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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 10/2/25 has been entered.
Status of Claims
The amendment filed 10/2/25 is acknowledged. Claims 1-5, 8-20 are pending. Claim 20 is new. Claims 1-5, 8-10 are amended. Claims 11-19 are withdrawn from consideration.
Election/Restrictions
Applicant’s election of Species A in the reply filed on 10/2/25 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)).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 9 rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 9 recites “wherein the breathalyzer displays a pattern of resistance change over time resembling an omega pattern when the subject has COVID disease…”. Examiner notes that the pattern produced or whether the subject has covid does not further structurally limit the breathalyzer. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claim(s) 1-5, 8-10, 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gouma et al. (Novel Isoprene Sensor for a Flu Virus Breath Monitor, Sensors 2017), hereinafter Gouma-NPL in view of Maric et al. (US 2017/0284999 A1), hereinafter Maric.
Regarding Claim 1, Gouma-NPL teaches: A breathalyzer (figure 3A) comprising one or more sensors including at least a first sensor that is selective to NO breath gas biomarker (section 2.1.2 and Table 1); a front end circuit operatively coupled to the one or more sensors (section 2.1.3; Figure 3A and 3B); and a central processing unit operatively coupled to the front end circuit (Figure 3A and 3B); wherein the breathalyzer is configured to: collect a breath sample from the subject (section 2.1.3), receive the breath sample at the one or more sensors (section 2.1.3), the sensor is configured to receive the breath sample as a first sensor temperature, wherein the breathalyzer is configured to generate the first sensor temperature at greater than or equal to 300 ᵒC (figure 1, figure 2 section 2.1.2), and collect a signal (VOUT) generated by the one or more sensors, and display the signal (VOUT) as a pattern of resistance change over time (section 2; figure 2 and figure 3).
While Gouma-NPL mentions y-WO3 is also known to be selective to NO (section 2.1.2), examiner notes that Gouma-NPL focuses on the use of h-WO3 and does not explicitly teach the use of y-WO3 capable catalytically oxidizing ammonia to NO.
Maric teaches the use of y-WO3 at a working temperature of 250° C. to about 400° C. to detect NOx (i.e. NO; paragraph 0019-0022; pure, nanostructured y-phase W03 on platinum electrodes deposited on an alumina substrate paragraph 0112). It would have been obvious to one of ordinary skill in the art, before the effective filing date to have modified the breathalyzer of Gouma to use y- WO3 instead of h-WO3 as the substation of one sensor for another would have yielded predictable results to one of ordinary skill (namely the detection of NO). Examiner notes that the sensor of Gouma in view of Maric would be capable catalytically oxidizing ammonia to NO as Maric teaches pure, nanostructured y-phase W03 on platinum electrodes deposited on an alumina substrate. Per paragraph 0024 of Applicant’s Specification, “pure, nanostructured γ-phase WO3 on Pt electrodes deposited on an alumina substrate enables the catalytic oxidation of ammonia to NO”. Thus the claimed limitations are met.
Regarding Claim 2, Gouma-NPL in view of Maric teaches: The breathalyzer of claim 1 wherein the first sensor temperature is less than or equal to 550ᵒC (Gouma-NPL – table 1, figure 2; Maric - paragraph 0019-0022).
Regarding Claim 3, Gouma-NPL in view of Maric teaches: The breathalyzer of claim 1 wherein the first sensor temperature is less than or equal to 350ᵒC (Gouma-NPL – table 1, figure 2; Maric - paragraph 0019-0022).
Regarding Claim 4, Gouma-NPL in view of Maric teaches: The breathalyzer of claim 1, wherein the first sensor is sensitive to changes in resistance associated with the NO breath gas biomarker to which it has a selective response (Gouma-NPL – figure 2).
Regarding Claim 5, Gouma-NPL in view of Maric teaches: The breathalyzer of claim 1 wherein the first sensor comprises pure, nanostructured y-phase W03 on platinum electrodes deposited on an alumina substrate (Maric - paragraph 0112).
Regarding Claim 8, Gouma-NPL in view of Maric teaches: The breathalyzer of claim 1 wherein the breathalyzer is handheld or portable (Gouma-NPL – figure 3).
Regarding Claim 9, Gouma-NPL in view of Maric teach: The breathalyzer of claim 1 wherein the breathalyzer displays a pattern of resistance change over time (Gouma-NPL – figure 3) resembling an omega pattern when the subject has COVID disease resulting from an oxidation reaction catalyzed by the first sensor of ammonia to NO (Examiner notes that this limitation is a functional nature and lacks patentable weight).
Regarding Claim 10, Gouma-NPL in view of Maric teaches: The breathalyzer of claim 1 further comprising wireless transmission of the sensor signal to a device via an app (Gouma-NPL; figure 3 Bluetooth module).
Regarding Claim 20, Gouma-NPL in view of Maric teaches: The breathalyzer of claim 10, wherein the wireless transmission is via Bluetooth (Gouma-NPL; figure 3 Bluetooth module).
Response to Arguments and Amendments
Regarding 112 rejections, many of the previous rejections have been withdrawn. The 112(d) rejection has been maintained. Applicant has not provided any arguments related to this rejection. Examiner reiterates that claim 1 already recites “display the signal (VOUT) as a pattern of resistance change over time.” Claim 9 does not further structurally limit the claim as the pattern produced or whether the subject has covid is irrelevant to the structure.
Regarding 103 Rejections, Applicant argues that Gouma-NPL does not describe the feature of the catalytic capability and application of Applicant's sensor. Further, Maric neither discloses nor suggests Applicant's claimed sensor arrangement with a catalytic functionality. Examiner respectfully disagrees. Maric teaches y-phase W03 on platinum electrodes deposited on an alumina substrate (paragraph 0112). Per paragraph 0024 of Applicant’s Specification, “pure, nanostructured γ-phase WO3 on Pt electrodes deposited on an alumina substrate enables the catalytic oxidation of ammonia to NO”. Thus the claimed limitations are met.
Applicant argues that Gouma-NPL teaches a sensor for use in monitoring flu virus whereas the claimed invention relates to COVID. Examiner notes that these claims are apparatus claims and the use of the apparatus represents intended use, and lack patentable weight. Further, as long as the prior art teaches the claimed structure, the limitations are met.
Applicant argues that the claimed invention can operate at a higher temperature than the prior art. Examiner notes that this is not claimed.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JAY B SHAH whose telephone number is (571)272-0686. The examiner can normally be reached M-F 8-5.
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JAY SHAH
Primary Examiner
Art Unit 3791
/JAY B SHAH/Primary Examiner, Art Unit 3791