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 .
This office action is in response to the amendment filed 11/4/25. As directed by the amendment: claims 1-6, 10-12, and 14 have been amended, claims 7 and 13 have been cancelled, and no claims have been added. As such, claims 1-6, 8-12, and 14 are pending in the instant application.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “main body component configured to deliver air” in claim 14.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Interpretation
The newly amended limitation of the identification device including “a switch” (claim 1), receiving “an electrical signal from a switch depressed by a pin or an elastic sheet” (claim 10), “an electrical-connection detector” (claim 1), and receiving “an indication from an electrical-connector detector” (claim 10) is being interpreted in light of the disclosure as being supported for 112a purposes and does not constitute new matter. Although the disclosure does not use the explicit term ‘electrical-connection detector’, the disclosure supports determining, for example, a breathing tube is a heating tube or non-heating tube due to the presence, or lack thereof, of a detected electrical signal (see para. 0010-0011 for example) and therefore supports the limitation of “an electrical-connection detector” as currently claimed. While the disclosure uses the term ‘switch’ such that the ventilation therapy equipment can switch working modes, the disclosure does not explicitly use the term ‘switch’ in regards to the identification device identifying the type of accessory according to mechanical connection characteristics. However, the disclosure supports the identification device determining the accessory based on mechanical connection characteristics according to an electrical signal generated when a pin/elastic sheet on a connection joint is pressed down (see para. 0009) and therefore supports the limitation of the identification device including a ‘switch’ as currently claimed.
Claim Objections
Claim 5 is objected to because of the following informalities:
Regarding claim 5, the language “interface; and , and evaluating” (line 3-4, with line break after the first instance of ‘and’) is objected to for a typographical/formatting error.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 5-6 and 12 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claim 5, the newly amended claim limitation of the magnitude of airflow resistance being “a resistance value derived from measurements along the breathing tube” (line 6-8) appears to introduce new matter not found in the disclosure as originally filed. While the disclosure supports the identification device identifying the accessory/breathing tube based on sensed magnitude of airflow resistance of the breathing tube (see para. 0012), it does not support that a plurality of measurements along the breathing tube are derived to determine the magnitude of airflow resistance and thus identify the accessory/breathing tube.
Regarding claim 6, the newly amended claim limitation “a plurality of predefined working states” (line 4-5, emphasis added) appears to introduce new matter not found in the disclosure as originally filed. While the disclosure supports working states, it does not appear to necessitate that the working states are ‘predefined’.
Regarding claim 12, the newly amended claim limitation “a plurality of predefined working states” (line 4-8, emphasis added) appears to introduce new matter not found in the disclosure as originally filed. While the disclosure supports working states, it does not appear to necessitate that the working states are ‘predefined’.
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 1-6, 8, 9, 10-12, and 14 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.
Claim 1 recites the limitation "the accessory" in line 8. There is insufficient antecedent basis for this limitation in the claim.
Claim 2 recites the limitation "the pin" in line 4. There is insufficient antecedent basis for this limitation in the claim.
Claim 2 recites the limitation "the elastic sheet" in line 4-5. There is insufficient antecedent basis for this limitation in the claim.
Claim 2 recites the limitation "the connection joint" in line 5. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "the accessory" in line 9-10. There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 11, the language “the identifying the type of the accessory of the ventilation therapy equipment” (line 2-3) is unclear as the identifying step in claim 10 was deleted and it is not known if Applicant is intending to claim some additional method step of identifying or intending to refer back to a previously set forth step, such as the receiving of items (i)-(iii) and/or determining type of accessory based thereon.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 11 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. The claim is unclear per the 112b noted above, but furthermore, it is not known how claim 11 further limits claim 10 to which it depends. Claim 10 sets forth the receipt of (i) an electrical signal from a switch depressed by a pin or elastic sheet, (ii) indication from an electrical-connection detector of a presence or absence of an accessory electrical connection, and (iii) data from a sensor indicative of a resistance of a breathing tube; and these three items correspond to identifying the accessory based on mechanical connection characteristics (corresponds to item (i)), electrical characteristics (corresponds to item (ii)), and airflow characteristics (corresponds to item (iii)). Thus it appears that claim 11 does not further limit the scope of claim 10 but rather broadens limitations found in claim 10. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-3, 69, 14, and 10-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nunez et al. (2016/0361492) in view of McCarthy (8,707,954), Vandine (2008/0078387), and Casse et al. (2019/0240433).
