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 .
Claims 1-20, filed 6/25/24 are currently pending.
Election/Restrictions
This application contains claims directed to the following patentably distinct species:
Species 1: Figures 1-24 directed towards a nose plug component having a top housing portion and bottom housing portion.
Species 2: Figures 25-28 directed towards a nose plug component having a cap, delivery line and gas source.
The species are independent or distinct because the claims to the different species recite the mutually exclusive characteristics of such species, as described above. In addition, these species are not obvious variants of each other based on the current record.
Applicant is required under 35 U.S.C. 121 to elect a single disclosed species, or a single grouping of patentably indistinct species, for prosecution on the merits to which the claims shall be restricted if no generic claim is finally held to be allowable. Currently, claim 20 is generic.
There is a serious search and/or examination burden for the patentably distinct species as set forth above because at least the following reason(s) apply: the species or groupings of patentably indistinct species require a different field of search (e.g., searching different classes/subclasses or electronic resources, or employing different search strategies or search queries).
Applicant is advised that the reply to this requirement to be complete must include (i) an election of a species to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected species or grouping of patentably indistinct species, including any claims subsequently added. An argument that a claim is allowable or that all claims are generic is considered nonresponsive unless accompanied by an election.
The election may be made with or without traverse. To preserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the election of species requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable on the elected species or grouping of patentably indistinct species.
Should applicant traverse on the ground that the species, or groupings of patentably indistinct species from which election is required, are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing them to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the species unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other species.
Upon the allowance of a generic claim, applicant will be entitled to consideration of claims to additional species which depend from or otherwise require all the limitations of an allowable generic claim as provided by 37 CFR 1.141.
During a telephone conversation with Theodore Chiacchio on 8/6/26 a provisional election was made without traverse to prosecute the invention of Species 2, claims 1-20. Affirmation of this election must be made by applicant in replying to this Office action. No claims have been withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Claim Interpretation
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”) 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:
“a gas treatment component…to at least partially purify gas” in claims 1, 16 and 20 (corresponding structure is at least a filter [0024]).
“a filtration component to remove impurities from the gas” in claims 1 (claim 14 removes from 112f), 16 and 20 (corresponding structure is at least a filter [0022]).
“a power component…to provide electrical power” in claim 8 (corresponding structure is at least a battery [0093]).
“a monitoring component that indicates a likelihood of microorganisms being present” in claims 15 and 18 (corresponding structure is at least a sensor [0136]).
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.
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.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the fan component and power component of claim 8 in combination with the cap, delivery line and gas source of Species 2 must be shown or the feature canceled from the claim. No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claim 16 is objected to because of the following informalities:
Claim 16, line 15 recites “diameter is selectively” suggested to be changed to --diameter that is selectively-- for grammatical reasons. 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 16-19 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 16 recites “the filtration component” in line 10, which lacks proper antecedent basis.
Any remaining claims are rejected as being dependent on a rejected base claim.
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 (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 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.
Claims 1-4, 6 and 9-11 are rejected under 35 U.S.C. 103 as being unpatentable over Matula, JR. et al. (2005/0205096) in view of Gusky et al. (2016/0095996) and Arai (4,273,656).
Regarding claim 1, in fig. 1 Matula discloses a gas purification apparatus for nasal application comprising: a housing (12 including each proximal end of 42) to substantially enclose an interior space (within 12 and each proximal end of 42); a filter [0073], but is silent regarding a gas treatment component located within the interior space to at least partially purify gas for delivery to a nasal cavity comprising: a filtration component to remove impurities from the gas. However, in fig. 17A and 17B Gusky teaches a gas treatment component 400 located within an interior space to at least partially purify gas for delivery to a nasal cavity comprising ([0133] 400 is a pleated filter): a filtration component to remove impurities from the gas ([0133] 400 is a pleated filter). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Matula’s interior space with the addition of a filtration component, as taught by Gusky, for the purpose of providing sound deadening and capturing moisture. The modified Matula discloses a nose plug component (distal ends of 42, Matula) operatively attached to a nose end of the housing to be removably inserted into a nostril such to form an at least partial seal with the nasal cavity such that the gas passed through the filtration component is directed to the nasal cavity through the nose plug component (Fig. 4, Matula, Fig. 17A-B Gusky); and a cap (22, Fig. 4 and 6) attached to a cap end of the housing (Fig. 4 and 6) to receive the gas delivered from a gas source via a delivery line (14 Matula), the cap end being distal to the nose end (Fig. 5 Matula), but is silent regarding that the cap is removably attached to the cap end of the housing. However, in fig. 1 Arai teaches a fluid passage including a flexible attachment of arms of 3, projection 3b and recess 2b (Col. 1, ll. 47-Col. 2, ll. 17). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Matula’s connection between the cap and the cap end of the housing with a flexible attachment in which the cap has a recess and the cap end has a protrusion and flexible material, as taught by Arai, for the purpose of providing detachment for cleaning.
