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 a preliminary amendment filed on 7/21/2026. As directed by the amendment, claims 1 and 11 were amended, claims 3-5, 14-17, 20, and 28-29 were cancelled, and new claims 37-47 were cancelled. Thus, claims 1-2, 6-13, 18-19, 21-27, and 37-47 are presently pending in this application.
Election/Restrictions
Applicant’s election without traverse of Group I and species 7 in the reply filed on 7/21/2026 is acknowledged.
Claims 34-36 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected groups, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 7/21/2026.
Furthermore, the applicant stated that claim 8 is part of the elected species 7, fig. 9, however, there is no disclosure stating that the baffles of fig. 9 comprises two or more distinct groups of baffles. The baffles in fig. 9 appear to be the same.
Furthermore, the applicant stated that claim 13 is part of the elected species 7, fig. 9, however, there is no disclosure stating that the baffles of fig. 9 have different diameters.
Furthermore, the applicant stated that claim 18 is part of the elected species 7, fig. 9, however, there is no disclosure stating that the baffles of fig. 9 comprise a first material and the tubular portion comprises a second material that is different than the first material, and wherein the baffles are formed separately from the tubular portion. The baffles, base portion, and the tubular portion in fig. 9 appear to be co-formed of a common material.
Furthermore, the applicant stated that claim 19 is part of the elected species 7, fig. 9, however, there is no disclosure stating that the baffles of fig. 9 comprise reinforcing elements in selected regions to provide asymmetrical reinforcement.
Furthermore, the applicant stated that claim 22 is part of the elected species 7, fig. 9, however, there is no disclosure stating that tubular portion of fig. 9 comprises a non-circular cross-sectional profile.
Furthermore, the applicant stated that claim 23 is part of the elected species 7, fig. 9, however, there is no disclosure stating that tubular portion of fig. 9 comprises a triangular cross-sectional profile.
Furthermore, the applicant stated that claim 24 is part of the elected species 7, fig. 9, however, there is no disclosure stating that tubular portion of fig. 9 comprises a flattened posterior aspect.
Furthermore, the applicant stated that claim 25 is part of the elected species 7, fig. 9, however, there is no disclosure stating that tubular portion of fig. 9 comprises an elliptical cross-sectional profile.
Furthermore, the applicant stated that claim 26 is part of the elected species 7, fig. 9, however, there is no disclosure stating that baffles of fig. 9 comprises a flattened posterior aspect.
Furthermore, the applicant stated that claim 27 is part of the elected species 7, fig. 9, however, there is no disclosure stating that baffles of fig. 9 comprises a curled perimeter edge.
Furthermore, the applicant stated that claims 30-33 are part of the elected species 7, fig. 9, however, there is no disclosure stating that the tube of fig. 9 comprises sensor wire and at least one sensor embedded in the tubular portion or the baffles, and/or that the at least one sensor comprises a helical sensor embedded in the tubular portion and/or that the at least one sensor comprises sensors embedded in the baffles and/or the at least one sensor comprises a series of sensors axially spaced apart along the tubular portion.
Furthermore, the applicant stated that claim 43 is part of the elected species 7, fig. 9, however, there is no disclosure stating that the embodiment of fig. 9 comprises one or both of the tubular portion or the set of baffles comprises a radiographic element.
Furthermore, the applicant stated that claim 44 is part of the elected species 7, fig. 9, however, there is no disclosure stating that that embodiment of fig. 9 comprises a first group of the two or more distinct groups of baffles comprises a plurality of baffles, and wherein a gap between the first group and a second adjacent to the first group is larger than a spacing between adjacent baffles of the first group.
Furthermore, the applicant stated that claim 45 is part of the elected species 7, fig. 9, however, there is no disclosure stating the embodiment of fig. 9 comprises each group of the two or more distinct groups of baffles comprises at least one baffle and at most six baffles.
Furthermore, the applicant stated that claim 46 is part of the elected species 7, fig. 9, however, there is no disclosure stating that the embodiment of fig. 9 comprises the diameter of the baffles of at least a subset of the set of baffles progressively decrease along a distal direction of the tubular portion.
Therefore, claims 8, 13, 18, 19, 22-27, 30-33, and 43-46 have been withdrawn.
Specification
Applicant is 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 term that is implied (i.e., the term “Disclosed herein” in line 1 of the abstract). Correction is required. See MPEP § 608.01(b).
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.
Presently, no limitation(s) is/are being interpreted under 112(f).
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claim 6 is rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101).
