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 .
Specification
The disclosure is objected to because of the following informalities:
The numerator of the equation in ¶0066 appears intended to refer to “Calibration Point 1” instead of “Calibration Point 2” as the subtracted Motor Voltage
Appropriate correction is required.
Claim Objections
Claim(s) 2, 4, 15 and 17 is/are objected to because of the following informalities:
Claim 2, Ln. 1-2 recites “the plurality of motor output calibration points is distributed” which should read “the plurality of motor output calibration points are distributed”
Claim 4, Ln. 4-5 recites “the blower characterization equation” which should read “the one or more blower characterization equations” following after claim 1
Claim 4, Ln. 5 recites “to measured blower motor operational range” which should read “to the measured blower motor operational range” following after Ln. 3-4 of the claim
Claim 15, Ln. 3 should add a comma before the word “wherein”
Claim 17, Ln. 6 recites “the blower characterization equation” which should read “the one or more blower characterization equations” following after claim 14
Claim 17, Ln. 6-7 recites “to measured blower motor operational range” which should read “to the measured blower motor operational range” following after Ln. 5 of the claim
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) 4-6, 11-13 and 17-18 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 4 recites the limitation “the blower speed” in Ln. 1. There is insufficient antecedent basis for this limitation in the claim. For the purposes of examination the limitation will be interpreted as reading “the optimized motor speed”.
Claim 4 recites the limitation “the measured voltage data” in Ln. 2. There is insufficient antecedent basis for this limitation in the claim. For the purposes of examination the limitation will be interpreted as reading “a measured voltage data”.
Claim 4 recites the limitation “generating the blower speed comprising the measured motor speed data and a measured motor voltage data” in Ln. 1-2 which deems the claim indefinite. It is unclear how generating the blower speed comprises two measured values. The action of generating a blower speed does not appear to have any corresponding action of measuring data. It is questioned if the limitation is attempting to define the generating of the blower speed as based on the measured motor speed data and a measured motor voltage data? This interpretation will be applied.
Claim 5 recites the limitation “the calibrated motor data” in Ln. 4. There is insufficient antecedent basis for this limitation in the claim. For the purposes of examination the limitation will be ignored as the subsequent limitation appears fully sufficient to define the intent of the limitation (i.e. “the plurality of motor output calibration points”).
Claim 11 recites the limitation “the respirator output flowrate” in Ln. 3. There is insufficient antecedent basis for this limitation in the claim. For the purposes of examination the limitation will be interpreted as reading “a respirator output flowrate”.
Claim 12 recites the limitation “the measured motor voltage data” in Ln. 7. There is insufficient antecedent basis for this limitation in the claim. For the purposes of examination the limitation will be interpreted as reading “a measured motor voltage data”.
Claim 12 recites the limitation “the measured motor current data” in Ln. 8-9. There is insufficient antecedent basis for this limitation in the claim. For the purposes of examination the limitation will be interpreted as reading “a measured motor current data”.
Claim 13 recites the limitation “the measured motor voltage” in Ln. 5-6. There is insufficient antecedent basis for this limitation in the claim. For the purposes of examination the limitation will be interpreted as reading “a measured motor voltage”.
Claim 13 recites the limitation “the respirator output flowrate” in Ln. 6. There is insufficient antecedent basis for this limitation in the claim. For the purposes of examination the limitation will be interpreted as reading “a respirator output flowrate”.
Claim 17 recites the limitation “the measured motor voltage data” in Ln. 3-4. There is insufficient antecedent basis for this limitation in the claim. For the purposes of examination the limitation will be interpreted as reading “a measured motor voltage data”.
Claim 18 recites the limitation “the calibrated motor data” in Ln. 4. There is insufficient antecedent basis for this limitation in the claim. For the purposes of examination the limitation will be ignored as the subsequent limitation appears fully sufficient to define the intent of the limitation (i.e. “the plurality of motor output calibration points”).
