DETAILED ACTION
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 16 July 2026 has been entered.
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 .
Status of Claims
Claims 1, 4-15 and 17-22 are pending in this application.
Claims 2-3 and 16 are cancelled.
Claims 1 and 14 are amended.
Claims 1, 4-15 and 17-22 are presented for examination.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Response to Amendments
Claim Interpretation
The examiner is interpreting “fluidically connected” as a pathway between two components as support by the applicant’s specification. “Alternatively the breath analyzer 11 have its own air inlet 11 b, but in fluid connection with the interior air inlet so that the air is drawn also into the breath analyzer 11 by the HVAC fan 18.” (Specification: Pg. 15 Lines 5-8).
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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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 1, 4-15 and 17-22 are rejected under 35 U.S.C. 103 as being unpatentable over Hok et al. (US Publication 2017/0274768 A1) in view of Blackley (US Publication 2016/0363582 A1).
Regarding claim 1, Hok teaches a vehicle mounted combined HVAC and breath analyzing system acting on a compartment of the vehicle, the combined HVAC and breath analyzing system comprising: a breath analyzer arranged to analyze air from the compartment and to determine a concentration of a target substance in an air sample (Hok: Para. 27; tracer gas detection sensor; breath sample in which the tracer gas detection peak is found may be the same breath sample used for the BrAC); an HVAC system comprising HVAC system parts to control the air flow in the HVAC system and in the compartment (Hok: Para. 31; a vehicle's heating, ventilation and air conditioning (HVAC) system), ……………. , the HVAC system arranged to have plurality of modes of operation representing different ventilation, heating and cooling operations achievable by different settings or sequences of settings of the HVAC system parts (Hok: Para. 31, 48; a vehicle's heating, ventilation and air conditioning (HVAC) system; an HMI is in communication with the CPU and may be used to communicate with a driver to request an BrAC measurement from an active breath sample; HMI may be a multi-purpose interface; other functions may be navigation, HVAC interaction), and …….. , wherein the target substance is continuously generated by a source inside the compartment (Hok: Para. 24; driver's breath is detected, the testing conditions within the vehicle are normal; BrAC measurement from a passive breath sample); and a central control unit arranged to control both the breath analyzer and the HVAC system (Hok: Para. 10; sending sensor signals to a central processing unit (CPU) of the breath test system, which is in communication with a CPU of the vehicle; in some embodiments, the processor receives the sensor signals from the sensors) , ……….. , (ii) set the HVAC system to the closed position during a subsequent second time period (Hok: Para. 24, 31; if a driver's breath is detected, the testing conditions within the vehicle are normal; HVAC system is preferably turned OFF or in a normal operating condition during the process 100), and (iii) activate the breath analyzer to analyze air from the compartment to determine the concentration of the target substance in the air sample during the second time period (Hok: Para. 20, 26; measuring the initial conditions of the vehicle before the driver has entered; measuring the concentration of a tracer gas, such as carbon dioxide, which indicates the dilution of the driver's breath in the air within the vehicle).
Hok doesn’t explicitly teach the HVAC system parts comprising at least one exterior air inlet fluidically connected to ambient air outside of the compartment, at least one interior air inlet fluidically connected to the compartment, at least one interior air outlet fluidically connected to the compartment, at least one fan and at least one valve ……… teach the HVAC system configured to be arranged in an open position drawing ambient air from the at least one exterior air inlet to the interior air outlet and a closed position permitting a build-up of target substance concentration in the compartment ……. wherein the central control unit is arranged to (i) set the HVAC system in the open position during a first time period.
