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
The listing of references in the specification is not a proper information disclosure statement (e.g. reference mentioned in ¶0003). 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
Specification
The disclosure is objected to because of the following informalities:
The specification in three places reads “a breathing tube intubation” which should read “an intubation breathing tube”
Appropriate correction is required.
Claim Objections
Claim(s) 1-20 is/are objected to because of the following informalities:
Claim 1 ends reciting “the respiratory gas CO2 compensation device is configured to deliver CO2 to an inside of the respiratory terminal based on detection values of the proximal pressure sensor and the end-tidal carbon dioxide sensor through the respiratory parameter detection module” which should read “the respiratory gas CO2 compensation device is configured to deliver CO2 to an inside of the respiratory terminal, based on detection values of the proximal pressure sensor and the end-tidal carbon dioxide sensor, through the respiratory parameter detection module” in order to clearly identify the delivered CO2 as passing through the respiratory parameter detection module and to avoid identifying the proximal pressure sensor and the end-tidal carbon dioxide sensor as in the respiratory parameter detection module
Claim 2, Ln. 2 recites “a breathing tube intubation” which should read “an intubation breathing tube”
Claim 10, Ln. 12-15 recites “the respiratory gas CO2 compensation device is configured to deliver CO2 to an inside of the respiratory terminal based on detection values of the proximal pressure sensor and the end-tidal carbon dioxide sensor through the respiratory parameter detection module” which should read “the respiratory gas CO2 compensation device is configured to deliver CO2 to an inside of the respiratory terminal, based on detection values of the proximal pressure sensor and the end-tidal carbon dioxide sensor, through the respiratory parameter detection module” in order to clearly identify the delivered CO2 as passing through the respiratory parameter detection module and to avoid identifying the proximal pressure sensor and the end-tidal carbon dioxide sensor as in the respiratory parameter detection module
Claim 12, Ln. 2 recites “a breathing tube intubation” which should read “an intubation breathing tube”
Claim 20, Ln. 10 recites “termina” which should read “terminal”
Claim 20, Ln. 13-16 recites “the respiratory gas CO2 compensation device is configured to deliver CO2 to an inside of the respiratory terminal based on detection values of the proximal pressure sensor and the end-tidal carbon dioxide sensor through the respiratory parameter detection module” which should read “the respiratory gas CO2 compensation device is configured to deliver CO2 to an inside of the respiratory terminal, based on detection values of the proximal pressure sensor and the end-tidal carbon dioxide sensor, through the respiratory parameter detection module” in order to clearly identify the delivered CO2 as passing through the respiratory parameter detection module and to avoid identifying the proximal pressure sensor and the end-tidal carbon dioxide sensor as in the respiratory parameter detection module
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.
Claim(s) 1-20 is/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.
Claim 1 recites the limitation “A carbon dioxide (CO2) and other gas compensation device” in Ln. 1 which deems the claim indefinite. The body of the claim only appears to recite structures involved in compensating for carbon dioxide. The limitation thus appears overly broad as the claim does not appear to recite any structure suitable to compensate for “other gas” beyond carbon dioxide. It is suggested to amend the limitation to remove “and other gas.”
Claim 1 recites the limitation “the CO2 and other gas compensation device comprises: a device body, the device body comprises:” in Ln. 2-3 which deems the claim indefinite. The full body of the claim after Ln. 3 is defining structures of the “device body.” In ordinary language a “device body” would be understood as akin to a housing. However, there does not appear to be any disclosed housing which encompasses all of respiratory gas CO2 compensation device 9, respiratory parameter detection module 4, and respiratory terminal 5, as is discussed of the device body in ¶0034. It is thus unclear how the device body is to be understood as distinguished from the CO2 and other gas compensation device, which includes all components of Fig. 1 other than CO2 source 1 and ventilator 2. Applicant is requested to clarify the intent of the claimed “device body.” For the purposes of examination the device body will be interpreted as the same as the CO2 and other gas compensation device.
Claim 4 recites certain structures as part of “a detection unit” which appear to be structures of the respiratory parameter detection module of claim 1, which deems the claim indefinite. The claim as written appears to define the detection unit as distinct from and in addition to the respiratory parameter detection module of claim 1. However, that does not appear to be accurate (e.g. Figs. 2-3 appear to be defining respiratory parameter detection module 4; ¶¶0036-0038). It is suggested to amend the claim to specify the respiratory parameter detection module as comprising a detection unit as defined by the claim. (Note how the respiratory parameter detection module appears to be properly referenced in claim 5 but is also not referenced in regard to the detection module in claim 6.)
