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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 June 9, 2026 has been entered.
Response to Amendment
The amendment flied December 5, 2024 has been entered. 1-5, 7-10, 12, 14-17, 21-23, 25, 36, 38-42 are pending.
Applicant’s amendments have resulted in new grounds of rejection under 35 U.S.C. 112(d).
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 use the word “means.”
The limitation “dehumidifying means” in claim 10 explicitly uses the term “means” which is modified by functional language, i.e., “dehumidifying” and “for reducing the humidity…” The limitation is not modified by sufficiently definite structure, material, or acts for achieving the specified function. The corresponding structure for this limitation in Applicant’s specification is found in Page 26:
“In one preferred embodiment, the dehumidifying means is a Nafion® tube… Alternative means of dehumidifying the breath may also be used, instead of or in addition to a Nafion® tube. For example, in some embodiments, a chamber containing a wet sponge may be located along the secondary pathway in-line with a further chamber containing one or more chemical substances with the ability to absorb moisture and reduce humidity. Such chemicals may be chosen from, but are not limited to: magnesium perchlorate, Sodium chloride (halite) (NaCI), Calcium chloride (CaCl2), Sodium hydroxide (NaOH), sulfuric acid (H2SO4), Copper sulphate (CuSO4), phosphorus pentoxide (P205 or more correctly P4010), silica gel, hydrated salts such as Na2SO4-1oH20, LiBr, LiCI and amines.”
The limitation “communication means” in claim 23 explicitly uses the term “means” which is modified by functional language, i.e., “for communication between the microcontroller and a mobile phone or other external device.” The limitation is not modified by sufficiently definite structure, material, or acts for achieving the specified function. The corresponding structure for this limitation in Applicant’s specification is found in Page 36:
“For example, the communication means may be a Bluetooth connection via the microcontroller, to enable communication with a mobile phone…Alternatively or in addition, a communication means may be a USB connector, a removable memory card, a cable, a wireless unit, an Ethernet shield, or a mobile broadband unit, for example.”
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 Rejections - 35 USC § 112
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 42 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.
Re. Claim 42: Claim 42 recites “wherein the power of the heater is regulated such that the temperature of the inhaled and/or exhaled air that passes through the device is between 25 °C and 35 °C.” Such a limitation is already essentially recited in independent claim 1. Thus, claim 42 does not further limit claim 1.
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 following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-5, 9, 10, 12, 14-17, 21-23, 25, 36, 39, and 40 are rejected under 35 U.S.C. 103 as being unpatentable over:
Atsalakis (WO 2017180605 A1) (disclosed by Applicant) (hereinafter – Atsalakis) in view of
Djorup et al. (US 4936144 A) (hereinafter – Djorup) with further evidence by The Engineering ToolBox (2003). Thermal Conductivity of Common Materials - Solids, Liquids and Gases. [online] Available at: https://www.engineeringtoolbox.com/thermal-conductivity-d_429.html [accessed: 12 May 2025]. (hereinafter – The Engineering Toolbox) in further view of
Kane et al. (US 20080200824 A1) (hereinafter – Kane) in further view of
Dompeling et al. (US 20100292601 A1) (hereinafter – Dompeling).
Re. Claim 1: Atsalakis teaches a portable breath analysis device comprising:
a primary gas flow pathway for passage of exhaled breath from an inlet to an outlet (Fig. 1: primary pathway 16);
a secondary gas flow pathway branched from the primary pathway at a branching point between the inlet and the outlet (Fig. 1: secondary formed by 14a and 14b),
the secondary pathway also having an outlet (Fig. 1: outlet after temperature sensor 11);
a flow sensor between the inlet of the primary pathway and the branching point or between the branching point and the outlet of the primary pathway and arranged to allow measurement of the gas flow in the primary pathway (Fig. 1: flow sensor 2),
an oxygen sensor (Fig. 1: oxygen sensor 7); and
a carbon dioxide sensor (Fig. 1: carbon dioxide sensor 8); and
a heater configured to reduce moisture condensation from the exhaled breath as the exhaled breath passes through the portable breath analysis device (Page 18, lines 11-14: “The sensors may, for example, instead be heated to avoid condensation forming. In some embodiments, the device comprises a dehumidifying means and the sensors are heated”),
wherein the oxygen sensor and the carbon dioxide sensor are arranged in-line in the secondary pathway to take measurements of the exhaled breath in the secondary pathway (Fig. 1: oxygen sensor 7 and carbon dioxide sensor 8 are arranged in-line in secondary pathway 14 in portion 14b thereof).
