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 .
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); 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 9 and 11-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 8, 10-19 of U.S. Patent No. 11,638,778 to Wu et al. Although the claims at issue are not identical, they are not patentably distinct from each other because the instantly presented claims set forth the same steps in the patented claim.
With regard to claim 9, the ’778 patent patented claim 8 recites an oxygen supply unit with an oxygen concentrator, a CO2 scrubber (which is inherently capable of being removed), a power control with two different delivery modes, and a valving network configured to deliver a stream of scrubbed or non-scrubbed gas based on the electrical operating mode.
With regard to claim 11, the ’778 patent does not claim a configuration to allow a replacement of the carbon dioxide scrubber. However, Applicant is reciting the intended use of the claimed apparatus. It has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. See MPEP § 2114. Applicant does not claim any details of the replaceable configuration, so the prior art reasonably teaches the structural limitations of the claimed invention.
With regard to claims 12-21, see patented claims 10-19, respectively.
Allowable Subject Matter
Claims 1, 3-8 are allowed.
Claim 10 is 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 following is an examiner’s statement of reasons for allowance: The prior art teaches a method for providing oxygen rich gas for blood oxygenation comprising the steps of operating an oxygenation concentrator in two different modes based on electrical supply, wherein the apparatus operates to deliver oxygen from the oxygen concentrator without scrubbing in a first electrical mode, and combining oxygen from the oxygen concentrator with a CO2 scrubbed gas stream when in a second electrical mode.
The ’778 patent does not claim the step of replacing the carbon dioxide scrubber when not in use nor a quick-disconnect coupling. WO2017/006186 to Ironstone discloses an oxygenation unit in which the carbon dioxide scrubber is replaceable, presumably, when it is not in use. However, Ironstone’s priority date of 1 July 2015 is later than the instant application (19 November 2014), and is unavailable as prior art.
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Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LESLIE R DEAK whose telephone number is (571)272-4943. The examiner can normally be reached Monday-Friday, 9am to 5:30pm.
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/LESLIE R DEAK/Primary Examiner, Art Unit 3799 3 November 2025