Regarding claim 1, Nunez discloses a control device for ventilation therapy equipment having multiple working modes (see Fig. 1, para. 0002, 0011, ventilation therapy equipment being a medical device 110 such as a mechanical ventilator with multiple modes, control device including 111 & 113, see para. 0022-0025) the control device including an identification device (identification device 113, see para. 0025, 0028, 0031-0035, 0011, Fig. 1); and a controller operatively coupled to the identification device to determine a type of the accessory, command the ventilation therapy equipment to switch to a working mode corresponding to the determined accessory type and apply a working state of the mode specifying parameter settings in the mode (see para. 0011, 0031-0035, controller 111 which identifies a type of accessory 120A-D and sets working state parameters of multiple modes based thereon). Nunez discloses that the identification device includes one or more of a switch, electrical-connection detector or a sensor (see Nunez para. 0031-0035, in particular 0033 which discloses a switch), but is silent as to the controller determining based on at least one signal from the switch, electrical-connection detector, or sensor; however, McCarthy discloses a similar ventilation system including identification based on mechanical connection characteristics of a switch generating an electrical signal (see McCarthy Fig. 1-2 and 4-5, patient interfaces 14A-C with breathing tubes 48A-B, pins 84A-C of Fig. 4D, col. 14 ln. 27-46, and in particular pins 96A-C of Fig. 5, col. 14 ln. 47 through col. 15 ln. 40 which discloses a switch generating an electrical signal for identification). 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 Nunez device’s identification device to generate a signal for the controller to determine the type of accessory based thereon, as taught by McCarthy, as this is a well-known type of identification means and would have been obvious substitution of one known element for another and one would expect the modified Nunez to perform equally as well. The modified Nunez device is silent as to the controller obtaining a serial number from a storage unit of the accessory to identify the corresponding working state for the mode wherein the serial number having a one-to-one correspondence with a patient identity label; however, Vandine discloses a system for identification and control based on accessories which include serial numbers in a storage unit (see Vandine para. 0023-0024, 0034-0042, 0050, storage unit 28), and Casse discloses a similar ventilation system including serial numbers of devices assigned to specific patient identity labels (see Casse para. 0100-0101, 0130-0141, 0153-0154). Thus 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 modified Nunez device to further include serial numbers corresponding to patient identity on a storage unit of the accessory, as taught by Vandine and Casse, as serial number identification is well-known in the art and in order to provide further specific, personalized equipment/parameters for modes intended for a specific patient (Casse para. 0100-0101, 0130-0141, 0153-0154).
Regarding claim 2, the modified Nunez device is such that wherein determining the type of accessory includes evaluating at least one of: a transition of the switch caused by a pin or elastic sheet at the connection joint, presence/absence indicated by electrical-connection detector, and magnitude of airflow resistance derived from data provided by the sensor (see McCarthy Fig. 1-2 and 4-5, patient interfaces 14A-C with breathing tubes 48A-B, pins 84A-C of Fig. 4D, col. 14 ln. 27-46, and in particular pins 96A-C of Fig. 5, col. 14 ln. 47 through col. 15 ln. 40 which discloses a switch generating an electrical signal for identification via the pin at the connection joint 54).
Regarding claim 3, the modified Nunez device is such that the accessory includes a breathing tube and/or patient interface (see McCarthy Fig. 2 showing elements 14A-C being both a patient interface and including breathing tube 52A-C) and the evaluating the switch includes detecting the electrical signal output when the pin or elastic sheet on the connection joint depresses the switch (see McCarthy Fig. 1-2 and 4-5, patient interfaces 14A-C with breathing tubes 48A-B, pins 84A-C of Fig. 4D, col. 14 ln. 27-46, and in particular pins 96A-C of Fig. 5, col. 14 ln. 47 through col. 15 ln. 40 which discloses a switch generating an electrical signal for identification via the pin at the connection joint 54). 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 modified Nunez to explicitly have the pin depress the switch as this would have been obvious reversal of parts and one would expect the modified Nunez to perform equally as well. See MPEP 2144.04 VI A.
Regarding claim 6, the modified Nunez device’s controller is configured, responsive to the determined accessory type, to select among a plurality of predefined working states for the mode and to apply the state whose parameter setting includes at least one of target pressure, flow or pressure rise time (see Nunez para. 0011 disclosing plural predefined modes with working states, see Vandine para. 0021, 0025, and 0028 which discloses CPAP and BiPAP which include target pressures and pressure rise time and regulating of flow).
Regarding claim 9, the modified Nunez device’s multiple working modes includes at least two of a continuous positive pressure mode, automatic positive pressure mode, bi-level positive pressure mode, high-flow mode, and a low-flow mode (see Vandine para. 0021, 0023, 0025).