Atsalakis states that a “flow sensor may be a hot film anemometer…” However, Atsalakis is silent regarding the hot-film anemometer comprises a coating layer.
Djorup teaches analogous art in the technology of thermal anemometers (Abstract). Djorup further teaches the invention wherein the flow sensor is a hot-film anemometer comprising a coating layer (Abstract: thermal anemometer; Fig. 2: anemometer comprises sensing films 26a, 26b provided with protective coating 27a, 27b).
It would have been obvious to one of ordinary skill in the art before effective filing date of the invention to include the coating for the hot-film anemometer as taught by Djorup in the system of Atsalakis, since providing such a coating protects resistive elements of the anemometer against wear and abrasion (Col. 5, lines 63-69).
Atsalakis as modified by Djorup does not teach the heater being attached to or embedded within a hull of the flow sensor. Atsalakis states: “The sensors may, for example, instead be heated to avoid condensation forming.” While such a statement necessitates that the device comprises a heater, Atsalakis is silent regarding whether the heater is attached to or embedded within a hull of the flow sensor. Similarly, while Atsalakis describes that the invention may possess a temperature sensor (Page 21, lines 20-21), Atsalakis is silent regarding the positioning of such a sensor, and thus does not teach the claim limitation of “a temperature sensor located in the hull of the flow sensor or within an opening in the hull of the flow sensor, wherein the temperature sensor is configured to measure temperature of inhaled and/or exhaled air passing through the flow sensor.”
Kane teaches analogous art in the technology of breath analysis (Abstract). Kane further teaches the invention further comprising the heater being attached to or embedded within a hull of the flow sensor (Fig. 10: unit 12 contains a flow sensor 36, and thus the unit 12 may be considered a hull surrounding the flow sensor, whereby unit 12 further includes heating element 41 embedded within; in an alternative interpretation, the flow sensor 36 may possess a smaller “hull” and is attached to heating element 41 via internal structures of the unit 12 itself; Examiner notes that what defines a hull of a flow sensor is not precisely defined in the claims – any component surrounding a flow sensor may be considered a “hull;” additionally, a system containing a flow sensor itself may be considered a “flow sensor”), and
a temperature sensor located in the hull of the flow sensor or within an opening in the hull of the flow sensor, wherein the temperature sensor is configured to measure temperature of inhaled and/or exhaled air passing through the flow sensor (Fig. 7: thermometer 42 measuring temperature of exhaled air intended to pass by flow sensor 36 and/or exhaled air passing through open passageway 30, whereby such thermometer is located in the hull (i.e., within the enclosure) of the unit 12),
It would have been obvious to one having skill in the art before the effective filing date to have modified Atsalakis as modified by Djorup to include the temperature control structures and arrangement thereof as taught by Kane, the motivation being that doing so appropriately applies heat to a flow passage of exhaled breath to normalize relative humidity to prevent condensation from forming on sensing surfaces (Paragraph 0088).
Atsalakis as modified by Djorup and Kane further teaches the invention wherein:
the oxygen sensor and the carbon dioxide sensor are arranged in-line in the secondary pathway to take measurements of the exhaled breath in the secondary pathway (Fig. 1: oxygen sensor 7 and carbon dioxide sensor 8 are arranged in-line in secondary pathway 14 in portion 14b thereof).
Atsalakis as modified by Djorup and Kane do not explicitly teach a temperature range for normalizing the temperature of the exhaled air such that condensation is not formed.
Dompeling teaches analogous art in the technology of breath condensing devices (Abstract), and further teaches the power of the heater is regulated such that the temperature of the inhaled and/or exhaled air that passes through the device is between 25 °C and 45 °C (Paragraph 0018: “…the apparatus for condensing exhaled breath may include one or more heating elements for maintaining residual, non-condensed exhaled breath gaseous and preferably at a temperature of at least 30.degree. C., more preferably in a range from 35.degree. C. to 42.degree. C., thus ensuring that, on the one hand, most of the residual breath will indeed remain gaseous and, on the other hand, preventing substances, in particular markers, contained in the residual breath from deteriorating…”).
