DETAILED ACTION
This Office Action is in response to the filing of an amendment to the claims on 1/23/2026. As per the amendment, claims 1, 14-17, and 19 have been amended, claim 20 has been added, and no claims have been cancelled. Thus, claims 1-2 and 4-20 are pending in the application.
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-2 and 4-20 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 lines 19-20, claim 15 lines 4-5, claim 16 lines 24-25, and claim 17 lines 12-13 each recite that the ball sits “flush” against the exactly one opening. However, there is no support for the limitation that the ball sits “flush.” The term “flush” is not used in the specification, and there is no description provided as to how the ball and opening in the interior wall align with one another. Hence, the only source of this limitation comes from Figs. 8 and 8A. However, while the ball does sit in the opening, it cannot be said to strictly be “flush” with said opening. With the understanding that figures are a representation of the claimed invention, and not 1:1 binding depictions thereof, it is unclear whether or not the ball shown is actually flush with the wall. Flush, in this context, is generally understood to mean that there is a continuous plane or unbroken surface being provided. However, the figures appear to have an opening in the interior wall where the ball protrudes out from the opening by some small amount, causing a break in the plane or surface. Based on the provided figures and understanding therefrom, the limitation whereby the ball is “flush” with the interior wall will be met as long as the ball sits in the opening to be held therein, in similar fashion to the provided figures of the claimed invention. Hence, the “flush” nature of the ball is considered new matter.
Any remaining claims are rejected for being dependent on a rejected claim.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 4, 7, 9, 13-20 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Travan (US Pub. 2007/0056587) in view of Ratner (US Pub. 2011/0088696).
Regarding claim 1, Travan discloses a breathing assistance device (defined by continuously positive air pressure device 10 and a system for feeding pressurized oxygen 13, see fig. 1 and the abstract) comprising:
a body (defined by ventilatory support device 10, see fig. 5) having an interior wall (defined by tubular shaped body 15, see fig. 5) defining an interior space (the interior wall 15 is shown to define a hollow interior space, see fig. 5 and para. [0045]);
the interior wall 15 having a narrow end and a wide end (the narrow end and wide end being shown in annotated fig. 5 of Travan below) and having a cross-sectional area that is continuously smaller from the wide end to the narrow end (the interior wall 15 is shown to become continuously smaller going from the wide end to the narrow end near fitting 17, see annotated fig. 5 of Travan below);
a patient connector (defined by delivery fitting 17, see fig. 5) interfaced to the narrow end (the patient connector 17 is shown to be interfaced to the narrow end, see annotated fig. 5 of Travan below, in the same manner as the applicant’s patient connector and narrow end, see fig. 1 of the applicant’s drawings),
said patient connector 17 adapted to be engaged directly with a patient's breathing tract or adapted to be engaged indirectly with a patient's breathing tract (the patient connector 17 is connected to the patient, see para. [0046], such that the patient connector 17 is able to be directly engaged or indirectly engaged with the patient’s breathing tract);
a gas jet (defined by injector 35, see fig. 5; the gas jet 35 receiving pressurized oxygen sources 11/12, see fig. 1 and para. [0055]) having a jet orifice (see annotated fig. 5 of Travan below and para. [0050]) located at the wide end of the interior wall 15 and aimed at the interior space (the jet orifice is shown to be at the wide end of the interior wall 15, due to being near the wide end, as opposed to being near the narrow end or near a middle portion of the interior wall 15, see annotated fig. 5 of Travan below, such that the jet orifice is at the wide end),
the gas jet 35 adapted to be supplied with a gas from a source (defined by pressurized oxygen sources 11/12, see fig. 1) of the gas under pressure (the source 11/12 containing pressurized oxygen, see para. [0055]),
the gas jet 35 directing the gas through said interior space substantially along a central, lengthwise axis (defined by axis X, see fig. 5) of the interior space towards the patient connector 17 (the gas jet 35 is shown to be positioned to direct the gas through the interior space, see annotated fig. 5 of Travan below, the gas being directed along the central lengthwise axis X towards the patient connector 17, see paras. [0052]-[0053]);
whereas the interior wall has exactly one opening (the interior wall 15 is shown to have a discharge opening 30 leading to a filter 70, see fig. 5, which is the singular opening of the interior wall).
