DETAILED ACTION
This is the First Office Action on the Merits based on the 18/709,788 application filed on 05/13/2024 and which claims as originally filed have been considered in the ensuing 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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 05/20/2024 was filed. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Drawings
Color photographs and color drawings are not accepted in utility applications unless a petition filed under 37 CFR 1.84(a)(2) is granted. Any such petition must be accompanied by the appropriate fee set forth in 37 CFR 1.17(h), one set of color drawings or color photographs, as appropriate, if submitted via the USPTO patent electronic filing system or three sets of color drawings or color photographs, as appropriate, if not submitted via the via USPTO patent electronic filing system, and, unless already present, an amendment to include the following language as the first paragraph of the brief description of the drawings section of the specification:
The patent or application file contains at least one drawing executed in color. Copies of this patent or patent application publication with color drawing(s) will be provided by the Office upon request and payment of the necessary fee.
Color photographs will be accepted if the conditions for accepting color drawings and black and white photographs have been satisfied. See 37 CFR 1.84(b)(2).
Claim Objections
Claim 1 is objected to because of the following informalities:
On line 4, “which can have” should be corrected to ---which has---
On line 5, “the structure” should be corrected to ---the accordion structure—
On line 7, “the device” should be corrected to ---the inspiratory incentive and exercise device---
On line 7, “these folds” should be corrected to ---the accordioned folds---
On line 8, “the device” should be corrected to ---the inspiratory incentive and exercise device---
On line 10, “the device” should be corrected to ---the inspiratory incentive and exercise device---
On line 10, “its” should be corrected to –a---
On line 11, “the device” should be corrected to ---the inspiratory incentive and exercise device---
On line 11, “its” should be corrected to ---an---
On line 13, “the device” should be corrected to ---the inspiratory incentive and exercise device---
Claim 2 is objected to because of the following informalities:
On line 1, “The device” should be corrected to ---The inspiratory incentive and exercise device---
Claim 3 is objected to because of the following informalities:
On line 1, “The device” should be corrected to ---The inspiratory incentive and exercise device---
On line 2, “being made” should be corrected to ---wherein the inspiratory incentive and exercise device is made---
On line 3, “may be” should be corrected to ---is---
Claim 4 is objected to because of the following informalities:
On line 1, “The device” should be corrected to ---The inspiratory incentive and exercise device---
On line 2, “being able to have square, rectangular, triangular, and pentagonal shapes” should be corrected to ---wherein the inspiratory incentive and exercise device is in the shape of a square, rectangle, triangle, or a pentagon.---
Claim 5 is objected to because of the following informalities:
On line 1, “The device” should be corrected to ---The inspiratory incentive and exercise device---
On line 2, “the device” should be corrected to ---the inspiratory incentive and exercise device---
Claim 6 is objected to because of the following informalities:
On line 1, “The device” should be corrected to ---The inspiratory incentive and exercise device---
On line 2, “it” should be corrected to ---the inspiratory incentive and exercise device---
On line 5, “its” should be corrected to ---the---
On line 6, “folds” should be corrected to ---folds of the accordion folds---
Claim 7 is objected to because of the following informalities:
On line 1, “The device” should be corrected to ---The inspiratory incentive and exercise device---
On line 2, “it” should be corrected to ---the inspiratory incentive and exercise device---
On line 5, “its” should be corrected to ---the---
On line 6, “folds” should be corrected to ---folds of the accordion folds---
Claim 8 is objected to because of the following informalities:
On line 1, “The device” should be corrected to ---The inspiratory incentive and exercise device---
On line 2, “it” should be corrected to ---the inspiratory incentive and exercise device---
On line 5, “its” should be corrected to ---the---
On line 6, “folds” should be corrected to ---folds of the accordion folds---
Claim 9 is objected to because of the following informalities:
On line 1, “The device” should be corrected to ---The inspiratory incentive and exercise device---
On line 2, “it” should be corrected to ---the inspiratory incentive and exercise device---
On line 5, “its” should be corrected to ---the---
On line 6, “folds” should be corrected to ---folds of the accordion folds---
Claim 10 is objected to because of the following informalities:
On line 1, “The device” should be corrected to ---The inspiratory incentive and exercise device---
On line 3, “the device” should be corrected to ---the inspiratory incentive and exercise device---
Claim 11 is objected to because of the following informalities:
On line 1, “The device” should be corrected to ---The inspiratory incentive and exercise device---
On line 3, should be corrected to ---the inspiratory incentive and exercise device---
Claim 12 is objected to because of the following informalities:
On line 1, “The device” should be corrected to ---The inspiratory incentive and exercise device---
On line 3, should be corrected to ---the inspiratory incentive and exercise device—
On line 3, “the flap” should be corrected to ---the perceptual flap---
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.
