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 .
Election/Restrictions
Applicant’s election without traverse of claims 1-9, 13, and 16-23 in the reply filed on July 23, 2024 is acknowledged.
Claims 14 and 15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on July 23, 2024.
Examiner’s Comment
Applicant appears to use the term “foil” to refer to a thin layer of material; thus, the present interpretation of the term “foil” is not limited to being defined as a thin sheet of metal.
Claim Objections
Claims 7, 8, and 23 are objected to because of the following informalities:
In claim 7, “arranged in such a way at the housing that electromagnetic radiation which is radiated into the measuring chamber through an observation section of one of the two first gas constituent observation wall components, can radiate out” should read instead as “arranged in such a way at the housing that electromagnetic radiation which is radiated into the measuring chamber through an observation section of one of the two first gas constituent observation wall components, can radiate out.” Examiner notes that the comma prior to “can radiate out” has been removed.
In claim 8, “wherein the at least one foil layer comprises as a temperature measurement foil layer a metal foil” should read as “wherein the at least one foil layer comprises as a metal foil as a temperature measurement foil layer.”
In claim 23, “where at the housing the first and the second first gas constituent observation wall component are each arranged” should be read as “where, at the housing, the first and the second first gas constituent observation wall component are each arranged.”
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 9, 13, 21, 22, and 23 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Re. Claims 9 and 22: Claim 9 recites “the at least one foil layer exhibits as second gas constituent foil layer for capturing a second gas constituent differing from the first one a photoluminescent layer with at least one luminophore accommodated in it.” This limitation presents several issues:
The phrase “exhibits as second gas constituent foil layer” is grammatically incorrect. Additionally, it is unclear what the wording “exhibits as” intends to convey. For example, it is unclear whether “exhibits as” is intended to be recited as equivalent to “comprising,” or if the wording intends to indicate that the foil layer additionally possesses the property of being a photoluminescent layer. The issue of “second gas constituent foil layer” is addressed below.
The phrase “second gas constituent foil layer” is unclear because there is no first gas constituent foil layer defined in claim 1; therefore, the number of gas constituent foil layers required by the claim is unclear.
The phrase “differing from the first one” is unclear because “the first one” lacks antecedent basis. Even if “the first one” is understood as “the first gas constituent,” antecedent basis is still not clearly established since independent claim 1 recites “at least one gas constituent,” which is open-ended to be interpreted as one or more gas constituents [emphasis added]. The wording “differing from the first one” identifies an alternative to what is recited potentially as a plurality of gas constituents in independent claim 1. The phrase is further unclear because there are multiple subjects to which the phrase could be modifying; it is unclear whether “differing from the first one” intends to state that 1) a second gas constituent foil layer is different from a first one or 2) a second gas constituent differs from a first one.
It is further unclear what layer comprises “a photoluminescent layer with at least one luminophore accommodated in it” or if a photoluminescent layer is distinct from either a first or second gas constituent foil layer. This aspect is also further unclear in light of Applicant’s specification at page 15.
Claim 22 is also indefinite due to dependency upon claim 9.
Re. Claim 13: Claim 13 recites “wherein at least at one longitudinal end of the housing, preferentially at two opposite longitudinal ends, a connector formation is arranged at each which is configured for connecting a hose and/or pipe line” [emphasis added]. As per MPEP 2111.04, “[c]laim scope is not limited by claim language that suggests or makes optional…”
Claim 13 only positively claims one longitudinal end. The limitation “each which is configured,” indicates the claim requires two positively claimed longitudinal ends. It is unclear how many longitudinal ends of the housing possess a connector formation.
Re. Claim 21: Claim 21 recites “a second gas constituent foil layer.” No “first gas constituent wall component” is recited in claim 8 or claim 1. Thus, it is unclear how many gas constituent observation wall components are required by the claim.
Claim 21 recites “the second gas constituent foil layer.” This term does not possess proper antecedent basis in claim 8 or claim 1.
Claim 21 recites “which also exhibits the temperature measurement foil layer.” It is unclear what structure “exhibits” the foil layer. Additionally, it is unclear if “exhibits as” is intended to be recited as equivalent to “comprising,” or if the wording intends to indicate that the foil layer additionally possesses the property of being a temperature measurement foil layer.
Re. Claim 23: Claim 23 recites “exhibits as” which possesses similar issues as those addressed in the indefiniteness rejections of the claims above. Additionally, “exhibits as second gas constituent foil layer” is grammatically incorrect.
Claim 23 recites “with at least one luminophore accommodated in it;” it is unclear what prior element this phrase is modifying.
