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 .
Specification
The disclosure is objected to because of the following informalities: On page 1, in paragraph 0001, line 2: The phrase --and issued as U.S. Patent No. 11,865,058 on January 9, 2024,-- should be inserted after the phrase “December 19, 2022,”.
Appropriate correction is required.
Claim Objections
Claims 14, 15, 18 and 19 are objected to because of the following informalities:
1) In claim 14, line 5 and in claim 18, line 5: The term “portions” should be changed to --portion--.
2) In claim 15, line 2 and in claim 19, line 2: The term --second-- should be inserted before the last instance of the term “side”.
3) In claim 15, line 3 and in claim 19, line 3: The phrase --periphery of the-- should be inserted after the last instance of the term “the”.
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); and 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.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 10 of U.S. Patent No. 11,559,451. Although the claims at issue are not identical, they are not patentably distinct from each other because claim 1 is generic to all that is recited in claims 1 and 10 of U.S. Patent No. 11,559,451. In other words, claims 1 and 10 of U.S. Patent No. 11,559,451 fully encompass the subject matter of claim 1 and therefore
anticipate claim 1. Since claim 1 is anticipated by claims 1 and 10 of the patent, it is not patentably distinct from claims 1 and 10. Thus the invention of claims 1 and 10 of the patent is in effect a “species” of the “generic” invention of claim 1. It has been held that the generic invention is anticipated by the species, see In re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993). Since claim 1 is anticipated (fully encompassed) by claims 1 and 10 of the patent, claim 1 is not patentably distinct from claims 1 and 10, regardless of any additional subject matter present in claims 1 and 10.
Claims 1-4, 6 and 8-12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2 and 7 of U.S. Patent No. 11,865,058 in view of U.S. Patent Application Publication No. 2018/0369038 to Bhimavarapu et al. With respect to claims 1-4, 6 and 8-12, claims 1, 2 and 7 of U.S. Patent No. 11,865,058 are considered to disclose all of the limitations recited therein (i.e., the limitations primarily relating to the hanger assembly as recited in dependent claims 8-11) except for one or more of a first therapy and a second therapy provided to a patient via a controller operatively coupled to the user interface; and an indicator light operatively coupled to the controller and disposed beneath an indicator panel of the housing, the indicator light configured to illuminate one or more of a first symbol associated with the first therapy and a second symbol associated with the second therapy; wherein the indicator light is further defined as a first indicator light, the first indicator light being configured to illuminate the first symbol associated with the first therapy in response to the user providing input to operate the fluid supply device to provide the first therapy to the
patient; further comprising a second indicator light operatively coupled to the controller and disposed beneath the indicator panel, the second indicator light being configured to illuminate the second symbol associated with the second therapy in response to the user providing input to operate the fluid supply device to provide the second therapy to the patient; wherein the first symbol associated with the first therapy is further defined as a low air loss symbol and the second symbol associated with the second therapy is further defined as a turn assist symbol; further comprising a third indicator light operatively coupled to the controller and disposed beneath the indicator panel, the third indicator light being configured to illuminate a third symbol associated with a locking function in response to the user providing input to lock operation of the fluid supply device; and wherein the user interface comprises a display operatively coupled to the controller, the controller configured to generate and output on the display the one or more of the first symbol associated with the first therapy and the second symbol associated with the second therapy.
