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 .
DETAILED ACTION
1. This office action is in response to the filing of the application on 12/16/2022. Since the initial filing, no claims have been amended, added, or canceled. Thus, claims 1-10 are pending in the application.
Priority
2. Acknowledgement is made of applicant’s claim for foreign priority regarding CN202211651550.0 (filing date of 12/21/2022). CN202211651550.0 provides sufficient support for the subject matter of claims 1-10. Therefore, the current application will be assigned the effective filing date of 12/21/2022.
Claim Interpretation- 35 USC § 112 – Sixth Paragraph/35 USC § 112(f)
3. 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.
4. 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:
"breathing mask type determining module" (claim 6, In. 2),
"breathing mask information collection module" (claim 6, In. 4),
"breathing mask modeling module" (claim 6, In. 6),
"breathing mask matching module" (claim 6, In. 8),
"breathing mask component matching module" (claim 9, In. 3),
"fit degree evaluation module" (claim 10, In. 2)
Claim limitation 6, 9, and 10 invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. Specifically:
breathing mask type determining module;
breathing mask information collection module;
breathing mask modeling module;
breathing mask matching module;
breathing mask component matching module;
fit degree evaluation module.
Although the specification identifies these modules (see; [0013] and [0039-0046]), each module is merely described as being “configured to” perform the recited function. Such descriptions merely restate the claimed functions and do not disclose sufficient corresponding structures. While the specification describes method steps S1-S7 (see; [0022-0038]), the specification does not clearly link or associate these method steps with a processor, controller, computer, application, or other structure that performs the claimed functions.
Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Claim Rejections - 35 USC § 112
5. The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 6, 9, and 10 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Specifically, the specification identifies a “breathing mask type determining module,” “breathing mask information collection module,” “breathing mask modeling module,” “breathing mask matching module,” “breathing mask component matching module,” and “fit degree evaluation module” (see; [0013] and [0039-0046]). However, the specification does not provide corresponding structure for these limitations. Therefore, these limitations fail to comply with the written description requirement.
6. 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.
7. Claim limitations “breathing mask type determining module,” “breathing mask information collection module,” “breathing mask modeling module,” “breathing mask matching module,” “breathing mask component matching module,” and “fit degree evaluation module” invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The specification does not provide corresponding structure for these limitations. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Claim Objections
8. Claim 2, 3, 7, and 8 are objected to because of the following informalities:
Regarding claim 2, 3, 7, and 8, the term “use” appears in place of “user” in several instances (claim 2, In 3; claim 3, In 2; claim 7, In 3; and claim 8, In 2). Applicant is required to correct the claim to recite the proper term “user.”
Claim Rejections - 35 USC § 102
9. 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 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, 4-6, 9 and 10 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Peake et al (20220092798).
Regarding claim 1, Peake discloses a facial recognition-based breathing mask matching method, comprising:
determining a breathing mask type suitable for a user according to basic information of the user (Peake discloses a method for generating and selecting as custom breathing mask based upon patient facial data, patient characteristics and patient input data [0014 – 0016]. Peake further discloses determining a mask type suitable for a user based on patient-specific information including facial dimensions, demographic information, sleep characteristics, and other patient information [0130; 0134; 0205]);
collecting facial information and head information of the user according to the breathing mask type suitable for the user (Peake discloses collecting facial and head anatomical information through facial scanning and landmark extraction for mask sizing and selection [0131; 0140; 0142; 0159; 0162]);
establishing a breathing mask model according to collected facial information and collected head information of the user (Peake discloses generating a facial representation/mesh and comparing measured facial dimensions against stored mask sizing records to determine a suitable interface configuration [0132; 0144; 0173; 0185]);
and matching a modeling result with breathing masks in a breathing mask database to select the most suitable breathing mask for the user (Peake discloses matching facially-derived measurements and facial image data against stored mask records within mask databases and selecting an appropriate mask based on correlations between facial dimensions, demographic information, sleep characteristics, and historical performance data [0134; 0179; 0181]).
Regarding claim 4, Peak discloses a facial recognition-based breathing mask matching method according to claim 1, wherein the facial recognition-based breathing mask matching method further comprises matching the modeling result with breathing mask components in the breathing mask database; selecting most matching breathing mask components, and then assembling the most matching breathing mask components into a complete breathing mask and recommending the complete breathing mask to the user. (Peake discloses facial scanning and patient interface selection system that matches facial measurements and modeling information with stored patient interface data to identify and recommend an appropriate breathing mask configuration. Peake teaches matching facial feature measurements and facial dimensions to stored patient interface records and interface size data, thereby teaching matching the modeling result with breathing mask components in a breathing mask database [ 0132; 0144; 0172]. Peake further discloses selecting matching mask characteristics based upon the comparison among different mask types [0130; 0144; 0173; 0188]. Peake further teaches generating a complete mask recommendation from the selected mask characteristics [0177-0182]).
