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
Claims 6, 8 and 17 are objected to because of the following informalities:
Claim 6 discloses “The eartip according to any of claim 2”. The claim should read as “The eartip according to claim 2”.
Claim 8 discloses “The eartip according to any of claim 1”. The claim should read as “The eartip according to claim 1”.
Claim 17 discloses “The eartip according to any of claim 13”. The claim should read as “The eartip according to claim 13”.
Appropriate correction is required.
Double Patenting
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-12 of U.S. Patent No. 11638084 B2 in view of Zhao et al (US 20130004004 A1).
Regarding claims 1 and 12, U.S. Patent No. 11638084 B2 discloses an occlusion effect reduction eartip comprising: an outer portion; an inner portion; and a volume formed by the inner and outer portion with a passage between the volume and an ambient environment, wherein the outer portion is designed to contact the ear canal, and wherein the inner portion is configured to receive a stent, wherein the passage is decreased when the eartip is inserted upon a stent or inserted into an ear canal so that a first portion of the outer portion contacts the inner portion at a contact area forming an encapsulated volume, and where a lip is configured to limit an axial movement of the contact area (See claims 1 and 12 of U.S. Patent No. 11638084 B2, respectively).
The claim language of U.S. Patent No. 11638084 B2 does not disclose expressly wherein the eartip is configured to include a port wherein when the eartip is used the port allows passage of air between the ear canal and the encapsulated volume.
Zhao discloses an occlusion effect reduction eartip comprising: an outer portion (fig.3 #4); an inner portion (fig.3 #3); and a volume (fig.8 #8) formed by the inner and outer portion with a passage (fig.8 #11) between the volume and an ambient environment, wherein the outer portion is designed to contact the ear canal, and wherein the inner portion is configured to receive a stent, wherein the passage is decreased when the eartip is inserted upon a stent or inserted into an ear canal so that a first portion of the outer portion contacts the inner portion at a contact area forming an encapsulated volume (Par.[0040-0041]), and wherein the eartip is configured to include a port (fig.8 #10) wherein when the eartip is used the port allows passage of air between the ear canal and the encapsulated volume (Par.[0050]).
It would have been obvious before the effective filing date to a person of ordinary skill in the art to use the port of Zhao in the eartip of U.S. Patent No. 11638084 B2. The motivation for doing so would have been to effectively release low frequency sound pressure from the encapsulated volume.
Dependent claims 2-11 and 13-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over dependent claims 2-11 of U.S. Patent No. 11638084 B2 in view of Zhao.
Allowable Subject Matter
Claims 1-20 are allowable upon filing a Terminal Disclaimer.
Reasons for Allowance
The following is an examiner’s statement of reasons for allowance:
Regarding independent claims 1 and 14, the closest prior art such as Zhao et al (US 20130004004 A1) teaches the general concept of an occlusion effect reduction eartip comprising: an outer portion (fig.3 #4); an inner portion (fig.3 #3); and a volume (fig.8 #8) formed by the inner and outer portion with a passage (fig.8 #11) between the volume and an ambient environment, wherein the outer portion is designed to contact the ear canal, and wherein the inner portion is configured to receive a stent, wherein the passage is decreased when the eartip is inserted upon a stent or inserted into an ear canal so that a first portion of the outer portion contacts the inner portion at a contact area forming an encapsulated volume (Par.[0040-0041]), and wherein the eartip is configured to include a port (fig.8 #10) wherein when the eartip is used the port allows passage of air between the ear canal and the encapsulated volume (Par.[0050]).
However, none of the closest prior art of record, alone or in combination, teaches
“where a lip is configured to limit an axial movement of the contact area” in combination with the rest of the limitations as recited in independent claims 1 and 12.
Other prior art has been cited herein regarding constructional arrangements of eartips, however the other prior art of record also fails to teach or provide suggestion to arrive the combination of the elements and steps presented in the independent claims, again when said elements or steps are collectively considered in regards to each claim. For at least the reasons listed above, dependent claims 2-11 and 13-20 are also allowed in view of their respective dependencies upon the independent claims.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Dominijanni et al (US 11234085 B2) discloses an earpiece with eartip port.
Huwe et al (US 20200366981 A1) discloses an eartip with encapsulated volume (see fig.27).
Bruss et al (US 10652644 B2) discloses an ear tip designed to detect in-ear pressure change in acoustic volume.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JASON R KURR whose telephone number is (571)270-5981. The examiner can normally be reached M-F: 9-5.
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JASON R. KURR
Primary Examiner
Art Unit 2695
/JASON R KURR/Primary Examiner, Art Unit 2695
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