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, 3-4, 14 and 16-17 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 3-4 and 16-17 of U.S. Patent No. 11,998,770. Although the claims at issue are not identical, they are not patentably distinct from each other because all limitations of instant claim 1 are found within the overall scope of patent claim 3, the instant claim merely being broader in scope. Similarly, all limitations of instant claim 14 are found within the overall scope of patent claim 16, the instant claim merely being broader in scope. A further mapping of dependent claims is as follows:
Instant claim 3 vs. patent claim 3
Instant claim 4 vs. patent claim 4
Instant claim 16 vs. patent claim 16
Instant claim 17 vs. patent claim 17
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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) 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(s) 1-3, 5-11, 14-16 and 18-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Curran et al. (U.S. Pub. 2012/0138051).
Regarding claim 1, Curran discloses a method for operating a blower so as to generate an at least substantially consistent output flowrate (¶0037, e.g. Fig. 3), the method comprising: programmatically determining an optimized motor speed (relationship to points along line 33 in Fig. 3) based at least in part on blower motor data (¶0037 – measured fan speed) and a blower characterization curve (Fig. 3 #33 or #34; ¶0037), wherein the blower characterization curve defines a correlation between motor speed and motor voltage of a blower motor configured to generate a desired respirator output flowrate (Fig. 3; ¶0037); and programmatically adjusting a motor voltage based at least in part on a comparison of a measured motor speed data to the optimized motor speed (¶0037 – voltage adjusted when changes to speed sensed); wherein the blower characterization curve is defined by one or more blower characterization equations derived based at least in part on a plurality of motor output calibration points (Fig. 3 – line between calibration points 31, 32 defines at least one equation; ¶¶0037-0038).
Curran fails to explicitly disclose wherein the plurality of motor output calibration points comprises at least three motor output calibration points such that the blower characterization curve comprises a plurality of blower motor operational ranges, each blower motor operational range being defined by adjacent motor output calibration points of the plurality of motor output calibration points.
In the discussion of Fig. 3 Curran only specifically discusses the two calibrations points 31, 32 (¶0037). However, two considerations must be made. First, Curran further teaches using either a look up table or other data array to define points along line 33 between the two calibrations points 31, 32 (¶0037). The further data points defined in either the look up table or other data array are readable on as further motor output calibration points such that Curran can be understood to teach at least three motor output calibration points such that the blower characterization curve comprises a plurality of blower motor operational ranges. Further, one of ordinary skill in the art would have considered it prima facie obvious that a calibration process could be further improved by using further intermediary points rather than only a highest and a lowest point. Thus, the overall teachings of Curran both teach at least three motor output calibration points, in the form of the look up table or other data array, and are additionally obviously suggestive of further specifically determined calibration points between only the highest and lowest calibration points expressly taught. The space between each individual point, whether points in the look up table or literal calibration determined points, are readable as defining individual blower motor operational ranges.
It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the invention to have specified in Curran the plurality of motor output calibration points comprises at least three motor output calibration points such that the blower characterization curve comprises a plurality of blower motor operational ranges, each blower motor operational range being defined by adjacent motor output calibration points of the plurality of motor output calibration points based upon either 1) a consideration of the look up table or other data array taught by Curran as defining data points corresponding to further motor output calibration points between calibrations points 31, 32 along line 33 in Fig. 3 or 2) an obvious expectation by one of ordinary skill in the art that at least one further, middle calibration point could be added along line 33 to provide the benefit of improving nuanced definition of line 33 by adding further measured motor data points.
Regarding claim 2, Curran further suggests as obvious the plurality of motor output calibration points is distributed evenly throughout a full blower operational range (Fig. 3; ¶0037).
Regarding claim 3, Curran further suggests as obvious each of the one or more blower characterization equations corresponds to a respective blower motor operational range such that the blower characterization curve is defined by a plurality of blower characterization equations. One of ordinary skill in the art would have obviously expected that a middle calibration point could be implemented along line 33 as an additional mid-curve value. With such a middle calibration point one of ordinary skill in the art would have further considered it prima facie obvious to have determined individual linear equations between each of points 31, 32 and the middle calibration point, thus resulting in a top half equation and a bottom half equation. The instant claim thus fails to patentably distinguish over Curran.
Regarding claim 5, Curran further teaches the one or more blower characterization equations comprises a derived correlation between the motor speed and the motor voltage of the blower motor configured to generate the desired respirator output flowrate, wherein the derived correlation is based at least in part on the calibrated motor data corresponding to the plurality of motor output calibration points (Fig. 3 line 33; ¶¶0037-0038).