Annotated figure 5 of Travan
PNG
media_image1.png
341
751
media_image1.png
Greyscale
Travan lacks a detailed description of whereas the exactly one opening is blocked by a ball, the ball is held against the exactly one opening by a spring, thereby preventing the gas from escaping from the exactly one opening, the ball sits flush against the exactly one opening, thereby reducing turbulence within the interior wall.
However, Ratner teaches a breathing assistance device, where a filter is moved to a proximal end of the device (see [0102] where a filter can be placed over the proximal end 424 in Fig. 4A, to allow for exhalation through the filter), and where the interior wall has a pressure relief valve using a ball and spring (see Fig. 4A where the interior wall (best seen in Fig. 1 substantially as only deflection wall 124 and the section of exterior wall leading to and abutting against safety fins 122 that is integrally formed with the deflection wall 124) has a safety relief valve 402, which is blocked by a ball 416 and spring 418), the ball sitting flush against the exactly one opening thereby reducing turbulence within the interior wall (see Fig. 4A where the ball 416 sits within the opening of the interior wall (main tube outer shell 428) so as to be flush with its interior surface. In light of above 35 U.S.C. 112(a) rejection, it is understood that the ball of Ratner is just as flush with the interior wall as the ball of the claimed invention, and thus at least substantially reduced turbulence by blocking airflow through the opening and being “flush” with the interior wall).
Therefore 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 filter and interior walls of Travan to have the filter at the proximal end and a safety relief valve embedded in the interior wall as taught by Ratner, as it would still provide a filter for filtering air exiting the system, while also providing a safety relief valve to decrease excess pressure in the system (Ratner; see [0081]). It is noted that the side port 432 of Ratner (Fig. 4A), as well as the safety fin insert piece (see Fig. 4A, elements 404, 406, 426) are not included in the modification, as it acts to provide a supplementary gas, which is a function already performed in Travan by the gas jet. Thus, in the modified Travan device, the singular opening of the interior wall of Travan (leading to the filter) is instead a pressure relief valve with a ball and spring, as the filter has been moved.
Regarding claim 4, the modified Travan device has that the interior wall 15 diverges at an angle greater than 0 degrees and less than 8 degrees from the central, lengthwise axis X (Travan; the interior wall 15 diverges at an angle of 4.5 degrees from said central lengthwise axis X, see fig. 5 and para. [0067]).
Regarding claim 7, the modified Travan device has that the narrow end has a cross-sectional area of 63.6 square millimeters (Travan; the narrow end has a diameter, represented by the symbol Ø, of 9 millimeters which, when converted using the area equation area=π*(d/2)^2, gives an cross-sectional area of 63.6 square millimeters, see figure 4b).
Regarding claim 9, the modified Travan device has that the jet orifice is a distance of 46 millimeters from the patient connector 17 (Travan; see para. [0058]).
Regarding claim 13, the modified Travan device has that the patient connector 17 is a respiratory connector (Travan; the patient connector 17 is connected to the patient to allow for respiration of gases, see para. [0046], such that patient connector 17 is a respiratory connector; the patient connector 17 being capable of being fitted with a face mask, for respiratory assistance, see para. [0047], such that the patient connector 17 is a respiratory connector).
Regarding claim 14, the modified Travan device has the patient connector 17, (Travan; see fig. 5), and a discharge opening 30 (Travan; see fig. 5) at a top end of the interior space, (Travan; see para. [0057])
The modified Travan device lacks a detailed description of a manometer in fluid communication directly with the patient connector outside of the interior wall.
However, Ratner further teaches a manometer 128 (see fig. 1; the manometer 128 having the manometer port 438 shown in fig. 4A) in fluid communication directly with an interior space (defined by the hollow space formed by main tube 420, see fig. 4A) of a separate interior wall 428 having a patient connector (defined by distal end 434, see fig. 4A and para. [0100]; the manometer 128 is shown to be downstream of a pressure relief throughhole 408 of a pop-off safety pressure relief valve 402 and in fluid communication with the patient connector 434, see fig. 4A and paras. [0078] and [0099]-[0101]) which is outside of the interior wall (see Fig. 4A where the distal end 434 and main tube 420 are sections that are distal to the interior wall section proximal to main tube outer shell 428 (the inclined section and walls proximal thereto)).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have modified the patient connector of the modified Travan device with a manometer, as further taught by Ratner, for the purpose of providing a visual indication of the gas pressure within the interior of the main tube, see para. [0078] of Ratner.