Claims 1-12 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 of “the columns” on line 6 lacks antecedent basis.
Regarding claim 1, the limitation “with vertical lines and angled folds” on line 8 lacks antecedent basis as it is unclear if these lines and folds are the same as the previously claimed “vertical and horizontal folds with angles”, “parallel lines with vertical creases”, and/or “accordion folds”.
Regarding claim 1, the limitation of “the paper” on line 9 lacks antecedent basis.
Regarding claim 1, the limitation of “the device made from a flexible material, preferably paper” on line 13 is 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. 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. Further, it appears that the device has already claimed that it is made of paper on line 9, and thus further lacks clarity.
Regarding claim 2, the limitation of “an orifice” on line 3 lacks clarity, as an orifice has already been claimed in claim 1, therefore it is unclear if there is a single orifice or multiple.
Regarding claim 3, the limitation of “made from a flexible material, preferably paper” on line 2 is 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. 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. This limitation already appears in claim 1, and further renders the claim unclear.
Regarding claims 6-9, the limitation “an orifice” on line 9 lacks clarity as an orifice has already been claimed in claim 1, therefore it is unclear if there is a single orifice or multiple.
Regarding claims 10-12, due to the claim language of claim 1 stating that the accordion structure consists of, the limitations of claims 10-12, which add components to the accordion structure, are unclear. All elements must be present in claim 1.
Regarding claim 11, the limitation of “the mouthpiece” on line 2 lacks antecedent basis. It is unclear if claim 11 should be dependent upon claim 10 instead of claim 1. Further, the limitation “the mouthpiece is made of the same paper as the device” on line 3 lacks clarity, as the mouthpiece has been disclosed as being part of the device.
Regarding claim 12, the limitation “the last fold” on line 3 lacks antecedent basis and clarity, as it is unclear if this refers to the previously claimed accordion folds or an additional limitation.
Allowable Subject Matter
Claim 1 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. Claims 2-12, dependent upon claim 1, would also 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.
The following is a statement of reasons for the indication of allowable subject matter:
The prior art of record fails to teach or disclose an inspiratory incentive and exercise device comprising all of the structural and functional limitations of independent claim 1 and particularly comprising an accordion structure consisting of a set of vertical and horizontal folds with angles between 35-110 degrees, forming a bellows from accordion folds, a posterior body that closes the device at a lower end and supports the bellows, an anterior body closing the device, the anterior body having an orifice at its center with a variable diameter, the device being made of paper.
The closest prior art of record includes Gereg (US 4,345,605) and Heimlich (US 4,323,078).
Gereg discloses a lung exerciser with an accordion structure (7) having vertical and horizontal folds, a posterior body (9), an anterior body (top surface of the bellows) with a orifice at its center (see Fig. 1). Gereg further discloses a hanger (8) on the accordion structure and a support structure (6) within the accordion structure and further discloses other features not claimed in claim 1. Gereg fails to disclose a set of vertical and horizontal folds with angles between 35-110 degrees specifically and that the device is made of paper.
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Heimlich discloses a collapsible respiratory exerciser with an accordion structure (7) having folds, a posterior body (7), anterior body (1), the anterior body having an orifice (3). Heimlich further discloses that the accordion structure has detachable legs (10), measuring means (8) and a handle (9), among other components. Heimlich fails to disclose that the orifice is centered, a set of vertical and horizontal folds with angles between 35-110 degrees and that the device is made of paper.
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Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MEGAN M ANDERSON whose telephone number is (313)446-6531. The examiner can normally be reached M-TH 6 a.m. -4 p.m. (Arizona).
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/Megan Anderson/Primary Examiner, Art Unit 3784