DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 09 January 2026 has been entered.
Status of Claims
Claim(s) 1-2, 6, 11-12 and 16 is/are currently amended. Claim(s) 1-20 is/are pending.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
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.
Claim(s) 1, 4, 7-11, 14 and 17-20 is/are rejected under 35 U.S.C. 103 as being un-patentable over US 10,561,863 B1 (previously cited, Dashevsky) in view of US 2019/0257802 A1 (previously cited, Foranzi); or alternatively, over Dashevsky in view of US 2012/0330161 A1 (previously cited, Kobayashi) and Foranzi.
Regarding claims 1 and 10, Dashevsky teaches and/or suggests a gas sensor apparatus for mobile respiratory equipment (col. 42, lines 40-46, any existing or later developed breathing mask, e.g., flight mask; breathing mask systems for divers, firefighters and other first responders; medical breathing masks; etc.), the apparatus comprising:
a housing (housing 20), wherein the housing comprises:
a connector configured to attach to a respiratory exhaust port (col. 44, line 56 - col. 45, line 14, housing 20 is adapted to the exhaled breath side of the breathing mask; col. 48, lines 21-45; etc.); and
a plenum in fluidic communication with the connector and an ambient air from a surrounding external environment, wherein the plenum is configured to: permit a free flow of the ambient air from the surrounding external environment and into the plenum; and permit a free flow of exhaled air through the respiratory exhaust port within the plenum during exhalation (col. 45, lines 8-14, where gas flows through a housing(s) as it is exhaled and exits the breathing mask 10, a respective sensor thereof records its particular signal as the breathing mix flows through or over the sensor and into the ambient air, indicating an aperture(s) exists to allow air flow between the interior of housing 20 and the ambient environment thereof, wherein the "plenum" is the interior of housing 20 that exhaled gas enters from the mask interior and exits to ambient air);
a sensor positioned within the plenum (col. 44, lines 56-58, exhaled gas sensor(s) 25 seated in housing 20), the sensor configured to detect a carbon dioxide level and generate a plurality of sensor outputs indicating the detected carbon dioxide level (col. 44, line 56 - col. 45, line 14, the exhaled gas sensor(s) comprises a carbon dioxide sensor that records its particular signal as air flows through or over the sensor; col. 17, lines 57-62, where a "drift in measurements" and "each measurement" indicate multiple measurements are taken over time; etc.); and
a processor communicatively connected to the sensor (col. 45, lines 15-41, processor), wherein the processor is configured to: receive the plurality of sensor outputs from the sensor (col. 45, lines 15-41); analyze the detected carbon dioxide level associated with the flow of the exhaled air and detect a user condition (col. 45, lines 42-63, the processor collects and correlates the signals received from the sensors, employs an algorithm which uses the signals received from the sensors to calculate various measurements and metrics based on the signals from the sensors; those measurements and metrics are then parsed to identify a dangerous physiological condition that is presently occurring, or more preferably to predict the onset of such a condition to send out a warning or alert).
Dashevsky does not expressly teach the housing includes a sensor-bearing surface, or the sensor-bearing surface is located opposite the connector/respiratory exhaust port. However, at the time the invention effectively filed, it would have been an obvious matter of design choice to a person of ordinary skill in the art to modify the apparatus of Dashevsky with the claimed housing arrangement because Applicant has not disclosed that said arrangement provides an advantage, is used for a particular purpose, or solves a stated problem. Rather, Applicant expressly discloses the claimed arrangement is exemplary (e.g., ¶ [0009] "Housing 104 may include a sensor-bearing surface 112 on or to which one or more electrical components including sensor 108 may be attached. Sensor-bearing surface 112 may be positioned opposite a port aperture as described in further detail below"). As no evidence has been provided to the contrary, one of ordinary skill in the art would have expected Applicant's invention to perform equally well with the housing as taught/suggested by Dashevsky (col. 45, lines 8-14; Fig. 10B; etc.) because either arrangement permits detection of CO2 within the plenum.
