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 .
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.
GROUND 1: Claim(s) 1-14, 16 and 18 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent Application Publication No. 2019/0232008 to McDonald.
In regard to claim 1, McDonald discloses an oropharyngeal cannula device configured to be inserted into a bite guard, the device comprising: a first portion 520 configured to engage the bite guard while positioned in a channel extending through the bite guard, wherein the first portion defines a passageway inside the channel; and a second portion 501 extending from the first portion and configured to directly contact a superior surface of a tongue of a patient, while the bite guard is in a mouth of the patient, to prevent collapse of an oropharyngeal airway of the patient (See Fig. 27 and paras 0239-0240). It is noted, per MPEP 2114, with regard to the device being “configured to be inserted into a bite guard” and “configured to engage the bite guard”, it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647 (1987).
In regard to claim 2, McDonald discloses an oropharyngeal cannula device, wherein the passageway 506 is sized to accommodate passing an endoscope through the passageway (See para 0077).
In regard to claim 3, McDonald discloses an oropharyngeal cannula device, wherein: the first portion comprises: a body; a first wing 530 extending from a first lateral side of the body; and a second wing extending from a second lateral side of the body (See Figs. 23-24); and the second portion comprises a tongue holder 501/515 extending from a backside of the body (see Fig. 27).
In regard to claim 4, McDonald discloses an oropharyngeal cannula device, wherein the first wing and the second wing are foldable between a first configuration in which the first wing and the second wing extend laterally outward from the body and a second configuration in which the first wing and the second wing are curved to a shape corresponding to an interior surface of the channel of the bite guard (see Fig. 25). Again, a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
In regard to claim 5, McDonald discloses an oropharyngeal cannula device, wherein the first wing and the second wing each include one or more protrusions 540 configured to engage an internal wall of the bite guard (See Fig. 25).
In regard to claim 6, McDonald discloses an oropharyngeal cannula device, further comprising a flange (not labeled, lower portion of 530 below connector 520) extending from a front side of the body (see Figs. 23-24).
In regard to claim 7, McDonald discloses an oropharyngeal cannula device,
further comprising one or more air channels extending continuously through the body and the tongue holder (See para 0236).
In regard to claim 8, McDonald discloses an oropharyngeal cannula device,
wherein: the first portion comprises a front adaptor 506; and the second portion comprises a guide (i.e. intubation device) (see para 0236).
In regard to claim 9, McDonald discloses an oropharyngeal cannula device,
wherein the guide comprises an upper guide and a lower guide that define a guide passageway 506 between the upper guide and the lower guide (See Figs. 24-27).
In regard to claim 10, McDonald discloses an oropharyngeal cannula device,
wherein: at least one of the upper guide and the lower guide is resiliently affixed to the front adaptor; and the at least one of the upper guide and the lower guide is configured to flex relative to the front adaptor in response to an endoscope having an outer diameter greater than a dimension of the guide passageway passing through the guide passageway (See Figs. 26-27).
In regard to claim 11, McDonald discloses an oropharyngeal cannula device,
wherein the front adaptor is configured to engage the bite guard via friction fit (See Figs. 24-27). A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
In regard to claim 12, McDonald discloses an oropharyngeal cannula device,
wherein the front adaptor comprises an outer surface having a shape that corresponds to a shape of an interior surface of the channel of the bite guard and that directly contacts the interior surface of the channel of the bite guard when the front adaptor engages the bite guard (See Figs. 24-27). A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
In regard to claim 13, McDonald discloses an oropharyngeal cannula device,
wherein: the front adaptor has a size and shape that prevents rotation of the device relative to the bite guard when the front adaptor is engaged with the bite guard; and
the guide has a size and shape that permits rotation of the device relative to the bite guard when the guide is inside the channel of the bite guard and the front adaptor is not engaged with the bite guard (See Figs. 24-27). A recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim.
In regard to claim 14, McDonald discloses an oropharyngeal cannula device,
wherein the guide comprises: a lower surface configured to directly contact the superior surface of the tongue of the patient when the first portion is engaged with the bite guard in the mouth of the patient; and an upper surface opposite the lower surface (See Figs. 16 and 27).