Bhimavarapu et al. ‘038 provides the basic teaching of a fluid source (100) for supplying fluid to a therapy device to provide one or more of a first therapy and a second therapy to a patient (as shown in Figure 2 and as described on page 2, in paragraphs 0018 & 0019), the fluid source comprising: a housing comprising an indicator panel (116) (as shown in Figure 3 and as described on page 4, in paragraph 0037); a fluid supply device disposed within the housing (as described on page 2, in paragraph 0018); a controller (102) operatively coupled to the fluid supply device to control operation of the fluid supply device (as shown in Figure 2 and as described on page 2, in paragraphs 0018-0022 and on page 3, in paragraph 0022); a user interface (110) operatively coupled to the controller (102) to enable a user to provide input to operate the fluid supply device to provide the one or more of the first therapy and the second therapy (as shown in Figures 1 & 2 and as described on page 4, in paragraphs 0033-0037); and an indicator light (126) operatively coupled to the controller (102) and disposed beneath the indicator panel (116), the indicator light configured to illuminate one or more of a first symbol associated with the first therapy and a second symbol associated with the second therapy (as shown in Figures 2 & 4-6 and as described on page 2, in paragraph 0017; page 4, paragraph 0038 and on page 5, in paragraph 0038); wherein the indicator light (126) is further defined as a first indicator light, the first indicator light being configured to illuminate the first symbol associated with the first therapy in response to the user providing input to operate the fluid supply device to provide the first therapy to the patient (as shown in Figures 4-6 and as described on page 4, in paragraph 0038 and on page 5, in paragraphs 0038 & 0039); further comprising a second indicator light (126) operatively coupled to the controller and disposed beneath the indicator panel (116), the second indicator light being configured to illuminate the second symbol associated with the second therapy in response to the user providing input to operate the fluid supply device to provide the second therapy to the patient (also as shown in Figures 4-6 and as described on page 4, in paragraph 0038 and on page 5, in paragraphs 0038 & 0039); and wherein the first symbol associated with the first therapy is further defined as a low air loss symbol and the second symbol associated with the second therapy is further defined as a turn assist symbol (as shown in Figures 2 & 4-6 and as described on page 2, in paragraph 0017; page 4, paragraph 0038 and on page 5, in paragraph 0038); further comprising a third indicator light (LB) operatively coupled to the controller (102) and disposed beneath the indicator panel (116), the third indicator light being configured to illuminate a third symbol associated with a locking function in response to the user providing input to lock operation of the fluid supply device (as shown in Figure 6 and as described on page 10, in paragraph 0067); and wherein the user interface (110) comprises a display (114) operatively coupled to the controller (102), the controller configured to generate and output on the display the one or more of the first symbol associated with the first therapy and the second symbol associated with the second therapy (as shown in Figures 2-6 and as described on page 4, in paragraphs 0035-0037 and on page 5, in paragraphs 0038-0040). The skilled artisan would have found it obvious before the effective filing date of the claimed invention to combine the fluid source disclosed in claims 1, 2 and 7 of U.S. Patent No. 11,865,058 with the operational arrangement taught in Bhimavarapu et al. ‘038 with a reasonable expectation of success because this would have achieved the desirable result of imparting and facilitating enhanced treatment of the patient.
Claims 2-4, 6 and 12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,559,451 in view of Bhimavarapu et al. ‘038. With respect to claims 2-4, 6 and 12, claim 1 of U.S. Patent No. 11,559,451 does not specifically disclose wherein the indicator light is further defined as a first indicator light, the first indicator light being configured to illuminate the first symbol associated with the first therapy in response to the user providing input to operate the fluid supply device to provide the first therapy to the patient; further comprising a second indicator light operatively coupled to the controller and disposed beneath the indicator panel, the second indicator light being
configured to illuminate the second symbol associated with the second therapy in response to the user providing input to operate the fluid supply device to provide the second therapy to the patient; wherein the first symbol associated with the first therapy is further defined as a low air loss symbol and the second symbol associated with the second therapy is further defined as a turn assist symbol; further comprising a third indicator light operatively coupled to the controller and disposed beneath the indicator panel, the third indicator light being configured to illuminate a third symbol associated with a locking function in response to the user providing input to lock operation of the fluid supply device; and wherein the user interface comprises a display operatively coupled to the controller, the controller configured to generate and output on the display the one or more of the first symbol associated with the first therapy and the second symbol associated with the second therapy.
Bhimavarapu et al. ‘038 provides the basic teaching wherein the indicator light (126) is further defined as a first indicator light, the first indicator light being configured to illuminate the first symbol associated with the first therapy in response to the user providing input to operate the fluid supply device to provide the first therapy to the patient (as shown in Figures 4-6 and as described on page 4, in paragraph 0038 and on page 5, in paragraphs 0038 & 0039); further comprising a second indicator light (126) operatively coupled to the controller and disposed beneath the indicator panel (116), the second indicator light being configured to illuminate the second symbol associated with the second therapy in response to the user providing input to operate the fluid supply device to provide the second therapy to the patient (also as shown in Figures 4-6 and as described on page 4, in paragraph 0038 and on page 5, in paragraphs 0038 & 0039); and wherein the first symbol associated with the first therapy is further defined as a low air loss symbol and the second symbol associated with the second therapy is further defined as a turn assist symbol (as shown in Figures 2 & 4-6 and as described on page 2, in paragraph 0017; page 4, paragraph 0038 and on page 5, in paragraph 0038); further comprising a third indicator light (LB) operatively coupled to the controller (102) and disposed beneath the indicator panel (116), the third indicator light being configured to illuminate a third symbol associated with a locking function in response to the user providing input to lock operation of the fluid supply device (as shown in Figure 6 and as described on page 10, in paragraph 0067); and wherein the user interface (110) comprises a display (114) operatively coupled to the controller (102), the controller configured to generate and output on the display the one or more of the first symbol associated with the first therapy and the second symbol associated with the second therapy (as shown in Figures 2-6 and as described on page 4, in paragraphs 0035-0037 and on page 5, in paragraphs 0038-0040). The skilled artisan would have found it obvious before the effective filing date of the claimed invention to combine the fluid source disclosed in claim 1 of U.S. Patent No. 11,559,451 with the operational arrangement taught in Bhimavarapu et al. ‘038 with a reasonable expectation of success because this would have achieved the desirable result of imparting and facilitating enhanced treatment of the patient.
