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
This office action is responsive to the amendment filed on January 17, 2024. As directed by the amendment: no claims have been amended, claims 1-89 have been canceled, and new claims 90-115 have been added. Thus, claims 90-115 are presently pending in the application.
Specification
Applicants are reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because it contains the term “comprising” which is considered claim terminology that should be avoided.
Correction is required. See MPEP § 608.01(b).
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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claim 90 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,253,668.
As to instant claim 90, the patented claim 1 discloses all of the structural limitations of the headgear of the instant claim including the first strap connected between ends of a second strap and unitary plastic core material within casings of the straps. It is capable of use as a headgear for a breathing apparatus.
Claim Rejections - 35 USC § 112
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.
Claim 96 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Claim 96 recites the limitation "can" in line 2, which renders the claim indefinite as it is not clear if the limitation is required or optional. Examiner suggests amending the limitation to read --the linking member is configured to stretch--. There is insufficient antecedent basis for this limitation in the claim.
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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 90, 91, 99-102, 105, and 106 are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Barlow et al. (US 2012/0152255).
As to claim 90, Barlow discloses a headgear 8010 (Figs. 130-136) for use with a breathing apparatus (PAP device or flow generator 8015 Fig. 137, paragraph [0412]), comprising:
a first strap 8002 (see annotated Fig. 131 below, paragraph [0414]); and
a second strap (occipital ring 8001) connected to the first strap 8002 at a position between end portions 8006 of the second strap 8001 (see annotated Fig. 131 below, paragraph [0412]-[0414]),
wherein a unitary plastic core material (rigidizer 8007, see Fig. 133 and annotated Fig. 131 below, see also paragraph [0432] describing the rigidizer as constructed of plastic) is integrally formed within textile casings of both the first strap 8002 and the second strap 8001 (Fig. 136, paragraph [0435]: rigidizer 8007 is inserted between the two fabric layers 8011 of the strap prior to ultrasonic welding, thereby encapsulating the rigidizer within the strap or headgear 8010).
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As to claim 91, Barlow discloses that the unitary plastic core material (rigidizer 8007) extends through at least one of the textile casings of the first strap 8002 and the second strap 8001 (see Fig. 131 showing the rigidizer extending from the occipital ring 8001 into the second strap portion 8002).
As to claim 99, Barlow discloses the headgear of Claim 90, wherein the textile casings have a seamless tubular shape (the ends are ultrasonically welded and cut resulting in a rounded edge, paragraph [0435]).
As to claim 100, Barlow discloses the headgear of Claim 90, wherein the textile casings are knitted, woven, braided or crocheted (woven fabric, paragraph [0509]).
As to claim 101, Barlow discloses the headgear of Claim 90, wherein an end portion of the textile casing of the first strap 8002 is in abutting contact with the textile casing of the second strap 8001 (see Fig. 131).
As to claim 102, Barlow discloses the headgear of Claim 101, wherein an end portion of the textile casing of the first strap has a sealed portion (see Fig. 136, paragraph [0435], the edges of the two layers of fabric are ultrasonically welded together).
As to claim 105, Barlow discloses the headgear of Claim 90, wherein at least one of the first strap and the second strap comprises a soft edge portion that extends along an edge of the first strap and/or second strap in a lengthwise direction (Fig. 136, paragraph [0435]: the ultrasonic welding and cutting of the two layers of fabric 8011 results in a rounded edge to prevent irritation to the skin).
As to claim 106, Barlow discloses the headgear of Claim 105, wherein the soft edge portion of the at least one of the first strap and the second strap comprise portions of the textile casings of the first strap and/or second strap that are not filled with the unitary plastic core material (see Fig. 131 showing the strap material extending past the longitudinal edges of the rigidizer 8007).
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.
Claim 103 is rejected under 35 U.S.C. 103 as being unpatentable over Barlow et al. (US 2012/0152255), in view of Dunn et al. (US 2014/0190486).
As to claim 103, Barlow discloses the headgear of Claim 102, wherein the sealed portion is formed by cutting, but lacks detailed description as to the limitation that the cutting is done with a hot knife.
However, Dunn teaches an ultrasonically cut and sealed headgear strap wherein the cutting includes a hot knife (Fig. 1-3 to 1-4, paragraph [0075]: anvil used to seal and cut the material in a single operation includes a knife plate 114 with knife line 116, energy created by the vibration of sonotrode 112 is converted to heat energy by the anvil/knife plate 114, thus the knife plate 114 is heated/hot).
Therefore, it would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to modify the headgear of Barlow so that the sealing and cutting of the strap is done via the technique taught by Dunn, in order to provide an efficient means of cutting and sealing the edges of the fabric material in a single operation.
Claim 104 is rejected under 35 U.S.C. 103 as being unpatentable over Barlow et al. (US 2012/0152255), in view of Scheiner et al. (US 2015/0352306).
As to claim 104, Barlow discloses the headgear of Claim 90, but does not disclose strap connectors positioned on an outer surface of at least one of the first strap and the second strap, wherein the strap connectors are formed from the unitary plastic core material.
However, Scheiner teaches a headgear having a plastic core material (rigidizer arm 3302, Fig. 67-70) within a textile casing 3301 (Fig. 65, 68-70, paragraph [0472]) and further comprising a strap connector (projection 3380, figs. 248A-B) positioned on an outer surface of the strap 3301, wherein the strap connectors 3050 are formed from the plastic core material of the rigidizer arm 3302 (Fig. 41, Fig. 74, paragraph [0469]).
Therefore, it would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to modify the headgear of Barlow to include strap connectors as extensions of the rigidizer, in order to provide an alternative known means of attaching the headgear to the interface in a secure and removable manner.
Allowable Subject Matter
Claims 107-118 are allowed.
Claims 92-95 and 97-98 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 96 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
As to claim 107, Veliss et al. (US 2010/0018534) represents the closest prior art to the claimed invention.
Veliss discloses a method for forming a headgear within a moulding tool, comprising: placing a first tubular textile casing within a mold and introducing a molten plastic into the molding tool onto the first textile casing and allowing the molten plastic material to solidify within the first tubular textile casing to form an integral plastic core (Fig. 10-1 to 10-6, paragraph [0214]: fabric/cloth material of sock S is placed in a mold and silicone is injected into the mold so that it bonds with the fabric/cloth material and forms a one-piece integrated structure).
However, Barlow does not disclose, nor does the prior art of record render obvious, that a second tubular casing is placed within the mold with the first tubular casing and the molten plastic material is pushed through the second tubular casing through the first tubular casing.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Madaus et al, (US 2004/0025882) discloses a headgear having a strap with a unitary plastic core (thermoplastic reinforcement insert 4).
Rummery et al. (US 8,636,007) discloses a headgear having first strap connected to a second strap between ends of the second strap.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VALERIE L WOODWARD whose telephone number is (571)270-1479. The examiner can normally be reached on Monday - Friday 8:30 am - 4:30 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, KENDRA CARTER can be reached on 571-272-9034. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/VALERIE L WOODWARD/Primary Examiner, Art Unit 3785
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