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
Claims 1-8 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 4/3/2026.
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: the claimed limitations of “a cell construct” in claim 17 line 1, "a quadrilateral cell" in claim 17 line 2, "perpendicular members" in claim 17 line 3, "angled semi parallel" in claim 18 line 2, "kite shaped" in claim 19 lines 1-2, and "adjacent corners" in claim 20 line 3 are terms which required proper antecedent basis in the specification.
Claim Objections
Claims 9-15 and 17-20 are objected to because of the following informalities:
Claim 9 recites “and back frame” in line 2, and is suggested to read --and a back frame-- in order to ensure proper antecedent basis.
Claim 9 recites “inward folding” in line 2, and is suggested to read --inwardly folding-- in order to be grammatically correct.
Claim 9 recites “section the filter material” in line 6, and is suggested to read --section of the filter material-- in order to be grammatically correct.
Claim 10 recites “a facemask of claim 8” in line 1, and is suggested to read --the facemask of claim 9-- in order to correct a typographical error and ensure proper antecedent basis.
Claim 11 recites “a facemask” in line 1, and is suggested to read --the facemask-- in order to ensure proper antecedent basis.
Claim 12 recites “a facemask” in line 1, and is suggested to read --the facemask-- in order to ensure proper antecedent basis.
Claim 13 recites “a facemask” in line 1, and is suggested to read --the facemask-- in order to ensure proper antecedent basis.
Claim 14 recites “a facemask” in line 1, and is suggested to read --the facemask-- in order to ensure proper antecedent basis.
Claim 15 recites “a facemask” in line 1, and is suggested to read --the facemask-- in order to ensure proper antecedent basis.
Claim 17 recites “a facemask” in line 1, and is suggested to read --the facemask-- in order to ensure proper antecedent basis.
Claim 18 recites “a facemask” in line 1, and is suggested to read --the facemask-- in order to ensure proper antecedent basis.
Claim 19 recites “a facemask” in line 1, and is suggested to read --the facemask-- in order to ensure proper antecedent basis.
Claim 20 recites “a facemask” in line 1, and is suggested to read --the facemask-- in order to ensure proper 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 11 and 13-20 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 11 recites the limitation "the conformal straps" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 13 recites the limitation "the rim" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 14 recites the limitation "the base" in line 2. There is insufficient antecedent basis for this limitation in the claim. Moreover, the limitation “straps” in line 3 is confusing, as it is unclear whether this limitation is meant to be the same as or different from “the conformal straps” of claim 11.
Claim 15 recites the limitations "the top" in line 1, “the surrounding cell construct” in line 2, and “the back” in line 3. There is insufficient antecedent basis for these limitations in the claim. Moreover, the limitation “the surrounding cell construct” in line 2 is confusing, as it is unclear whether this limitation is meant to be the same as or different from “a cell construct” in line 1. Furthermore, the limitation “one or more clips” in line 3 is confusing, as it is unclear whether this limitation is meant to include the “front clip” of claim 9.
Claim 16 recites the limitation "the base" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 17 recites the limitations "the top" in line 1 and “the surrounding cell construct” in line 2. There is insufficient antecedent basis for these limitations in the claim. Moreover, the limitation “the surrounding cell construct” in line 2 is confusing, as it is unclear whether this limitation is meant to be the same as or different from “a cell construct” in line 1. Furthermore, the limitation “one or more clips” in line 3 is confusing, as it is unclear whether this limitation is meant to include the “front clip” of claim 16.
Any remaining claims are rejected based on their dependency on a rejected base 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 (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.
Claims 16-19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Vasiliev et al. (US 2018/0353782 A1).
Regarding claim 16, as best understood, Vasiliev discloses a front clip for a facemask framework (support member 576 for a respirator 500) (Figs. 12, 14; para. [0118]) comprising: a post; and, a slot construct positioned at the base of the post, said slot construct adapted for insertion of one or more of straps (posts of support member 576 extends to a base with an upper loop 502 or a lower loop 504 into which straps of harness 514 are inserted) (Figs. 12, 14; para. [0118]).