It would have been obvious to one having skill in the art before the effective filing date to have modified Atsalakis as modified by Djorup and Kane to include regulating temperatures to the ranges as taught by Dompeling, the motivation being that such temperature ranges maintain the gaseous form of the exhaled breath (Paragraph 0018) and are suitable for preventing condensation.
Re. Claim 2: Atsalakis as modified by Djorup, Kane, and Dompeling teaches the invention according to claim 1. Atsalakis further teaches the invention wherein the device is an indirect calorimeter (Page 28, lines 10-12: “Preferably, the device comprises both a carbon dioxide sensor and an oxygen sensor and is an indirect calorimeter, to allow a user to use the device for the monitoring of their metabolism, as described above”).
Re. Claim 3: Atsalakis as modified by Djorup, Kane, and Dompeling teaches the invention according to claim 1. Djorup, in teaching further detail regarding the coating layer of the flow sensor, further teaches the invention wherein the coating layer is a polymeric coating (Col. 5, lines 63-65: “The resistive film coating 26a has a further layer 27a of vitreous enamel, glass overglaze, fused silica, silicone varnish, a plastic such as "TEFLON" (a trademark)…; Examiner notes that TEFLON is the trade name for polytetrafluoroethylene, a polymer”).
Re. Claim 4: Atsalakis as modified by Djorup, Kane, and Dompeling teaches the invention according to claim 3. Djorup, in teaching further detail regarding the coating layer of the flow sensor, further teaches the invention wherein the coating layer is a fluoropolymer coating layer (see citation of rejection of claim 3; Teflon, i.e., PTFE, is a fluoropolymer).
Re. Claim 5: Atsalakis as modified by Djorup, Kane, and Dompeling teaches the invention according to claim 1. Djorup, in teaching further detail regarding the coating layer of the flow sensor, further teaches the invention wherein the coating layer has a thickness of between 10 nm to 250 um (Col. 6, lines 11-15: “The protective layer 27a thickness is usually less than 0,025 mm thick and most often it is used in the range of 0,006 mm thick after firing”).
Re. Claim 9: Atsalakis as modified by Djorup, Kane, and Dompeling teaches the invention according to claim 1. Atsalakis further teaches the invention wherein either the oxygen sensor or the carbon dioxide sensor is a thermal conductivity detector (Page 14, lines 17-20 or 26-30: “The oxygen sensor may be… a thermal conductivity detector… The carbon dioxide sensor may be… a thermal conductivity detector…”).
Re. Claim 10: Atsalakis as modified by Djorup, Kane, and Dompeling teaches the invention according to claim 1. Atsalakis further teaches the invention further comprising a dehumidifying means for reducing the humidity of an exhaled breath passing through the device, wherein the dehumidifying means is positioned in the primary or secondary pathway between the inlet and the oxygen and carbon dioxide sensors (Page 16, lines 24-27: “In some preferred embodiments, devices of the invention comprise a dehumidifying means for reducing the humidity of an exhaled breath passing through the device. The dehumidifying means is positioned in the primary or secondary pathway between the inlet and the oxygen and carbon dioxide sensors”).
Re. Claim 12: Atsalakis as modified by Djorup, Kane, and Dompeling teaches the invention according to claim 1. Atsalakis further teaches the invention further comprising a pump for drawing exhaled breath along the secondary pathway (Page 18: “In some embodiments, the device comprises a pump for drawing exhaled breath through the secondary pathway”).