However Blackley, in the same field of endeavor, teaches the HVAC system parts comprising at least one exterior air inlet fluidically connected to ambient air outside of the compartment, at least one interior air inlet fluidically connected to the compartment, at least one interior air outlet fluidically connected to the compartment, at least one fan and at least one valve (Blackley: Para. 66, 138, 142-145; breath analysis apparatus may have the ability to intake and test ambient air quality, as well as output from personal vaporizers; an intake fan; breath analysis apparatus may include a plurality of valves, wherein a respective one of the valves is interposed between the vaporizer and a corresponding one of outlet and/or outlet (e.g., one or more inlets of flexible tubes); breath analysis apparatus and system may also be integrated with existing HVAC systems; micro-devices may also be utilized for vehicles) ……….. the HVAC system configured to be arranged in an open position drawing ambient air from the at least one exterior air inlet to the interior air outlet and a closed position permitting a build-up of target substance concentration in the compartment (Blackley: Para. 103, 142-145, 156; breath analysis apparatus and system may also be integrated with existing HVAC systems; micro-devices may also be utilized for vehicles; the vaporizer can be configured to intake air into the filtration element, filter the air, and bypass the mixing chamber by engaging a door and a door to pass the filtered air directly to the exhaust port) ……… wherein the central control unit is arranged to (i) set the HVAC system in the open position during a first time period (Blackley: Para. 66; delivering air to the filtration element; breath analysis apparatus can be configured to intake air into the filtration element, filter the air, and pass the filtered air to the vaporizer).
It would have been obvious to one having ordinary skill in the art to modify the tracer gas detection sensor taught in Hok (Hok: Para. 27) with an exhaust port to ambient air taught in Blackley (Blackley: Para. 156) because a breath analysis apparatus integrated into a vehicle’s HVAC systems to provide monitoring, custom air elements and testing within the distribution system for the HVAC is taught by Blackley (Blackley: Para. 145).
Regarding claim 4, Hok teaches the vehicle mounted combined HVAC and breath analyzing system according to claim 1, wherein the central control unit (Hok: Para. 26; testing at may also entail measuring the initial conditions of the vehicle before the driver has entered).
Hok doesn’t explicitly teach is further arranged to return the HVAC system to the open position after the second time period drawing external air from the at least one exterior air inlet and causing purging of air in the compartment.
However Blackley, in the same field of endeavor, teaches is further arranged to return the HVAC system to the open position after the second time period drawing external air from the at least one exterior air inlet and causing purging of air in the compartment (Blackley: Para. 138, 156; the breath analysis apparatus may have the ability to intake and test ambient air quality; drawing air in through a vapor path; once analyzed (or immediately, if no analysis is to be performed) the in-drawn vapor or mixture may be exhausted via the vapor path, or via a different outlet).
It would have been obvious to one having ordinary skill in the art to modify the tracer gas detection sensor taught in Hok (Hok: Para. 27) with an exhaust port to ambient air taught in Blackley (Blackley: Para. 156) because a breath analysis apparatus integrated into a vehicle’s HVAC systems to provide monitoring, custom air elements and testing within the distribution system for the HVAC is taught by Blackley (Blackley: Para. 145).
Regarding claim 5, Hok teaches the vehicle mounted combined HVAC and breath analyzing system according to claim 1, wherein the central control unit is further arranged to activate the breath analyzer during the first time period (Hok: Para. 26; measuring the initial conditions of the vehicle before the driver has entered, such as CO.sub.2 levels, EtOH concentrations in the vehicle air) to measure a baseline (Hok: Para. 26; testing at may also entail measuring the initial conditions of the vehicle before the driver has entered).
Regarding claim 6, Hok teaches the vehicle mounted combined HVAC and breath analyzing system according to claim 1, further comprising driver presence detection means for detecting the presence of a driver within the compartment (Hok: Para. 24; initiated by a wireless door key to unlock the vehicle doors, by opening the door to the driver's seat, or any other indicator capable of signaling that a driver has entered a vehicle), and wherein the central control unit is arranged to place the HVAC system in a dedicated breath analysis mode based on an input from the driver presence detection means (Hok: Para. 24, 31; if a driver's breath is detected, the testing conditions within the vehicle are normal, and the time limit has not been exceeded, then the process will proceed to 112 and a BrAC measurement from a passive breath sample will be made; HVAC system is preferably turned OFF or in a normal operating condition during the process).