Claims 5 and 7 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,559,451 in view of Bhimavarapu et al. ‘038 in view of U.S. Patent Application Publication No. 2014/0259410 to Zerhusen et al., or
alternatively, are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 2 and 7 of U.S. Patent No. 11,865,058 in view of Bhimavarapu et al. ‘038 in view of Zerhusen et al. ‘410. Claim 1 of U.S. Patent No. 11,559,451 as modified by Bhimavarapu et al. ‘038, or alternatively, claims 1, 2 and 7 of U.S. Patent No. 11,865,058 as modified by Bhimavarapu et al. ‘038, do not specifically disclose conditions wherein the first symbol and the second symbol are etched into the indicator panel (116) to be illuminated by the first and second indicator light, and wherein the third symbol is etched into the indicator panel to be illuminated by the third indicator light. Zerhusen et al. ‘410 provides the basic teaching of a patient support device (10) comprising a housing (120) comprising an indicator panel (101-104, 122, 124, 126); a plurality of indicator lights (78, 80) operatively coupled to a controller (72) and disposed beneath the indicator panel (101-104, 122, 124, 126), the indicator lights configured to illuminate one or more symbols on the indicator panel, wherein the one or more symbols are “printed, such as being screen printed, or etched” into the indicator panel (see Figures 1, 3-6 & 27; page 5, paragraphs 0067 & 0068; page 7, paragraphs 0078-0083; page 8, paragraph 0093; page 9, paragraphs 0093-0099). The skilled artisan would have found it obvious before the effective filing date of the claimed invention to combine the fluid source disclosed in claim 1 of U.S. Patent No. 11,559,451 as modified by Bhimavarapu et al. ‘038, or alternatively, claims 1, 2 and 7 of U.S. Patent No. 11,865,058 as modified by Bhimavarapu et al. ‘038, with the symbol configuration taught in Zerhusen et al. ‘410 with a reasonable expectation of success because this would have achieved the desirable result of providing a
simple and alternative light display arrangement which is well-known in the art as taught by Zerhusen et al. ‘410.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-4, 6 and 12 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Bhimavarapu et al. ‘038. With respect to claim 1, Bhimavarapu et al. ‘038 shows the claimed
limitations of a fluid source (100) for supplying fluid to a therapy device to provide one or more of a first therapy and a second therapy to a patient (as shown in Figure 2 and as described on page 2, in paragraphs 0018 & 0019), the fluid source comprising: a housing comprising an indicator panel (116) (as shown in Figure 3 and as described on page 4, in paragraph 0037); a
fluid supply device disposed within the housing (as described on page 2, in paragraph 0018); a controller (102) operatively coupled to the fluid supply device to control operation of the fluid supply device (as shown in Figure 2 and as described on page 2, in paragraphs 0018-0022 and on page 3, in paragraph 0022); a user interface (110) operatively coupled to the controller (102) to enable a user to provide input to operate the fluid supply device to provide the one or more of the first therapy and the second therapy (as shown in Figures 1 & 2 and as described on page 4, in paragraphs 0033-0037); and an indicator light (126) operatively coupled to the controller (102) and disposed beneath the indicator panel (116), the indicator light configured to illuminate one or more of a first symbol associated with the first therapy and a second symbol associated with the second therapy (as shown in Figures 2 & 4-6 and as described on page 2, in paragraph 0017; page 4, paragraph 0038 and on page 5, in paragraph 0038).
With respect to claims 2-4, the reference further discloses the claimed limitations wherein the indicator light (126) is further defined as a first indicator light, the first indicator light being configured to illuminate the first symbol associated with the first therapy in response to the user providing input to operate the fluid supply device to provide the first therapy to the patient (as shown in Figures 4-6 and as described on page 4, in paragraph 0038 and on page 5, in paragraphs 0038 & 0039); further comprising a second indicator light (126) operatively coupled to the controller and disposed beneath the indicator panel (116), the second indicator light being configured to illuminate the second symbol associated with the second therapy in response to the user providing input to operate the fluid supply device to provide the second therapy to the patient (also as shown in Figures 4-6 and as described on
page 4, in paragraph 0038 and on page 5, in paragraphs 0038 & 0039); and wherein the first symbol associated with the first therapy is further defined as a low air loss symbol and the second symbol associated with the second therapy is further defined as a turn assist symbol (as shown in Figures 2 & 4-6 and as described on page 2, in paragraph 0017; page 4, paragraph 0038 and on page 5, in paragraph 0038).
