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 .
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(s) 2, 8-9, 12, 14-15 and 17-18 is/are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 7 of U.S. Patent No. 12,070,555. Although the claims at issue are not identical, they are not patentably distinct from each other because all requirements of instant claim 2 are either found within the scope of patent claim 7 or are rendered obvious in view of patent claim 7. For example, patent claim 5 specifies a pair of plugs with the pair of plugs readable as the plurality of sealing formations of instant claim 2. Additionally, the term “plug” in common language implies an object placed into a hole. The plug of patent claim 1 is recited as projecting from the undersurface and sealingly closing the corresponding fill apertures. One of ordinary skill in the art would thus have obviously considered the plugs of patent claim 5 to have an exterior surface configured to engage a surface of the respective fill aperture based upon the functional recitations of the plug in patent claim 1 together with a common understanding of the term “plug.” Finally, patent claim 7 recites the undersurface in the central region [of the sealing closure] as projecting downward relative to a region of the undersurface between the central region and one of the pair of plugs. Thus, the undersurface includes a downward projection which one of ordinary skill in the art would have obviously expected to correspond to a similar projection downward from the upper surface to allow manufacture of the sealing closure with a consistent thickness. Instant claim 2 thus fails to patentably distinguish over patent claim 7. A further mapping of dependent claims is as follows:
Instant claim 8 as obvious in view of limitations in patent claims 1 and 5 – the plugs will obviously be expected to have a diameter, cross sectional profile and shape matching the respective fill aperture in order for each plug to perform its intended sealing function with its respective fill aperture
Instant claim 9 as obvious in view of limitations in patent claims 1 and 5 – each plug will be obviously expected to contact an upstanding region of each fill aperture based upon a common understanding of the term “plug”
Instant claim 12 as obvious in view of limitations in patent claims 1 and 5 – each plug will be obviously expected to frictionally engage each fill aperture based upon a common understanding of the term “plug”
Instant claim 14 vs. limitations in patent claim 5
Instant claim 15 vs. limitations in patent claim 6 – the central region between the pair of plugs obviously implies the plugs are on separate halves of the sealing closure
Instant claim 17 vs. limitations in patent claim 1
Instant claim 18 vs. limitations in patent claim 1 – e.g. the outer periphery is readable as a hand or grip formation
Allowable Subject Matter
Claims 2-19 are allowed over the prior art. Certain claims are only rejected based upon the above nonstatutory double patenting rejection.
The following is an examiner’s statement of reasons for allowance:
Regarding claim 2, the prior art fails to teach or suggest a sealing closure for a humidification chamber including all elements and functionality recited by the instant claim. Specifically, the claim requires a singular sealing closure to include multiple plugs each projecting downwardly and configured to be received in a respective fill aperture. Also, the sealing closure includes a recessed surface extending from the upper surface of the sealing closure.
Many prior art only humidification chambers only include a single fill aperture. Such prior art include: Zollinger (U.S. Pub. 2011/0108028; Figs. 2-4), Humes et al. (U.S. Pub. 2012/0312298; Figs. 2-3), Maurer et al. (U.S. Pub. 2013/0008440; Fig. 4) and Hensman et al. (WO Pub. 2015/174859 A1; Fig. 25). One of ordinary skill in the art would not have considered it prima facie obvious to have modified a humidification chamber with only a single fill aperture to include a pair of fill apertures which are then together sealed by a single sealing closure without improper hindsight reasoning.
It is additionally noted that the terminology “fill aperture” would be clearly understood by one of ordinary skill in the art as an opening of the humidification chamber specifically intended to receive water or other liquid to allow the humidification chamber to perform its intended humidification function. The above mentioned Zollinger teaches locking assembly 72 as including structures fit within gas inlet 46 and gas outlet 48 (Figs. 2-3). However, gas inlet 46 and gas outlet 48 would not be considered by one of ordinary skill in the art as “fill apertures.” And further the locking assembly 72 does not clearly include plugs with an exterior to engage a surface of gas inlet 46 and gas outlet 48, as opposed to the apparently engaging of gas inlet 46 and gas outlet 48 with an interior of the locking assembly 72 (Figs. 2-3).
Some prior art humidification chambers include a pair of fill apertures. Such prior art include: Brown et al. (U.S. Patent 4028444; Fig. 2) and Kat (U.S. Pub. 2015/0202402; Fig. 3). While Brown teaches caps 114, 116 as closing its apertures (Fig. 2) those two caps are clearly separate structures from each other and would not have been obviously combined into the single sealing closure of the instant claim. While Kat variously teaches a pair of fill apertures (e.g. Figs. 2-3, 21B, 27B-28C, 30A & 35) there is no consideration in Kat of sealing of the fill apertures, let alone a consideration of a singular sealing closure to seal both fill apertures.
One further prior art of particular note is Hewson et al. (U.S. Patent 6435180; Figs. 1-2 & 9). Hewson teaches cover 94 as including a pair of depressions 92 which register with depressions 92 in container lid 72 (Figs. 2 & 9). However, depressions 92 in container lid 72 have a closed interior and thus cannot be considered as fill apertures. Instead, the water container 66 of Hewson can only be filled by completely removing container lid 72. Thus, even while the depressions 92 of cover 94 may fit into the depressions 92 in container lid 72 the depressions 92 of cover 94 cannot be accurately read as able to perform the function recited of the plurality of sealing formations of the instant claim, such as preventing vapor and liquid from escaping through the fill apertures, since the depressions 92 in container lid 72 are already sealed against vapor and liquid escaping and do not allow liquid filling. While the fill apertures are not positively recited by the claim, the depressions 92 of cover 94 in Hewson are in no way expected to be capable of sealingly engaging actual fill apertures of a humidification chamber unless someone with hindsight reasoning would have attempted to reconstruct operation of the humidification chamber of Hewson.
It is thus found that one having ordinary skill in the art at the time of the effective filing of the invention would only have arrived at the instantly claimed invention by way of improper hindsight reasoning.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
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.
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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