Regarding claim 7, Hok teaches the vehicle mounted combined HVAC and breath analyzing system according to claim 6, wherein the central control unit is arranged to at least one of change the valve position and activate the breath analyzer based on the input from the driver presence detection means (Hok: Para. 20, 24; opening the door to the driver's seat; signaling that a driver has entered a vehicle; in passive breath testing, the air within the vehicle is pulled into the sensor with a fan).
Regarding claim 8, Hok doesn’t explicitly teach wherein the central control unit is arranged to set or maintain the at least one valve in the open position drawing external air from the at least one exterior air inlet during the first time period after a detection of a driver.
However Blackley, in the same field of endeavor, teaches wherein the central control unit is arranged to set or maintain the at least one valve in the open position drawing external air from the at least one exterior air inlet during the first time period after a detection of a driver (Blackley: Para. 138, 156; the breath analysis apparatus may have the ability to intake and test ambient air quality; drawing air in through a vapor path; once analyzed (or immediately, if no analysis is to be performed) the in-drawn vapor or mixture may be exhausted via the vapor path, or via a different outlet).
It would have been obvious to one having ordinary skill in the art to modify the tracer gas detection sensor taught in Hok (Hok: Para. 27) with an exhaust port to ambient air taught in Blackley (Blackley: Para. 156) because a breath analysis apparatus integrated into a vehicle’s HVAC systems to provide monitoring, custom air elements and testing within the distribution system for the HVAC is taught by Blackley (Blackley: Para. 145).
Regarding claim 9, Hok teaches the vehicle mounted combined HVAC and breath analyzing system according to claim 4, wherein the central control unit is arranged to activate the breath analyzer during the first time period, wherein the breath analyzer is arranged to measure a baseline (Hok: Para. 26; testing at may also entail measuring the initial conditions of the vehicle before the driver has entered), and the central control unit is arranged to activate the breath analyzer during the second time period, wherein the breath analyzer is arranged to determine the concentration of the target substance in the compartment during the second time period (Hok: Para. 20, 26; measuring the initial conditions of the vehicle before the driver has entered; measuring the concentration of a tracer gas, such as carbon dioxide, which indicates the dilution of the driver's breath in the air within the vehicle).
Hok doesn’t explicitly teach wherein the breath analyzer is arranged to determine the concentration of the target substance in the compartment during purging of the air in the compartment.
However Blackley, in the same field of endeavor, teaches wherein the breath analyzer is arranged to determine the concentration of the target substance in the compartment during purging of the air in the compartment (Blackley: Para. 138; the breath analysis apparatus may have the ability to intake and test ambient air quality; drawing air in through a vapor path; once analyzed (or immediately, if no analysis is to be performed) the in-drawn vapor or mixture may be exhausted via the vapor path, or via a different outlet).
It would have been obvious to one having ordinary skill in the art to modify the tracer gas detection sensor taught in Hok (Hok: Para. 27) with an exhaust port to ambient air taught in Blackley (Blackley: Para. 156) because a breath analysis apparatus integrated into a vehicle’s HVAC systems to provide monitoring, custom air elements and testing within the distribution system for the HVAC is taught by Blackley (Blackley: Para. 145).
Regarding claim 10, Hok doesn’t explicitly teach wherein the breath analyzer is integrated in the HVAC system so that the at least one interior air inlet is an inlet to both the HVAC system and the breath analyzer.
However Blackley, in the same field of endeavor, teaches wherein the breath analyzer is integrated in the HVAC system so that the at least one interior air inlet is an inlet to both the HVAC system and the breath analyzer (Blackley: Para. 103, 142-145; breath analysis apparatus and system may also be integrated with existing HVAC systems; micro-devices may also be utilized for vehicles; vaporizer can be configured to intake air into the filtration element, filter the air, and pass the filtered air to the mixing chamber).
It would have been obvious to one having ordinary skill in the art to modify the tracer gas detection sensor taught in Hok (Hok: Para. 27) with an exhaust port to ambient air taught in Blackley (Blackley: Para. 156) because a breath analysis apparatus integrated into a vehicle’s HVAC systems to provide monitoring, custom air elements and testing within the distribution system for the HVAC is taught by Blackley (Blackley: Para. 145).
