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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 06/09/2026 has been entered.
Response to Amendment
The amendment filed 06/09/2026/2026 has been entered. Claims 1, 76-79, 81-82, and 84-95 remain pending in the application, with claim 96 newly added.
Election/Restrictions
Newly submitted claim 1 is directed to an invention that lacks unity with the invention originally claimed for the following reasons: the invention of claims 1, 76-79, 81-82, 84-91, and 94-95 being drawn to a humidifier having a fluid injector positioned within a heat conductor, the invention of claim 92 being drawn to a humidifier having a chamber, a tub, and a fluid injector disposed above a heater, and the invention of claims 93 and 96, being drawn to a humidifier having a sensor, a controller, and a fluid injector disposed above a heater, do not relate to a single general inventive concept under PCT Rule 13.1 because, under PCT Rule 13.2, they lack the same or corresponding special technical features for the following reasons: the three species listed above share the technical feature of a humidifier having a fluid injector, this technical feature is not a special technical feature in view of Fodor (US 4038980), hereafter Fodor. Fodor discloses a humidifier (title), comprising: a gas flow path (fig. 2, gas flow path is through inlet 4 to patient mask 21, col. 4 lines 8 and 20-24); a heater in the gas flow path (fig. 2, the assembly of heating element 24, col. 3 lines 45-46, and sheath 22, col. 4 line 22), the heater comprising: a heater element (fig. 2, 24), a heat conductor (fig. 2, 22 is shown over 24), and a fluid injector (fig. 2, drip feed assembly, col. 3 lines 59-68) comprising an aperture (fig. 2, insert 32, col. 3 last line).
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 1, 76-79, 81-82, 84-91, and 94-95 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Information Disclosure Statement
The information disclosure statement (IDS) dated 07/20/2026 has been received and considered.
Response to Arguments
Applicant's arguments filed 06/09/2026 have been considered but are not persuasive.
Applicant’s arguments with respect to claims 1, 76-79, 81-82, 84-91, and 94-95 are moot since the amended claims are drawn to a species not elected. Please see the restriction requirement above for a detailed explanation.
Applicant’s arguments with respect to claims 92 and 93 have been considered but are moot because the new ground of rejection does not rely exclusively on the reference(s) applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Please see below for the updated rejection in response to the change in scope of the claims.
Claim Interpretation
Applicant recites a “tub” in claim 92. The typical meaning of “tub” is “a wide, open, deep container with a flat bottom used for holding liquids” (Oxford Languages Dictionary). It appears that applicant intends the “humidifier tub” to be the location where vaporization takes place (page 24, lines 2-3). The “tub” has been differentiated by the applicant from a reservoir for holding liquid (see fig. 9 in particular, tub 218 and reservoir 228). The term “tub” in claim 84 has been interpreted to mean a location where vaporization takes place.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
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.
Claim 92 is rejected under 35 U.S.C. 103 as being unpatentable over Fodor (US 4038980), hereafter Fodor, in view of Hirtz et al. (US 3695267), hereafter Hirtz.
Regarding Claim 92, Fodor discloses a humidifier (title), comprising: a gas flow path (fig. 2, gas flow path is through inlet 4 to patient mask 21, col. 4 lines 8 and 20-24); a chamber (fig. 1, chamber 10 enclosed by body 2, fig.2, col. 3 lines 31-32 and 44) for mixing vaporized water with an incoming flow of gas received by a gas inlet of the chamber (fig. 2, ; a heater element (fig. 2, the assembly of heating element 24 and sheath 22, col. 3 lines 44-45) and spaced from a base of the chamber the gas flow path (fig. 2 shows this configuration, col. 3 line 44), the heater comprising: a heater element (fig. 2, 24, col. 3 line 45); and a heat conductor in thermal contact with the heater element (fig. 2, sheath 22, col 4 lines 34-35); a gas flow path configured to flow through a region between the heater and an upper end of the chamber (fig. 2 shows this configuration, col. 4 lines 20-24); and a fluid injector (2, drip feed assembly, col. 3 lines 59-68) comprising an aperture (fig. 2, insert 32, col. 3 last line), the fluid injector being disposed above the heater such that the aperture is spaced apart from the heat conductor (fig. 2, there is a space between 32 and sheath 22), wherein the fluid injector is configured to deliver water to the heat conductor as a water droplet (col. 4 lines 25-29), and wherein the water droplet is vaporized upon contact with the heat conductor (col. 4 lines 27-29).
Fodor is silent on a tub positioned within the chamber and defining a vaporization region within the chamber, the tub comprising a base and at least one wall; the heater element being positioned at least partially within the tub; and the fluid injector configured to deliver water into the tub.