Re. Claim 14: Atsalakis as modified by Djorup, Kane, and Dompeling teaches the invention according to claim 1. Atsalakis further teaches the invention further comprising
a valve system
located between the branching point and the oxygen and carbon dioxide sensors (Fig. 1: valve system 6 between branching point and requisite sensors) and
partitioning the secondary pathway into an upstream portion between the branching point and the valve system (Fig. 1: upstream portion 14a) and
a downstream portion between the valve system and the outlet of the secondary pathway (Fig. 1: downstream portion 14b), wherein:
the components of the valve system are movable between at least a first position and a second position (Page 27, lines 26-29: “The device further comprises the valve system whose components are movable between at least a first position and a second position, as described above, which selectively allows breaths to pass through to the sensors to provide different "modes" of the device”);
the valve system comprises a valve outlet (Page 27, line 29: “The valve system comprises a valve outlet…”);
in the first position, the valve system comprises components that are arranged such that the upstream portion of the secondary pathway is in fluid connection with the downstream portion of the secondary pathway (Page 19, lines 17-19: “In the first position, the components of the valve system are arranged such that the upstream portion of the secondary pathway is in fluid connection with the downstream portion of the secondary pathway” ); and
in the second position, the components of the valve system are arranged such that the upstream portion of the secondary pathway is in fluid connection with the valve outlet and not with the downstream portion of the secondary pathway (Page 19, lines 19-22: “in the second position, the components of the valve system are arranged such that the upstream portion of the secondary pathway is in fluid connection with the valve outlet and not with the downstream portion of the secondary pathway”).
Re. Claim 15: Atsalakis as modified by Djorup, Kane, and Dompeling teaches the invention according to claim 1. Atsalakis further teaches the invention further comprising a microcontroller (Page 20, line 20: “Preferably, devices of the invention comprise a microcontroller”).
Re. Claim 16: Atsalakis as modified by Djorup, Kane, and Dompeling a teaches the invention according to claim 1. Atsalakis further teaches the invention further comprising a one-way valve positioned between the inlet and the flow sensor, through which gas may pass in a direction from the inlet to the flow sensor only (Page 21, lines 10-12: “In some embodiments, the device further comprises a one-way (non-rebreathing) valve positioned between the inlet and the flow sensor, through which gas may pass in a direction from the inlet to the flow sensor only”).
Re. Claim 17: Atsalakis as modified by Djorup, Kane, and Dompeling teaches the invention according to claim 1. Atsalakis further teaches the invention further comprising
a humidity sensor,
a temperature sensor,
a pressure sensor, or
one or more further sensors
(Page 21, lines 20-21: “In some embodiments, the secondary flow pathway includes a barometric pressure sensor, a relative humidity sensor and/or a temperature sensor”).
Re. Claim 21: Atsalakis as modified by Djorup, Kane, and Dompeling teaches the invention according to claim 17. Atsalakis further teaches the invention wherein the one or more further sensors are selected from the group consisting of acetone, nitric oxide, sulphur compound, pentane, ethanol and hydrocarbon sensors (Page 22, lines 1-3: “In some embodiments, one or more further sensors may be present. For example, one or more of an acetone, nitric oxide, sulphur compounds, pentane, ethanol and hydrocarbons sensor may be present in the device").
Re. Claim 22: Atsalakis as modified by Djorup, Kane, and Dompeling teaches the invention according to claim 1. Atsalakis further teaches the invention further comprising a sampling chamber positioned
along the secondary pathway between the oxygen and carbon dioxide sensors and the outlet of the secondary pathway (Page 22, lines 26-27: “A sampling chamber may be present, positioned between the oxygen and carbon dioxide sensors and the outlet of the secondary pathway”), or
branched from the secondary pathway at any point along the secondary pathway (Page 23, lines 4-5: “Alternatively, the sampling chamber may be in fluid connection with the secondary pathway by way of a sampling chamber pathway branched from the secondary pathway”).
Re. Claim 23: Atsalakis as modified by Djorup, Kane, and Dompeling teaches the invention according to claim 15. Atsalakis further teaches the invention wherein the device comprises a communication means for communication between the microcontroller and a mobile phone or other external device (Page 23, lines 13-14: “In some preferred embodiments, the device comprises a communication means for communication between the microcontroller and a mobile phone or other external device”).
Re. Claim 25: With respect to claim 25, claim 25 differs from claim 1 in reciting a method comprising breathing, by the subject, into a breath analysis device. Such a limitation is also taught by Atsalakis (Page 28, lines 19-21: “According to a third aspect of the invention, there is provided a method of analysing exhaled breath of a subject comprising the step of the subject breathing into a breath analysis device of the invention, as described above”). Each other limitation is taught by the citations of the rejection of claim 1.
Re. Claim 36: Atsalakis as modified by Djorup, Kane, and Dompeling teaches the invention according to claim 1. Kane further teaches the invention wherein the heater is located
inside the walls of the hull of the flow sensor or within an opening in the hull of the flow sensor (see placement of heater in modification taught by Kane).