Regarding claim 11, Hok teaches the vehicle mounted combined HVAC and breath analyzing system according to claim 10, wherein the breath analyzer is arranged downstream of the at least one fan and at least one valve of the HVAC system (Hok: Para. 20; in passive breath testing, the air within the vehicle is pulled into the sensor with a fan).
Regarding claim 12, Hok teaches the vehicle mounted combined HVAC and breath analyzing system according to claim 1, wherein the HVAC system is, in a special mode of operation, arranged to draw air backwards from the compartment via the at least one interior air outlet and pass the air to the breath analyzer (Hok: Para. 20; in passive breath testing, the air within the vehicle is pulled into the sensor with a fan).
Regarding claim 13, Hok teaches the vehicle mounted combined HVAC and breath analyzing system according to claim1, wherein the breath analyzer is arranged to measure a target substance concentration and a tracer gas concentration (Hok: Para. 20; BrAC measurement is made by first measuring the concentration of a tracer gas, such as carbon dioxide, which indicates the dilution of the driver's breath in the air within the vehicle; the measured EtOH concentration can be combined with this breath dilution factor to determine a BrAC).
Regarding claim 14, Hok teaches a method of determining a target substance using a vehicle mounted combined HVAC and breath analyzing system acting on a compartment of the vehicle, wherein the combined HVAC and breath analyzing system comprises a breath analyzer arranged to analyze air from the compartment and to determine a target substance and a tracer gas in an air sample (Hok: Para. 27; tracer gas detection sensor; breath sample in which the tracer gas detection peak is found may be the same breath sample used for the BrAC), an HVAC system comprising HVAC system parts to control the air flow in the HVAC system and in the compartment (Hok: Para. 31; a vehicle's heating, ventilation and air conditioning (HVAC) system), ……….. , the HVAC system arranged to have plurality of modes of operation representing different ventilation, heating and cooling operations (Hok: Para. 31, 48; a vehicle's heating, ventilation and air conditioning (HVAC) system; an HMI is in communication with the CPU and may be used to communicate with a driver to request an BrAC measurement from an active breath sample; HMI may be a multi-purpose interface; other functions may be navigation, HVAC interaction), …… , wherein the target substance is continuously generated by a source inside the compartment (Hok: Para. 24; driver's breath is detected, the testing conditions within the vehicle are normal; BrAC measurement from a passive breath sample), and a central control unit arranged to control both the breath analyzer and the HVAC system (Hok: Para. 10; sending sensor signals to a central processing unit (CPU) of the breath test system, which is in communication with a CPU of the vehicle; in some embodiments, the processor receives the sensor signals from the sensors), the method comprising: overriding a current mode of the HVAC system to place the HVAC system in a dedicated breath analysis mode (Hok: Para. 31; determine the status of a vehicle's heating, ventilation and air conditioning (HVAC) system, such as whether it is in an ON state or an OFF state; HVAC system is preferably turned OFF or in a normal operating condition during the process 100), ……….. ; setting the HVAC system to the closed position permitting a build-up of target substance concentration in the compartment during a subsequent second time period (Hok: Para. 24, 31; if a driver's breath is detected, the testing conditions within the vehicle are normal; HVAC system is preferably turned OFF or in a normal operating condition during the process 100); and activating the breath analyzer to analyze air from the compartment to determine the concentration of the target substance in the air sample during the second time period (Hok: Para. 20, 26; measuring the initial conditions of the vehicle before the driver has entered; measuring the concentration of a tracer gas, such as carbon dioxide, which indicates the dilution of the driver's breath in the air within the vehicle).
Hok doesn’t explicitly teach the HVAC system parts comprising at least one exterior air inlet fluidically connected to ambient air outside of the compartment, at least one interior air inlet fluidically connected to the compartment, at least one interior air outlet fluidically connected to the compartment, at least one fan and at least one valve ………… the HVAC system configured to be arranged in an open position drawing ambient air from the at least one exterior air inlet to the interior air outlet and a closed position permitting a build-up of target substance concentration in the compartment.\ ……. wherein the breath analysis mode comprises: setting the HVAC system in the open position drawing ambient air from the at least one exterior air inlet during a first time period.
