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 a preliminary amendment filed on 12/23/2024. As directed by the amendment, claim 1 was cancelled and new claims 2-21 were added. Thus, claims 2-21 are presently pending in this application.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because it contains legal phraseology, (i.e., the terms “comprises” in line 1 and “comprising” in line 3 of the abstract). Correction is required. See MPEP § 608.01(b).
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.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Presently, no limitation(s) is/are being interpreted under 112(f).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 8-10 and 13 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
Regarding claim 8, the limitation “breaking” (line 4) is unclear if there are additional limitation being claimed after the term “breaking” or not since a period is missing.
Regarding claim 9, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Regarding claim 9, the limitation “a reinforcing element such as a bead or rib, which supports and reinforces the enclosing wall” (lines 1-2) is unclear to what structure is being referenced to by the term “which”, the rib only, or the bead only, or both the bead and the rib, or the reinforcing element.
Regarding claim 10, the limitation “a breathable membrane” (line 2) is unclear if the breathable membrane is the same as or different from “a membrane that allows a passage of water vapour without substantially allowing the passage of liquid water or respiratory gases” being claimed in claim 2, line 5-7.
Regarding claim 13, the limitation “polymer tape or strip, part or all of the strip comprising, respective edges of adjacent turns of the strip being adjoining or overlapping and bonded to form the enclosing wall” (lines 2-4) is unclear because the limitation “polymer tape or strip” makes the limitation “strip” optional, however, the limitation “part or all of the strip comprising, respective edges of adjacent turns of the strip being adjoining or overlapping and bonded to form the enclosing wall” appears to be positively claiming the strip, therefore, it is unclear if the reader can pick tape and exclude the strip or must include both the tape and the strip.
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 (i.e., changing from AIA to pre-AIA ) 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 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.
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.
Claims 2, 4-7, 9-14, and 16-18 are rejected under 35 U.S.C. 102(a)(1) as anticipated by Smith (2004/0081784) or, in the alternative, under 35 U.S.C. 103 as obvious over Smith (2004/0081784) in view of Kaye (2014/0053939).
Regarding claim 2, Smith discloses a breathing circuit component (conduit of the disclosure, such as conduit having the form of what is shown in figs. 3 or 5-7 or 8, paragraphs 0052-0091) comprising: an inlet, an outlet (see figs. 3 and 5-6, and paragraph 0086, Smith discloses a conduit for being breathing limbs that is connected to a gas source and patient, to move fluid to or from the patient, there would be an inlet and an outlet); an enclosing wall (wall 6 having ribbon 5 in figs. 3 and 8 or wall of 12 having 13 in fig. 6, paragraphs 0060, 0062, 0080-0081 and 0085) defining a gases passageway between the inlet and the outlet (see conduit in figs. 1-8 paragraph 0085), at least a region of the enclosing wall comprising a membrane (membrane is formed by ribbon 5/13, see figs. 3, 5-6, and 8, paragraphs 0060 and 0062) that allows a passage of water vapour without substantially allowing a passage of liquid water or respiratory gases (see paragraph 0085), the membrane comprising a membrane wall thickness (see paragraphs 0054 and 0062, Smith discloses that the thickness of the ribbon can be less than 50 microns or greater than 15), wherein, the breathing circuit component is resistant to extension forces up to approximately 30 Newton in a longitudinal direction, that is in a direction of a longitudinal axis of the gases passageway, without permanent deformation (see paragraphs 0078-0083, Smith discloses in paragraph 0078 that the breathing circuit is light, flexible and provide good crush resistance, Smith further discloses in paragraph 0082 the term “permanent fixing” and discloses that conduits having very thin walls may have a reduced resistance to axial deformation and/or stretching, and further discloses reinforcing threads 10 and Smith discloses that “this embodiment of the invention provides a breathing circuit limb reinforced against crushing by the helical bead and against longitudinal extension by the axial threads 10 as well as providing a breathing conduit having all the advantages of the first preferred embodiment. The spanning threads 10 also provide an additional advantage by reducing direct contact between the user/environment and the surface of the tube, therefore reducing the risk of punctures and damage. The threads effectively provide an additional barrier against potential damage around the conduit as well. It will be effectively provide an additional foregoing method of reinforcing a conduit is not limited to conduits wherein the helical reinforcing bead is interposed between the overlapping layers”, therefore, the breathing circuit component would be able to resist extension forces having a particular amount, by being able to resist a particular amount of extension forces, the breathing circuit component is resistant to extension forces up to approximately 30 Newton in a longitudinal direction, that is in a direction of a longitudinal axis of the gases passageway, without permanent deformation, which can include forces that is really small such as a really small force value that is greater than 0, the term “up to approximately 30 Newton” allows for such interpretation), Smith further discloses that helical beads/ribs (8 or 19) are used to support the breathing circuit conduit (see beads 8 in figs. 3 and 8 or bead 19 in fig. 6, paragraphs 0081-0082).
However, if there is any doubt that Smith discloses that the breathing circuit component is resistant to extension forces up to approximately 30 Newton in a longitudinal direction, that is in a direction of a longitudinal axis of the gases passageway, without permanent deformation.