Regarding claim 2, the modified Matula discloses that the delivery line having a delivery line diameter that is selectively installed to the cap such that the gas from the delivery line is received through a gas receiving aperture of the cap (Fig. 4, Matula).
Regarding claim 3, the modified Matula discloses that the delivery line is received by the cap having a filtration diameter (largest outermost diameter, Matula, Fig. 6) that is larger than the delivery line diameter (inner diameter of 14, Matula, Fig. 6) to increase a filtration efficacy of the filtration component.
Regarding claim 4, the modified Matula discloses that the cap comprises a cannula (distal portion of 22, Matula) to receive the delivery line through which the gas flows, wherein the delivery line diameter is larger than a cannula (distal end of cap 22, Matula) diameter of the cannula (delivery line 14 is received within cannula portion of cap 22, Matula).
Regarding claim 6, the modified Matula discloses that the gas source is a continuous positive airway pressure machine ([0070] Matula).
Regarding claim 9, the modified Matula discloses that the housing has a cap receiving feature that is at least partially flexible to allow for installation and removal of the cap to the housing (the cap end of the housing has a protrusion and flexible material, Arai Col. 1, ll. 47-Col. 2, ll. 17).
Regarding claim 10, the modified Matula is silent regarding an auxiliary aperture on the housing. However, in fig. 17B Gusky teaches an auxiliary aperture 104 on the housing 10. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Matula’s housing with the addition of an auxiliary aperture, as taught by Gusky, for the purpose of venting exhaled gas ([0093] Gusky).
Regarding claim 11, the modified Matula discloses a drying agent ([0133] Gusky) to at least partially remove moisture from within the interior space, and wherein at least part of the moisture vents through the auxiliary aperture ([0093] Gusky).
Claims 5 and 12-13 are rejected under 35 U.S.C. 103 as being unpatentable over Matula, JR., Gusky and Arai, as applied to claim 1 above, in further view of Tran (2021/0381023).
Regarding claim 5, the modified Matula is silent regarding that the impurities comprise microorganisms. However, in fig. 3A-3B Tran teaches a nasal filter that filters microorganisms with the use of antimicrobial agents [0037]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Matula’s gas treatment component and proximal portions of 42 with the addition of a filter having antimicrobial agents, as taught by Tran, for the purpose of providing further filtration and protection to a user.
Regarding claim 12, the modified Matula is silent regarding that the gas treatment component further comprises: an aroma component comprising an aroma reservoir to reversibly hold an aromatic material having an aroma; and wherein the aroma is at least partially transferred from the aromatic material into the gas. However, in fig. 3A-3B Tran teaches a nasal filter that includes an aroma component comprising an aroma reservoir to reversibly hold an aromatic material having an aroma [0040]; and wherein the aroma is at least partially transferred from the aromatic material into the gas [0040]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Matula’s gas treatment component and proximal portions of 42 with the addition of a filter having an aroma reservoir, as taught by Tran, for the purpose of providing pleasant aromas to the user.
Regarding claim 13, the modified Matula is silent regarding that the gas treatment component further comprises: a medicinal component comprising a medicinal reservoir to reversibly hold a medicine; and wherein the medicine is at least partially transferred from the medicinal component into the gas. However, in fig. 3A-3B Tran teaches a nasal filter that includes a medicinal component comprising a medicinal reservoir to reversibly hold a medicine (CBD [0040]); and wherein the medicine is at least partially transferred from the medicinal component into the gas [0040]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Matula’s gas treatment component and proximal portions of 42 with the addition of a filter having a medicinal reservoir, as taught by Tran, for the purpose of providing therapy to the user.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Matula, JR., Gusky and Arai, as applied to claim 1 above, in further view of Laswick et al. (6,067,022).
