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
The claims are objected to because of the following informalities:
Claim 1 refers to “the housing” in lines 7 and 9. This should read “the diffuser housing”.
Claim 10 recites “the housing of the patient interface”. This should read “the body of the patient interface”.
Claim 11 switches from using the term “flow of treatment gas” in lines 1-6, to using “the flow of breathing gas” in the remainder of the claim. Consistent claim terminology is recommended.
Claim 15 recites “the housing of the patient interface”. This should read “the body of the patient interface”.
Appropriate correction is required.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of copending Application No. 18/208234 in view of Short (WO 2022/073075 A1).
Regarding claim 1, claim 1 of ‘234 discloses all of the claimed limitation except wherein the diffuser inlet and the diffuser outlet are coaxially aligned. Short teaches wherein the diffuser inlet and the diffuser outlet are coaxially aligned (the array of inlets 3405 and the array of outlets 3402 each have an axis that is coaxially aligned with each other). It would have been obvious to have modified claim 1 of ‘234 to include wherein the diffuser inlet and the diffuser outlet are coaxially aligned in order to have a route in which gases can ultimately exit to the atmosphere.
Regarding claim 2, claim 2 of ‘234 discloses all of the claimed limitations.
Regarding claim 3, claim 3 of ‘234 discloses all of the claimed limitations.
Regarding claim 4, claim 4 of ‘234 discloses all of the claimed limitations.
Regarding claim 5, claim 5 of ‘234 discloses all of the claimed limitations.
Regarding claim 6, claim 6 of ‘234 discloses all of the claimed limitation except wherein the diffuser inlet and the diffuser outlet are coaxially aligned. Short teaches wherein the diffuser inlet and the diffuser outlet are coaxially aligned (the array of inlets 3405 and the array of outlets 3402 each have an axis that is coaxially aligned with each other). It would have been obvious to have modified claim 1 of ‘234 to include wherein the diffuser inlet and the diffuser outlet are coaxially aligned in order to have a route in which gases can ultimately exit to the atmosphere.
Regarding claim 7, claim 7 of ‘234 discloses all of the claimed limitations.
Regarding claim 8, claim 8 of ‘234 discloses all of the claimed limitations.
Regarding claim 9, claim 9 of ‘234 discloses all of the claimed limitations.
Regarding claim 10, claim 10 of ‘234 discloses all of the claimed limitations.
Regarding claim 11, claim 11 of ‘234 discloses all of the claimed limitation except wherein the diffuser inlet and the diffuser outlet are coaxially aligned. Short teaches wherein the diffuser inlet and the diffuser outlet are coaxially aligned (the array of inlets 3405 and the array of outlets 3402 each have an axis that is coaxially aligned with each other). It would have been obvious to have modified claim 1 of ‘234 to include wherein the diffuser inlet and the diffuser outlet are coaxially aligned in order to have a route in which gases can ultimately exit to the atmosphere.
Regarding claim 12, claim 12 of ‘234 discloses all of the claimed limitations.
Regarding claim 13, claim 13 of ‘234 discloses all of the claimed limitations.
Regarding claim 14, claim 14 of ‘234 discloses all of the claimed limitations.
Regarding claim 15, claim 15 of ‘234 discloses all of the claimed limitations.
This is a provisional nonstatutory double patenting rejection.
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, 6, 8-9, 11 and 13-14 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Short (WO 2022/073075 A1).
Regarding claim 1, Short discloses:
An exhaust diffuser arrangement (figure 57; 3400) for exhausting gases from a main cavity (within 3200, see for example figure 54) of a patient interface used in providing a flow of a breathing gas to the airway of a patient [0018], the exhaust diffuser arrangement comprising:
a diffuser housing (3403 + 3401);
a diffuser cavity (see cavity within 3403) defined within the diffuser housing, the diffuser cavity being sized and configured to house a diffuser element (3404) therein (see figure 54);
a diffuser inlet (3405) defined in the housing, the diffuser inlet structured to communicate gases from the main cavity to the diffuser cavity [0278]; and
a diffuser outlet (3402) defined in the housing (see figure 54), the diffuser outlet structured to communicate gases from the diffuser cavity to an exterior environment to the patient interface [0278], wherein the diffuser inlet and the diffuser outlet are coaxially aligned (the array of inlets 3405 and the array of outlets 3402 each have an axis that is coaxially aligned with each other).
Regarding claim 2, Short further discloses a number of protrusions (3406) extending into the diffuser cavity from the diffuser housing (see figure 54), wherein each protrusion of the number of protrusions is structured to space the diffuser element from a corresponding portion of the diffuser housing [0280] to form a non-linear pathway between the diffuser element and the diffuser housing that extends from the diffuser inlet to the diffuser outlet (see figure 54, a non-linear pathway exists between 3405 to 3405 between 3404 and the diffuser housing).