However Blackley, in the same field of endeavor, teaches the HVAC system parts comprising at least one exterior air inlet fluidically connected to ambient air outside of the compartment, at least one interior air inlet fluidically connected to the compartment, at least one interior air outlet fluidically connected to the compartment, at least one fan and at least one valve (Blackley: Para. 66, 138, 142-145; breath analysis apparatus may have the ability to intake and test ambient air quality, as well as output from personal vaporizers; an intake fan; breath analysis apparatus may include a plurality of valves, wherein a respective one of the valves is interposed between the vaporizer and a corresponding one of outlet and/or outlet (e.g., one or more inlets of flexible tubes); breath analysis apparatus and system may also be integrated with existing HVAC systems; micro-devices may also be utilized for vehicles) ………. the HVAC system configured to be arranged in an open position drawing ambient air from the at least one exterior air inlet to the interior air outlet and a closed position permitting a build-up of target substance concentration in the compartment (Blackley: Para. 103, 145, 156; breath analysis apparatus and system may also be integrated with existing HVAC systems; micro-devices may also be utilized for vehicles; the vaporizer can be configured to intake air into the filtration element, filter the air, and bypass the mixing chamber by engaging a door and a door to pass the filtered air directly to the exhaust port) ……… wherein the breath analysis mode comprises: setting the HVAC system in the open position drawing ambient air from the at least one exterior air inlet during a first time period (Blackley: Para. 66, 156; delivering air to the filtration element; breath analysis apparatus can be configured to intake air into the filtration element, filter the air, and pass the filtered air to the vaporizer).
It would have been obvious to one having ordinary skill in the art to modify the tracer gas detection sensor taught in Hok (Hok: Para. 27) with an exhaust port to ambient air taught in Blackley (Blackley: Para. 156) because a breath analysis apparatus integrated into a vehicle’s HVAC systems to provide monitoring, custom air elements and testing within the distribution system for the HVAC is taught by Blackley (Blackley: Para. 145).
Regarding claim 15, Hok teaches the method according to claim 14, further comprising the steps of; detecting the presence of a driver; and placing the HVAC system in the dedicated breath analysis mode based on the detection of the driver (Hok: Para. 24, 31; as the driver or test subject takes the first steps towards entering the driver seat of the vehicle, process will initiate sensors to monitor the testing conditions within the vehicle, the detection of a driver's breath; HVAC system is preferably turned OFF or in a normal operating condition during the process; the testing conditions within the vehicle are normal, and the time limit has not been exceeded, then the process will proceed to 112 and a BrAC measurement from a passive breath sample will be made).
Regarding claim 17, Hok teaches the method according to claim 14, wherein placing the HVAC system in the dedicated breath analysis mode comprises at least one of changing a position of the at least one valve and activating the breath analyzer (Hok: Para. 24, 31; if a driver's breath is detected, the testing conditions within the vehicle are normal; HVAC system is preferably turned OFF or in a normal operating condition during the process 100).
Regarding claim 18, Hok doesn’t explicitly teach comprising returning the HVAC system to the open position after the second time period and drawing external air from the at least one exterior air inlet and causing purging of air in the compartment.
However Blackley, in the same field of endeavor, teaches comprising returning the HVAC system to the open position after the second time period and drawing external air from the at least one exterior air inlet and causing purging of air in the compartment (Blackley: Para. 138, 156; the breath analysis apparatus may have the ability to intake and test ambient air quality; drawing air in through a vapor path; once analyzed (or immediately, if no analysis is to be performed) the in-drawn vapor or mixture may be exhausted via the vapor path, or via a different outlet).
It would have been obvious to one having ordinary skill in the art to modify the tracer gas detection sensor taught in Hok (Hok: Para. 27) with an exhaust port to ambient air taught in Blackley (Blackley: Para. 156) because a breath analysis apparatus integrated into a vehicle’s HVAC systems to provide monitoring, custom air elements and testing within the distribution system for the HVAC is taught by Blackley (Blackley: Para. 145).
