DETAILED ACTION
This is the First Action for the Request for Continued Examination based on the 18/345,374 application filed on 06/30/2023 and which claims as amended on 04/06/2026 have been considered in the ensuing 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 Rejections - 35 USC § 102
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.
Claims 1-2 and 9-11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Rahmani et al (US 2023/0263989).
Regarding claim 1:
Rahmani et al disclose a member defining an open proximal portion (see annotated Fig. below) configured to be disposed to a nose without covering an open mouth of a user such that nasal breathing by the user through the open proximal 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 open proximal portion is positioned to a nose, does not cover a mouth and breathing through the nose would result in the movement claimed. The Examiner further notes that the claim language is intended use, and the apparatus must only be capable of performing the claimed function); a valve mechanism (valve 312) operatively arranged with the member and biased towards a closed position (Rahmani discloses that the valve is biased closed and opens when the user breathes through the proximal portion) unless an absolute pressure in the open proximal portion, resulting from the nasal breathing, is greater than a threshold pressure (see Fig. 3); and a distal portion (see annotated Fig. below), wherein the open proximal portion and distal portion are fluidly connected when the valve mechanism is not in the closed position (see Fig. 2A-2B showing airflow).
[AltContent: textbox (Distal portion)][AltContent: arrow][AltContent: textbox (Valve mechanism)][AltContent: arrow][AltContent: textbox (Open proximal portion)][AltContent: arrow]
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Regarding claim 2:
Rahmani et al disclose the threshold pressure is based on at least one of a stiffness of the valve mechanism, a dimension of the valve mechanism, or a dimension of the member (the stiffness of the valve mechanism and dimensions inherently contribute to the threshold pressure of the valve).
Regarding claim 9:
Rahmani et al disclose a first apparatus (the instant application discloses that the first and second apparatus can share a housing, for purposes of examination, the left and right side of the device of Rahmani et al has been disclosed as the first and second apparatus, as is consistent with the Applicant’s disclosure) comprising a first member defining a first open (see annotated Fig. below) proximal portion configured to be disposed to a nose without covering an open mouth (see Figs. 1-3) of a user such that nasal breathing by the user through the first open proximal 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 open proximal portion is positioned to a nose, does not cover a mouth and breathing through the nose would result in the movement claimed. The Examiner further notes that the claim language is intended use, and the apparatus must only be capable of performing the claimed function), a first valve mechanism (see annotated Fig. below) operatively arranged with the first member and biased towards a closed position unless an absolute pressure in the first open proximal portion (Rahmani et al shows the valve mechanism biased in a closed position), resulting from the nasal breathing, is greater than a threshold pressure and a first distal portion, wherein the first open proximal and first distal portions are fluidly connected when the first valve mechanism is not in the closed position (see Fig. 1-3); and a second apparatus comprising a second member defining a second open proximal portion (see annotated Fig. below) configured to be disposed to the nose without covering the open mouth of the user (the open proximal portion is positioned to a nose, does not cover a mouth and breathing through the nose would result in the movement claimed. The Examiner further notes that the claim language is intended use, and the apparatus must only be capable of performing the claimed function), a second valve mechanism (see annotated Fig. below) operatively arranged with the second member and biased towards a closed position unless an absolute pressure in the second open proximal portion is greater than a threshold pressure, and a second distal portion, wherein the second open proximal and second distal portions are fluidly connected when the second valve mechanism is not in the closed position (see Fig. 1-3).
[AltContent: arrow][AltContent: arrow][AltContent: textbox (Distal portion)][AltContent: arrow][AltContent: textbox (Valve mechanism)][AltContent: arrow][AltContent: textbox (Open proximal portion)][AltContent: arrow]
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Regarding claim 11:
Rahmani et al disclose that the first and second apparatus define a combined housing (see explanation in claim 9 above).
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 5-6, 12, 14-15 and 17 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 5:
Rahmani et al disclose a member defining an open proximal portion (see annotated Fig. below) configured to be disposed to a nose without covering an open mouth of a user such that nasal breathing by the user through the open proximal 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 open proximal portion is positioned to a nose, does not cover a mouth and breathing through the nose would result in the movement claimed. The Examiner further notes that the claim language is intended use, and the apparatus must only be capable of performing the claimed function); a valve mechanism (valve 312) operatively arranged with the member and biased towards a closed position (Rahmani discloses that the valve is biased closed and opens when the user breathes through the proximal portion) unless an absolute pressure in the open proximal portion, resulting from the nasal breathing, is greater than a threshold pressure (see Fig. 3); and a distal portion (see annotated Fig. below), wherein the open proximal portion and distal portion are fluidly connected when the valve mechanism is not in the closed position (see Fig. 2A-2B showing airflow).
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Rahmani et al fails to specifically disclose that the valve mechanism is biased to the open position.
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 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.
Regarding claim 6:
Rahmani et al as modified disclose the threshold pressure is based on at least one of a stiffness of the valve mechanism, a dimension of the valve mechanism, or a dimension of the member (the stiffness of the valve mechanism and dimensions inherently contribute to the threshold pressure of the valve).