Regarding claim 3, Short further discloses a number of ribs extending into the diffuser cavity from the diffuser housing (see annotated figure below), wherein each rib of the number of ribs is structured to space the diffuser element from a corresponding portion of the diffuser housing (as shown in figure 57) to form a non-linear pathway between the diffuser element and the diffuser housing that extends from the diffuser inlet to the diffuser outlet (see figure 54, a non-linear pathway exists between 3405 to 3405 between 3404 and the diffuser housing).
PNG
media_image1.png
344
388
media_image1.png
Greyscale
Regarding claim 4, Short further discloses the diffuser element captively positioned within the diffuser cavity (see figure 54).
Regarding claim 6, Short discloses:
A patient interface (figure 51) for use in providing a flow of a breathing gas to the airway of a patient [0018], the patient interface comprising:
a sealing arrangement (3100) structured to sealingly engage about an airway of the patient;
a body (body of 3200);
a main cavity (cavity within 3200) defined within the body, the main cavity being structured to receive the flow of breathing gas (via 3202 [0290]);
a patient aperture (3850) surrounded by the sealing arrangement (see for example figure 49), the patient aperture structured to convey the flow of breathing gas from the main cavity to the airway of the patient [0290]; and
an exhaust diffuser arrangement (figure 57; 3400) comprising:
a diffuser housing (3403 + 3401);
a diffuser cavity (see cavity within 3403) defined within the diffuser housing,
a diffuser element (3404) captively positioned within the diffuser cavity (see figure 54)
a diffuser inlet (3405) defined in the housing, the diffuser inlet structured to communicate gases from the main cavity to the diffuser cavity [0278]; and
a diffuser outlet (3402) defined in the diffuser housing (see figure 54), the diffuser outlet structured to communicate gases from the diffuser cavity to an exterior environment to the patient interface [0278], wherein the diffuser inlet and the diffuser outlet are coaxially aligned (the array of inlets 3405 and the array of outlets 3402 each have an axis that is coaxially aligned with each other).
Regarding claim 8, Short further discloses a number of protrusions (3406) extending into the diffuser cavity from the diffuser housing (see figure 54), wherein each protrusion of the number of protrusions spaces the diffuser element from a corresponding portion of the diffuser housing [0280] to form a non-linear pathway between the diffuser element and the diffuser housing that extends from the diffuser inlet to the diffuser outlet (see figure 54, a non-linear pathway exists between 3405 to 3405 between 3404 and the diffuser housing).
Regarding claim 9, Short further discloses a number of ribs extending into the diffuser cavity from the diffuser housing (see annotated figure below), wherein each rib of the number of ribs spaces the diffuser element from a corresponding portion of the diffuser housing (as shown in figure 57) to form a non-linear pathway between the diffuser element and the diffuser housing that extends from the diffuser inlet to the diffuser outlet (see figure 54, a non-linear pathway exists between 3405 to 3405 between 3404 and the diffuser housing).
PNG
media_image1.png
344
388
media_image1.png
Greyscale
Regarding claim 11, Short discloses:
An arrangement for providing a flow of treatment gas to the airway of a patient (figure 47), the arrangement comprising:
a tubing assembly (3600, 3350, 3363, 3362) comprising a manifold portion (where 3600 connects to 3362) and a number of tubular portions (left and right portions comprised of 3362 3350 3363), each tubular portion extending from the manifold portion to a distal end (so 3100 as shown in figure 47), the manifold portion being structured to receive the flow of treatment gas [0252] and each tubular portion being structured to convey the flow of treatment gas from the manifold portion to the distal end thereof [0252]; and
a patient interface (3100) coupled to the distal end of each tubular portion (see figure 47), the patient interface comprising:
a sealing arrangement (3100) structured to sealingly engage about an airway of the patient;
a body (body of 3200);
a main cavity (cavity within 3200) defined within the body, the main cavity being structured to receive the flow of breathing gas from the distal end of each tubular portion (via 3202 [0290]);
a patient aperture (3850) surrounded by the sealing arrangement (see for example figure 49), the patient aperture structured to convey the flow of breathing gas from the main cavity to the airway of the patient [0290]; and
an exhaust diffuser arrangement (figure 57; 3400) comprising:
a diffuser housing (3403 + 3401);
a diffuser cavity (see cavity within 3403) defined within the diffuser housing,
a diffuser element (3404) captively positioned within the diffuser cavity (see figure 54)
a diffuser inlet (3405) defined in the housing, the diffuser inlet structured to communicate gases from the main cavity to the diffuser cavity [0278]; and
a diffuser outlet (3402) defined in the diffuser housing (see figure 54), the diffuser outlet structured to communicate gases from the diffuser cavity to an exterior environment to the patient interface [0278], wherein the diffuser inlet and the diffuser outlet are coaxially aligned (the array of inlets 3405 and the array of outlets 3402 each have an axis that is coaxially aligned with each other).
