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 .
Response to Amendment
This office action is responsive to the amendment filed on February 12, 2026. As directed by the amendment: claims 1, 7-8, 13, 18, and 22 have been amended, claims 2-4 and 24 have been canceled, and no new claims. Thus, claims 1, 5-11, 13-23, and 25-28 are presently pending in the application.
Response to Arguments
Applicant argues on page 9-11 of the remarks that the 103-rejection of Gerlach is improper. However, Applicant amended the claim to add new limitation “an axis of the intake port of the blower is perpendicular to an axis of the gas inlet, the axis of the gas inlet is perpendicular to an axis of the opening of the second chamber, the gas inlet is provided below the gas outlet,” that was not previously considered. Applicant has amended the claims and a new 103 rejection stated below addresses the new limitation of the claim.
Applicant’s arguments with respect to claim(s) 7, 13, and 23 have been considered but are moot because the new ground of rejection is given.
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.
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: “transitional component” in Claim 17. The language “transitional component” is read as generally the same as “component that connects two pieces”.
The corresponding structure for the “transitional component” is best understood from the specification as at least: there is a transitional component 5 between the gas outlet 22 and the exhaust port 42 of the blower 4 that connects them and prevents air leaks (as shown in Fig. 6).
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.
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, 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 text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1, 5-6, 8-11, 14-19, and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Frater et al. (US 20200018324 A1), hereafter as Frater.
Regarding Claim 1, Frater discloses a noise-reducing air passage device (Fig. 4A-4B) for use in a respiratory machine having a horizontal plane and a vertical direction, configured to pressurize gas and provide the pressurized gas to a patient's airway (This limitation is functional; Fig. 4A-4B; para. 0065-0066) , the noise-reducing air passage device comprising:
a blower (Fig. 4A; 202) including an intake port (Fig. 4A; 212) and an exhaust port (Fig. 4A; 214), configured to generate a flow of the pressurized gas (this limitation is functional the blow is configured to generate a flow);
a housing (Fig. 4A-4B; 200) including a gas inlet (Fig. 4A; 220) configured to receive breathable gas (This limitation is functional), a gas outlet (Fig. 4A; 230) configured to allow the pressurized gas to flow out (this limitation is functional; para. 0065), an inner wall (inside of 210), and an outer wall (outside of 210), wherein the gas inlet and the gas outlet are at different heights (Fig. 4A-4B, 220 and 230 are at different heights); and
a gas passage (where the air flows from 220 to out of 230), a space surrounded by the inner wall of the housing (210), configured to allow the breathable gas to flow through (this limitation is functional),
wherein the gas passage forms at least two chambers within the inner wall (the chamber outside the blower and a chamber beside the blower separate by 228), including a first chamber (in 210) and a second chamber (in 228) that are connected via an opening of the second chamber (Examiner notes: they are connected to allow the flow of air from one of the chambers to the another), the blower being located in the first chamber (in 210), and wherein an outlet pipe is provided at the gas outlet (Fig. 4A; 230 has a pipe), and the outlet pipe is configured to connect to the gas outlet and communicate with the exhaust port of the blower (Fig. 4A-4B; 214 is connected to 230),
the first chamber and the second chamber overlap in the vertical direction (the chamber 210 and the chamber inside of 228 overlap in vertical direction),
an axis of the intake port of the blower (212) is perpendicular to an axis of the gas inlet (220)
the axis of the gas inlet (220) is perpendicular to an axis of the opening of the second chamber (the opening into the second chamber is the inlet of the blower 214),
the gas inlet is provided below the gas outlet (Fig. 4A-4B; 220 is below 230) and the gas passage does not include foam (para. 0065-0066; no foam is mentioned).
Frater does not disclose a total volume of the first chamber and the second chamber is more than three times a volume of the blower; a distance between the intake port of the blower and the opposing inner wall of the housing is greater than 5 mm.
However, one of ordinary skill in the art viewing Fig. 4A of Frater would have considered it prima facie obvious that blower 212 is shown as occupying less than a third of the interior space of housing 210; thus, the illustration in Fig. 4A-4B of Frater would have obviously suggested the required proportionality of the claim relating total volume of the first chamber and the second chamber is more than three times a volume of the blower.
