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 .
Claim Objections
Claims 1 and 8 are objected to because of the following informalities:
Claim 1 recites “an attachment preventing portion configured as a columnar body protrudes”; this verb tense does not match the other verb tenses in the claim, which define how the device is configured rather than presenting active descriptions of the device. The same issue is found in claim 8.
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 1, 2, 5-9 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 1 defines the attachment preventing portion as being a columnar body which protrudes “from at least one of a first surface and a second surface of the respiratory gas sensor opposite to the first surface”. It is unclear how this is possible for the single columnar body to possibly protrude outward from two opposite surfaces of the device. Clarification is required.
Claim 1 now defines the airway adaptor as including “a sensor attachment portion”; claim 5 also defines “a sensor attachment portion”. It is unclear if this is an additional attachment portion or the same attachment portion.
Claim 5 further defines that the tube portion includes a first tube portion and a second tube portion with the sensor attachment portion being between the first tube portion and the second tube portion; claim 1 defines a flange portion disposed between the tube portion and the sensor attachment portion. It is entirely unclear how this is possible.
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Claim 1 requires the tube to be separated from the attachment portion by the flange but claim 5 requires the tube to be located on both sides of the attachment portion. Even if a flange were inserted between one of the first or second tube and the attachment portion, it still would not satisfy “the tube” as being only on one side of the flange. It does not appear possible to construct a device which satisfies all of the limitations of claim 5 and claim 1 from which it depends.
Claim 8 defines that the claimed invention is a respiratory gas sensor which is “attachable to a compatible airway adaptor” but does not positively recite the airway adaptor as being part of the claimed invention; claim 8 further presents limitations directed to the airway adaptor despite it not being part of the claimed invention, functionally reciting it without positively reciting it. It is unclear if the intent is to positively recite the airway adaptor as being part of the claimed gas sensor; if not, it is not possible to limit the features of something which is not part of the claimed invention. Further, by apparently reciting features of both the gas sensor and airway adaptor, claim 8 appears to substantially duplicate claim 1, differing only in the preamble and definition of the tube portion which is only tangentially recited in claim 8. Clarification is required.
Claim 9 recites “unattachable to the incompatible airway adaptor”; there is insufficient antecedent basis for this limitation in the claim after this limitation was removed from claim 8. Correction is required.
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) 1, 2, 8, 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yamamori (US 5957127) in view of Takatori (JP 2019-174152, as cited by Applicant; citations are to the foreign reference in the file of the instant invention as submitted with the IDS dated 15 February 2023).
Regarding claim 1, Yamamori discloses a sensor attachment system comprising:
a respiratory gas sensor configured to detect a state of respiratory gas of a subject (element 2); and
a compatible airway adaptor compatible with the respiratory gas sensor (element 1),
wherein the respiratory gas sensor includes
a respiratory gas detector configured to detect the state of the respiratory gas of the subject (column 1, lines 21-65; column 6, lines 27-32), and
a sensor-side engagement portion engageable with the compatible airway adaptor (the surface of section 1c, see figure 11), and
an attachment preventing portion configured as a columnar body configured to protrude, in an “engagement direction” toward the compatible airway adapter, from at least one of a first surface and a second surface of the respiratory gas sensor opposite to the first surface (element 42; see figure 11; “having a tall or long, narrow shape, like a column” https://dictionary.cambridge.org/dictionary/english/columnar);
wherein the compatible airway adaptor includes
a tube portion having a respiratory gas ventilation passage through which the respiratory gas passes (column 1, lines 21-65; column 6, lines 27-32), and
an adapter-side engagement portion engageable with the sensor-side engagement portion (the surface of section 2e, see figure 11), and
a flange portion disposed between the tube portion and the sensor attachment portion and an accommodation portion configured to accommodate the attachment preventing portion to prevent the interference with the attachment preventing portion where the accommodation portion is configured as a cutout portion provided in the flange portion (elements 41, 41a – see figure 11);
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wherein the respiratory gas sensor is attachable to the compatible airway adaptor in a state in which the compatible airway adaptor and the attachment preventing portion do not interfere with each other (figure 11).
Yamamori does not disclose the system further comprising
wherein the compatible airway adaptor further includes a sensor attachment portion configured to determine the position of the respiratory gas sensor relative to the compatible airway adaptor.
Takatori teaches a sensor attachment system comprising a respiratory gas sensor configured to detect a state of a respiratory gas of a subject (element 40) and a compatible airway adaptor compatible with the respiratory gas sensor (element 10),
wherein the compatible airway adaptor includes a sensor attachment portion configured to determine the position of the respiratory gas sensor relative to the compatible airway adaptor (element 25; the Examiner notes that “to determine” is being interpreted as “to control” as the only disclosed attachment portion does not actively perform any sensing, processing, or other sort of computation that could be considered “determining”).
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It would have been obvious to one of ordinary skill in the art at the time the invention was filed to have made the system of Yamamori and included an attachment portion to the airway adaptor, as taught by Takatori, in order to ensure secure connection between the components.
Regarding claim 2, Yamamori further discloses
wherein the attachment preventing portion is configured to cause the respiratory gas sensor to be unattachable to an incompatible airway adaptor (elements 42),
wherein the respiratory gas sensor is not attachable to the incompatible airway adaptor in a state in which the incompatible airway adaptor and the attachment preventing portion interfere with each other (an adaptor having a different configuration of the tube structure on either side of sensor attachment area would not be compatible with the protrusions 42).
