DETAILED ACTION
This is the First Action for the Request for Continued Examination based on the 18/345,341 application filed on 06/30/2023 and which claims as amended on 01/23/2026 have been considered in the ensuing action. The non final mailed on 03/06/2026 has been withdrawn and a new non final has been issued to fix an issue with the rejections of claims 1-2.
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 .
Election/Restrictions
Claims 1-6, 13-18, and 27-30 are directed to the elected embodiment.
Interview
A call was made to attorney Ben Stasa on 03/02/2026 to discuss amending the independent claims to state ---position an open portion, of a breathing exercise apparatus, over a nose without covering an open mouth--- to overcome the prior art of Rahmani et al. The Applicant requested a written office action.
Claim Rejections - 35 USC § 103
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.
Claims 1 and 2 are rejected under 35 U.S.C. 103 as being unpatentable over Rahmani et al (US 2023/0263989) in view of Kezirian et al (US 10,335,635).
Regarding claim 1:
Rahmani teaches positioning an open portion (see annotated Fig. below) of a member (the member is the entire device shown in Fig. 3), of the breathing apparatus (the device is designed such that the user breathes through the device, and therefore has been considered a breathing apparatus), to a nose without covering an open a mouth of a user (see Fig. 1, the open portions are placed within the nose without covering any other portion of the face of the user) such that nasal breathing by the user through the open portion results in anterior movement of a soft palate of the user to open space in an area of a throat of the user behind the soft palate to create a continuous air pathway from the nose to lungs of the user (The device is configured to have the user breathe in and out through the nose of the user, which would result in anterior movement of the soft palate to open space in an area of the throat behind the soft palate to create continuous air pathway from the nose to the lungs); and performing by the user the nasal breathing exercise via the continuous air pathway, with the breathing apparatus, in which the user generates, a pressure within the open portion that exceeds a threshold pressure of a valve mechanism (Rahmani appears to show valve mechanisms that are biased closed, see Fig. 2A-2B, such that one is biased to open with positive pressure in the open portion and the other is biased to open with negative pressure in the open portion “on inhale, outside air 204 passes through vents 208 in device housing 212. The force of outside air 204 forces check valve 216 to open, while check valve 220 remains shut. This allows air 224 to selectively pass through device housing 212 into one nostril and not the other.” And “on exhale, air 254 passes from a user's nostril (not shown). The force of air causes check valve 258 to open, while check valve 262 remains closed, resulting in air 254 selectively passing through one nostril and not the other.” See paragraphs [0015-0016]), of the breathing apparatus, biased towards a closed position to cause the valve mechanism to open such that the open portion of the breathing apparatus is fluidly connected to a distal portion of the breathing apparatus and the lungs to train muscles of the user (breathing through the device will train the muscles of the user).
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Rahmani et al discusses performing the breathing exercises to reduce blood pressure, but fails to distinctly disclose that performing by the user the nasal breathing exercise via the continuous air pathway, with the breathing apparatus, in which the user generates, for a predetermined number of repetitions or duration of time.
Kezirian et al teaches various breathing exercisers with open proximal portions, valve mechanism and distal ends and a method of use that includes “and generating, by the user, with the head and neck exercise apparatus, for a predetermined number of repetitions or duration of time, the absolute pressure within the open proximal portion such that there is a response in the feedback mechanism to train muscles associated with creating the absolute pressure.” See claim 1.
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to replace the method of use disclosed by Rahmani et al with the method of use disclosed by Kezirian et al as both methods are directed to breathing exercises performed with a device having open proximal portions through which a user breathes, a valve mechanism and distal ends. Further, breathing (exercising) for a certain amount of time or repetitions is well known in the art.
Regarding claim 2:
Rahmani teaches positioning an open portion (see annotated Fig. below) of a member (the member is the entire device shown in Fig. 3), of the breathing apparatus (the device is designed such that the user breathes through the device, and therefore has been considered a breathing apparatus), to a nose without covering an open a mouth of a user (see Fig. 1, the open portions are placed within the nose without covering any other portion of the face of the user) such that nasal breathing by the user through the open portion results in anterior movement of a soft palate of the user to open space in an area of a throat of the user behind the soft palate to create a continuous air pathway from the nose to lungs of the user (The device is configured to have the user breathe in and out through the nose of the user, which would result in anterior movement of the soft palate to open space in an area of the throat behind the soft palate to create continuous air pathway from the nose to the lungs); and performing by the user the nasal breathing exercise via the continuous air pathway, with the breathing apparatus, in which the user generates, a pressure within the open portion that exceeds a threshold pressure of a valve mechanism (Rahmani appears to show valve mechanisms that are biased closed, see Fig. 2A-2B, such that one is biased to open with positive pressure in the open portion and the other is biased to open with negative pressure in the open portion “on inhale, outside air 204 passes through vents 208 in device housing 212. The force of outside air 204 forces check valve 216 to open, while check valve 220 remains shut. This allows air 224 to selectively pass through device housing 212 into one nostril and not the other.” And “on exhale, air 254 passes from a user's nostril (not shown). The force of air causes check valve 258 to open, while check valve 262 remains closed, resulting in air 254 selectively passing through one nostril and not the other.” See paragraphs [0015-0016]), of the breathing apparatus, biased towards a closed position to cause the valve mechanism to open such that the open portion of the breathing apparatus is fluidly connected to a distal portion of the breathing apparatus and the lungs to train muscles of the user (breathing through the device will train the muscles of the user).
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Rahmani et al discusses performing the breathing exercises to reduce blood pressure, but fails to distinctly disclose that performing by the user the nasal breathing exercise via the continuous air pathway, with the breathing apparatus, in which the user generates, for a predetermined number of repetitions or duration of time. Rahmani et al further fails to disclose that the check valve is biased open.
Kezirian et al teaches various breathing exercisers with open proximal portions, valve mechanism and distal ends and a method of use that includes “and generating, by the user, with the head and neck exercise apparatus, for a predetermined number of repetitions or duration of time, the absolute pressure within the open proximal portion such that there is a response in the feedback mechanism to train muscles associated with creating the absolute pressure.” See claim 1.
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to replace the method of use disclosed by Rahmani et al with the method of use disclosed by Kezirian et al as both methods are directed to breathing exercises performed with a device having open proximal portions through which a user breathes, a valve mechanism and distal ends. Further, breathing (exercising) for a certain amount of time or repetitions is well known in the art.
It would have been further obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the check valves of Rahmani et al to either be biased open, as taught by Kezirian et al as the function of the exerciser would not change as the check valves remain unidirectional.
Allowable Subject Matter
Claims 3-6, 13-18 and 27-30 are 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 Examiner notes that it would not be reasonable to modify the method of use of Rahmani et al to include a secondary apparatus with different features based on predefined criteria being met (claims 3, 4, 5, 6) or to pick between devices with different features (claims 13, 14) as the device of Rahmani et al is simply used for unidirectional airflow in each nostril and is not designed to have different resistances, or valve mechanisms.
Further, the Examiner notes that while Kezirian et al teaches the method of use of the apparatus in all aspects but that the open proximal portion is placed to a user’s nose without covering an open mouth for nose breathing, it would be unreasonable to modify Kezirian et al to be placed against the user’s nose, as Kezirian et al strictly teaches mouth exercise devices and further no secondary reference that teaches both a device that can be placed against a user’s mouth and separately against a user’s nose without covering a mouth, to perform exercises has been identified.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MEGAN M ANDERSON whose telephone number is (313)446-6531. The examiner can normally be reached M-TH 6 a.m. -4 p.m. (Arizona).
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/Megan Anderson/Primary Examiner, Art Unit 3784