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 Frater a total volume of the first and second chambers is more than 3 times a volume of the blower based upon how the illustration in Fig. 4A-4B is obviously suggestive of this proportionality. Though prior art drawings are not interpreted as depicting scale, unless specified, drawings can be relied upon for what they would reasonably teach one of ordinary skill in the art (MPEP 2125).
Modified Frater does not specifically disclose a distance between the intake port of the blower and the opposing inner wall of the housing is greater than 5 mm.
It would have been obvious as to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the enclosure of Frater to have the enclosure a distance between the intake port of the blower and the opposing inner wall of the housing is greater than 5 mm. Applicant places no criticality on one particular size of the enclosure (page 16 of applicant' s specification indicate the claimed range however no significance to one size over another is present). Modifying Frater to have the claimed dimensions would not have adverse effects on the performance of the device and thus the changing dimensions would not destroy the device. The courts have held that, “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device”. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
Regarding Claim 5, Modified Frater discloses the noise-reducing air passage device according to claim 1, wherein an inlet pipe (at 220) is provided at the gas inlet (Fig. 4A; 220), and the inlet pipe is configured to connect to the housing (connected to the housing 200) and
Modified Frater does not include a taper.
However, Frater teaches intake area 7 can have a varying internal diameter shapes (Fig. 4A-4B), which one of ordinary skill in the art would have considered obviously suggestive of a tapered design (para. 0061).
Therefore, due to an absence of the limitations of including a taper, it would be obvious to one of ordinary skill in the art, assuming the broadest interpretation of both the prior art and the instant claim, that gas intake area having a varying shapes would reasonably encompass the absent limitation of the tapered design.
Regarding Claim 6, Modified Frater discloses the noise-reducing air passage device according to claim 1, wherein the housing (Fig. 4A-4B; 200) forms a part of the respiratory machine (para. 0065-0066; Fig. 9).
Regarding Claim 8, Frater discloses a noise-reducing air passage device (Fig. 4A-4B) for use in a respiratory machine having a horizontal plane and a vertical direction, configured to pressurize gas and provide the pressurized gas to a patient's airway (This limitation is functional; Fig. 4A-4B; para. 0065-0066) , the noise-reducing air passage device comprising:
a blower (Fig. 4A; 202) including an intake port (Fig. 4A; 212) and an exhaust port (Fig. 4A; 214), configured to generate a flow of the pressurized gas (this limitation is functional the blow is configured to generate a flow);
a housing (Fig. 4A-4B; 200) including a gas inlet (Fig. 4A; 220) configured to receive breathable gas (This limitation is functional), a gas outlet (Fig. 4A; 230) configured to allow the pressurized gas to flow out (this limitation is functional; para. 0065), an inner wall (inside of 210), and an outer wall (outside of 210);
a gas passage (where the air flows from 220 to out of 230), a space surrounded by the inner wall of the housing (210), configured to allow the breathable gas to flow through (this limitation is functional),
wherein the gas passage forms at least two chambers within the inner wall (the chamber outside the blower and a chamber beside the blower separate by 228), including a first chamber (in 210) and a second chamber (in 228) that are connected via an opening of the second chamber (Examiner notes: they are connected at the inlet 212 to allow the flow of air from one of the chambers to the another), the blower being located in the first chamber (in 210), and wherein an outlet pipe is provided at the gas outlet (Fig. 4A; 230 has a pipe), and the outlet pipe is configured to connect to the gas outlet and communicate with the exhaust port of the blower (Fig. 4A-4B; 214 is connected to 230),
the outlet pipe has at least one of the following characteristics:
the outlet pipe includes at least one section of a wall that is coaxial with an axis of the exhaust port of the blower (Fig. 4A; 230 is coaxial with 214); and b
the first chamber and the second chamber overlap in the vertical direction (the chamber 210 and the chamber inside of 228 overlap in vertical direction),
an axis of the intake port of the blower (212) is perpendicular to an axis of the gas inlet (220)
the axis of the gas inlet (220) is perpendicular to an axis of the opening of the second chamber (the opening into the second chamber is the inlet of the blower 214),
the gas passage does not include foam (para. 0065-0066; no foam is mentioned). and an airflow path has at least one staggered section when viewed from a top view (Fig. 4B shows that the airflow is staggered).