Regarding claim 17, as best understood, Vasiliev discloses wherein a cell construct at the top of the post forms a quadrilateral cell (each one of the posts of the support member 576 has a quadrilateral exhalation valve 570 at the top) (Fig. 12; para. [0118]) from which the surrounding cell construct has one or more perpendicular members that extend to one or more clips adapted to fit over a back frame (support element 276, 576 is connected to a base 272, 572, 772 of the exhalation valve 570, 770; exhalation valve 570, 770 is connected to pivot points 778, 779 that extend perpendicularly to support elements 776, 777 that fit over the base 772 and/or the filter of mask body 712) (Figs. 6-7, 12, 14; para. [0093]; para. [0108]; para. [0110]; para. [0118]; para. [0121]).
Regarding claim 18, Vasiliev discloses wherein the one or more clips adapted fit over the back frame are angled semi parallel to the post and adapted for clipping on the back frame (the post of support member 576 extending to the base with upper loop 502 or lower loop 504 would be semi parallel to support elements 776, 777, particularly as the support elements 776, 777 can pivot about pivot points 778, 779) (Figs. 12, 14; para. [0122]).
Regarding claim 19, Vasiliev discloses wherein the quadrilateral cell is kite shaped (all design consideration for the respirators in Figs. 6-9 can apply to Fig. 12; as such, the Fig. 12 exhalation valve 570 can have a square seal surface and/or orifice, wherein a square is a type of kite shape) (Figs. 7-8, 12, 14; paras. [0102-0103]; para. [0118]).
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 § 2146 et seq. 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 filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual 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/apply/applying-online/eterminal-disclaimer.
Claims 9-10, 12, and 16 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 3-4 of U.S. Patent No. 11,872,417, hereinafter ‘417. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claim 9, ‘417 discloses a framework for a facemask comprising: a front clip and back frame (‘417; claim 1) adapted for inward folding a filter material over at least a distal portion and a proximal portion of the back frame (a filter material is inwardly folded over a distal portion and a proximal portion of the back frame) (‘417; claim 1) wherein a breathable filter surface area is created proximal to a donning user from the front clip and the breathable filter surface area includes an area of the inwardly folded section the filter material (a breathable surface area is created proximal the donning user and includes an area of the inwardly folded section of the filter material) (‘417; claim 1).
Regarding claim 10, ‘417 discloses further comprising conformal straps attached to the filter material (securing material such as elastic straps are attached to the front clip, which is in turn attached to the filter material) (‘417; claims 1, 4).
Regarding claim 12, ‘417 discloses further comprising a facial sealing strip around the rim of the facemask (the facemask has a user conformable rim adapted to form a seal) (‘417; claim 3).
Regarding claim 16, as best understood, ‘417 discloses a front clip for a facemask framework comprising: a post; and, a slot construct positioned at the base of the post, said slot construct adapted for insertion of one or more of straps, cords, tubing and o-rings (the front clip is a physical object and so can be considered a post; the front clip has a lower slot, thus at a base, for the insertion of a strap) (‘417; claim 4).
Allowable Subject Matter
Claims 9-15 would be allowable if rewritten or amended to overcome the rejections under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, as well as the double patenting rejections set forth in this Office action.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 9, the prior art of record does not disclose nor sufficiently teach a framework for a facemask comprising: a front clip and back frame adapted for inward folding a filter material over at least a distal portion and a proximal portion of the back frame wherein a breathable filter surface area is created proximal to a donning user from the front clip and the breathable filter surface area includes an area of the inwardly folded section the filter material.
Regarding claims 10-15, as best understood, these claims are dependent upon claim 9 which was indicated to have allowable subject matter, and thus would also be considered to have allowable subject matter.
Claim 20 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:
Regarding claim 20, the prior art of record does not disclose nor sufficiently teach wherein the cell construct is angled from the post so that the post and the one and more perpendicular members extend from adjacent corners of the cell construct.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US 4,630,604 by Montesi is considered to be relevant as it discloses a respirator that holds a filter in between two piece of a facemask framework.
US 2012/0042878 A1 by Woo is considered to be relevant as it discloses a mask assembly wherein a filter is held between front and back frames.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JACQUELINE M PINDERSKI whose telephone number is (571)272-7032. The examiner can normally be reached Monday-Friday 7:00-4:00.
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, Timothy Stanis can be reached at 571-272-5139. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JACQUELINE M PINDERSKI/Examiner, Art Unit 3785
/RACHEL T SIPPEL/Primary Examiner, Art Unit 3785
Prosecution Insights