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
Claims 40-49 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 4/16/2026. The examiner notes that claim 46 is listed as “previously presented” as opposed to “withdrawn”, however claim 46 is also withdrawn as per the remarks filed 4/16/2026.
Claim Objections
The claims are objected to because of the following informalities:
Claim 30 recites “the air” and “the first location” in line 5. This should read “air” and “a first location”.
Claim 32, line 1 recites “compensating for the flow rate”. This should read “the compensating for the determined flow rate”.
Claim 32, line 2 recites “the Reynold’s number of the flow of air”. This should read “a Reynold’s number of the flow of the air”.
Claim 34, line 2 recites “of air”. This should read “of the air”.
Appropriate correction is required.
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 30-39 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.
The preamble of claim 30 recites a method, but it is unclear based on the claim language in the body of the claim what the method steps are as there is no transitional phrase.
Claims 31-39 are rejected due to their dependency on claim 30.
Claim 35 recites “a pressure of the air at a first location”. It is unclear if this is an additional first location or if it is the same first location recited in claim 30.
Claim 39 depends from claim 30 and lacks antecedent basis for “the steps of deriving and displaying the first and second functions” and “the steps of deriving, displaying and comparing the pressure”. As such, the claim is unclear and the examiner has not rejected the claim. The examiner reserves the right to reject claim 39 with prior art once these issues are addressed.
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 (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 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 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) 30-31 is/are rejected under 35 U.S.C. 103 as being unpatentable over Augusto (FR 3009788 A1) (translation previously provided on 1/09/2026) in view of Matthews et al. (US 2003/0111079 A1)
Regarding claim 30, Augusto teaches: A method for monitoring a system (figure 2a, 2b) for injecting air into a patient, wherein the system includes a source of air (12), a cannula (20) for insertion into nostrils of the patient (see figures 2a, 2b), a first conduit (22) interconnecting the source and the device (1) (see figures 2a, 2b), and a second conduit (21) interconnecting the device (1) and the cannula (20) (see figures 2a, 2b), wherein a pressure in the cannula is derived from a pressure of the air measured at the first location between the source and the cannula (abstract and claim 1; see also claim 1 and figure 2a which shows where 1 is located (between the cannula and the source 12; within 1 is pressure sensor 2)).
Augusto does not explicitly disclose the method for injecting heating air into a patient, wherein the system includes a device for heating the air.
However, Matthews teaches it is known to inject heated air [0058] into a patient through a nasal cannula [0059], wherein the system includes a device for heating the air (a heater as per [0058]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Augusto such that the method includes injecting heating air into a patient, wherein the system includes a device for heating the air as taught by Matthews for the benefit of providing the patient air that is comfortable to breathe.
Regarding claim 31, Augusto further discloses wherein a flow rate of the air in the system is determined and wherein the pressure in the cannula is derived from the measured pressure at the first location by compensating for the determined flow rate (page 3, paragraph 2 and claim 2).
Claim(s) 32 is/are rejected under 35 U.S.C. 103 as being unpatentable over Augusto (FR 3009788 A1) in view of Matthews et al. (US 2003/0111079 A1) in further view of de Silva et al. (US 2003/0106554 A1).
Regarding claim 32, Augusto discloses the claimed invention substantially as claimed as set forth for claim 30 above. Augusto does not explicitly disclose wherein compensating for the flow rate includes scaling the flow rate by a function of the Reynolds number of the flow of air through the system, and optionally: wherein the Reynolds number is derived from a pressure differential between the measured pressure at the first location and a measured pressure at a second location upstream of the first location, and wherein a flow restriction is arranged between the first and second locations.
However, Silva teaches a gas delivery system (abstract) and further teaches that it is known to compensate the flow rate by scaling the flow rate by a function of the Reynolds number of the flow of air through the system [0055]-[0057].
Therefore, it would have been obvious to have modified Augusto such that compensating for the flow rate includes scaling the flow rate by a function of the Reynolds number of the flow of air through the system as taught by Silva for the benefit of correcting flow if flow is not isentropic [0055].
Claim(s) 33-34 is/are rejected under 35 U.S.C. 103 as being unpatentable over Augusto (FR 3009788 A1) in view of Matthews et al. (US 2003/0111079 A1) in further view of Duff et al. (US 2011/0197884 A1).
Regarding claims 33-34, Augusto discloses the claimed invention substantially as claimed as set forth for claim 30 above. Augusto further discloses a display (10; page 5, paragraph 2 starting with “The supply”) but does not explicitly disclose wherein at least one of:
- the derived pressure in the cannula is displayed;
- the derived pressure in the cannula is compared to a target pressure to define an error signal and a warning signal is generated when the error signal exceeds a predetermined threshold, wherein the error signal is used to adjust the flow of air through the system; and
- the derived pressure in the cannula is compared to ambient pressure and a warning signal is generated when the derived pressure in the cannula is below ambient pressure.
Duff teaches it is known for a respiratory device (abstract) display (302) to display pressure [0042].
Therefore it would have been obvious to have modified Augusto wherein the display of Augusto displays the derived pressure for the benefit of providing the user information about their respiratory therapy session.
Allowable Subject Matter
Claim 35-38 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.
Regarding claim 35, Augusto discloses - continuously or periodically measuring a pressure of the air at a first location between the source and the cannula (page 5, last paragraph - page 6, first paragraph), - determining a flow rate of the air in the system (page 5, last paragraph - page 6, first paragraph), but fails to disclose:
- deriving a first function representative of a respiratory flow rate of the patient from the measured pressure and the system air flow rate,
- deriving a second function representative of a respiratory volume of the patient from the measured pressure and the system air flow rate, and
- displaying the first and second functions and/or a variable derived therefrom as claimed.
Conclusion
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/VICTORIA MURPHY/Primary Patent Examiner, Art Unit 3785
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