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 .
Response to Amendment
This office action is responsive to the amendment filed on 08/19/2024. As directed by the amendment: claims 50, 53, 60, 67, 68 and 69 have been amended and claims 1-49 were previously cancelled. Thus, claims 50-69 are presently pending in this application.
Response to Arguments
Applicant's arguments filed 08/19/2025 have been fully considered but they are not persuasive.
In regards to the Applicant’s arguments, see pages 2-3, that the slots 50 of Wang ‘516 do not provide "a more controlled flow rate with higher precision" than does the valve of Gur ‘335, and that the slots may be substitutes, but there would be no reason for substitution, the Examiner respectfully disagrees. One of ordinary skill would consider simple substitution in the slots as obvious, as Wang does teach the varying depth to be an art-recognized equivalent manner of controlling a flow rate in a valve at the time of filing. See MPEP 2144.06 Art Recognized Equivalence for the Same Purpose. Further, one of ordinary skill in the art would not look at only the option of complete replacement of the varying-width slots of Gur with the varying-depth slot of Wang as an option for modifying the slots to provide the desired flow control, but a combination of the two. One of ordinary skill in the art would understand that the shape of the flow by varying the width, depth, and even profile would be reasonable to adjust to achieve the desired control. Just by combining a varying-depth to the varying-width would allow for more precision in design of the shape to achieve the control desired. In further support that it is known in the art of valves to adjust the shape of slots to achieve desired flow characteristics, see CN 110030393 which discloses “changing the shape of the groove 202 can implement flow control gas or liquid” in reference to figs. 6-9; US 2003/0052292, see [0024]; US 5817068, see col. 3, ll. 53-64, figs. 6a-10; US 20130334446, see [0067]; US 7526993, see col. 6, ll. 11-14. Also, even though Wang does reference multiple slots/ports in paragraph 0021, the paragraph also mentions it “may comprise a single port.” And as Applicant points out, Wang states that "different designs of position and quantity of single ports or sub-ports can realize different flow distributions" (emphasis added), and therefore is not only used in connection with the example of multiple slots/ports, but also single ports, and would also apply to the port of claim 50.
In regards to the Applicant’s argument, see pages 3-4, that “the combination of the depth-variable slot and the graphite material of the valve element in which it is formed which is inventive”, it is considered objective evidence. “Objective evidence which must be factually supported by an appropriate affidavit or declaration to be of probative value includes evidence of unexpected results, commercial success, solution of a long-felt need, inoperability of the prior art, invention before the date of the reference, and allegations that the author(s) of the prior art derived the disclosed subject matter from the inventor or at least one joint inventor.” Further, “Arguments presented by the applicant cannot take the place of evidence in the record. In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965) and In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984). Examples of statements which are not evidence and which must be supported by an appropriate affidavit or declaration include statements regarding unexpected results, commercial success, solution of a long-felt need, inoperability of the prior art, invention before the date of the reference, and allegations that the author(s) of the prior art derived the disclosed subject matter from the inventor or at least one joint inventor.” See MPEP 716.01(c) Probative Value of Objective Evidence.
Therefore, the rejection of claim 50 under Gur ‘335 in view of Wang ‘516 is still deemed to read on the limitations of the claims. The rejection below has been modified to address the amendment limitations.
The instant office action has been made FINAL.
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 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 of this title, 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.
Claims 50-52, 55-59, 61, 63-64, and 69 are rejected, as well as claims 53-54, 60, and 65-68 as far as they are definite, under 35 U.S.C. 103 as being unpatentable over Gur (US 20180306335 A1) in view of Wang et al. (US 20200300516 A1).
Gur discloses:
50. (New) A variable orifice rotary valve (10) for controlling gas flow, comprising: a housing (32, 62, 70, 81, 102, 114, 118, 132) of the valve including a substantially cylindrical interior passage (46), and a housing opening (52) extending from the interior passage through the housing; a rotatable valve element (30, 66, 80, 96, 120, 130) being made of a graphite material ([0021], [0055]) and comprising a sidewall (forming the cylinder such as 30) having a cylindrical external sidewall surface and an internal wall surface (inner and outer sidewalls of 30), the valve element having a main opening (34); at least one slot (40, 68, 98, or 134) in the sidewall, the valve element rotatably received within the interior passage of the housing such that a rotation of the valve element within the interior passage determines a circumferential length and a depth of a portion of the slot that overlaps with the housing opening [0007].
51. (New) The valve of claim 50, wherein at a position of the valve element in which the at least one slot (40) overlaps with the housing opening (52), the at least one slot comprises part of a fluid channel from the main opening (34) of the valve element to and through the housing opening (52), a gas flow rate through the fluid channel determined at least in part by the circumferential length of the portion of the at least one slot that overlaps with the housing opening (as seen in figs. 7a-7c).
52. (New) The valve of claim 50, wherein a rate of gas flow varies with a rotational angle of the valve element [0061].
