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 .
This office action is in response to the claims filed 1/31/24. Claims 1-15 are pending in the instant application.
Information Disclosure Statement
The information disclosure statements filed 2/1/24 and 7/2/24 fails to comply with 37 CFR 1.98(a)(3)(i) because it does not include a concise explanation of the relevance, as it is presently understood by the individual designated in 37 CFR 1.56(c) most knowledgeable about the content of the information, of each reference listed that is not in the English language. It has been placed in the application file, but the information referred to therein has not been considered.
Note: the crossed through NPL references are not being considered at this time as they are in a foreign language and no translation thereof or other explanation of relevance has been provided.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
Note: the terms “comprising” (line 2), “means” (line 2, two instances, 3, 4, 5, and 6) are improper language for an abstract.
Claim Objections
Claims 2-11, 12, 14, and 15 are objected to because of the following informalities:
Regarding claims 2-11, the language “Apparatus according to Claim” (line 1) is objected to for matters of form/consistency of claim terminology; Examiner suggests amending to read –The gas supply apparatus according to Claim--.
Regarding claim 2, the language “a user” (line 2) is objected to as the user has already been set forth in claim 1 line 4; Examiner suggests amending to read –the user--.
Regarding claim 12, the language “NO/N2” (line 2) is objected to for a typographical error; Examiner suggests amending to read –NO/N2--.
Regarding claim 14, the language “NO/N2” (line 2) is objected to for a typographical error; Examiner suggests amending to read –NO/N2--.
Regarding claim 15, the language “NO/N2” (line 1) is objected to for a typographical error; Examiner suggests amending to read –NO/N2--.
Appropriate correction is required.
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.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
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: “valve means” in claim 1 (such as solenoid valves per pg. 12 of the specification), “selection means” in claim 1, 2 (such as keys/buttons per pg. 19 of the specification), “storage means for storing” in claim 9 (such as memory per pg. 11 of the specification).
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.
This application includes one or more claim limitations that use the word “means” or “step” but are nonetheless not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph because the claim limitation(s) recite(s) sufficient structure, materials, or acts to entirely perform the recited function. Such claim limitation(s) is/are: “control means” in claim 1.
Because this/these claim limitation(s) is/are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are not being interpreted to cover only the corresponding structure, material, or acts described in the specification as performing the claimed function, and equivalents thereof.
If applicant intends 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 remove the structure, materials, or acts that performs the claimed function; or (2) present a sufficient showing that the claim limitation(s) does/do not recite sufficient structure, materials, or acts to perform the claimed function.
The claim recites sufficient structure, i.e. the “microprocessor” in claim 1 that performed the claimed control function.
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.
Claims 1-15 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.
Claim 1 recites the limitation "the supply of gas" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 2, the language “it further comprises …” (line 2) is unclear as it is not known what the term ‘it’ is referring to, i.e. what further comprises … in this claim.
Regarding claim 3, the language “it comprises …” (line 1) is unclear as it is not known what the term ‘it’ is referring to, i.e. what further comprises … in this claim.
Claim 5 recites the limitation "the graphical display" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 6, the language “to supply them with” (line 2) is unclear as it is not known what the term ‘them’ is referring to, i.e. to what is being supplied with in this claim.
Regarding claim 6, the language “the command signal” (line 5) is unclear as the language “at least one command signal” in line 2-3 sets forth the possibility of plural command signals and it is not clear as to which, of the possible plural, command signal(s) the language in line 5 is referring to. Examiner suggests amending to read –the at least one command signal--.
Regarding claim 7, the phrase "in particular" (line 2, two instances) renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 9, the language “it comprises …” (line 1) is unclear as it is not known what the term ‘it’ is referring to, i.e. what further comprises … in this claim.
Claim 10 recites the limitation "the graphical display" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 11 recites the limitation "the instantaneous duration Dinst)" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Regarding claim 12, the term “Installation (20) for administering gas” (line 1) is unclear as the examiner cannot ascertain what statutory category of invention is being set forth in this claim of the four statutory categories, a process, machine, manufacture, or composition of matter. Further, it is not clear what an “Installation” is; if this is referring to an installation method or some type of overall system.
Regarding claim 12, the phrase "such as" (line 2) renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim 12 recites the limitation "said at least one therapeutic gas source" in line 3-4. There is insufficient antecedent basis for this limitation in the claim. It is not known if applicant is intending to set forth a new therapeutic gas source or refer back to the “at least one source (21) of gas” set forth in line 2.
Regarding claim 13, the language “it further comprises …” (line 1) is unclear as it is not known what the term ‘it’ is referring to, i.e. what further comprises … in this claim.
Regarding claim 15, the language “the gas source” (line 1) is unclear as it is not known which of the plural potential gas sources of the “at least one source (21) of gas” or “at least one therapeutic gas source” set forth in claim 12, this language in line 1 is referring to.
Regarding claim 15, the phrase "preferably" renders the claim indefinite because it is unclear whether the limitation(s) following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claims 4, 8, and 14 are rejected based on dependency on a rejected claim.
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.
Claim(s) 1-9 and 11-15 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Blandin et al. (2021/0146086).
