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 .
Election/Restrictions
Applicant’s election of invention I in the reply filed on 13 October 2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement or identify that the election is made “with traverse”:, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 43-45 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention , there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 13 October 2025.
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
Breathflow guiding equipment, first recited in claim 26 (valve, haptic feedback, visual indicators and/or audible indicator; pp. 5-6 as originally filed)
Breathflow measurement unit, first recited in claim 26 (one or more IR sensors, and/or one or more LiDAR sensors and/or it may be one or more turbine sensors, p. 7 as originally filed)
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 26-43 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 26 recites the limitation "the data representing the measured breath flow rate" in line 10. There is insufficient antecedent basis for this limitation in the claim. The claim defines a measurement unit which can measure such a flow rate but does not define generating or otherwise obtaining “data representing the measured breath flow rate”.
Claim 27 refers to “a user’s mouth”; claim 26 already defines a user. It is unclear if this refers to an additional user or should refer to “the user’s mouth”. The same issue is found in claims 28, 30, 31. Clarification is required.
Claim 28 recites “the breathflow guiding equipment includes an electronically operated valve in each of the two nasal conduits”; claim 26 defines “breathflow guiding equipment comprising an electronically operated valve”. It is unclear if the valves of claim 28 are in addition to the valve defined in claim 26 (for a total of 3 valves) or if the valve of claim 26 is one of two total valves as defined in claim 28. The same issue is found in claim 31. Clarification is required.
Claim 29 recites that “the data capable of being held in the memory is data defining a breathing exercise”. Claim 26 defines that “the memory unit [is] capable of storing data representing an ideal breath flow rate”. No other data is defined as being capable of being held in the memory. The scope of this claim is unclear as it is not clear whether this is additional data that can be held in the memory or if the claim is attempting to redefine the data that is already held in the memory. This issue is also found in claims 38 and 40. Clarification is required.
Claim 30 recites the limitation “the preset breath rate”; there is insufficient antecedent basis for this limitation in the claim. Only an “ideal” breath rate for comparison has been defined in any claim, such that this is additionally unclear whether the preset rate is the same rate as the ideal rate or some other rate. The same issue is found in claim 31, which does not depend from claim 30 such that its recitation of “the preset breath rate” also lacks antecedent basis. Clarification is required.
Claim 38 recites the limitation “the expected breath rate”; there is insufficient antecedent basis for this limitation in the claim. As noted above, only an “ideal breath rate” has been defined for comparison purposes, such that this is additionally unclear if an “expected” breath rate is the same as an “ideal” breath rate or a “preset” breath rate, or if these are three wholly separate rates that are all used for different comparisons. The same issue is found in claim 40, which does not depend from claim 38 such that its recitation of “the preset breath rate” also lacks antecedent basis. Clarification is required.
Claim limitations “haptic feedback apparatus”, first recited in claim 26, “vibration unit”, first recited in claim 26, “vibrational indicator”, first recited in claim 39, each invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The “haptic feedback apparatus” is defined only as “including a vibration unit” (see p. 6 of the specification as filed), where no structure or details of any “vibration unit” is defined at any point in the specification, nor is there any structure or details provided for any “vibrational indicator”. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 39 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 26, from which claim 39 depends, defines a “vibration unit” as part of the guiding equipment, such that claim 39’s recitation of only that the guiding equipment “includes a vibrational indicator” does not appear to further define claim 26 unless there is some showing that a vibration unit is somehow a different device than a vibrational indicator. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 102
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.
Claim(s) 26, 27, 29, 30, 32, 35, 36, 38-42 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Spurling (US 2011/0124470).
Regarding claim 26, Spurling discloses a breath guide device having:
an airway (element 1),
breathflow guiding equipment comprising an electronically operated valve for regulating the flow of breath through the airway (element 3), the guiding equipment further comprising haptic feedback apparatus including a vibration unit (paragraph [0017]),
the device further having a control unit capable of communicating with a memory unit capable of storing data representing an “ideal” breath flow rate (paragraph [0015]),
the device further including a breathflow measurement unit in the airway arranged to measure the breath flow rate of a user (paragraphs [0036]-[0042]) and
wherein the control unit is further arranged to compare the data representing the “ideal” breath flow rate with the data representing the measured breath flow rate of the user, and to control the valve and the vibration unit in dependence on the result of the comparison (paragraphs [0016], [0017], [0065]).
The Examiner notes that no criteria have been defined in any claim or the specification for determining what constitutes an “ideal” breath flow rate such that any target/preset/predefined breath flow rate which is “exactly right for a particular purpose” https://www.merriam-webster.com/dictionary/ideal or “regarded as perfect of its kind” https://www.collinsdictionary.com/dictionary/english/ideal is thus “ideal”.
Regarding claim 27, Spurling further discloses a mouthpiece suitable for placement at a user's mouth (paragraphs [0029]-[0030]).
Regarding claim 29, Spurling further discloses that data capable of being held in the memory comprises data defining a breathing exercise (paragraph [0016], the target profile which can vary over time).
Regarding claim 30, Spurling further discloses a mouthpiece suitable for placement at a user's mouth (paragraphs [0029]-[0030]), wherein the control unit is arranged to close the valve if the user's breath flow rate is detected as being higher than a preset breath rate (paragraph [0016], [0028]).
Claim 32 recites “IR sensors” without providing the terms “IR” stands for; clarification is required.