Alternatively/Additionally, Kobayashi teaches/suggests a housing comprising a sensor-bearing surface, and a sensor attached to the sensor-bearing surface (Fig. 11, light source 41 and the light receiver 42 attached to surface 13), wherein the sensor-bearing surface is located opposite an input means of exhaled air (e.g., Fig. 11, permitting illustrated flow of expiration; Fig. 16; etc.). 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 apparatus of Dashevsky with the housing including a sensor-bearing surface located opposite the connector/respiratory exhaust port as taught and/or suggested by Kobayashi as a simple substitution of one known housing/sensor arrangement for detecting CO2 for another to yield no more than predictable results. See MPEP 2143(I)(B).
While Dashevsky as modified teaches the apparatus may be configured for environmental analysis (e.g., col. 9, lines 34-65, sensors for detection of other surrounding conditions may be included, such as sensors for detection of volatile organic compounds, hydrocarbons, and other such contaminants which may be present and have an adverse effect on a person's breathing and oxygen levels), Dashevsky as modified does not expressly teach the processor is configured analyze a carbon dioxide level associated with the flow of the ambient air detected by the sensor of the housing.
Foranzi discloses an apparatus comprising a multifunctional carbon dioxide (CO2) detector for monitoring CO2 concentration in environments including living organisms' breath and the atmosphere (¶ [0002]), the apparatus comprising: a housing defining a plenum (Fig. 1, body defining chamber 11) having a CO2 sensor disposed therein (e.g., ¶ [0056] chamber 11 houses high performance solid-state optoelectronics components of CO2 sensor element 12), wherein the plenum is configured to: permit a free flow of the ambient air within the plenum; and permit a free flow of exhaled air within the plenum during exhalation (e.g., ¶ [0067] CO2 sensor is exposed to alternating atmospheres of ambient air and a breath sample; Fig. 1, gas inlet and outlet for allowing gas into the sensor area). Foranzi further discloses, based on a plurality of sensor outputs received from the CO2 sensor, analyzing the detected carbon dioxide level associated with the flow of the ambient air (e.g., ¶ [0068] real-time monitoring of the environmental air quality) and analyzing the detected carbon dioxide level associated with the flow of the exhaled air (e.g., ¶ [0067] the CO2 detector is capable of performing both breath CO2 analysis and environmental CO2 analysis; ¶ [0058] determining how fast and abnormal the breathing cycles are, how much CO2 is released by the body from circulation to the atmosphere, ventilation condition, etc.).
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 apparatus of Dashevsky with the processor being further configured to analyze the detected carbon dioxide level associated with the flow of the ambient air as taught and/or suggested by Foranzi (e.g., analyzing environmental CO2 detected by the sensor within the plenum to assess air quality) in order to facilitate identifying and/or predicting the onset or presence of various physical conditions of the subject by measuring and detecting a condition(s) surrounding the subject that may have an adverse effect on a person's breathing and/or oxygen levels (Dashevsky, col. 9, lines 34-65; Foranzi, ¶ [0068]; etc.) without requiring a separate and/or dedicated environmental CO2 sensor.
Regarding claims 11 and 20, Dashevsky teaches/suggests a method of use of a gas sensor apparatus for mobile respiratory equipment (col. 42, lines 40-46, any existing or later developed breathing mask, e.g., flight mask; breathing mask systems for divers, firefighters and other first responders; medical breathing masks; etc.), the method comprising:
attaching, using a connector, a housing to a respiratory exhaust port (col. 44, line 56 - col. 45, line 14, housing 20 is adapted to the exhaled breath side of the breathing mask; col. 48, lines 21-45; etc.);
permitting, using a plenum in fluidic communication with the connector and an ambient air (i.e., interior of housing 20), a free flow of the ambient air from a surrounding external environment and into the plenum, and permitting, using the plenum, a free flow of exhaled air through the respiratory exhaust port within the plenum during exhalation (col. 45, lines 8-14, where gas flows through a housing(s) as it is exhaled and exits the breathing mask 10, a respective sensor thereof records its particular signal as the breathing mix flows through or over the sensor and into the ambient air, indicating an aperture(s) exists to allow air flow between the interior of housing 20 and the ambient environment thereof);
using a sensor positioned within the plenum, detecting a carbon dioxide level and generating a plurality of sensor outputs indicating the detected carbon dioxide level (col. 44, line 56 - col. 45, line 14, exhaled gas sensor(s) 25 seated in housing 20 comprises a carbon dioxide sensor that records its particular signal as air flows through or over the sensor; col. 17, lines 57-62, where a "drift in measurements" and "each measurement" indicate multiple measurements are taken over time; etc.);
receiving, using a processor communicatively connected to the sensor (col. 45, lines 15-41, processor), a plurality of sensor outputs from the sensor (col. 45, lines 15-41); and
analyzing, using the processor, the detected carbon dioxide level associated with the flow of the exhaled air and detecting, using the processor, a user condition (col. 45, lines 42-63, the processor collects and correlates the signals received from the sensors, employs an algorithm which uses the signals received from the sensors to calculate various measurements and metrics based on the signals from the sensors; those measurements and metrics are then parsed to identify a dangerous physiological condition that is presently occurring, or more preferably to predict the onset of such a condition to send out a warning or alert).
