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 with traverse of Group I, claims 1-17, in the reply filed on 10/14/2025 is acknowledged. The traversal is on the ground(s) that a serious search burden does not exist between the restricted groups as any search would rely on overlapping prior art. This is not found persuasive because the inventions have acquired a separate status in the art due to their recognized divergent subject matter, require searching different electronic resources, and employing different search queries. Thus, an examination burden exists.
The requirement is still deemed proper and is therefore made FINAL.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Response to Amendment
This is an office action in response to Applicant's arguments and remarks filed on 5/22/2026. Claims 1-15 and 18-23 are pending in the application. Claims 18-23 have been withdrawn and claims 1-15 are being examined herein.
Status of Objections and Rejections
The rejection of claims 16-17 are obviated by Applicant's cancellation.
All 35 U.S.C. 112 rejections from the previous office action are withdrawn in view of Applicant's amendment.
All 35 U.S.C. 103 rejections from the previous office action are withdrawn in view of Applicant's arguments.
New grounds of rejection under 35 U.S.C. 102 are necessitated by the amendments.
New grounds of rejection under 35 U.S.C. 103 are necessitated by the amendments.
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) 1-3 and 7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Cheer (BR 112012001540 A2).
Regarding claim 1, Cheer teaches a system for protecting medical personnel and/or a patient from airborne pathogens in a surgical environment [abstract], comprising:
a first electrode (Fig. 8, accelerator ring 31 understood to be an electrode [0038]),
a second electrode configured for attachment to the patient (Fig. 8, electrode 140; configured to be attached to a patient, see Fig. 2); and
a first generator for applying voltage to the electrodes (Fig. 2 and 8, high voltage source 110, [0024]), and
wherein the first and second electrodes have the same polarity when voltage is applied (Fig. 8, voltage source applies positive charge to electrodes 31 and 140).
The Examiner notes the recitation of “configured for attachment to the medical personnel,” fails to patentably distinguish over the prior art because it describes the functional recitation of the apparatus rather than structure (MPEP 2114(II)). A functional recitation of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. See In re Casey, 152 USPQ 235 (CCPA 1967) and In re Otto, 136 USPQ 458,459 (CCPA 1963). Because the electrode of Cheer contains the presently claimed structure and would have the ability to perform the functions recited in the claim (being attached to a medical personnel), it meets the claim as currently recited
Regarding claim 2, the Examiner notes that claim 2 will be given no patentable weight as the inclusion of a material or article worked upon by a structure being claimed does not impart patentability to the claims. See MPEP 2115. For examination purposes, the system as taught by Cheer is understood of being capable of protecting medical personnel and/or a patient from viruses in a surgical environment.
Regarding claim 3, the Examiner notes that claim 3 will be given no patentable weight as the inclusion of a material or article worked upon by a structure being claimed does not impart patentability to the claims. See MPEP 2115. For examination purposes, the system as taught by Cheer is understood of being capable of protecting medical personnel and/or a patient from SARS-CoV-2 in a surgical environment.
Regarding claim 7, Cheer teaches the system of claim 1, wherein the second electrode is configured for attachment at a surgical site on the patient (Fig. 2, electrode 140 understood to be capable of being attached at a surgical site of the patient, see also Fig. 9, [0041]).
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.
Claim(s) 4 is rejected under 35 U.S.C. 103 as being unpatentable over Cheer (BR 112012001540 A2).
Regarding claim 4, Cheer teaches the system of claim 1, wherein the first and second electrodes have a positive polarity when voltage is applied (Fig. 8, voltage source applies positive charge to electrodes 31 and 140) but does not teach wherein the first and second electrodes have a negative polarity when voltage is applied. However, Cheer contemplates possible alterations to the polarity of the electrodes to modify the charge imparted onto the contaminants within the surgical area [0041]. Further, one having ordinary skill would recognize a voltage source of having a finite list of two potential polarities: positive and negative.
