DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
This office action is in response to the amendment filed 7/31/2026. As directed by the amendment, claims 5, 7, 14 and 16 have been amended, and claims 6 and 15 have been cancelled. As such, claims 1-5, 7-14 and 16-23 are pending in the instant application, wherein claims 1-4 and 16-23 remain withdrawn in response to restriction.
Applicant has cancelled claim 15 and argues on page 7 of Remarks filed 7/31/2026 (hereinafter “Remarks”) regarding the 112(a) rejection of claims 7, 13 and 14 that the claimed “(one or more) light sources” correspond(s) to LED backlight(s) for the LCOS displays within projectors 506, as described in instant para [56]. Applicant’s assertion that the claimed light source(s) are intended to correspond(s) to standard LCD backlight(s) are accepted with regards to the 112(a) rejection of claims 7 and 13; however, with regards to claim 14, LCD backlights as the light sources as asserted by Applicant would thus be within the projector 506 shown in instant Fig. 6, whereas reflector 602, understood in view of instant para [58] to correspond to the stretched-film polarizer of claim 14, is downstream of the projector 506 (and thus any backlight(s)/LCOS thereof), not in a path between components of the projector 506/the light sources and the LCOS displays as recited by claim 14. The objections to the drawings and the 112 rejections are updated below, where the drawing objection regarding the holes of claim 15 has been rendered moot/is withdrawn.
Applicant has amended claim 14 to address a minor informality and cancelled claim 15; the objections to the claims are withdrawn/rendered moot.
Regarding the 112(b) rejection of claim 5 (and thus its dependent claims), Applicant argues on page 8 of Remarks that Figs. 1A and 9 “clearly show the respirator 110 built into the mask 104…umbilical 106 delivers a pressurized gas supply…to a respirator 110, which can control flow of the gas at demand of a user’s breath.” In light of these arguments, a “built-in respirator” as claimed is understood to require a demand valve system permanently/integrally attached to a facemask; the rejection of claim 5 (and thus its dependent claims) under 35 USC 112(b)/second paragraph is withdrawn.
Applicant has amended claim 7 to clarify the claimed subject matter and cancelled claim 15; the remaining rejections under 35 USC 112(b)/second paragraph are withdrawn.
Response to Arguments
Applicant’s arguments, see page 10 of Remarks, filed 7/31/2026, with respect to the 102/103 rejections of the claims in view of Vettese and Hu in light of the amendments to claim 5 have been fully considered and are persuasive. The 102/103 rejections of the claims in view of Vettese and Hu have been withdrawn.
The affidavit under 37 CFR 1.132 filed 7/31/2026 is insufficient to overcome the rejection of claims 5 and 7-14 based upon the publicly available SAVEDTM mask as set forth in the last Office action because: Mr. Klatt argues in bullet points 9, 11 and 13 of the affidavit that the mask demonstrated at the trade show in 2018 was a prototype and that he has been “unable to locate documentation indicating that this early prototype included the internal structures for mounting the display system inside the mask, the PCB design, or the thermal management designs described in the Patent Application” and asserts that “even if the prototype did have these internal structures they were not accessible to or visible by the public because they are covered by plastic or rubber inside the mask,” that “any demonstration of the prototype mask would have been strictly limited to its external features,” and that he is not “aware of any public disclosures of the internal structure…as describe in the Patent Application.” The Examiner respectfully notes that the bar with regards to public use does not include an exemption for whether internal components were “accessible or visible.” Indeed, Egbert v. Lippmann, 104 U.S. 333 (1881) addresses this matter: “some inventions are by their very character only capable of being used where they cannot be seen or observed by the public eye. An invention may consist of a lever or spring, hidden in the running gear of a watch, or of a rachet, shaft, or cog wheel covered from view in the recesses of a machine for spinning or weaving. Nevertheless if its inventor…allows it to be used without restriction of any kind, the use is a public one.” While Mr. Klatt asserts in bullet point 10 of the affidavit that it was standard practice/policy to “maintain control of prototypes…and to limit any discussion of new technologies to possible uses of the technology…to high-level talking points,” at issue here are the physical structural components of the mask that were present at the time of the trade show demonstration(s). Applicant has not attested nor provided any objective evidence that the instantly claimed physical structural components of the mask were not present/complete in the prototype presented at the trade show(s), and it is evident from at least the Wearable Technologies article that the mask was viewable from all angles and worn at the trade show. Although Mr. Klatt argues in bullet point 12 of the affidvit that the YouTube video cited by the Examiner was “unlisted” and “not publicly searchable” and that “only individuals with the direct link could view the video,” the Examiner initially found the video by google searching, and regardless, the video is still evidence regarding the functionality of the SAVEDTM mask presented at the trade show(s), since they both depict the same visible mask structure, and Applicant has not contested nor provided any objective evidence that the mask at the trade show did not include e.g. the up/down toggle adjustment of the visual display system/mount demonstrated by the YouTube video/the instantly claimed internal components associated therewith. Since the preponderance of the evidence of record points to prior public use of the instantly claimed device as embodied by the SAVEDTM mask presented at the trade show(s), absent an objective showing by Applicant that the SAVEDTM mask presented at the trade show(s) definitively did not include the contested limitations, the public use bar was activated a year after the 2018 trade show(s), and thus the claimed subject matter filed in 2022 remains rejected per the updated 102(a)(1) rejection below.