Claim 23 recites “second gas constituent foil layer;” no “first gas constituent foil layer” is recited in claims 7 or 1; thus, it is unclear how many gas constituent foil layers are required by the claim.
Claim 23 recites “wherein it exhibits;” it is unclear what component of the measuring device “it” intends to refer to.
Claim 23 recites “differing from the first one;” this possesses the same issues as the verbatim phrase recited in claim 9; see indefiniteness rejection of claim 9.
Claim Rejections - 35 USC § 102
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 1-5, 7, 13, and 20 are rejected under 35 U.S.C. 102(a)(1) as being clearly anticipated by:
Braig et al. (US 6095986 A) (hereinafter – Braig) (disclosed by Applicant).
Re. Claim 1: Braig teaches a measuring device for measuring at least one gas constituent of a gas present in a measuring chamber of the measuring device (Title; Abstract),
where the measuring device comprises:
a housing surrounding the measuring chamber (Fig. 6A: adapter body 190; see annotated figure below),
PNG
media_image1.png
171
476
media_image1.png
Greyscale
of which at least one housing wall section is configured as an observation section (Fig. 6A; see annotated figure below)
PNG
media_image2.png
171
476
media_image2.png
Greyscale
for the acquisition of electromagnetic radiation emitted from the observation section in a direction away from the measuring chamber (Col. 4, lines 18-21: “… the airway adapter of the invention is particularly characterized in that the windows which pass the infrared energy from the infrared transmission device to the detection device…”),
where the observation section comprises at least one foil layer (Figs. 5-7: any window 200 shown), and
where the housing is configured as a synthetic material injection molded housing (Col. 5, lines 17-19: “In still another embodiment, the tubular portion… may be injection molded from the same shot of plastic…”),
wherein the observation section exhibits at least one observation wall component, comprising an observation injection-molded body injected onto the at least one foil layer, where the housing comprises the at least one observation wall component and a frame injection-molded body injected onto the observation wall component (Col. 5, lines 17-19: “In still another embodiment, the tubular portion and the windows may be injection molded from the same shot of plastic…;” Examiner notes claim limitations reciting “injecting” parts of a device “onto” other parts of the device is read upon by the process of filling a mold in single-shot injection molding).
Re. Claim 2: Braig teaches the invention according to claim 1. Braig further teaches the invention wherein the measuring chamber allows the flowthrough of gas along a virtual flow path (Fig. 1: flow of patient’s airstream through adapter body).
Re. Claim 3: Braig teaches the invention according to claim 1. Braig further teaches the invention wherein the observation injection-molded body exhibits an observation cutout, within which the at least one foil layer is accessible (see annotated Fig. 1: middle region of adapter body 10 contains optical window 20, accessible when removed from gas analyzer housing 30).
PNG
media_image3.png
282
646
media_image3.png
Greyscale
Re. Claim 4: Braig teaches the invention according to claim 3. Braig further teaches the invention wherein a lateral face of the observation cutout tapers in a direction towards at least one foil layer and thus is configured as a centering surface for tool engagement (see annotated figure Fig. 1: arrows indicate tapered areas that aid in centering with gas analyzer housing 30; see similar regions in Figs. 2A-2C, 3A-6C).
PNG
media_image4.png
283
646
media_image4.png
Greyscale
Re. Claim 5: Braig teaches the invention according to claim 1. Braig further teaches the invention wherein the at least one foil layer is transparent to electromagnetic radiation in the infrared spectral range (Abstract; Col. 1, lines 14-18: “The present invention relates to a device which provides a conduit for patient respiratory gases and an optical channel for the passage of infrared radiation from a respiratory gas analyzer through the gases…”).
Re. Claim 7: Braig teaches the invention according to claim 1. Braig further teaches the invention wherein
it comprises a first and a second first gas constituent observation wall component, which are provided for capturing a first gas constituent at the housing in such a way that at least one section of the measuring chamber is located between them,
where the first and the second first gas constituent observation wall component are arranged in such a way at the housing that electromagnetic radiation which is radiated into the measuring chamber through an observation section of one of the two first gas constituent observation wall components, can radiate out of the measuring chamber through the observation section of the respectively other first gas constituent observation wall component
(Fig. 1: infrared radiation emitted by gas analyzer 40 passes through both optical windows 20 located in the middle of adapter body 10, as described in Col. 5, lines 49-51: “the windows pass infrared energy from the infrared transmission device to the detection device through the respiratory airstream of the patient…;” see also standard operation of gas analyzers in Col. 1, lines 45-48: “Such infrared respiratory gas analyzers function by passing light of a specific wavelength (typically infrared) through a gas and measuring the amount of light that is absorbed”).