Regarding claim 12:
Rahmani et al disclose a first apparatus (the instant application discloses that the first and second apparatus can share a housing, for purposes of examination, the left and right side of the device of Rahmani et al has been disclosed as the first and second apparatus, as is consistent with the Applicant’s disclosure) comprising a first member defining a first open (see annotated Fig. below) proximal portion configured to be disposed to a nose without covering an open mouth (see Figs. 1-3) of a user such that nasal breathing by the user through the first open proximal 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 open proximal portion is positioned to a nose, does not cover a mouth and breathing through the nose would result in the movement claimed. The Examiner further notes that the claim language is intended use, and the apparatus must only be capable of performing the claimed function), a first valve mechanism (see annotated Fig. below) operatively arranged with the first member and biased towards a closed position unless an absolute pressure in the first open proximal portion (Rahmani et al shows the valve mechanism biased in a closed position), resulting from the nasal breathing, is greater than a threshold pressure and a first distal portion, wherein the first open proximal and first distal portions are fluidly connected when the first valve mechanism is not in the closed position (see Fig. 1-3); and a second apparatus comprising a second member defining a second open proximal portion (see annotated Fig. below) configured to be disposed to the nose without covering the open mouth of the user (the open proximal portion is positioned to a nose, does not cover a mouth and breathing through the nose would result in the movement claimed. The Examiner further notes that the claim language is intended use, and the apparatus must only be capable of performing the claimed function), a second valve mechanism (see annotated Fig. below) operatively arranged with the second member and biased towards a closed position unless an absolute pressure in the second open proximal portion is greater than a threshold pressure, and a second distal portion, wherein the second open proximal and second distal portions are fluidly connected when the second valve mechanism is not in the closed position (see Fig. 1-3).
[AltContent: arrow][AltContent: arrow][AltContent: textbox (Distal portion)][AltContent: arrow][AltContent: textbox (Valve mechanism)][AltContent: arrow][AltContent: textbox (Open proximal portion)][AltContent: arrow]
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Rahmani et al fails to specifically disclose one 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 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 closed or biased open, as taught by Kezirian et al as the function of the exerciser would not change as the check valves remain unidirectional. The Examiner further notes that having one valve biased open to positive pressure and on valve biased closed to positive pressure, would also result in unidirectional breathing through each nostril, as intended by Rahmani et al.
Regarding claim 14:
Rahmani et al as modified disclose that the first and second apparatus define a combined housing (see explanation in claim 9 above).
Regarding claim 15:
Rahmani et al disclose a first apparatus (the instant application discloses that the first and second apparatus can share a housing, for purposes of examination, the left and right side of the device of Rahmani et al has been disclosed as the first and second apparatus, as is consistent with the Applicant’s disclosure) comprising a first member defining a first open (see annotated Fig. below) proximal portion configured to be disposed to a nose without covering an open mouth (see Figs. 1-3) of a user such that nasal breathing by the user through the first open proximal 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 open proximal portion is positioned to a nose, does not cover a mouth and breathing through the nose would result in the movement claimed. The Examiner further notes that the claim language is intended use, and the apparatus must only be capable of performing the claimed function), a first valve mechanism (see annotated Fig. below) operatively arranged with the first member and biased towards a closed position unless an absolute pressure in the first open proximal portion (Rahmani et al shows the valve mechanism biased in a closed position), resulting from the nasal breathing, is greater than a threshold pressure and a first distal portion, wherein the first open proximal and first distal portions are fluidly connected when the first valve mechanism is not in the closed position (see Fig. 1-3); and a second apparatus comprising a second member defining a second open proximal portion (see annotated Fig. below) configured to be disposed to the nose without covering the open mouth of the user (the open proximal portion is positioned to a nose, does not cover a mouth and breathing through the nose would result in the movement claimed. The Examiner further notes that the claim language is intended use, and the apparatus must only be capable of performing the claimed function), a second valve mechanism (see annotated Fig. below) operatively arranged with the second member and biased towards a closed position unless an absolute pressure in the second open proximal portion is greater than a threshold pressure, and a second distal portion, wherein the second open proximal and second distal portions are fluidly connected when the second valve mechanism is not in the closed position (see Fig. 1-3).
[AltContent: arrow][AltContent: arrow][AltContent: textbox (Distal portion)][AltContent: arrow][AltContent: textbox (Valve mechanism)][AltContent: arrow][AltContent: textbox (Open proximal portion)][AltContent: arrow]
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Rahmani et al fails to specifically disclose that the valve mechanisms are biased to the open position.
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 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.
Regarding claim 17:
Rahmani et al as modified disclose that the first and second apparatus define a combined housing (see explanation in claim 9 above).
Allowable Subject Matter
Claims 3, 7, 10, 13 and 16 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.
Response to Arguments
Applicant’s arguments with respect to claims specifically regarding prior art references of Roy (US 4,601,465) and Kezirian et al (US 10,335,635) 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.
With respect to the arguments addressing the Rahmani et al (US 2023/0263989), discussed during the interview conducted on 01/21/2026, the arguments are not persuasive.
With regards to the valve mechanism of Rahmani et al, the Examiner respectfully disagrees. Rahmani et al discloses one-way check valves, which is shown in Fig. 3 to be closed in the direction opposite the required airflow. The check valves only open when there is pressure exerted in the direction in which it opens. Paragraphs [0015-0016] states that the airflow is causing the valve to open, therefore it is biased shut (“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 paragraph [0016]). With regards to the absolute pressure, the user inhaling and exhaling is causing a pressure to increase to the point of the one-way valve opening respectively, this fulfils the limitation of the valve responding to the threshold pressure. With regards to the arguments addressing flow direction and pressure magnitude, the pressure magnitude/threshold pressure has not been defined. A pressure magnitude/ threshold pressure above zero would fulfil the limitation.
With respect to the previous arguments regarding Kezirian, the rejection has been changed such that Kezirian is only relied on to discuss various valve mechanism.
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).
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, LoAn Jimenez can be reached at 571-272-4966. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Megan Anderson/Primary Examiner, Art Unit 3784
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