Applicant argues on page 9 of Remarks that is improper for the Office to “assume” that any claim features which are not “either expressly or inherently described” in a reference, are nonetheless present,” arguing that the Office “has failed to show that the disclosure of [the SAVEDTM mask] is relevant to the features of claim 6 that are now incorporated into claim 5 [because n]one of these references disclose the internal structure of the SAVED mask.”
As discussed above and maintained in the art rejection below, absent objective evidence that the publicly available SAVEDTM mask did not include the claimed internal features, because the evidence on record points toward the publicly available SAVEDTM mask being structurally the same mask as instantly disclosed/claimed, and there is no indication or evidence that that the structural components of the publicly disclosed mask were not the same as those instantly disclosed/claimed, the publicly available SAVEDTM mask is considered to anticipate the instant claims.
Applicant argues on page 9 of Remarks that “a declaration by Mr. Klatt has been submitted herewith testifying that at least the features of amended claim 5 were not publicly available or on sale prior to April 27, 2021…the Office has provided no contrary evidence.”
The Examiner respectfully notes that while Mr. Klatt’s statement in bullet point 7 of the affidavit filed 7/31/2026 regarding prior sale is accepted, evidence of prior public availability has indeed been provided, as discussed above and maintained in the art rejection below. Applicant has not denied or provided objective evidence to the contrary that the prototype demonstrated at the trade show(s) in 2018 contained the claim subject matter, see e.g. bullet point 9 of the affidavit filed 7/31/2026; therefore, the publicly available SAVEDTM mask is considered to anticipate the instant claims.
Applicant argues on pages 9-10 of Remarks that the “there is no evidence that the 2020 YouTube Video is prior art to the present application….no archived versions…with any embedded video until November 28, 2021…it was his own disclosure.”
The Examiner asserts that the video was originally obtained by her through a standard google/youtube search, although this cannot be replicated because the video has been since removed/taken down. Regardless, the video screen grabs preserved by the Examiner serve as evidence that the SAVEDTM mask demonstrated at the trade show(s) in 2018, which are depicted and described as having the same structure and functionality as in all of the other disclosures including the instant specification, included e.g. the up/down toggle adjustment of the visual display system/mount demonstrated by the YouTube video/the instantly claimed internal components associated therewith. Therefore, the publicly available SAVEDTM mask is considered to anticipate the instant claims absence objective evidence that said mask did not contain the instantly claimed limitations.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the stretched-film reflective polarizers in a path between the light sources and the LCOS displays (claim 14) must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 5 and 7-14 are rejected under 35 U.S.C. 102(a)(1) based upon public availability of the invention, at least because the invention was demonstrated at the International Air Transport Association's Safety and Flight Ops Show on April 17-19, 2018.
The SAVEDTM mask was publicly available before 4/27/2021, wherein, as demonstrated by the 2018 Business Wire article submitted by Applicant (see NPL filed 4/27/2022), the ODG and Klatt Works websites submitted by Applicant (see NPL filed 8/14/2025), the 2018 Wearable Technologies article (see attached) and evidenced by the 2020 YouTube video demonstrating SAVEDTM mask functionality (see attached), this mask, demonstrated at least at the International Air Transport Association's Safety and Flight Ops Show on April 17-19, 2018, is inferred to be the same as the instantly disclosed/claimed mask, because the same mask structure as the instant disclosure is depicted in all of the previous disclosures, and thus the publicly available SAVEDTM mask anticipates claims 5 and 7-14, absent objective evidence to the contrary.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHRYN E DITMER whose telephone number is (571)270-5178. The examiner can normally be reached M 7:30a-3:30p, Tu-Th 8a-2p, F 7:30-11:30a ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brandy Lee can be reached at 571-270-7410. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KATHRYN E DITMER/Primary Examiner, Art Unit 3785
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