DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Objections
Claims 7 and 14 is objected to because of the following informalities:
Regarding Claim 7, “and the first major axis and the second major axis intersect at a location between the headgear frame member and the back of the user's head.” Should read as --and the first major axis and the second major axis are configured to intersect at a location between the headgear frame member and the back of the user's head—
Regarding Claim 14, “when the hypotenuse” should read as “when a hypotenuse”
Appropriate correction is required.
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.
Claim 20-23 recites the limitation " a third elongated portion”, “a third terminal end portion” and “a third coupling” in line 3 and then “the third elongated portion.” in lines 5 and 12. There is insufficient antecedent basis for this limitation in the claim. Claim 20 depends off Claim 19, which depends off Claim 1 which already has “a third elongated portion, terminal end, and coupling”.
Also, in Claim 20 “the first distance along the second axis” and “the second distance along the second axis”. There is insufficient antecedent basis for this limitation in the claim.
Examiner is interpreting that the claim should read
“The facemask kit of claim 19, further comprising a second headgear frame member comprising:
a fourth elongated portion having a fourth terminal end portion comprising a fourth coupling mechanism for removably coupling to the headgear;
a fifth elongated portion oriented non-parallel to the fourth elongated portion, the fifth elongated portion having a fifth terminal end portion comprising a fifth coupling mechanism for removably coupling to the headgear; and
a sixth elongated portion oriented non-parallel to the fourth elongated portion and the fifth elongated portion,
wherein the sixth elongated portion has a second axis extending along the sixth elongated portion, wherein the fourth elongated portion extends a first distance along the second axis, and wherein the fifth elongated portion extends a second distance along the second axis.”
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-3, 5, 7, 11-12 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Veliss et al. (WO 2008106716 A1; 1st interpretation), hereafter as Veliss.
Regarding Claim 1, Veliss discloses a headgear frame member (Figs.3, 68, 70; 22 and 16; para. 00104), comprising:
a first elongated portion (Fig. 69; 130) having a first terminal end portion (140) comprising a first coupling mechanism for removably coupling to headgear (para: 00165-00170); Examiner notes: the 130 includes part of a connection mechanism 138 at its forward end 140 for attachment to a support structure 14 of a mask 10);
a second elongated portion (Fig. 69; 134) oriented non-parallel to the first elongated portion (examiner notes: 130 and 134 are non-parallel), the second elongated portion having a second terminal end (146) portion comprising a second coupling mechanism (160) for removably coupling to the headgear (para: 00165-00170; Examiner notes: the rear end 146 of the lower finger 134 includes an aperture 160 for receiving a lower headgear strap); and
a third elongated portion (Fig. 69; 132) oriented non-parallel to the first elongated portion and the second elongated portion (Fig. 69; para: 00165-00170; all of the three fingers are branched out and upper finger 132 branches upwards from the rear end 142 of the forward finger 130, shown nonparallel to the other fingers),
wherein the third elongated portion has an axis (“A” in Figure A below) extending along the third elongated portion, wherein the first elongated portion (Fig. 60; 130) extends a first distance along the axis (Examiner notes: forward finger 130 extends partially over the axis from rear end 142 to the rightmost edge of the band based on the length of the finger 130) , wherein the second elongated portion extends a second distance along the axis (Examiner notes: lower finger 134 extends partially over the axis from rear end 142 based on the length of the finger 134), and wherein the first distance is different than the second distance (para. 00165; Examiner notes: the first distance is related to the length of 20mm-70mm of the forward finger 130, whereas the second distance is related to the length of 20mm-50mm of the lower finger 134, such that the first distance is generally different than the second distance; The drawings are not relied upon for exact sizes. The drawings are relied upon for what they would reasonably teach one of ordinary skill in the art. In this case, the drawings are relied upon for general relative proportions which are fairly shown in the drawings. See MPEP 2125).
PNG
media_image1.png
671
493
media_image1.png
Greyscale
Figure A: Adapted Fig. 69-70 from Veliss
Regarding Claim 2, Veliss discloses the headgear frame member of claim 1, wherein the first distance (along 130) is greater than the second distance (along 134) ( Fig. 69; para. 00165).
