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 .
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Section 33(a) of the America Invents Act reads as follows:
Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.
Claims 1-2 are rejected under 35 U.S.C. 101 and section 33(a) of the America Invents Act as being directed to or encompassing a human organism. See also Animals - Patentability, 1077 Off. Gaz. Pat. Office 24 (April 21, 1987) (indicating that human organisms are excluded from the scope of patentable subject matter under 35 U.S.C. 101).
Claim 1 recites among other limitations “a mouthpiece body inserted into the mouth of a user…” which positively recites a human being in combination with the apparatus. Suggested correction is to use the phrase “configured to be inserted.”
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Nicholson (US Pat. No. 4,739,987, April 26, 1988).
Regarding claim 1, as broadly interpreted, Nicholson teaches a respiratory muscle strengthening device comprising: a mouthpiece unit 50 (see Fig. 1-2 below); a pressure unit 20 coupled to one side of the mouthpiece unit 10 to control air inhaled from the outside (i.e., where body 20 includes openings 23,25,30 that air flows to regulate inhalation and exhalation resistance with caps 40,60, see Abstract), wherein the mouthpiece unit 50 comprises: a mouthpiece body inserted into the mouth of a user (i.e., end of mouthpiece unit configured for the mouth); a mouthpiece connector 52 of which one end is coupled to an end of the mouthpiece body (see Fig. 1 below and col. 3, lines 41-50) and the other end 51 surrounds at least a portion of the pressure unit to fix the pressure unit 20; and a pressure unit cap 60 (see col. 3, lines 11-22 and Figs. 1-2 below) formed to surround at least a portion of the pressure unit 20.
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Allowable Subject Matter
Claim 2 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 101, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Regarding claim 2, none of the prior art either alone or in combination teach or suggest all the limitations of the preceding and intervening claims and further reciting wherein the mouthpiece unit further comprises a pressure unit connector formed to surround the outer circumferential surface of the pressure unit, and wherein the number of the pressure units is two, and the two pressure units are disposed to be axisymmetric on the basis of a central axis in the longitudinal direction of the pressure unit connector.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW S LO whose telephone number is (571)270-1702. The examiner can normally be reached Mon. - Fri. (9:30 am - 5:30 pm EST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, LoAn Jimenez can be reached at (571) 272-4966. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ANDREW S LO/Primary Examiner, Art Unit 3784
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