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 .
Response to Amendment
The amendment filed 07/20/2026 has been entered. Claims 1-5 and 7-20 remain pending in the application.
Response to Arguments
Applicant's arguments filed 07/20/2026 (“Remarks”) have been fully considered but they are not persuasive.
The specification objection has been withdrawn and replaced with a claim interpretation below, so that the recited ”cover” is understood to be directed to the disclosed pump cover.
The argument on page 7 that Lewis does not disclose the newly amended features of claim 1, which incorporates the limitations of now-canceled claim 6 in addition to the newly added limitation of “an atomizing nozzle” and “wherein air is sent from the space to the inside of the cover via an air nozzle in the inside of the cover”, has been considered and the examiner agrees. The 102 rejection of claim 1 over Lewis has been withdrawn.
The argument that Burt does not disclose “wherein air is sent from the space to the inside of the cover via an air nozzle in the inside of the cover”, is only partially persuasive. While the 102 rejection over Burt has been withdrawn, please refer to the updated 103 rejection over Burt, which now includes an obviousness rejection to position an air nozzle in the cover. The examiner disagrees that Burt does not disclose a second nozzle, since Burt shows the equivalent of an air nozzle in fig. 29 at 203.
The argument on page 7 with regards to claim 7 that Burt does not distinguish between a cover and a space such that an opening is formed between the cover and the space, is not persuasive. Burt does distinguish a separate cover (annotated fig. 29, 160, which is a distinct structure from the remaining housing 170 [0153]; examiner notes that the reference number 170 in fig. 29 does not appear to point to the housing, but [0153] discloses reference number 170 as a “shaped housing”), since this portion of the device is used to direct the flow of mist ([0153]). The figure shows an opening between the reservoir (80) and the pump (200) where air nozzle (203) exits the housing (170). Blackley (US 2016/0363572 A1) is used to teach the positioning of a filter at an opening (see the maintained rejection of claim 7 below).
Claim Interpretation
Claims 8 and 9 limitation “screen member” is interpreted according to the specification to mean a partition based on specification [0052] and [0055] as well as fig. 12 (reference number 52).
The “cover” recited in claims 6-9 and 15-18 is interpreted to refer to the disclosed pump cover based on original specification [0043] and in the figures as 12B.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 15-18 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claims 15-18 limitations of “a cover, connected to the housing; and a nozzle configured to supply the liquid reagent to an inside of the cover, wherein air sent by the pump discharges the liquid reagent supplied from the nozzle to an outside of the cover, and the space communicates with the inside of the cover through at least one opening” are already recited in parent claim 1.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 1-4, 11-13, and 15-17 rejected under 35 U.S.C. 102(a)(1) as anticipated by Burt et al. (US 2013/0079733 A1), hereafter Burt.
Regarding Claim 1, Burt discloses a nebulizer (fig. 29, device 1, abstract) comprising: a pump (fig. 29, blower 200 [0153]) for spraying a liquid reagent ([0153]); and a housing surrounding the pump (fig. 29, see annotated fig.), wherein the housing having a space defined at least partially by an outer surface of the pump and by an inner surface of the housing (see annotated fig.) and/or a battery and/or a circuit board inside the housing (fig. 29, batteries 190 and control circuit means [0153]), at least one opening is provided to enable the space to communicate with an outside of the housing (fig. 29, 172 [0153] and the opening between the housing and control handle 160 [0152]), wherein the nebulizer further comprises: a cover connected to the housing (fig. 29, control handle 160 [0152]); and an atomizing nozzle configured to supply the liquid reagent to an inside of the cover (fig. 29, mist generator 20, [0153]); wherein air sent by the pump discharges the liquid reagent supplied from the atomizing nozzle to an outside of the cover (fig. 29, [0153] the blower 200 directs a stream of air to push the mist out of nozzle 162), wherein the space communicated with the inside of the cover through the at least one opening (fig. 29, the cover 160 is open to both spaces through the openings in the housing), and wherein the air is sent from the space to the inside of the cover via an air nozzle (fig. 29, outlet 203 [0153]; the outlet is disclosed as used to direct the stream of air from the blower, which fits the definition of a nozzle: “a narrow piece attached to the end of a tube so that liquid or air that comes out can be directed in a particular way”, Cambridge Dictionary; outlet 203 is shown in fig. 29 to be a narrow tube exiting blower 200).
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Burt does not clearly disclose that the air nozzle is inside the cover.
However, it has been held that rearrangement of parts is an obvious matter of design choice. See MPEP 2144.04(VI)(C) In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice).
In this case, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to rearrange Burt’s air nozzle (203) to be positioned in the cover (160), since moving the air nozzle slightly, in order to be positioned inside the cover would not affect the operation of the device, as the air pump would still be able to facilitate the delivery of the mist generated by mist generator (20 [0153]).
