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 .
Drawings
The drawings are objected to because the lead line for intermediate section 41 in Figs. 4 & 5B appears to be directly too high such that it is directed at the same structure as fluid contacting section 39. (Note by example the different sizes clearly illustrated between the different portions/sections in Figs. 3a-3b which do not appear properly labeled for intermediate section 41 in Figs. 4 & 5B.) 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(s) 55-67 and 73 is/are objected to because of the following informalities:
Claim 55, Ln. 3 recites “body” which should read “a body”
Claim 73, Ln. 2 recites “each comprises” which should read “each comprise”
Appropriate correction is required.
Claim Rejections - 35 USC § 102
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 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 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) 55-56, 58-63 and 68-73 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Gray (U.S. Patent 4957007).
Regarding claim 55, Gray discloses a sensor housing (Figs. 1-3 #12; Col. 3-4) capable of use in a gas flow path, the sensor housing comprising: a body (Figs. 1-3 #12; Col. 3-4) having a longitudinal axis (Fig. 1 vertical through middle of #12); and a first opening (Fig. 1 #14; Col. 2, Ln. 59-67) and a second opening (Fig. 1 #16; Col. 2, Ln. 59-67) provided in the body, the sensor housing being configured to be mounted in the gas flow path such that the first opening faces towards a direction of flow through the gas flow path (Figs. 1-3; Col. 3, Ln. 24-27), and the second opening faces away from the direction of flow through the gas flow path (Figs. 1-3; Col. 3, Ln. 24-27); wherein the body comprises an elliptical portion (Fig. 2 shows #12 as elliptical) when viewed along the longitudinal axis, the elliptical portion being configured to be located in the gas flow path (Figs. 1-2), the first opening and the second opening provided in the elliptical portion (Figs. 1-2) and opposed across the elliptical portion in a direction substantially perpendicular to the longitudinal axis (Figs. 1-2). Note is also made of the additional elliptical sensor housing embodiment of Fig. 7 of Gray (Col. 4, Ln. 26-43), which is similarly readable on the instant claim.
The term “substantially” is understood to only account for minor variations in manufacturing and not to meaningfully change a common understanding of the term perpendicular. The recitation in the preamble of the sensor housing being for use in a gas flow path represents an intended use and is given limited patentable weight (see MPEP 2111.02(II)). The sensor of Gray is intended for use in a fluid flow path (Col. 1) and would thus also be expected to be capable of use in a gas flow path.
Regarding claim 56, Gray discloses the elliptical portion has a length (Fig. 2 horizontal) and a width (Fig. 2 vertical) when viewed along the longitudinal axis, the length being longer than the width (Fig. 2), and wherein the first opening and the second opening are opposed across the length of the elliptical portion (Figs. 1-2).
Regarding claim 58, Gray discloses a base (Fig. 1 #18; Col. 3, Ln. 24-26), the elliptical portion upstanding from the base (Fig. 1), the base being configured to be located outside of the gas flow path when the elliptical portion is located in the gas flow path (Fig. 1 – part of stem 18 is located outside of the flow path). Alternately, Gray discloses a base (Fig. 1 #30; Col. 3, Ln. 38-43), the elliptical portion upstanding from the base (Fig. 1), the base being configured to be located outside of the gas flow path when the elliptical portion is located in the gas flow path (Fig. 1 – part of seal 30 is located outside of the flow path).
Regarding claim 59, Gray discloses the base is substantially oblong when viewed along the longitudinal axis (Col. 3, Ln. 60-64 – stem 18 can have the shape of an ellipse).
The term “substantially” is understood to only account for minor variations in manufacturing and not to meaningfully change a common understanding of the term oblong.
Regarding claim 60, Gray discloses an intermediate portion (Fig. 1 #18; Col. 3, Ln. 24-26) between the base (Fig. 1 #30; Col. 3, Ln. 38-43 – applying the alternate reading of claim 58 above) and the elliptical portion, the intermediate portion being configured to be located in a wall (Fig. 1 #8) defining the gas flow path (Fig. 1), when the elliptical portion is located in the gas flow path.