Re. Claim 39: Atsalakis as modified by Djorup, Kane, and Dompeling teaches the invention according to claim 1. Djorup teaches that the coating may be Teflon™ (PTFE). With further evidence by The Engineering Toolbox, the thermal conductivity of PTFE is 0.25 W/m*K at 25 degrees Celsius (page 8).
Re. Claim 40: Atsalakis as modified by Djorup, Kane, and Dompeling teaches the invention according to claim 39. Djorup further teaches the invention wherein the coating layer is
a polymeric coating layer (see citations of Djorup in claim 1)
having a thermal conductivity at 25 C of from 0.25 W/m*K to 1.5 W/m*K (see citations of Djorup in claim 39), and
a thickness from 50 nm to 150 um (see citations of Djorup in claim 5).
Claims 7 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over:
Atsalakis (WO 2017180605 A1) (disclosed by Applicant) (hereinafter – Atsalakis) in view of
Djorup et al. (US 4936144 A) (hereinafter – Djorup) with further evidence by The Engineering ToolBox (2003). Thermal Conductivity of Common Materials - Solids, Liquids and Gases. [online] Available at: https://www.engineeringtoolbox.com/thermal-conductivity-d_429.html [accessed: 12 May 2025]. (hereinafter – The Engineering Toolbox) in further view of
Kane et al. (US 20080200824 A1) (hereinafter – Kane) in further view of
Dompeling et al. (US 20100292601 A1) (hereinafter – Dompeling) in further view of
Applicant-Admitted Prior Art (hereinafter – AAPA).
Re. Claim 7: Atsalakis as modified by Djorup, Kane, and Dompeling in the rejection of claim 1 teaches a heater attached to or embedded within a hull of a flow sensor, but is silent regarding whether the heater is a metallic and/or ceramic heating element.
AAPA further teaches wherein the heater is a metallic and/or ceramic heating element (Applicant’s Specification, Page 28: stating that any suitable heater may be used, and that ceramic and/or metal heaters would be “well known to the person skilled in the art”).
Since each individual element and its function are shown in the prior art, albeit shown in separate references, the difference between the claimed subject matter and the prior art rests not on any individual element or function but in the very combination itself. That is in the substitution of the heating element comprising metal and/or ceramic considered conventional as taught by by AAPA for the for the implicit heating element required by Atsalakis as modified by Djorup, Kane, and Dompeling. Thus, the simple substitution of one known element for another producing a predictable result renders the claim obvious.
Re. Claim 8: Atsalakis as modified by Djorup, Kane, Dompeling, and AAPA teaches the invention according to claim 7.
AAPA further teaches wherein the heater is a ceramic heating element (see citation of rejection of claim 7).
Kane further teaches the invention, where, optionally, the heater is located within the walls of the hull of the flow sensor or within an opening in the hull of the flow sensor (see placement of heater in modification of Kane; Examiner further notes that optional limitations do not substantively limit claim scope).
Claim 38 is rejected under 35 U.S.C. 103 as being unpatentable over:
Atsalakis (WO 2017180605 A1) (disclosed by Applicant) (hereinafter – Atsalakis) in view of
Djorup et al. (US 4936144 A) (hereinafter – Djorup) with further evidence by The Engineering ToolBox (2003). Thermal Conductivity of Common Materials - Solids, Liquids and Gases. [online] Available at: https://www.engineeringtoolbox.com/thermal-conductivity-d_429.html [accessed: 12 May 2025]. (hereinafter – The Engineering Toolbox) in further view of
Kane et al. (US 20080200824 A1) (hereinafter – Kane) in further view of
Dompeling et al. (US 20100292601 A1) (hereinafter – Dompeling) in further view of
Applicant-Admitted Prior Art (hereinafter – AAPA) in further view of
Rodriguez (US 20140371619 A1) (hereinafter – Rodriguez).
Re. Claim 38: Atsalakis as modified by Djorup, Kane, and Dompeling teaches the invention according to claim 1, but does not teach the invention wherein the heater is a ceramic heater.
