DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Response to Amendment
This office action is responsive to the amendment filed on January 9, 2024. As directed by the amendment: no claims have been amended, claims 1-21 have been canceled, and new claims 22-33 have been added. Thus, claims 22-33 are presently pending in the application.
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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 22-24, 26-28, and 30, 31, and 32 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 2 of U.S. Patent No. 11,376,448.
Claim 22 is anticipated by claim 2.
Claim 23 is anticipated by claim 2.
Claim 24 is anticipated by claim 2.
Claim 26 is anticipated by claim 9.
Claim 27 is anticipated by claim 9.
Claim 28 is anticipated by claim 9.
Claim 30 is anticipated by claim 16.
Claim 31 is anticipated by claim 16.
Claim 32 is anticipated by claim 16.
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
This application currently names joint inventors. In considering patentability of the claims under pre-AIA 35 U.S.C. 103(a), the examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a).
Claims 22, 23, 25-27, 29-31, and 33 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Mayes et al. (US 5,613,490), in view of Turiello (US 2009/0178675).
As to claim 22, Mayes discloses a self-contained breathing apparatus (Fig. 4), comprising: a cylinder 10 (air storage tank, col. 2, ln. 40-55, Abstract) having a pressure volume portion for containing a volume of gas pressurized to a service pressure of at least about 5,000 psig and no greater than about 6,000 psig (5000 psig, see Abstract, col. 3, ln. 31-34);
a frame 46 (Fig. 4, col. 4, ln. 45-47) configured to support the cylinder on a user's back (via straps 48, see Fig. 4, col. 5, ln. 11-13);
at least one regulator valve 40 (Fig. 4) in fluid communication with the cylinder 10 (col. 4, ln. 28-45);
wherein the cylinder pressure volume portion has a water volume of less than about 285 in3 (Mayes discloses the cylinder length A is 9.663 in and the diameter B is 2.375-2.38 in, which would equate to a volume of about 44 in3, see col. 3, ln. 34-38);
and wherein the cylinder has a weight of less than about 6.6 pounds (see Mayes, col. 4, ln. 1-4 where the 64 ft3 tank 12 weighs about 4.5 lbs, which is less than 6.6 pounds).
Mayes lacks detailed description as to the limitation that the cylinder has a rated service time of about 30 minutes (Mayes’ exemplary tank holds 64 ft3 of air which is equivalent to about 1800 L and a 45 minute service time by industry standards),
However, Turiello teaches a pressurized air cylinder used in the field of self-contained breathing apparatuses (SCBA) having a service pressure of about 30 minutes (the air cylinder may come in one of three standard sizes: 30, 45 or 60 minutes of breathing time, paragraph [0093]). Therefore, it would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to modify the cylinder of Mayes so that the size of the tank/cylinder is scaled to a 30 minute service pressure, as taught by Turiello, in order to offer an even lighter weight option for uses that do not require as much time.
It is noted that since Mayes’ 45 minute cylinder already has a volume and weight less than the claimed maximum, the modified cylinder/tank of Mayes, having a smaller size (holds at 30 minutes of air as opposed to 45 minutes of air), the volume and weight of the 30 minute cylinder/tank will be even less when filled to the same 5000 psi. Therefore, modified Mayes still fulfills the size and weight requirements of the claim.
Mayes further discloses that the gas is provided from the cylinder 10 to the user via a valve connected to outlet 44, see Fig. 4, col. 4, ln. 41-45), but lacks detailed description as to a mask arranged to provide the gas to the user.
However, Turiello teaches that an SCBA such as an open-rescue or firefighter SCBA includes a full face mask (paragraph [0093]). Thus, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the apparatus of Mayes to include a mask, as taught by Turiello, as a well-known means for providing a sealed interface with the user’s airway for delivering the air from the cylinder to the user’s airways without introducing any contaminants..
As to claim 23, modified Mayes discloses the self-contained breathing apparatus of claim 22, wherein the length of the pressure volume portion is no greater than about 17.3 inches, and wherein the diameter of the pressure volume portion is no greater than about 4.7 inches (since Mayes’ 45 minute cylinder already has a length (9.663 in) and weight (4.5 lbs) less than the claimed maximum values, the modified cylinder of Mayes, having a smaller size (holds at 30 minutes of air as opposed to 45 minutes of air), will have an even smaller length and diameter, see col. 4, ln. 1-4).