Regarding claim 61, Gray discloses the intermediate portion is substantially circular (Fig. 2 shows #18 as circular; Col. 3, Ln. 60-64), when viewed along the longitudinal axis.
The term “substantially” is understood to only account for minor variations in manufacturing and not to meaningfully change a common understanding of the term circular.
Regarding claim 62, Gray discloses a first internal flow path (Fig. 1 from #14 to #26) extending from the first opening and a second internal flow path (Fig. 1 from #16 to #28) extending from the second opening, wherein each internal flow path extends in a direction substantially parallel to the longitudinal axis through the sensor housing (Fig. 1 longitudinal flow paths through #18), each internal flow path being configured to communicate with a flow transducer (Fig. 1 #24; Col. 3, Ln. 24-47 – differential pressure is a form of flow measuring), the flow transducer being operative to generate a signal indicative of the flow in the gas flow path, from flow entering the sensor housing through the first opening and the second opening (Fig. 1; Col. 3, Ln. 24-47).
The term “substantially” is understood to only account for minor variations in manufacturing and not to meaningfully change a common understanding of the term parallel.
Regarding claim 63, Gray discloses each internal flow path comprises a portion having parallel walls (Fig. 1 – various parallel walls defining the two flow paths), when the sensor housing is viewed from a direction substantially perpendicular to the longitudinal axis (Fig. 1 view is perpendicular).
The term “substantially” is understood to only account for minor variations in viewing perspective and not to meaningfully change a common understanding of the term perpendicular.
Regarding claim 68, Gray discloses a sensor housing (Figs. 1-3 #12; Col. 3-4) capable of use in a gas flow path, the sensor housing comprising: a sensor body (Figs. 1-3 #12; Col. 3-4), a first channel (Fig. 1 from #14 to #26) in the sensor body comprising a first opening (Fig. 1 #14; Col. 2, Ln. 59-67) and a second opening (Fig. 1 leading out to #26), a second channel (Fig. 1 from #16 to #28) in the sensor body comprising a third opening (Fig. 1 #16; Col. 2, Ln. 59-67) and a fourth opening (Fig. 1 leading out to #28), wherein the sensor housing is configured to be mounted in the gas flow path such that: the first opening faces toward a direction of flow through the gas flow path (Figs. 1-3; Col. 3, Ln. 24-27), the third opening faces away from the direction of flow through the gas flow path (Figs. 1-3; Col. 3, Ln. 24-27), and the second opening and the fourth opening face perpendicular to the direction of flow through the gas flow path (Figs. 1-2). Note is also made of the additional elliptical sensor housing embodiment of Fig. 7 of Gray (Col. 4, Ln. 26-43), which is similarly readable on the instant claim. The recitation in the preamble of the sensor housing being for use in a gas flow path represents an intended use and is given limited patentable weight (see MPEP 2111.02(II)). The sensor of Gray is intended for use in a fluid flow path (Col. 1) and would thus also be expected to be capable of use in a gas flow path.
Regarding claim 69, Gray discloses the sensor body comprises a first end (Fig. 1 bottom of #18), wherein the first end comprises a flat surface (Fig. 1 bottom of #18 is flat), and the second opening and the fourth opening are provided in the flat surface (Fig. 1).
Regarding claim 70, Gray discloses the sensor body comprises a longitudinal axis (Fig. 1 vertical through middle of #12), the sensor body comprising an elliptical portion (Fig. 2 shows #12 as elliptical) when viewed along the longitudinal axis.
Regarding claim 71, Gray discloses the first opening and the third opening are provided in the elliptical portion (Figs. 1-2) and opposed across the elliptical portion in a direction substantially perpendicular to the longitudinal axis (Figs. 1-2).
The term “substantially” is understood to only account for minor variations in manufacturing and not to meaningfully change a common understanding of the term perpendicular.
Regarding claim 72, Gray discloses the first channel and the second channel are configured to communicate with a flow transducer (Fig. 1 #24; Col. 3, Ln. 24-47 – differential pressure is a form of flow measuring), the flow transducer being operative to generate a signal indicative of the flow in the gas flow path (Fig. 1; Col. 3, Ln. 24-47).