Hirtz teaches a humidifier (abstract) with a chamber (fig. 1, annular air passages 23, 24, col. 3 line 65-col. 4 line 1, enclosed by outer wall 22, col. 4 line 35) and a tub positioned within the chamber (fig. 1, the space enclosing the components within inner tubular housing wall 21) defining a vaporization region within the chamber (fig. 1, within 21, heating means 12 and hard porous body 18 vaporize liquid, col. 4 lines 17-22), the tub comprising a base (see annotated fig. 1) and at least one wall (fig. 1 and 4, 21 is a wall), the heater element positioned at least partially in the tub (fig. 1, the heater 12 is fully positioned within the space surrounded by 21).
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It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a wall and base surrounding Fodor’s heating assembly, as taught by Hirtz, by including an inner wall 21 with openings 27 and 28 in the base, in order to allow any excess water from filling to flow through the openings to avoid any accumulating water from contacting the electrical components of the humidifying device (Hirtz, col. 6 line 60 to col. 7 line 1). This modification would be an alternative to Fodor’s overflow collection means, outlet 36 and container 38 (Fodor col. 3 lines 56-58), since Hirtz’s means of conducting fluid overflow away from the electrical components would perform equally well as Fodor’s outlet and container.
Claim 93 is rejected under 35 U.S.C. 103 as unpatentable over Fodor in view of Seakins et al. (US 2004/0074493 A1), hereafter Seakins.
Regarding Claim 93, Fodor discloses a humidifier system (title), comprising: a gas flow path (fig. 2, gas flow path is through inlet 4 to patient mask 21, col. 4 lines 8 and 20-24); a chamber (fig. 1, chamber 10 enclosed by body 2, fig.2, col. 3 lines 31-32 and 44); a heater (fig. 2, the assembly of heating element 24 and sheath 22, col. 3 lines 44-45) in the chamber and spaced from a base of the chamber the gas flow path (fig. 2 shows this configuration, col. 3 line 44), the heater comprising: a heater element (fig. 2, 24, col. 3 line 45); and a heat conductor in thermal contact with the heater element (fig. 2, sheath 22, col 4 lines 34-35), the heat conductor comprising a foraminous material (col. 4 lines 35-37, the sheath 22 may be porous ceramic); a gas flow path configured to flow through a region between the heater and an upper end of the chamber (fig. 2, the gas flow path surrounds the sheath 22, including the upper portion of chamber 10, col. 4 lines 20-24); a fluid injector (2, drip feed assembly, col. 3 lines 59-68) comprising an aperture (fig. 2, insert 32, col. 3 last line), the fluid injector being spaced apart from the heater such that a gap exists between the aperture and the heat conductor (fig. 2 shows a space between 32 and sheath 22), wherein the fluid injector is configured to deliver water to the heat conductor as a water droplet (col. 4 lines 25-29), and wherein the water droplet is vaporized upon contact with the heat conductor (col. 4 lines 27-29); a sensor (fig. 2, thermostat 68, col. 4 line 39);
However, Fodor is silent on the sensor positioned downstream of the heater and controller configured to: determine a humidity of gas output based on an input from the sensor; and adjust a temperature of the heater element based on the determined humidity to regulate the humidity of the gas output. Instead, Fodor uses the thermostat (fig. 2, 68) and a valve (fig. 2, 58) to control the temperature of the heating element.
Seakins teaches a humidifier (fig. 1, abstract) which includes a sensor (fig. 1, 7 and 8 [0074]) positioned downstream of a heater (fig. 1, heating plate 9 [0065] and heating heater 12 [0075]), as well as a controller ([0023] and [0076]) configured to: determine a humidity of the gas output based on an input of the sensor ([[0074]) and adjust a temperature of the heater element based on the determined humidity to regulate the humidity of the gas output ([0075] and [0076]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to additionally include a sensor positioned downstream of the heater and a controller configured to determine the humidity of the gas input based on the sensor, and adjust a temperature of the heating element based on the determined humidity to regulate the humidity of the gas output as taught by Seakins in order to ensure that condensation is not occurring in the patient tube (Seakins [0076]).
Claim 96 is rejected under 35 U.S.C. 103 as unpatentable over Fodor and Seakins, further in view of KR 200307029 Y1, hereafter KR’029. A machine translation is relied upon to address claims.
Regarding Claim 96, Fodor and Seakins disclose a humidifier of Claim 93, but is silent on wherein the heater element is configured to operate up to a temperature of 500°C (Fodor uses a temperature of 200-300°C, col. 4 line 26).
KR’029 teaches a humidifier (fig. 1 [0031]) that operates up to 500°C ([0054]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Fodor’s heater to include an operating temperature of up to 500°C, since KR’029 teaches that humidifiers operate up to this temperature. Further, applicant does not appear to place criticality on this temperature, only indicating that a non-PCT heater may operate in a range of 100°C-500°C (page 8, lines 8-9) for a more compact humidifier (top of page 4).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARA K. TOICH whose telephone number is (703)756-1450. The examiner can normally be reached M-Th 7:30 am - 4:30 pm, every other F 7:30-3:30 ET.
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/SARA K TOICH/ Examiner, Art Unit 3785
/VICTORIA MURPHY/ Primary Patent Examiner, Art Unit 3785
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