Regarding claim 14, the modified Nunez device is ventilation therapy equipment (see Nunez Fig. 1, para. 0002, 0011, ventilation therapy equipment including a medical device 110 such as a mechanical ventilator) including a main body component configured to deliver air required for a patient’s breathing (see Nunez Fig. 1, main body component 110, para. 0011, 0022; a ventilator which provides respiratory air for a patient); an accessory configured to cooperate with the main body component to complete delivery of air (see Nunez para. 0011 and para. 0028 accessory 120A-D being tubing which completes air delivery), and including a storage unit that stores a serial number (see Vandine para. 0023-0024, 0034-0042, 0050, storage unit 28); and the control device of claim 1 operably coupled to the main body component and the accessory (see above discussion of claim 1 for the control body of modified Nunez).
Regarding claim 10, the use of the Nunez device includes a control method for a ventilation therapy equipment having multiple working modes (see Fig. 1, para. 0002, 0011, ventilation therapy equipment being a medical device 110 such as a mechanical ventilator with multiple modes, control device including 111 & 113, see para. 0022-0025), the control method including receiving an indication to identify a type of accessory from at least one of (i) a switch on an accessory connection joint, (ii) an indication from an electrical-connection detector of a presence or absence of an accessory electrical connection, and (iii) data from a sensor indicative of a resistance of a breathing tube (identification device 113, see para. 0025, 0028, 0031-0035, 0011, Fig. 1 and controller 111 which identifies a type of accessory 120A-D and sets working state parameters of multiple modes based thereon, para. 0011, 0031-0035, in particular 0033 which discloses a switch for identification), determining by a controller, a type of the accessory based on the received indication from (i)-(iii) and commanding the ventilation therapy equipment to switch to a working mode corresponding to the determined accessory and applying a working state of the mode specifying parameter settings in the mode (see para. 0011, 0031-0035, controller 111 which identifies a type of accessory 120A-D and sets working state parameters of multiple modes based thereon). Nunez discloses that the identification includes one or more of a switch, electrical-connection detector or a sensor (see Nunez para. 0031-0035, in particular 0033 which discloses a switch), but is silent as to the receiving/determining based on at least one signal from the switch depressed by a pin or elastic sheet, electrical-connection detector, or sensor; however, McCarthy discloses a similar ventilation system including identification based on mechanical connection characteristics of a switch generating an electrical signal (see McCarthy Fig. 1-2 and 4-5, patient interfaces 14A-C with breathing tubes 48A-B, pins 84A-C of Fig. 4D, col. 14 ln. 27-46, and in particular pins 96A-C of Fig. 5, col. 14 ln. 47 through col. 15 ln. 40 which discloses a switch generating an electrical signal for identification being depressed by the pin via the connection, see MPEP 2144.04 VI A regarding reversal of pin/switch regarding which depresses the other, or 96A-C being the switch and 48A-C being the corresponding pin). 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 Nunez identification to generate a signal via depression of a switch by a pin/elastic sheet for the controller to determine the type of accessory based thereon, as taught by McCarthy, as this is a well-known type of identification means and would have been obvious substitution of one known element for another and one would expect the modified Nunez to perform equally as well. The modified Nunez control method is silent as to the controller obtaining a serial number from a storage unit of the accessory to identify the corresponding working state for the mode wherein the serial number having a one-to-one correspondence with a patient identity label; however, Vandine discloses a system for identification and control based on accessories which include serial numbers in a storage unit (see Vandine para. 0023-0024, 0034-0042, 0050, storage unit 28), and Casse discloses a similar ventilation system including serial numbers of devices assigned to specific patient identity labels (see Casse para. 0100-0101, 0130-0141, 0153-0154). Thus 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 modified Nunez device to further include serial numbers corresponding to patient identity on a storage unit of the accessory, as taught by Vandine and Casse, as serial number identification is well-known in the art and in order to provide further specific, personalized equipment/parameters for modes intended for a specific patient (Casse para. 0100-0101, 0130-0141, 0153-0154).
Regarding claim 11, the modified Nunez method identifies the type of accessory according to at least one of mechanical connection characteristics, electrical characteristics, and airflow characteristics of the accessory (see McCarthy Fig. 1-2 and 4-5, patient interfaces 14A-C with breathing tubes 48A-B, pins 84A-C of Fig. 4D, col. 14 ln. 27-46, and in particular pins 96A-C of Fig. 5, col. 14 ln. 47 through col. 15 ln. 40 which discloses a switch generating an electrical signal for identification, a mechanical connection characteristic which generates electrical signal for identification of type of accessory).