Kaye teaches a flexible plastic hose (paragraph 0087) and the hose can be reinforced with additional windings of helical rib to reduce the risk of damage of the hose under bending and/or pulling, and further stated that person skilled in the art can find a suitable number of windings by carrying out routine tests, therefore, Kaye teaches that resistance to damage by increasing the number of windings is a result effective variable (see paragraph 0087) and further discloses that thickness, material and pitch of helical reinforcing ribs are predetermined properties that provide mechanical strength and stiffness (see paragraph 0072).
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 breathing circuit component of Smith to be resistant to extension forces up to approximately 30 Newton in a longitudinal direction, without permanent deformation by adjusting the number of windings, thickness, material and pitch of the helical rib as taught by Kaye for the purpose of providing a hose that is reliable and resist to damages, and since it has been held that discovering an optimum value or workable ranges involves only routine skill in the art. MPEP 2144.05(II).
Regarding claim 4, Smith or the modified Smith discloses that the breathing circuit component is resistant to extension forces up to approximately 25 Newton in the longitudinal direction, that is in the direction of the longitudinal axis of the gases passageway, without permanent deformation (see paragraphs 0078-0083, Smith discloses in paragraph 0078 that the breathing circuit is light, flexible and provide good crush resistance, Smith further discloses in paragraph 0082 the term “permanent fixing” and discloses that conduits having very thin walls may have a reduced resistance to axial deformation and/or stretching, and further discloses reinforcing threads 10 and Smith discloses that “this embodiment of the invention provides a breathing circuit limb reinforced against crushing by the helical bead and against longitudinal extension by the axial threads 10 as well as providing a breathing conduit having all the advantages of the first preferred embodiment. The spanning threads 10 also provide an additional advantage by reducing direct contact between the user/environment and the surface of the tube, therefore reducing the risk of punctures and damage. The threads effectively provide an additional barrier against potential damage around the conduit as well. It will be effectively provide an additional foregoing method of reinforcing a conduit is not limited to conduits wherein the helical reinforcing bead is interposed between the overlapping layers”, therefore, the breathing circuit component would be able to resist extension forces having a particular amount, by being able to resist a particular amount of extension forces, the breathing circuit component is resistant to extension forces up to approximately 25 Newton in a longitudinal direction, that is in a direction of a longitudinal axis of the gases passageway, without permanent deformation, which can include forces that is really small such as a really small force value that is greater than 0, the term “up to approximately 25 Newton” allows for such interpretation).
However, if there is any doubt that Smith discloses that the breathing circuit component is resistant to extension forces up to approximately 25 Newton in a longitudinal direction, that is in a direction of a longitudinal axis of the gases passageway, without permanent deformation.
Kaye teaches a flexible plastic hose (paragraph 0087) and the hose can be reinforced with additional windings of helical rib to reduce the risk of damage of the hose under bending and/or pulling, and further stated that person skilled in the art can find a suitable number of windings by carrying out routine tests, therefore, Kaye teaches that resistance to damage by increasing the number of windings is a result effective variable (see paragraph 0087) and further discloses that thickness, material and pitch of helical reinforcing ribs are predetermined properties that provide mechanical strength and stiffness (see paragraph 0072).
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 breathing circuit component of Smith to be resistant to extension forces up to approximately 25 Newton in a longitudinal direction, without permanent deformation by adjusting the number of windings, thickness, material, and pitch of the helical rib as taught by Kaye for the purpose of providing a hose that is reliable and resist to damages, and since it has been held that discovering an optimum value or workable ranges involves only routine skill in the art. MPEP 2144.05(II).
Regarding claim 5, Smith or the modified Smith discloses that the breathing circuit component is resistant to extension forces up to approximately 55 Newton in the longitudinal direction, that is in the direction of the longitudinal axis of the gases passageway, before breaking (see paragraphs 0078-0083, Smith discloses in paragraph 0078 that the breathing circuit is light, flexible and provide good crush resistance, Smith further discloses in paragraph 0082 the term “permanent fixing” and discloses that conduits having very thin walls may have a reduced resistance to axial deformation and/or stretching, and further discloses reinforcing threads 10 and Smith discloses that “this embodiment of the invention provides a breathing circuit limb reinforced against crushing by the helical bead and against longitudinal extension by the axial threads 10 as well as providing a breathing conduit having all the advantages of the first preferred embodiment. The spanning threads 10 also provide an additional advantage by reducing direct contact between the user/environment and the surface of the tube, therefore reducing the risk of punctures and damage. The threads effectively provide an additional barrier against potential damage around the conduit as well. It will be effectively provide an additional foregoing method of reinforcing a conduit is not limited to conduits wherein the helical reinforcing bead is interposed between the overlapping layers”, therefore, the breathing circuit component would be able to resist extension forces having a particular amount, by being able to resist a particular amount of extension forces, the breathing circuit component is resistant to extension forces up to approximately 55 Newton in a longitudinal direction, that is in a direction of a longitudinal axis of the gases passageway, before breaking, which can include forces that is really small such as a really small force value that is greater than 0, the term “up to approximately 55 Newton” allows for such interpretation).
However, if there is any doubt that Smith discloses that the breathing circuit component is resistant to extension forces up to approximately 55 Newton in a longitudinal direction, that is in a direction of a longitudinal axis of the gases passageway, before breaking.
Kaye teaches a flexible plastic hose (paragraph 0087) and the hose can be reinforced with additional windings of helical rib to reduce the risk of damage of the hose under bending and/or pulling, and further stated that person skilled in the art can find a suitable number of windings by carrying out routine tests, therefore, Kaye teaches that resistance to damage by increasing the number of windings is a result effective variable (see paragraph 0087) and further discloses that thickness, material and pitch of helical reinforcing ribs are predetermined properties that provide mechanical strength and stiffness (see paragraph 0072).