Dashevsky does not expressly teach the housing includes a sensor-bearing surface, or the sensor-bearing surface is located opposite the connector/respiratory exhaust port. However, at the time the invention effectively filed, it would have been an obvious matter of design choice to a person of ordinary skill in the art to modify the apparatus of Dashevsky with the claimed housing arrangement because Applicant has not disclosed that the claimed arrangement provides an advantage, is used for a particular purpose, or solves a stated problem. Rather, Applicant expressly discloses the claimed arrangement is exemplary (e.g., "Housing 104 may include a sensor-bearing surface 112 on or to which one or more electrical components including sensor 108 may be attached. Sensor-bearing surface 112 may be positioned opposite a port aperture as described in further detail below, ¶ [0009]"). As no evidence has been provided to the contrary, one of ordinary skill in the art would have expected Applicant's invention to perform equally well with the housing as taught/suggested by Dashevsky (col. 45, lines 8-14; Fig. 10B; etc.) because either arrangement permits detection of CO2 within the plenum.
Alternatively/Additionally, Kobayashi teaches/suggests a housing comprising a sensor-bearing surface, and a sensor attached to the sensor-bearing surface (Fig. 11, light source 41 and the light receiver 42 attached to surface 13), wherein the sensor-bearing surface is located opposite an input means of exhaled air (e.g., Fig. 11, permitting illustrated flow of expiration; Fig. 16; etc.). 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 apparatus of Dashevsky with the housing including a sensor-bearing surface located opposite the connector/respiratory exhaust port as taught and/or suggested by Kobayashi as a simple substitution of one known housing/sensor arrangement for detecting CO2 for another to yield no more than predictable results. See MPEP 2143(I)(B).
While as modified Dashevsky further discloses the method may comprise environmental analysis (e.g., col. 9, lines 34-65, sensors for detection of other surrounding conditions may be included, such as sensors for detection of volatile organic compounds, hydrocarbons, and other such contaminants which may be present and have an adverse effect on a person's breathing and oxygen levels), Dashevsky as modified does not expressly teach the method comprises analyzing, using the processor, the carbon dioxide level associated with the flow of the ambient air detected using the sensor within the plenum.
Foranzi discloses an apparatus comprising a multifunctional carbon dioxide (CO2) detector for monitoring CO2 concentration in environments including living organisms' breath and the atmosphere (¶ [0002]), the apparatus comprising: a housing defining a plenum (Fig. 1, body defining chamber 11) having a CO2 sensor disposed therein (e.g., ¶ [0056] chamber 11 houses high performance solid-state optoelectronics components of CO2 sensor element 12), wherein the plenum is configured to: permit a free flow of the ambient air within the plenum; and permit a free flow of exhaled air within the plenum during exhalation (e.g., ¶ [0067] CO2 sensor is exposed to alternating atmospheres of ambient air and a breath sample; Fig. 1, gas inlet and outlet for allowing gas into the sensor area). Foranzi further discloses, based on a plurality of sensor outputs received from the CO2 sensor, analyzing the detected carbon dioxide level associated with the flow of the ambient air (e.g., ¶ [0068] real-time monitoring of the environmental air quality) and analyzing the detected carbon dioxide level associated with the flow of the exhaled air (e.g., ¶ [0067] the CO2 detector is capable of performing both breath CO2 analysis and environmental CO2 analysis; ¶ [0058] determining how fast and abnormal the breathing cycles are, how much CO2 is released by the body from circulation to the atmosphere, ventilation condition, etc.).
