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 .
Claim Objections
Claim 17 is objected to because of the following informalities: “breathing tube” should read –breathing tool—for proper antecedent bases. Appropriate correction is required.
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 and 12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zhang (US 11,103,006), hereinafter Zhang.
Regarding claim 1, Zhang teaches a therapeutic device (vaporizer, Fig. 1) comprising:
a breathing tool (Fig. 1) with a proximal end (Fig. 1: end 3) and a distal end (Fig. 1: end 9), where the proximal end has an opening that allows air to pass through an air passage (Figs. 1-3: mouthpiece 3 is used for inhaling, col. 3: lines 55-60, Fig. 4) and the proximal end can be enclosed in the lips of a person and allows the person to pass breathing air through the opening (col. 3: lines 55-60); and
a fidget spinner that can rotate (Col. 6: lines 54-60, Fig. 3: 4), where the fidget spinner is attached to the breathing tool.(Figs. 1-8)
Regarding claim 12, Zhang teaches the therapeutic device of claim 1, and further teaches where the fidget spinner uses a bearing. (Fig. 4, Fig. 5: 8, Col. 4: lines 51-65)
Claims 1-4, 7, 16-17, and 19-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Green (US Pat. No. 4,770,413), hereinafter Green.
Regarding claim 1, Green teaches a therapeutic device (Figs. 1-22, breathing exercise device 10) comprising: a breathing tool (Fig. 1: 10) with a proximal end (Figs. 1-2: proximal end 12) and a distal end (Figs. 1-2 distal end 20), where the proximal end has an opening that allows air to pass through an air passage (Fig. 2, Col. 3:line 60 – Col. 4: lines 13, air is drawn through opening 45 and through to the mouthpiece ) and the proximal end can be enclosed in the lips of a person and allows the person to pass breathing air through the opening. (Col. 3: lines 60-68, user inhales through the mouth piece) and a fidget spinner that can rotate (Figs. 1-2: sleeve 16 can rotate and could be used as a fidget spinner, Col. 3: lines2-3, a resistor sleeve 15 which is rotatable ), where the fidget spinner is attached to the breathing tool.(Figs. 1-2 and 11, sleeve 16 is attached to the breathing tool)
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Regarding claim 2, Green teaches the therapeutic device of claim 1, and further teaches where the fidget spinner encircles the air passage. (Fig. 2, the sleeve 16 is around the air passage)
Regarding claim 3, Green teaches the therapeutic device of claim 2, wherein the breathing tool comprises: a top portion having a receiving passage (Fig. 2, Fig. 11: top portion 12, the opening which receives tube 14, see annotated figure); and
a bottom portion (Fig. 2: tube 14) with an end section adjacent to a narrow section (see annotated figure), where the fidget spinner is adapted to rotate about the narrow section (Fig. 2: sleeve 16 is designed to rotate about the narrow portion of tube 14), and the end section is configured to be received within the receiving passage of the top portion. (Fig. 2)
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Regarding claim 4, Green teaches the therapeutic device of claim 3, where the breathing tool, narrow section, end section, top portion, and the receiving passage of the top portion each have a cylindrical shape. (Col. 4: lines 45-51, a device with a slender streamlined appearance, with all of its parts being generally tubular and disposed coaxially on the body, See Fig. 2)
Regarding claim 7, Green teaches the therapeutic device of claim 1, where the fidget spinner is cylindrical in shape. (Fig. 11: 16 is cylindrical)
Regarding claim 16, Green teaches a therapeutic device (Figs. 1-11: 10), comprising:
a breathing tool having an airflow pathway extending from a proximal end to a distal end (Fig. 2: air flows from end at 46 to mouthpiece end, see Fig. 2), said proximal end being adapted to be enclosed by the lips of a user facilitate airflow through the airflow pathway (Col. 3: lines 60-68, user inhales through the mouth piece);
a fidget spinner rotatably coupled to the breathing tool rotate (Figs. 1-2: sleeve 16 can rotate and could be used as a fidget spinner, Col. 3: lines2-3, a resistor sleeve 15 which is rotatable), and configured to be manually rotated by a user. (Col. 3: lines 55-60)
Regarding claim 17, Green teaches the therapeutic device of claim 16, where the breathing tube is cylindrical. (See Fig. 11, where all portions of the breathing tube except the mouthpiece portion are cylindrical)
Regarding claim 19, Green teaches a therapeutic device (Figs. 1-11), comprising:
a hollow conduit presenting a proximal end ( Fig. 2: end 12) and a distal end (Fig. 2, end the tube is hollow from the end to the mouthpiece, See annotated figure), wherein the proximal end is structured to allow a user to channel their breath through the hollow conduit (Col. 3: line 60- Col. 4: line13) ; and
a fidget spinner(Figs. 1-2: sleeve 16 can rotate and could be used as a fidget spinner, Col. 3: lines2-3, a resistor sleeve 15 which is rotatable), capable of independent manual rotation. (Col. 3: lines 55-60)
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Regarding claim 20, Green teaches the therapeutic device of claim 19, where the fidget spinner encircles the hollow conduit. (See Figs. 2, Fidget spinner 16 encircles the conduit)
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.