Re. Claim 13 (as best understood): Braig teaches the invention according to claim 1. Braig further teaches the invention wherein at least at one longitudinal end of the housing, preferentially at two opposite longitudinal ends, a connector formation is arranged at each which is configured for connecting a hose and/or pipe line (Figs. 1-6C: see tapered ends of adapter body).
Re. Claim 20: Braig teaches the invention according to claim 1. Braig further teaches the invention wherein at least at two opposite longitudinal ends, a connector formation is arranged at each which is configured for connecting a hose and/or pipe line (Figs. 1-6C: see tapered ends of adapter body).
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 6, 16, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over:
Braig et al. (US 6095986 A) (hereinafter – Braig) (disclosed by Applicant) in view of
Mace et al. (US 20020029003 A1) (hereinafter – Mace) (disclosed by Applicant).
Re. Claims 6, 16, and 17: Braig teaches the invention according to claim 5. While Braig teaches that the windows (i.e., a foil layer or comprising a foil layer) may be formed from polypropylene (Col. 8, lines 53-55), Braig does not describe the polypropylene windows to be biaxially oriented.
Mace teaches analogous art in the technology of teaches analogous art in the technology of airway adapters (Abstract), and further teaches the invention wherein the at least one foil layer comprises a biaxially oriented polymer foil (Paragraph 0019: “The '944 Patent discloses fashioning windows from a malleable homopolymer, such as biaxially oriented polypropylene, in the thickness range of 0.001 to 0.005 inches. The use of this inexpensive polypropylene material allows for the fabrication of single-use, disposable cuvettes;” Paragraph 0042: “Thus, the window material must have appropriate optical properties. Preferred window materials include, but are not limited to, sapphire and biaxially oriented polypropylene. Substantial axial alignment of the windows allows an infrared radiation beam to travel from a source of infrared radiation, transversely through the chamber and the gas(es) flowing through the chamber, to an infrared radiation detector”).
It would have been obvious to one having skill in the art before the effective filing date to have modified Braig to utilize specifically biaxially oriented polypropylene as opposed to non-descript polypropylene, the motivation being that this material is inexpensive and utilized previous applications to address issues with use of polymers as window materials in airway adapters (Paragraph 0019).
With respect to claims 16 and 17, the citations of the rejection of claim 6 teach the use of biaxially oriented polypropylene (BOPP), which directly read on the requirements of claim 17. Polypropylene is within the family of polyolefins, thus reading on the requirements of claim 16.
Claims 8 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over:
Braig et al. (US 6095986 A) (hereinafter – Braig) (disclosed by Applicant) in view of
Fiering et al. (US 20140273276 A1) (hereinafter – Fiering).
Re. Claim 8: Braig teaches the invention according to claim 1, but does not teach the invention wherein the at least one foil layer comprises as a temperature measurement foil layer a metal foil.
Fiering teaches analogous art in the technology of measuring properties of a flowing fluid (Abstract). Fiering further teaches the invention utilizing a metal layer for temperature sensing (Paragraph 0015: “The temperature sensors are nanohole arrays in a metal layer disposed below the laminar flow channel”).
It would have been obvious to one having skill in the art before the effective filing date to have modified Braig to include the sensors of Fiering in the airway channel of Braig, the motivation being that Braig is concerned with producing a device which quickly equilibrates to warm gases of a patient’s breathing circuit (Abstract), and inclusion of a temperature sensing capability would further ensure that an operator of the device can confirm that the airway adapter has reached equilibrium temperature for use.
Re. Claim 21 (as best understood): Braig as modified by Fiering teaches the invention according to claim 8. Modification of Braig with Fiering necessarily produces a second gas constituent observation wall component, i.e., an additional component on the housing of the device having components taught by Fiering suited for temperature sensing, i.e., a metal foil.
Claims 18 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over:
Braig et al. (US 6095986 A) (hereinafter – Braig) (disclosed by Applicant) in view of
Fiering et al. (US 20140273276 A1) (hereinafter – Fiering) in further view of
Knight et al. (US 20090143233 A1) (hereinafter – Knight).
Re. Claims 18 and 19: Braig teaches the invention according to claim 1. Modification by Fiering results in a combination with at least one foil layer comprising a temperature measurement foil layer comprised of metal (see rejection of claim 8). Braig as modified by Fiering thus does not teach a metal foil coated with black material. Fiering, in teaching constructional details of the incorporated temperature sensor, states that the metal film may be aluminum (Paragraph 0048).
