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 .
Information Disclosure Statement
Acknowledgement is made to Applicant’s lack of an Information Disclosure Statement submission.
Claim Objections
Claims 1, 10, and 14-16 are objected to because of the following informalities. Appropriate correction is required.
The clarity of Claim 1 would be improved if amended to recite: “a cloth air diffuser, comprising one or more pieces of cloth, attached in order to comprise one or more air channels…”. Claim 10 has the same issue in line 5.
Claims 14-16 “the air channels” are objected to, since “one or more air channels” was previously recited in parent claim 13. It is suggested to amend claims 14-16 to recite “the one or more air channels” to preserve proper antecedent basis.
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 13-14 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. The recitation that “the air channels are defined by stitching(/gluing/welding) of the one or more pieces of cloth” fails to clearly recite whether the stated attachment technique forms the air channels or merely contributes to the structure of the diffuser, thereby rendering the metes and bounds of the claim unclear. It is suggested to amend each claim to recite “the air channels are formed by…”, since it appears parent claim 13 recites a method of using an apparatus rather than a method of constructing an apparatus.
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 1-8 and 10-11 are rejected under 35 U.S.C. 102(a)(1) as anticipated by Petrovski et al. (US 2011/0115635 A1), hereafter Petrovski.
Regarding Claim 1, Petrovski discloses an apparatus for altering the perceived altitude of a user (fig. 2A, fluid modules 20A’, 20B’ [0075] can be supplied with high-concentration oxygen [0164] and thus is capable of altering the perceived altitude of the user), comprising: an air inlet (fig. 2A, see annotated fig. below, the location where the fluid modules 20A’, 20B’ connect to internal passages 13’ [0075]), a cloth air diffuser (fig. 22, the assembly of 3020 [0179] comprises various layer of fabric [0180]; 3020 is a detailed assembly of the fluid distribution system 18’, fig. 2A [0075]), comprising one or more pieces of cloth (fig. 22, multiple layers are shown comprising 3020 [0179]), attached to comprise one or more air channels (fig. 22, air channels formed through 3023, 3025, 3027, 3029, 3032, 3046, 3054 [0183]) connected to the air inlet (fig. 2A shows this configuration [0075]), the air channels configured to direct air from the air inlet to one or more diffusion sections (fig. 22, the air channels formed by the assembly of 3020 are directed to fluid distribution layer 3040, creating a diffusing section comprising 3040 and 3054 [0183]); a placement mechanism configured to removably attach the apparatus to a piece of furniture (fig. 23, the foundation 3010 of the mattress has attachment surfaces for the fluid modules [0186]; since no permanent attachment is disclosed, the fluid modules are understood to be removable).
Regarding Claim 2, Petrovski discloses an apparatus of claim 1 wherein the air channels are defined by stitching of the one or more pieces of cloth (fig. 22 [0178] the layers forming the air channels may be coupled by stitching). Examiner notes that this is a product by process claim. As set forth in MPEP 2113, product-by-process claims are NOT limited to the manipulations of the recited steps, only the structure implied by the steps. Once a product appearing to be substantially the same or similar is found, a 35 U.S.C. 102 rejection may be made and the burden is shifted to the applicant to show an unobvious difference. If the product in the product-by-process claim is the same or obvious from a product of the prior art, the claim is unpatentable even though the prior art was made by a different process. In re Thorpe, 777 F.2d 695, 698,227 USPQ 964,966 (Fed. Cir. 1985). Applicant is reminded that Claim 2 is not directed toward a method of manufacturing.
Regarding Claim 3, Petrovski discloses an apparatus of claim 1 wherein the air channels are defined by gluing of the one or more pieces of cloth (fig. 22 [0178] the layers may be glued together to form the air conveying channels). The examiner notes that this is a product by process claim; please see the note in claim 2 above.
Regarding claim 4, Petrovski discloses an apparatus of claim 1 wherein the air channels are defined by welding of the one or more pieces of cloth (fig. 22 [0178] the layer may be attached together by hot melting, i.e. welding, to form the air channels [0183]). Please see the note in claim 2 about product-by-process claims.
