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 February 10, 2026 has been entered. Claims 1-20 remain pending in the application.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1-9 and 11-19 are rejected under 35 U.S.C. 103 as being unpatentable over Pearce in view of Li, Xiang, et al. "Novel 2D metamaterials with negative Poisson’s ratio and negative thermal expansion." Extreme Mechanics Letters 30 (2019): 100498. ("Li").
Regarding claims 1 and 11, Pearce discloses An apparatus/method for detecting air breathed by a user, the apparatus comprising (Abstract and entire document):
a test material and one or more chemicals are disposed on the test material ([0082], “Chemical films providing a colorimetric response to exposure to carbon dioxide are known in the art. Indicators can be formed of films of such chemicals that are disposed on a surface of a flow pathway, mask, mouthpiece, or flow tube and located so as to be exposed to exhaled gases.”),
when exposed to the air breathed by the user, the one or more chemicals are adapted to transform from a first color to a second color ([0081], “For example, an indicator can be one color before use, changing to another color as the subject breathes through the replaceable element. A color change occurs due to exposure of a calorimetric material to carbon dioxide, water vapor, or pathogens in the exhaled breath of a subject. The color change can occur within a geometrical shape, patch, other pattern, warning signal, message or the like. Various types of calorimetric materials are known in the art. These materials are formed into a predetermined shape, such as a color changing patch, strip, film, or other such element.), and
Pearce fails to disclose a test material including a micro-structured metamaterial having a negative thermal-expansion coefficient, the micro-structured metamaterial being adapted to reduce in size when exposed to one or more stimuli, wherein: when the test material reduces in size an intensity of the second color increases (While Pearce discloses a patch material, configured to change both color and shape with the application of a subjects breath, Pearce does not explicitly disclose that the material is specifically a micro-structured metamaterial having a negative thermal-expansion coefficient).
However, in the same field of endeavor, Li teaches a test material including a micro-structured metamaterial having a negative thermal-expansion coefficient, the micro-structured metamaterial being adapted to reduce in size when exposed to one or more stimuli, wherein: when the test material reduces in size an intensity of the second color increases (Introduction, metamaterial with negative thermal expansion (NTE). The reducing in size thus occurring with heat, the color intensity change is a property of the chemical being disposed on a shrinking surface which is the case with any shrinking surface, when the metamaterial shrinks and the chemical remains as a constant).
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 apparatus/method as taught by Pearce to include a test material including a micro-structured metamaterial having a negative thermal-expansion coefficient, the micro-structured metamaterial being adapted to reduce in size when exposed to one or more stimuli, wherein: when the test material reduces in size an intensity of the second color increases as taught by Li to have desirable material traits for sensing components (Abstract).
Regarding claims 2 and 12, Pearce as modified discloses The apparatus of claim 1, Pearce as modified further discloses wherein the one or more stimuli comprise heat, light, a basic solution, an acidic solution, a gas, or moisture (the breath comprises heat, as the stimuli, as breath is known to be hotter than ambient air).
Regarding claims 3 and 13, Pearce as modified discloses The apparatus of claim 1, Pearce as modified further discloses wherein the air breathed by the user comprises at least one of the one or more stimuli (the breath comprises heat, as the stimuli, as breath is known to be hotter than ambient air).
Regarding claims 4 and 14, Pearce as modified discloses The apparatus of claim 1, Pearce as modified further discloses wherein the micro-structured metamaterial is adapted to reduce the test material in size by between 1 percent and 90 percent (Introduction, metamaterial with negative thermal expansion (NTE). The reducing in size thus occurring with heat, the color intensity change is a property of the chemical being disposed on a shrinking surface which is the case with any shrinking surface, when the metamaterial shrinks and the chemical remains as a constant).
Regarding claims 5 and 15, Pearce as modified discloses The apparatus of claim 1, Pearce as modified further discloses further comprising: a face mask, wherein the test material is removably attached to the face mask (Pearce FIG. 17-19 and [0101] discussing removability to attach to face mask).
Regarding claims 6 and 16, Pearce as modified discloses The apparatus of claim 5, Pearce as modified further discloses wherein the second color is configured to provide an indication to dispose of the face mask (Pearce [0088] and [0086], “For example, an indicator can be one color before use, changing to another color as the subject breathes through the replaceable element. A color change occurs due to exposure of a calorimetric material to carbon dioxide, water vapor, or pathogens in the exhaled breath of a subject.”).
Regarding claims 7 and 17, Pearce as modified discloses The apparatus of claim 1, Pearce as modified further discloses wherein the one or more chemicals are further adapted to transform from the first color to the second color when exposed to one or more gases (Pearce [0081], “For example, an indicator can be one color before use, changing to another color as the subject breathes through the replaceable element. A color change occurs due to exposure of a calorimetric material to carbon dioxide, water vapor, or pathogens in the exhaled breath of a subject.” And [0082]).
Regarding claims 8 and 18, Pearce as modified discloses The apparatus of claim 1, Pearce as modified further discloses wherein the test material comprises one or more of a polyurethane polymer, polystyrene polymer, and a blended yarn (Pearce, [0073] the mask liner is polystyrene, thus lining the test material., see also [0081], “One example of a visual usage indicating means is a calorimetric indicator that changes color when exposed to a predetermined condition, such as a component in the inhaled or exhaled gas passing through the respiratory connector 14 or the flow tube 34.” The polystyrene forms the main shape of the mask and test material).
Regarding claims 9 and 19, Pearce as modified discloses The apparatus of claim 1, Pearce as modified further discloses the test material includes two or more initial dimensions (x1, y1) prior to exposure to the one or more stimuli and the test material is operable to reduce in size to dimensions (x2, y2) via exposure to the one or more stimuli, wherein x1>x2 and y1 > y2 (meeting the limitation of shrinking and negative thermal expansion of claim 1, this is further defining that it shrinks in both the x and y direction implied by the shrinking language and in the rejection of claim 1).
Claims 10 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Pearce in view of Li in further view of Suslick et al. (US 2008/0050839 A1) (“Suslick”).
Regarding claims 10 and 20, Pearce as modified discloses The apparatus of claim 1, Pearce as modified fails to disclose further comprising: a spectrophotometer, wherein the spectrophotometer is configured to determine if the one or more chemicals have transformed from the first color to the second color.
However, in the same field of endeavor, Suslick teaches further comprising: a spectrophotometer, wherein the spectrophotometer is configured to determine if the one or more chemicals have transformed from the first color to the second color ([0038], “Color detection can be accomplished with an imaging spectrophotometer,”).
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 apparatus/method as taught by Pearce to include further comprising: a spectrophotometer, wherein the spectrophotometer is configured to determine if the one or more chemicals have transformed from the first color to the second color as taught by Suslick to reduce price ([0038], “The colorimetric differences represent hue and intensity profiles for the array in response to analytes present on exhaled breath. This eliminates the need for extensive and expensive signal transduction hardware associated with previous sensor array techniques (e.g., piezoelectric or semiconductor sensors). When used in accordance with the method of the present invention, a unique color change signature can be created which provides the proper diagnosis of positive or negative for lung cancer.”).
Response to Arguments
Applicant’s arguments with respect to claims 1-20 have been considered but are moot because the new ground of rejection does not solely rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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.
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/J.A.T./Examiner, Art Unit 3791 /TSE W CHEN/Supervisory Patent Examiner, Art Unit 3791