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.
Claims 5, 6 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Green in view of Morgan (US Pat. No. 9,848,638), hereinafter Morgan
Regarding claim 5, Green teaches the therapeutic device of claim 3, but does not teach where the bottom portion has the proximal end, and the top portion has the distal end. Green teaches the top portion has the proximal end and the bottom portion has the distal end.
However, a mere reversal of parts has been considered to be an obvious modification. In re Gazda.
Morgan teaches an inhalation device (Fig. 1) with a top portion (Fig. 1: 110) and a bottom portion 102 wherein the top portion has the proximal end and the bottom portion has the distal end( proximal and distal ends when in use)
Therefore it would have been obvious to a person of ordinary skill in the art prior to the filing date of the invention to modify the device of Green so that the top portion has proximal end and the bottom portion has the distal end since the courts have held that mere reversal of parts is an obvious modification.
Regarding claim 6, Green in view of Morgan teaches the therapeutic device of claim 5, but Green is silent as to the union of the top portion and the bottom portion being a press fit.
However, Morgan teaches where the union of the top portion and the bottom portion are held together with a press-fit between the end section and the receiving passage of the top portion. (Col. 6: lines 28-45, mortise and tenon joint)
It would have been obvious to a person of ordinary skill in the art prior to the filing date of the invention to have modified Green to have a press fit connection as taught by Morgan in order to provide a secure fit of the pieces.
Regarding claim 14, Green in view of Morgan teaches the therapeutic device of claim 6, and Morgan further teaches where the top portion includes an inner lip (Fig. 1, top portion 102 includes chamfer in 108) that stops the bottom portion from being inserted deeper into the top portion. (See Fig. 1, Fig. 2, col. 6: lines 28-36)
It would have been obvious to a person of ordinary skill in the art prior to the filing date of the invention to have modified Green so that the top portion includes an inner lip as taught by Morgan in order to provide a stop and seal for the mouthpiece to body connection. (Col. 6:lines 33-36)
Claims 8-11, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Green in view of Steinberg (US 2018/0056017), hereinafter Steinberg.
Regarding claim 8, Green teaches the therapeutic device of claim 1, but does not teach further comprising a strand that can lift the breathing tool.
However, Steinberg teaches a therapeutic device (abstract, Fig. 1, breathing device) which has a strand that can lift the breathing tool. (paragraphs 20, 43)
It would have been obvious to a person or ordinary skill in the art to have provided Green with the strand as taught by Steinberg in order to keep the device within easy use of a user. (paragraphs 43, 51)
Regarding claim 9, Green in view of Steinberg teaches the therapeutic device of claim 8 and Steinberg further teaches where the strand is a jewelry chain. (paragraph 48, the breathing tube device can be recognized as jewelry)
Regarding claim 10, Green in view of Steinberg teaches therapeutic device of claim 8 and Steinberg further teaches where the strand is attached to the breathing tool. (Fig. 1, paragraphs 51)
Regarding claim 11, Green in view of Steinberg teaches the therapeutic device of claim 8 but does not teach where the strand is attached to the fidget spinner.
