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 .
This action is in response to the filing on 9/2/2025. Since the initial filing, claim 1 has been added, claims 17-18 has been added and no claims have been cancelled. Thus, claims 1-18 are pending in the application.
In regards to the previous Double Patenting Rejections, Applicant has amended to overcome these rejections and they are therefore withdrawn with new Double Patenting Rejections entered below.
In regards to the previous 103 Rejections, Applicant has amended to overcome these rejections and they are withdrawn with new rejections entered below.
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, 4, 5, 9, 13 and 15 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 39 and 41 of copending Application No. 18/453941, hereafter referred to as Payton-941, in view of Franz (US 2010/0022849).
In regards to claim 1, Payton-941 discloses a method for providing respiratory support to a patient, the method comprising: providing a first gas flow therapy to the patient through a non-sealing patient interface for oxygenation prior to administration of an anesthetic agent; providing a second gas flow therapy to the patient through the non-sealing patient interface for oxygenation during or after administration of the anesthetic agent (claim 39); wherein the second gas flow therapy comprises a different parameter setting than the first gas flow therapy (claim 41); and during the second gas flow therapy, controlling a parameter of the second gas flow therapy in response to an input relating to a characteristic of the patient (claim 39).
Payton-941 does not disclose wherein the second gas flow therapy does not comprise any anesthetic agent.
However, Franz teaches wherein the second gas flow therapy does not comprise any anesthetic agent (washout step phase 7 uses 100% O2 concentration, paragraph 43 and Table 1).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payton-941 wherein the second gas flow therapy does not comprise any anesthetic agent as taught by Franz as this would ensure appropriate oxygen saturation for the patient’s recovery.
In regards to claim 2, Payton-941 in view of Franz teaches claim 1.
Payton-941 does not disclose further comprising providing the anesthetic agent to the patient.
However, Franz teaches further comprising providing the anesthetic agent to the patient (phase 2 includes anesthetic agent delivery, paragraph 39).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payton-941 further comprising providing the anesthetic agent to the patient as taught by Franz as this would allow the device to deliver anesthetic to the patient as needed.
In regards to claim 4, Payton-941 in view of Franz teaches wherein the characteristic of the patient comprises one or more of a heart rate, an EEG signal, an EKG/ECG signal, a blood oxygen concentration, a blood CO2 concentration, a transcutaneous CO2 (TcCO2) measurement, and a blood glucose measurement (claim 39).
In regards to claim 5, Payton-941 in view of Franz teaches claim 1.
Payton-941 does not disclose wherein at least one of the first gas flow therapy and the second gas flow therapy comprises delivering a gas comprising 100% O2.
However, Franz teaches wherein at least one of the first gas flow therapy and the second gas flow therapy comprises delivering a gas comprising 100% O2 (phase 0 provides 100% O2 delivery, paragraph 37).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payton-941 wherein at least one of the first gas flow therapy and the second gas flow therapy comprises delivering a gas comprising 100% O2 as taught by Franz as this would allow the device to deliver the gas flow according to the needs of the patient.
In regards to claim 9, Payton-941 in view of Franz teaches claim 1.
Payton-941 does not disclose wherein controlling the parameter of the second gas flow therapy comprises controlling an O2 concentration of the second gas flow therapy.
However, Franz teaches wherein controlling the parameter of the second gas flow therapy comprises controlling an O2 concentration of the second gas flow therapy (phase 2 includes anesthetic agent delivery, paragraph 39).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payton-941 wherein controlling the parameter of the second gas flow therapy comprises controlling an O2 concentration of the second gas flow therapy as taught by Franz as this would allow the device to deliver the gas flow according to the needs of the patient.
In regards to claim 13, Payton-941 in view of Franz teaches claim 1.
Payton-941 does not disclose further comprising inserting a tube or an endoscope into an airway of the patient.
However, Franz teaches further comprising inserting a tube into an airway of the patient (intubation phase wherein the patient is intubated, paragraph 38-39).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payton-941 further comprising inserting a tube into an airway of the patient as taught by Franz as this would allow the patient to receive the required support during a procedure.