Regarding claim 6, Curran further teaches the derived correlation comprises an at least linear correlation (Fig. 3 line 33; ¶¶0037-0038).
Regarding claim 7, Curran further teaches adjusting the measured motor speed based at least in part on measured ambient temperature data (¶¶0024, 0040-0045 – compensation based on air density).
Regarding claim 8, Curran further teaches adjusting the measured motor speed based at least in part on measured ambient pressure data (¶¶0024, 0040-0045 – compensation based on air density).
Regarding claim 9, Curran further teaches adjusting the measured motor speed based at least in part on measured ambient temperature data (¶¶0024, 0040-0045 – compensation based on air density).
Regarding claim 10, Curran further teaches identifying the plurality of motor output calibration points based at least in part on a maximum blower production output of the blower motor (Fig. 3 point 31).
Regarding claim 11, Curran further teaches programmatically adjusting the motor voltage comprises adjusting a pulse width modulation (¶¶0004, 0030, 0059) configuration of the blower motor such that the motor speed of the blower motor is adjusted so as to maintain a respirator output flowrate that is at least substantially consistent with the desired respirator output flowrate.
Regarding claim 14, Curran discloses a respirator apparatus (Fig. 1; ¶0025) configured to generate an at least substantially consistent respirator output airflow (¶0037, e.g. Fig. 3), the respirator apparatus comprising: a blower assembly (Fig. 1 #2; ¶¶0025, 0027) comprising a blower motor (Fig. 2 #22; ¶0025) configured to control a blower (Fig. 2 #20; ¶0027) so as to drive a volume of air through a respirator air outlet (Fig. 2 #19; ¶0027) at a respirator output flowrate; and a controller (Fig. 2 #23; ¶0025) comprising at least one processor (Fig. 2 #24), and at least one non-transitory memory (Fig. 2 #25) comprising instructions that, with the at least one processor, cause the controller to: programmatically determine an optimized motor speed (relationship to points along line 33 in Fig. 3) based at least in part on blower motor data (¶0037 – measured fan speed) and a blower characterization curve (Fig. 3 #33 or #34; ¶0037), wherein the blower characterization curve defines a correlation between motor speed and motor voltage of the blower motor configured to generate a desired respirator output flowrate (Fig. 3; ¶0037); and programmatically adjust a motor voltage based at least in part on a comparison of a measured motor speed data to the optimized motor speed (¶0037 – voltage adjusted when changes to speed sensed); wherein the blower characterization curve is defined by one or more blower characterization equations derived based at least in part on a plurality of motor output calibration points (Fig. 3 – line between calibration points 31, 32; ¶¶0037-0038).
Curran fails to explicitly disclose wherein the plurality of motor output calibration points comprises at least three motor output calibration points such that the blower characterization curve comprises a plurality of blower motor operational ranges, each blower motor operational range being defined by adjacent motor output calibration points of the plurality of motor output calibration points.
In the discussion of Fig. 3 Curran only specifically discusses the two calibrations points 31, 32 (¶0037). However, two considerations must be made. First, Curran further teaches using either a look up table or other data array to define points along line 33 between the two calibrations points 31, 32 (¶0037). The further data points defined in either the look up table or other data array are readable on as further motor output calibration points such that Curran can be understood to teach at least three motor output calibration points such that the blower characterization curve comprises a plurality of blower motor operational ranges. Further, one of ordinary skill in the art would have considered it prima facie obvious that a calibration process could be further improved by using further intermediary points rather than only a highest and a lowest point. Thus, the overall teachings of Curran both teach at least three motor output calibration points, in the form of the look up table or other data array, and are additionally obviously suggestive of further specifically determined calibration points between only the highest and lowest calibration points expressly taught. The space between each individual point, whether points in the look up table or literal calibration determined points, are readable as defining individual blower motor operational ranges.
