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
Acknowledgment is made of applicant's claim for foreign priority based on an application filed in PCT/CN2020/141403 on 12/30/2020. It is noted, however, that applicant has not filed a certified copy of the application as required by 37 CFR 1.55.
Should applicant desire to obtain the benefit of foreign priority under 35 U.S.C. 119(a)-(d) prior to declaration of an interference, a certified English translation of the foreign application must be submitted in reply to this action. 37 CFR 41.154(b) and 41.202(e).
Failure to provide a certified translation may result in no benefit being accorded for the non-English application.
Information Disclosure Statement
The Information Disclosure Statement(s) have been reviewed by the examiner and are found to comply with the provisions of 37 CFR 1.97, 1.98, and MPEP § 609.
Drawings
The drawing(s) have been reviewed by the examiner and are found to comply with the provisions of 37 CFR 1.81 to 1.85.
Election/Restrictions
Claims 1 – 8 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected grouping, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 03/12/2026.
Applicant’s election without traverse of Group I in the reply filed on 03/12/2026 is acknowledged.
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 9 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 mechanism” yet does not recite an earlier first breathing mechanism. It is unclear if two breathing mechanisms are required, as claimed, or if the second breathing mechanism 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 mechanism” throughout the claims would overcome the rejection under 35 USC 112(b), and examiner will interpret the claims accordingly.
Claim 10 recites the limitation "the third exhaust emission interface" in the last line. There is insufficient antecedent basis for this limitation in the claim.
Claim Interpretation
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.
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: “blocking member” in claim 11.
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.
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.
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 and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over McCormick (US 20200353201) in view of Kamiya (JP 2003339868).
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 in detachable insertion fit and communication 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, and the gas source interface and the fresh gas interface are arranged on the main machine housing. 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), the first anesthetic gas passage is provided with a gas source interface 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) and the gas source interface 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 then 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.
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).
Claim(s) 10 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).
10. McCormick as modified discloses the anesthetic gas path system of claim 9, but does not disclose wherein a first driving gas passage and/or a first exhaust passage are/is provided inside the main machine housing, the first driving gas passage has a first driving gas interface and a second driving gas interface which are arranged on the main machine housing, the first driving gas interface serves for a driving gas from a ventilator to enter, the second driving gas interface outputs the driving gas, the first exhaust passage has a first exhaust emission interface and a second exhaust emission interface which are arranged on the main machine housing, the second exhaust emission interface serves for the exhaust in the first breathing circuit mechanism to enter, and the first exhaust emission interface is configured for delivering the exhaust to the third exhaust emission interface of the ventilator. 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 driving gas interface arranged on the main machine housing (Fig. 4, 121, p. 6: para. 4), 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.
However, Gong does not explicitly disclose a first driving gas interface arranged on the main machine housing, the first driving gas interface serves for a driving gas from a ventilator to enter. Nonetheless, Kamiya discloses multiple gas inlets 64 and multiple surplus gas interface 65 arranged on the main machine housing, the gas interface serving as for air to enter (see p. 2: paras 2 - 5, Fig. 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 machine ventilator of McCormick in view of Gong to include a designated first interface for driving gas for the predictable result of appropriately delivering the driving air through the machine housing and to the second interface. 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 the first driving gas interface serves for a driving gas from a ventilator to enter.
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, the second driving gas interface, the first exhaust emission interface, and/or the second exhaust emission 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. 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,
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” breathing mechanism bolded above, as well as ensuing terms including the word “second”, any or “a” breathing mechanism is interpreted to read on the term. See the discussion under section 35 USC 112(b) above.
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.
Allowable Subject Matter
Claim 10 would be allowable if rewritten 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 and to include all of the limitations of the base claim and any intervening claims, as well as filing of the terminal disclaimer.
The allowable subject matter would additionally require the following claim amendment: replace “wherein a first driving gas passage and/or a first exhaust passage are/is provided inside the main machine housing” with “wherein a first driving gas passage and a first exhaust passage are provided inside the main machine housing”.
The claim amendment would overcome the closest prior art of record. McCormick (US 20200353201) in view of Kamiya (JP 2003339868) in view of Gong (CN 105597210) would fail to disclose both a first driving gas passage and first exhaust gas passage as amended in claim 10. Gong discloses a single ventilator passage for driving the bellows, see Fig. 8, 121, p. 6: para. 4, and fails to disclose all of a first driving gas interface, second driving gas interface, first exhaust emission interface, and second exhaust emission interface as would be required in claim 10 upon providing the suggested amendment.
Conclusion
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.
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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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