Claim 3 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 and 4 of copending Application No. 18/453941, hereafter referred to as Payton-941, in view of Franz (US 2010/0022849) and in further view of Barker (US 2016/0082220).
In regards to claim 3, Payton-941 in view of Franz teaches claim 1.
Payton-941 does not disclose wherein determining a characteristic of the patient is based on an output of a physiological sensor.
However, Barker teaches a respiratory therapy device wherein the characteristic of the patient is determined based on an output of a physiological sensor (paragraph 74).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payton-941 wherein the characteristic of the patient is determined based on an output of a physiological sensor as taught by Barker as this is a known method by which to monitor the patient during a procedure.
Claim 6 and 7 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 and 4 of copending Application No. 18/453941, hereafter referred to as Payton-941, in view of Franz (US 2010/0022849) and in further view of Landis (US 2013/0340752).
In regards to claim 6, Payton-941 in view of Franz teaches claim 1.
Payton-941 does not disclose wherein at least one of the first gas flow therapy and the second gas flow therapy comprises a flow rate of at least 15 liters per minute (LPM).
However, Landis teaches wherein at least one of the first gas flow therapy and the second gas flow therapy comprises a flow rate of at least 15 liters per minute (paragraph 118).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payton-941 wherein at least one of the first gas flow therapy and the second gas flow therapy comprises a flow rate of at least 15 liters per minute as taught by Landis so as to provide sufficient airflow to the patient.
In regards to claim 7, Payton-941 in view of Franz teaches claim 1.
Payton-941 does not disclose wherein each of the first gas flow therapy and the second gas flow therapy comprises a flow rate of at least 15 liters per minute (LPM).
However, Landis teaches wherein each of the first gas flow therapy and the second gas flow therapy comprises a flow rate of at least 15 liters per minute (paragraph 118).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payton-228 wherein each of the first gas flow therapy and the second gas flow therapy comprises a flow rate of at least 15 liters per minute as taught by Landis so as to provide sufficient airflow to the patient.
Claim 8 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 and 4 of copending Application No. 18/453941, hereafter referred to as Payton-941, in view of Franz (US 2010/0022849) and in further view of Davenport (US 2008/0051674).
In regards to claim 8, Payton-941 in view of Franz teaches claim 1.
Payton-941 does not disclose wherein controlling the parameter of the second gas flow therapy comprises controlling a flow rate of the second gas flow therapy.
However, Davenport teaches wherein controlling the parameter of the second gas flow therapy comprises controlling a flow rate of the second gas flow therapy (ramp function to increase flow at need of patient, paragraph 76).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payton-228 wherein controlling the parameter of the second gas flow therapy comprises controlling a flow rate of the second gas flow therapy as taught by Davenport so as to provide sufficient support for the patient at their need.
Claim 10-12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 and 4 of copending Application No. 18/453941, hereafter referred to as Payton-941, in view of Franz (US 2010/0022849) and in further view of Krebs (US 7861717).
In regards to claim 10, Payton-941 in view of Franz teaches claim 1.
Payton does not disclose wherein the patient is spontaneously breathing during the first gas flow therapy.
However, Krebs teaches wherein the patient is spontaneously breathing during the first gas flow therapy (abstract, column 4 line 12-16).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payton-941 wherein the patient is spontaneously breathing during the first gas flow therapy as taught by Krebs as this is a state that a patient may be in during a procedure and would need to be accounted for.
In regards to claim 11, Payton-941 in view of Franz teaches claim 1.
Payton-941 does not disclose wherein the patient is spontaneously breathing during the second gas flow therapy.
However, Krebs teaches wherein the patient is spontaneously breathing during the second gas flow therapy (abstract, column 4 line 12-16).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payton-228 wherein the patient is spontaneously breathing during the second gas flow therapy as taught by Krebs as this is a state that a patient may be in during a procedure and would need to be accounted for.
In regards to claim 12, Payton-941 in view of Franz teaches claim 1.
Payton-941 does not disclose wherein the patient is not spontaneously breathing during the second gas flow therapy.
However, Krebs teaches wherein the patient is not spontaneously breathing during the second gas flow therapy (abstract, column 4 line 12-16).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Payton-941 wherein the patient is not spontaneously breathing during the second gas flow therapy as taught by Krebs as this is a state that a patient may be in during a procedure and would need to be accounted for.
