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 .
Response to Amendment
The amendment filed 02/12/2026 has been entered. Claims 39-55 remain pending in the application, with claims 56-58 remaining withdrawn. Applicant’s amendments to the claims have overcome the objections and 112(b) rejections previously set forth in the Non-Final Office Action mailed 11/14/2025.
Response to Arguments
Applicant's arguments filed 02/12/2026 have been fully considered.
The argument on page 10 that the amended claim 39 overcomes the rejection over Kwok is persuasive; the examiner agrees that the mounting surfaces of Kwok are not on the outside of the housing when the device is in use. The 35 U.S.C. 102(a)(1) rejection over Kwok has been withdrawn.
The argument on page 11 that Tiemann does not anticipate the newly amended claim 39 has been considered but is not persuasive. The receptacle apparatus in Tiemann fig. 2A (28) does have an inside since it is a three dimensional object. The inside of the receptacle portion of Tiemann’s housing element is solid. Thus, Tiemann’s first and second mounting surfaces are located on the outside of the housing element.
In addition to the change in scope introduced by the claim amendments, due to the amendments to the claim terminology resulting from the previously set forth 112(b) rejections, the prior art rejection over Tiemann has been updated to reflect the updated interpretation of the claim terms.
Claim Objections
Claims objected to because of the following informalities:
Claim 44 is objected to for the limitation “wherein a system center of gravity is arranged in a system lower half”. To improve antecedent basis, this limitation should be consistent with “respiratory therapy system”. Claims 45-46 have a similar issue.
Claims 47 and 55 are objected to for the limitation “in all of the intended mounting positions”. To ensure antecedent basis, this limitation should be amended to “in the at least two mounting positions”.
Claim 48 is objected to for the limitation in line 3: “on a front face of the housing system”. It appears that this limitation was not amended to be consistent with the updated claim term “housing element”.
Claim 55 limitation “… and have protection against falling water when the element is inclined up to 15°” appears to have a missing word. It appears this should read “when the housing element is inclined”.
Appropriate correction is required.
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: “a respiratory therapy system” and “a housing element” in claim 39 do not have antecedent basis in the specification. The specification describes a housing system enclosing the components of the respiratory device, and a coupling system comprising a coupling element, which appears to be a distinct structure from the housing system (fig. 1, housing system 2; fig. 3, coupling system 200 with coupling element 205).
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 39-55 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.
It is unclear what structures are included in the claimed “respiratory therapy system” and “the housing element”. It appears that the following structures are described in the specification and drawings:
A housing system, which appears to enclose the internal components of the respiratory device(s) (page 24 lines 19-26 and fig. 1, 2). The housing system includes mounting surfaces (page 25, lines 2-7 and fig. 1, 12, 22), which are located on the housing system.
A handle system (fig. 1, 5) is located on the housing system of the respiratory device (page 26, lines 16-33).
There is also a coupling system (fig. 3, 200, page 23 last line) and a coupling element, which is a portion of the coupling system (fig. 3, 205, page 208 line 27). The coupling system appears to be a distinct structure from the housing system of the respiratory device.
However, the specification does not refer to a “housing element”. It appears that the claim term “housing element” is intended to refer to the disclosed “housing system” (such as that shown in fig. 1, 2). The examiner has interpreted “housing element” to mean the housing enclosing the internal components of the respiratory device.
The difference between a “respiratory therapy system” and a “respiratory therapy device” is not clear, since the former term is not used in the specification. It has been interpreted that this is an unintended issue introduced by the amended claim language, and the respiratory therapy device is the same as the system.
Based on the above, it is suggested to revert instances of “respiratory therapy system” back to “respiratory therapy device” and revert instances of “housing element” to “housing system” while ensuring consistency in terminology through all claims.
Claim Rejections - 35 USC § 102
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 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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 39-43 and 51-54 are rejected under 35 U.S.C. 102(a)(2) as anticipated by Tiemann et al. (US 2019/0269966 A1), hereafter Tiemann.
