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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 15 Jan 2026 (based upon the RCE filed 18 Feb 2026) has been entered.
Claims 34-39 are pending in the application with claims 20-33 canceled. Claims 34-39 are currently amended. Applicant’s amendment to the Claims have overcome each and every objection previously set forth in the Final Office Action mailed 19 Nov 2025.
The prior 35 U.S.C. 112(d) rejection is withdrawn as requested (Pg. 5-6) in acquiescence to applicant’s arguments. Upon review it is acknowledged the language of claim 39 was not previously properly considered and the 35 U.S.C. 112(d) rejection of that claim is withdrawn.
Claim Objections
Claim(s) 35 is/are objected to because of the following informalities:
Claim 35, Ln. 2-3 recites “the flow channel” which should read “the at least one flow channel” following after claim 34
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) 34-35 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Velzy et al. (U.S. Pub. 2015/0023782).
Regarding claim 34, Velzy discloses a respiratory therapy device (Fig. 101-8; ¶0093), wherein the respiratory therapy device comprises at least one fan unit (Fig. 101-8 #6510; ¶0093) for generating a respiratory airflow for carrying out respiratory therapy, the at least one fan unit comprising a housing (Fig. 101-8 #6520; ¶0097) and at least one fan wheel (Fig. 101-8 #6501; ¶0095) rotatably mounted in the housing, wherein respiratory air is transported through a channel (Figs. 101-8 to 101-11; ¶0098) formed inside the housing and comprising an inlet channel (Figs. 101-10 and 101-11 show inlet for air), at least one flow channel (Figs. 101-8 to 101-11 – flow within housing), and at least one outlet channel (Fig. 101-4 #6529; ¶0102), and wherein at least one depression (Figs. 101-8 to 101-11 empty space interior of #6535; ¶0097) which reduces sound emission (¶¶0097-0098) is arranged in a lumen of the channel. It is noted that the term “depression” does not imply a particular shape or size.
Regarding claim 35, Velzy discloses the at least one depression is arranged in an inner side of the housing (Figs. 101-8, 101-10 & 101-11 empty space interior of #6535 is against an interior of the housing) in a region of the at least one flow channel .
Claim(s) 34-35 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kuriger et al. (U.S. Pub. 2020/0309137).
Regarding claim 34, Kuriger discloses a respiratory therapy device (Fig. 51; ¶¶0267-0268), wherein the respiratory therapy device comprises at least one fan unit (Fig. 51 full structure; ¶¶0267-0268; note relationship to Figs. 45-64; ¶¶0258-0282) for generating a respiratory airflow for carrying out respiratory therapy, the at least one fan unit comprising a housing (exterior of Fig. 51; see also Figs. 45-47) and at least one fan wheel (¶0268; impeller of Figs. 45-46; ¶0259) rotatably mounted in the housing, wherein respiratory air is transported through a channel (Fig. 51 from #320 to #321; ¶0261) formed inside the housing and comprising an inlet channel (Fig. 51 #320; ¶0261), at least one flow channel (Fig. 51 between #320 and #321), and at least one outlet channel (Fig. 51 #321; ¶0261), and wherein at least one depression (Fig. 51 #385 and/or #387A/B; ¶0267) which reduces sound emission (¶0268) is arranged in a lumen of the channel. It is noted that the term “depression” does not imply a particular shape or size.
Regarding claim 35, Kuriger discloses the at least one depression is arranged in an inner side of the housing Fig. 51 #385 and/or #387A/B are on an interior of the housing) in a region of the at least one flow channel .
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) 36-37 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kuriger et al. (U.S. Pub. 2020/0309137).
Regarding claim 36, Kuriger is silent as to whether the at least one depression has a depth of from 0.5 mm to 2.5 mm.
