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 1-20 are objected to because of the following informalities: Claim 1 states “a front arm…a back arm”; however, the specification states “a leading arm…a trailing arm” for consistency purposes and for clarity applicant is advised to used terms from the specification. Claim 1, amended line 2 please change “the flossing head having flossing filament” to - -the flossing head having a flossing filament- -. Claims 16-19, please amend “the plate” to - -the bite plate- -. 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 1-21 of U.S. Patent No. 12,383,386. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the patent "anticipate" the claims of the application. Accordingly, the application claims are not patentably distinct from the patent claims. Here, the more specific patent claims encompass the broader application claim. Following the rationale in In re Goodman cited in the preceding paragraph, where applicant has once been granted a patent containing a claim for the specific or narrower invention, applicant may not then obtain a second patent with a claim for the generic or broader invention without first submitting an appropriate terminal disclaimer.
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) 1-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Schneider (GB 2,222,089) in view of Prokopchuk et al. (US 2012/0111348).
Schneider discloses a dental flosser comprising a flossing head (15) having flossing filament (26) extending between a front arm and a back arm (arms between floss left and right side) and a link arm connecting the front arm and the back arm, the flossing head having a length extending form a front to a back and a thickness, a handle (12) extending obliquely at an angle relative to a longitudinal axis of the flossing head to a distal end, the handle having opposing sides,; a bite plate (20) extending along at least a portion of a top of the flossing head having a plate thickness greater than the thickness of the flossing head, wherein the plate thickness varies across the top of the flossing head (i.e. tapers towards each end) (Fig. 5). Schneider does not disclose the opposing sides defining a plurality of openings extending therebetween. Prokopchuk et al. teach a dental flosser with the handle opposing sides defining a plurality of openings (574) extending therebetween with handle-height that varies (522) between the proximal end and the distal end, the handle comprising a pick (572a) (Fig. 29). It would have been obvious to one having ordinary skill in the art before the effective filing date to have the handle of Schneider be made with a plurality of openings as taught by Prokopchuk et al. to allow for a dental pick storage and a multifunctional tool.
Claim 2, Schneider further discloses the link arm (15) transitions into the front arm (21) via a continuous curve (Fig. 5).
Claim 3, Schneider further discloses a distance between the opposing sides defines a handle (12) thickness and the bite plate thickness is greater than each of the thickness and the handle thickness (Fig. 5).
Claim 4, Schneider further discloses the bite plate extends from the top of the flossing head onto at least a portion of the handle (see Figure 5 and 6).
Claim 5, Schneider further discloses the bite plate defines a planar bite surface at the top of the flossing head (see Figure 5).
Claim 6, Schneider further discloses the bite plate defines a non- planar bite surface (the curved locations see Figure 5).
Claim 7, Schneider further discloses the bite surface is non- parallel to the filament (located on the arms see Figure 5).
Claim 8, Schneider further discloses the bite plate extends from the top of the flossing head to the front of the flossing head (see Figure 5).
Claim 9, Schneider further discloses the bite plate extends along at least a portion of the front of the flossing head (see Figure 5).
Claim 10, Schneider further discloses the bite plate comprises a first curve and a second curve (see Figure 5).
Claim 11, Schneider further discloses the first curve of the bite plate transitions the stability feature from extending along the top of the flossing head to along the handle (right side see Figure 5).
Claim 12, Schneider further discloses the second curve of the bite plate transitions the stability feature from extending along the top of the flossing head to along the front of the flossing head (see Figure 5).
Regarding claims 13-15, Schneider discloses the claimed invention except for the handle being a bulbous handle with maximum height at a location intermediate between the flossing head and the distal end of the handle. Prokopchuk et al. disclose a handle being a bulbous handle with maximum height at a location intermediate between the flossing head and the distal end of the handle a pick extending from the distal end of of the handle and when exposed is unprotected from the distal end of the handle (see Figure 9). It would have been obvious to one having ordinary skill in the art before the effective filing date to have the handle of Schneider be a bulbous handle as taught by Prokopchuk et al. to allow for easy gripping.
Claim 16, Schneider further discloses the front arm has a front-arm- thickness, and the bite plate thickness is greater than the front-arm-thickness (see Figure 5).
Claim 17, Schneider further discloses the back arm has a back-arm- thickness, and the bite plate thickness is greater than the back-arm-thickness (see Figure 5).
Claim 18, Schneider further discloses the bite plate tapers from a first greater value to a first lesser value, wherein the first lesser value is equal to the handle-thickness (see Figure 5 tapers at the tip).
Claim 19, Schneider further discloses the leading arm has a leading-arm- thickness, and the bite plate thickness tapers from a second greater value to a second lesser value, wherein the second lesser value is equal to the leading-arm-thickness (see Figure 5).
Claim 20, Schneider discloses the claimed invention except for the handle comprising a pick extending from the distal end of the handle, wherein a plane defined by the flossing filament and a point of the pick extends through the distal end of the handle and through the front arm and the back arm of the flossing head. Prokopchuk et al. teach a dental flosser wherein the handle comprising a pick (570) extending from the distal end of the handle, wherein a plane defined by the flossing filament (528) and a point of the pick extends through the distal end of the handle and through the front arm and the back arm of the flossing head (see Fig. 29). It would have been obvious to one having ordinary skill in the art before the effective filing date to have the device of Schneider be made with a pick as taught by Prokopchuk et al. to allow for a multi-use dental tool.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RACHEL RUNNING STEITZ whose telephone number is (571)272-1917. The examiner can normally be reached Monday-Friday 8:00am-4:30pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eric Rosen can be reached at 571-270-7855. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RACHEL R STEITZ/Primary Examiner, Art Unit 3772 7/6/2026
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