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 breathing circuit component of Smith to be resistant to extension forces up to approximately 55 Newton in a longitudinal direction, before breaking by adjusting the number of windings, thickness, material, and pitch of the helical rib as taught by Kaye for the purpose of providing a hose that is reliable and resist to damages, and since it has been held that discovering an optimum value or workable ranges involves only routine skill in the art. MPEP 2144.05(II).
Regarding claim 6, Smith or the modified Smith discloses a breathing circuit component kit comprising: the breathing circuit component of claim 2; and a patient interface (see paragraph 0084 of Smith, Smith discloses that a further breathing circuit component to which the present invention may be applied is catheter mounts, a catheter mount connects between a patient interfacing component such as a mouth piece, nasal mask or endotracheal tube and the dual limbs of the breathing circuit, see paragraphs 0057-0060 and 0079-0083 for reference).
Regarding claim 7, Smith discloses a breathing circuit component (conduit of the disclosure, such as conduit having the form of what is shown in figs. 3 or 5-7 or 8, paragraphs 0052-0091) comprising: an inlet, an outlet (see figs. 3 and 5-6 and 8, and paragraph 0086, Smith discloses a conduit for being breathing limbs that is connected to a gas source and patient, to move fluid to or from the patient, there would be an inlet and an outlet); an enclosing wall (wall 6 having ribbon 5 in figs. 3 and 8 or wall of 12 having 13 in fig. 6, paragraphs 0060, 0062, 0080-0081 and 0085) defining a gases passageway between the inlet and the outlet (see conduit in figs. 1-8 paragraph 0085), at least a region of the enclosing wall comprising a membrane (membrane is formed by ribbon 5/13, see figs. 3, 5-6, and 8, paragraphs 0060 and 0062) that allows a passage of water vapour without substantially allowing a passage of liquid water or respiratory gases (see paragraph 0085), the membrane comprising a membrane wall thickness (see paragraphs 0054 and 0062, Smith discloses that the thickness of the ribbon can be less than 50 microns or greater than 15), wherein, the breathing circuit component is resistant to an applied force up to approximately 15N in a lateral direction, that is in a direction transverse to a longitudinal axis of the gases passageway, without the breathing circuit component breaking (see paragraphs 0078-0083, Smith discloses in paragraph 0078 that the breathing circuit is light, flexible and provide good crush resistance, Smith further discloses in paragraph 0082 the term “permanent fixing” and discloses that conduits having very thin walls may have a reduced resistance to axial deformation and/or stretching, and further discloses reinforcing threads 10 and Smith discloses that “this embodiment of the invention provides a breathing circuit limb reinforced against crushing by the helical bead and against longitudinal extension by the axial threads 10 as well as providing a breathing conduit having all the advantages of the first preferred embodiment. The spanning threads 10 also provide an additional advantage by reducing direct contact between the user/environment and the surface of the tube, therefore reducing the risk of punctures and damage. The threads effectively provide an additional barrier against potential damage around the conduit as well. It will be effectively provide an additional foregoing method of reinforcing a conduit is not limited to conduits wherein the helical reinforcing bead is interposed between the overlapping layers”, therefore, the breathing circuit component would be able to resist applied force having a particular amount in the lateral direction, by being able to resist a particular force in the lateral direction, the breathing circuit component would be able to resist an applied force up to approximately 15N in a lateral direction, that is in a direction transverse to a longitudinal axis of the gases passageway, without the breathing circuit component breaking, which can include forces that is really small such as a really small force value that is greater than 0, the term “up to approximately 15N” allows for such interpretation), Smith further discloses that reinforcing element/beads/ribs (8 or 19) are used to support the breathing circuit conduit (see bead 8 and bead 19, figs. 3, 8 and 6, paragraphs 0061 and 0081-0082).
However, if there is any doubt that Smith discloses that the breathing circuit component is resistant to an applied force up to approximately 15N in a lateral direction, that is in a direction transverse to a longitudinal axis of the gases passageway, without the breathing circuit component breaking.
Kaye teaches a flexible plastic hose (paragraph 0087) and the hose can be reinforced with additional windings of helical rib to reduce the risk of damage of the hose under bending and/or pulling, and further stated that person skilled in the art can find a suitable number of windings by carrying out routine tests, therefore, Kaye teaches that resistance to damage by increasing the number of windings is a result effective variable (see paragraph 0087) and further discloses that thickness, material and pitch of helical reinforcing ribs are predetermined properties that provide mechanical strength and stiffness (see paragraph 0072).
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 breathing circuit component of Smith to be resistant to an applied force up to approximately 15N in a lateral direction, without the breathing circuit component breaking by adjusting the number of windings, thickness, material, and pitch of the helical rib as taught by Kaye for the purpose of providing a hose that is reliable and resist to damages, and since it has been held that discovering an optimum value or workable ranges involves only routine skill in the art. MPEP 2144.05(II).