However, Kuriger teaches the recess 385 can take various shapes (¶¶0261, 0264). One of ordinary skill in the art would recognize that a V-shape or a U-shape recess will have various depth measures depending on how close to the edge or the center of the recess the depth is being measured. It is noted that the claim does not specify the depth as a maximum depth. Additionally, Kuriger teaches the recesses 387A, 387B as being tapered (¶0265) which would similarly suggest to one of ordinary skill in the art a range of depths which can be measured across the recess, from a minimum at an edge of the recess to a maximum at a center of the recess. Based upon the overall dimensions taught in Kuriger one of ordinary skill in the art would have considered it prima facie obvious for at least one of recesses 385, 387A, and 387B to have a maximum depth of at least 0.5 mm, which would thus allow a reading on the 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 Kuriger the at least one depression has a depth of from 0.5 mm to 2.5 mm based upon the teaching in Kuriger that recesses 385, 387A, and 387B may be provided in a V-shape, a U-shape or as tapering and thus with a recognition that those various shapes will provide varying measures of depths between a minimum at an edge of each recess to a maximum at a center of each recess. It is again noted that the claim does not specify the depth as a maximum depth.
Regarding claim 37, Kuriger is silent as to whether the at least one depression has a depth of from 1 mm to 2 mm.
However, Kuriger teaches the recess 385 can take various shapes (¶¶0261, 0264). One of ordinary skill in the art would recognize that a V-shape or a U-shape recess will have various depth measures depending on how close to the edge or the center of the recess the depth is being measured. It is noted that the claim does not specify the depth as a maximum depth. Additionally, Kuriger teaches the recesses 387A, 387B as being tapered (¶0265) which would similarly suggest to one of ordinary skill in the art a range of depths which can be measured across the recess, from a minimum at an edge of the recess to a maximum at a center of the recess. Based upon the overall dimensions taught in Kuriger one of ordinary skill in the art would have considered it prima facie obvious for at least one of recesses 385, 387A, and 387B to have a maximum depth of at least 1 mm, which would thus allow a reading on the 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 Kuriger the at least one depression has a depth of from 1 mm to 2 mm based upon the teaching in Kuriger that recesses 385, 387A, and 387B may be provided in a V-shape, a U-shape or as tapering and thus with a recognition that those various shapes will provide varying measures of depths between a minimum at an edge of each recess to a maximum at a center of each recess. It is again noted that the claim does not specify the depth as a maximum depth.
Allowable Subject Matter
Claim(s) 38-39 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 38, neither Velzy nor Kuriger teaches or suggests the particular diameter recited by the instant claim. As an initial note the term “diameter” implies that the depression must be circular since only circular shapes can be accurately said to have a diameter.
Kuriger does not teach a circular depression.
Velzy teaches a circular depression but of a size apparently too large to read on the claim. The cited depression in Velzy is the central void defined within acoustic foam 6535, which is best seen in Figs. 101-8 to 101-11. While Velzy does not expressly discuss the diameter of that void Velzy does teach a thickness of acoustic foam 6535 as about 5 mm. One of ordinary skill in the art looking at Figs. 101-8 to 101-11 and considering the thickness of acoustic foam 6535 as about 5 mm would have expected the central void defined within acoustic foam 6535 to have a diameter of much greater than 5 mm. One of ordinary skill in the art would not have been motivated to have reduced the size of the central void defined within acoustic foam 6535 without improper hindsight reasoning.
Other prior art potentially readable on claim 34 but not on the instant claim include: Kenyon et al. (U.S. Patent 6216691; Fig. 11 jagged edges along #70 as depressions), Kenyon et al. (U.S. Pub. 2008/0072900; Fig. 20 #718 as a depression), Nitta et al. (U.S. Pub. 2015/0219119; Fig. 3 #22 as a depression) and Mulfinger (U.S. Pub. 2020/0282172; Fig. 8 #618 as a depression).
It is noted that the instantly disclosed depressions, with their particularly small diameter, are of a material different design than that found in any of the related prior art (e.g. Fig. 14 of the instant application).
It is thus found that one having ordinary skill in the art at the time of the effective filing of the invention would only have arrived at the instantly claimed invention by way of improper hindsight reasoning.
Regarding claim 39, the claim is found allowable over the prior art for the same general reasons discussed above in regard to claim 38.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure, see PTO-892 for additional attached references.
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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/JOSEPH D. BOECKER/Primary Examiner, Art Unit 3785
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