Regarding Claim 39, Tiemann discloses a respiratory therapy system for generating a respiratory air stream for carrying out respiratory therapy (fig. 1, respiratory therapy system 100 comprises ventilator 12 [0077]), wherein the respiratory therapy system comprises at least one housing element for accommodating a respiratory therapy device (fig. 2A, each respiratory device 1 has a receptacle unit 28 [0088]), the housing element comprising at least a first mounting surface and a second mounting surface (fig. 2A and fig. 3, each receptacle 28 has a mounting surface [0088]) on its outside (fig. 2A, the respiratory devices 5 are mounted on the outside, since the inside of the receptacle unit 28 is solid), such that the respiratory therapy device can be mounted and operated as intended in at least two mounting positions (fig. 2A [0089] one respiratory therapy device is mounted upright and one recumbent; fig. 3, the respiratory device is mounted in a recumbent position, fig. 4 shows the devices mounted vertically).
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Regarding Claim 40, Tiemann discloses a respiratory system of claim 39, wherein the housing element comprises the first mounting surface for at least one mounting position (figs. 2A and 3, first mounting surface shows a recumbent medical device [0089]) and the second mounting surface for at least one second mounting position (fig. 2A, the second mounting surface shows a recumbent medical device [0089]).
Regarding Claim 41, Tiemann discloses a respiratory system of claim 40, wherein the first mounting surface is suitable and configured for a horizontal mounting position (annotated figs. 3 and 2A show the horizontal or recumbent position [0088]) and the second mounting surface is suitable and configured for a vertical mounting position (annotated fig. 2A shows the vertically mounted position).
Regarding Claim 42, Tiemann as modified discloses a respiratory system of claim 41, wherein, in the vertical mounting position, a mounting height of the respiratory therapy device is greater than a length and/or a width of the second mounting surface (fig. 2A, the height of the vertical mounting position from the base of the stand is greater than the length of the second mounting surface as shown in the annotated fig. below).
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Regarding Claim 43, Tiemann discloses a respiratory therapy system of claim 39, wherein the mounting surfaces are arranged at an angle of at least 65° and at most 115° (fig. 2A, the mounting surfaces are oriented at 90° to each other [0089]).
Regarding Claim 51, Tiemann discloses a respiratory therapy device system of claim 39, wherein the mounting surfaces are made available by in each case on a side face of the housing element (figs. 2A and 3, the back side and the bottom side of the housing element 28 have the mounting surfaces).
Regarding Claim 52, Tiemann discloses a respiratory therapy system of claim 39, wherein the respiratory therapy device is suitable and configured to be capable of being transferred as intended between the mounting positions by mounting of the housing element (fig. 2A [0088-0089] the receptacle unit 28 may have identical mechanical connecting elements to couple to the respiratory therapy devices; since both the devices have identical coupling means, they are interchangeable between the positions on the receptacle).
Regarding Claim 53, Tiemann discloses a respiratory therapy system of claim 39, wherein the device is suitable and configured to independently detect an adopted mounting position by at least one control system to change at least one device setting in accordance with the mounting position ([0090] the display units are equipped with position sensors to adapt the mode of display to the positioning of the device).
Regarding Claim 54, Tiemann discloses a respiratory therapy system of claim 53, wherein at least one display mode of a display system is set in accordance with the mounting position ([0091]).
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.
Claims 44 and 45 are rejected under 35 U.S.C. 103 as unpatentable over Tiemann in view of Ouchi (WO 2014/083593 A1), hereafter Ouchi. A machine translation is relied upon to address claims.
Regarding Claim 44, Tiemann discloses a respiratory therapy system of claim 39, but is silent on wherein a system center of gravity is arranged in a lower system half (examiner note: this is interpreted to mean that the center of gravity is located in the respiratory device lower half), at least in the one of the at least two mounting positions in which the respiratory therapy device has a greater mounting height.
