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 .
Response to Arguments
Applicant’s arguments with respect to claim 1 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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.
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.
Claims 1 and 3-7 are rejected under 35 U.S.C. 103 as being unpatentable over Nicholson (US Pat. No. 4,739,987) in view of Rosenthal (US 2008/0023003), hereinafter Rosenthal.
Regarding claim 1, Nicholson teaches a breath regulating device (Fig. 1, Fig. 2), comprising:
a main body (Fig. 1: 20) having a rigid structure (Col. 2: lines 40-44, a T-shaped rigid hollow body 20);
a mouthpiece disposed on at least a portion of the main body to receive air exhaled from a user therein (Fig. 1: 50);
an air exit aperture disposed on at least a portion of the main body to facilitate extraction of the air received by the mouthpiece (Fig. 1: opening 23); and
an air control dial (Fig. 1: 60), comprising:
a movable disc movably disposed on at least a portion of the main body to move in a first rotational direction or a second rotational direction (Col. 3: lines 15-23, planar rotation of end cap 60), and
a plurality of air regulating apertures disposed on at least a portion of the movable disc to control an air flow level through the air exit aperture in response to moving the movable disc (Col. 3: lines 24-32, a plurality of various size holes 61. Thus each of the holes 61 can be brought into and out of alignment with the aperture 21), such that at least one of the plurality of air regulating apertures is disposed over the air exit aperture. (Col. 3: lines 25-30)
Nicholson does not teach wherein the mouthpiece at least partially deforms in response to an application of force thereto.
However, Rosenthal teaches an inhalation device (Abstract) with a mouthpiece (fig. 13: mouthpiece 115)wherein the mouthpiece at least partially deforms in response to an application of force thereto. (Paragraph 81, The mouthpiece 115 includes bite ring 240. Preferably the bite ring is constructed from a flexible material.)
It would have been obvious to a person of ordinary skill in the art prior to the filing date of the invention to have incorporated a deformable (flexible bite ring) into the mouthpiece of Nicholson so that the mouthpiece at least partially deforms to provide cushioning for the user. (paragraph 81)
Regarding claim 3, Nicholson in view of Rosenthal teaches the breath regulating device of claim 1, and Nicholson further teaches wherein each of the plurality of air regulating apertures have a different size with respect to each other. (Col. 3: lines 24-25, various sized holes, Fig. 1: holes 61)
Regarding claim 4, Nicholson in view of Rosenthal teaches the breath regulating aperture of claim 1, Nicholson further teaches comprising:
a dial receiving recess disposed on at least a portion of the main body to receive the movable disc therein. (Fig. 1: opening 23 receives the dial 60)
Regarding claim 5, Nicholson in view of Rosenthal teaches the breath regulating device of claim 1, and Nicholson further teaches comprising:
an air channel disposed within at least a portion of an interior of the main body to connect the mouth piece to the air exit aperture. (Fig. 1: air channel through 30 to hole 21 to opening 23)
Regarding claim 6, Nicholson in view of Rosenthal teaches the breath regulating device of claim 5, and Nicholson further teaches comprising:
an air valve disposed within at least a portion of the air channel to control movement of the air within the air channel. (Fig. 1, 2, diaphragm 70 )
Regarding claim 7, Nicholson in view of Rosenthal teaches the breath regulating device of claim 6, and Nicholson further teaches wherein the air valve allows movement of the air from the mouthpiece to the air exit aperture, and prevents movement of the air from the air exit aperture to the mouthpiece. (Col. 2: lines 10-20, The diaphragm acts as a one way check valve which permits the passage of exhaled air through the third opening…. But prevents the passage of inhaled air)
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Nicholson in view of Rosenthal, and further in view of Benson (US 2014/0251321), hereinafter Benson.
Regarding claim 2, Nicholson in view of Rosenthal teaches the breath regulating device of claim 1, but does not teach wherein the mouthpiece glows to improve visibility in at least one of a dark condition or a low light conditions.
However Benson teaches an inhaler mouthpiece (Abstract, Figs. 1-5) wherein the mouthpiece glows to improve visibility in at least one of a dark condition or a low light conditions. (Paragraph 38, mouthpiece has a portion configured to glow during low or reduced light conditions)
It would have been obvious to a person of ordinary skill in the art prior to the filing date of the invention to have provided Nicholson with a mouthpiece which glows as taught by Benson in order to locate the mouthpiece in the dark. (paragraph 38)
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARGARET M LUARCA whose telephone number is (303)297-4312. The examiner can normally be reached 6:30 am - 3:30 pm MT.
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/MARGARET M LUARCA/Primary Examiner, Art Unit 3785