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 .
Claim Objections
Claim(s) 1-3 is/are objected to because of the following informalities:
Claim 1, Ln. 3 recites “the first part of an exhalation” which should read “a first part of an exhalation” as it is a first introduction
Claim 1, Ln. 8 recites “the operating pressure” which should read “an operating pressure” as it is a first introduction
Claim 1, Ln. 9 recites “the opening pressures” which should read “opening pressures” as it is a first introduction
Claim 2, Ln. 1 recites “Claim” which should not be capitalized
Claim 2, Ln. 1 recites “the inlet” which should read “an inlet” as it is a first introduction
Claim 3, Ln. 2 includes a period which should be changed to a comma
Claim 3, Ln. 3 recites “a a” which includes an inadvertent duplication
Appropriate correction is required.
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) 1-3 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 1 recites the limitation “with inner mask (nose cup)” in Ln. 1-2 which deems the claim indefinite. The placement of an additional limitation in parentheses renders the claim indefinite as it is unclear whether the inner mask should be understood as needing to be a nose cup or not. For the purposes of examination the limitation will be interpreted as reading “with inner mask in the form of a nose cup.”
Claim 1 recites the limitations “[an] operating pressure of the reservoir is controlled to be above ambient pressure” in Ln. 8 and “the operating pressure of the reservoir is controlled to be between the opening pressures of the breathing valve and the exhalation valve” in Ln. 9-10 which deems the claim indefinite. The claim recites a function, i.e. controlling an operating pressure within certain parameters, without reciting sufficient structure to perform the function. The claim is thus indefinite as it attempts to define the reservoir by what it does instead of what it is (see MPEP 2173.05(g)). It appears the required structure to perform the claimed functions is a spring (¶0031). That structure should be amended into the claim.
Claim 1 recites the limitation “the breathing valve” in Ln. 10. There is insufficient antecedent basis for this limitation in the claim. It appears the breathing valve is intended as referring to what has previously been termed a breathing regulator in Ln. 2 of the claim. For the purposes of examination the limitation will be interpreted as reading “one of the breathing regulator(s)”.
Claim 3 recites the limitation “levels too dangerous to be re-breathed” in Ln. 3 which deems the claim indefinite. The phrase “too dangerous to be re-breathed” is relative language which renders the claim indefinite. The phrasing “too dangerous to be re-breathed” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The only apparent way to interpret the limitation is in relation to the “predetermined value” recited in claim 2.
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 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.
(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.
Claim(s) 1 and 3 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Almqvist (U.S. Pub. 2014/0041662).
Regarding claim 1, Almqvist discloses a SCBA (Fig. 10; ¶¶0061-0072) comprising a source of pressurized breathing gas (Fig. 10 #61; ¶0054), a face piece (Fig. 10 #64; ¶0054) with inner mask in the form of a nose cup (Fig. 10 #64; ¶0054), breathing regulator(s) (Fig. 10 #63; ¶0054), an exhalation valve (Fig. 10 #70; ¶0054) operating at positive pressure relative to the ambient (¶0054 – overpressure) and a reservoir (Fig. 10 #67 & 101; ¶¶0054, 0063) capable of storing a first part of an exhalation (¶0054 – filled during exhalation) and delivering that part at the subsequent inhalation (¶0054 – upon inhalation breathing bag passes gas), wherein said reservoir specifically: is positioned
Regarding claim 3, Almqvist discloses the carbon-dioxide sensor is positioned inside the reservoir (¶0064 – measures CO2 percentage in #67 so must be inside of #67), and wherein the shut-off valve is operated to close the reservoir when the carbon dioxide content of the exhalation reaches levels too dangerous to be re-breathed (¶0064 – e.g. above predetermined value) and wherein a latter portion of an exhalation is discharged to the ambient via the exhalation valve (¶0063).
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) 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.
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Almqvist (U.S. Pub. 2014/0041662).
Regarding claim 2, Almqvist discloses the shut-off valve is operated to close the reservoir when the carbon dioxide content of the exhalation has reached a predetermined value (¶0064), and wherein a latter portion of an exhalation is discharged to the ambient via the exhalation valve (¶0063).
Almqvist fails to explicitly disclose the carbon-dioxide sensor is positioned in an inlet of the reservoir.
However, Almqvist discloses the carbon dioxide sensor is positioned to measure the carbon dioxide percentage in breathing bag 67 (¶0064). One of ordinary skill in the art would have considered as an inlet to breathing bag 67 to be an obvious location to place the carbon dioxide sensor based upon how the function of the carbon dioxide sensor is to detect when the percentage of carbon dioxide in breathing bag 67 is too high such that valve 101 can be closed (¶0064). The inlet of breathing bag 67 would be an obvious and critical location at which to measure the percentage of carbon dioxide.
It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the invention to have specified in Almqvist the carbon-dioxide sensor is positioned in an inlet of the reservoir in order to have allowed performing of the desired function of Almqvist for the carbon dioxide sensor to detect when the percentage of carbon dioxide in breathing bag 67 is too high such that valve 101 can be closed.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure, see PTO-892 for additional attached references.
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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/JOSEPH D. BOECKER/Primary Examiner, Art Unit 3785