DETAILED ACTION
This is the First Office Action on the Merits based on the 18/780,227 application filed on 07/22/2024 and which claims as originally filed have been considered in the ensuing 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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 07/22/2024 was filed. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Drawings
The drawings are objected to because in figure 11, labels 120 and 130 should be 220 and 230, respectively. 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 Rejections - 35 USC § 103
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.
Claims 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over Kezirian et al (US 10,335,635) in view of Bell (US 9,757,617).
Regarding claim 1:
Kezirian et al as modified disclose that an oblong mouthpiece portion (mouthpiece 212); a shank portion (see annotated Fig. below); an attachment portion (see annotated Fig. below); the shank portion being connected between the disk portion and the attachment portion (see Fig. 2A-2B); the disk portion comprising an end opening (see Fig. 2A); the shank portion comprising an internal passage having a first end and a second end (see Fig. 2A); the attachment portion comprising a hole (see Fig. 2A); the internal passage being in fluid communication with the end opening at the first end and with the hole of the attachment portion at the second end (see Fig. 2A; the device is configured such that a user inhales and exhales through the device).
[AltContent: textbox (Attachment portion)][AltContent: arrow][AltContent: textbox (Shank portion)][AltContent: arrow]
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While Kezirian et al disclose that the mouthpiece is thin and flattened, Kezirian et al fails to specifically disclose that the mouthpiece is a disk portion. The Examiner notes that the disk portion of Applicant also functions as a mouthpiece.
Bell discloses a mouth exerciser, with a mouthpiece in the form of a disk (145) that has a concave section (“A mouthpiece 145 may be shaped in a polygon, oval, saddle, concave, or convex shape. ” see paragraph 5 lines 50-52).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the shape of the mouthpiece of Kezirian et al to be round with a concave section, as taught by Bell, as a change of shape of an object has been held as an obvious design choice. Further, the limitation lacks criticality.
Regarding claim 2:
Kezirian et al as modified disclose that the end opening is located at a center of the disk portion (see Fig. 2A-2A; the device is a breathing apparatus with a continuous channel from the mouthpiece to the combined housing; while not the same embodiment, this is best shown in Fig. 1A).
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Regarding claim 3:
Kezirian et al as modified disclose that the disk portion further comprises a concave end surface (see rejection of claim 1 above; the mouthpiece has been modified to be a disk with a concave surface).
Regarding claim 4:
Kezirian et al as modified disclose that the shank portion comprises a shank wall that has a cylindrical outer surface (see Fig. 2A).
Regarding claim 5:
Kezirian et al as modified disclose that the internal passage is cylindrical (while not the same embodiment, this is best shown in Fig. 1A).
Regarding claim 6:
Kezirian et al as modified disclose that the internal passage is coaxial with the end opening and the hole (while not the same embodiment, this is best shown in Fig. 1A).
Regarding claim 7:
Kezirian et al as modified disclose that the shank portion further comprises a transition portion that transitions from the shank portion to the attachment portion (see annotated Fig. above; the shank portion is combined with the attachment portion such that there is a transition from the shank to the attachment portion).
Claim 8 isrejected under 35 U.S.C. 103 as being unpatentable over Kezirian et al (US 10,335,635) and Bell (US 9,757,617) in further view of Schmidt et al (US 6,557,549).
Kezirian et al as modified discloses the device as substantially claimed above.
Regarding claim 8:
Kezirian et al as modified fails to disclose a manometer attached to the attachment portion. However, Kezirian et al does disclose different components attached to the attachment portion, including different components that respond differently to different pressures.
Schmidt et al teaches a positive expiratory pressure apparatus with an attachment end configured to have a manometer (see paragraph 7 lines 58-64).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Kezirian et al to optionally have a manometer attachment, as taught by Schmidt et al, to show the exerciser the pressure that is being generated during the workout.
Allowable Subject Matter
Claim 9 is 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MEGAN M ANDERSON whose telephone number is (313)446-6531. The examiner can normally be reached M-TH 6 a.m. -4 p.m. (Arizona).
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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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/Megan Anderson/Primary Examiner, Art Unit 3784