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 Rejections - 35 USC § 102
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.
Claims 1-4 and 6-9 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Burnstein (US 2009/0135369).
Regarding independent claim 1, Burnstein discloses a water sports mask comprising:
a mask body (the eyewear forms a mask body as claimed; see Figs. 16-17; i.e. the disclosed glasses, e.g. as shown in Figs. 1 and 17, form a mask body since they form a mask over the eyes and may by worn during water sports if desired);
a head strap (strap 210 in Fig. 16, or strap 220/222 in Fig. 17) connected to two sides of the mask body (see Figs. 16-17; in Fig. 16, the strap 210 is connected to two sides 212 of the mask body; in Fig. 17, the strap 220/222 is connected to two sides of mask body 224; see paras. [0043-0044]), wherein when a user wears the water sports mask, the head strap is configured to be wrapped around a head of the user to secure the mask body to a face of the user [0025, 0043-0045];
characterized in that:
the head strap comprises a strap body (210 in Fig. 16; 220/222 in Fig. 17) and at least one accessory (214 in Figs. 16-17; and see accessory shown in detail in Fig. 4), and the strap body is provided with at least one opening so that the at least one accessory is selectively and detachably coupled to the strap body through the at least one opening (see Figs. 16-17; paras. 0007, 0010, 0032, 0035, and 0043-0047).
As noted above, the glasses (see Figs. 1 and 17) form a mask body as claimed since they are worn as a mask over the eyes and may by worn during water sports if desired. Burnstein specifically discloses use of the invention in/near water (para. [0029] discloses use of materials that would float if dropped in a lake or other body of water) and during recreational activities and sports [0071]. The claims do not recite any structure of the “water sports mask” or “mask body” which distinguishes from the glasses of Burnstein.
Regarding independent claim 6, Burnstein discloses a head strap (210 in Fig. 16; 220/222 in Fig. 17) for a water sports mask (the head strap could be used for a water sports mask as claimed), the head strap is connected to two sides of the mask body (see Figs. 16-17; in Fig. 16, the strap 210 is connected to two sides 212 of the mask body; in Fig. 17, the strap 220/222 is connected to two sides of mask body 224; see paras. [0043-0044]), so that when a user wears the water sports mask, the head strap is configured to be wrapped around a head of the user to secure the mask body to a face of the user [0025, 0043-0045], characterized in that the head strap comprises:
a strap body (210 in Fig. 16; 220/222 in Fig. 17) and at least one accessory (214 in Figs. 16-17; and see accessory shown in detail in Fig. 4), wherein the strap body is provided with at least one opening so that the at least one accessory is selectively and detachably coupled to the strap body through the at least one opening (see Figs. 16-17; paras. 0007, 0010, 0032, 0035, and 0043-0047).
Regarding claims 2 and 7, Burnstein discloses the at least one accessory comprises a plurality of accessories [0007, 0043-0047], and each of the accessories has an end portion (44), an ornamental portion (40, 50) opposite to the end portion, and a neck portion (shaft 42) formed therebetween (see paras. 0032 and 0035; see Figs. 1, 4, and 17); and wherein the at least one opening includes a plurality of openings (see Figs. 16-17), and each of the openings has a shape corresponding to a cross-section of the neck portion (see Figs. 4 and 16-17) so that when one of the accessories is coupled to one of the openings, the accessory is configured to be accommodated in the opening as being coupled (see Figs. 16-17), and the end portion and the ornamental portion of the coupled accessory are located on an inner side and an outer side of the strap body, respectively (Figs. 16-17; paras. [0007, 0010, 0029, 0032, 0035, 0043-0047]).
Regarding claims 3 and 8, the shape is rectangular or circular (the shape is circular, as shown in Figs. 4 and 16-17).
Regarding claims 4 and 9, the end portion of each of the accessories has a conical shape or a mushroom shape (the end portion has a mushroom shape as broadly recited in claims 4 and 9, since the end of the shaft and the flange shape together form a flat mushroom shape as claimed; see Figs. 3 and 4).
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.
Claims 5 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Burnstein (US 2009/0135369) in view of Schmelzer et al (US 2008/0060110).
Burnstein discloses that the strap body of the head strap and the accessory are preferably elastomer or soft polymer materials such as those used in Crocs® [0028-0029, 0043]. Burnstein discloses that the material should be “relatively rubbery” [0028] but does not specifically disclose the use of thermoplastic rubber or the other materials recited in claims 5 and 10.
Schmelzer discloses an ornamental accessory which is inserted into holes in a strap (see accessory in Fig. 2B and see straps shown in Figs. 16A and 16C [0003-0005, 0007-0008]). Schmelzer discloses that the accessory is made of a soft material which may comprise rubber [0048]. Schmelzer also discloses that the strap body may comprise rubber [0067-0068]. Schmelzer discloses the use of rubber as an alternative to EVA [0067-0068], and it is noted that Burnstein discloses the use of EVA [0028]. Schmelzer discloses that soft rubber provides secure hold of the ornament in the strap hole and provides increased comfort [0047-0048, 0067-0068]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use rubber as the material for the strap and/or accessory of Burnstein in order to provide a secure and comfortable fit, as taught by Schmelzer. Although the rubber is not specifically disclosed by Schmelzer as being “thermoplastic” rubber, this type of rubber is conventionally used for straps and apparel accessories. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use thermoplastic rubber for the strap and/or accessories of Burnstein, 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. In re Leshin, 125 USPQ 416.
With respect to the recitation in claims 5 and 10 of the material having a Shore A hardness of 20 to 80, Burnstein does not specifically disclose the Shore A hardness but both Burnstein and Schmelzer teach the use of “soft” or stretchable/expandable polymeric material (see Burnstein [0028-0029]; Schmelzer [0048, 0067-0068]). It is also noted that the Crocs® material disclosed by Burnstein [0028] likely has a Shore hardness within the claimed range. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use a material having a Shore A hardness of 20-80 for the strap or accessories of Burnstein, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable range involves only routine skill in the art. In re Aller, 105 USPQ 233.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The references cited on attached PTO-892 disclose straps and/or accessories similar to the claimed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AMY VANATTA whose telephone number is (571)272-4995. The examiner can normally be reached Mon-Thurs and alternate Fridays.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Clinton Ostrup can be reached at 571-272-5559. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AMY VANATTA/Primary Examiner, Art Unit 3732
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