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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 34, 35, 39, 45, and dependents therein are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 34 recites the limitation “a thickness of the strap” and "into the strap" in line 11. There is insufficient antecedent basis for these limitations in the claim. The claim earlier refers to a living hinge between “one of the upper strap and the lower strap”, and the claim should clearly refer back to one of the upper and the lower strap.
Claim 39 recites the limitation “wherein the main strap portion extends along an entirety of the length of the strap”, “wherein the at least one flange portion extends along atl east one-half of the length of the strap”, and “wherein the main strap portion defines an entirety of at least one of the upper edge and the lower edge of the strap” at the end of the claim. There is insufficient antecedent basis for these limitations in the claim. The claim earlier refers to the main strap portion and flange on “each of the upper strap and the lower strap”, and the claim should clearly refer back to each of the upper and the lower strap.
Claim 45 recites “wherein each of the first flange portion and the second flange portion extend along a substantial entirety of a respective side of the user’s head in use”. The claim should be amended to ensure the user’s head is not positively claimed. Additionally, it is noted that a claim, although clear on its face, may also be indefinite when a conflict or inconsistency between the claimed subject matter and the specification disclosure renders the scope of the claim uncertain as inconsistency with the specification disclosure or prior art teachings may make an otherwise definite claim take on an unreasonable degree of uncertainty. In the instant case, the rear portion of the headgear extends along half or less of the side of the user’s head, as illustrated in Fig. 2. Thus, it is unclear how its flange portion can extend along a substantial entirety of a side of the user’s head.
Claims 35 refers to length and width dimensions for the living hinge and base portion. However, the claim fails to define how length and width are measured for each of the respective components. As such, the metes and bounds of the claim are unclear, as completely different – even contradictory – interpretations may read on the claim.
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.
Claim(s) 34 – 36, 38, 46, 49, 79 – 82, 84, and 85 is/are rejected under 35 U.S.C. 103 as being unpatentable over Freestone (US 20180207385) in view of Gebrewold (US 8118026).
34. Freestone discloses a rear portion of a respiratory mask headgear (see Figs. 11 – 14), comprising: a unitary body portion (see [0214], [0217], the single headgear strap is constructed as a single integrated piece) comprising a plastic material (see [0214] and general teaching in [0181]), the body portion comprising: an upper strap having a first end, a second end, a length between the first end and the second end, and a width (820); a lower strap having a first end, a second end, a length between the first end and the second end, and a width (830); and a junction between the first end of the upper strap and the first end of the lower strap, the junction comprising a base portion (840, where 820 and 830 meet, as illustrated in Figs. 11 and 12).
While Freestone discloses that the plastic straps can be configured to permit flexibility in a height direction of the straps to allow for adjustment of a spacing or angle between the upper strap and lower strap, see [0214], Fig. 11 versus Fig. 13, Freestone does not disclose the junction comprising a living hinge between the base portion and one of the upper strap and the lower strap, wherein the living hinge is defined by a slot that extends through an entirety of a thickness of the strap and extends into the strap from an edge of the strap such that the slot defines an open end. Nonetheless, Gebrewold discloses a respiratory interface comprising a unitary body portion comprising a plastic material with an upper member, a lower member, and a junction between the first end of the upper member and the first end of the lower member (see Fig. 2a, members 28 and 26 meeting at junction 35, c. 8: 13 – 26), the junction comprising a living hinge between the base portion and one of the upper member and the lower member (44, see c. 6: 58), wherein the living hinge is defined by a slot that extends through an entirety of a thickness of the member (see c. 6: 54 – c. 7: 29, the slot is formed into the upper and lower members, thereby extending through an entirety of the respective member; the underlying filter is thus visible underneath the slot, as best illustrated in Fig. 2a) and extends into the member from an edge of the member such that the slot defines an open end (see attachment 1 below, an extended edge is shown by dashed lines as annotated, and the slot extends into such edge). Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to modify the junction/straps of Freestone to include a living hinge as taught in Gebrewold for the benefit of enabling the single body to better accommodate various head sizes, c. 1: 14 – 15, without causing damage under normal use, see c. 3: 64 – 67.