Ouchi teaches an oxygen concentrator having a built-in battery mounted on the bottom surface (fig. 4, oxygen concentrator 100 represented schematically, battery 228, page 6, third full para.) in order to lower the center of gravity.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to position the center of gravity in the lower half of Tiemann’s respiratory device (fig. 2A, 1), by positioning the battery on the bottom surface as taught by Ouchi, in order to keep the center of gravity low when, since one of ordinary skill in the art would have been able to understand that a low center of gravity in this position would reduce the likelihood of the device being knocked over.
Regarding Claim 45, the modified Tiemann discloses a respiratory therapy system of claim 44, wherein the device center of gravity is made available at least by an arrangement of at least one battery system for energy supply to the respiratory therapy device (as taught by Ouchi in claim 44 above, the battery is placed at the bottom of the device to lower the center of gravity).
Claims 46-47 are rejected under 35 U.S.C. 103 as unpatentable over Tiemann in view of Giard et al. (US 2021/0069443 A1), hereafter Giard.
Regarding Claim 46, Tiemann discloses a respiratory therapy system of claim 39, wherein the system further comprises at least one interface for coupling a hose for a respiratory gas stream ([0080] and fig. 1, a breathing tube is connected at 57) and/or at least one cable connection (fig. 1, operational connection 14 [0085]).
However, Tiemann does not disclose the at least one interface and/or the at least one cable connection being arranged in a lower system half, at least in the one of the at least two mounting positions in which the respiratory therapy device has a greater mounting height (fig. 1 schematically shows interface 57 and cable connection 14 located in the lower half of the respiratory device, but it is not explicitly clear whether these are represented by the black circles on device 1 in the figures).
Giard teaches a ventilator which may be oriented in a vertical position (fig. 1 [0090]) or a horizontal position (fig. 5 [0094]). The ventilator has attachment points (labeled in fig. 5 as 13 [0100]) which, as positioned in fig. 3, is shown to be located in the lower half of the device (see annotated fig. below). The mounting height of the vertical orientation is the greater of the two heights (comparing the height of the devices as positioned in figs. 3 and 5).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to position Tiemann’s at least one interface for coupling a hose for a respiratory system in the lower half of the system in the mounting position having a greater height (in the case of Tiemann’s arrangement, the vertical orientation in fig. 2A has both the greatest mounting height from the base of the stand, and the greatest device height) as taught by Giard, since it has been held that rearranging parts is an obvious matter of design choice. See MPEP 2144.04(VI)(C) In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice). In this case, the operation of Tiemann’s respiratory therapy system would not be altered by locating the interface in the lower half of the device as claimed.
Regarding Claim 47, Tiemann as modified discloses a respiratory therapy system of claim 46, wherein the at least one interface and/or the at least one cable connection are arranged laterally on the housing element in all of the intended mounting positions (in Tiemann’s schematic fig. 1, both the interface 57 and the cable connection 14 are located on the lateral sides of the device; as modified by Giard, it would have been obvious to rearrange the interface laterally on the housing element as shown in figs. 3 and 5).
Claims 48-50 are rejected under 35 U.S.C. 103 as being unpatentable over Tiemann in view of Callaghan et al. (US 9707371 B2), hereafter Callaghan.
Regarding Claim 48, Tiemann discloses a respiratory therapy system of claim 39, but is silent on wherein at least one handle system is arranged in such a way that the handle system is located, in a horizontal mounting position, on a front face of the housing system (interpreted to mean “housing element” of the respiratory device/respiratory therapy system), and, in a vertical mounting position, on a top face of the housing element, such that the handle system can be reached in both mounting positions by an operator standing in front of the respiratory therapy device.
Callaghan teaches handle on the housing (fig. 5B, housing 12 is depicted with a recessed handle, col. 17 lines 51-55; while the text does not specifically state that the opening in the housing is a handle, one of ordinary skill in the art can readily recognize that the elongated opening shown in the figure is a handle) of a ventilation system (fig. 5B, 10 [0102]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a handle in Tiemann’s respiratory therapy system’s housing element as taught by Callaghan in order to make the ventilator easier to grasp for portability (Callaghan [0036]).
