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:
Pg. 19 includes a sentence missing a period near the middle of the page before “A vent 250”
Appropriate correction is required.
Claim Objections
Claim(s) 2-14 is/are objected to because of the following informalities:
Each of claims 2-7 and 9-13 should add a comma at the end of their preamble to separate the claim dependency from the body of the claim
Claim 2, Ln. 2 recites “the undertaking” which should read “an undertaking” as it is a first introduction
Claim 2, Ln. 2 recites “while present therein said room” which should read “while present in said room”
Claim 2, Ln. 2-3 recites “said room” which should read “said sealable and enclosable room” for consistency with claims 1 and 2
Claim 2, Ln. 3 recites “oxygen enriched” which should read “oxygen-enriched” for consistency with claim 1
Claim 4, Ln. 1-2 recites “an oxygen-enriched atmosphere” which should read “the oxygen-enriched atmosphere” following after claim 1
Claim 4, Ln. 2 recites “said partial pressure” which should read “said partial pressure of oxygen” following after claim 1
Claims 5-6 each begin “The room” which should read “The sealable and enclosable room” for consistency with claim 1
Claim 8, Ln. 4 recites “the flow of oxygen” which should read “a flow of oxygen” as it is a first introduction
Claim 8, Ln. 7 recites “the oxygen level” which should read “an oxygen level” as it is a first introduction
Claim 8, Ln. 8 recites “the partial pressure of oxygen” which should read “a partial pressure of oxygen” as it is a first introduction
Claim 11, Ln. 2 recites “the other gases” which should read “other gases” as it is a first introduction
Claim 14, Ln. 11-12 recites “said sealed oxygen-enriched atmosphere exercise room” which should read “said sealed exercise room” for consistency
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) 1-7, 10, 12 and 14 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 lacks a transitional phrase to separate the preamble of the claim from the body of the claim. The metes and bounds of the claim are thus unclear as the claim fails to clearly define how the breadth of the claim should be interpreted as either open, semi-open or closed (see MPEP 2111.02). Applicant is suggested to add a transitional phrase which suitably captures the intended scope of the claim (e.g. “comprising”).
Claim 1 recites the limitation “filled and maintained with an oxygen-enriched atmosphere through controlled operation of oxygen concentration” in Ln. 1-2 which deems the claim indefinite. The claim recites a function, i.e. maintaining a particular oxygen concentration, without reciting any structure to perform the function. An apparatus claim is improper when it attempts to define the apparatus by what it does rather than what it is (see MPEP 2173.05(g)). It appears the claim should be amended to add at least an oxygen concentrator and possibly also a sensor to detect a current oxygen concentration. The claim will be interpreted as presented for the time being.
Claim 2 recites the limitation “an oxygen enriched atmosphere of at least said partial pressure level at sea level” in Ln. 3 which deems the claim indefinite. It is initially unclear why the limitation does not begin “the oxygen-enriched atmosphere” when following after claim 1. Additionally, the limitation recites “said partial pressure level at sea level” without indicating what gas the partial pressure is in relation to. The terminology “partial pressure” must refer to a singular type of gas. For the purposes of examination the limitation will be interpreted as reading “the oxygen-enriched atmosphere of at least said partial pressure of oxygen at sea level”.
Claim 10 recites the limitation “the subject room” 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 “the exercise room” for consistency with claim 8. The same change should also be made in Ln. 3 of the claim.
In claim 12 the phrasing “excessive leakage of oxygen or entrance of outside air” is a relative term which renders the claim indefinite. The term “excessive” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The claim will generally be examined as presenting a barrier to oxygen leakage or outside air entrance, but the degree of that barrier cannot be specifically considered to be limited by the claim.
Claim 14 recites the limitation “operating said oxygen concentrator … at a partial pressure of oxygen at a level higher than 21.2 kPa” in Ln. 5-6 which deems the claim indefinite. A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 14 recites the broad recitation “a partial pressure of oxygen at a level higher than 21.2 kPa” and claim 8 also recites “the partial pressure of oxygen in said exercise room is controlled to be more than 25 kPa and less than 200 kPa” which is the narrower statement of the range/limitation. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. While recognizing that claims 8 and 14 are drawn to different statutory categories the broader oxygen partial pressure range recited by claim 14 renders the claim indefinite as it appears to indicate the system should be operated outside of the bounds established of the system recited in claim 8. It is suggested to amend claim 14 to be consistent with the oxygen partial pressure range recited in claim 8.