Attachment 1:
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35. Freestone in view of Gebrewold discloses the rear portion of a respiratory mask headgear of claim 34, wherein the living hinge defines a length that is less than a width of the base portion of the junction and/or the width of the respective upper strap or lower strap to which the living hinge is joined (upon providing the living hinge of Gebrewold on the junction/straps of Freestone, as illustrated in Figs. 11 – 14, the length of the living hinge would be less than the width of the straps, since the slot extends into the edge of the straps of Freestone as described above; examiner notes the length is considered the longitudinal or long axis of the physical living hinge, and as considered customary in the art; this axis would run parallel to the width axis of the upper and lower members, as illustrated in Gebrewold above; see rejection under 35 USC 112(b) above).
36. Freestone in view of Gebrewold discloses the rear portion of a respiratory mask headgear of claim 35, but does not disclose wherein the length of the living hinge is less than about two-thirds of the width of the respective upper strap or lower strap to which the living hinge is joined, as modified above. However, Gebrewold discloses that the upper/lower members may have a width dimension typically about 3 mm, see c. 10: 22 – 27 (examiner also notes that the relationship between the disclosed thickness and cross-sectional areas are generally square, as calculated). Gebrewold also discloses the length of the living hinge typically as low as about 0.5 mm, see c. 10: 34 – 35, where examiner considers the length as the long dimension as illustrated in Fig. 5, and discussed in claim 35 and section 112(b) above. Such typical dimensions may yield a living hinge well less than about two-thirds the width, e.g. as low as around 17% of the width per the cited examples. Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to modify the living hinge length of Freestone in view of Gebrewold to be less than about two-thirds as claimed for the benefit of ensuring adequate rotation or hinging. Such modification would have involved routine optimization, and a person of ordinary skill in the art would have had a reasonable expectation of success to formulate the claimed range for the reasons discussed above.
38. Freestone in view of Gebrewold discloses the rear portion of a respiratory mask headgear of claim 34, wherein the junction is symmetrical about an axis passing through the junction and between the upper strap and the lower strap (the junction is symmetrical, as illustrated in both Freestone and Gebrewold, see Figs. 11 – 14 and Fig. 2, respectively).
46. Freestone discloses the rear portion of a respiratory mask headgear of claim 34, wherein the length of the upper strap is a first length and the length of the lower strap is a second length, wherein the second length is greater than the first length (see general teaching, [0169]).
49. Freestone in view of Gebrewold discloses the rear portion of a respiratory mask headgear of claim 34, wherein the living hinge is a first living hinge and the junction further comprises a second living hinge, the first living hinge located between the base portion and the upper strap and the second living hinge located between the base portion and the lower strap (see Gebrewold, slots into both upper and lower members).
79. Freestone in view of Gebrewold discloses the rear portion of a respiratory mask headgear of claim 34, wherein the slot is arcuate in shape (see Gebrewold, the slot is an arcuate cul-de-sace).
80. Freestone in view of Gebrewold discloses the rear portion of a respiratory mask headgear of claim 34, wherein the slot extends into the edge of the one of the upper strap and the lower strap that is adjacent the other of the upper strap or the lower strap (see Gebrewold, attachment 1 above, the slot extends adjacent the upper and lower members adjacent each other).
81. Freestone in view of Gebrewold discloses the rear portion of a respiratory mask headgear of claim 80, wherein each of the upper strap and the lower strap includes a slot (see Gebrewold, attachment 1 above, the slot extends adjacent the upper and lower members adjacent each other).
82. Freestone in view of Gebrewold discloses the rear portion of a respiratory mask headgear of claim 81, wherein each of the slots is arcuate in shape and symmetrical about an axis passing through the junction and between the upper strap and the lower strap (see Gebrewold, attachment 1 above, the slot extends adjacent the upper and lower members adjacent each other; see also Gebrewold, Fig. 2a, illustrating the axis of symmetry).
84. Freestone in view of Gebrewold discloses the rear portion of a respiratory mask headgear of claim 34, wherein the living hinge is configured to facilitate rotational movement of the one of the upper strap and the lower strap towards or away from the other of the upper strap or the lower strap (per the modification from Gebrewold, upper and lower members/straps would rotate toward/away from each other).
