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 .
Drawings
The drawings were received on September 4, 2026. These drawings have been entered.
Claim Interpretation
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.
“Adjustment means” is described in the specification as being an adjustment knob, clamps, handles, springs, or tension control mechanisms (see para. 0020). However, claim 1 recites that the adjustment means are connected to the pin. Thus, only the knob of the aforementioned types of adjustment means appear to be within the scope of claim 1 as the adjustment means must be connected to the pin and the disclosure does not state how clamps, handles, springs, or tension control mechanisms would be connected to the pin. As such, the Examiner is interpreting “adjustment means” as either a knob, or a functional equivalent of a knob, connected to the pin.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 2, 7-9, 12, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Liu (US 6,102,852 A1) in view of Wallace (US 2023/0114880 A1).
Claim 1. Liu discloses a nostril retracting device comprising:
a monolithic (see col. 2, ll. 9-12, which states that rod 3 is formed integral with rod members 1 and 2) shape-changing and flexible (see col. 2, ll. 9-12, which states that rod 3 is flexible) frame (portion of device not located within solid box of Fig. 2 inset), said frame having a pair of retracting arms (see Fig. 2 inset) connected to said frame;
said frame having a pair of side wings (see Fig. 2 inset) and a central area section (section between the wings as identified in Fig. 2 inset);
said retracting arms extending upward and away from said frame at an angle (see Fig. 2);
each of said retracting arms having a bend (see Fig. 2 inset) and a retracting prong (tongues 12 and 22) at a distal end (encompasses tongues 12 and 22) of each of said retracting arms (Fig. 2; col. 1, l. 58 through col. 2, l. 34).
[AltContent: textbox (Retracting Arms (portion of device located within solid box))][AltContent: textbox (Wing)][AltContent: textbox (Wing)][AltContent: textbox (Bends)]
Claim 2. Liu discloses wherein said frame is U-shaped (see Fig. 2, which shows that the frame is U-shaped due to the presence of connecting rod 3) (Fig. 2; col. 1, l. 58 through col. 2, l. 34).
Claim 7. Liu discloses wherein said frame has a perimeter (see Fig. 2 inset) and said pair of retracting arms are connected to said frame along said perimeter of said frame (Fig. 2; col. 1, l. 58 through col. 2, l. 34).
Claim 9. Liu discloses wherein each said retracting arm has said bend predetermined for adhering to a nostril opening and said retracting prong (Fig. 2; col. 1, l. 58 through col. 2, l. 34).
Liu fails to disclose wherein said frame has an opening in said frame and a pin received in said opening through said frame, wherein said device comprises an adjustment means connected at a proximal end of said pin for moving said pin through said frame to contact a proximal end of said central area section of said frame and move said central area section of said frame upward as force is applied to said central area section by said pin, wherein said retracting prongs are 5 mm apart in a closed position, and wherein said retracting prongs are in a range of 5 mm up to 35 mm apart in an open position (claim 1), wherein said pin is a screw (claim 8), wherein said adjustment means includes a knob for moving said pin (claim 12), and wherein said frame is formed of a polymer (claim 13).
Wallace teaches a nostril retracting device comprising: a frame (body 22, which includes first leg 24, connecting member 28, and second leg 26), said frame having a pair of retracting arms (support members 62 and 64) connected to said frame; said frame having an opening (opening that receives threaded portion 56 of control rod 40) in said frame and a pin (control rod 40) received in said opening through said frame; adjustment means (head 44) connected at proximal end of said pin for moving said pin through said frame to contact a proximal end (see Fig. 3 inset) of a central area section (see Fig. 3 inset) of said frame and move said central area section of said frame upward as force is applied to said central area section by said pin (the portion of the central area section having the opening that receives threaded portion 56 of control rod 40 would move either upward or downward upon rotation of head 44 when held in the orientation shown in Fig. 3 inset) (Fig. 3; paras. 0026-0044). Wallace also teaches wherein said pin is a screw (control rod 40 includes threaded portion 56, and is therefore a screw), wherein said adjustment means includes a knob (head 44) for moving said pin, and wherein said frame is formed of a polymer (see para. 0036, which states that body 22 is made from plastic; plastic is a polymer) (Fig. 3; paras. 0026-[AltContent: textbox (Central Area Section)][AltContent: textbox (Proximal End)]0044).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Liu such that said frame has an opening in said frame and a pin received in said opening through said frame, wherein said device comprises an adjustment means connected at a proximal end of said pin for moving said pin through said frame to contact a proximal end of said central area section of said frame and move said central area section of said frame upward as force is applied to said central area section by said pin (claim 1), wherein said pin is a screw (claim 8), and wherein said adjustment means includes a knob for moving said pin (claim 12), as suggested by Wallace, as such an opening and pin configuration as taught by Wallace would allow for controlled adjustment of the retracting arms during use. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Liu such that said retracting prongs are 5 mm apart in a closed position (claim 1), since it has been held that discovering an optimum value of a result effective variable involves only routine skill in the art. In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Liu such that said retracting prongs are in a range of 5 mm up to 35 mm apart in an open position (claim 1), since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233. It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention for said frame to be formed of a polymer (claim 13), as suggested by Wallace, 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.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Liu (US 6,102,852 A1) in view of Wallace (US 2023/0114880 A1) as applied to claim 1 above, and further in view of Jin et al. (CN 111588426 A).