Regarding claim 15, the modified Travan device has wherein the ball and the spring are a pressure relief valve interfaced to the exactly one opening (Ratner; defined by pop-off safety pressure relief valve 402, see fig. 4A with ball 416 and spring 418) such that, when the pressure relief valve is closed, the exactly one opening is occluded as the ball is held flush against the exactly one opening (see Fig. 4A where the ball 416 sits within the opening of the interior wall (main tube outer shell 428) so as to be flush with its interior surface. In light of above 35 U.S.C. 112(a) rejection, it is understood that the ball of Ratner is just as flush with the interior wall as the ball of the claimed invention, and is in this flush state when the valve is closed) and when the pressure exceeds a predetermined value, the ball leaves the exactly one opening and allows the gas to escape from the body (Ratner; the pressure relief valve 402 uses a ball and spring mechanism that occludes the press relief through hole 408 until a threshold pressure is reached, see paras. [0081]-[0082]).
Regarding claim 16, Travan discloses the breathing assistance device comprising: the body, the interior wall having the wide end and narrow end and cross-sectional area that continuously narrows from the wide end to the narrow end, the patient connector, the central lengthwise axis, the gas jet, the jet orifice, the pressurized gas source and the interior wall being without unblocked openings, as recited in the rejection of claim 1 above.
Travan further discloses that the central lengthwise axis is a longitudinal axis that passes from a center of the narrow end and a center of the wide end (the central lengthwise axis X is shown to pass from the center of the narrow end and pass through the center of the wide end, see fig. 5 and annotated fig. 5 of Travan above);
an opening (defined by discharge opening, see fig. 5) to an atmosphere fluidly interfaced to the breathing assistance device 10/13 in fluid communications with the wide end (the opening 30 to the atmosphere is shown to be in fluid communication with the wide end of the body 10, see annotated fig. 5 of Travan above), thereby allowing exhalation gases to exit to the atmosphere (the opening 30 allows expired gas to be vented to the atmosphere, see para. [0057]);
the interior wall forms a linear angle with the central, longitudinal axis X of greater than 0 degrees and less than 8 degrees (the interior wall 15 diverges at an angle of 4.5 degrees from said central longitudinal axis X, see fig. 5 and para. [0067]);
and whereas the interior wall has exactly one opening (the interior wall 15 is shown to have a discharge opening 30 leading to a filter 70, see fig. 5, which is the singular opening of the interior wall).
Travan lacks a detailed description of whereas the exactly one opening is blocked by a ball, the ball is held against the exactly one opening by a spring, thereby preventing the gas from escaping from the exactly one opening, the ball sits flush against the exactly one opening, thereby reducing turbulence within the interior wall.
However, Ratner teaches a breathing assistance device, where a filter is moved to a proximal end of the device (see [0102] where a filter can be placed over the proximal end 424 in Fig. 4A, to allow for exhalation through the filter), and where the interior wall has a pressure relief valve using a ball and spring (see Fig. 4A where the interior wall (best seen in Fig. 1 substantially as only deflection wall 124 and the section of exterior wall leading to and abutting against safety fins 122 that is integrally formed with the deflection wall 124) has a safety relief valve 402, which is blocked by a ball 416 and spring 418), the ball sitting flush against the exactly one opening thereby reducing turbulence within the interior wall (see Fig. 4A where the ball 416 sits within the opening of the interior wall (main tube outer shell 428) so as to be flush with its interior surface. In light of above 35 U.S.C. 112(a) rejection, it is understood that the ball of Ratner is just as flush with the interior wall as the ball of the claimed invention, and thus at least substantially reduced turbulence by blocking airflow through the opening and being “flush” with the interior wall).
Therefore 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 filter and interior walls of Travan to have the filter at the proximal end and a safety relief valve embedded in the interior wall as taught by Ratner, as it would still provide a filter for filtering air exiting the system, while also providing a safety relief valve to decrease excess pressure in the system (Ratner; see [0081]). It is noted that the side port 432 of Ratner (Fig. 4A), as well as the safety fin insert piece (see Fig. 4A, elements 404, 406, 426) are not included in the modification, as it acts to provide a supplementary gas, which is a function already performed in Travan by the gas jet. Thus, in the modified Travan device, the singular opening of the interior wall of Travan (leading to the filter) is instead a pressure relief valve with a ball and spring, as the filter has been moved.