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 method of Dashevsky with analyzing, using the processor, the detected carbon dioxide level associated with the flow of the ambient air as taught/suggested by Foranzi (e.g., analyzing environmental CO2 detected by the sensor within the plenum to assess air quality) in order to facilitate identifying and/or predicting the onset or presence of various physical conditions of the subject by measuring and detecting a condition(s) surrounding the subject that may have an adverse effect on a person's breathing and/or oxygen levels (Dashevsky, col. 9, lines 34-65; Foranzi, ¶ [0068]; etc.) without requiring a separate/dedicated environmental CO2 sensor.
Regarding claims 4 and 14, Dashevsky as modified teaches and/or suggests the sensor is configured for detecting a level of at least a volatile organic compound (col. 44, line 56 - col. 45, line 14, sensors for use in the exhaled gas sensor housing 20 include sensors for measuring volatile organic compounds).
Regarding claims 7-9 and 17-19, Dashevsky as modified teaches/suggests the apparatus further comprises an environmental sensor configured for detecting at least an environmental parameter, wherein the processor is configured for calibrating the sensor to a calibration setting by selecting the calibration setting from a plurality of candidate calibration settings as a function of the environmental parameter (col. 17, line 57 - col. 18, line 13, the system continuously takes new barometric pressure readings during each NDIR reading, and then calibrates the carbon dioxide sensor based on both the barometric pressure reading and the NDIR reading, in order to obtain the most accurate partial pressure of CO2 measurement possible for accurate prediction, detection and possibly prevention or treatment of dangerous conditions).
Claim(s) 2 and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dashevsky in view of Foranzi (or Dashevsky in view of Kobayashi and Foranzi) as applied to claim(s) 1 and 11 above; or alternatively, over Dashevsky in view of Foranzi (or Dashevsky in view of Kobayashi and Foranzi) as applied to claim(s) 1 and 11 above, and further in view of US 2003/0051023 A1 (previously cited, Reichel).
Regarding claims 2 and 12, Dashevsky as modified teaches/suggests the limitations of claims 1 and 11, as discussed above, but does not expressly disclose the plenum comprises multiple ambient apertures configured to permit a free flow of air from the surrounding external environment and into the plenum and/or permitting the free flow of ambient air further comprises permitting, using multiple ambient apertures of the plenum, a free flow of air from the surrounding external environment and into the plenum. However, at the time the invention was effectively filed, it would have been an obvious matter of design choice to a person of ordinary skill in the art to modify the apparatus and method of Dashevsky with the plenum comprising multiple ambient apertures configured to permit a free flow of air from the surrounding external environment and into the plenum because Applicant has not disclosed that multiple ambient apertures provide an advantage, are used for a particular purpose, or solve a stated problem. Rather, Applicant expressly discloses embodiments comprising a single ambient aperture is a suitable alternative permitting air to travel freely between interior space and exterior environment (e.g., ¶ [0011] of specification as filed). Accordingly, as no evidence has been provided to the contrary, one of ordinary skill in the art would have expected Applicant's invention to perform equally well with one ambient aperture as taught/suggested by Dashevsky because either arrangement permits air to flow between the interior space of the housing and the external environment thereof.
Alternatively/Additionally, Reichel discloses an apparatus comprising a housing (150) defining a plenum (interior of said housing) having at least one sensor disposed therein (sensors 110-118), wherein the plenum multiple ambient apertures configured to permit a free flow of ambient air within the plenum (e.g., ¶ [0063] openings 156 are located along bottom edge 160 and top edge 162 of the top portion 152 of housing 150, wherein heat generated by some of the sensors creates a convection current that draws ambient air in at the bottom edge 160 and expels it out along the top edge 162). 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 apparatus and method of Dashevsky with the plenum comprises multiple ambient apertures configured for permitting a free flow of air from the surrounding external environment and into the plenum as taught/suggested by Reichel in order to facilitate drawing ambient air within the plenum for environmental monitoring thereof (Reichel, ¶ [0063]) and/or as a simple substitution of one suitable configuration for permitting a free flow of air to and from the plenum for another to yield no more than predictable results. See MPEP 2143(I)(B).