Regarding Claim 5, Petrovski discloses an apparatus of claim 1 wherein the cloth air diffuser, at least in the portions comprising the air channels, is formed of cloth that is generally impermeable to air ([0183] the holes formed in the layers may include a coating to prevent air from exiting the sides of the bed, or may include a plastic tube to direct the air).
Regarding Claim 6, Petrovski discloses an apparatus of claim 1 wherein the cloth air diffuser, at least in the portions comprising the air channels, is formed of cloth that is generally permeable to air (fig. 22, 3020 includes an air-permeable fabric spacer 3046 [0182], which is a component of layer 3040).
Regarding Claim 7, Petrovski discloses an apparatus of claim 1 wherein the diffusion sections are formed from cloth that is generally permeable to air (fig. 22, 3046 and 3054 are permeable to air [0184]).
Regarding Claim 8, Petrovski discloses an apparatus of claim 1 wherein the diffusion sections are formed from cloth that is perforated (fig. 22, layers 3050 has perforations 3054, which is part of the diffusion section [0184]).
Regarding Claim 10, Petrovski discloses an apparatus for altering the perceived altitude of a user (fig. 20A, 2310 can be supplied with high-concentration oxygen [0164] and thus is capable of altering the perceived altitude of the user), comprising: a concentrated gas source (fig. 20A, 2360 [0164]); a concentrated gas supply line (fig. 20A, 2350 + 2320 [0164]), comprising a first end (fig. 20A, 2350) and a second end (fig. 20A, 2320), wherein the first end is connected to the concentrated gas source (the first end 2350 is connected to the gas source [0164]), and the second end is connected to an air inlet (fig. 20A, second end 2320 connects to an inlet at 2330 [0164]); a cloth air diffuser (fig. 22, the layers comprising assembly 3020 [0178]), comprising one or more pieces of cloth (fig. 22, 3020 is comprised of multiple layers of fabric [0179]), attached to comprise one or more air channels connected to the air inlet (fig. 22, the layers of 3020 are attached to each other to form air channels [0183] which connect to fluid modules [0181]), the air channels configured to direct air from the air inlet to one or more diffusion sections (fig. 22, air diffusion sections comprise 3046 and 3054 [0184]); a placement mechanism configured to removably attach the apparatus to a piece of furniture (fig. 20A, inlet 2330 is understood to have a connecting mechanism to couple 2320 to the inlet [0164]).
Regarding Claim 11, Petrovski discloses an apparatus of claim 10, further comprising a controller that controls a rate of flow of concentrated gas from the concentrated gas source through the concentrated gas supply line to the air inlet (fig. 1, the system may include a control module 50 to selectively operate the device [0081] including the flow rate [0098]; [0200] embodiments may be combined).
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 9 is rejected under 35 U.S.C. 103 as being unpatentable over Petrovski in view of Miles et al. (US 2013/0326811 A1), hereafter Miles.
Regarding Claim 9, Petrovski discloses an apparatus of claim 1, but is silent on wherein the piece of furniture comprises a pillow.
However, Miles teaches an apparatus which supplies oxygen to a user through a permeable layer (fig. 1, [0035]) where the device may comprise a pillow ([0048]) or a mattress ([0049]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Petrovski’s device to be scaled down and used as a mattress in order to provide the same benefits of supplying oxygen to a user in the form of a pillow rather than a mattress, as taught by Miles, in order to be employed by users who may also require support for sleep apnea (Miles [0048]).
Claim 12 is rejected under 35 U.S.C. 103 as unpatentable over Petrovski in view of Ijpelaar (NL 2008204 A1), hereafter Ijpelaar.
Regarding Claim 12, Petrovski discloses an apparatus of claim 10, but is silent on wherein the concentrated gas supply line further comprises a rotatable element configured to resist kinking in the concentrated gas supply line.
Ijpelaar teaches a connector for an oxygen supply system (abstract) which is rotatable in order to allow for movement and repositioning of the oxygen line (fig. 1, inlet connection 6 with swiveling portion 8, page 6, first full para.).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include a rotatable element, such as that taught by Ijpelaar, at the connection of the gas supply line to the mattress (such as Petrovski’s fig. 20A embodiment at 2330) in order to allow the connection line to have mobility in relation to the mattress and avoid pinching in the oxygen tube (Ijpelaar page 1, line 16).