Frater does not disclose a total volume of the first chamber and the second chamber is more than three times a volume of the blower; a distance between the intake port of the blower and the opposing inner wall of the housing is greater than 5 mm.
However, one of ordinary skill in the art viewing Fig. 4A of Frater would have considered it prima facie obvious that blower 212 is shown as occupying less than a third of the interior space of housing 210; thus, the illustration in Fig. 4A-4B of Frater would have obviously suggested the required proportionality of the claim relating total volume of the first chamber and the second chamber is more than three times a volume of the blower.
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 Frater a total volume of the first and second chambers is more than 3 times a volume of the blower based upon how the illustration in Fig. 4A-4B is obviously suggestive of this proportionality. Though prior art drawings are not interpreted as depicting scale, unless specified, drawings can be relied upon for what they would reasonably teach one of ordinary skill in the art (MPEP 2125).
Modified Frater does not specifically disclose a distance between the intake port of the blower and the opposing inner wall of the housing is greater than 5 mm.
It would have been obvious as to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the enclosure of Frater to have the enclosure a distance between the intake port of the blower and the opposing inner wall of the housing is greater than 5 mm. Applicant places no criticality on one particular size of the enclosure (page 16 of applicant' s specification indicate the claimed range however no significance to one size over another is present). Modifying Frater to have the claimed dimensions would not have adverse effects on the performance of the device and thus the changing dimensions would not destroy the device. The courts have held that, “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device”. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
Regarding Claim 9, Modified Frater discloses the noise-reducing air passage device according to claim 8, wherein the outlet pipe (at 230) includes at least one section of the wall near the exhaust port of the blower (214) that is coaxial with the axis of the exhaust port of the blower (Fig. 4A-4B; 214).
Modified Frater does not specifically disclose a length of the at least one section of the wall is at least 6 mm.
It would have been obvious as to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the enclosure of Frater to have the enclosure a length of the at least one section of the wall is at least 6 mm. Applicant places no criticality on one particular size of the enclosure (page 21 of applicant' s specification indicate the claimed range however no significance to one size over another is present). Modifying Frater to have the claimed dimensions would not have adverse effects on the performance of the device and thus the changing dimensions would not destroy the device. The courts have held that, “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device”. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
Regarding Claim 10, Modified Frater discloses the noise-reducing air passage device according to claim 8, wherein an inlet pipe is provided at the gas inlet (Fig. 4A-4B; the pipe is provided at 220).
Regarding Claim 11, Modified Frater discloses the noise-reducing air passage device according to claim 8,
Frater does not specifically disclose wherein distances from a center of the intake port of the blower to four sides of the inner wall of the housing are approximately equal.
However, since it has been held by the courts that, where the only difference between the prior art and the claims was a recitation of relative shape dimensions of the claimed device wherein distances from a center of the intake port of the blower to four sides of the inner wall of the housing are approximately equal and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. [MPEP 2144.04, I. Aesthetic Design Changes].
Regarding Claim 14, Modified Frater discloses the noise-reducing air passage device according to claim 8, wherein the housing (Fig. 4A-4B; 200) forms a part of the respiratory machine (para. 0065-0066; Fig. 9).
