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 .
Response to Amendment
This is in response to amendment received on 01/16/26. Claims 1 and 4 have been amended. Claims 1-4 are examined herein.
Specification
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 the title is repeated three times. 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).
The use of the term BLUETOOTH (paragraph 0085), which is a trade name or a mark used in commerce, has been noted in this application. The term should be accompanied by the generic terminology; furthermore the term should be capitalized wherever it appears or, where appropriate, include a proper symbol indicating use in commerce such as ™, SM , or ® following the term.
Although the use of trade names and marks used in commerce (i.e., trademarks, service marks, certification marks, and collective marks) are permissible in patent applications, the proprietary nature of the marks should be respected and every effort made to prevent their use in any manner which might adversely affect their validity as commercial marks.
Claim Objections
Claim 1 is objected to because of the following informalities: “the right ear covering portion having a convex shape that creates a space between the right ear of the user and at least a portion of the right ear covering portion” should read “the right ear covering portion having a convex shape that creates a space between the right ear of the user and at least a portion of the right ear covering portion when worn” in the preamble should read “band comprising”. Appropriate correction is required.
Claim 1 is objected to because of the following informalities: “the left ear covering portion having a convex shape that creates a space between the left ear of the user and at least a portion of the left ear covering portion” should read “the left ear covering portion having a convex shape that creates a space between the left ear of the user and at least a portion of the left ear covering portion when worn”. Appropriate correction is required.
Claim 4 is objected to because of the following informalities: “to protrude away from the rear surface of the main body to provide a waterproof seal around the right ear of the user when worn” should read “to protrude away from the rear surface of the main body to provide a waterproof seal around the right ear of the user when worn”. Appropriate correction is required.
Claim 4 is objected to because of the following informalities: “to protrude away from the rear surface of the main body to provide a waterproof seal around the left ear of the user when worn” should read “to protrude away from the rear surface of the main body to provide a waterproof seal around the left ear of the user when worn”. Appropriate correction is required.
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.
Claim(s) 1-3 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Miano (US 4,802,245).
In regard to claim 1, Miano teaches a protective over-ear band to be worn on a head of a user (see figures 1-3), the protective over-ear band comprising: a right ear covering portion configured to cover a right ear of the user when worn (right side ear cover), the right ear covering portion having a convex shape that creates a space between the right ear of the user and at least a portion of the right ear covering portion (column 2, lines 66-68 through column 4, lines 1-10); a first side ear cover sealing member (rim) disposed entirely around an outer circumference of the right ear covering portion and configured to provide a waterproof seal around the right ear of the user when worn (column 3, lines 51-54, annular rim surrounding the cup would be a sealing member extending around the entirety of the outer circumference); a left ear covering portion to cover a left ear of the user when worn (left side ear cover), the left ear covering portion having a convex shape that creates a space between the left ear of the user and at least a portion of the left ear covering portion (column 2, lines 66-68 through column 4, lines 1-10); a second side ear cover sealing member (rim) disposed entirely around an outer circumference of the left ear covering portion and configured to provide a waterproof seal around the left ear of the user when worn (column 3, lines 51-54, annular rim surrounding the cup would be a sealing member extending around the entirety of the outer circumference); a head covering portion configured to cover at least a portion of the head of the user (rear portion: 16 and forehead strap: 12); and a securing unit configured to secure the protective over-ear band to the head of the user (see figure 4, column 3, lines 14-20).
In regard to claim 2, Miano teaches wherein the protective over-ear band is constructed from a waterproof material that prevents water from contacting the user's right ear and left ear (column 2, lines 23-27).
In regard to claim 3, Miano teaches wherein the securing unit is adjustable to allow another user having a head size different from the user to wear the protective over-ear band (see figure 4, column 3, lines 14-20).
Claim Rejections - 35 USC § 103
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) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Miano (US 4,802,245) in view of Moore et al. (US 2013/0007947).
In regard to claim 4, Miano teaches a protective over-ear band wearable on a head of a user and having portions to cover a right ear and a left ear of the user, the protective over-ear band (figures 1-3) comprising: a main body comprised of a waterproof material (column 2, lines 23-27), the main body comprising: a rear surface configured to contact the head of the user when worn (rear portion: 16 see figures and column 3, lines 3-5), and a front surface disposed opposite with respect to the rear surface (forehead portion: 12, column 2, lines 68 through column 3, lines 1-2); a first side ear cover disposed at a first side of the main body (right side ear cover), the first side ear cover comprising: a first side ear cover convex portion disposed on the front surface (figures 3, 5 and 6), a first side ear cover concave portion disposed on the rear surface and corresponding to the first side ear cover convex portion configured to house the right ear of the user therein when worn (figures 3, 5 and 6), and a first side ear cover sealing member disposed around an entirety of an outer circumference of the first side ear cover concave portion and to protrude away from the rear surface of the main body to provide a waterproof seal around the right ear of the user (column 3, lines 51-54, annular rim surrounding the cup would be a sealing member extending around the entirety of the outer circumference); a second side ear cover disposed at a second side of the main body (left side ear cover), the second side ear cover comprising: a second side ear cover convex portion disposed on the front surface (see figures 3, 5 and 6), a second side ear cover concave portion disposed on the rear surface and corresponding to the second side ear cover convex portion configured to house the left ear of the user therein when worn (see figures 3, 5 and 6), and a second side ear cover sealing member disposed around an entirety of an outer circumference of the second side ear cover concave portion and to protrude away from the rear surface of the main body to provide a waterproof seal around the left ear of the user (column 3, lines 51-54, annular rim surrounding the cup would be a sealing member extending around the entirety of the outer circumference).
However, Miano fails to teach an internal mesh disposed throughout the main body between the front surface and the rear surface.
Moore et al. teaches a layered band on a garment within an internal mesh disposed throughout the main body between a front surface and a rear surface (figures 22B and 23, paragraph 0070 and 0073).
It would have been obvious before the effective filing date to one having ordinary skill in the art to have provided the ear protector of Miano with the internal mesh between a front and rear surface as taught by Moore et al., since the internal mesh located between the front and rear surface of Miano would provide an ear protector band that reduces stretch and provides greater strength.
Response to Arguments
Applicant's arguments filed 01/16/26 have been fully considered but they are not persuasive.
Applicant argues that Miano (US 4,802,245) fails to teach the ear covering having a sealing member extending around the entirety of the outer circumference as amended into claims 1 and 4.
Miano does teaches a sealing member (rim) surrounding the annular rim of the cup (column 3, lines 51-54, annular rim surrounding the cup would be a sealing member extending around the entirety of the outer circumference).
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALISSA L HOEY whose telephone number is (571)272-4985. The examiner can normally be reached M-F: 9:00-5:30 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Clinton T 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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ALISSA L. HOEY
Primary Examiner
Art Unit 3732
/ALISSA L HOEY/ Primary Examiner, Art Unit 3732