Regarding claim 9, Smith or the modified Smith discloses a reinforcement element such as a bead or rib (see beads 8 in figs. 3 and 8 and beads 19 in fig. 6, paragraphs 0061 and 0081-0082 of Smith), which supports and reinforces the enclosing wall, wherein the breathing circuit component is resistant to an applied force up to approximately 15 Newton in a lateral direction, that is in a direction transverse to the longitudinal axis of the gases passageway, without the breathing circuit component delaminating such that the reinforcing element separates from the enclosing wall (see paragraphs 0078-0083, Smith discloses in paragraph 0078 that the breathing circuit is light, flexible and provide good crush resistance, Smith further discloses in paragraph 0082 the term “permanent fixing” and discloses that conduits having very thin walls may have a reduced resistance to axial deformation and/or stretching, and further discloses reinforcing threads 10 and Smith discloses that “this embodiment of the invention provides a breathing circuit limb reinforced against crushing by the helical bead and against longitudinal extension by the axial threads 10 as well as providing a breathing conduit having all the advantages of the first preferred embodiment. The spanning threads 10 also provide an additional advantage by reducing direct contact between the user/environment and the surface of the tube, therefore reducing the risk of punctures and damage. The threads effectively provide an additional barrier against potential damage around the conduit as well. It will be effectively provide an additional foregoing method of reinforcing a conduit is not limited to conduits wherein the helical reinforcing bead is interposed between the overlapping layers”, therefore, the breathing circuit component would be able to resist applied force having a particular amount in the lateral direction, by being able to resist a particular force in the lateral direction, the breathing circuit component would be able to resist an applied force up to approximately 15N in a lateral direction, that is in a direction transverse to a longitudinal axis of the gases passageway, without the breathing circuit component delaminating such that the reinforcing element separates from the enclosing wall, which can include forces that is really small such as a really small force value that is greater than 0, the term “up to approximately 15 Newton” allows for such interpretation).
However, if there is any doubt that Smith discloses that the breathing circuit component is resistant to an applied force up to approximately 15 Newton in a lateral direction, that is in a direction transverse to the longitudinal axis of the gases passageway, without the breathing circuit component delaminating such that the reinforcing element separates from the enclosing wall.
Kaye teaches a flexible plastic hose (paragraph 0087) and the hose can be reinforced with additional windings of helical rib to reduce the risk of damage of the hose under bending and/or pulling, and further stated that person skilled in the art can find a suitable number of windings by carrying out routine tests, therefore, Kaye teaches that resistance to damage by increasing the number of windings is a result effective variable (see paragraph 0087) and further discloses that thickness, material and pitch of helical reinforcing ribs are predetermined properties that provide mechanical strength and stiffness (see paragraph 0072).
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 breathing circuit component of Smith to be resistant to an applied force up to approximately 15 Newton in a lateral direction, that is in a direction transverse to the longitudinal axis of the gases passageway, without the breathing circuit component delaminating such that the reinforcing element separates from the enclosing wall by adjusting the number of windings, thickness, material, and pitch of the helical bead as taught by Kaye for the purpose of providing a hose that is reliable and resist to damages, and since it has been held that discovering an optimum value or workable ranges involves only routine skill in the art. MPEP 2144.05(II).
Regarding claim 10, Smith or the modified Smith discloses that the enclosing wall defining a gases passageway is entirely comprised of a breathable membrane (wall 6 having ribbon 5 in figs. 3 and 8 and 13 in fig. 6, paragraphs 0060 and 0062).
Regarding claim 11, Smith or the modified Smith discloses a breathing circuit component kit comprising: the breathing circuit component of claim 5; and a patient interface (see paragraph 0084 of Smith, Smith discloses that a further breathing circuit component to which the present invention may be applied is catheter mounts, a catheter mount connects between a patient interfacing component such as a mouth piece, nasal mask or endotracheal tube and the dual limbs of the breathing circuit, see paragraphs 0057-0060 and 0079-0083 for reference).
Regarding claim 12, Smith discloses a breathing circuit component (conduit of the disclosure, such as conduit having the form of what is shown in figs. 3 or 5-7 or 8, paragraphs 0052-0091) comprising: an inlet, an outlet (see figs. 3 and 5-6 and 8, and paragraph 0086, Smith discloses a conduit for being breathing limbs that is connected to a gas source and patient, to move fluid to or from the patient, there would be an inlet and an outlet); an enclosing wall (wall 6 having ribbon 5 in figs. 3 and 8 or wall of 12 having 13 in fig. 6, paragraphs 0060, 0062, 0080-0081 and 0085) defining a gases passageway between the inlet and the outlet (see conduit in figs. 1-8 paragraph 0085), at least a region of the enclosing wall comprising a membrane (membrane is formed by ribbon 5/13, see figs. 3, 5-6, and 8, paragraphs 0060 and 0062) that allows a passage of water vapour without substantially allowing a passage of liquid water or respiratory gases (see paragraph 0085), the membrane comprising a membrane wall thickness (see paragraphs 0054 and 0062, Smith discloses that the thickness of the ribbon can be less than 50 microns or greater than 15), wherein, the breathing circuit component is resistant to a longitudinal pull force up to approximately 55 N, in a direction of a longitudinal axis of the gases passageway, before breaking (see paragraphs 0078-0083, Smith discloses in paragraph 0078 that the breathing circuit is light, flexible and provide good crush resistance, Smith further discloses in paragraph 0082 the term “permanent fixing” and discloses that conduits having very thin walls may have a reduced resistance to axial deformation and/or stretching, and further discloses reinforcing threads 10 and Smith discloses that “this embodiment of the invention provides a breathing circuit limb reinforced against crushing by the helical bead and against longitudinal extension by the axial threads 10 as well as providing a breathing conduit having all the advantages of the first preferred embodiment. The spanning threads 10 also provide an additional advantage by reducing direct contact between the user/environment and the surface of the tube, therefore reducing the risk of punctures and damage. The threads effectively provide an additional barrier against potential damage around the conduit as well. It will be effectively provide an additional foregoing method of reinforcing a conduit is not limited to conduits wherein the helical reinforcing bead is interposed between the overlapping layers”, therefore, the breathing circuit component would be able to resist longitudinal pull force having a particular amount, by being able to resist a particular amount of longitudinal pull force, the breathing circuit component is resistant to a longitudinal pull force up to 55 N, that is in a direction of a longitudinal axis of the gases passageway, before breaking, which can include forces that is really small such as a really small force value that is greater than 0, the term “up to 55 N” allows for such interpretation), Smith further discloses that helical beads/ribs (8 or 19) are used to support the breathing circuit conduit (see beads 8 in figs. 3 and 8 and beads 19 in fig. 6, paragraphs 0061 and 0081-0082).
