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 .
Amendment
This office action is responsive to the amendment filed on 3/16/26. As directed by the amendment: claim 1 has been amended, no claims have been canceled, and no new claims have been added. Thus, claims 1-4 are presently pending in the application.
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 1-4 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 1 recites “a second member spaced from the first member” however it appears that the first (112) and second members (114) are in contact with one another in applicant’s figure 1.
Claim 1 recites “a gap, adapted to receive the endotracheal tube therein, is formed along the base between the first member and the second member,” however the language is confusing since it appears that the gap is formed along the second member and between each protruding portion of the first member. In applicant’s figure 1 there are two first members 112 and a second member 114, however it appears that one of the first members 112 is potentially labeled incorrectly and should be labeled as 114. Further, it appears that the second member 114 should be given an alternate number to represent the gap and should point to the gap, rather than the structure.
Any remaining claims are rejected as being dependent on a rejected base claim.
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.
Claims 1-4 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Vahabzadeh-Hagh (2022/0072252).
Regarding claim 1, in fig. 1A Vahabzadeh-Hagh discloses support 100 for an endotracheal tube (100 is able to support an endotracheal tube since Vahabzadeh-Hagh discusses the ability to support a tube of a ventilator circuit [0057]) comprising; a base (110 and 120); a first member (portion of 130 in annotated fig. 1A below) extends from the base in a direction away from the base; a second member (portion of 130 in annotated fig. 1A below) spaced from the first member (at least a portion of the 2nd member is spaced from the 1st member) extends from the base in the direction away from the base; and a gap 140, adapted to receive the endotracheal tube therein ([0057] gap 140 is able to receive an endotracheal tube in the same way it is able to receive a tube of a ventilator circuit or a tracheostomy tube), is formed along the base between the first member and the second member (Fig. 1A); wherein the support is configured to position the endotracheal tube so as not to rest on a lip of a patient (the support is able to position an endotracheal tube so as not to rest on a lip of a patient since the support is able to direct an endotracheal tube straight out of the patient’s mouth in the same way that it offloads pressure on the neck, abstract).
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Regarding claim 2, Vahabzadeh-Hagh discloses that the base has a height, when resting on a chest of a patient greater than the height of the mouth of the patient from a plane extending from the chest when lying on their back (see fig. 11).
Regarding claim 3, Vahabzadeh-Hagh discloses that the support is made of one of a foam [0078] and a foam rubber.
Regarding claim 4, Vahabzadeh-Hagh discloses that the support is made of an elastic material (memory foam [0070]), and further comprising an inflation port [0070][0059].
Response to Arguments
Applicant's arguments filed 3/16/26 have been fully considered but they are not persuasive. Applicant argues on pages 4-5 that Vahabzadeh-Hagh (VH) is not related art since VH is directed towards protecting a patient having a tracheostomy against injury of the neck versus the instant invention that is directed towards protecting the issues of the oral cavity from an endotracheal tube.
This argument is not taken well since the claims only require that the support be able to support an endotracheal tube. Since VH discloses a support that is also concerned with avoiding tube pressure along a perimeter of a user’s airway opening, directs an airway tube straight out of a user’s airway opening and discloses a structure as claimed that is able to support an endotracheal tube based on its structure that holds an airway tube coming out of a user’s airway, VH meets the recited claim language. Further, VH is from the same field of endeavor as the claimed invention since both are directed towards delivering air support to a user through a tube and VH is reasonably pertinent to the problem faced by the inventor, which is protecting a user from tube pressure along a perimeter of a user’s airway opening.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RACHEL T SIPPEL whose telephone number is (571)270-1481. The examiner can normally be reached M-F 9:00-5:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Timothy Stanis can be reached at (571) 272-5139. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RACHEL T SIPPEL/Primary Examiner, Art Unit 3785