With respect to claims 6 and 12, the reference further discloses a third indicator light (LB) operatively coupled to the controller (102) and disposed beneath the indicator panel (116), the third indicator light being configured to illuminate a third symbol associated with a locking function in response to the user providing input to lock operation of the fluid supply device (as shown in Figure 6 and as described on page 10, in paragraph 0067); and wherein the user interface (110) comprises a display (114) operatively coupled to the controller (102), the controller configured to generate and output on the display the one or more of the first symbol associated with the first therapy and the second symbol associated with the second therapy (as shown in Figures 2-6 and as described on page 4, in paragraphs 0035-0037 and on page 5, in paragraphs 0038-0040).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 5 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Bhimavarapu et al. ‘038 in view of Zerhusen et al. ‘410. Bhimavarapu et al. ‘038 does not specifically disclose conditions wherein the first symbol and the second symbol are etched into the indicator panel (116) to be illuminated by the first and second indicator lights (126), and wherein the third symbol is etched into the indicator panel to be illuminated by the third
indicator light (126). Zerhusen et al. ‘410 provides the basic teaching of a patient support device (10) comprising a housing (120) comprising an indicator panel (101-104, 122, 124, 126); a plurality of indicator lights (78, 80) operatively coupled to a controller (72) and disposed beneath the indicator panel (101-104, 122, 124, 126), the indicator lights configured to illuminate one or more symbols on the indicator panel, wherein the one or more symbols are “printed, such as being screen printed, or etched” into the indicator panel (see Figures 1, 3-6 & 27; page 5, paragraphs 0067 & 0068; page 7, paragraphs 0078-0083; page 8, paragraph 0093; page 9, paragraphs 0093-0099). The skilled artisan would have found it obvious before the effective filing date of the claimed invention to combine the fluid source disclosed in Bhimavarapu et al. ‘038 with the symbol configuration taught in Zerhusen et al. ‘410 with a reasonable expectation of success because this would have achieved the desirable result of providing a simple and alternative light display arrangement which is well-known in the art as taught by Zerhusen et al. ‘410.
Allowable Subject Matter
Claims 13-16 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. The examiner respectfully asserts that one of ordinary skill in the art would not have found it obvious before the effective filing date of the claimed invention to modify the fluid source of Bhimavarapu et al. ‘038 to include the distinct structural arrangement of the watershed region as explicitly recited in dependent claims 13-16.
Claims 17 and 20 are allowed. The examiner respectfully asserts that none of the prior art, taken either singly or in combination, is seen to teach or suggest the use of a fluid source comprising the particular structural configuration of and cooperation between the housing, the fluid supply device disposed within the housing, the controller operatively coupled to the fluid supply device, the user interface operatively coupled to the controller, and the watershed region “peripherally surrounding the user interface and including at least one raised portion shaped to allow any liquid that reaches the user interface to fall by gravity off the user interface and past the watershed region”, as explicitly recited in independent claim 17.
Claims 18 and 19 are objected to due to the informalities as indicated above in paragraph 3 of this Office action, but would be allowable if rewritten to overcome these informalities and in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to Applicant's disclosure: Zerhusen et al. ‘203, Zerhusen et al. ‘524, Zerhusen et al. ‘249, Zerhusen et al. ‘190, Bhimavarapu ‘304, Zerhusen et al. ‘090, Bhimavarapu ‘667, Paul et al. ‘936, Zerhusen et al. ‘700, Zerhusen et al. ‘692, Bhimavarapu et al. ‘875, Bhimavarapu et al. ‘812, Bhimavarapu ‘577, Zerhusen et al. ‘382, Zerhusen et al. ‘546, Zerhusen et al. ‘562, Zerhusen et al. ‘625, Zerhusen et al. ‘491, Zerhusen et al. ‘574, Zerhusen et al. ‘368, Zerhusen et al. ‘465, Zerhusen et al. ‘562,
Zerhusen et al. ‘798, Zerhusen et al. ’670 A1, Zerhusen et al. ‘670 B1, Zerhusen et al. ‘080 A1, Zerhusen et al. ‘080 B1, Zerhusen et al. ‘212 A1 and Zerhusen et al. ‘212 B1.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT G SANTOS whose telephone number is (571)272-7048. The examiner can normally be reached Monday-Friday 9am-11:30am and 2pm-7:30pm.
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, Justin C Mikowski can be reached at 571-272-8525. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ROBERT G SANTOS/Primary Examiner, Art Unit 3673
Prosecution Insights