Regarding claim 73, Gray discloses the first channel and the second channel each comprise a circular profile of a constant radius (Figs. 1-3 – the horizontal and vertical portions of each flow path are circular and of a constant radius).
Claim(s) 68 and 72-74 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Baecke (U.S. Pub. 2017/0074695).
Regarding claim 68, Baecke discloses a sensor housing (Fig. 5 #22; ¶0044) for use in a gas flow path (¶0044), the sensor housing comprising: a sensor body (Fig. 5 #22, 26; ¶0046), a first channel (Fig. 5 #56; ¶0046) in the sensor body comprising a first opening (Fig. 5 #36; ¶0046) and a second opening (Fig. 5 upper opening out to #56), a second channel (Fig. 5 #66; ¶0046) in the sensor body comprising a third opening (Fig. 5 #46; ¶0046) and a fourth opening (Fig. 5 upper opening out to #66), wherein the sensor housing is configured to be mounted in the gas flow path such that: the first opening faces toward a direction of flow through the gas flow path (Fig. 5; ¶0046), the third opening faces away from the direction of flow through the gas flow path (Fig. 5; ¶0046), and the second opening and the fourth opening face perpendicular to the direction of flow through the gas flow path (Fig. 5). It is noted that the claim does not require the sensor housing to be removable from the gas flow path.
Regarding claim 72, Baecke discloses the first channel and the second channel are configured to communicate with a flow transducer (Fig. 5 #24; ¶0046 – differential pressure is a form of flow measuring), the flow transducer being operative to generate a signal indicative of the flow in the gas flow path (Fig. 5; ¶0046).
Regarding claim 73, Baecke discloses the first channel and the second channel each comprise a circular profile of a constant radius (Figs. 5-6 – the horizontal and vertical portions of each flow path are circular and of a constant radius).
Regarding claim 74, Baecke discloses the sensor housing is for use in a respiratory therapy system configured to deliver a breathable gas flow to a patient (¶0045).
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 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 of this title, 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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under pre-AIA 35 U.S.C. 103(a) are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 57 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gray (U.S. Patent 4957007).
Regarding claim 57, Gray fails to disclose a ratio of the length to the width of the elliptical portion is substantially 2:1. The term “substantially” is understood to only account for minor variations in manufacturing and not to be meaningfully different from a ratio of 2:1. Gray does not discuss any particular dimensions in relation to the embodiment of Figs. 1-3.
However, in relation to the embodiments of Figs. 7-8 Gray discusses that a ratio between elliptical portion length and width is desirably adjusted higher when prioritizing a minimizing of flow disturbance (Fig. 7; Col. 4, Ln. 26-43) and lower when prioritizing a maximizing of pressure differential (Fig. 8; Col. 4, Ln. 44-53). Gray thus teaches that a ratio between elliptical portion length and width is a result effective variable which one ordinary skill in the art would have obviously adjusted based upon whether a minimizing of flow disturbance or a maximizing of pressure differential was desired (see MPEP 2144.05(II)). One of ordinary skill in the art would have considered it prima facie obvious that when desiring to minimize flow disturbance caused by the sensor housing a ratio as presently claimed would have been arrived at during the routine course of experimentation and optimization in view of the adjustable shaping principles taught by Gray.
Claim(s) 67 and 74 is/are rejected under 35 U.S.C. 103 as being unpatentable over Gray (U.S. Patent 4957007) in view of Baecke (U.S. Pub. 2017/0074695).
Regarding claim 67, Gray fails to explicitly disclose the sensor housing is for use in a respiratory therapy system configured to deliver a breathable gas flow to a patient. The recitation of the sensor housing being for use in a respiratory therapy system represents an intended use and is given limited patentable weight (see MPEP 2114).
Baecke teaches a differential pressure (Fig. 5; ¶¶0037, 0043-0046) for use in a respiratory therapy system configured to deliver a breathable gas flow to a patient (¶0045). Baecke teaches a respiratory therapy system as one particular environment in which a pitot tube flow sensor is effective (¶¶0037, 0043-0046).