Callaghan’s configuration of fig. 5B is arranged in such a way that the handle system is located, in a horizontal mounting position, on a front face of the housing system (fig. 5B shows the handle is accessed from the front face of the housing 12), such that the handle system can be reached in both mounting positions by an operator standing in front of the respiratory therapy device (fig. 5B shows that an operator standing in front of the device would be able to reach the handle in both orientations), but is silent on the handle position being located in a vertical mounting position, on a top face of the housing element.
However, it has been held that rearranging parts is a matter of design choice when the operation of the device would not be changed. See MPEP 2144.04(VI)(C) In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice). In this case, the ability to grasp the ventilator housing by the handle would still be present if Callaghan’s handle system were rearranged to be both located on the front face of the housing system when the device is in the horizontal position, and when the device is in the vertical position, the handle located on a top face of the housing element. This may be accomplished, for example, by placing the handle in the lateral reinforced side edge of Callaghan’s device.
Regarding Claim 49, Tiemann discloses a respiratory therapy system of claim 39, but is silent on wherein at least one handle system is arranged in a recessed manner on the housing element, such that the handle system does not protrude from a contour of the housing element and/or at least one handle system is arranged immovably on the housing element.
However, Callaghan teaches a handle arranged in a recessed manner on the housing (fig. 5B, housing 12 is depicted with a recessed handle, col. 17 lines 51-55; while the text does not specifically state that the opening in the housing is a handle, one of ordinary skill in the art can readily recognize that the elongated opening shown in the figure is a handle) of a ventilation system (fig. 5B, 10 [0102]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a handle in Tiemann’s receptacle unit (fig. 2A, 28) in the manner taught by Callaghan’s rigid, recessed handle formed in the housing element (Tiemann fig. 2A, 1) for the benefit of being able to stack and store multiple devices in their housing (Callaghan col. 17 lines 51-55).
Regarding Claim 50, Tiemann discloses a respiratory therapy system of claim 39, but is silent on wherein the housing system element comprises at least one housing edge designed as a tilting edge, the tilting edge being resilient and/or reinforced and/or rounded.
Callaghan teaches a respiratory therapy system (fig. 5B, ventilation system 10 [0102]) having a housing which may be oriented vertically or horizontally (fig. 5B, 12 [0101]). The housing may have ends that include rubber or bumpers extending around the periphery (fig. 5B [0102]) that may act as a tilting edge.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a tilting edge as taught by Callaghan in the housing edge(s) of Tiemann’s respiratory devices to be reinforced in order to prevent damage due to dropping or striking the housing (Callaghan [0103]).
Claim 55 is rejected under 35 U.S.C. 103 as unpatentable over Tiemann in view of NEMA Enclosures (https://www.nemaenclosures.com/blog/ingress-protection-ratings/ , published 2 August 2013), hereafter NEMA.
Regarding Claim 55, Tiemann discloses a respiratory therapy system of claim 39, but is silent on wherein all of the openings provided in the housing element are protected, in all of the intended mounting positions, at least against solid foreign bodies with a diameter of > 12.5 mm and against access with a finger and have protection against falling water when the element is inclined by up to 15°.
However, NEMA teaches that Ingress Protection (IP) ratings against ingress into an electrical enclosure was well known in the art. These protection ratings include ingress into a housing against solids greater than 12.5 mm, including fingers (IP2x), as well as against falling water when the housing system is inclined up to 15° (IPx2).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to design Tiemann’s housing element to have at least an IP22 rating, ensuring that all openings in the housing are protected in all of the intended mounting positions, at least against solid foreign bodies with a diameter of > 12.5 mm and against access with a finger and have protection against falling water when the housing system is inclined by up to 15°, since the IP rating system was a well-known safety protection standard for electrical enclosures.
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 SARA K. TOICH whose telephone number is (703)756-1450. The examiner can normally be reached M-Th 7:30 am - 4:30 pm, every other F 7:30-3:30 ET.
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/SARA K TOICH/Examiner, Art Unit 3785
/BRANDY S LEE/Supervisory Patent Examiner, Art Unit 3785