Regarding claim 5, Peake discloses a facial recognition-based breathing mask matching method according to claim 1, wherein the facial recognition-based breathing mask matching method further comprises comparing the modeling result with a current breathing mask worn by the user to evaluate a fit degree of the current breathing mask worn by the user (Peake discloses a facial recognition-based breathing mask generating facial measurements and facial feature information from facial images of a patient through image analysis and facial landmarks [0132; 0142; 0159-0162; 0172-0173], thereby generating a modeling result representative of the user facial geometry. Peak further teaches collecting information regarding the current mask used by the patient [0188-0190] and comparing facial dimensions data and mask-related information with operational data associated with the mask being used by the patient [0174; 0177; 0181]. Peake discloses evaluating the fit of the current mask by analyzing operational performance metrics, including mask leaks, compliance, and effectiveness of therapy [ 0134; 0174; 0177; 0181; 0197; 0200]).
Regarding claim 6, Peak discloses facial recognition-based breathing mask matching system, comprising:
a breathing mask type determining module configured to determine a breathing mask type suitable for a user according to basic information of the user (Peake discloses a system for generating and selecting as custom breathing mask based upon patient facial data, patient characteristics and patient input data [0014 – 0016]. Peake further discloses determining a mask type suitable for a user based on patient-specific information including facial dimensions, demographic information, sleep characteristics, and other patient information [0130; 0134; 0205]);
a breathing mask information collection module configured to collect facial information and head information of the user according to the breathing mask type suitable for the user (Peake discloses collecting facial and head anatomical information through facial scanning and landmark extraction for mask sizing and selection [0131; 0140; 0142; 0159; 0162]);
a breathing mask modeling module configured to establish a breathing mask model according to collected facial information and collected head information of the user (Peake discloses generating a facial representation/mesh and comparing measured facial dimensions against stored mask sizing records to determine a suitable interface configuration [0132; 0144; 0173; 0185]);
a breathing mask database configured to store parameter data of different types of breathing masks and parameter data of breathing mask components forming the breathing masks (Peake discloses a databases storing information regarding different patient interfaces including different interfaces types and sizes available for selection [0132; 0134; 0144; 0134; 0172]).
and a breathing mask matching module configured to match a modeling result with the breathing masks in the breathing mask database to select the most suitable breathing mask for the user (Peake discloses matching facially-derived measurements and facial image data against stored mask records within mask databases and selecting an appropriate mask based on correlations between facial dimensions, demographic information, sleep characteristics, and historical performance data [0134; 0179; 0181]).
Regarding claim 9, Peak discloses a facial recognition-based breathing mask matching system according to claim 6, wherein the facial recognition-based breathing mask matching method further comprises matching the modeling result with breathing mask components in the breathing mask database; selecting most matching breathing mask components, and then assembling the most matching breathing mask components into a complete breathing mask and recommending the complete breathing mask to the user. (Peake discloses facial scanning and patient interface selection system that matches facial measurements and modeling information with stored patient interface data to identify and recommend an appropriate breathing mask configuration. Peake teaches matching facial feature measurements and facial dimensions to stored patient interface records and interface size data, thereby teaching matching the modeling result with breathing mask components in a breathing mask database [ 0132; 0144; 0172]. Peake further discloses selecting matching mask characteristics based upon the comparison among different mask types [0130; 0144; 0173; 0188]. Peake further teaches generating a complete mask recommendation from the selected mask characteristics [0177-0182]).
Regarding claim 10, Peake discloses a facial recognition-based breathing mask matching system according to claim 1, wherein the facial recognition-based breathing mask matching method further comprises comparing the modeling result with a current breathing mask worn by the user to evaluate a fit degree of the current breathing mask worn by the user (Peake discloses a facial recognition-based breathing mask generating facial measurements and facial feature information from facial images of a patient through image analysis and facial landmarks [0132; 0142; 0159-0162; 0172-0173], thereby generating a modeling result representative of the user facial geometry. Peak further teaches collecting information regarding the current mask used by the patient [0188-0190] and comparing facial dimensions data and mask-related information with operational data associated with the mask being used by the patient [0174; 0177; 0181]. Peake discloses evaluating the fit of the current mask by analyzing operational performance metrics, including mask leaks, compliance, and effectiveness of therapy [ 0134; 0174; 0177; 0181; 0197; 0200]).
