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
The Amendment filed 08 Dec 2025 has been entered. Claims 1-4 and 6-15 are pending in the application with claim 5 canceled. Claims 1, 3-4 and 6-15 are currently amended. Applicant’s amendment to the Specification and Claims have overcome most, but not every, objection and 35 U.S.C. 112 rejection previously set forth in the Non-Final Office Action mailed 11 Sep 2025. The remaining issues are restated below.
The claims are no longer interpreted as invoking 35 U.S.C. 112(f) following the amendment to the claims.
Response to Arguments
Applicant's arguments filed 08 Dec 2025 have been fully considered but they are not persuasive.
Applicant argues Rittner et al. (U.S. Pub. 2019/0152610) fails to disclose all the requirements of claims 1 and 15 (Pg. 7-10). In this regard applicant initially argues the claimed second gas feed (Pg. 8-9). It is respectfully noted that the phrasing “second gas feed” has been interpreted in light of the instant specification which discusses the second gas feed 12 “taking the form of an aperture or through-hole 13” (¶0048 of the PGPub copy of the instant application). Thus, the claimed second gas feed can be read on by an apertured connection between the ventilation mask and the re-breathing bag. That locational arrangement of an aperture is satisfied in Rittner by the location marked with the numeral 28 in Fig. 2 which interfaces between flexible bowl 27 and rebreathing bag 80. Additionally, there is nothing in claims 1 and 15 recited of the re-breathing bag which could not be read on by a generic re-breathing bag.
Applicant secondly argues that Rittner does not disclose an altitude sensor (Pg. 9). It is respectfully submitted that Rittner expressly defines “controlled flow” as meaning flow controlled as a function of current aircraft altitude (¶0077). There is no reasonable way for the system of Rittner to determine “current aircraft altitude” without an altitude sensor. Applicant’s proposal that the altitude in Rittner could be the result of manual input or pre-programmed data must be considered inaccurate as those means of altitude entry cannot reasonably provide a “current” aircraft altitude without relying themselves on an altitude sensor. Rittner thus implicitly defines an altitude sensor.
Applicant finally argues that Rittner fails to disclose the recited preparing of a ventilation gas mixture within the ventilation mask (Pg. 9). It is respectfully submitted that claims 1 and 15 only generically recite a combining of gas from the first gas feed and the second gas feed and do not require that combining to be in any particular proportion, timing, or other controlled parameter. As gas may flow into the mask of Rittner through both the cited first gas feed and second gas feed there is implicit opportunity for gas mixing within the mask of Rittner.
Applicant’s further arguments on Pg. 10-12 are only understood to generally restate the arguments already addressed above.
Thus, the 35 U.S.C. 102(a)(1) rejection based on Rittner is maintained.
Claim Objections
Claim(s) 1-14 is/are objected to because of the following informalities:
Claim 1, Ln. 4 recites “to received exhaled air” which should read “to receive exhaled air”
Claim 8, Ln. 2-3 recites “the partial pressure of carbon dioxide” which should read “a partial pressure of carbon dioxide” as it is a first introduction
Claim 11, Ln. 3 recites “as a at least one pulse” which should read “as at least one pulse”
Appropriate correction is required.
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 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.
Claim(s) 1, 9, 11, and 14-15 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Rittner et al. (U.S. Pub. 2019/0152610).
Regarding claim 1, Rittner discloses an apparatus (Figs. 1-2) for preparing a ventilation gas mixture to a user comprising: a ventilation mask (Fig. 2 #2; ¶0060) configured to receive oxygen through a first gas feed (Figs. 1-2 #3; ¶0065), the ventilation mask being further configured to receive exhaled air from the user (Fig. 2 – a mask will inherently receive user exhaled air); a re-breathing bag (Fig. 2 #80; ¶0063) coupled to the ventilation mask via a second gas feed, the re-breathing bag configured to receive the exhaled air from the ventilation mask through the second gas feed (Fig. 2 position of #28 – rebreathing bag by definition receives exhaled air), wherein the re-breathing bag is further configured to re-supply the exhaled air to the ventilation mask through the second gas feed (Fig. 2 – rebreathing bag by definition re-supplies exhaled air); an altitude sensor (¶¶0077, 0087-0090 – calculates based on aircraft altitude requires an altitude sensor) configured to determine altitude information; a control system (Fig. 1 #16; ¶0056) configured to receive the altitude information from the altitude sensor and further configured to control the flow of oxygen through the first gas feed based on the received altitude information (¶¶0077, 0087-0090); wherein the ventilation mask is arranged to combine the oxygen received through the first gas feed with the re-supplied exhaled air received through the second gas feed in order to prepare a ventilation gas mixture (Fig. 2 – gas flowing into #2 from the positions of #23 and #28 will be mixed within #2; ¶0107).
