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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 03/27/2026 has been entered.
Response to Amendment
This Office Action is in response to the amendments filed in the RCE on 03/27/2026, as directed by the Final Rejection on 11/28/2025. Claims 1, 6 and 11 are amended. Claims 16-18 are new. Claims 1-18 are pending in the instant application. The rejections under 35 U.S.C 102 and 103 are withdrawn as necessitated by amendment.
Response to Arguments
Applicant’s arguments, see Pages 6-8 of Remarks, filed 03/27/2026, with respect to claims 1-18 have been fully considered and are persuasive. The rejections under 35 U.S.C 102 and 103 of claims 1-15 has been withdrawn.
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 1-18 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.
Regarding claim 1, the limitation “adjust a set point for the base pressure of the ventilation therapy in response to the apnea based on the measure of ventilation during the apnea in a deweighting process using the measure of ventilation” lacks sufficient clarity and renders the claim indefinite. The ‘deweighting process’ is recited broadly without further explanation of how the deweighting is used or what the deweighting is relative to. For example, claim 3 provides additional details that the deweighting entails a computation of a deweighting factor based on the ventilation, and wherein a duration of the apnea is deweighted by multiplying/adjusting the duration based on the deweighting factor. However, such details are not present in claim 1 and thus without such limitations the claim is lacking in clarity and thus renders the claim indefinite. Applicant is advised to provide additional clarification regarding the deweighting process as recited in claim one, perhaps through inclusion of such limitations of claim 3 or similar language.
Similar arguments can be made for claims 6 and 11.
Allowable Subject Matter
Claims 1-18 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.
Regarding claim 1, the closest prior art is Berthon-Jones (6,367,474 B1) and Bassin (U.S 2015/0059755 A1) and Estes (U.S 5,535,738 A) and Armitstead (U.S 2011/0203588 A1) and Douglas (U.S 2007/0215146 A1) and Rappaport (U.S 5,803,066 A).
None of the prior art teaches or suggests adjusting a set point for the base pressure of the ventilation therapy in response to the apnea based on the measure of ventilation during the apnea in a deweighting process using the measure of ventilation.
The device of Berthon-Jones specifically uses an RMS value calculated from the measured patient flow and determines a duration of the apnea by the RMS value being below a threshold for a period of time, the duration of apnea determining whether to increase the base pressure to compensate for the apnea. While the device of Bassin generally teaches use of weighting functions to deweight measurements to avoid unnecessarily indicating an apnea, the deweighting descales apnea duration when a measure of flow impedance is high, which may signal high mask leak or other obstruction not necessarily indicative of apnea. Thus, the deweighting of Bassin does not use the measure of ventilation as defined by applicant and as presented in applicant’s arguments. While flow impedance is tangentially related to ventilation, since flow impedance may affect or be a sign of poor patient ventilation, it is not obvious to arbitrarily deweight based on the RMS value as used in Berthon-Jones.
Thus, it is found that one having ordinary skill in the prior art would not have arrived at the limitations of the instant application unless through impermissible hindsight reasoning.
Similar arguments can be made for claims 6 and 11.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THOMAS WILLIAM GREIG whose telephone number is (571)272-5378. The examiner can normally be reached Monday - Thursday: 7:30AM - 5:00PM.
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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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/THOMAS W GREIG/Examiner, Art Unit 3785
/JOSEPH D. BOECKER/Primary Examiner, Art Unit 3785
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