Knight teaches analogous art in the technology of temperature measurement of a flowing fluid (Fig. 1; Abstract). Knight further teaches painting an aluminum thermal transfer layer (i.e., akin to the aluminum layer of Fiering) with a black paint (Paragraph 0028).
It would have been obvious to one having skill in the art before the effective filing date to have modified Braig as modified by Fiering to include painting the aluminum portion black, the motivation being that the thermal sensing of Fiering is an optical method, and a black paint provided on the thermal transferring element can reduce backscatter of light (Paragraph 0028).
Claims 9, 22, and 23 are rejected under 35 U.S.C. 103 as being unpatentable over:
Braig et al. (US 6095986 A) (hereinafter – Braig) (disclosed by Applicant) in view of
Karlsson (US 20130023782 A1) (hereinafter – Karlsson).
Re. Claim 9 (as best understood): Braig teaches the invention according to claim 1. As best understood, Braig does not teach the invention wherein the at least one foil layer comprises a photoluminescent layer with at least one luminophore accommodated in it for capturing a gas constituent.
Karlsson teaches analogous art in the technology of sensors utilizing infrared radiation for measurement of gas constituents in breath gases (Abstract; Fig. 1). Karlsson teaches a luminophore coating on a window of an airway adapter (Paragraph 0023: “Especially the airway adapter 8 or alternatively the gas analyzer or the gas sensor 23 comprises a body 14, such as a window at least partly coated with a luminophore 13 exited by a radiation emitted by the emitter 12 and which luminophore is emitting luminescent radiation indicative of oxygen concentration of the respiratory gas when the luminophore is in direct contact with the respiratory gas”).
Modification of Braig to include an additional component on the housing of the device possessing a luminophore as taught by Karlsson enables the additional capability of detecting oxygen content. Examiner notes that Braig is directed to gas analysis using infrared radiation alone, which yields measurements of carbon dioxide in measured gases of the housing; the additional components of Karlsson provides the capability to further sense oxygen through optical-based means with temperature compensation.
Re. Claim 22 (as best understood): Braig as modified by Karlsson teaches the invention according to claim 9. Karlsson, in teaching structural details of the incorporated component further including a luminophore, further teaches wherein the second gas constituent foil layer is covered completely by the observation injection-molded body on its side facing away from the measuring chamber (Figs. 2-6: body 14 covers luminophore 13).
Braig as modified by Karlsson does not explicitly teach where the observation injection-molded body is transparent to electromagnetic radiation in the wavelength range of the photoluminescent radiation emitted from the photoluminescent layer.
However, in operation, Karlsson states that the body of the airway adapter may be constructed of transparent polymer to allow for the radiation path of the excited luminophore to travel through and be detected by an detector (Paragraph 0023).
Therefore, it would be obvious to one of ordinary skill in the art, while modifying Braig to incorporate features of Karlsson, would necessarily form portions of the observation injection-molded body of Braig overlying such layers to be transparent to the luminescent radiation of the excited luminophores emitted from the photoluminescent layer in order for the such a layer to utilize its detection capabilities in its original intended manner.
Re. Claim 23 (as best understood): Braig teaches the invention according to claim 7. Braig does not teach the invention further comprising
a second gas constituent foil layer comprising a photoluminescent layer with at least one luminophore accommodated in it; and
a second gas constituent observation wall component with the second gas constituent foil layer,
where the first and second first gas constituent observation wall components are each arranged at different sides of the second gas constituent observation wall component.
As best understood, Applicant appears to be attempting to claim the structure shown in Fig. 2 (see annotated Fig. 2 below).
PNG
media_image5.png
429
802
media_image5.png
Greyscale
The limitations of claim 23 are read upon by the modification of Braig by Karlsson (see rejections of claims 9 and 22). However, the combination does not suggest such orthogonal placement of observation wall components.
However, the skilled artisan would be motivated to arrange the differing wall components such as shown in Fig. 2 of Applicant’s, the motivation being that doing so least modifies the device of Braig. Braig requires a beam of infrared light to pass through optical windows 20 to gas analyzer 40 (Fig. 1). Karlsson requires passage of an infrared beam of light and then detecting luminescent radiation emitted by the luminophore using a differing detector from that of Braig. Placement of the components taught by Karlsson on the top of airway adapter 50 of Braig still allows use with the gas analyzer 40 in Braig and requires adding components of Karlsson to the top of the exposed top surface of the airway adapter 50 of Braig.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JUSTIN XU whose telephone number is (571)272-6617. The examiner can normally be reached Mon-Fri 7:30-5:00.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Alexander Valvis can be reached on (571) 272-4233. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JUSTIN XU/Examiner, Art Unit 3791
Prosecution Insights