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 Interpretation
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.
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:
“a flow regulation mechanism” in claims 1-16
“a connection mechanism” in claims 1-16
“at least one movable release element” in claims 1-9, 14-16
“a lockout mechanism” in claims 1-6, 10-16
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Objections
The claims have been objected to for the following reasons:
All dependent claims should read “The lung demand regulator as claimed in claim…”
In claim 1, “a flow of breathing gas” was introduced in line 2. In line 3, it is referred to as “breathing gas flow”. For claim consistency the second instance should read “the flow of breathing gas”.
Claim 1, line 7, the claim should specify that the connection mechanism is being released from the face mask.
Claim 1 refers to both “at least one movable release element” and “the at least one release element”. For claim consistency, these limitations should contain consistent claim terminology. This occurs throughout the claims.
Claim 3, line 3 “cam follower” should read “the cam follower”.
Claim 4, line 4 “second chamfered face” should read “the second chamfered face”.
Claim 9, line 4, “section” should read “second”.
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.
Claims 4 and 5 are 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 4 recites “optionally” twice. It is unclear if the limitations that follow the term “optionally” are required or not. For purposes of examination the limitations that follow optionally are not required to meet the claim language.
Regarding claim 5, it is unclear if the first and second cam elements are part of the cam element recited in claim 1 or if they are in addition to the cam element recited in claim 1.
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.
Claim(s) 1-12 and 14-16 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Townsend et al. (US 2021/0260412 A1).
Regarding claim 1, Townsend discloses: A lung demand regulator for a breathing apparatus (10) comprising:
a flow regulation mechanism (102 + tubing downstream of it which is not labeled, figures 2-3) [0034] for regulating a flow of breathing gas, the flow regulation mechanism having a closed configuration in which breathing gas flow can be substantially prevented (figure 3) [0039];
a connection mechanism (101, 103, 105; figures 2-3) [0033] for releasably connecting the lung demand regulator to a face mask (22), the connection mechanism comprising at least one movable release element (103 and 105, figures 2-3) [0033] [0044]-[0045] configured to be manually actuated (by button 132, figures 2-3) [0041] [0043] by a user to release the connection mechanism; and
a lockout mechanism (118, 126; figures 2-3) for locking the flow regulation mechanism in the closed configuration [0039] [0041], the lockout mechanism configured to be activated by the at least one release element (128 138) [0044], the lockout mechanism comprising a lockout actuator (124) [0040]-[0042] configured to activate the lockout mechanism,
wherein the at least one release element (128 138) comprises a cam element (128) [0041] and the lockout actuator (124) comprises a cam follower (124) [0040]-[0041] configured to engage with the cam element (figures 2-3) such that the lockout actuator is actuated by movement of the at least one release element (figure 3) [0040]-[0041].
Regarding claim 2, Townsend further discloses wherein the at least one release element (128, 138) is movable in a substantially radial direction (outward as shown in figures 2-3) relative to a longitudinal axis of an outlet port of the flow regulation mechanism (see figures 2-3).
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Regarding claim 3, Townsend further discloses wherein the substantially radial movement of the at least one release element is configured to be translated by the cam element and cam follower into a movement of the lockout actuator (124) in a direction substantially parallel to the longitudinal axis (124 pivots substantially up-down as shown in figures 2-3).
Regarding claim 4, Townsend further discloses wherein the cam element is configured with a first chamfered face (see figures 2-3) and, optionally wherein the cam follower is configured with a second chamfered face, optionally wherein the planes of the first chamfered face and second chamfered face being substantially parallel to each other (the examiner notes that the limitations following optionally are not required as they are optional).
Regarding claim 5, Townsend further discloses first and second cam elements (138 128) configured to move in substantially opposing directions to engage the cam follower (124) (see figure 4).
Regarding claim 6, Townsend further discloses wherein the lockout mechanism comprises a lockout lever (122) configured to be pivotable about a first pivot (at L as shown in figures 2-3), wherein the lockout actuator (124) is configured to interface with the lockout lever such that movement of the lockout actuator pivots the lockout lever about the first pivot (see figures 2-3).
Regarding claim 7, Townsend further discloses wherein the lockout mechanism comprises a diaphragm retention lever (106) configured to be pivotable about a second pivot (the pivot on 102 as shown in figures 2-3).
Regarding claim 8, Townsend further discloses wherein the lockout lever (122) is configured to interface with the diaphragm retention lever (106) such that pivoting movement of the lockout lever pivots the diaphragm retention lever about the second pivot. (latch 118 may act on 106 as per [0039])
Regarding claim 9, Townsend further discloses wherein the lockout actuator (124) is configured to interface with the lockout lever (122) at a first position on the lockout lever a first distance from the first pivot (at the pivot), and the lockout lever (122) is configured to interface with the diaphragm retention lever (where 122 meets 106 as per [0039]) at a section position on the lockout lever at a second distance from the first pivot (the length of 122), wherein the second distance is greater than the first distance (see figures 2-3).
Regarding claim 10, Townsend further discloses wherein the at least one release element (128, 138) comprises a first keying element (107; figures 2-3).
Regarding claim 11, Townsend further discloses wherein the first keying element (107) is configured to interface with a substantially annular second keying element (30) on the face mask (see figures 2-3) [0033].
Regarding claim 12, Townsend further discloses wherein the first keying element (107) and the second keying element (30) are configured to permit rotation of the lung demand regulator about the longitudinal axis relative to the face mask (the examiner notes that the recess 30 is annular and as such the examiner takes the position that 107 is configured to rotate in annular recess 30).
Regarding claim 14, Townsend further discloses: A breathing gas delivery system (figure 1: mask 22 + regulator as set forth for claim 1) comprising a lung demand regulator according to claim 1 (see claim 1 above), and a face mask (22) for connection to the lung demand regulator [0030].
Regarding claim 15, Townsend further discloses: A breathing apparatus (figure 1) comprising a lung demand regulator according to claim 1.
Regarding claim 16, Townsend further discloses: A breathing apparatus (figure 1) comprising a breathing gas delivery system according to claim 14 (see claim 1 above).
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 (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 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.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Townsend in view of Haston (US 2004/0149286 A1).
Regarding claim 13, Townsend further discloses wherein the first keying element comprises a section (portion of 107 that contacts 30) configured to contact the second keying element (30) so as to automatically actuate the at least one release element (128, 138) when the lung demand regulator is pushed onto the face mask [0044]-[0045].
Townsend does not explicitly disclose that the section comprises a chamfered section.
Haston teaches a regulator (abstract) and thus is analogous art. Haston teaches it is known for a latch to have a chamfered shape (212 210; figure 5).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified Townsend such that the portion of 107 that contacts 30 is chamfered as taught by Haston as this is a known shape for the connection of two components to each other [0063].
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: Townsend (EP 2514484 B1).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VICTORIA MURPHY whose telephone number is (571)270-7362. The examiner can normally be reached M-F 8:00am-4:00pm CT.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kendra Carter can be reached at (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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/VICTORIA MURPHY/Primary Patent Examiner, Art Unit 3785
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