Regarding claim 9, Rittner discloses the ventilation mask comprises a third gas feed (Fig. 2 at #25; ¶0107) configured to receive ambient air.
Regarding claim 11, Rittner discloses the control system is configured to control the flow of oxygen through the first gas feed such that oxygen is supplied to the ventilation mask as at least one pulse, wherein the at least one pulse comprises a predetermined volume of oxygen (¶¶0024, 0075-0076, 0086).
Regarding claim 14, Rittner discloses the control system is configured to control the flow of oxygen through the first gas feed such that oxygen is supplied to the ventilation mask as a continuous flow of oxygen (¶¶0017, 0074, 0086).
Regarding claim 15, Rittner discloses a method of preparing a ventilation gas mixture (Figs. 1-2) comprising the steps of supplying oxygen (Fig. 1 from #13; ¶0057) to a ventilation mask (Fig. 2 #2; ¶0060) through a first gas feed (Figs. 1-2 #3; ¶0065); receiving, by the ventilation mask, exhaled air from a person (Fig. 2 – a mask will inherently receive user exhaled air); supplying the exhaled air from the ventilation mask to a re-breathing bag (Fig. 2 #80; ¶0063) through a second gas feed (Fig. 2 position of #28 – rebreathing bag by definition receives exhaled air); re-supplying the exhaled air from the re-breathing bag to the ventilation mask through the second gas feed (Fig. 2 – rebreathing bag by definition re-supplies exhaled air); determining an altitude of the ventilation mask using an altitude sensor (¶¶0077, 0087-0090 – calculates based on aircraft altitude requires an altitude sensor) and sending the altitude to a control system (Fig. 1 #16; ¶0056); controlling, by the control system, a flow of oxygen through the first gas feed based on the received altitude (¶¶0077, 0087-0090); combining, by the ventilation mask, the oxygen received through the first gas feed with the re-supplied exhaled air received through the second gas feed in order to prepare the ventilation gas mixture (Fig. 2 – gas flowing into #2 from the positions of #23 and #28 will be mixed within #2; ¶0107).
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) 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(s) 2-3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rittner et al. (U.S. Pub. 2019/0152610) in view of Basham et al. (U.S. Patent 3675649).
Regarding claim 2, Rittner is silent as to whether the altitude sensor comprises a pressure sensor.
Basham teaches an oxygen mask (Fig. 1) including an altitude sensor (#15; Col. 3, Ln. 22-27) comprising a pressure sensor (Col. 3, Ln. 22-27 – absolute aneroid assembly measures absolute pressure). Basham teaches a pressure sensor as a common form of aircraft altitude sensor (Col. 2, Ln. 31-46).
It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the invention to have specified in Rittner the altitude sensor comprises a pressure sensor in order to provide the benefit of selecting an absolute aneroid assembly as a common form of aircraft altitude sensor in view of Basham.
Regarding claim 3, Rittner teaches the invention as modified above and Basham as incorporated therein further teaches the pressure sensor arranged to determine a pressure of the ambient air (Basham – Col. 3, Ln. 22-27 – absolute aneroid assembly measures absolute pressure) and further configured to send the ambient air pressure to the control system (Rittner – ¶¶0077, 0087-0090).
Claim(s) 2-4 and 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rittner et al. (U.S. Pub. 2019/0152610) in view of Bosch (BMP280 Data Sheet; retrieved from cdn-shop.adafruit.com/datasheets/BST-BMP280-DS001-11.pdf).
