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 .
Examiner Comment
It is presently found that the Non-Final Office action in the parent application U.S. Appn. 17/333,063 (mailed 12 Oct 2023) erred in its assessment that Hagen et al. (U.S. Pub. 2012/0051904) failed to teach or suggest the limitations of claims 7 and 18 (Pg. 23). Specifically, upon review ¶0045 of Hagen is found to teach that components 42 of PCB 31 can be mounted in various different locations, to include “on an exterior of the scroll casing, or on a side of PCB 31 opposite first scroll casing element [34],” with those locations readable on claims 7 and 18 of the ‘063 application (which correspond to the final limitation of claims 1 and 12 of the instant application).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim(s) 1-6, 8-17 and 19-20 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,998,771. Although the claims at issue are not identical, they are not patentably distinct from each other because all requirements of instant claim 1 are found within the overall scope of patent claim 1, the instant claim merely being broader in scope. Similarly, all requirements of instant claim 12 are found within the overall scope of patent claim 11, the instant claim merely being broader in scope. A further mapping of dependent claims is as follows:
Instant claims 2-6 vs. patent claims 2-6, respectively
Instant claims 8-11 vs. patent claims 7-10, respectively
Instant claims 13-17 vs. patent claims 12-16, respectively
Instant claims 19-20 vs. patent claims 17-18, respectively
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 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.
Claim(s) 1-3, 10 and 12-14 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hagen et al. (U.S. Pub. 2012/0051904).
Regarding claim 1, Hagen discloses a respirator apparatus (Fig. 2; ¶0022) comprising: a respirator housing (Fig. 2 #22, 24, 26, 34) comprising an outer casing (Fig. 2 #22) defining an exterior portion of the respirator apparatus; and a compact blower assembly (Figs. 2-4 #30; ¶0023) comprising: an impeller (Fig. 4 #36; ¶0025) configured to pull a volume of air into the blower assembly through a blower assembly air inlet (Fig. 4 #38; ¶0032); and a blower scroll (Figs. 3-4 #31, 34; ¶¶0023-0024) configured to receive the volume of air at a blower scroll air inlet (Fig. 4 #38; ¶0032) and direct the volume of air toward a blower scroll air outlet (Fig. 4 #37; ¶0025), the blower scroll comprising: a first blower scroll component (Fig. 4 #34) comprising at least a portion of a blower frame element (Figs. 3-4 #34) and defining the blower scroll air inlet (Fig. 4), and a second blower scroll component (Fig. 4 #31) comprising a scroll cover (Fig. 4 #31; ¶0024) secured to the blower frame element so as to define an internal scroll flow chamber (Figs. 3-4 air space interior of #30; ¶¶0023-0024) comprising a cavity (Figs. 3-4 air space interior of #30) positioned between the scroll cover and the portion of the blower frame element corresponding to the first blower scroll component; wherein the scroll cover comprises an external back surface (Fig. 4 rear, unseen side of #31) having an at least substantially planar configuration (Figs. 4-6 #31 is planar), the external back surface defining a portion of an exterior of the scroll cover that is configured to engage at least a portion of a printed control board assembly (¶0045 – “components 42 can be mounted … on an exterior of the scroll casing, or on a side of PCB 31 opposite first scroll casing element [34]”). The term “compact” in the preamble represents an intentionality and is given limited patentable weight (MPEP 2111.02). The specification of the instant application indicates the blower scroll air inlet is the same as the blower assembly air inlet (e.g. ¶¶0044, 0047).
It is noted the printed control board assembly is not read as positively recited by the claim. Positively reciting the printed control board assembly as a fully distinct element from the blower scroll would overcome Hagen.
Regarding claim 2, Hagen discloses a thickness of the blower frame element extends between a first blower frame element surface (Fig. 4 leftward facing surface of #34) and a second blower frame element surface (Fig. 4 rightward facing surface of #34), wherein the first blower frame element surface is configured to receive an interface portion of the scroll cover (Figs. 4-5 #34 meets #31) such that the scroll cover may be secured thereto, wherein the internal scroll flow chamber is defined between the scroll cover and the first blower frame element surface (Fig. 5).
Regarding claim 3, Hagen discloses the first blower frame element surface comprises one or more geometric features (Fig. 5 curved internal surface of #34) configured to facilitate an airflow of the volume of air from the blower scroll air inlet to the blower scroll air outlet within the internal scroll flow chamber.
Regarding claim 10, Hagen discloses a filter assembly (Fig. 2 #26; ¶0025) configured to at least partially purify the volume of air, wherein the filter assembly defines a portion of a respirator air flow path arranged upstream from the blower assembly (Fig. 2; ¶0025).