Regarding claim 17, Travan discloses the breathing assistance device comprising: the body, the interior wall having the wide end and narrow end and cross-sectional area that continuously narrows from the wide end to the narrow end, the patient connector, the central lengthwise axis, the gas jet, the jet orifice and the pressurized gas source and the interior wall being without unblocked openings, as recited in the rejection of claim 1 above.
Travan further discloses a method of providing airflow from the gas of the breathing device 10/13 (gas is delivered from the source 11/12 to be delivered to the patient, see paras. [0052]-[0053] and [0055]), the breathing device 10/13 having the body 10 that is hollow defined by interior walls (the interior walls including interior wall 15, see fig. 5, and the interior walls of intake fitting 16 and patient connector 17, see fig. 5), the method comprising:
expelling the gas from the gas jet 35 into the interior space at the wide end of the interior space and aimed toward the narrow end of the interior space (the gas jet being shown to be at the wide end and aimed toward the narrow end, see annotated fig. 5 of Travan above, the gas from the jet orifice being directed along the central lengthwise axis X towards the patient connector 17, see paras. [0052]-[0053]),
a cross-sectional area of the interior space decreasing linearly from the wide end of the body 10 to the narrow end of the body 10 (the interior wall 15, of the interior walls, is shown to have the interior space, see annotated fig. 5 of Travan above, the interior space having the cross-sectional area which becomes linearly smaller going from the wide end to the narrow end near the patient connector 17, see annotated fig. 5 of Travan above);
the interior wall 15 surrounding the interior space (the interior wall 15 is shown to envelope, to surround, the interior space, see figs. 3 and 5);
providing a flow of the gas from the narrow end of the body 10 to a patient through a direct or indirect patient interface (the patient connector 17 is connected to the patient, see para. [0046], the patient connector 17 also being capable of being connected to a face mask to deliver the flow of gas to the patient, see para. [0047]);
and exactly one opening in the interior wall (the interior wall 15 is shown to have a discharge opening 30 leading to a filter 70, see fig. 5, which is the singular opening of the interior wall).
Travan discloses all the structure and steps of the method as claimed including increasing gas flow in response to instantaneous high inspiration flows (see para. [0131]), and using a mixer 55, which mixes oxygen and air delivered from sources 11/12, to deliver a predetermined flow rate of air to the gas jet 35 (see fig. 1 and paras. [0078] and [0091]), and, therefore, discloses that the method is for increasing airflow of the gas from the breathing device 10/13 with a given gas volume input.
Travan lacks a detailed description of whereas the exactly one opening is blocked by a ball, the ball is held against the exactly one opening by a spring, thereby preventing the gas from escaping from the exactly one opening, the ball sits flush against the exactly one opening, thereby reducing turbulence within the interior wall.
However, Ratner teaches a breathing assistance device, where a filter is moved to a proximal end of the device (see [0102] where a filter can be placed over the proximal end 424 in Fig. 4A, to allow for exhalation through the filter), and where the interior wall has a pressure relief valve using a ball and spring (see Fig. 4A where the interior wall (best seen in Fig. 1 substantially as only deflection wall 124 and the section of exterior wall leading to and abutting against safety fins 122 that is integrally formed with the deflection wall 124) has a safety relief valve 402, which is blocked by a ball 416 and spring 418), the ball sitting flush against the exactly one opening thereby reducing turbulence within the interior wall (see Fig. 4A where the ball 416 sits within the opening of the interior wall (main tube outer shell 428) so as to be flush with its interior surface. In light of above 35 U.S.C. 112(a) rejection, it is understood that the ball of Ratner is just as flush with the interior wall as the ball of the claimed invention, and thus at least substantially reduced turbulence by blocking airflow through the opening and being “flush” with the interior wall).
Therefore 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 filter and interior walls of Travan to have the filter at the proximal end and a safety relief valve embedded in the interior wall as taught by Ratner, as it would still provide a filter for filtering air exiting the system, while also providing a safety relief valve to decrease excess pressure in the system (Ratner; see [0081]). It is noted that the side port 432 of Ratner (Fig. 4A), as well as the safety fin insert piece (see Fig. 4A, elements 404, 406, 426) are not included in the modification, as it acts to provide a supplementary gas, which is a function already performed in Travan by the gas jet. Thus, in the modified Travan device, the singular opening of the interior wall of Travan (leading to the filter) is instead a pressure relief valve with a ball and spring, as the filter has been moved.