This is a provisional nonstatutory double patenting rejection.
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.
Claim(s) 1-2, 4-7 and 9-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Franz (US 2010/0022849) in view of Landis (US 2013/0340752) and Krebs (US 7861717).
In regards to claim 1, Franz discloses a method for providing respiratory support to a patient (paragraph 33), the method comprising: providing a first gas flow therapy to the patient through a patient interface for oxygenation prior to administration of an anesthetic agent (phase 0 provides 100% O2 concentration, Table 1); providing a second gas flow therapy to the patient through a patient interface for oxygenation during or after administration of the anesthetic agent; wherein the second gas flow therapy does not comprise any anesthetic agent (washout step phase 7 uses 100% O2 concentration, paragraph 43 and Table 1).
Franz does not disclose wherein therapy is delivered through a non-sealing patient interface and during the second gas flow therapy, wherein the second gas flow therapy comprises a different parameter setting than the first gas flow therapy; controlling a parameter of the second gas flow therapy in response to an input relating to a characteristic of the patient.
However, Landis teaches gas therapy including anesthetic provided through a non-sealing patient interface (non-sealing interface 100, additional gas such as anesthetic may be delivered to patient, paragraph 125 line 14-17).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Franz wherein gas therapy provided through a non-sealing patient interface as taught by Landis as this would provide the ability to deliver high flow rates of oxygen and deliver anesthetic to meet the needs of the patient (Landis: paragraph 110 and 118 and 125 line 14-17).
Additionally, while Franz discloses a controller (control interface 11) capable of making treatment determinations (paragraph 37-40), it does not disclose wherein the second gas flow therapy comprises a different parameter setting than the first gas flow therapy and during the second gas flow therapy, controlling a parameter of the second gas flow therapy by providing an input related to a characteristic of the patient.
However, Krebs teaches controlling a parameter of the gas flow therapy by providing an input related to a characteristic of the patient (column 3 line 50-63 and column 7 line 28-35).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Franz wherein the second gas flow therapy comprises a different parameter setting than the first gas flow therapy and controlling a parameter of the gas flow therapy by providing an input related to a characteristic of the patient as taught by Krebs as this would allow the device to accurately control the therapy based on patient needs.
In regards to claim 2, Franz in view of Landis and Krebs teaches the method of claim 1 and the combination further teaches further comprising providing the anesthetic agent to the patient (Franz: phase 2 includes anesthetic agent delivery, paragraph 39).
In regards to claim 4, Franz in view of Landis and Krebs teaches the method of claim 1.
Franz does not disclose wherein the characteristic of the patient comprises one or more of a heart rate, an EEG signal, an EKG/ECG signal, a blood oxygen concentration, a blood CO2 concentration, a transcutaneous CO2 (TcCO2) measurement, and a blood glucose measurement.
However, Krebs teaches controlling a parameter of the gas flow therapy by providing an input related to a characteristic of the patient, wherein the characteristic of the patient comprises one or more of a heart rate, an oxygen measurement (column 3 line 50-63 and column 7 line 28-35).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Franz wherein controlling a parameter of the gas flow therapy by providing an input related to a characteristic of the patient, wherein the characteristic of the patient comprises one or more of a heart rate, an oxygen measurement as taught by Krebs as this would allow the device to accurately control the therapy based on patient needs.
In regards to claim 5, Franz in view of Landis and Krebs teaches the method of claim 1 and the combination further teaches wherein at least one of the first gas flow therapy and the second gas flow therapy comprises delivering a gas comprising 100% O2 (Franz: phase 0 provides 100% O2 delivery, paragraph 37).
In regards to claim 6, Franz in view of Landis and Krebs teaches the method of claim 1.
Franz does not disclose wherein at least one of the first gas flow therapy and the second gas flow therapy comprises a flow rate of at least 15 liters per minute.
However, Landis teaches wherein at least one of the first gas flow therapy and the second gas flow therapy comprises a flow rate of at least 15 liters per minute (paragraph 118).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Franz wherein at least one of the first gas flow therapy and the second gas flow therapy comprises a flow rate of at least 15 liters per minute as taught by Landis so as to provide sufficient airflow to the patient.