Regarding Claim 15, Frater discloses a noise-reducing air passage device (Fig. 4A-4B) for use in a respiratory machine having a horizontal plane and a vertical direction, configured to pressurize gas and provide the pressurized gas to a patient's airway (This limitation is functional; Fig. 4A-4B; para. 0065-0066) , the noise-reducing air passage device comprising:
a blower (Fig. 4A; 202) including an intake port (Fig. 4A; 212) and an exhaust port (Fig. 4A; 214), configured to generate a flow of the pressurized gas (this limitation is functional the blow is configured to generate a flow);
a housing (Fig. 4A-4B; 200) including a gas inlet (Fig. 4A; 220) configured to receive breathable gas (This limitation is functional), a gas outlet (Fig. 4A; 230) configured to allow the pressurized gas to flow out (this limitation is functional; para. 0065), an inner wall (inside of 210), and an outer wall (outside of 210), and
a gas passage (where the air flows from 220 to out of 230), a space surrounded by the inner wall of the housing (210), configured to allow the breathable gas to flow through (this limitation is functional),
wherein the gas passage forms at least two chambers within the inner wall (the chamber outside the blower and a chamber beside the blower separate by 228), including a first chamber (in 210) and a second chamber (in 228) that are connected via an opening of the second chamber (Examiner notes: they are connected to allow the flow of air from one of the chambers to the another), the blower being located in the first chamber (in 210),
wherein an inlet pipe is provided at the gas inlet (Fig. 4A-4B; at 220), configured to include an intake end connectable to the housing and an outlet end to discharge the breathable gas (into the housing 200), wherein the inlet pipe has at least one of the following characteristics:
the first chamber and the second chamber overlap in the vertical direction (the chamber 210 and the chamber inside of 228 overlap in vertical direction),
an axis of the intake port of the blower (212) is perpendicular to an axis of the gas inlet (220)
the axis of the gas inlet (220) is perpendicular to an axis of the opening of the second chamber (the opening into the second chamber is the inlet of the blower 214),
the gas inlet is provided below the gas outlet (Fig. 4A-4B; 220 is below 230) and the gas passage does not include foam (para. 0065-0066; no foam is mentioned). and an airflow path has at least one staggered section when viewed from a top view (Fig. 4B shows that the airflow is staggered).
The recitation in the preamble of the device being noise-reducing represents an intended functionality and is given limited patentable weight (MPEP 2111.02).
Frater does not disclose a total volume of the first chamber and the second chamber is more than three times a volume of the blower; a distance between the intake port of the blower and the opposing inner wall of the housing is greater than 5 mm. or that a. a straight-line distance from a center of the outlet end of the inlet pipe to a center of the intake port of the blower being between 35 mm to 150 mm.
However, one of ordinary skill in the art viewing Fig. 4A of Frater would have considered it prima facie obvious that blower 212 is shown as occupying less than a third of the interior space of housing 210; thus, the illustration in Fig. 4A-4B of Frater would have obviously suggested the required proportionality of the claim relating total volume of the first chamber and the second chamber is more than three times a volume of the blower.
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 Frater a total volume of the first and second chambers is more than 3 times a volume of the blower based upon how the illustration in Fig. 4A-4B is obviously suggestive of this proportionality. Though prior art drawings are not interpreted as depicting scale, unless specified, drawings can be relied upon for what they would reasonably teach one of ordinary skill in the art (MPEP 2125).
Modified Frater does not specifically disclose a distance between the intake port of the blower and the opposing inner wall of the housing is greater than 5 mm.
It would have been obvious as to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the enclosure of Frater to have the enclosure a distance between the intake port of the blower and the opposing inner wall of the housing is greater than 5 mm. Applicant places no criticality on one particular size of the enclosure (page 16 of applicant' s specification indicate the claimed range however no significance to one size over another is present). Modifying Frater to have the claimed dimensions would not have adverse effects on the performance of the device and thus the changing dimensions would not destroy the device. The courts have held that, “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device”. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
Modified Frater does not specifically disclose a straight-line distance from a center of the outlet end of the inlet pipe to a center of the intake port of the blower being between 35mm to 150mm.
However, it would have been obvious as to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the enclosure of Frater to have the enclosure a straight-line distance from a center of the outlet end of the inlet pipe to a center of the intake port of the blower being between 35mm to 150mm, Applicant places no criticality on one particular size of the enclosure (page 19 of applicant' s specification indicate the claimed range however no significance to one size over another is present). Modifying Frater to have the claimed dimensions would not have adverse effects on the performance of the device and thus the changing dimensions would not destroy the device. The courts have held that, “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device”. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).\
Regarding Claim 16, Frater discloses the noise-reducing air passage device according to claim 15, wherein the inlet pipe (at 220) is provided at an edge portion of the gas passage (Fig. 4A-4B).
