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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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.
Claims 9, 12, and dependents therein 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Applicant claims “a second breathing circuit mounting base” yet does not recite an earlier first breathing circuit mounting base. It is unclear if two breathing mounting bases are required, as claimed, or if the second breathing circuit mounting base merely refers to a different type of breathing mechanism such as disclosed in the specification, compare different breathing mechanisms between Figs. 6 and 7. Deletion of the word “second” to merely recite “a breathing circuit mounting base” throughout the claims would overcome the rejection under 35 USC 112(b), and examiner will interpret the claims accordingly.
Claim 12 recites “second breathing circuit mechanism”, lacking antecedent basis.
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 (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 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, 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.
Claim(s) 9, 10, 12, and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over McCormick (US 20200353201) in view of Kamiya (JP 2003339868) in view of Gong (CN 105597210).
9. McCormick discloses an anesthetic gas path system (see [0001], Fig. 1), comprising: an anesthesia main machine configured to supply an anesthetic gas (see Fig. 1, 12, 70, and 72, [0014]), wherein the anesthesia main machine is provided with a volatilization tank for volatilizing an anesthetic drug (72, see [0014]), a first anesthetic gas passage is provided (gas passes between gas source 12, mixer 70, and vaporizer 72, see [0014], with passageways illustrated in Fig. 1), the first anesthetic gas passage communicates with the volatilization tank (see [0014]), the first anesthetic gas passage is provided with a gas source interface for an external gas source to enter (interfaces with gas sources 62, 62, 66, as illustrated in Fig. 1) and a fresh gas interface for outputting an anesthetic gas mixture containing the anesthetic gas (interface with detachable port 12, as illustrated, as illustrated in Figs. 1, 3a, and 3b, see [0014]); and a second breathing circuit mechanism (breathing system 10, see [0013]) having a second breathing circuit mounting base (see base structure in Figs. 3a – 3b, with the circuit 10 mounted to machine 1 in Fig. 3a), wherein a second anesthetic gas passage is provided in the second breathing circuit mounting base (see [0013], the circuit passageway within 18 is illustrated in Fig. 1), the second anesthetic gas passage has a second fresh gas interface for the anesthetic gas mixture to enter (12, see [0014]) and a user interface for leading the anesthetic gas mixture to a subject (26, see [0014]), the second fresh gas interface and the user interface are arranged on the second breathing circuit mounting base (see Fig. 3b), and the fresh gas interface is detachably docked with the second fresh gas interface (see Fig. 3a illustrating the interfaces fitting together; port 12 and circuit 18 are disposable and therefore detachable, see [0012]), so as to deliver the anesthetic gas mixture into the user interface ([0014]).
However, McCormick does not explicitly disclose wherein the anesthesia main machine is provided with a main machine housing, a first anesthetic gas passage is provided inside the main machine housing, wherein the anesthesia main machine is further provided with a first interface group and the fresh gas interface. Nonetheless, Kamiya discloses a anesthesia main machine provided with a main machine housing (50, see Fig. 1, p. 3, paras. 3 – 4 of the provided translation, with ensuing paragraphs further disclosing the housing structure) and a volatilization tank for volatilizing an anesthetic drug (see p. 4, paras. 7 – 8, the vaporizer “is a volatile anesthetic… vaporization chamber”, see unlabeled bottle in Fig. 1), a first anesthetic gas passage is provided inside the main machine housing (see Fig. 5, p. 4, para. 5), wherein the anesthesia main machine is further provided with a first interface group for an external gas source to enter (see p. 4: paras. 2 – 4, Fig. 4, 64; see also the interface in Fig. 5), and a fresh gas interface for outputting an anesthetic gas mixture containing the anesthetic gas (2a, see p. 4, second from bottom paragraph; the first interface group and the fresh gas interface are arranged on the main machine housing, see Figs. 1, 4, and 5). Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to modify the anesthetic gas path system of McCormick within the anesthesia main machine housing of Kamiya for the benefit of improving storage efficiency and downsizing the anesthetic system within a stable yet movable machine, see Kamiya, p. 6, paras. 3 – 4.
However, McCormick in view of Kamiyama does not disclose a second interface group comprising at least a second reserved interface and the fresh gas interface, wherein the second reserved interface of the second interface group is a second driving gas interface, wherein the second interface group is arranged on the main machine housing of the anesthesia main machine. Nonetheless, Gong discloses wherein a first driving gas passage is provided inside the main machine housing (see p. 6: para. 4), the first driving gas passage has a second reserved driving gas interface arranged on the main machine housing (Fig. 4, 121, p. 6: para. 4; examiner considers the interface as “reserved” insofar as it is specifically configured for driving gas), and the second driving gas interface outputs the driving gas from a ventilator (p. 6: para. 4). Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to modify the anesthesia main machine housing of McCormick in view of Kamiya to include a second driving gas interface, as taught in Gong, for the benefit of incorporating further anesthesia system components into the machine housing, thus further improving storage efficiency and downsizing the anesthetic system. Examiner notes that Kamiya discloses the fresh gas interface for outputting anesthetic gas mixture containing the anesthetic gas and Gong discloses the second reserved gas interface for outputting driving gas both on the main machine housing interacting with the modular breathing circuit mechanism on the side of the main machine housing, thereby the modification clearly discloses the second interface grouping the two together on the main machine housing.