Regarding Claim 2, Burt discloses a nebulizer according to Claim 1, wherein the battery is for driving the pump (fig. 29, 190 is a battery [0153]) and the circuit board has a control circuit for controlling the pump ([0154] the control circuit also operates the pump 200).
Regarding Claim 3, Burt discloses a nebulizer according to Claim 1, wherein the pump is disposed such that an inlet of the pump is exposed to the space (fig. 29 the pump is exposed to the internal space which includes the air intake [0153]).
Regarding Claim 4, Burt discloses a nebulizer according to Claim 1, wherein the at least one opening includes a first opening and a second opening (fig. 29 see annotated fig.).
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Regarding Claim 11, Burt discloses a nebulizer according to Claim 2, wherein the pump is disposed such that an inlet of the pump is exposed to the space (fig. 29, the inlet of pump 200 is exposed to the internal space).
Regarding Claim 12, Lewis discloses a nebulizer according to Claim 2, wherein the at least one opening includes a first opening and a second opening (annotated fig. 29, there are at least two openings shown).
Regarding Claim 13, Lewis discloses a nebulizer according to Claim 3, wherein the at least one opening includes a first opening and a second opening (annotated fig. 29, there are at least two openings shown).
Regarding Claim 15, Burt discloses a nebulizer according to Claim 2, further comprising: a cover connected to the housing (fig. 29, control handle 160 [0152]); and a nozzle configured to supply the liquid reagent to an inside of the cover (fig. 29, mist generator 20, [0153]), wherein air sent by the pump discharges the liquid reagent supplied from the nozzle to an outside of the cover (fig. 29, [0153] the blower directs a stream of air to push the mist out of nozzle 162), and the space communicates with the inside of the cover through the at least one opening (fig. 29, the cover 160 is open to the space).
Regarding Claim 16, Burt discloses a nebulizer according to Claim 3, further comprising: a cover connected to the housing (fig. 29, control handle 160 [0152]); and a nozzle configured to supply the liquid reagent to an inside of the cover (fig. 29, mist generator 20, [0153]), wherein air sent by the pump discharges the liquid reagent supplied from the nozzle to an outside of the cover (fig. 29, [0153] the blower directs a stream of air to push the mist out of nozzle 162), and the space communicates with the inside of the cover through the at least one opening (fig. 29, the cover 160 is open to the space).
Regarding Claim 17, Burt discloses a nebulizer according to Claim 4, further comprising: a cover connected to the housing (fig. 29, control handle 160 [0152]); and a nozzle configured to supply the liquid reagent to an inside of the cover (fig. 29, mist generator 20, [0153]), wherein air sent by the pump discharges the liquid reagent supplied from the nozzle to an outside of the cover (fig. 29, [0153] the blower directs a stream of air to push the mist out of nozzle 162), and the space communicates with the inside of the cover through the at least one opening (fig. 29, the cover 160 is open to the space).
Claims 5, 14, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Burt.
Regarding Claim 5, Burt discloses a nebulizer according to Claim 1, but is silent on wherein the pump is disposed such that an inlet of the pump is positioned at the at least one opening (fig. 1 shows that the pump inlet 18 is offset from the opening 18).
However, it has been held that the rearrangement of parts is an obvious matter of design choice when the operation of the device would not be changed. See MPEP 2144.04(VI)(C) In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice). In this case, the operation of the device would not be changed if Burt’s pump inlet (fig. 1, 27) were moved to be positioned at one of the openings (fig. 1, 18).
Regarding Claim 14, Burt discloses a nebulizer according to Claim 2, but is silent on wherein the pump is disposed such that an inlet of the pump is positioned at the at least one opening.
However, it has been held that the rearrangement of parts is an obvious matter of design choice when the operation of the device would not be changed. See MPEP 2144.04(VI)(C) In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice). In this case, the operation of the device would not be changed if Burt’s pump inlet (fig. 1, 27) were moved to be positioned at one of the openings (fig. 1, 18).
Regarding Claim 18, Burt discloses a nebulizer according to Claim 5, further comprising: a cover connected to the housing (fig. 29, control handle 160 [0152]); and a nozzle configured to supply the liquid reagent to an inside of the cover (fig. 29, mist generator 20, [0153]), wherein air sent by the pump discharges the liquid reagent supplied from the nozzle to an outside of the cover (fig. 29, [0153] the blower directs a stream of air to push the mist out of nozzle 162), and the space communicates with the inside of the cover through the at least one opening (fig. 29, the cover 160 is open to the space).
Claim 7 is rejected under 35 U.S.C. 103 as unpatentable over Burt in view of Blackley (US 2016/0363572 A1), hereafter Blackley.
Regarding Claim 7, Burt discloses a nebulizer according to Claim 1, but is silent on further comprising: a filter disposed at the at least one opening through which the space communicates with the inside of the cover.
