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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 25 March 2026 has been entered.
Claims 4-5, 7-8, 11-12 and 14-15 are cancelled; new claims 29-30 are entered; claims 1-3, 6, 9-10, 13 and 16-30 are pending.
Priority
Should applicant desire to obtain the benefit of foreign priority under 35 U.S.C. 119(a)-(d) prior to declaration of an interference, a certified English translation of the foreign application must be submitted in reply to this action. 37 CFR 41.154(b) and 41.202(e).
Failure to provide a certified translation may result in no benefit being accorded for the non-English application.
Response to Arguments
Applicant’s arguments, see “Remarks”, filed 25 March 2026, with respect to claim 1 have been fully considered and are persuasive. The rejection of claim 1 and its dependent claims has been withdrawn.
Applicant's arguments filed 25 March 2026, with regards to claims 3 and 29-30 have been fully considered but they are not persuasive. Since the arguments pertain to the amendments, they will be addressed below in the prior art 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.
Claims 3 and 29-30 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Schuler et al (U.S. 2005/0261747). Schuler discloses (par. 0086) an electrostimulation appliance configured for stimulating one or more nerves and/or muscles of a living being with electrically, electromagnetically and/or magnetically generated stimulation signals, comprising: a) at least one signal output device through which electrically, electromagnetically and/or magnetically generated stimulation signals can be fed into at least one nerve and/or one muscle, b) at least one control device which is configured to activate the at least one signal output device in such a way that the stimulation signals output by the at least one signal output device are able to generate muscle contractions in the living being, by which the respiration of the living being can be influenced in a targeted manner, wherein the control device is configured to keep the strength of the stimulation signals (par. 0120-0121, monitoring the efficacy of stimulation via the diaphragm), output by the at least one signal output device, at an increased level during the exhalation phase of the living being, at which level the muscle contraction generated by stimulation signals is greater than zero, but the muscle contraction is sufficient to retain up to 75% of the inspiratory reserve volume (par. 0012 and 0078, “Diaphragm contraction and relaxation accounts for a 75% volume change in the thorax during normal quiet breathing.”) in the lungs at the end of the exhalation.
Regarding claim 29, Schuler discloses (par. 0086) an electrostimulation appliance configured for stimulating one or more nerves and/or muscles of a living being with electrically, electromagnetically and/or magnetically generated stimulation signals, comprising: a) at least one signal output device through which electrically, electromagnetically and/or magnetically generated stimulation signals can be fed into at least one nerve and/or one muscle, b) at least one control device which is configured to activate the at least one signal output device in such a way that the stimulation signals output by the at least one signal output device are able to generate muscle contractions in the living being, by which the respiration of the living being can be influenced in a targeted manner (par. 0081) wherein by setting parameters of the stimulation signals output by the at least one signal output device, the control device is configured to excite, over a plurality of respiratory cycles, muscle contractions of the respiratory muscles of the living being which are not necessary for the gas exchange that is to be performed by the respiration of the living being and which thus produce muscle training (par. 0120-0121).
Regarding claim 29, Schuler discloses (par. 0086) an electrostimulation appliance configured for stimulating one or more nerves and/or muscles of a living being with electrically, electromagnetically and/or magnetically generated stimulation signals, comprising: a) at least one signal output device through which electrically, electromagnetically and/or magnetically generated stimulation signals can be fed into at least one nerve and/or one muscle, b) at least one control device which is configured to activate the at least one signal output device in such a way that the stimulation signals output by the at least one signal output device are able to generate muscle contractions in the living being, by which the respiration of the living being can be influenced in a targeted manner (par. 0081) wherein by setting parameters of the stimulation signals output by the at least one signal output device, the control device is configured to perform a targeted excitation of respiratory nerves and/or a respiratory center to produce a dedicated training for the respiratory nerves or the respiratory center, but not for the respiratory muscles (par. 0074, 0089 and 0121).
Allowable Subject Matter
Claims 1-2, 6, 9-10, 13 and 16-28 are allowed.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH L MALAMUD whose telephone number is (571)272-2106. The examiner can normally be reached Mon - Fri 1:00-9:30 Eastern.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Unsu Jung can be reached at (571) 272-8506. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DEBORAH L MALAMUD/Primary Examiner, Art Unit 3792
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