However, if there is any doubt that Smith discloses that the breathing circuit component is resistant to longitudinal pull force up to 55 N, in a direction of a longitudinal axis of the gases passageway, before breaking.
Kaye teaches a flexible plastic hose (paragraph 0087) and the hose can be reinforced with additional windings of helical rib to reduce the risk of damage of the hose under bending and/or pulling, and further stated that person skilled in the art can find a suitable number of windings by carrying out routine tests, therefore, Kaye teaches that resistance to damage by increasing the number of windings is a result effective variable (see paragraph 0087) and further discloses that thickness, material and pitch of helical reinforcing ribs are predetermined properties that provide mechanical strength and stiffness (see paragraph 0072).
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 breathing circuit component of Smith to be resistant to longitudinal pull force up to 55 N, in a direction of a longitudinal axis of the gases passageway, before breaking by adjusting the number of windings, thickness, material, and pitch of the helical rib as taught by Kaye for the purpose of providing a hose that is reliable and resist to damages, and since it has been held that discovering an optimum value or workable ranges involves only routine skill in the art. MPEP 2144.05(II).
Regarding claim 13, Smith or the modified Smith discloses that the membrane comprises at least one helically would polymer tape (it is noted that due to the usage of the term “or”, the limitation “or strip, part or all of the strip comprising, respective edges of adjacent turns of the strip being adjoining or overlapping and bonded to form the enclosing wall” is being interpreted as not being required by the claim, Smith discloses tape 5 or 13, see figs. 2-8 and paragraphs 0060-0065 and 0080-0081).
Regarding claim 14, Smith or the modified Smith discloses that a helical bead (8 or 19 of Smith) disposed over adjoining or overlapping edges between turns of the membrane (see figs. 2-8 and paragraphs 0061 and 0081-0082 of Smith).
Regarding claim 16, Smith or the modified Smith discloses that the breathing circuit component is a breathing gas conduit configured to be connected at a first end to a patient interface and at a second other end to an inspiratory gas conduit comprising part of a breathing circuit (see paragraph 0084 of Smith, Smith discloses that a further breathing circuit component to which the present invention may be applied is catheter mounts, a catheter mount connects between a patient interfacing component such as a mouth piece, nasal mask or endotracheal tube and the dual limbs of the breathing circuit, see paragraphs 0057-0060 and 0079-0083 for reference).
Regarding claim 17, Smith or the modified Smith discloses that the heater wire is embedded in the helical bead (see 31 in fig. 7 and paragraphs 0086-0087 of Smith).
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Smith (2004/0081784) in view of Kaye (2014/0053939).
Regarding claim 3, Smith or the modified Smith fails to specifically disclose that the breathing circuit component is resistant to extension of at least 15 to 30 Newton in the longitudinal direction, that is in the direction of the longitudinal axis of the gases passageway, without permanent deformation.
Kaye teaches a flexible plastic hose (paragraph 0087) and the hose can be reinforced with additional windings of helical rib to reduce the risk of damage of the hose under bending and/or pulling, and further stated that person skilled in the art can find a suitable number of windings by carrying out routine tests, therefore, Kaye teaches that resistance to damage by increasing the number of windings is a result effective variable (see paragraph 0087) and further discloses that thickness, material and pitch of helical reinforcing ribs are predetermined properties that provide mechanical strength and stiffness (see paragraph 0072).
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 breathing circuit component of Smith or the modified Smith to be resistant to extension forces of at least 15 to 30 Newton in a longitudinal direction, without permanent deformation by adjusting the number of windings, thickness, material, and bead as taught by Kaye for the purpose of providing a hose that is reliable and resist to damages, and since it has been held that discovering an optimum value or workable ranges involves only routine skill in the art. MPEP 2144.05(II).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Smith (2004/0081784) in view of Kaye (2014/0053939).
Regarding claim 8, Smith or the modified Smith fails to specifically disclose that the breathing circuit component is resistant to an applied force of between 10 to 15 Newton in a lateral direction, that is in a direction transverse to the longitudinal axis of the gases passageway, without the breathing circuit component breaking.