Therefore, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to modify the voltage source as taught by Cheer to charge the first and second electrodes with a negative charge instead of a positive charge since a negative polarity was identified from a finite number of polarities capable of yielding a predictable result (charging contaminants with a surgical area with a negative charge) with a reasonable expectation of success. See MPEP 2143 (I)(A).
Claim(s) 13 is rejected under 35 U.S.C. 103 as being unpatentable over Cheer (BR 112012001540 A2) in view of Armour et al. (US 9615884 B2) (referenced but not cited in the previous action
Regarding claim 13, Cheer teaches the system of claim 1 but does not teach wherein the system further comprising a device for emitting UV-C radiation. One having ordinary skill in the art would be concerned with ensuring the air around the surgical site stays sterile, motivating one to turn towards Armour. Armour teaches a system for ensuring sterility of a surgical site (abstract) including a UV-C emitter (Fig. 2, EMR disinfection system 14) configured to disinfect pollutants near the surgical site (col. 28, lns. 25-30).
Armour is considered analogous to the claimed invention since both are drawn to sterilization systems. Therefore, it would have been obvious to one having ordinary skill in the art prior to the effective filing date of the claimed invention to modify the system as taught by Cheer to include UV-C emitter as taught by Armour because Armour teaches the system to disinfect pollutants near the surgical site (col. 28, lns. 25-30) and this involves the combination of elements (the system of Cheer and the EMR disinfection system of Armour) to yield a predictable result with a reasonable expectation of success. See MPEP 2143(I)(A) and 2143(I)(G).
Allowable Subject Matter
Claims 5-6, 8-12, and 14-15 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 5, Cheer neither teaches nor suggests wherein the first electrode is configured for attachment to the at the head of the medical personnel. While the first electrode is understood to be functionally capable of being attached to a medical personnel, attachment to the head specifically is not contemplated nor suggested by the prior art and may interfere with surgical operation due to the wires extending from the voltage source to the electrode crossing over the surgical site.
Regarding claim 6, Cheer neither teaches nor suggests wherein integrating the first electrode into a headband, cap, visor, or collar of the medical personnel. Doing so may interfere with surgical operation due to the wires extending from the voltage source to the electrode crossing over the surgical site.
Regarding claim 8, Cheer neither teaches nor suggests wherein the second electrode is integrated into a surgical drape in the region of the surgical opening. Doing so may interfere with surgical operation due to the wires extending from the voltage source to the electrode crossing over the surgical site.
Regarding claims 9-12, Cheer neither teaches nor suggests an aspirator for aspirating the ionized airborne pathogens and in fact teaches away from vacuum based system due to cost concerns associated with filter replacement [0004]. Further, Cheer neither teaches nor suggests an aspirator being supplied with voltage such that when voltage is applied to it, has a polarity opposite to the polarity of the first and/or second electrodes.
Regarding claims 14-15, Cheer neither teaches nor suggests wherein the system further comprises a filter device, wherein the filter device is a high efficiency particulate air (HEPA) filter and/or ultra low penetrating air (ULPA) filter and in fact teaches away from vacuum based system due to cost concerns associated with filter replacement [0004].
Response to Arguments
In the arguments presented on pages 7-8 of the amendment, filed 5/22/2026, the Applicant argues that one having ordinary skill would not be motivated to modify Kamen to include the plasma sterilizing mask of Du as neither disclosure teaches a coordinated electrostatic configuration between an electrode located on a medical personnel and a patient in a surgical environment, and doing so would constitute impermissible hindsight reasoning with respect to the rejection(s) of claim(s) [blank] under 35 U.S.C. 103.
This argument has been fully considered and is persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of the prior art Cheer (BR 112012001540 B1).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nebyate Seged whose telephone number is (703)756-4611. The examiner can normally be reached M-F 8-5:00 pm (EST).
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/N.S.S./Examiner, Art Unit 1758
/MARIS R KESSEL/Supervisory Patent Examiner, Art Unit 1758
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