Regarding Claim 3, Veliss discloses the headgear frame member of claim 1, wherein:
the third elongated portion (Fig. 69; 132) has a third terminal end portion (144);
the first coupling mechanism (140) is a third distance away from the third terminal end portion along the axis; and
the second coupling mechanism (160) is a fourth distance away from the third terminal end portion along the axis (Fig. 69; para. 00165-00170; The drawings are not relied upon for exact sizes. The drawings are relied upon for what they would reasonably teach one of ordinary skill in the art. In this case, the drawings are relied upon for general relative proportions which are fairly shown in the drawings. See MPEP 2125).
Regarding Claim 5, Veliss discloses the headgear frame member of claim 3, wherein:
the third terminal end portion (Fig. 69; 144) comprises a third coupling mechanism (144 couples to 152 and 154 shown together in Fig. 69-70);
the first coupling mechanism (140) is the third distance away from the third coupling mechanism along the axis (Fig. 69-70); and
the second coupling mechanism (160) is the fourth distance away from the third coupling mechanism along the axis (Fig. 69-70).
Regarding Claim 7, Veliss discloses the headgear frame member of claim 1, wherein:
the first coupling mechanism (Fig. 69-70; the aperture on 140) comprises a first elongated aperture having a first major axis (Fig. 69);
the second coupling mechanism (Fig. 69-70; 160) comprises a second elongated aperture having a second major axis (Fig. 69-70); and
the first major axis and the second major axis intersect at a location between the headgear frame member and the back of the user's head (See Annotated Figure B below; Examiner notes; extending from the two aperture the axes interact at a location in the back of head between the headgear frame best seen in Fig. 71 for example).
PNG
media_image2.png
582
945
media_image2.png
Greyscale
Figure B: Adapted Figure 3 from Veliss
Regarding Claim 11, Veliss discloses the headgear frame member of claim 1, wherein the first (138/130) and second elongated portions (134) are positioned at an angle of about 60° to 90° with respect to each other (para. 00169; Examiner notes: Veliss this angle may be between about 30°-90°; specifically about 60 degrees).
Regarding Claim 12, Veliss discloses the headgear frame member of claim 11, wherein the angle is about 60°, 61°, 62°, 63°, 64°, 65°, 66°, 67°, 68°, 69°, 70°, 71°, 72°, 73°, 74°, 75°, 76°, 77°, 78°, 79°, 80°, 81°, 82°, 83°, 84°, 85°, 86°, 87°, 88°, 89°, or 90° (para. 00169).
Claim(s) 1, 8-10, 14-18 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Veliss et al. (WO 2008106716 A1; 2nd interpretation).
Regarding Claim 1, Veliss teaches a headgear frame member, comprising:
a first elongated portion (Fig. 69-70; 132) having a first terminal end portion (144) comprising a first coupling mechanism for removably coupling to headgear (Examiner notes: 144 can couple to 152 and 154);a second elongated portion (134) oriented non-parallel to the first elongated portion (Fig. 69-70; the first and second finer are non-parallel), the second elongated portion having a second terminal end portion (146) comprising a second coupling mechanism (160)for removably coupling to the headgear; and a third elongated portion (130) oriented non-parallel to the first elongated portion and the second elongated portion (Examiner notes; the third finger is extended non-parallel to the other two portions),wherein the third elongated portion has an axis extending along the third elongated portion (“B” in Figure A above), wherein the first elongated portion extends a first distance along the axis (132 extends a distance “A” in Figure A above), wherein the second elongated portion (134 extends a distance “C” in Figure A above) extends a second distance along the axis, and wherein the first distance is different than the second distance (“A” and “C” in Figure A above are two different distances).
Regarding Claim 8, Veliss discloses the headgear frame member of claim 1, wherein:
the first coupling mechanism (how 144 is connected to 152, 154; Fig. 69-70) removably couples to the headgear above an ear of a user (best shown in Fig. 3 and Fig. 71); and the second coupling mechanism (Fig. 69; 160) removably couples to the headgear below the ear of the user (best shown in Fig. 3 and fig. 71).