Kaye teaches a flexible plastic hose (paragraph 0087) and the hose can be reinforced with additional windings of helical rib to reduce the risk of damage of the hose under bending and/or pulling, and further stated that person skilled in the art can find a suitable number of windings by carrying out routine tests, therefore, Kaye teaches that resistance to damage by increasing the number of windings is a result effective variable (see paragraph 0087) and further discloses that thickness, material and pitch of helical reinforcing ribs are predetermined properties that provide mechanical strength and stiffness (see paragraph 0072).
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 breathing circuit component of Smith to be resistant to an applied force of between 10 to 15 Newton in a lateral direction, without the breathing circuit component breaking by adjusting the number of windings, thickness, material, and pitch as taught by Kaye for the purpose of providing a hose that is reliable and resist to damages, and since it has been held that discovering an optimum value or workable ranges involves only routine skill in the art. MPEP 2144.05(II).
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Smith (2004/0081784) in view of Kaye (2014/0053939).
Regarding claim 15, Smith or the modified Smith discloses that a pitch of the helical bead is 2.5 mm (see paragraph 0060 of Smith), but fails to disclose that the pitch is between approximately 3.5 to 5.5 millimeters.
Kaye teaches a flexible plastic hose having a pitch that is between approximately 3.5 to 5.5 millimeters (see fig. 4, paragraph 0075, Kaye discloses a pitch p of the reinforcing ribs is between 3 to 9 mm or 4 to 8 mm).
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 bead pitch of Smith or the modified Smith to be between approximately 3.5 to 5.5 mm as taught by Kaye for the purpose of providing a bead pitch that can reinforce the breathing circuit conduit capable of transporting respiratory gas to the patient.
Claims 18-21 are rejected under 35 U.S.C. 103 as being unpatentable over Smith (2004/0081784) or Smith (2004/0081784) in view of Kaye (2014/0053939).
Regarding claim 18, Smith or the modified Smith discloses that the membrane has a moisture vapour permeability (paragraphs 0052-0022, 0061-0063, and 0085 of Smith, Smith discloses that the membrane is permeable, therefore, would have a moisture vapour permeability) and further discloses that breathability is dependent on the thickness of the membrane (see paragraph 0062 of Smith), but fails to disclose that the moisture vapour permeability greater than or equal to 500 g/m^2/24h.
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 membrane of Smith or the modified Smith to have a moisture vapour permeability greater than or equal to 500 g/m^2/24h for the purpose of providing a permeability that can be used to reduce the build up of condensation within the respiratory circuit (see paragraph 0053 of Smith), and since it has been held that discovering an optimum value or workable ranges involves only routine skill in the art. MPEP 2144.05(II).
Regarding claim 19, Smith or the modified Smith discloses that the membrane has a moisture vapour permeability (paragraphs 0052-0022, 0061-0063, and 0085 of Smith, Smith discloses that the membrane is permeable, therefore, would have a moisture vapour permeability) and further discloses that breathability is dependent on the thickness of the membrane (see paragraph 0062 of Smith), but fails to disclose that the moisture vapour permeability up to 3000 g/m^2/24h.
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 membrane of Smith or the modified Smith to have a moisture vapour permeability up to 3000 g/m^2/24h for the purpose of providing a permeability that can be used to reduce the build up of condensation within the respiratory circuit (see paragraph 0053 of Smith), and since it has been held that discovering an optimum value or workable ranges involves only routine skill in the art. MPEP 2144.05(II).
Regarding claim 20, Smith or the modified Smith discloses that the membrane has a moisture vapour permeability (paragraphs 0052-0022, 0061-0063, and 0085 of Smith, Smith discloses that the membrane is permeable, therefore, would have a moisture vapour permeability) and further discloses that breathability is dependent on the thickness of the membrane (see paragraph 0062 of Smith), but fails to disclose that the moisture vapour permeability greater than or equal to about 1900 g/m^2/24h.
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 membrane of Smith or the modified Smith to have a moisture vapour permeability greater than or equal to about 1900 g/m^2/24h for the purpose of providing a permeability that can be used to reduce the build up of condensation within the respiratory circuit (see paragraph 0053 of Smith), and since it has been held that discovering an optimum value or workable ranges involves only routine skill in the art. MPEP 2144.05(II).
Regarding claim 21, Smith or the modified Smith discloses that the membrane comprises a gas impermeability of a certain amount (paragraphs 0052-0022, 0061-0063, and 0085 of Smith, Smith discloses that the membrane is permeable to water vapor and is breathable, therefore, would be impermeable to gas to a certain degree, based on the flow/amount of the gas) and further discloses that breathability is dependent on the thickness of the membrane (see paragraph 0062 of Smith), but fails to disclose that the gas impermeability of less than 200 ml*mm/m^2/day/atm.
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 membrane of Smith or the modified Smith to have the gas impermeability of less than 200 ml*mm/m^2/day/atm for the purpose of providing a gas impermeability that can be used to reduce the build up of condensation within the respiratory circuit (see paragraph 0053 of Smith), and since it has been held that discovering an optimum value or workable ranges involves only routine skill in the art. MPEP 2144.05(II).
Claims 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Smith (2004/0081784) or alternatively Smith (2004/0081784) in view of Kaye (2014/0053939) as applied to claim 12 above, and further in view of Stoks (WO 2016/048172).