53. (New) The valve of claim 50, wherein the at least one slot is part of a plurality of slots in the sidewall in which each slot of the series terminates in an opening in the sidewall and differs in regard to one or more of (i) slope, (ii) a width or a change of width, (iv) circumferential length, and (v) circumferential length of the opening of the slot (such as slots 40 and 68 in fig. 8; 40a and 68a in fig. 8a; 98 and 100 in fig. 17; or 134, 136, and 138 in fig. 27-28).
55. (New) The valve of claim 50, wherein an external wall surface of the housing (118) is cylindrical (fig. 22).
56. (New) The valve of claim 50, wherein the internal wall surface of the rotatable valve element is cylindrical (as seen at least in figs. 5, 7a-7c).
57. (New) The valve of claim 50, wherein the at least one slot is a first slot (40 or 99 or 136) and further comprising a second slot (68, 100, or 138) in the sidewall.
59. (New) The valve of claim 57, wherein the first slot (40a or 136) and the second slot (68a or 138) are circumferentially spaced from one another so that the first slot overlaps with the housing opening when the second slot does not overlap with the housing opening and the second slot overlaps with the housing opening when the first slot does not overlap with the housing opening (as seen from figs. 8a and fig. 27).
60. (New) The valve of claim 57, wherein the second slot is substantially parallel to the first slot (slots 40 or 99 or 136 are circumferentially parallel to 68, 100, or 138).
61. (New) The valve of claim 57, wherein the first slot is in a different axial position from the second slot (slots 40 or 99 or 136 are axially spaced from 68, 100, or 138).
63. (New) The valve of claim 57, wherein the first slot is configured to provide a range of gas flow rates suitable for adults and the second slot is configured to provide a range of gas flow rates suitable for neonates ([0072]-[0073], [0090], [0093], [0096], [0098]).
64. (New) The valve of claim 57, further comprising a third slot (134) in the sidewall that terminates in a third opening in the sidewall.
65. (New) The valve of claim 64, wherein at least two of the first slot, the second slot and the third slot have a substantially same slope, substantially same circumferential length, substantially same rate of change of width, and/or substantially identically shaped profile (at least 134, 136, and 138 have substantially the same slope of zero, substantially the same circumferential length, and substantially the same rate of change of zero, as seen in fig. 27).
66. (New) The valve of claim 64, wherein each of the first slot, the second slot and the third slot has a different slope, a different circumferential length, a different rate of change of width, and/or a differently shaped profile (134, 136, and 138 have different sized rectangular shapes).
67. (New) The valve of claim 50, wherein the housing opening is a first housing opening (106 or 150) and further comprising a second housing opening (108 or 152) extending from the interior passage through the housing, wherein: an axial position of the first housing opening is different than an axial position of the second housing opening (figs. 18 or 25).
68. (New) A gas control system for ventilating patients [0053], comprising: a source of gas; the variable orifice rotary valve of claim 50; and at least one flow sensor and at least one pressure sensor [0065].
69. (New) A method of operating a medical ventilator [0053], the ventilator having a valve (10) comprising a housing and a valve element (130) rotatable therewithin, the valve element made of a graphite material ([0021], [0055]) and comprising first and second slots (68A and 40A), wherein each of the slots varies in flow area along a circumferential length thereof, the second slot (40A) being wider than the first slot (68A) (fig. 8a), the method comprising: rotating the valve element such that the first slot (68A) provides a range of gas flow rates suitable for neonates without making use of the second slot ([0072] discloses the lower flow would be for neonates which would correspond with the smaller slot 68A); and further rotating the valve element such that the second slot provides a range of gas flow rates suitable for adult without making use of the first slot ([0072] discloses the higher flow would be for adults which would correspond with the larger slot 40), wherein the first slot and the second slot are circumferentially spaced from one another (fig. 8a).
Gur fails to disclose wherein the at least one slot varies in depth along a circumferential length of the at least one slot and terminates in an opening in the sidewall, wherein the gas flow rate through the fluid channel is also determined at least in part by the depth of the portion of the at least one slot that overlaps with the housing opening; wherein the depth or a rate of change of the depth of the at least one slot or a portion thereof varies substantially along a direction of rotation of the valve element, varies linearly along the circumferential length of the at least one slot, varies nonlinearly along the circumferential length of the at least one slot, varies gradually, and/or varies through a first portion of the at least one slot at a first steepness and then varies through a second portion of the at least one slot at a second steepness; wherein the second slot varies in depth along a circumferential length of the second slot and terminates in a second opening in the sidewall; wherein a rate of change in the depth of the second slot differs from a rate of change of the depth of the first slot; wherein the first slot gradually deepens for a first number of rotational degrees, the second slot gradually deepens for a second number of rotational degrees, the second amount beginning at an end of the first slot; or wherein the first slot gradually deepens for a first number of rotational degrees, the second slot gradually deepens for a second number of rotational degrees, the second number of rotational degrees beginning at the opening of the sidewall of the first slot; or wherein the first slot gradually deepens for a first number of rotational degrees until a first point at which the depth of the first slot remains constant, the second slot gradually deepening for a second number of rotational degrees, the second number of rotational degrees beginning from the first point at which the depth of the first slot remains constant or from a later point during which the first slot remains at a constant depth; wherein the third slot in the sidewall that varies in depth along a circumferential length of the third slot; and such that as the valve element is rotated the depth of the first slot, aligned with a housing opening, varies.