Regarding claim 18, the modified Travan device has that an area (Travan; defined by the area formed by the wide end and narrow end of interior wall 15, see annotated fig. 5 of Travan above) within the interior walls of the body 10 forms a frustrum (Travan; the interior wall 15, of the interior walls, is shown to be conical and has an apical part, the narrow end, that is left when a cone or pyramid is cut by a plane parallel to the base and the apical part is removed giving it a frustum shape, see fig. 5 and para. [0076]).
Regarding claim 19, the modified Travan device has wherein exactly one opening, the spring, and the ball form a pressure relief valve (Ratner; defined by pop-off safety pressure relief valve 402, see fig. 4A with ball 416 and spring 418) such that the ball unblocks the exactly one opening when a gas pressure from within the body increases to a point that overcomes a force of the spring (Ratner; the pressure relief valve 402 uses a ball and spring mechanism that occludes the press relief through hole 408 until a threshold pressure is reached, see paras. [0081]-[0082]).
Regarding claim 20, the modified Traven device has the interior wall.
The modified Traven device lacks a detailed description of a manometer, the manometer in fluid communication with the patient connector outside of the interior wall, the manometer measuring fluid pressure at the patent connector so as to reduce turbulence within the interior wall.
However, Ratner further teaches a manometer 128 (see fig. 1; the manometer 128 having the manometer port 438 shown in fig. 4A) in fluid communication directly with an interior space (defined by the hollow space formed by main tube 420, see fig. 4A) of a separate interior wall 428 having a patient connector (defined by distal end 434, see fig. 4A and para. [0100]; the manometer 128 is shown to be downstream of a pressure relief throughhole 408 of a pop-off safety pressure relief valve 402 and in fluid communication with the patient connector 434, see fig. 4A and paras. [0078] and [0099]-[0101]) which is outside of the interior wall (see Fig. 4A where the distal end 434 and main tube 420 are sections that are distal to the interior wall section proximal to main tube outer shell 428 (the inclined section and walls proximal thereto)), so as to reduce turbulence within the interior wall (see Figs. 1 and 4A where the manometer 128 is distal to and not part of the interior wall section, and thus reduces turbulence by being distal to the interior wall section so as to not interfere with airflow there).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have modified the patient connector of the modified Travan device with a manometer, as further taught by Ratner, for the purpose of providing a visual indication of the gas pressure within the interior of the main tube, see para. [0078] of Ratner.
Claim 2 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Travan in view of Ratner as applied to claim 1 above, and further in view of Giroux (7,905,229).
Regarding claim 2, the modified Travan device has that the cross-sectional area of the interior wall has a conical shape, (Travan; see fig. 5),
The modified Travan device lacks a detailed description of the cross-sectional area having a square cross-sectional shape or a hexagonal cross-sectional shape.
However, Giroux teaches that an interior wall 60B (defined by first interface portion 60B, see fig. 13) is substantially a square cross-sectional shape (the interior wall 60B is shown to have a hollow interior which can be pyramidal shaped, see col. 33 line 52 to col. 34 line 2).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have modified the inside wall of the modified Travan device to have a square cross-sectional shape, as taught by Giroux, for the purpose of allowing a larger concentration of respirable gas to enter the wide end of the inside wall, since the modified Travan interior wall would perform equally well in delivering gas to the patient and since such a modification would have involved a mere change in the form or shape of a component. A change in form or shape is generally recognized as being within the level of ordinary skill in the art.
Claims 5-6 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Travan in view of Ratner as applied to claim 1 above, and further in view of Duquette (2010/0252044).
Regarding claim 5, the modified Travan device has that said interior wall 15 (Travan; see fig. 5) diverges at an angle of 4.5 degrees from said central, lengthwise axis X, (Travan; see para. [0067]).
The modified Travan device lacks a detailed description of the angle is greater than 3 degrees and less than 4 degrees.
However, Duquette teaches that an interior wall diverges at an angle of approximately 4 degrees from a central axis, (see fig. 4 and para. [0029]).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have modified the angle of the modified Travan device’s interior wall to diverge at an angle of less than 4 degrees, as taught by Duquette, for the purpose of improving the airflow efficiency of the inside wall, see paras. [0029]-[0030] of Duquette, and since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Regarding claim 6, the modified Travan device discloses that said interior wall diverges at an angle of 4 degrees from the central, lengthwise axis (Duquette; see fig. 4 and para. [0029], and wherein discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233).