Regarding Claim 17, Frater discloses noise-reducing air passage device according to claim 15, wherein a transitional component (the membrane of 228) is provided between the gas outlet and the exhaust port of the blower (Fig. 4A-4B; 214), and is configured to connect the two and prevent gas leakage (Examiner notes: this limitation is functional; the pipe connects the two to “prevent” gas leakage).
Regarding Claim 18, Modified Frater discloses the noise-reducing air passage device according to claim 15, further comprising a wall that isolates the first chamber from the second chamber (membrane 228), and wherein the wall includes the opening of the second chamber, which is configured to communicate with the intake port of the blower (Fig. 4A-4B; 212).
Regarding Claim 19, Modified Frater discloses the noise-reducing air passage device according to claim 15, wherein an axis of the gas outlet (Fig. 4A-4B; 230) is not located on a horizontal plane of an axis of the inlet pipe (Fig. 4A-4B; 220).
Regarding Claim 21, Modified Frater discloses the noise-reducing air passage device according to claim 15, wherein the housing (Fig. 4A-4B; 200) forms a part of the respiratory machine (para. 0065-0066; Fig. 9).
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Frater, as applied to claim 1, in view of Mazzone (US 20230398318 A1).
Regarding Claim 7, Modified Frater discloses the noise-reducing air passage device according to claim 1,
Frater does not disclose wherein the housing of the noise-reducing air passage device includes at least one material selected from the group consisting of polypropylene, polycarbonate, polyethylene terephthalate glycol-modified-1,4-cyclohexanedimethanol ester, polyamide, and polyether ether ketone.
However, Mazzone teaches that housing is made from polycarbonate (para. 0270).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the material of Frater to include the polycarbonate as taught by Mazzone for the purpose of having a material that is “hard” and cannot be deformed easily and it is rigid, these materials are commonly known in the art.
Claim(s) 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Frater, as applied to claim 8, in view of Chen et al. (US 20240207545 A1), hereafter as Chen.
Regarding Claim 13, Modified Frater discloses the noise-reducing air passage device according to claim 8,
Frater does not specifically disclose wherein the outlet pipe includes at least one material selected from the group consisting plastic, silicone, rubber, thermoplastic elastomer, thermoplastic polyurethane, and fluororubber However, Chen teaches the uses of silicone (0046, 0050).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the outlet pipe of Frater to include the silicone as taught by Chen for the purpose of reducing the overall weight of the noise reduction box and it has a good sealing role. Also, silicone or rubber has impact resistance property and resilience (para. 0046, 0050).
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Frater, as applied to claim 15, in view of Gerlach (US 20240358943 A1).
Regarding Claim 20, Modified Frater discloses the noise-reducing air passage device according to claim 15,
Modified Frater does not disclose specifically wherein the noise- reducing air passage device does not contain any components made from polymer foaming materials.
However, Gerlach teaches wherein the noise-reducing air passage device does not contain any components made from polymer foaming materials (para. 0012).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the device of Frater to include the noise-reducing air passage device does not contain any components made from polymer foaming materials as taught by Gerlach as it is known in the art that these device can be form and fleece free (para. 0012).
Claim(s) 22 and 25-28 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wickham et al. (US 20040000310 A1), hereafter as Wickham.