Regarding claim 7, the modified Matula is silent regarding that the gas source is a pressurized tank. However, Laswick teaches an apparatus with both a filter 44 and a gas source that is a pressurized tank (2, Col. 4, ll. 30-35). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Matula’s gas source with a pressurized tank, as taught by Laswick, for the purpose of providing an alternate gas source to the user having the predictable results of providing respiratory support.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Matula, JR., Gusky and Arai, as applied to claim 1 above, in further view of Jerasi (2020/0215281) and Lim et al. (2012/0180666).
Regarding claim 8, the modified Matula is silent regarding that the gas treatment component further comprises: a fan component to actively pass the gas through the filtration component, and a power component located substantially within the interior space to provide electrical power to the gas treatment component. However, in fig. 4 Jerasi teaches a fan component 100 to actively pass the gas through a filtration component 30, and a power component 24 located substantially within an interior space to provide electrical power to the gas treatment component [0058-0059] and Lim teaches multiple fans (14 and 15) to actively pass the gas through the filtration component 18. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Matula’s gas treatment component at the proximal end of each of 42 with the addition of a fan component and a power component, as taught by Jerasi and Lim, for the purpose of providing further blower support.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Matula, JR., Gusky and Arai, as applied to claim 1 above, in further view of Tran (2021/0381023) and Dolezal et al. (2009/0007919).
Regarding claim 14, the modified Matula is silent regarding that the filter is replaceable. However, in fig. 3A-3B Tran teaches a nasal filter that is replaceable [0020]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Matula’s gas treatment component and proximal portions of 42 with the addition of a filter that is replaceable, as taught by Tran, for the purpose of providing further filtration and protection to a user. The modified Matula is silent regarding that the filtration component comprises a high efficiency particulate absorbing (HEPA) filter. However, Dolezal teaches a high efficiency particulate absorbing (HEPA) filter [0061]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Matula’s filter material with a HEPA filter material, as taught by Dolezal, for the purpose of providing enhanced filtration protection to a user.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Matula, JR., Gusky and Arai, as applied to claim 1 above, in further view of Sokol et al. (2020/0139165).
Regarding claim 15, the modified Matula is silent regarding a monitoring component that indicates a likelihood of microorganisms being present in an environmental space accessible via the nose plug component. However, in fig. 1A and 4A Sokol teaches a monitoring component 114 that indicates a likelihood of microorganisms being present in an environmental space accessible via the nose plug component [0083][0159][0124]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Matula’s apparatus with the addition of a monitoring component, as taught by Sokol, for the purpose of determining an unsafe environment for a user.
Claims 16 are rejected under 35 U.S.C. 103 as being unpatentable over Matula, JR. et al. (2005/0205096) in view of Dolezal et al. (2009/0007919) and Arai (4,273,656).
Regarding claim 1, in fig. 1 Matula discloses a gas purification apparatus for nasal application comprising: a housing (12 including each proximal end of 42) to substantially enclose an interior space (within 12 and each proximal end of 42); a filter [0073], but is silent regarding a gas treatment component located within the interior space to at least partially purify and at least partially remove moisture from gas for delivery to a nasal cavity comprising: a high efficiency particulate absorbing (HEPA) filter to remove impurities from the gas. However, Dolezal teaches a high efficiency particulate absorbing (HEPA) filter [0061]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Matula’s filter with a HEPA filter within the proximal portion of 42, as taught by Dolezal, for the purpose of providing enhanced filtration protection to a user. The modified Matula discloses a nose plug component (distal ends of 42, Matula) operatively attached to a nose end of the housing to be removably inserted into a nostril such to form an at least partial seal with the nasal cavity such that the gas passed through the filtration component is directed to the nasal cavity through the nose plug component (Fig. 4, Matula, Fig. 17A-B Gusky); and a cannula (proximal end of 22 Matula) of a cap (22, Fig. 4 and 6) attached to a cap end of the housing (Fig. 4 and 6) to receive the gas delivered from a gas source via a delivery line (14 Matula), the cap end being distal to the nose end (Fig. 5 Matula), but is silent regarding that the cap is removably attached to the cap end of the housing. However, in fig. 1 Arai teaches a fluid passage including a flexible attachment of arms of 3, projection 3b and recess 2b (Col. 1, ll. 47-Col. 2, ll. 17). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Matula’s connection between the cap and the cap end of the housing with a flexible attachment in which the cap has a recess and the cap end has a protrusion and flexible material, as taught by Arai, for the purpose of providing detachment for cleaning. The modified Matula discloses that the delivery line having a delivery line diameter that is selectively installed to the cannula such that the gas from the delivery line is received through a gas receiving aperture of the cannula (Fig. 4, Matula) and that the delivery line is received by the cap having a filtration diameter (largest outermost diameter, Matula, Fig. 6) that is larger than the delivery line diameter (inner diameter of 14, Matula, Fig. 6) to increase a filtration efficacy of the high efficiency particulate absorbing (HEPA) filter.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Matula, JR., Dolezal and Arai, as applied to claim 16 above, in further view of Tran (2021/0381023).