Regarding claim 1, Blandin discloses a gas supply apparatus (see Fig. 1, apparatus 1, abstract and para. 0122) comprising at least one internal passage for supplying a flow of gas and comprising valve means (see Fig. 1, internal passage 2 and valve means 5, see para. 0122, 0125), control means with microprocessor, instructing the valve means to control the supply of gas (see Fig. 1, control means 6, see para. 0125-0126 disclosing control with microprocessor), and selection means which can be actuated by a user and configured to allow the user to start or stop a supply of gas (see Fig. 1, selection means 8, see para. 0131, 0137-0142), characterized in that the control means are configured to count a total duration (Dtot) of actual supply of gas by the apparatus corresponding to the cumulative total of all time periods (dti) that have elapsed between a start and a stop of a supply of gas by the apparatus (see para. 0156-0163 for example).
Regarding claim 2, the Blandin apparatus is characterized in that it further comprises selection means which can be actuated by the user to allow to choose between starting and stopping a supply of gas (selection means 8 of Fig. 1, see para. 0156-0163, in particular 0157 which discloses ability to pause treatment which allows selective starting and stopping supply of gas), and a total duration (Dtot) of actual supply of gas by the apparatus corresponds to the cumulative total of all time periods elapsed between choices, made by the user, of starting and stopping a supply of gas AF via the user actuating the selection means of the apparatus (see para. 0156-0163 in particular para. 0157 which discloses accounting for pauses in supply of gas when determining total duration of actual supply).
Regarding claim 3, the Blandin apparatus is characterized in that it comprises a graphical display controlled by the control means or the selection means comprise one or more selection keys (see Fig. 1, selection keys 9a-d, para. 0132-0133, 0138-0142, 0156-0159, graphical display 7, see para. 0129-0130 for example).
Regarding claim 4, the Blandin apparatus is characterized in that the graphical display comprises a touch screen and the one or more selection keys are virtual keys displayed on the touch screen (see Fig. 1, touch screen display 7 with virtual selection keys 9a-d, para. 0129-0130, 0028, 0132, 0138-0143).
Regarding claim 5, the Blandin apparatus is characterized in that the control means is configured to control a display on the graphical display of the total duration Dtot of actual supply of gas (see Fig. 1 graphical display 7, 0129-0131, 0156-0163).
Regarding claim 6, the Blandin apparatus is characterized in that the selection means cooperates with the control means to supply them with command signal(s) corresponding to the choice made by the user and instruct the valve means to control flow of gas in the internal passage in response to the command signal(s) supplied by the selection means to authorize or stop any flow of gas (see para. 0156-0163, 0045-0053, 0125-0126 for example).
Regarding claim 7, the Blandin apparatus is characterized in that the control means comprise a time counter integrated in the control means in particular the microprocessor in particular an algorithm acting as a time counter (see para. 0156-0163, determining total treatment duration includes a time counter).
Regarding claim 8, the Blandin apparatus is characterized in that the time counter in the control means is configured to count all time periods dti elapsing between a choice by the user of starting and stopping the supply of gas and excluding any period of non-supply of gas (see para. 0156-0163, in particular 0157 which discloses accounting for pauses in supply of gas when determining total duration of actual supply).
Regarding claim 9, the Blandin apparatus is characterized in that it comprises storage means for storing total duration Dtot of actual supply of gas and/or all the time periods (see para. 0065-0076, memory).
Regarding claim 11, the Blandin apparatus is configured to determine a short treatment TC or long treatment TL from instant durations of an ongoing treatment of a given patient (see para. 0160-0163).
Regarding claim 12, Blandin discloses an installation/system for administering gas to a patient (see Fig. 2 showing overall system/installation, para. 0174) comprising at least one gas source of gas, such as an NO/N2 mixture (see Fig. 2, gas source 21 of NO/N2 per para. 0174); a gas supply apparatus according to one of the preceding claims fed with gas by the source (see Fig. 2 which shows the gas supply apparatus 1 as part of the installation/system, see above discussion of claims to this gas supply apparatus), and a gas feed line fed with gas by the gas supplying apparatus (see Fig. 2, gas feed line 22, see para. 0179).
Regarding claim 13, the Blandin installation is characterized in that it further comprises a medical ventilator in fluidic communication with the gas feed line (see Fig. 2, medical ventilator 23, para. 0177).
Regarding claim 14, the Blandin installation’s at least one gas source contains an NO/N2 mixture (see para. 0174).
Regarding claim 15, the Blandin installation is characterized in that the gas source contains NO/N2 mixture containing less than 2000 ppm by volume of NO with the remainder being nitrogen, preferably less than 1000 ppm by volume of NO, the remainder being nitrogen (see para. 0094).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Blandin in view of Orr et al. (2003/0116159).
Regarding claim 10, the Blandin apparatus is silent as to the control means displaying a determined instantaneous duration of ongoing treatment on the graphical display (note Blandin discloses displaying any kind of information per para. 0130); however, Orr teaches a similar respiratory which includes a real-time clock display (see para. 0065). Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the Blandin apparatus to include real time display of instantaneous duration, as taught by Orr, in order to provide real-time display of duration per Orr.