Regarding claim 6, the limitation “wherein the baffles comprise a material that is resiliently deformable and conforms to contours of the trachea” (claim 6, lines 1-2) appears to positively claiming human body parts. Applicant is suggested to use --for--, --adapted to--, --configured to-- or --whereby-- clause in order to avoid positively claiming the human body parts.
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 1-2, 6-7, 9, 11-12, 21, 38-42, and 47 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 pre-AIA the applicant regards as the invention.
Regarding claim 1, the limitation “one or more baffles that each has a base portion coupled to the tubular portion, a first baffle portion extending away from the base portion along a first baffle direction, and a second baffle portion” (lines 10-12) is unclear if the term “each” is referring to “each baffle” of the “one or more baffles” or the entire phrase “one or more baffles” or the set of baffles, the claim use the term “each” without specifying what “each” is referring to. If the term “each” is referring to “each baffle” of the one or more baffles, then, it is unclear as to how many baffles the applicant is trying to claim that has the base portion, the first baffle portion and the second baffle portion because the term “one or more baffles” is claiming “one” or “more”, which gives the reader the option to pick one baffle or more baffles, however, if the term “each” is referring to each baffle of the one or more baffles, then the term “each” implies a plurality of baffles (“more baffles”), therefore, it is unclear if the applicant is trying to claim one or more baffles or a plurality of baffles. For examination purposes, the limitation is being interpreted as --one or more baffle, the one or more baffles has a base portion coupled to the tubular portion, a first baffle portion extending away from the base portion along a first baffle direction, and a second baffle portion--.
Regarding claim 9, the limitation “a first group having baffles that are angled proximally from the tubular portion and a second group having baffles that are angled distally from the tubular portion” (lines 1-3) is unclear if the baffles in lines 2 and 3 of claim 9 are part of one or more baffles being claimed in claim 1, line 10 or are additional to the one or more baffles being claimed in claim 1, line 10.
Regarding claim 47, the limitation “each adjacent pair of baffles” (line 3) is unclear if the adjacent pair of baffles are part of the set of baffles being claimed in claim 1, line 5 or not.
Any remaining claims are rejected for 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.
(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 1-2, 6-7, 9, 11, 21, and 37-40 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wood (2011/0073115).
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Regarding claim 1, Wood discloses an endotracheal tube (tube shown in fig. 7, paragraphs 0018-0019, Wood discloses that tracheal tube can be an endotracheal tube, see paragraph 0031) comprising: a tubular portion (tube 12, paragraph 0031); a proximal adaptor at a proximal end of the tubular portion (the proximal adaptor is the end shown at the top of tube 12 in fig. 7 that would be connected to a ventilator, see paragraph 0018 and claim 12, see the proximal end 28 of tube 12 in fig. 2 and paragraphs 0027-0028 for reference); a distal opening at or adjacent to a distal end of the tubular portion (the distal opening is the distal opening at the bottom of the tube 12 in fig. 7, see 27 in fig. 2 and paragraph 0028 for reference); and a set of baffles (baffles formed by 14a and 14b alternatively, 14a and 14b can be sectioned off to multiple baffles (see the rejection to claim 9 below), fig. 7, paragraph 0031) positioned around the tubular portion between the proximal adaptor and the distal opening (see fig. 7); wherein the baffles are configured to contact an inner wall of a trachea when the endotracheal tube is inserted into the trachea, such that the baffles resist migration of the endotracheal tube relative to the trachea and block aspiration between the tubular portion and the inner wall of the trachea (see paragraph 0031 with reference to abstract, paragraphs 0016-0019), and wherein the set of baffles comprises one or more baffles, the one or more baffles has a base portion coupled to the tubular portion (portion of base portion is formed by 24a-24b, fig. 7, paragraph 0031), a first baffle portion (a portion of baffle 14a, see the annotated-Wood fig. 7 above) extending away from the base portion along a first baffle direction, and a second baffle portion (a portion of 14b, see the annotated-Wood fig. 7 above) extending away from the base portion along a second baffle direction that is different from the first baffle direction such that the first baffle portion and the second baffle portion are at least partially spaced apart from one another (see fig. 7, paragraph 0031, the first baffle portion is extending away from the base portion along a first baffle direction and the second baffle portion extending away from the base portion along a second baffle direction that is different from the first baffle direction such that the first baffle portion and the second baffle portion are at least partially spaced from one another).
