecting the first section with the base portion – at 160 – see figures 3 and 4b, and the bridge applying a force onto the first section – on sides of 152, in a direction towards an outer lateral surface of the connector – see figures 3 and 4b. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Jungnickel and add the resilient arm with first and second sections as disclosed by Schaefer et al., so as to yield the predictable result of allowing the device to be moved into different positions as desired.
Referring to claim 4, Jungnickel as modified by Schaefer et al. does not disclose the bridge has a thickness from about 0.3 mm to about 1.5 mm. However, it would have been obvious to one of ordinary skill in the art to take the device of Jungnickel as modified by Schaefer et al. and have the bridge thickness at any suitable value including the claimed values, so as to yield the predictable result of making the bridge both durable and flexible for repeated use.
Referring to claim 5, Jungnickel as modified by Schaefer et al. does not disclose the bridge has a thickness from about 0.6 mm to about 1.2 mm. However, it would have been obvious to one of ordinary skill in the art to take the device of Jungnickel as modified by Schaefer et al. and have the bridge thickness at any suitable value including the claimed values, so as to yield the predictable result of making the bridge both durable and flexible for repeated use.
Referring to claim 6, Jungnickel as modified by Schaefer et al. does not disclose the bridge extends from the base portion by an angle ß of from about 10° to about 30°. However, it would have been obvious to one of ordinary skill in the art to take the device of Jungnickel as modified by Schaefer et al. and have the bridge extend from the base portion at any suitable angle including the claimed angles, so as to yield the predictable result of securing the bridge to the base so that the connector can be moved into different positions as desired.
Referring to claim 7, Jungnickel as modified by Schaefer et al. does not disclose the bridge extends from the base portion by an angle ß of from about 20° to about 25°. However, it would have been obvious to one of ordinary skill in the art to take the device of Jungnickel as modified by Schaefer et al. and have the bridge extend from the base portion at any suitable angle including the claimed angles, so as to yield the predictable result of securing the bridge to the base so that the connector can be moved into different positions as desired.
Referring to claim 8, Jungnickel as modified by Schaefer et al. further discloses the bridge is curved – see where the bridge – at 151 receives item 110 in figures 3 and 4b of Schaefer et al. Therefore it would have been obvious to one of ordinary skill in the art to take the device of Jungnickel and add the resilient arm with curved bridge as disclosed by Schaefer et al., so as to yield the predictable result of allowing the device to be attached to the device into different orientations as desired.
Referring to claim 9, Jungnickel as modified by Schaefer et al. does not disclose the semi-sphere has a diameter of from about 1 mm to about 5 mm. However, it would have been obvious to one of ordinary skill in the art to take the device of Jungnickel as modified by Schaefer et al. and have the semi-sphere at any desired diameter including the claimed diameters, so as to yield the predictable result of making the device both durable and flexible for repeated use.
Referring to claim 10, Jungnickel as modified by Schaefer et al. does not disclose the semi-sphere has a diameter of from about 2 mm to about 4 mm. However, it would have been obvious to one of ordinary skill in the art to take the device of Jungnickel as modified by Schaefer et al. and have the semi-sphere at any desired diameter including the claimed diameters, so as to yield the predictable result of making the device both durable and flexible for repeated use.
Claim(s) 16-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jungnickel as applied to claim 15 above.
Referring to claim 16, Jungnickel further discloses the handle – at 12, has a longitudinal length extension – at 22, and a cross-sectional area extending substantially perpendicular to the longitudinal length extension – at 22 – see 22 proximate 38 in figures 1-3, and the chamfered surface – proximate 38-41, and the cross-sectional area define and angle – see figures 1-3, but does not disclose an angle α from about 15° to about 30°. However, it would have been obvious to one of ordinary skill in the art to take the device of Jungnickel and have the chamfered surface and cross-sectional area at any suitable angle including the angles claimed, so as to yield the predictable result of securing the handle to the connector while allowing the user to easily grip the device during use.
Referring to claim 17, Jungnickel does not disclose the chamfered surface and the cross- sectional area define an angle α from about 18° to about 28°. However, it would have been obvious to one of ordinary skill in the art to take the device of Jungnickel and have the chamfered surface and cross-sectional area at any suitable angle including the angles claimed, so as to yield the predictable result of securing the handle to the connector while allowing the user to easily grip the device during use.
Referring to claim 18, Jungnickel further discloses the handle – at 12, has a longitudinal length extension – at 22, and a cross-sectional area extending substantially perpendicular to the longitudinal length extension – at 22 – see 22 proximate 38 in figures 1-3, and the chamfered surface – proximate 38-41, and the cross-sectional area define and angle – see figures 1-3, but does not disclose an angle α of about 25°. However, it would have been obvious to one of ordinary skill in the art to take the device of Jungnickel and have the chamfered surface and cross-sectional area at any suitable angle including the angle claimed, so as to yield the predictable result of securing the handle to the connector while allowing the user to easily grip the device during use.
Conclusion
8. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
The following patents are cited to further show the state of the art with respect to toothbrushes with detachable heads in general:
U.S. Pat. No. 4,811,445 to Lagieski et al. – shows toothbrush with detachable head
U.S. Pat. No. 5,875,510 to Lamond et al. – shows toothbrush with detachable head
U.S. Pat. No. 6,546,585 to Blaustein et al. – shows toothbrush with detachable head
U.S. Pub. No. 2011/0047729 to Iwahori et al. – shows toothbrush with detachable head
U.S. Pat. No. 8,800,093 to Moskovich et al. – shows toothbrush with detachable head
U.S. Pat. No. 9,486,066 to Bresselschmidet et al. – shows toothbrush and detachable head
U.S. Pat. No. 11,375,802 to Jungnickel – shows toothbrush with detachable head
9. Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID J PARSLEY whose telephone number is (571)272-6890. The examiner can normally be reached Monday-Friday, 8am-4pm EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Peter Poon can be reached at (571) 272-6891. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DAVID J PARSLEY/Primary Examiner, Art Unit 3643
Prosecution Insights