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 1-2 and 11 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 3 of U.S. Patent No. 11,806,474.
Although the claims at issue are not identical, they are not patentably distinct from each other because patent claim 3 includes each structural and functional limitation as claimed (see patent claim 1 which discloses an internal passage, valve, controller, user interface which is the selection means, and determination of total duration of supply, claim 3 disclosing the controller including a microprocessor) and additional limitations (such as the determination of number of short and long treatment durations) such that the patent claim is a narrower version of the instant claims. As such, any infringement on the patent claims would result in infringement on the instant claims.
Instant claims 1-2 and 11 correspond to patent claim 3.
Claims 1, 3-9, and 12-15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4-5, and 11-13 of U.S. Patent No. 11,806,474 in view of Blandin.
Regarding claim 1, the patent claim 1 apparatus includes each structural and functional limitation as claimed (see patent claim 1 which discloses an internal passage, valve, controller, user interface which is the selection means, and determination of total duration of supply), but is silent as to the control means including a microprocessor; however, Blandin teaches this limitation (see Blandin para. 0126). Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the patent claim 1 apparatus’ control means to include a microprocessor, as taught by Blandin, as this would have been obvious substitution of one known element for another and one would expect the modified patent claim 1 to perform equally as well.
Instant claims 1 and 5-9 correspond to modified patent claim 1 (modified in view of the teachings of Blandin). Instant claims 3-4 correspond to modified patent claims 4-5, respectively. Instant claims 12-14 correspond to modified patent claims 11-13, respectively.
Regarding instant claim 15, the modified patent claim 13 is silent as to the specifics of the gas source as claimed; however, Blandin teaches this type of NO/N2 mixture source (see Blandin para. 0094). Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified patent claim 13 device’s source to be of the type as taught by Blandin as this would have been obvious choice or substitution of known sources.
Claim 10 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,806,474 in view of Blandin and Orr.
Regarding instant claim 10, the modified patent claim 1 apparatus is silent as to the control means displaying a determined instantaneous duration of ongoing treatment on the graphical display (note Blandin discloses displaying any kind of information per para. 0130); however, Orr teaches a similar respiratory which includes a real-time clock display (see para. 0065). Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified patent claim 1 apparatus to include real time display of instantaneous duration, as taught by Orr, in order to provide real-time display of duration per Orr.
Claims 1-2 and 11 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 2 of U.S. Patent No. 12,350,426.
Although the claims at issue are not identical, they are not patentably distinct from each other because patent claim 2 includes each structural and functional limitation as claimed (see patent claim 1 which discloses an internal passage, valve, controller, user interface which is the selection means, and determination of total duration of supply, claim 2 disclosing the controller including a microprocessor) and additional limitations (such as the determination of number of short and long treatment durations) such that the patent claim is a narrower version of the instant claims. As such, any infringement on the patent claims would result in infringement on the instant claims.
Instant claims 1-2 and 11 correspond to patent claim 2.
Claims 1, 3-9, and 12-15 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 11-13 of U.S. Patent No. 12,350,426 in view of Blandin.
Regarding claim 1, the patent claim 1 apparatus includes each structural and functional limitation as claimed (see patent claim 1 which discloses an internal passage, valve, controller, user interface which is the selection means, and determination of total duration of supply), but is silent as to the control means including a microprocessor; however, Blandin teaches this limitation (see Blandin para. 0126). Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the patent claim 1 apparatus’ control means to include a microprocessor, as taught by Blandin, as this would have been obvious substitution of one known element for another and one would expect the modified patent claim 1 to perform equally as well.
Instant claims 1 and 3-9 correspond to modified patent claim 1 (modified in view of the teachings of Blandin). Instant claims 12-14 correspond to modified patent claims 11-13, respectively.
Regarding instant claim 15, the modified patent claim 13 is silent as to the specifics of the gas source as claimed; however, Blandin teaches this type of NO/N2 mixture source (see Blandin para. 0094). Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified patent claim 13 device’s source to be of the type as taught by Blandin as this would have been obvious choice or substitution of known sources.
Claim 10 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 2 of U.S. Patent No. 12,350,426 in view of Blandin and Orr.
Regarding instant claim 10, the modified patent claim 1 apparatus is silent as to the control means displaying a determined instantaneous duration of ongoing treatment on the graphical display (note Blandin discloses displaying any kind of information per para. 0130); however, Orr teaches a similar respiratory which includes a real-time clock display (see para. 0065). Thus it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified patent claim 1 apparatus to include real time display of instantaneous duration, as taught by Orr, in order to provide real-time display of duration per Orr.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Acker et al. (2014/0000596), Stenzler et al. (2015/0065904), Acker et al. (2015/0320951), Bathe et al. (2016/0136377), and Goldstein (2013/0239962) disclose nitric oxide delivery systems similar to the claimed/disclosed invention.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to COLIN W STUART whose telephone number is (571)270-7490. The examiner can normally be reached M-F: 9-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Timothy Stanis can be reached at 571-272-5139. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/COLIN W STUART/Primary Examiner, Art Unit 3785
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