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 without traverse of claims 1-4 in the reply filed on 6/24/25 is acknowledged.
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.
Claim(s) 1-4 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by De Jonge et al. (WO 2020/053431 A1 – cited by Applicant), hereinafter De Jonge.
Regarding Claim 1, De Jonge teaches: An apparatus for sampling exhaled breath of a test subject (abstract; element 100; figures 1-2), the apparatus comprising:
a breath intake structure (non rebreather part 110; figure 2);
a first one-way valve allowing passage of breath through said breath intake structure into an upstream portion of a chamber (one-way valve 160);
a sealed vessel containing a volume of liquid and an evacuated portion (sample collection chamber 200 contains liquid 310; figure 3; also contains headspace, i.e. evacuated portion), said sealed vessel selectively coupled with said chamber (figure 1; chamber 200 is coupled with element 100);
a breath introduction passage between said upstream portion of said chamber into said volume of liquid in said sealed vessel (breath introduction passage via element 190);
a breath escape passage between said evacuated portion of said sealed vessel to allow said breath to escape said sealed vessel (figures 1-3; breathe escapes from the headspace of the chamber at element 195).
Regarding Claim 2, De Jonge teaches: The apparatus according to claim 1, the apparatus further comprising:
a downstream portion of said chamber selectively coupled to said breath escape passage (downstream portion of element 120 is connected at element 195).
Regarding Claim 3, De Jonge teaches: The apparatus according to claim 2, the apparatus further comprising a dividing wall between said upstream and said downstream portions of said chamber (wall 170 divides upstream and downstream portions).
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) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over De Jonge in view of Ahmad et al. (US 2017/0119820 A1), hereinafter Ahmad.
Regarding Claim 4, De Jonge teaches: The apparatus according to claim 2. While De Jonge mentions the exhaust to be equipped with one-way slits (page 9 lines 12-13), De Jonge does not explicitly mention the apparatus further comprising a second one-way valve allowing passage of breath from said downstream portion of said chamber out of said apparatus.
Ahmad teaches that a breathing apparatus can have a one-way valve at the exhaust so that air flows out but not back in (paragraph 0219). It would have been obvious to one of ordinary skill in the art, before the effective filing date to have modified the apparatus to include a second one-way valve allowing passage of breath from said downstream portion of said chamber out of said apparatus to ensure that that air flows out but not back in.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAY B SHAH whose telephone number is (571)272-0686. The examiner can normally be reached M-F 8-5.
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JAY SHAH
Primary Examiner
Art Unit 3791
/JAY B SHAH/Primary Examiner, Art Unit 3791