As to claim 25, modified Mayes discloses the self-contained breathing apparatus of claim 22, wherein the length and diameter of the pressure volume portion are selected to provide a weight reduction greater than about 5% as compared to a compressed gas cylinder for a self-contained breathing apparatus having a service pressure of about 4500 psig (Mayes’ cylinder weighs about 4.5 lbs, see col. 4, ln. 1-4, which is about a 32% weight reduction from the 6.6 lb traditional cylinder disclosed by Applicant in Fig. 3; thus, the modified Myaes’ cylinder, with an even smaller size, will have an even greater weight reduction than 32%).
As to claim 26, Mayes discloses a self-contained breathing apparatus (Fig. 4), comprising: a cylinder 10 (air storage tank, col. 2, ln. 40-55, Abstract) having a pressure volume portion for containing a volume of gas pressurized to a service pressure of at least about 5,000 psig and no greater than about 6,000 psig (5000 psig, see Abstract, col. 3, ln. 31-34);
a frame 46 (Fig. 4, col. 4, ln. 45-47) configured to support the cylinder on a user's back (via straps 48, see Fig. 4, col. 5, ln. 11-13);
at least one regulator valve 40 (Fig. 4) in fluid communication with the cylinder 10 (col. 4, ln. 28-45);
wherein the cylinder has a rated service time of about 45 minutes (Mayes’ exemplary tank holds 64 ft3 of air which is equivalent to about 1800 L and a 45 minute service time by industry standards);
wherein the cylinder pressure volume portion has a water volume of less than about 418 in3 (Mayes discloses the cylinder length A is 9.663 in and the diameter is 2.375-2.38 in, which would equate to a volume of about 44 in3, see col. 3, ln. 34-38);
and wherein the cylinder 12 has a weight of less than about 9 pounds (see Mayes, col. 4, ln. 1-4, where the 64 ft3 tank 12 weighs about 4.5 lbs, which is less than 9 pounds).
Mayes further discloses that the gas is provided from the cylinder 10 to the user via a valve connected to outlet 44, see Fig. 4, col. 4, ln. 41-45), but lacks detailed description as to a mask arranged to provide the gas to the user.
However, Turiello teaches that an SCBA such as an open-rescue or firefighter SCBA includes a full face mask (paragraph [0093]). Thus, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the apparatus of Mayes to include a mask, as taught by Turiello, as a well-known means for providing a sealed interface with the user’s airway for delivering the air from the cylinder to the user’s airways without introducing any contaminants.
As to claim 27, modified Mayes discloses the self-contained breathing apparatus of claim 26, wherein the length of the pressure volume portion is no greater than about 19.5 inches, and wherein the diameter of the pressure volume portion is no greater than about 5.4 inches (Mayes’ cylinder has a length of 9.663 in and diameter of 2.375-2.80 in., see col. 3, ln. 5-8).
As to claim 29, modified Mayes discloses the self-contained breathing apparatus of claim 26, wherein the length and diameter of the pressure volume portion are selected to provide a weight reduction greater than about 5% as compared to a compressed gas cylinder for a self-contained breathing apparatus having a service pressure of about 4500 psig. (Mayes’ cylinder weighs about 4.5 lbs, see col. 4, ln. 1-4, which is about a 32% weight reduction from the 6.6 lb traditional cylinder disclosed by Applicant in Fig. 3).
As to claim 30, Mayes discloses a self-contained breathing apparatus (Fig. 4), comprising: a cylinder 10 (air storage tank, col. 2, ln. 40-55, Abstract) having a pressure volume portion for containing a volume of gas pressurized to a service pressure of at least about 5,000 psig and no greater than about 6,000 psig (5000 psig, see Abstract, col. 3, ln. 31-34);
a frame 46 (Fig. 4, col. 4, ln. 45-47) configured to support the cylinder on a user's back (via straps 48, see Fig. 4, col. 5, ln. 11-13);
at least one regulator valve 40 (Fig. 4) in fluid communication with the cylinder 10 (col. 4, ln. 28-45);
wherein the cylinder pressure volume portion has a water volume of less than about 550 in3 (Mayes discloses the cylinder length L is 9-10 in and the diameter is 2.38 in, which would equate to a volume of about 44 in3)
and wherein the cylinder has a weight of less than about 11.6 pounds (see Mayes, col. 4, ln. 1-4 where the 64 ft3 tank 12 weighs about 4.5 lbs, which is less than 6.6 pounds).
