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 .
Election/Restriction
Restriction to one of the following inventions is required under 35 U.S.C. 121:
I. Claims 1-7, drawn to a device to remove obstruction, classified in A61B17/24.
II. Claims 8-10, drawn to a method of removing an obstruction, classified in A61B17/50.
The inventions are independent or distinct, each from the other because:
Inventions I and II are related as product and process of use. The inventions can be shown to be distinct if either or both of the following can be shown: (1) the process for using the product as claimed can be practiced with another materially different product or (2) the product as claimed can be used in a materially different process of using that product. See MPEP § 806.05(h). In the instant case, the process can be practiced with another materially different product such as a suction assembly that does not require a locking assembly.
Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply:
The inventions require a different field of search, such as searching different electronic resources, classes and subclasses, and employing different search queries.
Applicant is advised that the reply to this requirement to be complete must include (i) an election of an invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention.
The election of an invention may be made with or without traverse. To reserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
During a telephone conversation with Kendal Sheets on September 26, 2025 a provisional election was made without traverse to prosecute the invention of I, claim 1-7. Affirmation of this election must be made by applicant in replying to this Office action. Claims 8-10 are withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
The examiner has required restriction between product or apparatus claims and process claims. Where applicant elects claims directed to the product/apparatus, and all product/apparatus claims are subsequently found allowable, withdrawn process claims that include all the limitations of the allowable product/apparatus claims should be considered for rejoinder. All claims directed to a nonelected process invention must include all the limitations of an allowable product/apparatus claim for that process invention to be rejoined.
In the event of rejoinder, the requirement for restriction between the product/apparatus claims and the rejoined process claims will be withdrawn, and the rejoined process claims will be fully examined for patentability in accordance with 37 CFR 1.104. Thus, to be allowable, the rejoined claims must meet all criteria for patentability including the requirements of 35 U.S.C. 101, 102, 103 and 112. Until all claims to the elected product/apparatus are found allowable, an otherwise proper restriction requirement between product/apparatus claims and process claims may be maintained. Withdrawn process claims that are not commensurate in scope with an allowable product/apparatus claim will not be rejoined. See MPEP § 821.04. Additionally, in order for rejoinder to occur, applicant is advised that the process claims should be amended during prosecution to require the limitations of the product/apparatus claims. Failure to do so may result in no rejoinder. Further, note that the prohibition against double patenting rejections of 35 U.S.C. 121 does not apply where the restriction requirement is withdrawn by the examiner before the patent issues. See MPEP § 804.01.
Claim Rejections - 35 USC § 102
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 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 1-6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Tarrats (US 4971053).
Regarding claim 1, Tarrats discloses a device to remove obstruction from throat of a user, comprising: a suction assembly, comprising: a housing (12) configured as a hollow cylindrical body and defining an inner surface and an outer surface, wherein the housing comprises: a housing proximal end (14); and a housing distal end (13); a plunger (16, 60) configured to be housed and move within the housing, the plunger defining an outer surface, wherein the plunger comprises: a plunger proximal end; and a plunger distal end (figure 2); wherein the plunger is configured to move within the hollow cylindrical body between a first position and a second position (; wherein in the first position, the plunger distal end is positioned near the housing distal end; and wherein in the second position (C:4, L:5-20), the plunger distal end is positioned farther from the housing distal end; a biasing member (31) positioned between the plunger distal end and the housing distal end and configured to bias the plunger in the second position; and a locking assembly (32), comprising: a plurality of protrusions (see image below) positioned on the outer surface of the plunger; and an engaging member (63, 62, 64) attached to the housing, wherein the engaging member is configurable between a hold position and a release position (figure 2, and depression of 63, C:4, L:15-20); wherein in the hold position, the engaging member is engaged with one of the plurality of protrusions to hold the plunger distal end near the housing distal end (figure 2); and wherein in the release position, the engaging member is disengaged from the one of the plurality of protrusions, to allow the plunger distal end to move farther from the housing distal end (C:4, L:15-20), to thereby create vacuum with the housing in a region between the plunger distal end and the housing distal end (C:4, L:20-25).
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Regarding claim 2, Tarrats discloses all of the limitations set forth in claim 1, wherein the biasing member is one of: a compression spring (C:2, L:52).
Regarding claim 3, Tarrats discloses all of the limitations set forth in claim 1, wherein the engaging member comprises: a lever (63) pivoted to the outer surface of the housing and comprising: a first lever end (62); and a second lever end (63); wherein the first lever end is configured to engage with one of the plurality of protrusions positioned on the outer surface of the plunger, and wherein the second lever end is configured to be manipulated by a user to thereby disengage the engaging member from the one of the plurality of protrusions (C:4, L:5-35).
Regarding claim 4, Tarrats discloses all of the limitations set forth in claim 1, wherein at least a part of the plunger forms an air-tight contact with the inner surface of the housing (C:2, L:39-41).
Regarding claim 5, Tarrats discloses all of the limitations set forth in claim 1 further comprising: a face mask (21) defining an opening at its centre, wherein the face mask is configured to be positioned at the face of a user, to enclose mouth and nose of the user.
Regarding claim 6, Tarrats discloses all of the limitations set forth in claim 1, wherein the housing distal end defines a hole (15); and wherein the housing distal end further comprises: a throat tube defining (24): a first end connected to the housing distal end, via the hole; and a second end, wherein the second end of the throat tube is configured to pass through an opening associated with a face mask and enter into mouth of a user (figure 2).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Tarrats (US 4971053) as applied to claim 1 above, and further in view of Deluca et al (US 20120221010).
Regarding claim 7, Tarrats discloses all of the limitations set forth in claim 1, wherein the locking assembly comprises: a first-level protrusion; and a second-level protrusion (61); wherein each of the first-level protrusion and the second-level protrusion, is positioned on the outer surface of the plunger, wherein in the hold position, the engaging member is configured to be engaged with one of the first-level protrusion and the second- level protrusion, to hold the plunger distal end near the housing distal end (C:4, L:5-35), wherein suction pressure generated when the engaging member is engaged with the first-level protrusion is less than when the engaging member is engaged with the second-level protrusion to accommodate different sized victims and reduce the chance of drawing too much air into the chamber from the victims mouth and lungs and collapsing the victim’s lungs and that the size and shape of the cylinder or housing may vary as desired. DeLuca et al (hereafter Deluca) teaches it was known in the art at the time of the invention to vary the vacuum pressure for various displacements of the piston to known values to create the desired measured amount of vacuum pressure for a particular sized victim (paragraphs 0061-0062, table 1). Therefore, it would have been within the skill of one with ordinary skill in the art at the time of the invention to specifically configure the device of Tarrats to have the suction pressure generated when the engaging member is engaged with the first-level protrusion in a range of 10 kilopascal (KPa) to 13 KPa, and wherein suction pressure generated when the engaging member is engaged with the second-level protrusion is in a range of 13 KPa to 16 KPa, in order to vary the vacuum pressure for various displacements of the piston to known values to create the desired measured amount of vacuum pressure for a particular sized victim since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANH TIEU DANG whose telephone number is (571)270-3221. The examiner can normally be reached Monday-Thursday (9am-4pm EST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Darwin Erezo can be reached at (571) 272-4695. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANH T DANG/Primary Examiner, Art Unit 3771