Claim 14 recites the limitation “said at least one an oxygen sensor” in Ln. 9. There is insufficient antecedent basis for this limitation in the claim. Claim 8 has recited at least one sensor but not expressly recited that sensor(s) as an oxygen sensor. For the purposes of examination the limitation will be interpreted as reading “said at least one sensor” for consistency with claim 8. The same change should also be made in Ln. 3 of the claim.
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”) (claim 8) 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: “device for controlled delivery of an oxygen-enriched atmosphere exhibiting said partial pressure greater than 21.2 kPa at sea level” in claim 4 and “system to mix the oxygen with other gases within said exercise room” in claim 11.
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 “device for controlled delivery of an oxygen-enriched atmosphere exhibiting said partial pressure greater than 21.2 kPa at sea level” is best understood from the specification as at least: oxygen concentrator 180.
The corresponding structure for the “means for entering and exiting said exercise room” is best understood from the specification as at least: curtains or other soft air-blocking materials which can be pushed aside to enter (e.g. ¶0042 of the PGPub copy of the instant application).
The corresponding structure for the “system to mix the oxygen with other gases within said exercise room” is best understood from the specification as at least: a fan or blower (e.g. ¶0037 of the PGPub copy of the instant application).
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.
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) 1-4 and 6 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kutt et al. (U.S. Pub. 2002/0035927).
Regarding claim 1, Kutt discloses a sealable and enclosable room (Fig. 4 #50; ¶¶0045, 0181-0226) filled and maintained with an oxygen-enriched atmosphere through controlled operation of oxygen concentration therein at a partial pressure of oxygen gas greater than 21.2 kPa at sea level (¶0226 – 25% oxygen is greater than sea level).
Regarding claim 2, Kutt discloses a method utilizing said sealable and enclosable room of claim 1 (see above) by at least one individual (¶0034 – for athletic training), said method including an undertaking of physical exertion activity while present in said room with the oxygen-enriched atmosphere of at least said partial pressure of oxygen gas at sea level (¶0034 – for athletic training at low altitude).
Regarding claim 3, Kutt discloses physical exertion by at least two people individually or in tandem within said sealable and enclosable room (¶0331 – multiple occupants).
Regarding claim 4, Kutt discloses a device (Fig. 4 oxygen concentrator; ¶¶0036, 0183) for controlled delivery of an oxygen-enriched atmosphere exhibiting said partial pressure greater than 21.2 kPa at sea level (¶0226 – 25% oxygen is greater than sea level), wherein said oxygen-enriched atmosphere is controlled through manual operation or automatically through oxygen sensor-controlled operation (e.g. ¶¶0206, 0211 – operation of oxygen concentrator regulated based on O2 level).
Regarding claim 6, Kutt discloses at least two manners of ingress/egress (¶0172 – multiple hoses for ingress/egress of different gases).
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) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kutt et al. (U.S. Pub. 2002/0035927) in view of Fukushima (U.S. Pub. 2011/0146687).
Regarding claim 5, Kutt is silent as to exercise equipment. Kutt is silent as to what type of exercise is performed by the athlete training in the CMR 50.
Fukushima teaches an exercise facility (Fig. 1 #100) in which oxygen delivery is supplied (¶0034) and which includes exercise equipment (Fig. 1 #210; ¶0037) for users. Fukushima teaches exercise equipment as allowing a user to perform particular physical training activity while receiving an oxygen supply (¶0008). Further, it is noted that Kutt discusses an interest in the training regimen of cyclists which would have obviously suggested to one of ordinary skill in the art placing a riding cycle within the CMR 50 of Kutt.
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 incorporated in Kutt exercise equipment in order to provide the benefit of allowing a user to perform particular physical training activity while receiving an oxygen supply in view of Fukushima. Alternately, 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 incorporated in Kutt exercise equipment in order to provide the benefit of assisting in the training regimen of cyclists as a suggested interest of Kutt.
Claim(s) 7-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kutt et al. (U.S. Pub. 2002/0035927).
Regarding claim 7, Kutt fails to explicitly disclose the partial pressure of oxygen is more than 25 kPa and less than 100 kPa.
However, Kutt teaches providing oxygen at 25% in high oxygen mode (¶0226). At sea level 25% oxygen corresponds to 25.3 kPa, which satisfies the claimed requirements of being more than 25 kPa.