Regarding claim 2, Wood discloses that the baffles (14a and 14b) are fully annular (see fig. 7 and paragraph 0031 with reference to abstract, paragraphs 0016-0019 and fig. 6, Wood discloses that 14a and 14b are cuff assembly used to seal the patient’s airway, therefore, would be fully annular in order to seal and/or to be a cuff).
Regarding claim 6, Wood discloses that the baffles comprise a material that is resiliently deformable and conforms to the contours of the trachea (see paragraphs 0022-0023, Wood discloses that the cuff assembly 14 comprises cuff material 50 which is made of a soft and conformable material, such as flexible polymer made of polyethylene, which are elastic materials).
Regarding claim 7, Wood discloses that the endotracheal tube does not include an inflatable cuff (see paragraph 0031 and fig. 7, as shown and disclosed, there is no inflatable cuff, it is noted that Wood discloses in paragraph 0032 that the cuff assemblies “may” be used in conjunction with a traditional inflatable cuff, however, this is treated as an alternative embodiment due to the usage of the term “may” and also because fig. 7 does not disclose an inflatable cuff).
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Regarding claim 9, Wood discloses that the set of baffles comprises a first group having baffles that are angled proximally from the tubular portion and a second group having baffles that are angled distally from the tubular portion (see the annotated-Wood fig. 7 for claim 9 above, the cuff 14a can be sectioned off to have multiple baffles to form a first group that are angled proximally from the tubular portion, while the cuff 14b can be sectioned off to have multiple baffles to form a second group that are angled distally from the tubular portion).
Regarding claim 11, Wood discloses that the first baffle direction is oriented proximally from the base portion and wherein the second baffle direction is oriented distally from the base portion (see the annotated-Wood fig. 7 above).
Regarding claim 21, Wood discloses that at least one suction channel extending along the tubular portion and fluidly coupled to at least one opening adjacent to the baffles (see opening 52 of suction channel 50 in fig. 7, paragraph 0031).
Regarding claim 37, Wood discloses that the first baffle portion (portion of 14a, see the annotated-Wood fig. 7 above) is configured to resist migration of the endotracheal tube in a first axial direction and the second baffle portion (portion of 14b, see the annotated-Wood fig. 7 above) is configured to resist migration of the endotracheal tube in a second axial direction opposite the first direction (see the annotated-Wood fig. 7 above and paragraph 0031, the first and second baffle portions can be redefined such that they are positioned on opposite radial direction of the respective baffle, and depending on the anatomy of the trachea of the patient, since the cuff 14a and 14b are annular in shape, the first baffle and the second baffle would resist axial direction in all direction along the cuffs, which would include a first axial direction that is opposite with a second axial direction, alternatively, the axial direction can be the first baffle direction and the second axial direction can be the second baffle direction, see abstract and paragraphs 0015-0018 and 0031).
Regarding claim 38, Wood discloses that the base portion extends away from the tubular portion (see paragraph 0031, 24a and 24b are attached to the tube 12, and comprises a thickness, therefore, would be extending away from the tubular portion).
Regarding claim 39, Wood discloses that the first baffle portion and the second baffle portion terminate at respective free edges that are axially spaced apart from one another (see the annotated-Wood fig. 7 above).
Regarding claim 40, Wood discloses that the first baffle portion and the second baffle portion extend symmetrically from the base portion relative to a plane extending radially from the tubular portion through the base portion (see the annotated-Wood fig. 7 above, since each baffle curves away from the base portion via a vertical wall and a horizontal wall of the respective baffle, relative to the radial direction, the portions can be sectioned off and the plane can be defined such that the portions extend symmetrically from the base portion, it is noted that the claim is claiming a portion extending symmetrically relative to the another portion, any portions of the baffles are three dimensional and extend in all direction, therefore, relatively, would extend symmetrically from the base portion relatively to a plane extending radially from the tubular portion).
Claims 1-2, 6-7, 9, 11-12, 37-40, and 42 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ratterree (9,119,927).