Claims 13-14 and 16-20 are rejected under 35 U.S.C. 103 as unpatentable over Miles, in view of Feroy et al. (US 2021/0299483 A1), hereafter Feroy.
Regarding Claim 13, Miles discloses a method, comprising: removably attaching a cloth air diffuser to a piece of furniture (fig. 1, insert 12 [0035] is positioned on a sleep surface [0009]; top liner 42 is air permeable [0041] and is a polymeric sheet [0042]); introducing a concentrated gas ([0045] oxygen is supplied) into an air inlet (fig. 1, 68, 69 [0044]) connected to a cloth air diffuser (fig. 1 shows 68, 69 connected to the diffuser 42 [0044]), wherein the cloth air diffuser is configured with one or more air channels (fig. 3, spaces 48, 50 [0041]) configured to direct air from the air inlet to one or more diffusion sections (figs. 1A and 3, top liner 42 has multiple pores [0041]), creating a dispersal cloud of the concentrated gas (fig. 1 and [0042] the air and oxygen passing through the multiple pores of 42 is understood to create a cloud, or region of gas, above the insert 12); positioning a user adjacent to the one or more diffusion sections and within the dispersal cloud ([0045] an infant is placed over the insert).
However, Miles is silent on the method being directed toward altering a perceived altitude of a user.
Feroy teaches using oxygen to supplement a user on-demand based on perceived altitude ([0030]) in order to ensure that the user has sufficient oxygen supplied safely and individualized per the user for a rapid ascent or descent in altitude ([0048-0049]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize Miles’ method for altering a perceived altitude of a user, since Feroy teaches that a user experiencing a rapid change in altitude may require additional oxygen support ([0048-0049]).
Regarding Claim 14, Miles discloses a method of claim 13 wherein the air channels are defined by stitching of the one or more pieces of cloth ([0042] the top liner 42 and bottom liner 44, creating air channels 48, 50 seen in fig. 3 can be sewn together).
Regarding Claim 16, Miles discloses a method of claim 13 wherein the air channels are defined by welding of the one or more pieces of cloth ([0042] top liner 42 and bottom liner 44 may be coupled by heat pressing, i.e. welding).
Regarding Claim 17, Miles discloses a method of claim 13 wherein the cloth air diffuser, at least in the portions comprising the air channels, is formed of cloth that is generally impermeable to air ([0042] and fig. 3, bottom sheet 44 may be non-porous).
Regarding Claim 18, Miles discloses a method of claim 13 wherein the cloth air diffuser, at least in the portions comprising the air channels, is formed of cloth that is generally permeable to air (fig. 3, top liner 42 may be a woven material that is porous to air).
Regarding Claim 19, Miles discloses a method of claim 13 wherein the diffusion sections are formed from cloth that is generally permeable to air (fig. 3, the section of 42 that has pores 18 may be a cloth that is inherently porous [0042]).
Regarding Claim 20, Miles discloses a method of claim 13 wherein the diffusion sections are formed from cloth that is perforated (fig. 1A, the top liner may have perforations, pores 18 [0042]).
Claim 15 is rejected under 35 U.S.C. 103 as unpatentable over Miles and Feroy, further in view of Petrovski.
Regarding Claim 15, Miles discloses a method of claim 13, but is silent wherein the air channels are defined by gluing of the one or more pieces of cloth ([0042] states that layers 42 and 44 may be coupled together by any other known method, but does not specify gluing).
Petrovski teaches assembling layers of an air-permeable layered device for delivering air to a user (fig. 22 [0178]) by using glue or other adhesives ([0178]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use gluing to define the air channels of Miles’ device (fig. 3, air channels 48, 50) by gluing the layers (fig. 3, 42, 44) together, as taught by Petrovski, as gluing was a known method of coupling layers in the art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SARA K. TOICH whose telephone number is (703)756-1450. The examiner can normally be reached M-Th 7:30 am - 4:30 pm, every other F 7:30-3:30 ET.
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/SARA K TOICH/ Examiner, Art Unit 3785
/VICTORIA MURPHY/ Primary Patent Examiner, Art Unit 3785
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