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 Kutt the partial pressure of oxygen is more than 25 kPa and less than 100 kPa as operation of the room of Kutt in its high oxygen mode of 25% oxygen when used at sea level equipment will correspond to the partial pressure of oxygen being 25.3 kPa.
Regarding claim 8, Kutt discloses a system (Fig. 4 #50; ¶¶0045, 0181-0226) for delivering and controlling an oxygen-enriched atmosphere within an exercise room (Fig. 4 #50; ¶¶0045, 0181-0226) suitable for exercise comprising: an oxygen concentrator (Fig. 4; ¶¶0036, 0183); a valve (¶¶0098, 0117-0118 – solenoid switch operates as a valve) to control a flow of oxygen from the oxygen concentrator to said exercise room; a distribution system (Fig. 4 fan; ¶¶0042, 0098-0099 – fan or blower), to distribute oxygen to various parts of said exercise room; at least one door (¶0337) or other means for entering and exiting said exercise room; and at least one sensor (¶0039) in said exercise room to determine an oxygen level therein, wherein a partial pressure of oxygen in said exercise room is controlled (¶0226 – 25% oxygen in high oxygen mode)
Kutt fails to explicitly disclose the partial pressure of oxygen is controlled to be more than 25 kPa and less than 200 kPa.
However, Kutt teaches providing oxygen at 25% in high oxygen mode (¶0226). At sea level 25% oxygen corresponds to 25.3 kPa, which satisfies the claimed requirements of being more than 25 kPa.
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 Kutt the partial pressure of oxygen is more than 25 kPa and less than 200 kPa as operation of the room of Kutt in its high oxygen mode of 25% oxygen when used at sea level equipment will correspond to the partial pressure of oxygen being 25.3 kPa.
Regarding claim 9, Kutt further teaches said oxygen concentrator utilizes a pressure swing adsorption process for production of a stream of oxygen rich gas and a stream of nitrogen rich gas (¶0090).
Regarding claim 10, Kutt further teaches said valve to control the flow of oxygen from the oxygen concentrator to the exercise room also includes a valve to control the flow of nitrogen from the oxygen concentrator to the exercise room (¶0090 – removes nitrogen in high oxygen mode). One of ordinary skill in the art would have obviously expected that the teaching of a solenoid to regulate flow into the CMR 50 would also suggest a solenoid to regulate flow out of the CMR 50, such as the intended outflow of nitrogen during high oxygen mode.
Regarding claim 11, Kutt further teaches said distribution system comprises a system to mix the oxygen with other gases within said exercise room (Fig. 4 fan; ¶¶0042, 0098-0099 – fan or blower). A fan or blower is a match to the disclosed “system to mix …,” as noted in the above 35 U.S.C. 112(f) interpretation section.
Regarding claim 12, Kutt further teaches said at least one door or other means for entering and exiting the room exhibits adequate sealing to prevent excessive leakage of oxygen or entrance of outside air (¶0337 – various door seals).
Regarding claim 13, Kutt further teaches multiple sensors to determine the oxygen level within said exercise room are present (¶0180 – more than one oxygen sensor can be provided).
Regarding claim 14, Kutt further teaches a process for undertaking exercise or other physical exertion activity within the exercise room (¶0034 – for athletic training) provided within the system of claim 8 (see above), comprising the steps of: providing said exercise room (Fig. 4); sealing said exercise room to prevent gas ingress and egress upon sealing (¶¶0034, 0337); operating said oxygen concentrator to generate said oxygen-enriched atmosphere within said exercise room at a partial pressure of oxygen at a level higher than 21.2 kPa through operation of said valve (¶¶0117-0118, 0226 – 25% oxygen is greater than sea level); monitoring said at least one sensor for ensuring said oxygen-enriched atmosphere is retained within said sealed exercise room (¶¶0100-0105, 0180); and undertaking exercise or other physical exertion activity within said sealed exercise room (¶0034 – for athletic training).
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. Particular note is additionally drawn to the following references:
Paul (FR 2660548 A1; Figs. 1 & 3) which teaches exercise equipment within a hyperbaric cabin provided with oxygen – oxygen within a hyperbaric environment will result in the oxygen being provided at a partial pressure above sea level
Wasastjerna et al. (U.S. Patent 5860857; Fig. 1) which teaches oxygen supplied to a sports/exercise facility in certain situations at 30-40% (Col. 2, Ln. 17-20)
Spiegel et al. (EP 1574195 A2; Figs. 1-3) which teaches closed room 1 provided with oxygen-enriched atmosphere of 24-28% by volume %
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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