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Regarding claim 1, Ratterree discloses an endotracheal tube (entire endotracheal tube 201 in fig. 2A, col 10, line 63 to col 11, line 42) comprising: a tubular portion (tubular portion is formed by portion of 234, 235 and 233, see fig. 2A); a proximal adaptor (231, fig. 2A, col 10, line 63 to col 11, line 42, the proximal end comprises adaptor to connect to ventilator/respirator, see col 19, lines 19-29) at a proximal end of the tubular portion (see fig. 2A); a distal opening (distal opening at distal end 236, fig. 2A) at or adjacent to a distal end of the tubular portion (see the annotated-Ratterree figs. 2A-2B above); and a set of baffles (baffles of 237, see the annotated-Ratterree figs. 2A-2B above, col 10, line 63 to col 11, line 42) positioned around the tubular portion between the proximal adaptor and the distal opening (see the annotated-Ratterree figs. 2A-2B above); wherein the baffles are configured to contact an inner wall of a trachea when the endotracheal tube is inserted into the trachea, such that the baffles resist migration of the endotracheal tube relative to the trachea and block aspiration between the tubular portion and the inner wall of the trachea (col 10, line 63 to col 11, line 42 with reference to col 7, line 21 to col 8, line 29), and wherein the set of baffles comprises one or more baffles, wherein the one or more baffles has a base portion coupled to the tubular portion (see the annotated-Ratterree figs. 2A-2B above), a first baffle portion extending away from the base portion along a first baffle direction, and a second baffle portion extending away from the base portion along a second baffle direction that is different from the first baffle direction such that the first baffle portion and the second baffle portion are at least partially spaced apart from one another (see the annotated-Ratterree figs. 2A-2B above and col 10, line 63 to col 11, line 42, relative to the direction of the incline of the first baffle portion and the second baffle portion, there is a first baffle direction and a second baffle direction that are different from each other).
Regarding claim 2, Ratterree discloses that the baffles are fully annular (col 10, line 63 to col 11, line 42 with reference to col 6, lines 30-42, Ratterree discloses that the blaine is a parasol-shaped flange-type or fin-type extension feature surrounding and affixed to a tube, to surround is to be fully annular, furthermore, Ratterree discloses in the abstract and in col 22, lines 11-29 that the sealing arrangement is for sealing the trachea, therefore, to seal, the baffles would need to be fully annular).
Regarding claim 6, Ratterree discloses that the baffles comprise a material that is resiliently deformable and conforms to contours of the trachea (see col 7, lines 21-29).
Regarding claim 7, Ratterree discloses that the endotracheal tube does not include an inflatable cuff (see the annotated-Ratterree figs. 2A-2B above and col 10, line 63 to col 11, line 42, as disclosed and shown, there is/are no inflatable cuff(s), furthermore, see col 8, line 48 to col 9, line 33).
Regarding claim 9, Ratterree discloses that the set of baffles comprises a first group having baffles that are angled proximally from the tubular portion and a second group having baffles that are angled distally from the tubular portion (see the annotated-Ratterree figs. 2A-2B above, the top 3 baffles are angled proximally from the tubular portion due to the inclined portion of the top 3 baffles relative to the free end of the baffles, while the bottom 3 baffles are angled distally from the tubular portion due to the inclined portion of the bottom 3 baffles relative to the free end of the baffles).
Regarding claim 11, Ratterree discloses that the first baffle direction is oriented proximally from the base portion, and wherein the second baffle direction is oriented distally from the base portion (see the annotated-Ratterree figs. 2A-2B above, as shown, relative to the inclined portion going from the free end to the base portion, there is a first baffle direction and a second baffle direction, and as shown, the first baffle direction is oriented proximally from the base portion and the second baffle direction is oriented distally from the base portion).
Regarding claim 12, Ratterree discloses that the baffles are tapered from a greater thickness adjacent to the tubular portion to a lesser thickness farther radially from the tubular portion (see the annotated-Ratterree figs. 2A-2B above, as shown, the baffles are thicker at the base and tapered towards the free end of the baffles).
Regarding claim 37, Ratterree discloses that the first baffle portion is configured to resist migration of the endotracheal tube in a first axial direction and the second baffle portion is configured to resist migration of the endotracheal tube in a second axial direction opposite the first axial direction (see the annotated-Ratterree figs. 2A-2B above, Ratterree discloses in col 9, lines 4-27 that the baffles hold the tube within the trachea, therefore, would resist migration of the endotracheal tube in a first axial direction and opposite second axial direction, alternatively, depending on the anatomy of the tracheal, once the endotracheal tube is positioned, there would be some resistance when it comes to the axial directions that is along the first and second baffle directions).
Regarding claim 38, Ratterree discloses that the base portion extends away from the tubular portion (relative to the tubular portion position inside of the base portion, the base portions extends away from the tubular portion, see the annotated-Ratterree figs. 2A-2B above).
Regarding claim 39, Ratterree discloses that the first baffle portion and the second baffle portion terminate at respective free edges that are axially spaced apart from one another (see the annotated-Ratterree figs. 2A-2B, as shown, the first baffle portion and the second baffle portion terminate at respective free edges that are axially spaced apart from one another).