Regarding claim 2, Rittner is silent as to whether the altitude sensor comprises a pressure sensor.
However, Rittner teaches an alternate embodiment (Fig. 9; ¶0120) where user breathing is detected via a pressure sensor (Fig. 9 #75; ¶0120). Rittner teaches that pressure sensor can take the particular form of Bosch™ BMP280 (¶0120) which the attached non-patent literature details as an absolute barometric pressure sensor (Pg. 3). An absolute barometric pressure sensor provides altitude information.
It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the invention to have incorporated in Rittner the altitude sensor comprises a pressure sensor based upon an obvious design choice to select an alternate embodiment of Rittner which utilizes an absolute barometric pressure sensor to detect user breathing.
Regarding claim 3, Rittner teaches the invention as modified above and further teaches the pressure sensor arranged to determine a pressure of the ambient air (Fig. 9 P-out) and further configured to send the ambient air pressure to the control system (¶0120).
Regarding claim 4, Rittner teaches the invention as modified above and further teaches the pressure sensor arranged to determine a pressure of the exhaled air (Fig. 9 #75 is in position to measure exhaled air); and further configured to send the exhaled air pressure to the control system (¶0120).
Regarding claim 6, Rittner teaches the invention as modified above and further teaches the pressure sensor is located within the ventilation mask (Fig. 9 - #75 within the mask).
Claim(s) 12-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rittner et al. (U.S. Pub. 2019/0152610).
Regarding claim 12, Rittner discloses the at least one pulse comprises a plurality of pulses (¶¶0086-0090).
Rittner is silent as to whether each pulse in the plurality of pulses comprises the same volume of oxygen.
However, Rittner teaches the bolus volume is the result of a calculation which depends on the aircraft altitude, and possibly on auxiliary parameters, like pressure in the oxygen supply, etc., which dictates the needed quantity of oxygen per user inhalation (¶0089). One of ordinary skill in the art would have considered it prima facie obvious that under some conditions of operation the bolus volume calculation would be essentially the same for at least two consecutive breaths, which would satisfy the requirements of the instant claim.
It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the invention to have specified in Rittner each pulse in the plurality of pulses comprises the same volume of oxygen based upon a situation where consecutive breaths have the same resultant bolus volume calculation based upon similar ambient conditions which occur in the few seconds between two breaths.
Regarding claim 13, Rittner discloses the at least one pulse comprises a plurality of pulses (¶¶0086-0090).
Rittner is silent as to whether at least two pulses in the plurality of pulses comprise a different volume of oxygen.
However, Rittner teaches the bolus volume is the result of a calculation which depends on the aircraft altitude, and possibly on auxiliary parameters, like pressure in the oxygen supply, etc., which dictates the needed quantity of oxygen per user inhalation (¶0089). One of ordinary skill in the art would have considered it prima facie obvious that under some conditions of operation the bolus volume calculation would be different between at least two breaths as ambient conditions dynamically change, which would satisfy the requirements of the instant claim.
It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the invention to have specified in Rittner at least two pulses in the plurality of pulses comprise a different volume of oxygen based upon a situation where ambient conditions are dynamically changing, thus resulting in breaths having different resultant bolus volume calculations.
Allowable Subject Matter
Claim(s) 7-8 and 10 is/are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 7, the claim remains allowed over the prior art for the same reasons stated in the preceding Office action.
Regarding claim 8, the claim remains allowed over the prior art for the same reasons stated in the preceding Office action.
Regarding claim 10, the claim remains allowed over the prior art for the same reasons stated in the preceding Office action.
Conclusion
Regarding the independent claims particular note is still further drawn to Stewart (U.S. Patent 5007421) and Farin et al. (U.S. Pub. 2003/0101997).
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 JOSEPH D BOECKER whose telephone number is (571)270-0376. The examiner can normally be reached M-F 9:00 AM - 4:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kendra Carter can be reached at (571) 272-9034. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JOSEPH D. BOECKER/Primary Examiner, Art Unit 3785