Claim 8 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Travan in view of Ratner as applied to claim 1 above, and further in view of Wondka (2005/0066976).
Regarding claim 8, the modified Travan device has that the narrow end has a cross-sectional area of 63.6 square millimeters, (Travan; see fig. 4b)
The modified Traven device lacks a detailed description of the narrow end having a cross-sectional area of 95 square millimeters.
However, Wondka teaches that a patient end opening 32 (see fig. 3) has a cross-sectional area of approximately 95 square millimeters (the patient end opening 32 has a diameter of 11 millimeters which, when converted using the area equation area=π*(d/2)^2, gives an cross-sectional area of 95 square millimeters, see para. [0102]).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have modified Travan device’s narrow end to be 95 square millimeters, as taught by Wondka, for the purpose of allowing the narrow end to be sized for adults, see para. [0102] of Wondka, and since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Claim 10 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Travan in view of Ratner as applied to claim 1 above.
Regarding claim 10, the modified Travan device has that the jet orifice is a distance of 46 millimeters from the patient connector 17, (Travan; see para. [0058]).
The modified Travan device lacks a detailed description of the distance being 47 millimeters.
However, as Travan discloses that the distance from the jet orifice to the patient connector 17 is 46 millimeters, (see fig. 5 and para. [0058]), it would have been an obvious matter of design choice to modify the distance between Travan’s patient connector and jet orifice to be a distance of 47 millimeters, since such a modification would have involved a mere change in the form or shape of a component. A change in form or shape is generally recognized as being within the level of ordinary skill in the art.
Claims 11-12 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Travan in view of Ratner as applied to claim 1 above, and further in view of Kapust (2010/0252041).
Regarding claims 11-12, the modified Travan discloses the jet orifice, see annotated fig. 5 above and para. [0050].
The modified Travan device lacks a detailed description of the jet orifice having a diameter of between 0.5 and 1.0 millimeters, where the jet orifice has a diameter of 0.65 millimeters.
However, Kapust teaches that a jet orifice has a diameter of approximately 65 millimeters (the jet orifice has an inner diameter in a preferred range of 0.05-1.75 millimeters, see page 24 table 3 and paras. [0293]-[0294]).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to have modified Travan device’s jet orifice to have a diameter of 0.65 millimeters, as taught by Kapust, for the purpose of allowing the jet nozzle to be of a size which conforms to the shape of the patient’s air passage, see para. [0293] of Kapust, and since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233.
Response to Arguments
Applicant's arguments filed 1/23/2026 have been fully considered but they are not persuasive. Applicant’s arguments are largely noting the amendments to the claims, and that the Travan in view of Ratner rejection lacks the amended claim limitations. The arguments are not well-taken. As seen in the above rejection, it is held that Ratner does broadly have the amended claim limitations. First, there is a 112(a) new matter rejection for the term “flush” as it is not wholly supported. Examiner notes that Ratner does have a ball sitting flush with an interior wall (and the modification ahs been clarified to note that the internal fin section of Ratner is not included in the modified Traven device). Hence, the ball of Ratner is understood to sit as flush as the claimed invention’s ball. Additionally, the manometer limitation is also lacking. Looking at claim 20, Ratner does have a manometer that fluidly connected to a patient connector (distal end at 434 in Fig. 4A), the manometer and its port sitting distal to the interior wall section (where in Ratner Fig. 4A, the interior wall section is the inclined surface and wall section proximal thereto, such that the manometer port 438 is distal thereto and not directly connected to the interior wall). As the manometer is not placed within the interior wall section, it does not contribute to turbulence, thus reducing the theoretical turbulence within the interior wall were it to be placed there. Examiner notes that the manometer is claimed so as to be aligned with the interior wall, nor does the sampling port of the manometer run is the same flow direction as the incoming gases
Thus, for the reasons above, the rejections hold.
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 MATTHEW D ZIEGLER whose telephone number is (571)272-3349. The examiner can normally be reached Mon-Fri 10:00-6:00.
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.
/MATTHEW D ZIEGLER/Examiner, Art Unit 3785
/TIMOTHY A STANIS/Supervisory Patent Examiner, Art Unit 3785