Claim(s) 3 and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dashevsky in view of Foranzi (or Dashevsky in view of Kobayashi and Foranzi) as applied to claim(s) 1 and 11 above, and further in view of "Carbon Dioxide Sensor" (previously cited, Wikipedia).
Regarding claim 3 and 13, Dashevsky as modified teaches and/or suggests the limitations of claims 1 and 11, as discussed above, but does not teach the sensor is configured for detecting the carbon dioxide level by detecting a level of a related compound; and detecting the carbon dioxide level as a function of the level of the related compound.
Wikipedia discloses a sensor configured to detect a carbon dioxide level by detecting a level of a related compound; and detecting the carbon dioxide level as a function of the level of the related compound (pg. 2, Estimated CO2 sensor).
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 apparatus/method of Dashevsky with the sensor being configured for detecting carbon dioxide levels by detecting a level of a related compound; and detecting the carbon dioxide level as a function of the level of the related compound as taught and/or suggested by Wikipedia in order to more easily/inexpensively detect CO2 (Wikipedia, pg. 2) and/or as a simple substitution of one known means/method for detecting CO2 for another to yield no more than predictable results. See MPEP 2143(I)(B).
Claim(s) 5 and 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Dashevsky in view of Foranzi (or Dashevsky in view of Kobayashi and Foranzi) as applied to claim(s) 1 and 11 above, and further in view of US 2018/0346130 A1 (previously cited, Jouper).
Regarding claim 5 and 15, Dashevsky as modified teaches and/or suggests the limitations of claims 1 and 11, as discussed above, and discloses the sensor may be configured to detect volatile organic compounds and used to monitor surrounding conditions (col. 9, lines 34-65), but does not expressly teach the sensor is configured for detecting a total volatile organic compound level.
Jouper teaches/suggests an apparatus comprising a sensor configured to detect a total volatile organic compound level (¶ [0015] sensor 10 reporting total volatile organic compound (tVOC) level in ppb).
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 apparatus of Dashevsky with the sensor being configured for detecting a total volatile organic compound level as taught/suggested by Jouper in order to facilitate alternatively/additionally detecting a significant drop in surrounding conditions, such as air quality (Jouper, ¶ [0015]).
Double Patenting
The nonstatutory double patenting ("NSDP") 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 NSDP 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 NSDP rejection 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 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 (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.
Claim(s) 1 and 11 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 3 of USPN 11,172,845.
With respect to claim 1 of the present application, although the claims at issue are not identical, they are not patentably distinct from each other because claim 3 of USPN 11,172,845 anticipates each limitation of claim 1 of the present application. With respect to claim 11 of the present application, though claims 3 of USPN 11,172,845 is directed to the sensor apparatus, rather than a method of use of said apparatus, the apparatus of claim 3 of USPN 11,172,845, in its normal and usual operation, would necessarily perform the method of claim 11of the present application. Accordingly, the method claim 11 of the present application is anticipated by the apparatus of claim 3 of USPN 11,172,845. See MPEP 2112.02.
Claim(s) 1-20 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claim(s) 1, 4-7, 10-11, 15, 17 and 20 of USPN 11,172,845, or alternatively, over claim(s) 1, 4-7, 10-11, 15, 17 and 20 of USPN 11,172,845 in view of Kobayashi.
With respect to claims 1-10 of the present application, although the claims at issue are not identical, they are not patentably distinct from each other because claims 1, 4-7, 10-11, 15, 17 and 20 of USPN 11,172,845 anticipate each limitation of claims 1-10 of the present application with the exception of the housing including a sensor-bearing surface, or the sensor-bearing surface being located opposite the connector/respiratory exhaust port. However, as discussed with respect to the prior art rejection(s) above, there is no/insufficient evidence of record to indicate the arrangement as claimed is any more than a mere matter of design choice, and therefore would have been an obvious modification. Alternatively/Additionally, Kobayashi discloses a comparable arrangement, such that it would have been obvious to modify the above-noted claims of USPN 11,172,845 with said arrangement as a simple substitution of one known housing/sensor arrangement for detecting CO2 for another to yield no more than predictable results. See MPEP 2143(I)(B).