Liu and Wallace fail to teach wherein said pair of retracting arms are made of wire (claim 5).
Jin teaches a nostril retracting device comprising: a frame (see Fig. 1 inset) having a pair of retracting arms (see Fig. 1 inset) connected to said frame; said retracting arms extending upward and away from said frame at an angle (see Fig. 1); each of said retracting arms having a bend (see Fig. 1 inset) and a prong (see Fig. 1 inset) at a distal end (encompasses the prongs) of each of said arms; wherein said pair of retracting arms are made of wire (see Fig. 1, which shows that the retracting arms are configured as wires) (Fig. 1).
[AltContent: connector][AltContent: textbox (Frame)][AltContent: connector][AltContent: connector][AltContent: textbox (Bend)][AltContent: textbox (Prong)][AltContent: connector][AltContent: connector][AltContent: textbox (Prong)][AltContent: textbox (Bend)][AltContent: connector][AltContent: textbox (Retracting Arm)][AltContent: connector][AltContent: textbox (Retracting Arm)]
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the device of Liu by substituting the retracting arms of Jin for those of Liu such that said pair of retracting arms are made of wire (claim 5) as doing so is a simple substitution of one type of retracting arm for another.
Allowable Subject Matter
Claims 3, 4, 6, and 14 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicant's arguments filed September 4, 2026 have been fully considered but they are not persuasive.
Regarding the 102 rejection in view of Liu and Wallace, Applicant argues that Liu does not teach the adjustment means and the pin (see pg. 13). The Examiner notes that Liu was not relied upon to teach such a feature.
Applicant also argues that connecting rod 3 of Liu is flexible and formed integral with the other rod members indicating that the device of Liu is a manually squeezed spring (see pg. 13). The Examiner disagrees. The Examiner notes that this does not preclude applying Wallace to Liu as Wallace teaches an equivalent connecting rod (connecting member 28) that is flexible (see para. 0036, which states that body 22 is formed from a resilient or flexible material) and formed integral with the other rod members (see Fig. 3) that can therefore be considered a spring and the device of Wallace is manually squeezed (the operation of control rod 40 is manually achieved by rotating head 44).
With regard to Applicant’s arguments focusing on the distances of the prongs in the closed position and the open position (see pg. 13), the Examiner notes that the criticality identified by Applicant does not distinguish from Liu as the prongs of Liu are also placed in a human nasal passage (see col. 1, ll. 4-7) and would therefore necessarily be subject to the same size constraints, thus making the claimed distances a mere optimization.
Regarding the 103 rejection in view of Jin, Applicant argues that the retracting arms of Jin are not made of wire (see pg. 15). The Examiner disagrees. As shown in Fig. 1, Jin shows that the retracting arms (see Fig. 1 inset above on pg. 11) are long and thin and thus can be considered to be a wire. The Examiner notes that the claim does not specify a material (such as a metal wire). If Applicant desires a particular material to be included within the scope of claim 5, the Examiner suggests amending claim 5 as such.
Applicant’s arguments with respect to the 102 rejection in view of Wallace (claims 1, 2, 6-9, and 12-14) and the 103 rejections in view of Wallace (claim 4), and Pepper and Wallace (claims 1 and 3) have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 JULIANNA N HARVEY whose telephone number is (571)270-3815. The examiner can normally be reached Mon.-Fri. 8:00am-5:00pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Eduardo Robert can be reached at (571)272-4719. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JULIANNA N HARVEY/Primary Examiner, Art Unit 3773