Blackley teaches a vaporizer (fig. 8 [0101]) which includes a filter (fig. 8, 810, 808 [0101]) in a bypass channel which inputs air to a mixing chamber for use in vaporizing material (fig. 8, 208 [0101]). The filters are used to remove contaminants from the air entering the vaporizer.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a filter in Burt’s device such that the filter is disposed at the at least one opening (Burt fig. 29, see annotated fig. above in claim 1) through which the space communicated with the inside of the cover, in order to prevent contaminants from entering the vapor delivered to the user (Blackley [0101]).
Claims 8 and 9 are rejected under 35 U.S.C. 103 as unpatentable over Burt in view of Wensley et al. (US 2015/0216237 A1), hereafter Wensley.
Regarding Claim 8, Burt discloses a nebulizer according to Claim 1, but is silent on further comprising: a screen member disposed inside the cover and screens a region inside the cover at least partially from the nozzle, the region communicating with the space.
However, Wensley teaches a vaporizing device (fig. 21, 2100 [0288]) having a screen member (fig. 21, see annotated fig. 21, the screen member forms channel 2118 [0288]) disposed inside a cover (fig. 21, mouthpiece 2102 [0288]) that screens a region inside the cover at least partially from a nozzle (fig. 21, aerosol generating area 2108).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a screen member in Burt’s cover (fig. 29, 160) in the manner taught by Wensley, such that the screen is disposed inside the cover and screens a region inside the cover at least partially from the nozzle (Burt fig. 29, 20), the region communicating with the space, so that the air pumped by the air pump (Burt fig. 29, 200) will be able to be controlled and regulated to an optimal level in order to achieve optimal particle sizing and dosing effectiveness, as taught by Wensley ([0288]).
Regarding Claim 9, Burt as modified discloses a nebulizer according to Claim 8, wherein the cover has an outlet through which the liquid reagent is discharged out of the nebulizer (Burt fig. 29, 162 [0152]), the screen member serves as a part of a channel inside the cover (as modified by Wensley fig. 21, the screen member creating channel 2118), the channel guiding air introduced from the space toward the outlet (Burt [0153], and as modified by Wensley [0288] the channel guides air from the space to the outlet).
However, as modified, the device does not disclose the cover further includes a valve to open/close the channel.
However, Wensley’s embodiment of fig. 21 teaches a valve (fig. 21, valve 2114 [0288]) to prevent backflow.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a valve in the modified channel of Burt to prevent backflow of air from the channel, as taught by Wensley.
Claims 10 and 19-20 are rejected under 35 U.S.C. 103 as unpatentable over Burt in view of Gong et al. (CN 105597201 A), hereafter Gong. A machine translation is relied upon to address claims.
Regarding Claim 10, Burt discloses a nebulizer according to Claim 1, but is silent on further comprising: a heat sink attached to the pump or disposed near the pump.
Gong teaches a nebulizer (fig. 6 “Background technique” para.) which has a pump (fig. 6, 114b, page 4, first para.) and a heat sink attached to the pump (fig. 6, heat sink is a fan 122, page 4 “As shown in Fig. 6” para.) in order to dissipate heat from the pump.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a heat sink with the pump, as taught by Gong, in order to keep the pump cool by dissipating generated heat.
Regarding Claim 19, Burt discloses a nebulizer according to Claim 2, but is silent on further comprising: a heat sink attached to the pump or disposed near the pump.
Gong teaches a nebulizer (fig. 6 “Background technique” para.) which has a pump (fig. 6, 114b, page 4, first para.) and a heat sink attached to the pump (fig. 6, heat sink is a fan 122, page 4 “As shown in Fig. 6” para.) in order to dissipate heat from the pump.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a heat sink with the pump, as taught by Gong, in order to keep the pump cool by dissipating generated heat.
Regarding Claim 20, Burt discloses a nebulizer according to Claim 3, but is silent on further comprising: a heat sink attached to the pump or disposed near the pump.
Gong teaches a nebulizer (fig. 6 “Background technique” para.) which has a pump (fig. 6, 114b, page 4, first para.) and a heat sink attached to the pump (fig. 6, heat sink is a fan 122, page 4 “As shown in Fig. 6” para.) in order to dissipate heat from the pump.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a heat sink with the pump, as taught by Gong, in order to keep the pump cool by dissipating generated heat.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Wu (CN 210963416 U) discloses a nebulizer (fig. 1, page 1, “The purpose of” para.) comprising: a pump for spraying a liquid reagent (fig. 1, compressor 8, page 3 “Please refer” para.); and a housing surrounding the pump (fig. 1), wherein the housing having a space defined at least partially by an outer surface of the pump and by an inner surface of the housing (fig. 1), at least one opening is provided to enable the space to communicate with an outside of the housing (fig. 1, ventilation hole 5, page 3 “third para.).
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 SARA K. TOICH whose telephone number is (703)756-1450. The examiner can normally be reached M-Th 7:30 am - 4:30 pm, every other F 7:30-3:30 ET.
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/SARA K TOICH/Examiner, Art Unit 3785
/VICTORIA MURPHY/Primary Patent Examiner, Art Unit 3785
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