However, McCormick as modified does not disclose the first interface group comprising at least a first reserved interface and wherein the first reserved interface is a first driving gas interface. However, Kamiya discloses a ventilator that can be switched and connected thus requiring a first reserved driving gas interface (see Fig. 5, p. 5, paras. 4 – 5; examiner considers the interface as “reserved” insofar as it is specifically configured for driving gas). Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to modify the main machine housing of McCormick in view of Gong to include a designated first reserved interface for input of the driving gas as taught in Kamiya for the predictable result of appropriately delivering the driving air through the machine housing and to the second driving interface on the main machine housing. Such modification would additionally allow the ventilator to be replaced for sterilization and appropriate service/maintenance.
Upon combining McCormick in view of Gong in view of Kamiya as stated, the references render obvious wherein the anesthesia main machine is further provided with a first interface group comprising at least a first reserved driving gas interface, and the first interface group is arranged on the main machine housing of the anesthesia main machine. Examiner notes that it would have been obvious to provide the first driving gas interface adjacent to interface group 64 in Kamiya, as such ports may provide various gases such as air, and are a logical place for connecting the ventilator provided driving gas. However, the modification need not require placement of the first driving gas interface adjacent to ports 64, as the phrase “first interface group” is broadly recited, and may including a grouping of interfaces spread on the main machine housing.
10. The modified McCormick discloses wherein the gas path system of claim 9, when the anesthetic gas path system communicates with a ventilator to form an anesthesia respiration gas path system, the first driving gas interface serves for a driving gas from the ventilator to enter, and the second driving gas interface outputs the driving gas (as discussed above, Komiya discloses the first driving gas interface for respiration gas to enter, and Gong discloses the second interface for outputting the ventilator provided gas).
12. The modified McCormick discloses the anesthetic gas path system of claim 9, wherein the second breathing circuit mechanism and the anesthesia main machine are arranged side by side (see Fig. 3a; note also Fig. 1 in Kamiya), and are detachably connected to each other (see Fig. 1, [0012] in McCormick), the fresh gas interface is arranged on a side of the main machine housing (see p. 4: paras. 2 – 4, Fig. 4, 64 in Kamiya; see also the interface in Fig. 5), and the second fresh gas interface is arranged on a side of the second breathing circuit mounting base opposite to the main machine housing (see Fig. 3a in McCormick; note also Fig. 1 in Kamiya).
13. The modified McCormick discloses the anesthetic gas path system of claim 10, wherein the first interface group is arranged on an upper end of the main machine housing and/or the second interface group is arranged below a side of the main machine housing (the first interface group of Kamiya is located on an upper or higher end of the main machine housing, and the second interface group of McCormick and Gong is located below a side of the main machine housing such as a side of plate 10, as illustrated in Gong Fig. 2).
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over McCormick (US 20200353201) in view of Kamiya (JP 2003339868) in view of Gong (CN 105597210) in view of Moyat (US 3183906).
11. McCormick as modified discloses the anesthetic gas path system of claim 10, but does not disclose further comprising a blocking member, wherein the blocking member blocks the first driving gas interface and/or the second driving gas interface. However, Moyat discloses an anesthetic gas path system, wherein the system includes ports or interfaces, and further comprises a blocking member, wherein the blocking member blocks its respective interface (see Fig. 2, 12 and 13). Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to modify the first and/or second driving interface of McCormick in view of Kamiya in view of Gong to include a blocking member such as a cap, a well-known feature within the medical arts for preventing the ingress of contaminants, and maintaining the sterility of circuits when not in use.
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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 9, 10, and 12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 25 of copending Application No. 18/328961 (hereinafter ‘961) in view of McCormick (US 20200353201). This is a provisional nonstatutory double patenting rejection.
A comparison between the two claims is provided below. Limitations in the application under examination claims are recited in the conflicting reference patent claims as shown in the comparison. Bolded terms will be further addressed after the comparison.