Regarding claim 19, Hok teaches the method according to claim 18, wherein the breath analyzer is activated during the first time period, and wherein the breath analyzer measures a baseline (Hok: Para. 26; testing at may also entail measuring the initial conditions of the vehicle before the driver has entered).
Regarding claim 20, Hok teaches the method according to claim 19, further comprising the breath analyzer being arranged to analyze air from the compartment and to determine a concentration of a target substance in an air sample during the air purging step (Hok: Para. 39; sensor draws air continuously through an inlet, to an outlet, and measures for both the presence of a tracer gas such as CO.sub.2 and the presence of EtOH within the airflow).
Regarding claim 21, Hok teaches the method according to claim 15, further comprising the HVAC system drawing air backwards from the compartment via the at least one interior air outlet and passing the air to the breath analyzer (Hok: Para. 20; in passive breath testing, the air within the vehicle is pulled into the sensor with a fan), and instructing the driver to direct a breath towards the at least one interior air outlet (Hok: Para. 8, 21; processor requests an active second air sample from the driver and measures the BrAC of the driver; the driver may be required to be close to the sensor, and to direct a forced, undiluted breath towards the sensor or through an air inlet).
Regarding claim 22, Hok teaches the method according to claim 15, further comprising the HVAC system drawing air backwards from the compartment via a dedicated inlet and passing the air to the breath analyzer, and instructing the driver to direct a breath towards the dedicated inlet (Hok: Para. 18, 21; in an active breath test, the driver may be required to be close to the sensor, and to direct a forced, undiluted breath towards the sensor or through an air inlet; sensor or measuring device then measures the alcohol content in the air).
Response to Arguments
Applicant’s arguments, filed 16 July 2026, with respect to the rejection of claims 1, 4-15, and 17-222 under 35 U.S.C. 103 have been fully considered, but they are not persuasive.
The applicant’s attorney argues that “wherein the target substance is continuously generated by a source inside the compartment” is not taught by the prior arts.
In response to the argument above, Hok teaches if a driver’s breath is detected, the testing conditions within the vehicle are normal. Hok teaches a BrAC measurement from a passive breath sample will be made (Hok: Para. 24). Hok has a driver within the vehicle, this teaches a source inside the compartment. The testing of a passive breath sample means the driver within the vehicle is breathing so the target substance is being continuously generated by the driver.
The applicant next argues that a “central control unit arranged to (i) set the HVAC system in the open position during a first time period, (ii) set HVAC system to the closed position during a subsequent second time period, and (iii) activate the breath analyzer to analyze air from the compartment to determine the concentration of the target substance in the air sample during the second time period” is not taught by the prior arts.
In response to the argument above, Hok teaches a central processing unit of the breath test system which is in communication with the CPU of the vehicle (Hok: Para. 10). Hok teaches a HVAC system being turned OFF so that the detected driver’s breath is concentrated within the vehicle compartment creating testing conditions for a BrAC measurement from a passive breath sample (Hok: Para. 24, 31). Hok teaches a central control unit that controls a vehicle’s HVAC system and allows for a time period where the passive breath of the driver is concentrating within the vehicle’s compartment.
Blackley teaches a fan that delivers air to the filtration element, filtering the air, and passing the filtered air to the vaporizer in order to perform breath analysis (Blackley: Para. 66). Blackley use control of the vehicle’s HVAC system to assist the delivery of vehicle compartment air into a breath analysis system by a fan.
Both Hok and Blackley teach HVAC systems within a vehicle. Both have control of at least some aspects of the vehicle’s HVAC system to facilitate the breath analysis of the vehicle’s driver or occupant. Hok central control system sends commands to the vehicle’s HVAC. Blackley opens the HVAC system so air is allowed access to the breath analysis testing space. While the vehicle is closed to outside ventilation, the driver’s breath is detected and allowed to build up over a period of time. The prior arts do teach the applicant’s invention.