In regards to claim 7, Franz in view of Landis and Krebs teaches the method of claim 1.
Franz does not disclose wherein each of the first gas flow therapy and the second gas flow therapy comprises a flow rate of at least 15 liters per minute.
However, Landis teaches wherein each of the first gas flow therapy and the second gas flow therapy comprises a flow rate of at least 15 liters per minute (paragraph 118).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Franz wherein each of the first gas flow therapy and the second gas flow therapy comprises a flow rate of at least 15 liters per minute as taught by Landis so as to provide sufficient airflow to the patient.
In regards to claim 9, Franz in view of Landis and Krebs teaches the method of claim 1 and Franz further discloses wherein controlling the parameter of the second gas flow therapy comprises controlling an O2 concentration of the second gas flow therapy (O2 concentration changed across phases from 100% to 30%, paragraph 37-40).
In regards to claim 10, Franz in view of Landis and Krebs teaches the method of claim 1.
Franz does not disclose wherein the patient is spontaneously breathing during the first gas flow therapy.
However, Krebs teaches wherein the patient is spontaneously breathing during the first gas flow therapy (abstract, column 4 line 12-16).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Franz wherein the patient is spontaneously breathing during the first gas flow therapy as taught by Krebs as this is a state that a patient may be in during a procedure and would need to be accounted for.
In regards to claim 11, Franz in view of Landis and Krebs teaches the method of claim 1.
Franz does not disclose wherein the patient is spontaneously breathing during the second gas flow therapy.
However, Krebs teaches wherein the patient is spontaneously breathing during the second gas flow therapy (abstract, column 4 line 12-16).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Franz wherein the patient is spontaneously breathing during the second gas flow therapy as taught by Krebs as this is a state that a patient may be in during a procedure and would need to be accounted for.
In regards to claim 12, Franz in view of Landis and Krebs teaches the method of claim 1.
Franz does not disclose wherein the patient is not spontaneously breathing during the second gas flow therapy.
However, Krebs teaches wherein the patient is not spontaneously breathing during the second gas flow therapy (abstract, column 4 line 12-16).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Franz wherein the patient is not spontaneously breathing during the second gas flow therapy as taught by Krebs as this is a state that a patient may be in during a procedure and would need to be accounted for.
In regards to claim 13, Franz in view of Landis and Krebs teaches the method of claim 1 and Franz further discloses further comprising inserting a tube into an airway of the patient (intubation phase wherein the patient is intubated, paragraph 38-39).
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Franz (US 2010/0022849) in view of Landis (US 2013/0340752) and Krebs (US 7861717) as applied above and in further view of Barker (US 2016/0082220).
In regards to claim 3, Franz in view of Landis and Krebs teaches the method of claim 1.
Franz does not disclose wherein the characteristic of the patient is determined based on an output of a physiological sensor.
However, Barker teaches a respiratory therapy device wherein the characteristic of the patient is determined based on an output of a physiological sensor (paragraph 74).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Franz wherein the characteristic of the patient is determined based on an output of a physiological sensor as taught by Barker as this is a known method by which to monitor the patient during a procedure.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Franz (US 2010/0022849) in view of Landis (US 2013/0340752) and Krebs (US 7861717) as applied above and in further view of Davenport (US 2008/0051674).
In regards to claim 8, Franz in view of Landis and Krebs teaches the method of claim 1.
Franz does not disclose wherein a flow rate of the second gas flow therapy is greater than a flow rate of the first gas flow therapy.
However, Davenport teaches wherein a flow rate of the second gas flow therapy is greater than a flow rate of the first gas flow therapy (ramp function to increase flow rate at need of patient, paragraph 76).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Franz wherein a flow rate of the second gas flow therapy is greater than a flow rate of the first gas flow therapy as taught by Davenport so as to provide the patient with sufficient airflow at their need.
Claim(s) 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Franz (US 2010/0022849) in view of Landis (US 2013/0340752), Krebs (US 7861717), and Davenport (US 2008/0051674).