Regarding claim 18, Smith or the modified Smith discloses that the membrane has a moisture vapour permeability (paragraphs 0052-0022, 0061-0063, and 0085 of Smith, Smith discloses that the membrane is permeable, therefore, would have a moisture vapour permeability) and further discloses that breathability is dependent on the thickness of the membrane (see paragraph 0062 of Smith), but fails to disclose that the moisture vapour permeability greater than or equal to 500 g/m^2/24h.
However, Stoks discloses a membrane having a moisture vapour permeability greater than or equal to 500 g/m^2/24h (see paragraphs 0015, 0051, and 0055, Stoks discloses that the permeability transmission rate is greater than or equal to 650 g/m^2/24h).
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 membrane of Smith or the modified Smith to have a moisture vapour permeability greater than or equal to 500 g/m^2/24h as taught by Stoks for the purpose of providing a moisture vapor transmission rate that is breathable but is also robust and flexible as desired for different applications (see paragraph 0055 of Stoks).
Regarding claim 19, Smith or the modified Smith discloses that the membrane has a moisture vapour permeability (paragraphs 0052-0022, 0061-0063, and 0085 of Smith, Smith discloses that the membrane is permeable, therefore, would have a moisture vapour permeability) and further discloses that breathability is dependent on the thickness of the membrane (see paragraph 0062 of Smith), but fails to disclose that the moisture vapour permeability up to 3000 g/m^2/24h.
However, Stoks discloses a membrane having a moisture vapour permeability up to 3000 g/m^2/24h (see paragraphs 0015, 0051, and 0055, Stoks discloses that the permeability transmission rate is greater than or equal to 650 g/m^2/24h).
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 membrane of Smith or the modified Smith to have a moisture vapour permeability up to 3000 g/m^2/24h as taught by Stoks for the purpose of providing a moisture vapor transmission rate that is breathable but is also robust and flexible as desired for different applications (see paragraph 0055 of Stoks).
Regarding claim 20, Smith or the modified Smith discloses that the membrane has a moisture vapour permeability (paragraphs 0052-0022, 0061-0063, and 0085 of Smith, Smith discloses that the membrane is permeable, therefore, would have a moisture vapour permeability) and further discloses that breathability is dependent on the thickness of the membrane (see paragraph 0062 of Smith), but fails to disclose that the moisture vapour permeability greater than or equal to about 1900 g/m^2/24h.
However, Stoks discloses a membrane having a moisture vapour permeability greater than or equal to 1900 g/m^2/24h (see paragraphs 0015, 0051, and 0055, Stoks discloses that the permeability transmission rate is greater than or equal to 650 g/m^2/24h).
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 membrane of Smith or the modified Smith to have a moisture vapour permeability greater than or equal to 1900 g/m^2/24h as taught by Stoks for the purpose of providing a moisture vapor transmission rate that is breathable but is also robust and flexible as desired for different applications (see paragraph 0055 of Stoks).
However, if there is any doubt that the modified Smith discloses that the moisture vapour permeability greater than or equal to 1900 g/m^2/24h.
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 membrane of Smith or the modified Smith to have a moisture vapour permeability greater than or equal to 1900 g/m^2/24h for the purpose of providing a moisture vapor transmission rate that is breathable but is also robust and flexible as desired for different applications (see paragraph 0055 of Stoks), and since it has been held that discovering an optimum value or workable ranges involves only routine skill in the art. MPEP 2144.05(II).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the claims at issue are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the reference application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO internet Web site contains terminal disclaimer forms which may be used. Please visit http://www.uspto.gov/forms/. The filing date of the application will determine what form should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 2-5 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 13 of US Patent No. 12,102,768.
Although the conflicting claims are not identical, they are not patentably distinct from each other because the difference between the instant claims and the patented claims are minor and obvious from each other. For example, the instant claims 2-5 are a broader version of the patented claim 13 (i.e., the instant claims 2-5 do not include a ratio of bead pitch to membrane wall thickness between 1:0.0080 to 1:0.0128 as in the patented claim 13). In the instant claims 2-5, the system is included in the patented claim 13. Any infringement over the patented claims would also infringe over the instant claim. Therefore, the instant claims 2-5 do not differ in scope from the patented claim 13. Following the rationale in In re Goodman, cited above, where applicant has once been granted a patent containing a claim for the specific or narrower invention, applicant may not then obtain a second patent with a claim for the generic or broader invention without first submitting an appropriate terminal disclaimer.
Regarding the instant application claim 2, the following comparison between the patented claim 13 and the instant application claim, see underlined features in the patented claim, show what elements have been excluded in the presentation of the instant application claim and patented claim.
Application claim 2
Patented claim 13
2. A breathing circuit component comprising: an inlet an outlet; and an enclosing wall defining a gases passageway between the inlet and the outlet, at least a region of the enclosing wall comprising a membrane that allows a passage of water vapour without substantially allowing the passage of liquid water or respiratory gases; wherein, the breathing circuit component is resistant to extension forces up to approximately 30 Newton in a longitudinal direction, that is in a direction of a longitudinal axis of the gases passageway, without permanent deformation.
1. (for reference) A breathing gas conduit for a respiratory apparatus including: an inlet; an outlet; an enclosing wall defining a gases passageway between the inlet and the outlet, at least a region of the enclosing wall comprising a membrane that allows passage of water vapour without substantially allowing a passage of liquid water or respiratory gases, the membrane comprising a membrane wall thickness; and a bead helically wound around the enclosing wall, the bead comprising a bead pitch defined by a distance between adjacent winds of the bead, wherein the breathing gas conduit comprises a ratio of bead pitch to membrane wall thickness between 1:0.0080 to 1:0.0128 so as to reduce noise production when the breathing gas conduit is moved, flexed, or bent.
