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 .
Drawings
The drawings are objected to under 37CFR 1.84(b)(1). Black and white photographs are not ordinarily permitted in utility applications if the photograph may be illustrated as a line drawing.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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 1-6 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.
The term “shorter side walls” in claims 1 and 6 renders the claim indefinite since “shorter” implies it is shorter relative to another structure but it is unclear what the structure is. For examination purposes it will be assumed that the second component has side walls that extend from top to bottom.
Claims 2-5 are rejected based on their dependency to claim 1.
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.
Claims 1, 2, and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Gruenfelder et al (US Pat. No. 7,594,426), hereinafter Gruenfelder in view of Pinciaro (US Pat. No. 6,641,177), hereinafter Pinciaro.
Regarding claim 1, Gruenfelder teaches a connector (Fig. 1: 2 piece connector 10, 12) comprising:
a first outer component having a longitudinal axis (Fig. 3(b): outer component 12 having longitudinal axis), a first end (See below), a second end (See below), a length (Fig. 3(b): overall length of component 12) and side walls extending between said first end and said second end (See below), said side walls having an inside surface and an outside surface (Fig. 3b: side walls have an inside and outside surface), wherein:
the first end of the first component comprises an end wall that has an opening therein (Fig. 3b: see annotated figure below), and
the second end of the first component is a least partially open (Fig. 3B: second end is open)
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and
a second inner component sized and configured for fitting into the second end of the first component (Fig. 3a, Col. 2: lines 40-50, inner component 10), said second component having a top end (see below), a bottom end (See below), and comprising a top surface with a central opening therein (see below), and shorter side walls extending between said top end and said bottom end (See figure below), said shorter side walls having an inside surface and an outside surface (Fig. 3a: side walls have an inside and an outside), wherein the shorter side walls terminate at said bottom end (See below).
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Gruenfelder does not teach the inside surface of the side walls of the first component has a shelf thereon adjacent the second end and the shorter side walls of the second component are sized and configured for resting on the shelf adjacent the second end of the first component.
However, Pinciaro teaches a tube connector which has a shelf adjacent an end (Fig. 2, Fig. 3: 38) wherein side walls of a second component are sized and configured for resting on the shelf adjacent the end of the first component. (See Fig. 2: features 25 and 27 of a second component are sized to rest on shelf 38)
It would have been obvious to a person of ordinary skill in the art to have modified Gruenfelder to have a shelf adjacent an end wherein side walls of a second component are sized and configured for resting on the shelf as taught by Pinciaro in order to provide secure retention of the inner component within the outer component. (Col. 4: lines 15-25)
Regarding claim 2, Gruenfelder in view of Pinciaro teaches the connector of claim 1, but does not teach wherein the opening in the end wall of the first component is in the shape of a sector of a circle.
However, the courts have held that mere changes of shape was a matter of design choice which a person of ordinary skill in the art would have found obvious absent persuasive evidence that the particular configuration was significant. In the instant application, the opening is described as being any suitable configuration such as the shape of a sector of a circle and therefore the shape is not considered critical. (Paragraph 39 of the instant application)
Therefore, it would have been obvious to a person or ordinary skill in the art prior to the filing date of the invention to have modified the opening Gruenfelder in view of Pinciaro to have a shape of a sector of a circle as claimed.
Regarding claim 5, Gruenfelder in view of Pinciaro teaches the connector of claim 1, and Pinciaro teaches wherein the shelf adjacent the second end of the first component has a beveled edge that is widest near the top of the shelf that narrows to provide a wider opening at the second end of the first component. (See fig. 2: Tip 23 of component 12 is beveled and widest at the end, tapering to a narrow portion)
Allowable Subject Matter
Claims 3 and 4 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Claim 6 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
Regarding claims 3 and 4, the prior art does not teach wherein the side walls of the first component have a pair of opposing longitudinally oriented openings therein and there is no motivation to modify the side walls to include the opposing longitudinally oriented openings as claimed.
Regarding claim 6, the prior art does not teach a method of temporarily fastening as drinking to tube to a fit test connector as claimed. Specifically, the prior art does not teach placing the first component over the cap portion of the drinking tube that is attached to the fit test adapter so that the end wall of the first component fits against the cap portion of the drinking tube and the drinking tube extends outward from the opening in the end wall, and the second end of the first component extends toward the opposing end of the fit test adapter; and placing the second component over the opposing end of the fit test adapter and inserting the top end of the second component into the second end of the first component until the ends of the shorter side walls of the second component rests on the shelf of the inside surface of the first component.
Conclusion
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