Wang et al. teach a related variable orifice rotary valve for controlling flow wherein the flow control slots (2312 of one of 231, 232, 241, 242) in the valve member (2) varies in depth along a circumferential length of the at least one slot (as seen in figs. 3, 5) and terminates in an opening (2311) in the sidewall, wherein the gas flow rate through the fluid channel is also determined at least in part by the depth of the portion of the at least one slot that overlaps with the housing opening [0021]; wherein the depth or a rate of change of the depth of the at least one slot or a portion thereof varies substantially along a direction of rotation of the valve element, varies linearly along the circumferential length of the at least one slot, varies gradually; wherein the second slot (another of 231, 232, 241, 242) varies in depth along a circumferential length of the second slot and terminates in a second opening (another 2311) in the sidewall; wherein a rate of change in the depth of the second slot differs from a rate of change of the depth of the first slot ([0021] discloses “In an alternative embodiment, the first segment 2311 and second segment 2312 in the sub-port of the spool 2 may have another suitable shape.”); wherein the first slot gradually deepens for a first number of rotational degrees, the second slot gradually deepens for a second number of rotational degrees, the second amount beginning at an end of the first slot (as seen in fig. 5, the upper slot and lower full slot shown have the slot deepen at different number of rotational degrees, with the lower slot gradually deepening into the opening and then the upper slot begins to deepen at the end of the first lower slot); wherein the third slot (another of 231, 232, 241, 242) in the sidewall that varies in depth along a circumferential length of the third slot; and such that as the valve element is rotated the depth of the first slot, aligned with a housing opening, varies [0021], for the purpose of providing at the very least an art equivalent alternative to control the flow rate, if not a more controlled flow rate with higher precision and achieve different flow distributions that may vary according to needs [0017],[0021].
It would have been obvious to one of ordinary skill in the art to modify the invention of Gur, such that the at least one slot varies in depth along a circumferential length of the at least one slot and terminates in an opening in the sidewall, wherein the gas flow rate through the fluid channel is also determined at least in part by the depth of the portion of the at least one slot that overlaps with the housing opening; wherein the depth or a rate of change of the depth of the at least one slot or a portion thereof varies substantially along a direction of rotation of the valve element, varies linearly along the circumferential length of the at least one slot, varies nonlinearly along the circumferential length of the at least one slot, varies gradually, and/or varies through a first portion of the at least one slot at a first steepness and then varies through a second portion of the at least one slot at a second steepness; wherein the second slot varies in depth along a circumferential length of the second slot and terminates in a second opening in the sidewall; wherein a rate of change in the depth of the second slot differs from a rate of change of the depth of the first slot; wherein the first slot gradually deepens for a first number of rotational degrees, the second slot gradually deepens for a second number of rotational degrees, the second amount beginning at an end of the first slot; or wherein the first slot gradually deepens for a first number of rotational degrees, the second slot gradually deepens for a second number of rotational degrees, the second number of rotational degrees beginning at the opening of the sidewall of the first slot; or wherein the first slot gradually deepens for a first number of rotational degrees until a first point at which the depth of the first slot remains constant, the second slot gradually deepening for a second number of rotational degrees, the second number of rotational degrees beginning from the first point at which the depth of the first slot remains constant or from a later point during which the first slot remains at a constant depth; wherein the third slot in the sidewall that varies in depth along a circumferential length of the third slot; and such that as the valve element is rotated the depth of the first slot, aligned with a housing opening, varies, as taught by Wang et al., for the purpose of providing at the very least an art equivalent alternative to control the flow rate, if not a more controlled flow rate with higher precision and achieve different flow distributions that may vary according to needs.
Claim 62 is rejected under 35 U.S.C. 103 as being unpatentable over Gur (US 20180306335 A1) in view of Wang et al. (US 20200300516 A1) further in view of Harneit (US 20020033464 A1).
Gur discloses the invention as essentially claimed, except for wherein the first slot and the second slot are not parallel to one another.
Harneit teaches a related variable orifice rotary valve, wherein the first slot and the second slot are not parallel to one another, as alternate known means of achieving linear flow regulation [0006].
It would have been obvious to one of ordinary skill in the art to modify the invention of Gur, such that the first slot and the second slot are not parallel to one another, as taught by Harneit, for the purpose of using a known slot design for achieving linear flow regulation, in a manner yielding predictable results.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARINA TIETJEN, whose telephone number is 571-270-5422. The examiner can normally be reached on Monday-Friday (10:30AM-7:00PM EST).
THIS ACTION IS MADE FINAL. 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.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisors can be reached by phone. Tom Barrett can be reached at 571-272-4746. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MARINA A TIETJEN/Primary Examiner, Art Unit 3753