13. The breathing gas conduit of claim 1, wherein the breathing gas conduit is resistant to extension forces up to approximately 30 Newton in a longitudinal direction without permanent deformation.
The instant claims 2-5 are being rejected by the patented claim 13.
Claims 7-9 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 14 of US Patent No. 12,102,768.
Although the conflicting claims are not identical, they are not patentably distinct from each other because the difference between the instant claims and the patented claims are minor and obvious from each other. For example, the instant claims 7-9 are a broader version of the patented claim 14 (i.e., the instant claims 7-9 do not include a ratio of bead pitch to membrane wall thickness between 1:0.0080 to 1:0.0128 as in the patented claim 14). In the instant claims 7-9, the system is included in the patented claim 14. Any infringement over the patented claims would also infringe over the instant claim. Therefore, the instant claims 7-9 do not differ in scope from the patented claim 14. Following the rationale in In re Goodman, cited above, where applicant has once been granted a patent containing a claim for the specific or narrower invention, applicant may not then obtain a second patent with a claim for the generic or broader invention without first submitting an appropriate terminal disclaimer.
Regarding the instant application claim 7, the following comparison between the patented claim 14 and the instant application claim, see underlined features in the patented claim, show what elements have been excluded in the presentation of the instant application claim and patented claim.
Application claim 7
Patented claim 14
7. A breathing circuit component comprising: an inlet; an outlet; and an enclosing wall defining a gases passageway between the inlet and the outlet, at least a region of the enclosing wall comprising a membrane that allows a passage of water vapour without substantially allowing a passage of liquid water or respiratory gases; wherein, the breathing circuit component is resistant to an applied force up to approximately 15N in a lateral direction, that is in a direction transverse to a longitudinal axis of the gases passageway, without the breathing circuit component breaking.
1. (for reference) A breathing gas conduit for a respiratory apparatus including: an inlet; an outlet; an enclosing wall defining a gases passageway between the inlet and the outlet, at least a region of the enclosing wall comprising a membrane that allows passage of water vapour without substantially allowing a passage of liquid water or respiratory gases, the membrane comprising a membrane wall thickness; and a bead helically wound around the enclosing wall, the bead comprising a bead pitch defined by a distance between adjacent winds of the bead, wherein the breathing gas conduit comprises a ratio of bead pitch to membrane wall thickness between 1:0.0080 to 1:0.0128 so as to reduce noise production when the breathing gas conduit is moved, flexed, or bent.
14. The breathing gas conduit of claim 1, wherein the breathing gas conduit is resistant to an applied force up to approximately 15 Newton in a lateral direction without a breathing circuit component breaking
The instant claims 7-9 are being rejected by the patented claim 14.
Claims 12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 13 of US Patent No. 12,102,768.
Although the conflicting claims are not identical, they are not patentably distinct from each other because the difference between the instant claim and the patented claims are minor and obvious from each other. For example, the instant claim 12 is a broader version of the patented claim 13 (i.e., the instant claim 12 does not include a ratio of bead pitch to membrane wall thickness between 1:0.0080 to 1:0.0128 as in the patented claim 13). In the instant claim 12, the system is included in the patented claim 13. Any infringement over the patented claims would also infringe over the instant claim. Therefore, the instant claim 12 does not differ in scope from the patented claim 13. Following the rationale in In re Goodman, cited above, where applicant has once been granted a patent containing a claim for the specific or narrower invention, applicant may not then obtain a second patent with a claim for the generic or broader invention without first submitting an appropriate terminal disclaimer.
Regarding the instant application claim 12, the following comparison between the patented claim 13 and the instant application claim, see underlined features in the patented claim, show what elements have been excluded in the presentation of the instant application claim and patented claim.
Application claim 12
Patented claim 13
12. A breathing circuit component comprising: an inlet an outlet; and an enclosing wall defining a gases passageway between the inlet and the outlet, at least a region of the enclosing wall comprising a membrane that allows a passage of water vapour without substantially allowing the passage of liquid water or respiratory gases; wherein the breathing circuit component is resistant to a longitudinal pull force up to 55 N, in a direction of a longitudinal axis of the gases passageway, before breaking.
1. (for reference) A breathing gas conduit for a respiratory apparatus including: an inlet; an outlet; an enclosing wall defining a gases passageway between the inlet and the outlet, at least a region of the enclosing wall comprising a membrane that allows passage of water vapour without substantially allowing a passage of liquid water or respiratory gases, the membrane comprising a membrane wall thickness; and a bead helically wound around the enclosing wall, the bead comprising a bead pitch defined by a distance between adjacent winds of the bead, wherein the breathing gas conduit comprises a ratio of bead pitch to membrane wall thickness between 1:0.0080 to 1:0.0128 so as to reduce noise production when the breathing gas conduit is moved, flexed, or bent.
13. The breathing gas conduit of claim 1, wherein the breathing gas conduit is resistant to extension forces up to approximately 30 Newton in a longitudinal direction without permanent deformation.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Weigle (3,858,615) is cited to show a flexible hose comprising a reinforcing bead element.
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/TU A VO/Primary Examiner, Art Unit 3785
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