Regarding claim 8, Yamamori discloses a respiratory gas sensor (element 2),
wherein the respiratory gas sensor is configured to detect a state of respiratory gas of a subject and is attachable to a compatible airway adaptor compatible with the respiratory gas sensor (column 1, lines 21-65; column 6, lines 27-32), the respiratory gas sensor comprising:
a respiratory gas detector configured to detect the state of the respiratory gas of the subject (column 1, lines 21-65),
a sensor-side engagement portion engageable with the compatible airway adaptor (the surface of section 1c, see figure 11), and
an attachment preventing portion configured as a columnar body configured to protrude, in an “engagement direction” toward the compatible airway adapter, from at least one of a first surface and a second surface of the respiratory gas sensor opposite to the first surface (element 42; see figure 11; “having a tall or long, narrow shape, like a column” https://dictionary.cambridge.org/dictionary/english/columnar);
the compatible airway adaptor includes
a flange portion disposed between a tube portion and the sensor attachment portion and an accommodation portion configured to accommodate the attachment preventing portion to prevent the interference with the attachment preventing portion where the accommodation portion is configured as a cutout portion provided in the flange portion (elements 41, 41a – see figure 11);
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wherein the respiratory gas sensor is attachable to the compatible airway adaptor in a state in which the compatible airway adaptor and the attachment preventing portion do not interfere with each other (figure 11).
Yamamori does not disclose the system further comprising
wherein the compatible airway adaptor further includes a sensor attachment portion configured to determine the position of the respiratory gas sensor relative to the compatible airway adaptor.
Takatori teaches a sensor attachment system comprising a respiratory gas sensor configured to detect a state of a respiratory gas of a subject (element 40) and a compatible airway adaptor compatible with the respiratory gas sensor (element 10),
wherein the compatible airway adaptor includes a sensor attachment portion configured to determine the position of the respiratory gas sensor relative to the compatible airway adaptor (element 25; the Examiner notes that “to determine” is being interpreted as “to control” as the only disclosed attachment portion does not actively perform any sensing, processing, or other sort of computation that could be considered “determining”).
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It would have been obvious to one of ordinary skill in the art at the time the invention was filed to have made the system of Yamamori and included an attachment portion to the airway adaptor, as taught by Takatori, in order to ensure secure connection between the components.
Regarding claim 9, Yamamori further discloses
wherein the attachment preventing portion is configured to cause the respiratory gas sensor to be unattachable to an incompatible airway adaptor (elements 42),
wherein the respiratory gas sensor is not attachable to the incompatible airway adaptor in a state in which the incompatible airway adaptor and the attachment preventing portion interfere with each other (an adaptor having a different configuration of the tube structure on either side of sensor attachment area would not be compatible with the protrusions 42).
Response to Arguments
Applicant's arguments filed 26 January 2026 have been fully considered but they are not persuasive.
Applicant first argues that the references do not cite an attachment preventing portion, a flange portion, or an accommodation portion; this is not the case, as set forth above. Applicant asserts that element 42 of Yamamori is not “an attachment preventing portion” because it is not disclosed as being configured to prevent attachment between the device and an “incompatible airway adaptor” because “the Office action does not identify “an incompatible airway adaptor”. It should be noted that an incompatible airway adaptor is not positively recited as being a part of the claimed invention; further, prevention of attachment of some theoretical device is merely a recitation of the intended use of the claimed invention which 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. As this theoretical “incompatible” adaptor has not been identified or described in any way as having any particular features that might allow it to be “compatible” with Yamamori’s device, the presence of a feature which has the same defined structure, that being a protruding columnar body, is thus capable of “preventing attachment” absent any more specific structural features that would differ from Yamamori’s protruding columnar body or any specific structural features of the theoretical incompatible adaptor that is not part of the claimed invention.
Applicant next argues that Yamamori does not disclose the newly presented feature of a flange with the accommodation portion being newly defined as a negative space in the flange; as Yamamori does disclose this, see above, this argument is moot.
Applicant then argues that the modification of Yamamori to include a sensor attachment portion as taught by Takatori “does not propose any structural configuration of the two references” – Applicant’s attention is drawn to the annotated figure in the previous Office Action and again above (differing only in the identification of tube/2nd tube) showing the structural configuration of the two references and the corresponding structural features, in particular the dotted line showing where the attachment portion of Takatori would thus be located on the device of Yamamori, resulting in the accommodation portion, which is part of the flange, being located between the tube and the attachment portion. This argument is entirely unpersuasive.
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Applicant continues by asserting that the feature 42 of Yamamori, herein the attachment preventing portion, being retained by the opening in element 41 (herein the accommodation portion of the flange), somehow does not show the accommodation portion accommodating the attachment preventing portion; as this is exactly how these features fit together, this argument is entirely unpersuasive.
The claims remain rejected.
Conclusion
No art has been applied against claim s 5-7; however, as they are all rejected under 112b above they are not presently allowable and the question of prior art will be revisited when the scope of the claims has been resolved.
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.
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/KAREN E TOTH/ Examiner, Art Unit 3791