In regards to claim 17, Franz teaches a method for providing respiratory support to a patient (paragraph 33), the method comprising: providing a first gas flow therapy to the patient through a patient interface for oxygenation prior to administration of an anesthetic agent (phase 0 provides 100% O2 concentration, Table 1); providing a second gas flow therapy to the patient through the patient interface for oxygenation during or after administration of the anesthetic agent; wherein the second gas flow therapy does not comprise any anesthetic agent (washout step phase 7 uses 100% O2 concentration, paragraph 43 and Table 1).
Franz does not disclose a non-sealing patient interface, wherein the second gas flow therapy comprises a different flow rate and/or 02 concentration setting than the first gas flow therapy, during the second gas flow therapy, controlling a parameter of the second gas flow therapy in response to an input relating to a characteristic of the patient under anesthesia.
However, Landis teaches gas therapy including anesthetic provided through a non-sealing patient interface (non-sealing interface 100, additional gas such as anesthetic may be delivered to patient, paragraph 125 line 14-17).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Franz wherein gas therapy provided through a non-sealing patient interface as taught by Landis as this would provide the ability to deliver high flow rates of oxygen and deliver anesthetic to meet the needs of the patient (Landis: paragraph 110 and 118 and 125 line 14-17).
Additionally, while Franz discloses a controller (control interface 11) capable of making treatment determinations (paragraph 37-40), it does not disclose wherein the second gas flow therapy comprises a different parameter setting than the first gas flow therapy and during the second gas flow therapy, controlling a parameter of the second gas flow therapy by providing an input related to a characteristic of the patient.
However, Krebs teaches controlling a parameter of the gas flow therapy by providing an input related to a characteristic of the patient (column 3 line 50-63 and column 7 line 28-35).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Franz wherein the second gas flow therapy comprises a different parameter setting than the first gas flow therapy and controlling a parameter of the gas flow therapy by providing an input related to a characteristic of the patient as taught by Krebs as this would allow the device to accurately control the therapy based on patient needs.
Additionally, Davenport teaches wherein a flow rate of the second gas flow therapy is different than the first gas flow therapy (ramp function to increase flow rate at need of patient, paragraph 76).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Franz wherein a flow rate of the second gas flow therapy is different than the first gas flow therapy as taught by Davenport so as to provide the patient with sufficient airflow at their need.
Allowable Subject Matter
Claim 14-16 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.
Claim 18 is allowed.
The following is a statement of reasons for the indication of allowable subject matter: the prior art of record, alone or in combination, fails to disclose all of the structural and functional limitations as described in the claims.
Specifically, the limitation wherein a tube or endoscope is inserted into an airway of the patient during the second gas flow therapy as seen in claim 14 and claim 18 conflicts with the modified rejections based on Franz. The modified Franz teaches multiple phases of gas delivery; however, the modified rejection places the second gas therapy after intubation in order to read on the amended limitations and can therefore not support the further limitations.
For these reasons, claim 14 as well as its dependents 15 and 16 and independent claim 18 are allowable over the prior art of record.
Response to Arguments
In regards to the arguments concerning the independent claims, these arguments are in regards to the amendments made to the claims and are addressed in the new rejections entered above.
In regards to the arguments concerning the new claims, these arguments are addressed in the new rejections entered above.
In regards to the arguments concerning the dependent claims, these arguments are primarily in regards to their dependency on the above argued independent claims and are addressed in the new rejections entered above. Arguments concerning Krebs and the combination into Franz are not persuasive. Applicant argues that Krebs would not be reasonably combined with Franz as they claim it does not relate to a patient under anesthesia. Examiner disagrees. The cited passages of Krebs do discuss gas metering both with and without anesthetic gases.
In regards to the arguments concerning the double patenting rejections, Applicant has suggested a potential course of action to overcome the current rejections but has not taken that action. Should they go forward with the proposed action, the applications in question would need to be subject to further consideration to determine any further double patenting issues.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Arielle Wolff whose telephone number is (571)272-8727. The examiner can normally be reached Mon-Fri 8:00-4:00.
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/ARIELLE WOLFF/ Examiner, Art Unit 3785
/KENDRA D CARTER/ Supervisory Patent Examiner, Art Unit 3785