However, there are only a finite number of places where the strand may be attached to the device: the mouthpiece, the body, or the fidget spinner (sleeve). Therefore, it would have been obvious to try for one of ordinary skill in the art to attach the strand to the fidget spinner. This would give the predictable result of attaching the strand to the therapeutic device.
Regarding claim 13, Green teaches the therapeutic device of claim 1, but does not teach where the breathing tool and fidget spinner are part of a bracelet.
However, Steinberg teaches a therapeutic device (abstract, Fig. 1) which may be part of a bracelet. (paragraph 43, paragraph 48, paragraph 51).
It would have been obvious to a person or ordinary skill in the art to have provided Green with the breathing tool and fidget spinner as part of a bracelet as taught by Steinberg in order to keep the device within easy use of a user. (paragraph 43, 51)
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Zhang in view of Romero et al (US 2019/0120488), hereinafter Romero.
Regarding claim 15, Zhang teaches the therapeutic device of claim 1, and further teaches where the breathing tool has a long axis (Fig. 1 and 2, axis extending from the mouthpiece to the opposite end) but does not teach the axis of rotation of the fidget spinner is parallel to the long axis of the breathing tool.
However, Romero teaches a device (Fig. 1: lighter) with a fidget spinner (Fig. 1: 120) which has an axis of rotation of the fidget spinner parallel to the long axis of the device. (Figs. 1, 2)
It would have been obvious to a person of ordinary skill in the art prior to the filing date of the invention to have substituted the fidgeting device of Zhang with the fidgeting device of Romero to provide an alternative style of fidgeting which would allow the user to spin the device around their fingers. (Paragraph 74)
Claims 16 is rejected under 35 U.S.C. 103 as being unpatentable over Zhang in view of Terry et al (US 2011/0277757), hereinafter Terry.
Regarding claim 16, Zhang teaches a therapeutic device (Fig. 1), comprising:
a breathing tool (Fig. 1), a proximal end (Fig. 1, end 3) and a distal end (Fig. 1, End 9), said proximal end being adapted to be enclosed by the lips of a user facilitate airflow through the airflow pathway ((Figs. 1-3: mouthpiece 3 is used for inhaling, col. 3: lines 55-60, Fig. 4);
a fidget spinner rotatably coupled to the breathing tool (Col. 6: lines 54-60, Fig. 3: 4), and configured to be manually rotated by a user. (Col. 6: lines 54-60, Fig. 3:4)
Zhang does not teach an airflow pathway extending from a proximal end to a distal end.
However, Terry teaches a similar device (abstract, Fig. 1) having an airflow pathway extending from a proximal end to a distal end. (paragraph 86, air passage drawn from outside, near the distal end, through the personal vaporized unit to be inhaled by the user)
It would have been obvious to a person of ordinary skill in the art to have provided Zhang with the airflow pathway extending from a proximal end to a distal end as this is an alternative location for the air inlet that would provide the predictable result of allowing air to flow through the device.
Claims 18 is rejected under 35 U.S.C. 103 as being unpatentable over Zhang in view of Terry et al (US 2011/0277757), hereinafter Terry, and further in view of Romero.
Regarding claim 18, Zhang in view of Terry teaches the therapeutic device of claim 16, but does not teach where the breathing tool has a long axis, and the axis of rotation of the fidget spinner is parallel to the long axis of the breathing tool.
However, Romero teaches a device (Fig. 1: lighter) with a fidget spinner (Fig. 1: 120) which has an axis of rotation of the fidget spinner parallel to the long axis of the device. (Figs. 1, 2)
It would have been obvious to a person of ordinary skill in the art prior to the filing date of the invention to have substituted the fidgeting device of Zhang with the fidgeting device of Romero to provide an alternative style of fidgeting which would allow the user to spin the device around their fingers. (Paragraph 74)
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARGARET M LUARCA whose telephone number is (303)297-4312. The examiner can normally be reached 6:30 am - 3:30 pm MT.
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/MARGARET M LUARCA/Primary Examiner, Art Unit 3785