With respect to claims 11-20 of the present application, though claims 1, 4-7, 10-11, 15, 17 and 20 of USPN 11,172,845 as modified above are directed to an apparatus, rather than a method, the apparatus of claims 1, 4-7, 10-11, 15, 17 and 20 of USPN 11,172,845 as modified, in its normal and usual operation, would necessarily perform the method of claims 11-20 of the present application. Accordingly, the method claims 11-20 of the present application are anticipated by the apparatus of claims 1, 4-7, 10-11, 15, 17 and 20 of USPN 11,172,845 as modified above. See MPEP 2112.02.
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive.
Applicant's arguments fail to acknowledge or address the double patenting rejections made of record in the prior Office action (mailed 10 July 2025). Accordingly, said rejection(s) have been maintained.
With respect to the prior art rejection(s) of the independent claims, Applicant contends, "Daveshky utilizes 'ambient air' merely as the destination for expelled waste gas, not as a fluid source permitted to flow into the plenum (Remarks, pg. 8).
The examiner respectfully disagrees. As noted in the rejection(s) of record, Daveshky discloses exhaled gas exits the breathing mask, and flows through a housing where a sensor records its particular signal as the breathing mix flows through or over the sensor and into the ambient air, i.e., the environment surrounding the user and/or his/her sensor apparatus (e.g., col. 45, lines 8-14) indicating, or at the very least suggesting, at least one opening or aperture exists in the housing (20) to allow exhaled air to exit said housing into the ambient environment. This interpretation is further supported and/or suggested by additional passage of Daveshky. For instance, Daveshky discloses the system/apparatus may be configured to perform a calibration step upon startup, which requires the sensor(s) to be exposed to ambient air (e.g., col. 17, lines 1-34).
Applicant further contends Daveshky intead discloses the system is designed to exclude ambient air from the plenum, asserting, "Daveshky's check valves and positive pressure supply are structurally configured to oppose the entry of ambient air, which directly contradicts the Applicant's claim requiring the plenum to permit said air to flow in" (Remarks, pgs. 8-9).
The examiner respectfully disagrees. There is nothing in the section of Daveshky cited by Applicant (col. 44) teaching a system designed to exclude ambient air from the plenum. Rather, Daveshky discloses a check valve is placed in the air flow pathway to prevent additional gas from entering the mask. As required by the language of the claims, the housing (and plenum thereof) is a component configured to connect to respiratory equipment (mask) via the claimed connector, and is not part of the mask itself. Accordingly, at best, Daveshky arguably discloses/suggests the connector for attaching the housing (20) to the respiratory exhaust port of the mask may include a check valve to prevent ambient air from entering the mask and mixing with the breathing mix intended to be inhaled by the subject. However, Daveshky does not indicate a check valve is either present or required on the opening between the interior of the housing (20) and the ambient environment.
Lastly, Applicant contends there is no motivation to combine Daveshky because the proposed modification would change the principle of operation of Daveshky. Specifically, Applicant appears to be arguing that ambient air being able to flow into the changes the operation of Daveshky from exclusion of the environment to admission of the environment (Remarks, pgs. 9-10).
The examiner respectfully disagrees. As discussed above, the plenum is not inside the mask or part of a closed breathing circuit. Rather, the housing (and plenum) thereof, is attached to the mask in order to receive exhaled air from the mask, potentially through a check valve. Accordingly, the plenum having an opening to permit a free flow of ambient air from the surrounding external environment does not necessarily admit ambient/environmental air within the mask or breathing circuit.
With respect to the dependent claims, Applicant submits the applied references fail to cure the deficiencies of Daveshky (Remarks, pgs. 10-14). The examiner respectfully disagrees with the alleged deficiencies of Daveshky for at least the reasons noted above.
Allowable Subject Matter
Claims 6 and 16 would be allowable if rewritten to include all of the limitations of the base claim and any intervening claims and with acceptance of a proper, timely filed terminal disclaimer disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of USPN 11,172,845.
The prior art of record fails to disclose/suggest, in combination with the remaining recited elements and/or steps, the processor being further configured for waiting a preconfigured period of time after a detected breath before analyzing the detected carbon dioxide level associated with the flow of the ambient air to permit the exhaled air to dissipate.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Meredith Weare whose telephone number is 571-270-3957. The examiner can normally be reached Monday - Friday, 9 AM - 5 PM.
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/Meredith Weare/Primary Examiner, Art Unit 3791