Claim Rejections - 35 USC § 103
10. 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 of this title, 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.
11. Claims 2, 3, 7, and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Peake et al. (20220092798) in view of Gugino et al (20210322701).
Regarding claim 2, Peake does disclose a facial recognition-based breathing mask matching method according to claim 1, wherein the basic information of the user comprises gender of the user, race of the user, whether the use has sensitive skin, whether the use has a sleep breathing problem, whether the use has a beard, whether the user has a wound on a face, and whether the user has a wound on a nose [0147; 0175-0176; 0202; 0205]).
Peake does not disclose whether the use has a beard, whether the user has a wound on a face, and whether the user has a wound on a nose.
However, Gugino teaches obtaining demographic and physical information relating to an individual being fitted for a respiratory mask, including facial characteristics facial dimensions, facial topography, facial scaring, and other user-specific information relevant to respirator fitting [0015; 0072; 0075; 0077; 0082]. Such facial characteristics and facial topography encompass physical features of the user’s face that affect respirator fit, including the presence of facial hair (e.g., a beard), as facial hair necessarily alters the facial contour and sealing surface considered during respirator fitting.
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 the modified device of Peake’s mask-selection process to further utilize the demographic information and facial characteristics taught by Gugino, including the presence of facial hair and facial wounds because both references are directed to improve mask-fitting, patient comfort, and patient compliance through the collection and analysis of user specific characteristics. Collectively, Peake and Gugino teach facial recognition-based breathing mask matching method, wherein the basic information of the user comprises, facial topography and facial scaring, whether the user has a wound on a face, and whether the user has a wound on a nose.
Regarding claim 3, the modified device of Peake does disclose a facial recognition-based breathing mask matching method according to claim 2, wherein the basic information of the gender of the user, the race of the user, whether the use has the beard, whether the user has the wound on the face, and whether the user has the wound on the nose is obtained through facial scanning, and the basic information of whether the user has the sensitive skin and the sleep breathing problems is obtained through manual input. [see Peake, 0131-0144; 0158-0162; 0173; 0185; 0205]. Furthermore, Gugino teaches obtaining two-dimensional and three-dimensional facial images of a user, converting facial images into numerical data, extracting facial features and facial dimensions including facial topography, facial scaring, and other user-specific information relevant to respirator fitting [see Gugino; 0015; 0072; 0074-0077; 0082].
Regarding claim 7, Peake does disclose a facial recognition-based breathing mask matching system according to claim 6, wherein the basic information of the user comprises gender of the user, race of the user, whether the use has sensitive skin, whether the use has a sleep breathing problem [0147; 0175-0176; 0202; 0205]).
Peake does not disclose whether the use has a beard, whether the user has a wound on a face, and whether the user has a wound on a nose.
However, Gugino teaches obtaining demographic and physical information relating to an individual being fitted for a respiratory mask, including facial characteristics facial dimensions, facial topography, facial scaring, and other user-specific information relevant to respirator fitting [0015; 0072; 0075; 0077; 0082].
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 the modified device of Peake’s mask-selection process to further utilize the demographic and presence of facial wound and nasal wounds taught by Gugino because both references are directed to improve mask-fitting, patient comfort, and patient compliance through the collection and analysis of user specific characteristics. Collectively, Peake and Gugino teach facial recognition-based breathing mask matching method, wherein the basic information of the user comprises, facial topography and facial scaring, whether the user has a wound on a face, and whether the user has a wound on a nose.
Regarding claim 8, the modified device of Peake does disclose a facial recognition-based breathing mask matching system according to claim 7, wherein the basic information of the gender of the user, the race of the user, whether the use has the beard, whether the user has the wound on the face, and whether the user has the wound on the nose is obtained through facial scanning, and the basic information of whether the user has the sensitive skin and the sleep breathing problems is obtained through manual input [see Peake; 0131-0144; 0158-0162; 0173; 0175-0116; 0185; 0186-0187; 0202-0205]. Furthermore, Gugino teaches obtaining two-dimensional and three-dimensional facial images of a user, converting facial images into numerical data, extracting facial features and facial dimensions, obtaining demographic information including facial dimensions, facial topography, facial scaring, and other user-specific information [see Gugino; 0015; 0072; 0074-0077; 0082].
Conclusion
12. Any inquiry concerning this communication or earlier communications from the examiner should be directed to LEROME PRATT whose telephone number is (571)272-8454. The examiner can normally be reached on Mon - Fri 7:00-4:00. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Timothy Stanis can be reached on 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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/LDP/
Examiner, Art Unit 3785
/TIMOTHY A STANIS/Supervisory Patent Examiner, Art Unit 3785
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