Regarding claim 12, the modified Nunez method includes selecting, responsive to the determined accessory type among a plurality of working states for the mod and applying parameter settings specified by the selected working state (see Nunez para. 0011 disclosing plural predefined modes with working states, see Vandine para. 0021, 0025, and 0028 which discloses CPAP and BiPAP which include target pressures and pressure rise time and regulating of flow being parameter settings for working states).
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nunez, McCarthy, Vandine, and Casse as applied to claim 2 above, and further in view of Schermeier et al. (2006/0278221) and Peiris et al. (WO 2011/068418).
Regarding claim 4, the modified Nunez device’s accessory includes a breathing tube and/or patient interface (see McCarthy Fig. 1-2 and 4-5, patient interfaces 14A-C with breathing tubes 48A-B), but is silent as to the identification of the accessory according to electrical characteristics includes determining that the breathing tube is a non-heating tube in the case of no electrical connection signal detected or the breathing tube is a heating tube when an electrical connection signal is detected via evaluation of an electrical-connection detector; however, Schermeier discloses a similar system including detecting via electrical signals various accessories in the form of tubes (see Schermeier Fig. 1-2, para. 0009, 0011-0012, para. 0034 discloses various types of tubes including ones with heaters in the form of electrical wires and those without) and Peiris discloses a similar system including detecting via presence of an electrical signal of the heating tube (see Peiris pg. 16 ln. 4-10). 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 Nunez device to explicitly include a patient interface and/or breathing tube as the accessory and the electrical identification means includes determining presence, or lack thereof, of an electrical signal from a heating vs non-heating tube, as taught by Schermeier and Peiris, as these are well-known ventilation accessories required to provide ventilation support to the patient and such identification means would have been obvious substitution of one known type for another and one would expect the modified Nunez device to perform equally as well.
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nunez, McCarthy, Vandine, and Casse as applied to claim 2 above, and further in view of McCarthy et al. (2017/0266400) (hereinafter McCarthy ‘400) and Rydin et al. (2002/0020410).
Regarding claim 5, the modified Nunez device’s accessory includes a breathing tube and/or patient interface (see McCarthy Fig. 1-2 and 4-5, patient interfaces 14A-C with breathing tubes 48A-B) but is silent as to the identification of the accessory according to air flow characteristics of the accessory including a magnitude of resistance of an air flow of the breathing tube derived from measurements along the breathing tube; however, McCarthy ’400 discloses a similar system which identifies accessories, including patient interface and breathing tube, based on air flow characteristics including pressure/flow characteristics (see McCarthy ‘400 Fig. 1-2, patient interfaces 14A-C with breathing tubes 48A-C; see para. 0009, 0014, and 0020) and Rydin discloses a ventilation system which includes accessories and teaches that the accessories have flow properties including resistance (see Rydin para. 0006, 0009-0010, 0012, 0016). 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 Nunez device to explicitly include a patient interface and/or breathing tube as the accessory and the identification to be done based on flow characteristics such as air flow resistance, as taught by McCarthy ‘400 and Rydin, as these are well-known ventilation accessories required to provide ventilation support to the patient and such identification means would have been obvious substitution of one known type for another and one would expect the modified Nunez device to perform equally as well.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Nunez, McCarthy, Vandine, and Casse as applied to claim 1 above, and further in view of Peiris.
Regarding claim 8, the modified Nunez device is silent as to the multiple working modes including a pressure mode and a flow mode; however, Peiris discloses a similar system which includes working modes including pressure mode and flow mode (see Peiris pg. 10 ln. 7-13). 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 Nunez device’s working modes to include a pressure mode and a flow mode, as taught by Peiris, as these are well-known ventilator operation/working modes and would have been obvious to try and one would expect the modified Nunez device to perform equally as well.
Response to Arguments
Applicant’s arguments with respect to the claims have been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant’s comments regarding the amended claims overcoming the 112f interpretation of the claim language “identification device used for identifying a type of an accessory” are well-taken and the amendments to this limitation add structure such that the requirements of 112f are not met for this limitation.
Applicant’s arguments to individual references are noted but appear to be moot in light of the amended claims and the new grounds of rejection using a new combination of references, including the newly presented Casse reference, and the above discussions regarding the 103 rejections of the claims discuss how the combination of references read on the claims as amended. Furthermore, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Lang et al. (10,149,954).
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 COLIN W STUART whose telephone number is (571)270-7490. The examiner can normally be reached M-F: 9-5.
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/COLIN W STUART/Primary Examiner, Art Unit 3785