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 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.
Claim 1 is 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 1 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in that it fails to point out what is included or excluded by the claim language. This claim is an omnibus type claim (see MPEP 2173.05(r)). For the purposes of examination the examiner is interpreting the device to be any device that can be used to diagnosis inner ear barotrauma and for training users.
Claim Rejections - 35 USC § 102
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)(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.
Claim 1 is rejected under 35 U.S.C. 102(a)(2) as being anticipated by Lembcke et al. (US Pub.: 2023/0142482 A1).
Regarding claim 1, Lembcke discloses a device for diagnosing inner ear barotrauma and for training users how to properly equalize and thereby prevent future inner ear barotrauma substantially as described and illustrated herein (e.g. abstract, paragraph 0002, – “the present invention is directed to a method, apparatus and computer program configured to monitor and log ambient air pressure to identify air pressure changes that may result in barotrauma and inform a user when to initiate protective measures to alleviate or eliminate such barotrauma”; paragraphs 0072 and 0075 – Examiner notes the claim limitation “for diagnosing barotrauma” is an intended use and that prior art needs only to be capable of performing as claimed (see MPEP 2114).
7. Claim 1 is rejected under 35 U.S.C. 102(a)(2) as being anticipated by Burwinkel et al. (International Publication No. WO 2022/147024 A1).
Regarding claim 1, Burwinkel discloses a device for diagnosing inner ear barotrauma and for training users how to properly equalize and thereby prevent future inner ear barotrauma substantially as described and illustrated herein (e.g. page 1 lines 15-26; page 2 lines 1-9, – Examiner notes the claim limitation “for diagnosing barotrauma” is an intended use and that prior art needs only to be capable of performing as claimed (see MPEP 2114)).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL TEHRANI whose telephone number is (571)270-0697. The examiner can normally be reached 9:00am-5:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Benjamin Klein can be reached at 571-270-5213. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.T./Examiner, Art Unit 3792
/Benjamin J Klein/Supervisory Patent Examiner, Art Unit 3792