Mayes lacks detailed description as to the limitation that the cylinder has a rated service time of about 60 minutes (Mayes’ exemplary tank holds 64 ft3 of air which is equivalent to about 1800 L and a 45 minute service time by industry standards), but does disclose that the tank may assume various dimension including a larger size tank having a length A of 20.0 inches (col. 4, ln. 48-52).
Furthermore, Turiello teaches a pressurized air cylinder used in the field of self-contained breathing apparatuses (SCBA) having a service pressure of about 60 minutes (the air cylinder may come in one of three standard sizes: 30, 45 or 60 minutes of breathing time, paragraph [0093]). Therefore, it would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to modify the cylinder of Mayes so that the size of the tank/cylinder is scaled to a 45 minute service pressure, as taught by Turiello, in order to offer a larger capacity option for users requiring more time.
It is noted that Mayes’ 45 minute cylinder has a volume that is about 8% of the claimed maximum volume (44 in3/550 in3) and a weight that is about 39% of the claimed maximum weight for a 60 minute cylinder. Because the weight and volume of Mayes’ 45 minute cylinder is so much less than the claimed 60-minute cylinder, when scaling up to the larger capacity using the same materials relative dimensions and wall thickness disclosed by Mayes, the modified cylinder/tank when filled to the same 5000 psi, would still be much less than the claimed 11.6 lbs., since reaching this maximum would require an unrealistic 250% weight increase. Therefore, modified Mayes still fulfills the size and weight requirements of the claim, as recognized by one of ordinary skill in the art.
Mayes further discloses that the gas is provided from the cylinder 10 to the user via a valve connected to outlet 44, see Fig. 4, col. 4, ln. 41-45), but lacks detailed description as to a mask arranged to provide the gas to the user.
However, Turiello teaches that an SCBA such as an open-rescue or firefighter SCBA includes a full face mask (paragraph [0093]). Thus, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the apparatus of Mayes to include a mask, as taught by Turiello, in order to provide a well-known means for providing a sealed interface for delivering the gas from the cylinder to the user’s airways to breathe the air without contaminants.
As to claim 31, modified Mayes discloses the self-contained breathing apparatus of claim 30, wherein the length of the pressure volume portion is no greater than about 20.3 inches, and wherein the diameter of the pressure volume portion is no greater than about 6.1 inches (the dimensions claimed are more than twice the value of Mayes’ 45 minute tank; thus, as one of ordinary skill in the art would readily recognize, the scaled up 60 minute tank of modified Mayes would still fulfill the limitation as it would not take a cylinder more than double the length and diameter to produce a 60-minute capacity vs a 45-minute capacity tank).
As to claim 33, modified Mayes discloses the self-contained breathing apparatus of claim 30, wherein the length and diameter of the pressure volume portion are selected to provide a weight reduction greater than about 5% as compared to a compressed gas cylinder for a self-contained breathing apparatus having a service pressure of about 4500 psig. (Applicant discloses the weight of a traditional 60 minute cylinder as being about 11.6 lbs (see Applicant’s Fig. 3); this would mean the maximum weight of the claimed cylinder, with a 5% weight reduction, would be about 11 lbs, which is more than double the weight of Mayes’ 45-minute cylinder (4.5 lbs); thus, as one of ordinary skill in the art would readily recognize, the scaled up 60-minute cylinder of modified Mayes would still fall within the claimed cope as it would not take double the weight to produce a 60-minute capacity tank vs a 45-minute capacity tank, see col. 4, ln. 1-4).
Allowable Subject Matter
Claims 24, 28, and 32 would be allowable if rewritten to overcome the Double Patenting rejection(s) set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Chornyj (US 2002/0153009) discloses a pressurized cylinder with a service pressure of 4500-7000 psi.
Teetzel et al. (US 2007/0235030) discloses a compressed gas cylinder pressurized to a service pressure of up to 9500 psi.
Shonerd (US 3,762,604) and Kranz (US 4,221,216) each disclose providing breathing gas to a user from a small, lightweight cylinder of gas at a pressure of 5000 psi or greater.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VALERIE L WOODWARD whose telephone number is (571)270-1479. The examiner can normally be reached Monday - Friday 8:30 am - 4:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, KENDRA CARTER can be reached at (571)272-9034. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/VALERIE L WOODWARD/Primary Examiner, Art Unit 3785
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