Regarding claim 17, the modified Matula is silent regarding that the gas treatment component further comprises: a medicinal component comprising a medicinal reservoir to reversibly hold a medicine; and wherein the medicine is at least partially transferred from the medicinal component into the gas. However, in fig. 3A-3B Tran teaches a nasal filter that includes a medicinal component comprising a medicinal reservoir to reversibly hold a medicine (CBD [0040]); and wherein the medicine is at least partially transferred from the medicinal component into the gas [0040]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Matula’s filter with the addition of a medicinal reservoir, as taught by Tran, for the purpose of providing therapy to the user.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Matula, JR., Dolezal and Arai, as applied to claim 16 above, in further view of Sokol et al. (2020/0139165).
Regarding claim 18, the modified Matula is silent regarding a monitoring component that indicates a likelihood of microorganisms being present in an environmental space accessible via the housing. However, in fig. 1A and 4A Sokol teaches a monitoring component 114 that indicates a likelihood of microorganisms being present in an environmental space accessible via the housing [0083][0159][0124]. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Matula’s nose end of the housing with the addition of a monitoring component, as taught by Sokol, for the purpose of determining an unsafe environment for a user.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Matula, JR., Dolezal and Arai, as applied to claim 16 above, in further view of Gusky et al. (2016/0095996).
Regarding claim 19, the modified Matula is silent regarding an auxiliary aperture on the housing. However, in fig. 17B Gusky teaches an auxiliary aperture 104 on the housing 10. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modified Matula’s housing with the addition of an auxiliary aperture, as taught by Gusky, for the purpose of venting exhaled gas ([0093] Gusky).
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Matula, JR. et al. (2005/0205096) in view of Gusky et al. (2016/0095996).
Regarding claim 20, in fig. 1 Matula discloses a gas purification apparatus for nasal application comprising: a housing (12 including each proximal end of 42) to substantially enclose an interior space (within 12 and each proximal end of 42); a filter [0073], but is silent regarding a gas treatment component located within the interior space to at least partially purify gas for delivery to a nasal cavity comprising: a filtration component to remove impurities from the gas. However, in fig. 17A and 17B Gusky teaches a gas treatment component 400 located within an interior space to at least partially purify gas for delivery to a nasal cavity comprising ([0133] 400 is a pleated filter): a filtration component to remove impurities from the gas ([0133] 400 is a pleated filter). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Matula’s interior space with the addition of a filtration component, as taught by Gusky, for the purpose of providing sound deadening and capturing moisture. The modified Matula discloses a nose plug component (distal ends of 42, Matula) operatively attached to a nose end of the housing to be removably inserted into a nostril such to form an at least partial seal with the nasal cavity such that the gas passed through the filtration component is directed to the nasal cavity through the nose plug component (Fig. 4, Matula, Fig. 17A-B Gusky)
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 1 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 7 of copending Application No.19/089,927. Although the claims at issue are not identical, they are not patentably distinct from each other because co-pending claim 1 further recites a medicinal component.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 16 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 20 of copending Application No.19/089,927. Although the claims at issue are not identical, they are not patentably distinct from each other because co-pending independent claim 15 from which claim 20 depends further recites an aroma component further recites a cap.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 20 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 17/982,355. Although the claims at issue are not identical, they are not patentably distinct from each other because co-pending independent claim 1 further recites a power component.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 20 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 17/994,293. Although the claims at issue are not identical, they are not patentably distinct from each other because co-pending independent claim 1 further recites a power component.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Choi (2018/0015310) directed towards a portable air purifier and Spence et al. (2023/0310775) directed towards a patient interface for delivery of gas.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RACHEL T SIPPEL whose telephone number is (571)270-1481. The examiner can normally be reached M-F 9:00-5:00 PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Timothy Stanis can be reached at (571) 272-5139. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/RACHEL T SIPPEL/Primary Examiner, Art Unit 3785
