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 .
Election/Restrictions
Applicant’s election of Species A and Species v in the reply filed on 6/18/2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 4-6, 9, 10, 14-16, 19 and 20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected species, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 6/18/2026. [Note: Applicant indicated claims 6 and 16 as readable on the elected species, but claims 6 and 16 are directed to a bubbler comprising a first fluid path and a separate second fluid path, which, as best understood from paras [0132-139] and Fig. 9 of the instant specification, corresponds to unelected species D.]
Specification
The title of the invention is not descriptive. A new title is required that is clearly indicative of the invention to which the claims are directed.
The following title is suggested: BREATHING GAS HUMIDIFIER WITH SELECTIVE BUBBLING FUNCTIONALITY.
Claim Objections
Claims 2, 3, 7, 8, 12, 13, 17 and 18 are objected to because of the following informalities:
The preambles of claims 2, 3, 7, 8, 12, 13, 17 and 18 should read “The breathing gas humidifier” for clearer antecedent basis
Claim 3 would be clearer if it were to read “wherein is arranged to be changed by means of compressed air” to make it clearer that the element is not changed with respect to itself
Claim 7 would be clearer if it were to read “the bubbler elementcomprises” in order to make it clear that “forming” is not an action to be performed by the bubbler element
Claim 13, line 2 should read “change a position” for clearer antecedent basis
Appropriate correction is required.
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 8 and 18 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.
Regarding claim 8 and 18, “branching off in a star shape” is indeterminate in scope. Branching off…from what? And stars come in many shapes, e.g. the sun is round/a ball, and is often drawn by children as a half-moon shape with radiating lines along the curved portion, the Star of David has six points with no central element, etc., all of which are different shapes, rendering it unclear what shape is intended to be claimed. As best understood, for purposes of examination, a shape with bodies that radiate like spokes in a plane from a central location is the disclosed “star shape,” see e.g. instant Fig. 1a, such that Applicant could address this rejection by amending claims 8 and 18 to read e.g. “radially extending in a plane from a central portion”.
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 use the word “means” or “step” but are nonetheless not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph because the claim limitation(s) recite(s) sufficient structure, materials, or acts to entirely perform the recited function. Such claim limitation(s) is/are: “means of compressed air” in claims 3 and 13.
Because this/these claim limitation(s) is/are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are not being interpreted to cover only the corresponding structure, material, or acts described in the specification as performing the claimed function, and equivalents thereof.
If applicant intends 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 remove the structure, materials, or acts that performs the claimed function; or (2) present a sufficient showing that the claim limitation(s) does/do not recite sufficient structure, materials, or acts to perform the claimed function.
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, 2, 7, 11, 12 and 17 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Loescher et al. (US 2010/0282256 A1; hereinafter “Loescher”).
Regarding claim 1, Loescher discloses a breathing gas humidifier (apparatus 10) (Fig. 1; the device comprehends a breathing gas humidifier because the liquid to be provided therein is taught to be water, see para [0015], and at least some water vapor will be entrained as breathing gas flows through the device as shown in Figs. 10-11, in the same way as the instantly disclosed device, see e.g. Figs. 1a-1b of the instant specification, thus humidifying the gas) comprising:
a water chamber (defined by water reservoir or jar 12 and cap 11) comprising a first area (lower area in Figs. 10-11) for receiving water (liquid 31) (para [0015]) and a second area (upper area in Figs. 10-11) for receiving breathing gas (arrows in Figs. 10-11) (paras [0015] and [0024]);
an inlet (opening 29) for supplying breathing gas to the humidifier (Fig. 2 in view of Figs. 10-11; paras [0015] and [0024]);
an outlet (outlet ports 15) for discharging conditioned breathing gas from the humidifier (Fig. 1 in view of Figs. 10-11; paras [0015] and [0024]); and
a bubbler comprising a bubbler element (drop tube 22) with outlet openings (gas diffusing ports 23) (Figs. 3, 7, 8, 10-11; paras [0015] and [0024]),
wherein the breathing gas humidifier is configured to provide a first configuration with a fluidic connection between the inlet and the first area via the bubbler element to pass the supplied breathing gas through water in the first area so as to obtain the conditioned breathing gas (Fig. 11),
wherein the breathing gas humidifier is configured to provide a second configuration with a fluidic connection between the inlet and the second area to direct the breathing gas along a water surface of water in the first area so as to obtain the conditioned breathing gas (Fig. 10), and
wherein the breathing gas humidifier is configured to be selectively switched (via lever 16) between the first configuration and the second configuration (Figs. 10-11; paras [0015] and [0024]).