It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the invention to have specified in Gray the sensor housing is for use in a respiratory therapy system configured to deliver a breathable gas flow to a patient in order to provide the benefit of specifying particular environment in which a pitot tube flow sensor is effective in view of Baecke.
Regarding claim 74, Gray fails to explicitly disclose the sensor housing is for use in a respiratory therapy system configured to deliver a breathable gas flow to a patient. The recitation of the sensor housing being for use in a respiratory therapy system represents an intended use and is given limited patentable weight (see MPEP 2114).
Baecke teaches a differential pressure (Fig. 5; ¶¶0037, 0043-0046) for use in a respiratory therapy system configured to deliver a breathable gas flow to a patient (¶0045). Baecke teaches a respiratory therapy system as one particular environment in which a pitot tube flow sensor is effective (¶¶0037, 0043-0046).
It would have been prima facie obvious to one having ordinary skill in the art before the effective filing date of the invention to have specified in Gray the sensor housing is for use in a respiratory therapy system configured to deliver a breathable gas flow to a patient in order to provide the benefit of specifying particular environment in which a pitot tube flow sensor is effective in view of Baecke.
Allowable Subject Matter
Claim(s) 64-66 is/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.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 64, Gray fails to teach or suggest each internal flow path comprises a portion having inclined walls, when the sensor housing is viewed from a direction substantially perpendicular to the longitudinal axis. The term “substantially” is understood to only account for minor variations in viewing perspective and not to meaningfully change a common understanding of the term perpendicular. The phrasing “inclined walls” means that each internal flow path must have multiple walls which are inclined, since the term “walls” has been recited in plural. Gray only considers a circular flow path and thus does not have multiple internal walls to be inclined.
No other prior art is found readable on claim 55 with its particular claiming of the first and second openings opposed on the elliptical portion and perpendicular to the longitudinal axis of the body of the sensor housing.
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.
Regarding claim 65, Gray fails to teach or suggest each internal flow path comprises a portion having outwardly flared walls, when the sensor housing is viewed from a direction substantially perpendicular to the longitudinal axis, the outwardly flared walls being configured to be located adjacent the flow transducer. The term “substantially” is understood to only account for minor variations in manufacturing and not to meaningfully change a common understanding of the term perpendicular. The phrasing “outwardly flared walls” means that each internal flow path must have multiple walls which are outwardly flared, since the term “walls” has been recited in plural. Gray only considers a circular flow path and thus does not have multiple internal walls to be outwardly flared.
No other prior art is found readable on claim 55 with its particular claiming of the first and second openings opposed on the elliptical portion and perpendicular to the longitudinal axis of the body of the sensor housing.
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.
Regarding claim 66, Gray fails to teach or suggest each opening is recessed from an outer wall of the elliptical portion. Gray only considers orifices 14, 16 as opening at terminal ends of probe body 12 (e.g. Figs. 1-2). There is no consideration in Gray of orifices 14, 16 being recessed from an outer wall of probe body 12. While Gray does teach inward orifices 44, 46 in the embodiment of Figs. 4-6 that embodiment does not include an elliptical portion (e.g. Fig. 5 is rectangular because probe body 42 is cylindrical; Col. 4, Ln. 18-25). Further, one of ordinary skill in the art would not accurately consider orifices 44, 46 as “included in” probe body 42 and thus the orifices of Figs. 4-6 are fully different from the first and second openings of claim 55 which must be included in the elliptical portion.
No other prior art is found readable on claim 55 with its particular claiming of the first and second openings opposed on the elliptical portion and perpendicular to the longitudinal axis of the body of the sensor housing.
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.
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. Regarding claim 68 further attention is specifically drawn to the following prior art which may be read as teaching a sensor housing akin to that recited by claim 68: Kofoed et al. (U.S. Patent 5379650; Figs. 2-5), Heinonen (U.S. Pub. 2002/0116994; Fig. 2), Chen et al. (U.S. Pub. 2006/0229526; Figs. 1-2), Fu et al. (U.S. Pub. 2012/0138058; Fig. 12) and Birch (U.S. Pub. 2018/0259380; Fig. 3).
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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