Claim 10 recites the limitation “A CO2 and other gas compensation system” and “a CO2 and other gas compensation device” in Ln. 1-2 which deems the claim indefinite. The body of the claim only appears to recite structures involved in compensating for carbon dioxide. The limitations thus appear overly broad as the claim does not appear to recite any structure suitable to compensate for “other gas” beyond carbon dioxide. It is suggested to amend the limitation to remove “and other gas.”
Claim 10 recites the limitation “the CO2 and other gas compensation device comprises: a device body, the device body comprises:” in Ln. 3-4 which deems the claim indefinite. The full section of the claim after Ln. 4 is defining structures of the “device body.” In ordinary language a “device body” would be understood as akin to a housing. However, there does not appear to be any disclosed housing which encompasses all of respiratory gas CO2 compensation device 9, respiratory parameter detection module 4, and respiratory terminal 5, as is discussed of the device body in ¶0034. It is thus unclear how the device body is to be understood as distinguished from the CO2 and other gas compensation device, which includes all components of Fig. 1 other than CO2 source 1 and ventilator 2. Applicant is requested to clarify the intent of the claimed “device body.” For the purposes of examination the device body will be interpreted as the same as the CO2 and other gas compensation device.
Claim 14 recites certain structures as part of “a detection unit” which appear to be structures of the respiratory parameter detection module of claim 10, which deems the claim indefinite. The claim as written appears to define the detection unit as distinct from and in addition to the respiratory parameter detection module of claim 10. However, that does not appear to be accurate (e.g. Figs. 2-3 appear to be defining respiratory parameter detection module 4; ¶¶0036-0038). It is suggested to amend the claim to specify the respiratory parameter detection module as comprising a detection unit as defined by the claim. (Note how the respiratory parameter detection module appears to be properly referenced in claim 15 but is also not referenced in regard to the detection module in claim 16.)
Claim 20 recites the limitation “A CO2 and other gas compensation device” in Ln. 1 which deems the claim indefinite. The body of the claim only appears to recite structures involved in compensating for carbon dioxide. The limitations thus appear overly broad as the claim does not appear to recite any structure suitable to compensate for “other gas” beyond carbon dioxide. It is suggested to amend the limitation to remove “and other gas.”
Claim Interpretation - 35 USC § 112(f)
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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “respiratory gas CO2 compensation device” in claims 1, 10 and 20, “respiratory parameter detection module” in claims 1, 10 and 20, “driving component” in claims 7 and 17.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
The corresponding structure for the “respiratory gas CO2 compensation device” is best understood from the specification as at least: respiratory gas CO2 compensation device 9 which delivers carbon dioxide into the respiratory terminal 5 based on the detection values of the proximal pressure sensor 7 and the end-tidal carbon dioxide sensor 8 through the respiratory parameter detection module 4 (Fig. 1; ¶0032).
The corresponding structure for the “respiratory parameter detection module” is best understood from the specification as at least: respiratory parameter detection module 4 (Fig. 2; ¶¶0037-0039).
The corresponding structure for the “driving component” is best understood from the specification as at least: a drive rod 1010 and an electric telescopic rod 1011 (¶0041).
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Allowable Subject Matter
Claim(s) 1-20 would be allowable if rewritten or amended 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.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 1, the prior art fails to teach or suggest a carbon dioxide (CO2) 2 to an inside of the respiratory terminal. It is noted that the term “terminal” in plain English, as per Webster’s Dictionary, refers to an end point. Thus, the claimed “respiratory terminal” is best understood as a distal end of the device which interfaces with a patient.
Closest prior art to the instant claim is L’her et al. (U.S. Pub. 2014/0158124; e.g. Figs. 1-2 & 5). In Fig. 1 L’her teaches integrated system 111 as controlling CO2 delivery (¶0039). In Fig. 2 L’her further teaches proportional valve 211 and controller 213 as controlling CO2 delivery (¶¶0042-0044). Those structures in L’her are not suitably readable on the claimed combination of an airway between a respiratory gas CO2 compensation device and a respiratory parameter detection module, with the respiratory gas CO2 compensation device controlling CO2 delivery through the airway and the respiratory parameter detection module. Note is additionally made of the 35 U.S.C. 112(f) interpretations of both the respiratory gas CO2 compensation device and the respiratory parameter detection module. Thus, L’her is lacking essential structures and orientations required by the instant claim.
It is thus found that one having ordinary skill in the art at the time of the effective filing of the invention would only have arrived at the instantly claimed invention by way of improper hindsight reasoning.
Regarding claim 10, the claim is found allowable for the same reasons discussed above in regard to claim 1.
Regarding claim 20, the claim is found allowable for the same reasons discussed above in regard to claim 1.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure, see PTO-892 for additional attached references.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH D BOECKER whose telephone number is (571)270-0376. The examiner can normally be reached M-F 9:00 AM - 4:00 PM.
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/JOSEPH D. BOECKER/Primary Examiner, Art Unit 3785
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