Regarding claim 35, Spurling further discloses that the breathflow guiding equipment further includes a plurality of visual indicators (paragraph [0017]).
Regarding claim 36, Spurling further discloses that the breathflow guiding equipment further includes an audible indicator (paragraph [0017]).
Regarding claim 38, Spurling further discloses that the data capable of being held in the memory further includes data defining a breathing exercise (paragraph [0016], the target profile which can vary over time), wherein the audible indicator is arranged to operate if the user's breath flow rate is detected as being higher or lower than an expected breath flow rate (paragraphs [0017], [0065]).
Regarding claim 39, Spurling further discloses that the breathflow guiding equipment includes a vibrational indicator (paragraph [0017]).
Regarding claim 40, Spurling further discloses that the data capable of being held in the memory further includes data defining a breathing exercise (paragraph [0016], the target profile which can vary over time), wherein the vibrational indicator is arranged to operate if the user's breath flow rate is detected as being higher or lower than an expected breath flow rate (paragraphs [0017], [0065]).
Regarding claim 41, Spurling further discloses that the memory unit is located within the device (paragraphs [0043]-[0045]).
Regarding claim 42, Spurling further discloses that the memory unit is remote from the device (paragraph [0017], [0035], [0065], the control unit is capable of communicating with a memory device in any of these).
Claim Rejections - 35 USC § 103
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) 28 and 31 is/are rejected under 35 U.S.C. 103 as being unpatentable over Spurling in view of Al-Ali (US 2007/0277823).
Regarding claim 28, Spurling does not disclose the breath guide device further comprising two nasal conduits with a valve in each; Al-Ali teaches a breath guide device comprising an airway (paragraph [0008]), a nasal piece comprising two nasal conduits for engagement with a user's nostrils (paragraph [0038]), breathflow guiding equipment including an electronically operated valve in each of the two nasal conduits for regulating the flow of breath through the airway (paragraph [0038]), and a breathflow measurement unit arranged to measure a breath flow rate of the user (paragraph [0036]). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to have made the device of Spurling including a nasal piece with two nasal conduits with a valve in each, as taught by Al-Ali, as both noses and mouths are used for respiration and it would be obvious to simply substituted one respiration interface for an equivalent to achieve the predictable result of controlling the user’s respiration.
Regarding claim 31, Spurling further the control unit is arranged to close a valve of the device if the user's breath flow rate is detected as being higher than a preset breath rate (paragraphs [0016], [0028]); Spurling does not disclose the valve being one of two valves, where the device includes a nasal piece comprising two nasal conduits for engagement with the user's nostrils and wherein the breathflow guiding equipment includes an electronically operated valve in each of the two nasal conduits for regulating the flow of breath through the airway. Al-Ali teaches a breath guide device comprising an airway (paragraph [0008]), a nasal piece comprising two nasal conduits for engagement with a user's nostrils (paragraph [0038]), breathflow guiding equipment including an electronically operated valve in each of the two nasal conduits for regulating the flow of breath through the airway (paragraph [0038]), and a breathflow measurement unit arranged to measure a breath flow rate of the user (paragraph [0036]). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to have made the device of Spurling including a nasal piece with two nasal conduits with a valve in each, as taught by Al-Ali, as both noses and mouths are used for respiration and it would be obvious to simply substituted one respiration interface for an equivalent to achieve the predictable result of controlling the user’s respiration.
Claim(s) 32 and 34 is/are rejected under 35 U.S.C. 103 as being unpatentable over Spurling in view of Shetty (US 2017/0270260).
Spurling does not disclose the breathflow measurement unit including one or more IR sensors and one or more turbine sensors for measuring breath flow; Shetty teaches a breathflow measurement unit (abstract) which includes one or more IR sensors and one or more turbine sensors for measuring a flow rate of an airflow (paragraph [0081]). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to have made the device of Spurling with one or more IR sensors and one or more turbine sensors, as taught by Shetty, as it would merely require the simple substitution of one known flow rate sensor for an equivalent with the reasonable expectation of success as both sensors are known in the art.
Claim(s) 33 is/are rejected under 35 U.S.C. 103 as being unpatentable over Spurling in view of Hoffberg (US 2006/0155398).
Spurling does not disclose the breathflow measurement unit including one or more LiDAR sensors for measuring breath flow; Hoffberg teaches a breathflow measurement unit (paragraph [1233]) which includes one or more LiDAR sensors for measuring a flow rate of an airflow (paragraph [1220]). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to have made the device of Spurling with one or more LiDAR sensors, as taught by Hoffberg, as it would merely require the simple substitution of one known flow rate sensor for an equivalent with the reasonable expectation of success as both sensors are known in the art.
Claim(s) 37 is/are rejected under 35 U.S.C. 103 as being unpatentable over Spurling in view of Friedman (US 2005/0177057).
Spurling does not disclose that the the audible indicator is capable of reproducing pre-recorded spoken words. Friedman teaches a breath guide device (paragraph [0011]) which comprises an audible indicator as part of its guiding equipment (paragraph [0027]), where the audible indicator is capable of reproducing pre-recorded spoken words (paragraphs [0030]-[0031]; claim 8). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to have made the device of Spurling with the audible indicator capable of reproducing pre-recorded spoken words, as taught by Friedman, in order to avoid ambiguity in interpreting feedback.
Conclusion
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/KAREN E TOTH/ Examiner, Art Unit 3791