Regarding Claim 22, Wickham discloses a noise-reducing air passage device for use in a respiratory machine having a horizontal plane and a vertical direction (Fig. 1), configured to pressurize gas and provide the pressurized gas to a patient's airway (This limitation is functional), the noise-reducing air passage device comprising:
a blower (Fig. 1; 22) including an intake port (Fig. A below, “A”) and an exhaust port (Fig. A below; “B”), configured to generate a flow of the pressurized gas (this limitation is functional; para. 0046-0050);
a housing (Fig. 1; 10) including a gas inlet (Fig. 1; 16) configured to receive breathable gas (This limitation is functional), a gas outlet (Fig. 1; 18) configured to allow the pressurized gas to flow out (through Fig. 1; 20), an inner wall (Inside of 12), and an outer wall (outside of 12), wherein the gas inlet and the gas outlet are at different heights (16 and 18 are at different heights); and
a gas passage (the arrows 28), a space surrounded by the inner wall of the housing (Fig. 1), configured to allow the breathable gas to flow through (This limitation is functional; Fig. 1), wherein the gas passage forms at least two chambers within the inner wall (Fig. 1, 14 and part of 31), including a first chamber (Fig. 1; 14) and a second chamber that are connected via an opening of the second chamber (Fig. A below; “C”), the blower being located in the first chamber (Fig. 1; the blower is in 14),
wherein an inlet pipe (Fig. 1; at 16) is provided at the gas inlet (Fig. 1), configured to include an intake end connectable to the housing and an outlet end to discharge the breathable gas (para. 0046-0050),
gas inlet and the gas outlet are not on a same wall (Fig. 1; 16 and 18 is are not on the small wall),
the first chamber and the second chamber overlap in the vertical direction (Fig. 1; 14 and 31 overlap under the blower in vertical direction),
an axis of the intake port of the blower is perpendicular to an axis of the gas inlet (Fig. 1; 16 and; Fig. A; “A”)
the axis of the gas inlet is perpendicular to an axis of the opening of the second chamber (Fig. 1; 16, Fig. A, “C”),
PNG
media_image1.png
437
529
media_image1.png
Greyscale
Figure A: Fig 1 Adapted from Wickham
The recitation in the preamble of the device being noise-reducing represents an intended functionality and is given limited patentable weight (MPEP 2111.02).
Modified Wickham does not specifically disclose area enclosed by a wall around the intake end of the inlet pipe is not less than 75% of an area of the intake port of the blower.
However, Wickham teaches an area enclosed by a wall around the intake end (see Annotated Fig. B below, reference “A”) of the inlet pipe is not less than 75% of an area of the intake port of the blower (Fig. 1; 14 area inlet of the blower 11 are proportionally the same size if not bigger).
Therefore, due to an absence of the limitations of including the inlet pipe is not less than 75% of an area of the intake port of the blower, it would be obvious to one of ordinary skill in the art, assuming the broadest interpretation of both the prior art and the instant claim, the area “A” in Figure B and the area inlet of the blower 11 are proportionally the same size would reasonably encompass the absent limitation of the design shown in Fig. 2.3 Though prior art drawings are not interpreted as depicting scale, unless specified, drawings can be relied upon for what they would reasonably teach one of ordinary skill in the art (MPEP 2125).
Modified Wickham does not specifically disclose a distance between the intake port of the blower and the opposing inner wall of the housing is greater than 5 mm.
It would have been obvious as to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the enclosure of Wickham to have the enclosure a distance between the intake port of the blower and the opposing inner wall of the housing is greater than 5 mm. Applicant places no criticality on one particular size of the enclosure (page 16 of applicant' s specification indicate the claimed range however no significance to one size over another is present). Modifying Wickham to have the claimed dimensions would not have adverse effects on the performance of the device and thus the changing dimensions would not destroy the device. The courts have held that, “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device”. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
Wickham does not disclose specifically wherein the gas passage does not include foam.
However, Wickham teaches foam can be used as a sound absorbing material Wickham repeatedly teaches that materials other than foam are also suitable (e.g. para. 0054). Thus, one of ordinary skill in the art would have considered it prima facie obvious that Wickham is at least suggestive of embodiments where foam is not used because another sound absorbing material is instead selected.
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 Wickham at least one chamber does not include foam based upon the repeated teaching throughout Wickham that sound absorbing materials other than foam are suitable to perform a desired sound absorbing function.
Regrading Claim 25, Modified Wickham disclose the noise-reducing air passage device according to claim 22,
Modified Wickham does not disclose wherein a distance between the outlet end of the inlet pipe (Fig. 1; 16) and the opposing inner wall of the housing is greater than 1.5 times a diameter of the intake end of the inlet pipe (Fig. 1).