Patent claim 9
Application claims 21 and 25
An anesthetic gas path system, comprising: an anesthesia main machine configured to supply an anesthetic gas, wherein the anesthesia main machine is provided with a main machine housing and a volatilization tank for volatilizing an anesthetic drug, a first anesthetic gas passage is provided inside the main machine housing, the first anesthetic gas passage communicates with the volatilization tank, the first anesthetic gas passage is provided with a gas source interface for an external gas source to enter and a fresh gas interface for outputting an anesthetic gas mixture containing the anesthetic gas,
An anesthesia respiration gas path system, comprising: an anesthesia main machine configured to supply an anesthetic gas, wherein the anesthesia main machine is provided with a main machine housing and a volatilization tank for volatilizing an anesthetic drug, a first anesthetic gas passage is provided inside the main machine housing, the first anesthetic gas passage communicates with the volatilization tank, the first anesthetic gas passage is provided with a gas source interface for an external gas source to enter and a fresh gas interface for outputting an anesthetic gas mixture containing the anesthetic gas; (claim 21)
and the gas source interface and the fresh gas interface are arranged on the main machine housing;
the gas source interface and the fresh gas interface are arranged on the main machine housing. (claim 25)
and a second breathing circuit mechanism having a second breathing circuit mounting base, wherein a second anesthetic gas passage is provided in the second breathing circuit mounting base, the second anesthetic gas passage has a second fresh gas interface for the anesthetic gas mixture to enter and a user interface for leading the anesthetic gas mixture to a subject, the second fresh gas interface and the user interface are arranged on the second breathing circuit mounting base, wherein the anesthesia main machine is further provided with a first interface group comprising at least a first reserved interface and a second interface group comprising at least a second reserved interface and the fresh gas interface, and wherein the first reserved interface of the first interface group is a first driving gas interface, the second reserved interface of the second interface group is a second driving gas interface, and the first interface group and the second interface group are arranged on the main machine housing of the anesthesia main machine.
and a first breathing circuit mechanism having a first breathing circuit mounting base and a bellows, wherein the bellows is connected to the first breathing circuit mounting base, a second anesthetic gas passage and a third exhaust passage are provided inside the first breathing circuit mounting base, the second anesthetic gas passage has a second fresh gas interface for the anesthetic gas mixture to enter and a user interface for leading the anesthetic gas mixture to a subject, the third exhaust passage has a fourth exhaust emission interface for emitting exhaust, the second fresh gas interface, the user interface and the fourth exhaust emission interface are all arranged on the first breathing circuit mounting base, (claim 21)
With regard to the term “second” mounting base bolded above, as well as ensuing terms including the word “second”, any or “a” mounting is interpreted to read on the term. See the discussion under section 35 USC 112(b) above. With regard to the first interface group including first driving gas interface, ‘961 discloses a first driving gas interface and first exhaust passage which would thereby constitute a first grouping, and with regard to the second interface group including the second driving gas interface and fresh gas interface, ‘961 discloses the second driving gas interface and fresh gas interface which would thereby constitute a second grouping. The claimed driving gas interfaces in ‘961 are provided on the main machine housing by virtue of their respective gas passages as seen in claim 21.
While claim 21 in ‘961 discloses the fresh gas interface fits and communicates with the second fresh gas interface, so as to deliver the anesthetic gas mixture into the user interface, claim 21 does not explicitly disclose a detachable insertion fit. However, McCormick discloses a detachable insertion fit between the two interface components, see Fig. 3a, [0012]. Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to modify the interference fit of ‘961 according to a detachable fit for the benefit of reusability/disposability.
Dependent claim 11 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 25 of copending Application No. 18/328961 (hereinafter ‘961) in view of McCormick (US 20200353201) in view of Moyat (US 3183906). This is a provisional nonstatutory double patenting rejection. See claim 11 above for discussion of the modification with appropriate motivation with regard to Moyat.
Response to Arguments
Applicant’s arguments with respect to the claim(s) have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. Notably, Komiya is now relied upon for teaching ventilator 36.
Additionally, with regard to applicant’s teaching that Gong discloses a driving gas source disposed within the anesthesia main machine 10, such teaching does not in any way constitute a teaching away from placement of a first driving gas interface on the main housing for communicating with the driving gas source (ventilator). In fact, a first driving gas interface on the main machine housing is necessary for the communication of gas between the ventilator and the main machine housing in order to provide gas to the second driving gas interface on the housing. Such modification may be made while keeping the ventilator within the main machine housing, e.g. in its cabinet. However, the disclosure does not teach away or prevent from placement of the ventilator elsewhere, as various ventilator placement is well known in the art. Gas ventilators are portable devices used throughout hospitals, and placement in other locations may provide benefits such as easier sterilization/service/maintenance.
As such, examiner hereby maintains rejection of claim 9 and dependents therein.
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 BRADLEY H PHILIPS whose telephone number is (571)270-5180. The examiner can normally be reached 8:00 - 5:00 M-F.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brandy Lee can be reached at (571) 270-7410. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRADLEY H PHILIPS/Primary Examiner, Art Unit 3799
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