Such an aspect is taught by AAPA. See rejection of claim 7. Motivation to combine the teachings of AAPA with Atsalakis as modified by Djorup, Kane, and Dompeling is identical.
Atsalakis as modified by Djorup, Kane, Dompeling, and AAPA does not teach the invention wherein the temperature sensor is a resistor temperature detector.
Rodriguez teaches analogous art in the technology of breath analyzers (Abstract). Rodriguez teaches a resistor temperature detector (Paragraphs 0026-0027: temperature control system 220 uses a resistive heating element as a temperature sensor).
Since each individual element and its function are shown in the prior art, albeit shown in separate references, the difference between the claimed subject matter and the prior art rests not on any individual element or function but in the very combination itself. That is in the substitution of the resistor temperature sensor of Rodriguez for the implicit temperature sensor of Atsalakis as modified by Djorup, Kane, and Dompeling. Thus, the simple substitution of one known element (a known construction for a temperature sensor utilizing a resistor) for another (an implicit temperature sensor) producing a predictable result (a device comprising a resistor temperature sensor) renders the claim obvious.
Claim 41 is rejected under 35 U.S.C. 103 as being unpatentable over:
Atsalakis (WO 2017180605 A1) (disclosed by Applicant) (hereinafter – Atsalakis) in view of
Djorup et al. (US 4936144 A) (hereinafter – Djorup) with further evidence by The Engineering ToolBox (2003). Thermal Conductivity of Common Materials - Solids, Liquids and Gases. [online] Available at: https://www.engineeringtoolbox.com/thermal-conductivity-d_429.html [accessed: 12 May 2025]. (hereinafter – The Engineering Toolbox) in further view of
Kane et al. (US 20080200824 A1) (hereinafter – Kane) in further view of
Dompeling et al. (US 20100292601 A1) (hereinafter – Dompeling) in further view of
Dashevsky et al. (US 10561863 B1) (hereinafter – Dashevsky).
Re. Claim 41: Atsalakis as modified by Djorup, Kane, and Dompeling teaches the invention according to claim 1. Djorup modifies the non-descript hot-film anemometer of Atsalakis having an non-descript location to use a fluoropolymer coating (see citations of Djorup in rejection of claim 4) which measures flow rate by measuring a change in temperature caused by an exhaled breath (i.e., operation of the hot-film anemometer as used in Atsalakis as modified by Djorup). However, Atsalakis as modified by Djorup, Kane, and Dompeling is silent regarding the hot-film anemometer being a hot-film anemometer being contained on an MEMS microchip, the MEMS microchip is located inside the hull of the flow sensor or is in fluid contact with a by-pass channel within the hull of the flow sensor.
Dashevsky teaches analogous art in the technology of gas and flow analysis systems (Abstract). Dashevsky further teaches a hot-film anemometer contained on an MEMS microchip (Col. 27, lines 59-64: “The flow sensor is preferably a micro-electromechanical systems (MEMS) hot-film anemometer. The flow sensor may be of a type readily available and known to those in the art, for example, a commercial off-the-shelf flow sensor from Honeywell (e.g., Honeywell AWM700 series Airflow sensors).”).
Since each individual element and its function are shown in the prior art, albeit shown in separate references, the difference between the claimed subject matter and the prior art rests not on any individual element or function but in the very combination itself. That is in the substitution of the MEMS-based hot-film anemometer suggested by Dashevsky for the non-descript MEMS-based hot-film anemometer of Atsalakis, modification by Djorup applying analogously. Thus, the simple substitution of one known element for another producing a predictable result renders the claim obvious.
Additionally, Dashevsky also optionally teaches placement of such an MEMS-based hot-film anemometer along a separate by-pass channel from the main flow channel via flow dividers (Col. 28, lines 9-26).
It would have been obvious to one having skill in the art before the effective filing date to have modified Atsalakis as modified by Djorup, Kane, and Dompeling to have utilized either placement of an anemometer in a by-pass channel from a main flow portion as suggested by Dashevsky, the motivation being that the bypass channel can be sized to reduce the volumetric flow rate to effectively record measurements for the flow sensor (Col. 28, lines 15 – 29).
Response to Arguments
Applicant’s arguments with respect to the claims rejected under 35 U.S.C. 103 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
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/JUSTIN XU/Primary Examiner, Art Unit 3791
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