DETAILED ACTION
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
The Amendment filed 02 Jan 2026 has been entered. Claims 1-8 and 11-22 are pending in the application. Claims 1-3, 5-6, 14-15, 17-18 and 20-22 are currently amended. Applicant’s amendment to the Claims have overcome each and every objection and 35 U.S.C. 112 rejection previously set forth in the Non-Final Office Action mailed 02 Jul 2025.
The claims are no longer interpreted as invoking 35 U.S.C. 112(f) following the amendment to the claims.
Response to Arguments
Applicant's arguments filed 02 Jan 2026 have been fully considered but they are not persuasive.
Regarding claim 22, Applicant argues that Davenport (U.S. Pub. 2009/0199855) fails to disclose any programming to modify a property of the output gas of the flow outlet airline as a function of the respiratory element (Pg. 7).
Applicant acknowledges that Davenport uses its controller to control the opening and closing of valves (Pg. 7). It is respectfully submitted that Davenport performs those valve movement controls in specific relation to portions of an inhalation and exhalation breath curve analysis (Fig. 3; ¶¶0053-0055). The analyzed inhalation and exhalation breath curve is readable on the respiratory element of the claim and thus the controlled opening and closing of valves must be understood to modify the delivered flow pattern (e.g. Fig. 3 #68, 70, 72; ¶0058) based upon the analyzed inhalation and exhalation breath curve (i.e. the “respiratory element”). Davenport is thus still found to anticipate claim 22.
Terminal Disclaimer
The terminal disclaimer filed on 02 Jan 2026 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of U.S. Patent 11,400,250 and U.S. Appn. 17/858,261 has been reviewed and is accepted. The terminal disclaimer has been recorded.
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.
Claim(s) 22 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Davenport (U.S. Pub. 2009/0199855).
Regarding claim 22, Davenport discloses a breathing system (Figs. 1-2), comprising: a tubing (¶0050 – exiting source 12) configured to receive an input gas (¶0050 – gas from source 12); a breathing tubing (Fig. 2 #53; ¶0057); a patient interface (Fig. 2 #50; ¶0057); a flow outlet airline (Fig. 2 #48; ¶0056) in fluid communication with the tubing and the patient interface, wherein the flow outlet airline is configured to supply an output gas to a user via the patient interface (Fig. 2); a breath detection airline (Fig. 2 where #53 enters #6 and leads to #32) in fluid communication with the breathing tubing; a breath sensor (Fig. 2 #32; ¶0052) in fluid communication with the breath detection airline, wherein the breath sensor is configured to measure breathing pressure from the user (¶0052), and to generate sensor data as a function of breathing pressure of the user (¶0052), and wherein the breath sensor is fluidly separated from the flow outlet airline such that there is no signal interference from different simultaneously occurring gas flows (¶¶0057, 0129 – fluidly separated via divided cannula); and a controller (Fig. 2 #34; ¶0053) in electronic communication with the breath sensor, wherein the controller is programmed to compute a respiratory element of the user as a function of the sensor data (¶¶0053-0055 – e.g. portions of inhalation and exhalation as shown in Fig. 3), and wherein the controller is programmed to modify a property of the output gas (e.g. Fig. 3 #68, 70, 72; ¶0058) of the flow outlet airline as a function of the respiratory element (¶¶0053-0055, 0058).
Allowable Subject Matter
Claim(s) 1-8 and 11-21 are allowed.
The following is an examiner’s statement of reasons for allowance: claims 1 and 21 remain allowed over the prior art for the same reasons stated in the preceding Office action.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
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 JOSEPH D BOECKER whose telephone number is (571)270-0376. The examiner can normally be reached M-F 9:00 AM - 4:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kendra Carter can be reached at (571) 272-9034. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOSEPH D. BOECKER/Primary Examiner, Art Unit 3785