The applicant next argues that “permitting build-up of the concentration of the target substance in the monitored area” is not taught by the prior arts.
In response to the applicant’s argument above, Hok detected the vehicle door’s unlocking and the driver entering the vehicle. The sensors are initiated, monitoring the testing conditions within the vehicle. The detection of the driver’s breath being built up in the closed compartment of the vehicle and pulled into the sensor with a fan during a set time period (Hok: Para. 20). The system has a time limit. The build up for driver’s breath to create a concentration that can be testing and testing need to happen before the time limit is exceeded (Hok: Para. 24, Fig. 1). The time limit taught by Hok reads on the claimed second time period. Hok gives details on alcohol testing. This testing is triggered by the concentration of a tracer gas, such as carbon dioxide, which indicates the dilution of the driver's breath in the air within the vehicle (Hok: Para. 20, 26). The concentration of cardon dioxide is the activation for a breath analyzer looking for alcohol. The HVAC system is preferably turned OFF during the process of driver’s breath build up in the vehicle’s cabin. Use of the HVAC system during passive breath testing may excessively dilute the driver's EtOH level, divert the driver's breath away from the sensor, or otherwise prevent an accurate passive breath test (Hok: Para. 31). Hok teaches control of the HVAC system to the off mode so that the driver’s breath can build up in the vehicle’s cabin for testing.
The applicant next argues that Blackley teaches away from “permitting a build-up of the target substance concentration in the monitored enclosure”.
In response to the argument above, Blackley teaches a breath analysis system that is integrated with existing HVAC systems to provide testing for vehicles, cockpits, police and fire outfits, elevators, or other small confined spaces (Blackley: Para. 138, 145). Blackley lists many examples where a space is defined and can be closed off to build up breath for the breath analysis system.
Furthermore, "the prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed…." In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004). See also UCB, Inc. v. Actavis Labs, UT, Inc., 65 F.4th 679, 692, 2023 USPQ2d 448 (Fed. Cir. 2023) ("a reference does not teach away if it merely expresses a general preference for an alternative invention but does not criticize, discredit or otherwise discourage investigation into the invention claimed.") (MPEP 2145).
The applicant next argues that combining Blackley’s air flow control to compartment 1502 with a tracer gas detection sensor of Hok will not result in a combined HVAC and breath analyzing system capable of permitting a build-up of target substance concentration in the compartment from which the breath analyzing system samples the gas for analysis at least because neither Hok nor Blackley disclose any system configured to permit a build-up of target substance concentrated in the compartment that is sampled.
In response to applicant's argument that combining Blackley’s air flow control comparting with Hok’s tracer gas detection sensor will not result in the claimed invention, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
The applicant next argues that claims 4-13 are allowable at least based on their dependencies.
In response to the argument above, claim 1 is rejected and all its dependent claims would be rejected at least based on their dependencies.
The applicant next argues that claim 14 has been amended in a manner similar to amended claim 1 and therefore allowable for at least the reasons advanced above.
In response to the argument above, the examiner’s responses to the arguments addressed to claim 1 would similarly apply to claim 14.
The applicant next argues that claims 15 and 17-22 are allowable at least based on their dependencies.
In response to the argument above, claim 14 is rejected and all its dependent claims would be rejected at least based on their dependencies.
The applicant’s arguments have failed to point out the distinguishing characteristics of the amended claim language over the prior art. For the above reasons, Hok’s breath test reads on applicant’s vehicle mounted breath analyzing system. The rejection is maintained.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Knoeller et al. US Patent Number 10,761,006 B2 teaches a vehicle air-condition device with an air quality analysis channel.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LAURA E LINHARDT whose telephone number is (571) 272-8325. The examiner can normally be reached on M-TR, M-F: 8am-4pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Angela Ortiz can be reached on (571) 272-1206. The fax phone number for the organization where this application or proceeding is assigned is (571) 273-8300.
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/L.E.L./Examiner, Art Unit 3663
/ADAM D TISSOT/Primary Examiner, Art Unit 3663