Regarding claim 2, Loescher discloses the breathing gas humidifier according to claim 1, further comprising a position-variable element (any or all of lever 16, tube 30 and tube 22) configured to provide the first configuration in a first position and to provide the second configuration in a second position (Figs. 10-11; paras [0015] and [0024]).
Regarding claim 7, Loescher discloses the breathing gas humidifier according to claim 2, wherein the bubbler element is adapted to form the position-variable element (Figs. 10-11; paras [0015] and [0024]).
Regarding claim 11, Loescher discloses a breathing gas humidifier (apparatus 10) (Fig. 1; the device comprehends a breathing gas humidifier because the liquid to be provided therein is taught to be water, see para [0015], and at least some water vapor will be entrained as breathing gas flows through the device as shown in Figs. 10-11, in the same way as the instantly disclosed device, see e.g. Figs. 1a-1b of the instant specification, thus humidifying the gas) comprising:
a water chamber (defined by water reservoir or jar 12 and cap 11) comprising a first area (lower area in Figs. 10-11) for receiving water (liquid 31) (para [0015]) and a second area (upper area in Figs. 10-11) for receiving breathing gas (arrows in Figs. 10-11) (paras [0015] and [0024]);
an inlet (opening 29) for supplying breathing gas to the humidifier (Fig. 2 in view of Figs. 10-11; paras [0015] and [0024]);
an outlet (outlet ports 15) for discharging conditioned breathing gas from the humidifier (Fig. 1 in view of Figs. 10-11; paras [0015] and [0024]); and
a bubbler comprising a bubbler element (drop tube 22) with outlet openings (gas diffusing ports 23) (Figs. 3, 7, 8, 10-11; paras [0015] and [0024]), and
configuration changing means (the arrangement between lever 16, tube 30 and tube 22) for providing a first configuration with a fluidic connection between the inlet and the first area via the bubbler element to pass the supplied breathing gas through water in the first area so as to obtain the conditioned breathing gas (Fig. 11), and for providing a second configuration with a fluidic connection between the inlet and the second area to direct the breathing gas along a water surface of water in the first area so as to obtain the conditioned breathing gas (Fig. 10), and for being selectively switched between the first configuration and the second configuration (Figs. 10-11; paras [0015] and [0024]).
Regarding claim 12, Loescher discloses the breathing gas humidifier according to claim 11, wherein the configuration changing means comprises a position-variable element (any or all of lever 16, tube 30 and tube 22) configured to provide the first configuration in a first position and to provide the second configuration in a second position (Figs. 10-11; paras [0015] and [0024]).
Regarding claim 17, Loescher discloses the breathing gas humidifier according to claim 12, wherein the bubbler element includes the position-variable element (Figs. 10-11; paras [0015] and [0024]).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 3 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Loescher in view of Zhu (CN 113483425 A; hereinafter “Zhu”, wherein the citations below refer to the translation provided with this Office Action).
Regarding claim 3, Loescher discloses the breathing gas humidifier according to claim 2, but Loescher is silent regarding wherein the position-variable element is arranged to be changed with respect to a position of the position-variable element by means of compressed air. However, providing an automatic or mechanical means to replace a manual activity which accomplishes the same result is not sufficient to distinguish over the prior art, see MPEP 2144.04 III, and Zhu teaches that it was known in the respiratory humidifier art before the effective filing date of the claimed invention to include a vertically-adjustable, position-variable element (filter screen 4/lifting plate 5) (Figs. 2-4) wherein the position-variable element is arranged to be changed with respect to a position of the position-variable element by means of compressed air (pneumatic rod 7 is driven by the controller to control the lifting plate 5 to ascend or descend, second-to-last para on page 4). Therefore, it would have been obvious to an artisan before the effective filing date of the claimed invention to substitute the vertical adjustment mechanism of Loescher with the pneumatic vertical adjustment mechanism of Zhu, thus providing wherein the position-variable element is arranged to be changed with respect to a position of the position-variable element by means of compressed air, in order to provide the predictable result of an automated means for controlling the vertical adjustment of the bubbler element of Loescher for ease of use and/or remote control.