85. Freestone in view of Gebrewold discloses the rear portion of a respiratory mask headgear of claim 82, wherein the slots cooperate to form a part-annular shape opening in the body portion (see Gebrewold, Fig. 2; under a broadest reasonable interpretation of the claim, the part-annular shape is formed by the outline of opening 44).
Claim(s) 47 is/are rejected under 35 U.S.C. 103 as being unpatentable over Freestone (US 20180207385) in view of Gebrewold (US 8118026) in view of Huddart (US 20160074614).
47. Freestone in view of Gebrewold discloses the rear portion of a respiratory mask headgear of claim 34, but does not disclose wherein the width of the lower strap is greater than the width of the upper strap. Huddart discloses wherein the width of the lower strap is greater than the width of the upper strap, see [0348]. Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to modify the straps of Freestone according to the width difference as disclosed in Huddart for the benefit of fitting different anatomies of the wearer.
Allowable Subject Matter
Claims 39 and 45 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
Claims 39 and 83 in the instant application have not been rejected using prior art because no references, or reasonable combination thereof, could be found which disclose or suggest all the features of the claim
The following is an examiner’s statement of reasons for allowance:
Regarding claim 39, Bornholdt (WO 2017160166) in view of Gebrewold (US 8118026) discloses a rear portion of a respiratory mask headgear comprising a unitary body portion comprising a plastic material, wherein each of the upper strap and the lower strap comprise a main strap portion having a first thickness and at least one flange portion having a second thickness that is smaller than the first thickness, wherein the main strap portion extends along an entirety of the length of the upper and lower strap from the first junction to the second junction, and wherein the at least one flange portion extends along at least one half of the length of the upper and lower strap (see Fig. 4 of Bornholdt, the at least one flange portion is illustrated to easily extend along at least two thirds of the length of the strap, with a thickened main strap portion running through the middle along the entirety of the strap). The strap may include a living hinge, as discussed in Freestone and Gebrewold above. However, the main strap portion of Bornholdt does not define an entirety of at least one of the upper edge and the lower edge of each of the upper and lower straps, as illustrated in Fig. 4. Examiner notes the broad interpretation taken to similar claim 42 in the final rejection dated 09/30/2025 fails to meet newly amended claim 39, since applicant has appropriately defined upper and lower edges of the straps.
It would not have been obvious to modify the design in Bornholdt absent further teaching in the prior art. Applicant has constructed their strap according to the claimed thicknesses between the main strap portion and flange portions in order to effect appropriate hinging of the strap via the living hinge, while maximizing structural support of both the strap and its living hinge.
Regarding claim 83, Freestone in view of Gebrewold discloses the features as discussed in claim 34 above. The references further disclose wherein the living hinge is defined by a slot that extends into an edge of each one of the upper strap and the lower strap that is adjacent the other of the upper strap or the lower strap (see attachment 1 in the action above, Gebrewold illustrates that the slot extends into both upper and lower members); wherein each of the slots is arcuate in shape and symmetrical about an axis passing through the junction and between the upper strap and the lower strap (see for example Fig. 2a in Gebrewold, as well as the axis of symmetry found in Figs. 11 – 14 of Freestone). However, Freestone in view of Gebrewold does not disclose wherein a portion of each of the slots is formed by a rounded protrusion of the base portion of the junction. While Gebrewold discloses additional types of living hinges, see Figs. 5E1 - 5E5, such designs would rely on an orientation of the living hinge perpendicular to its base portion, and are specialized to the mask construction. As such, it would not have been obvious to a person having ordinary skill in the art to modify Freestone with mask-specific hinges such as Fig. 5E5 in Gebrewold.
Accordingly, claims 39 and 83 patently define over the prior art.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Response to Arguments
Applicant’s arguments 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
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 5724677 – cul-de-sac shape in headgear strap
US 20090044808 (Fig. 22 – 2—6) – cul-de-sac shape in headgear strap
US 5269026 – cul-de-sac living hinge in headwear
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRADLEY H PHILIPS whose telephone number is (571)270-5180. The examiner can normally be reached 8:00 - 5:00 M-F.
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/BRADLEY H PHILIPS/Primary Examiner, Art Unit 3799