DETAILED ACTION
Specification
The specification is objected to as it contains an inconsistency: [0079] of the printed publication states that a first value under the pressure physical quantity is obtained “by multiplying the square of the pressure value by the drag coefficient of the ventilation therapy device” which is inconsistent with the teachings of [0015], which teaches that the first value under the pressure physical quantity is obtained “by multiplying a square of the gas flow value by a drag coefficient of the ventilation therapy device”, which is also what is recited in claim 4.
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 7, 13, and 15-19 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.
Claim 7 recites the limitation “the first value” and “the second value” in line 9, and “the second value” and “first value” in lines 10-11. There is insufficient antecedent basis for these limitations in the claim.
In addition, the examiner notes that while claim 7 was rewritten in independent form, it no longer incorporates the “converting the gas flow value and the pressure value into a first value and a second value” step from which these terms previously drew antecedent basis. It is therefore unclear whether a first value and a second value are being affirmatively introduced in the scaling step, or some other step is required to produce them.
As to claim 13, the claim depends from claim 3, which requires converting the gas flow value into the first value under a pressure physical quantity and using the pressure value as the second value. However, claim 13 requires converting the pressure value into the second value under a flow physical quantity and using the gas flow value as the first value. A single method cannot simultaneously use the pressure value as the second value and convert the pressure value into a second value under a flow physical quantity. It appears that these are alternative embodiments and will be treated as such (i.e. treating claim 13 as being dependent on claim 1).
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 13 and 15 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
As stated above, claim 13 does not narrow claim 3 but recited limitations which contradict it. Applicant is advised that amending claim 13 to depend from claim 1 would obviate this rejection, but would render the claims substantial duplicates of claims 5 and 6.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 102
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, 5, 8, 11, and 12 is/are rejected under 35 U.S.C. 102(a)(1) and (a)(2) as being anticipated by Jafari et al. (US 2002/0053345).
As to claim 1, Jafari teaches a method for determining a respiratory phase ([0009-0011]), applied to a ventilation therapy device (30) comprising a respiratory circuit (50), a flow sensor (38) and a pressure sensor (60), wherein the method comprises: acquiring a gas flow value of the respiratory conduit by the flow sensor, and acquiring a pressure value in the respiratory circuit by the pressure sensor ([0023]), converting at least one of the gas flow value and the pressure value, and obtaining a first value and a second value under a same physical quantity ([0050] – Equation 3 – The pressure value is converted into a value expressed in flow units, by converting to instantaneous leak flow); determining a current respiratory phase of a patient based on a difference of the first value and the second value ([0047] – Equation 2); and adjusting a ventilation volume of the ventilation therapy device according to the respiratory phase determined (claim 21).
As to claim 5, Jafari teaches converting the pressure value into the second value under a flow physical quantity, and using the gas flow value as the first value (Equation 3 – converts Ppatient into Qleak; while using the measured flow directly in Equation 2 without conversion).
As to claim 8, Jafari teaches obtaining a first difference by subtracting the second value from the first value; and determining the current respiratory phase of the patient based on the first difference (Equation 3 - Ppatient is converted into Qleak; and the measured flow (Qprimary+Qsecondary-Qexhaust) is used directly as the first value in Equation 2).
As to claim 11, Jafari teaches an electronic device, comprising a processor (46), a memory, and a program ([0152]) or an instruction stored in the memory and executable on the processor, wherein the program or the instruction, when executed by the processor, implements the method according to claim 1. It is noted that a processor that runs on a program inherently stores such a program in some type of memory.
As to claim 12, Jafari teaches a non-transitory readable storage medium storing a program or instruction which, when executed by a processor, implements the method of claim 1. The inherent memory is considered to be non-transitory.
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, 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.
Claim(s) 3, 4, and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jafari et al. (US 2002/0053345) in view of Bassin et al. (US 2009/0326403).
As to claim 3, Jafari fails to expressly teach converting the gas flow value into the first value under a pressure physical quantity, and using the pressure value as the second value. Instead, as noted above, Jafari teaches performing the conversion in the other direction – from pressure to flow.
Bassin teaches converting a flow value into a value under the pressure physical quantity ([0086] – Modeling Mask Pressure to Determine AC Flow at Mask) and teaches that this calculation can be done in either direction ([0087-88]). It would have been obvious to modify Jaffari with Bassin, as the relationship between pressure and flow is known, one can utilize whichever value is available or is considered more accurate to derive the other value.
As to claim 4, Bassin teaches obtaining the first value under the pressure physical quantity by multiplying a square of the gas flow value by a drag coefficient of the ventilation therapy device ([0087] – Pmask equation).
As to claim 13, Jafari teaches converting the pressure value into the second value under a flow physical quantity, and using the gas flow value as the first value (Equation 3 – converts Ppatient into Qleak; while using the measured flow directly in Equation 2 without conversion).
Allowable Subject Matter
Claim 7 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.
As to claim 7, the prior art of record fails to teach and/or fairly suggest, in combination with all other limitations, scaling the gas flow value or the pressure value, wherein a scaling ratio for the scaling is a ratio of a mean value of the gas flow value collected during one respiratory cycle of the patient to a mean value of the pressure value collected during one respiratory cycle.
Claims 6 and 9 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
As to claim 6, the prior art of record fails to teach and/or fairly suggest, in combination with all other limitations, the step of converting the pressure value into the second value under the flow physical quantity comprises: the pressure value being divided by a drag coefficient of the ventilation therapy device to obtain an intermediate value; and obtaining the second value under the flow physical quantity by finding a square root of the intermediate value.
As to claim 9, the prior art of record fails to teach and/or fairly suggest, in combination with all other limitations, determining a respiratory phase as an inspiratory phase in response to the first difference being greater than 0; and determining the respiratory phase as an expiratory phase in response to the first difference being less than 0.
Response to Arguments
Applicant’s arguments have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTIAN JANG whose telephone number is (571)270-3820. The examiner can normally be reached Monday-Friday (7-3:30 EST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert Chen can be reached at 571-272-3672. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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CHRISTIAN JANG
Primary Examiner
Art Unit 3791
/CHRISTIAN JANG/Primary Examiner, Art Unit 3791 8/13/26
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