DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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.
Election/Restrictions
Applicant’s election without traverse of group I (claims 26-44) in the reply filed on 9/18/25 is acknowledged.
Drawings
The drawings are objected to under 37 CFR 1.83(a) because they fail to show esophageal pressure 20, pleural pressure 21, ventilation pressure 22 and transpulmonary pressure 23 as described in the specification. Any structural detail that is essential for a proper understanding of the disclosed invention should be shown in the drawing. MPEP § 608.02(d). 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 § 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 and 40-42 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.
Regarding claim 34:
The claim recites the limitation "the balloon pressure PB" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 40:
The limitation “the relative pressure difference rΔPB” in lines 3-4 is unclear. This limitation is unclear since two different “relative pressure difference rΔPB” have been established raising a question of which this limitation refers to (see the relative pressure difference rΔPB of lines 1-2 of claim 40 and relative pressure difference rΔPB in line 9 of claim 26 on which this claim depends). For the sake of examination, the office has assumed all these limitation refer to the same relative pressure difference rΔPB however the applicant should amend the claim to clarify.
Claims 41-42 are rejected due to their dependence on claim 40.
Regarding claim 41:
The claim recites the limitation "the maximum filling volume VBa" in lines 2-3. There is insufficient antecedent basis for this limitation in the claim.
Allowable Subject Matter
The following is a statement of reasons for the indication of allowable subject matter: claims 26-33, 35-39, 43-44 is/are allowed primarily because the prior art of record cannot anticipate Applicant' s claimed invention by a single reference nor render Applicant' s claimed invention obvious by the combination of more than one reference.
Furthermore, the prior art of record does not teach “defining a border range GB on the basis of the relative pressure difference rAPB; - ascertaining an optimum filling volume VBopt in consideration of the border range GB” as within the context of the claimed invention as disclosed and within the context of the other limitations present in claim 26.
Therefore, the prior art of record cannot anticipate Applicant' s claimed invention by a single reference nor render Applicant' s claimed invention obvious by the combination of more than one reference.
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.”
Claims 34 and 40-42 would be allowable if rewritten 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 and to include all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The following is pertinent prior art:
US-20210016035-A1
EULIANO
See the airway pressure in figures 8a-8c
US-20180221608-A1
SCHWAIBOLD
See the pressure curves as shown in figures 5-6
US-20090120439-A1
Goebel
See the breath cycle 31 in figure 4
US-20100043795-A1
UJHAZY
See the inspiration and expiration cycles in figure 5
US-20200260985-A1
KREMEIER
See the inspiration curve 38 and expiration curve 34 as shown in figure 5
US-20170231572-A1
Lowery
See the respiratory cycle 181 and the maximum 194
US-5862802-A
Bird
See the pressure curve as shown in figure 2
US-5697375-A
Hickey
See the pressure curve as shown in figure 12
WO-2005077268-A1
SINDERBY
See the pressure curve as shown in figure 2
WO-9300037-A1
HICKEY
See the pressure curve 112
WO-2018217516-A1
SCHULTHEIS
See the pressure curve as shown in figure 6
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WESLEY HARRIS whose telephone number is (571)272-3665. The examiner can normally be reached M to F, 9am-5pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Tsai can be reached on (571) 270-5246. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/WESLEY G HARRIS/Examiner, Art Unit 3783