Regarding claim 13, Loescher discloses the breathing gas humidifier according to claim 12, but Loescher is silent regarding wherein the configuration changing means comprises an actuating means to change the position of the position-variable element between the first position and the second position by means of compressed air. However, providing an automatic or mechanical means to replace a manual activity which accomplishes the same result is not sufficient to distinguish over the prior art, see MPEP 2144.04 III, and Zhu teaches that it was known in the respiratory humidifier art before the effective filing date of the claimed invention to include configuration changing means (comprising a controller, pneumatic rod 7, lifting plate 5 and filter screen 4) (Figs. 2-4; page 4) that comprises an actuating means (comprising the controller and pneumatic rod 7) to change the position of the position-variable element (filter screen 4/lifting plate 5) between a first position and a second position by means of compressed air (pneumatic rod 7 is driven by the controller to control the lifting plate 5 to ascend or descend, second-to-last para on page 4). Therefore, it would have been obvious to an artisan before the effective filing date of the claimed invention to substitute the vertical adjustment mechanism of Loescher with the pneumatic vertical adjustment mechanism of Zhu, thus providing wherein the configuration changing means comprises an actuating means to change the position of the position-variable element between the first position and the second position by means of compressed air, in order to provide the predictable result of an automated means for controlling the vertical adjustment of the bubbler element of Loescher for ease of use and/or remote control.
Claim(s) 8 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Loescher in view of Brown (US 4,622,139; hereinafter “Brown”).
Regarding claims 8 and 18, Loescher discloses the breathing gas humidifier according to claims 7 and 17, Loescher teaches that small bubbles are desirable in order to produce a steady, regular and quiet flow of gas (Loescher para [0023]), but Loescher is silent regarding wherein the bubbler element comprises a plurality of hollow bodies branching off in a star shape. However, a change in shape is generally recognized as being within the level of ordinary skill in the art, see MPEP 2144.04.IV.B, and Brown teaches that it was known in the bubbler element art/to solve the problem of evenly distributing small bubbles into a liquid column before the effective filing date of the claimed invention for a bubbler element to comprise a plurality of hollow bodies branching off in a star shape (Figs. 1-3). Therefore, it would have been obvious to an artisan before the effective filing date of the claimed invention to modify Loescher to include wherein the bubbler element comprises a plurality of hollow bodies branching off in a star shape as taught by Brown, in order to provide the predictable result of a steady, regular and quiet flow of gas by ensuring the production of small bubbles/avoiding the formation of larger bubbles (Loescher para [0023]; Brown col. 1, lines 20-32).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Additional references that could be applied under 35 USC 102 to reject at least claim 1: Bertoli (US 7,926,791 B1); Deaton (US 3,744,771); Lanfranchi (EP 2123321 A1); Pan (CN 105664317 B). Additional references teaching other known means for adjusting the height of bubbler tubes: Beyreuther et al. (US 4,459,983); Brossman, Jr. (US 4,566,450); DiBlasi et al. (US 2011/0073112 A1); Gutierrez Fonseca et al. (US 2012/0160242 A1); Hsiung (US 2018/0272097 A1 and US 9,765,928 B2); Jacobs et al. (US 2005/0072470 A1); Newman, Jr. (US 8,225,787 B2); Sims (US 2025/0332361 A1); Stenzler et al. (US 2014/0166013 A1); Tian (CN 107626025 B). Additional reference teaching directing humidifier air either above or under fluid: Li et al. (CN 111001072 A). Additional references teaching “star shaped” bubblers: Alenzi (US 8,622,370 B1); Hill (US 4,892,651); Magen (US 8,500,107 B2); McCullough (US 4,048,072); McWhirter et al. (US 3,911,064); Zhu (CN 202620424 U). Additional references teaching the interchangeability of manual, electric, pneumatic or hydraulic actuators in respiratory devices, including humidifiers: Abrams (US 2011/0283996 A1; Figs. 41, 43 and 48L); Gulanes et al. (US 2017/0152989 A1; para [0091]); Yang et al. (CN 104879873 A).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHRYN E DITMER whose telephone number is (571)270-5178. The examiner can normally be reached M 7:30a-3:30p, T/Th 8:30a-2:30p, W 11:30a-4:30p, F 1-4p ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brandy Lee can be reached at 571-270-7410. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KATHRYN E DITMER/Primary Examiner, Art Unit 3785
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