Regarding claim 40, Ratterree discloses that the first baffle portion and the second baffle portion extend symmetrically from the base portion relative to a plane extending radially from the tubular portion through the base portion (see the annotated-Ratterree figs. 2A-2B above, since each baffle extends away from the base portion as shown, relative to the radial direction, the portions can be sectioned off and the plane can be defined such that the portions extend symmetrically from the base portion, it is noted that the claim is claiming a portion extending symmetrically relative to the another portion, any portions of the baffles are three dimensional and extend in all direction, therefore, relatively, would extend symmetrically from the base portion relatively to a plane extending radially from the tubular portion).
Regarding claim 42, Ratterree discloses that the tubular portion and the baffles are co-formed of a common material (see the annotated-Ratterree figs. 2A-2B, as shown, the tubular portion and the baffles are co-formed of a common material, furthermore, see col 7, lines 8-28 and col 18, lines 4-23 regarding one-piece construction of the tube).
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.
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.
Claims 21 and 47 are rejected under 35 U.S.C. 103 as being unpatentable over Ratterree (9,119,927) in view of Abnousi (2009/0260632).
Regarding claims 21 and 47, Ratterree fails to disclose at least one suction channel extending along the tubular portion and fluidly coupled to at least one opening adjacent to the baffles, and wherein the at least one opening comprises a plurality of openings, and wherein a respective opening of the plurality of openings is positioned between each adjacent pair of baffles.
However, Abnousi teaches at least one suction channel (suction channel formed by 122, figs. 2-4B, paragraphs 0044-0045) extending along a tubular portion (101, fig. 2, paragraph 0027) and fluidly coupled to at least one opening adjacent to the baffles, and wherein the at least one opening comprises a plurality of openings, and wherein a respective opening of the plurality of openings is positioned between each adjacent pair of baffles (see baffles 106a, 106b, 106c and the suction holes 114a, 114b, 114c, figs. 2-4B, paragraphs 0027-0030).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify baffles and the endotracheal tube of Ratterree to have the suction channel and plurality of openings positioned between each adjacent pair of baffles of Ratterre as taught by Abnousi for the purpose of providing safety and comfort to the patient by allowing fluid to be removed from the patient’s body (see paragraph 0006 of Abnousi).
Claim 41 is rejected under 35 U.S.C. 103 as being unpatentable over Ratterree (9,119,927) in view of McCarthy (2023/0233750).
Regarding claim 41, Ratterree fails to disclose that the tubular portion comprises an antimicrobial agent.
However, McCarthy teaches a tubular portion comprising an antimicrobial agent (see paragraph 0157, McCarthy discloses that the endotracheal tube disclosed herein may be coated or otherwise incorporate the use of antimicrobials to help reduce or eliminate pathogens).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the tubular portion of Ratterree to have the antimicrobial agent as taught by McCarthy for the purpose of providing safety to the patient by helping reduce or eliminate harmful pathogens (see paragraph 0157 of McCarthy).
Claim 41 is rejected under 35 U.S.C. 103 as being unpatentable over Wood (2011/0073115) in view of McCarthy (2023/0233750).
Regarding claim 41, Wood fails to disclose that the tubular portion comprises an antimicrobial agent.
However, McCarthy teaches a tubular portion comprising an antimicrobial agent (see paragraph 0157, McCarthy discloses that the endotracheal tube disclosed herein may be coated or otherwise incorporate the use of antimicrobials to help reduce or eliminate pathogens).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the tubular portion of Wood to have the antimicrobial agent as taught by McCarthy for the purpose of providing safety to the patient by helping reduce or eliminate harmful pathogens (see paragraph 0157 of McCarthy).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Demirci (WO 2015/147769) is cited to show an endotracheal tube comprising sealing baffles.
Jacobs (EP 0093560) is cited to show tube comprising sealing baffles.
Tookman (WO 93/04725) is cited to show an endotracheal tube comprising sealing baffles.
Miller (3,659,611) is cited to show a tracheal tube comprising sealing baffles.
Cox (4,979,505) is cited to show a tracheal tube comprising baffles extending from a base portion.
Alahmadi (2016/0101253) is cited to show an endotracheal tube comprising a sealing baffle.
Kolobow (5,305,740) is cited to show a sealing means for endotracheal tubes.
Kotmel (2002/0014238) is cited to show a ventilation tube comprising suction holes.
Hayward (3,709,227) is cited to show an endotracheal tube with sealing baffles.
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/TU A VO/Primary Examiner, Art Unit 3785
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