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
The Amendment filed 08 Sep 2026 has been entered. Claims 23-24, 27, 29-36 and 39-44 are pending in the application with claims 25-26, 28 and 37-38 canceled. Claims 23-24, 27, 29-30, 32-36, 39-42 and 44 are currently amended. Applicant’s amendment to the Specification and Claims have overcome most, but not every, objection and 35 U.S.C. 112 rejection previously set forth in the Non-Final Office Action mailed 05 May 2026. The remaining issues are restated below.
It is noted that the amended terminology “drinking apparatus” in claim 42 is not interpreted as invoking 35 U.S.C. 112(f) as one of ordinary skill in the art would readily recognize a straw type of device as commonly used in respirators.
Response to Arguments
Applicant's arguments filed 08 Sep 2026 have been fully considered but they are not persuasive. Applicant asserts the claims have been amended to make them definite (Pg. 8). However, the amendment to correct the indefiniteness issue was only made to claim 23 and new independent 27 and was not also made to new independent claims 29 and 39.
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.
Claim(s) 29-31 and 39 is/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 pre-AIA the applicant regards as the invention.
Claim 29 recites the limitation “the breathable gas supply apparatus is configured such that sealing of the first valve assembly corresponds to opening of the second valve assembly enabling switching between the first and second supplies of breathable gas without interruption in supply” in Ln. 14-17 which deems the claim indefinite. The claim recites a function, i.e. “sealing of the first valve assembly corresponds to opening of the second valve assembly”, without reciting sufficient structure to perform the function. The claim requires sealing of the first valve assembly to occur at the same moment as opening of the second valve assembly but fails to recite any structure to enable that coordination between the first and second valve assemblies. The claim thus attempts to improperly recite the apparatus by what it does instead of what it is (see MPEP 2173.05(g)). It appears the claim should be amended to add recitation corresponding to the disclosed linkage 12, as has been amended into claim 23. The claim will be examined as presented.
Claim 39 recites the limitation “the breathable gas supply apparatus is configured such that sealing of the first valve assembly corresponds to opening of the second valve assembly enabling switching between the first and second supplies of breathable gas without interruption in supply” in Ln. 14-17 which deems the claim indefinite. The claim recites a function, i.e. “sealing of the first valve assembly corresponds to opening of the second valve assembly”, without reciting sufficient structure to perform the function. The claim requires sealing of the first valve assembly to occur at the same moment as opening of the second valve assembly but fails to recite any structure to enable that coordination between the first and second valve assemblies. The claim thus attempts to improperly recite the apparatus by what it does instead of what it is (see MPEP 2173.05(g)). It appears the claim should be amended to add recitation corresponding to the disclosed linkage 12, as has been amended into claim 23. The claim will be examined as presented.
Claim Interpretation - 35 USC § 112(f)
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “communications apparatus” in claim 42.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
The corresponding structure for the “communications apparatus” is best understood from the specification as at least: a microphone 32, a push-to-talk button 33 and earpiece 34 (¶0102 of the PGPub copy of the instant application).
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Allowable Subject Matter
Claims 23-24, 27, 32-36 and 40-44 are allowed.
Claims 29-31 and 39 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.
The following is a statement of reasons for the indication of allowable subject matter:
Claim 23 is allowed for having been amended to include all limitations of former claims 25 and 26, with claim 25 having been indicated as allowable subject matter in the preceding Office action and claim 26 having been added to claim 23 to resolve the 35 U.S.C. 112(b) rejection of claim 23.
Claim 27 is allowed for having been rewritten in independent form while including all limitations of former claim 27, which was indicated as allowable subject matter in the preceding Office action.
Claim 29 is found allowable over the prior art for having been rewritten in independent form while including all limitations of former claim 29, which was indicated as allowable subject matter in the preceding Office action.
Claim 39 is found allowable over the prior art for having been rewritten in independent form while including all limitations of former claim 39, which was indicated as allowable subject matter in the preceding Office action.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH D BOECKER whose telephone number is (571)270-0376. The examiner can normally be reached M-F 9:00 AM - 4:00 PM.
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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.
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/JOSEPH D. BOECKER/Primary Examiner, Art Unit 3785