Regarding claim 12, Hagen discloses a compact blower assembly (Figs. 2-4 #30; ¶0023) comprising: an impeller (Fig. 4 #36; ¶0025) configured to pull a volume of air into the blower assembly through a blower assembly air inlet (Fig. 4 #38; ¶0032); and a blower scroll (Figs. 3-4 #31, 34; ¶¶0023-0024) configured to receive the volume of air at a blower scroll air inlet (Fig. 4 #38; ¶0032) and direct the volume of air toward a blower scroll air outlet (Fig. 4 #37; ¶0025), the blower scroll comprising: a first blower scroll component (Fig. 4 #34) comprising at least a portion of a blower frame element (Figs. 3-4 #34) and defining the blower scroll air inlet (Fig. 4), and a second blower scroll component (Fig. 4 #31) comprising a scroll cover (Fig. 4 #31; ¶0024) secured to the blower frame element so as to define an internal scroll flow chamber (Figs. 3-4 air space interior of #30; ¶¶0023-0024) comprising a cavity (Figs. 3-4 air space interior of #30) positioned between the scroll cover and the portion of the blower frame element corresponding to the first blower scroll component; wherein the scroll cover comprises an external back surface (Fig. 4 rear, unseen side of #31) having an at least substantially planar configuration (Figs. 4-6 #31 is planar), the external back surface defining a portion of an exterior of the scroll cover that is configured to engage at least a portion of a printed control board assembly (¶0045 – “components 42 can be mounted … on an exterior of the scroll casing, or on a side of PCB 31 opposite first scroll casing element [34]”). The term “compact” in the preamble represents an intentionality and is given limited patentable weight (MPEP 2111.02). The specification of the instant application indicates the blower scroll air inlet is the same as the blower assembly air inlet (e.g. ¶¶0044, 0047).
It is noted the printed control board assembly is not read as positively recited by the claim. Positively reciting the printed control board assembly as a fully distinct element from the blower scroll would overcome Hagen.
Regarding claim 13, Hagen discloses a thickness of the blower frame element extends between a first blower frame element surface (Fig. 4 leftward facing surface of #34) and a second blower frame element surface (Fig. 4 rightward facing surface of #34), wherein the first blower frame element surface is configured to receive an interface portion of the scroll cover (Figs. 4-5 #34 meets #31) such that the scroll cover may be secured thereto, wherein the internal scroll flow chamber is defined between the scroll cover and the first blower frame element surface (Fig. 5).
Regarding claim 14, Hagen discloses the first blower frame element surface comprises one or more geometric features (Fig. 5 curved internal surface of #34) configured to facilitate an airflow of the volume of air from the blower scroll air inlet to the blower scroll air outlet within the internal scroll flow chamber.
Allowable Subject Matter
Claim(s) 4-9, 11 and 15-20 is/are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. Claims 1-6, 8-17 and 19-20 are rejected based on the above nonstatutory double patenting rejection.
The following is a statement of reasons for the indication of allowable subject matter:
It is initially noted that the above cited Hagen is the only prior art found readable on the independent claims.
Regarding claim 4, Hagen fails to teach or suggest the impeller is secured to the first blower frame element surface. In claim 2 the first blower frame element surface corresponds to the blower frame element of claim 1 which includes the blower scroll air inlet. Hagen teaches impeller 36 as mounted to PCB 31 and not to first scroll casing element 34 (e.g. Figs. 4-5). One of ordinary skill in the art would not have been motivated to have changed to mounting configuration of Hagen in order to have read on 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 5, Hagen fails to teach or suggest the scroll cover comprises an interface surface configured to engage a first blower frame element surface so as to define an interface between the first blower scroll component and the second blower scroll component, the interface surface having a substantially annular configuration defined in part by an outer perimeter of the scroll cover, wherein the interface between the first blower scroll component and the second blower scroll component comprises an interface perimeter corresponding to the interface surface of the scroll cover. PCB 31 of Hagen does not define an annular configuration at its outer perimeter and would not have been obviously modified to instead have that shape.
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 7, Hagen fails to teach or suggest a gasket, wherein the gasket configured in between the scroll cover and the blower frame element to prevent air received through the blower assembly air inlet from being leaked from the internal scroll flow chamber at the interface of the scroll cover and the blower frame element. There is no consideration of a gasket in Hagen between PCB 31 and first scroll casing element 34 (e.g. Figs. 4-5).
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 8, Hagen fails to teach or suggest a blower motor configured to drive a rotation of the impeller within the internal scroll flow chamber and the printed control board assembly, the printed control board assembly comprising: motor control circuitry configured to facilitate transmission of one or more signals to the blower motor; and respirator control circuitry configured to facilitate transmission of one or more signals to one or more respirator operational components. PCB 31 of Hagen must be read as the second blower scroll component of claim 1 but cannot then separately be read as the printed control board assembly of the instant claim. One of ordinary skill in the art would not have been motivated to have added a different second blower scroll component in place of PCB 31 in Hagen without improper hindsight reasoning.
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 9, Hagen fails to teach or suggest a beeper interface element integrated into an exterior of the scroll cover and configured to be in electronic communication with the printed control board assembly and a beeper element so as to enable an alert functionality corresponding to one or more predetermined blower assembly operating parameters. There is no consideration in Hagen of a beeper interface element and a beeper element in the manner 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 11, Hagen fails to teach or suggest the respirator housing comprises: an internal respirator housing portion defined at least in part by one or more sidewalls; and an external housing compartment disposed about an exterior of the respirator housing and defined at least in part by an outer surface of the blower frame element; wherein the blower assembly is disposed within the internal respirator housing portion and the filter assembly is disposed within the external housing compartment. There is no consideration in Hagen of the particular housing orientation recited 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 15, the claim is found allowable for the same reasons discussed above in regard to claim 4.
Regarding claim 16, the claim is found allowable for the same reasons discussed above in regard to claim 5.
Regarding claim 18, the claim is found allowable for the same reasons discussed above in regard to claim 7.
Regarding claim 19, the claim is found allowable for the same reasons discussed above in regard to claim 8.
Regarding claim 20, the claim is found allowable for the same reasons discussed above in regard to claim 9.
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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kendra Carter can be reached at (571) 272-9034. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JOSEPH D. BOECKER/Primary Examiner, Art Unit 3785
Prosecution Insights