In regard to claim 16, McDonald discloses an oropharyngeal cannula device, wherein the lower surface is convex and the upper surface is concave (See Figs. 24-27).
In regard to claim 18, McDonald discloses an oropharyngeal cannula device, further comprising a flange extending outward from the front adaptor on a side of the front adaptor opposite the guide (See Figs. 20-21).
GROUND 2: Claim(s) 1-3, 8-9, 12 and 14-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by U.S. Patent Application Publication No. 2022/0313935 to Scott.
In regard to claim 1, Scott discloses an oropharyngeal cannula device configured to be inserted into a bite guard 600, the device comprising: a first portion 100 configured to engage the bite guard while positioned in a channel extending through the bite guard, wherein the first portion defines a passageway inside the channel; and a second portion extending from the first portion and configured to directly contact a superior surface of a tongue of a patient, while the bite guard is in a mouth of the patient, to prevent collapse of an oropharyngeal airway of the patient (See Figs 5a-c ,6 and paras 0069-0072).
In regard to claim 2, Scott discloses an oropharyngeal cannula device, wherein the passageway is sized to accommodate passing an endoscope through the passageway (See para 0039, 0053).
In regard to claim 3, Scott discloses an oropharyngeal cannula device, wherein: the first portion comprises: a body; a first wing extending from a first lateral side of the body; and a second wing extending from a second lateral side of the body (See Fig. 5a); and the second portion comprises a tongue holder extending from a backside of the body (see Figs. 1 and 5a and para 0069).
In regard to claim 8, Scott discloses an oropharyngeal cannula device,
wherein: the first portion comprises a front adaptor 125 (see para 0072); and the second portion comprises a guide 105 (see para 0039).
In regard to claim 9, Scott discloses an oropharyngeal cannula device,
wherein the guide comprises an upper guide and a lower guide that define a guide passageway between the upper guide and the lower guide (See Fig. 1).
In regard to claim 12, Scott discloses an oropharyngeal cannula device,
wherein the front adaptor comprises an outer surface having a shape that corresponds to a shape of an interior surface of the channel of the bite guard and that directly contacts the interior surface of the channel of the bite guard when the front adaptor engages the bite guard (See Figs. 5a-b)
In regard to claim 14, Scott discloses an oropharyngeal cannula device,
wherein the guide comprises: a lower surface configured to directly contact the superior surface of the tongue of the patient when the first portion is engaged with the bite guard in the mouth of the patient; and an upper surface opposite the lower surface (See Figs. 1, 5a and paras 0005m 0069).
In regard to claim 15, Scott discloses an oropharyngeal cannula device, wherein the lower surface and the upper surface are flat (see Fig. 1).
In regard to claim 16, Scott discloses an oropharyngeal cannula device, wherein the lower surface is convex and the upper surface is concave (See Fig. 1)
In regard to claim 17, Scott discloses an oropharyngeal cannula device, wherein: a first portion of the lower surface is convex and a second portion of the lower surface is flat; and a first portion of the upper surface is concave and a second portion of the upper surface is flat (See Fig. 1).
In regard to claim 18, Scott discloses an oropharyngeal cannula device, further comprising a flange 125 extending outward from the front adaptor on a side of the front adaptor opposite the guide (See Fig. 1).
In regard to claim 19, Scott discloses a method of using the oropharyngeal cannula device of claim 1, the method comprising: inserting the oropharyngeal cannula device into the bite guard that is in the mouth of the patient, wherein the inserting comprises advancing the second portion of the oropharyngeal cannula device through the channel of the bite guard and causing the first portion of the oropharyngeal cannula device to engage the bite guard (See Fig. 5c and para 0070-0071).
In regard to claim 20, Scott discloses an oropharyngeal cannula device,
further comprising passing an endoscope through the passageway of the oropharyngeal cannula device while the oropharyngeal cannula device is inside the channel of the bite guard (See paras 00039, 0053).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MATTHEW J KASZTEJNA whose telephone number is (571)272-6086. The examiner can normally be reached M-F, 7AM--3PM.
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/MATTHEW J KASZTEJNA/Primary Examiner, Art Unit 3993