Regarding claim 13, Short further discloses a number of protrusions (3406) extending into the diffuser cavity from the diffuser housing (see figure 54), wherein each protrusion of the number of protrusions spaces the diffuser element from a corresponding portion of the diffuser housing [0280] to form a non-linear pathway between the diffuser element and the diffuser housing that extends from the diffuser inlet to the diffuser outlet (see figure 54, a non-linear pathway exists between 3405 to 3405 between 3404 and the diffuser housing).
Regarding claim 14, Short further discloses a number of ribs extending into the diffuser cavity from the diffuser housing (see annotated figure below), wherein each rib of the number of ribs spaces the diffuser element from a corresponding portion of the diffuser housing (as shown in figure 57) to form a non-linear pathway between the diffuser element and the diffuser housing that extends from the diffuser inlet to the diffuser outlet (see figure 54, a non-linear pathway exists between 3405 to 3405 between 3404 and the diffuser housing).
PNG
media_image1.png
344
388
media_image1.png
Greyscale
Claim(s) 6 and 10 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Drew et al. (US 6,581,594 B1)
Regarding claim 6, Drew discloses:
A patient interface (figure 3) for use in providing a flow of a breathing gas to the airway of a patient (col. 2, lines 65-67), the patient interface comprising:
a sealing arrangement (64) structured to sealingly engage about an airway of the patient;
a body (12);
a main cavity (cavity within 12) defined within the body, the main cavity being structured to receive the flow of breathing gas (via 62);
a patient aperture (aperture defined by 64) surrounded by the sealing arrangement (see for example figure 3), the patient aperture structured to convey the flow of breathing gas from the main cavity to the airway of the patient (col. 5, lines 7-9); and
an exhaust diffuser arrangement (110) comprising:
a diffuser housing (112+116);
a diffuser cavity (see cavity between 112, 116) defined within the diffuser housing,
a diffuser element (114) captively positioned within the diffuser cavity (see figure 4);
a diffuser inlet (opening within 116) defined in the housing, the diffuser inlet structured to communicate gases from the main cavity to the diffuser cavity (col. 5, lines 15-17); and
a diffuser outlet (opening within 112) defined in the housing (see figure 4), the diffuser outlet structured to communicate gases from the diffuser cavity to an exterior environment to the patient interface (col. 5, lines 15-17), wherein the diffuser inlet and the diffuser outlet are coaxially aligned (see figure 4).
Regarding claim 10, Drew further discloses wherein the diffuser housing is integrally formed with the housing of the patient interface (col. 5, lines 19-22).
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) 5, 7, 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Short (WO 2022/073075 A1) in view of Dantanarayana et al. (2018/0264222 A1)
Regarding claim 5, Short does not explicitly disclose wherein the diffuser element comprises absorbent material.
However, Dantanarayana teaches it is known for diffuser elements (9146) to be sound absorbent materials [0332].
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have incorporated a sound absorbent material in Short for the benefit of enhanced noise reduction.
Regarding claim 7, Short does not explicitly disclose wherein the diffuser element comprises absorbent material.
However, Dantanarayana teaches it is known for diffuser elements (9146) to be sound absorbent materials [0332].
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have incorporated a sound absorbent material in Short for the benefit of enhanced noise reduction.
Regarding claim 12, Short does not explicitly disclose wherein the diffuser element comprises absorbent material.
However, Dantanarayana teaches it is known for diffuser elements (9146) to be sound absorbent materials [0332].
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have incorporated a sound absorbent material in Short for the benefit of enhanced noise reduction.
Claim(s) 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Short (WO 2022/073075 A1) in view of Drew et al. (US 6,581,594 B1).
Regarding claim 15, Short does not explicitly disclose wherein the diffuser housing is integrally formed with the housing of the patient interface.
Drew teaches wherein the diffuser housing (112, 116) is integrally formed with the housing of the patient interface (col. 5, lines 19-22).
Therefore it would have been obvious to one having ordinary skill in the art before the effective filing date to have modified Short such that the diffuser housing is integrally formed with the housing of the patient interface as taught by Drew since the courts have held that making something integral in obvious to one having ordinary skill in the art. In re Larson, 340 F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965)
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VICTORIA MURPHY whose telephone number is (571)270-7362. The examiner can normally be reached M-F 8:00am-4:00pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kendra Carter can be reached at (571) 272-9034. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/VICTORIA MURPHY/Primary Patent Examiner, Art Unit 3785