However, Wickham teaches wherein a distance between the outlet end of the inlet pipe (Fig. 1; 16) and the opposing inner wall of the housing is greater than 1.5 times a diameter of the intake end of the inlet pipe (Fig. 1; 16; Examiner notes: the distance from the opposing wall and inlet pipe is more than 1.5 times the diameter of the intake portion of inlet pipe 16 opening).
Therefore, due to an absence of the limitations of wherein a distance between the outlet end of the inlet pipe and the opposing inner wall of the housing is greater than 1.5 times a diameter of the intake end of the inlet pipe, it would be obvious to one of ordinary skill in the art, assuming the broadest interpretation of both the prior art and the instant claim, would reasonably encompass the absent limitation of the design shown in Fig. 1. Though prior art drawings are not interpreted as depicting scale, unless specified, drawings can be relied upon for what they would reasonably teach one of ordinary skill in the art (MPEP 2125).
Regrading Claim 26, Modified Wickham disclose the noise-reducing air passage device according to claim 22, wherein the inlet pipe has a draft angle, and the draft angle is at least 1.50.
However, Wickham does not specifically teach the inlet pipe has a draft angle, and the draft angle is at least 1.5°.
However, Modified Wickham teaches that skilled in the art that the invention may be embodied in many other forms so which one of ordinary skill in the art would have considered obviously suggesting on having a draft angle and tapered design (para. 0077).
Therefore, due to an absence of the limitations of including a draft angle is at least 1.5 degrees, it would be obvious to one of ordinary skill in the art, assuming the broadest interpretation of both the prior art and the instant claim, that inlet pipe having varying shapes that could be tapered would reasonably encompass the absent limitation design inlet pipe that is tapered having a draft angle of about 1.5 degrees, and which one of ordinary skill in the art would have considered obviously shown in Fig.1 . Though prior art drawings are not interpreted as depicting scale, unless specified, drawings can be relied upon for what they would reasonably teach one of ordinary skill in the art (MPEP 2125).
Since it has been held by the courts that, where the only difference between the prior art and the claims was a recitation of relative shape dimensions of the claimed device of the inlet pipe has a draft angle, and the draft angle is at least 1.5°, and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. [MPEP 2144.04, I. Aesthetic Design Changes]. As Applicant places no criticality on one particular size of the enclosure. Modifying Wickham have the claimed dimensions would not have adverse effects on the performance of the device and thus the changing dimensions would not destroy the device. The courts have held that, “where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device”. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984).
Regrading Claim 27, Modified Wickham the noise-reducing air passage device according to claim 22, wherein the gas inlet (Fig. 1; 16) and the gas outlet (Fig. 1; 18) are non-coaxial (Fig. 1).
Regrading Claim 28, Modified Wickham disclose the noise-reducing air passage device according to claim 22, wherein the housing forms a part of the respiratory machine (Fig. 1; 10: para. 0046-0050).
Claim(s) 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wickham, as applied to claim 22, in view of Kenyon et al. (US 20140158131 A1), hereafter as Kenyon
Regarding Claim 23, Modified Wickham discloses the noise-reducing air passage device according to claim 22,
Wickham does not disclose wherein the intake end of the inlet pipe includes a trumpet-shaped elastomer, configured to smoothly guide the breathable gas into the at least one chamber.
However, Kenyon teaches the intake end of the inlet pipe includes a trumpet-shaped elastomer (95; Fig. 1-2; para. 0222).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the intake end of the inlet pipe of Wickham to include trumpet-shaped elastomer as taught by Kenyon for the purpose of smoothly guide the breathable gas into the at least one chamber (para. 0222).
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. Other prior art of particular note include: Martin et al. (US 20100132708 A1), Jones et al. (US 20100307498 A1), Sung (US 20120037160 A1).
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 MAAP A ELLABIB whose telephone number is (571)272-5879. The examiner can normally be reached 8-5.
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, KENDRA CARTER can be reached on (571) 272-9034. 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.
/MAAP ELLABIB/ Examiner, Art Unit 3785
/KENDRA D CARTER/ Supervisory Patent Examiner, Art Unit 3785
Prosecution Insights