It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the invention to have specified in Curran the plurality of motor output calibration points comprises at least three motor output calibration points such that the blower characterization curve comprises a plurality of blower motor operational ranges, each blower motor operational range being defined by adjacent motor output calibration points of the plurality of motor output calibration points based upon either 1) a consideration of the look up table or other data array taught by Curran as defining data points corresponding to further motor output calibration points between calibrations points 31, 32 along line 33 in Fig. 3 or 2) an obvious expectation by one of ordinary skill in the art that at least one further, middle calibration point could be added along line 33 to provide the benefit of improving nuanced definition of line 33 by adding further measured motor data points.
Regarding claim 15, Curran further teaches at least one of the motor output calibration points corresponds to a respective calibrated operating state defined by a blower production output and a calibrated blower motor configuration (Fig. 3 either of points 31, 32), wherein the blower motor producing the blower production output and operating at a calibrated motor speed and a calibrated motor voltage is configured to generate the desired respirator output flowrate (Fig. 3; ¶0037 – blower motor operates based upon line 33).
Regarding claim 16, Curran further suggests as obvious each of the one or more blower characterization equations corresponds to a respective blower motor operational range such that the blower characterization curve is defined by a plurality of blower characterization equations. One of ordinary skill in the art would have obviously expected that a middle calibration point could be implemented along line 33 as an additional mid-curve value. With such a middle calibration point one of ordinary skill in the art would have further considered it prima facie obvious to have determined individual linear equations between each of points 31, 32 and the middle calibration point, thus resulting in a top half equation and a bottom half equation. The instant claim thus fails to patentably distinguish over Curran.
Regarding claim 18, Curran further teaches the one or more blower characterization equations comprises a derived correlation between the motor speed and the motor voltage of the blower motor configured to generate the desired respirator output flowrate, wherein the derived correlation is based at least in part on the calibrated motor data corresponding to the plurality of motor output calibration points (Fig. 3 line 33; ¶¶0037-0038).
Regarding claim 19, Curran further teaches the at least one non-transitory memory further comprises instructions that, with the at least one processor, cause the apparatus to adjust the measured motor speed based at least in part on measured ambient temperature data (¶¶0024, 0040-0045 – compensation based on air density).
Regarding claim 20, Curran further teaches the at least one non-transitory memory further comprises instructions that, with the at least one processor, cause the apparatus to adjust the measured motor speed based at least in part on measured ambient pressure data (¶¶0024, 0040-0045 – compensation based on air density).
Allowable Subject Matter
Claim(s) 4, 12-13 and 17 would be allowable if rewritten 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 and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 4, Curran fails to teach or suggest generating the blower speed comprising the measured motor speed data and a measured motor voltage data, wherein programmatically determining the optimized motor speed comprises identifying a measured blower motor operational range based at least in part on the measured motor voltage data and identifying the at least one blower characterization equation corresponding to the measured blower motor operational range. Curran fails to teach or suggest measuring motor voltage while generating the optimized motor speed of claim 1. (See above 35 U.S.C. 112(b) rejections of the 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 12, Curran fails to teach or suggest programmatically determining an optimized motor current based at least in part on the blower motor data and a second blower characterization curve, wherein the second blower characterization curve defines a correlation between motor current and motor voltage of the blower motor configured to generate the desired respirator output flowrate, wherein the optimized motor current comprises a motor current required for the blower motor to generate the desired respirator output flowrate given the measured motor voltage data; and programmatically adjusting a motor voltage based at least in part on a comparison of the measured motor current data to the optimized motor current. Curran has no consideration of a second blower characterization curve defining a correlation between motor current and motor voltage of the blower motor configured to generate the desired respirator output flowrate.
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 13, Curran fails to teach or suggest the comparison of the measured motor speed data to the optimized motor speed comprises comparing the measured motor speed to the optimized motor speed in order to determine whether the measured motor speed falls within an acceptable measured motor speed tolerance range defined in part by the optimized motor speed and comprising a range of motor speed values configured to cause the blower motor operating at a measured motor voltage to generate the respirator output flowrate that is at least substantially consistent with the desired respirator output flowrate. Curran fails to teach or suggest measuring motor voltage while generating the optimized motor speed of claim 1.
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 17, the claim is found allowable for the same reasons discussed above in regard to claim 4.
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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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.
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/JOSEPH D. BOECKER/Primary Examiner, Art Unit 3785
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