Regarding Claim 9, Veliss discloses the headgear frame member of claim 1, wherein the third elongated portion (Fig. 69; 130) has a third terminal end portion (Fig. 69; 140) comprising a third coupling mechanism (The aperture on 140) for removably coupling to another headgear frame member (best shown in Fig. 3; 22 fits on the another headgear frame member 14).
Regarding Claim 10, Veliss discloses the headgear frame member of claim 9, wherein the third coupling mechanism (Fig. 69; 140) comprises a hook member (Fig. 58a; 178) sized to removably couple to the perimeter of an aperture in the other headgear frame member (shown best in Fig. 58a-58c).
Regarding Claim 14, Veliss discloses the headgear frame member of claim 1, wherein when a hypotenuse of a right triangle is positioned along a portion of the headgear removably coupled to the first elongated portion (Fig. 69-70; 132), the interior angle of the corner of the right triangle abutting the portion of the headgear is about 25° to 55° (“A” in Figure C below) the interior angle of the corner of the right triangle abutting the first elongated portion is about 35° to 65° (“B” in Figure C below; Fig. 69;70; para. 00168; Veliss teaches that 132 is angles about 45 degree from 130, making the other angle approx. 45 degree also).
PNG
media_image3.png
690
932
media_image3.png
Greyscale
Figure C: Adapted Figure 69-70 from Veliss
Regarding Claim 15, Veliss discloses the headgear frame member of claim 14, wherein the interior angle of the corner of the right triangle abutting the portion of the headgear is about 25°, 26°, 27°, 28°, 29°, 30°, 31°, 32°, 33°, 34° 35°, 36°, 37°, 38°, 39°, 40°, 41°, 42°, 43°, 44°, 45°, 46°, 47°, 48°, 49°, 50°, 51°, 52°, 53°, 54°, or 55° ( “A” in Fig. C above, para. 00168).
Regarding Claim 16, Veliss discloses the headgear frame member of claim 15, wherein the interior angle (“A” in Figure C above) of the corner of the right triangle abutting the portion of the headgear is about 40° (para. 00168).
Regarding Claim 17, Veliss discloses the headgear frame member of claim 14, wherein the interior angle (“B” in Figure C above) of the corner of the right triangle abutting the first elongated portion is about 35°, 36°, 37°, 38°, 39°, 40°, 41°, 42°, 43°, 44°, 45°, 46°, 47°, 48°, 49°, 50°, 51°, 52°, 53°, 54°, 55°, 56°, 57°, 58°, 59°, 60°, 61°, 62°, 63°, 64°, or 65° (para. 00168).
Regarding Claim 18, Veliss discloses the headgear frame member of claim 17, wherein the interior angle of the corner of the right triangle (“B” in Figure C above) abutting the first elongated portion (132) is about 50° (para. 00168; Fig. 69-70).
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) 4, 6, and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Veliss (1st interpretation), as applied to claim 3, 5, and 12.
Regarding Claim 4, Veliss discloses the headgear frame member of claim 3,
Veliss does not specifically disclose wherein the third distance is greater than the fourth distance.
However, Although Veliss discloses the claimed first and second elongated portions, it would be obvious to one of the ordinary skill in the art prior to the relevant date to modify Veliss to include that third distance is greater than the fourth distance as a matter of design choice because Veliss teaches that the fingers could be a certain length away from the patient’s ear depending on the age and size of the user (para. 00167). Also, the length may be different in different embodiments which would alter the third distance. Additionally, the finer 132 is designed to avoid a patient field of vision and length-variable itself (00168) which could change the 3rd and 4th distances and it has been held that “where the only difference between the prior art and the claim was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimension would not perform differently than the prior art device, the claimed device was no patentably distinct form the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984) cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case the device of Veliss et al. would not operate differently with the claimed distance and since the distance of the 3rd and 4th distances are intended to reside near the patient ear, the device would functionally appropriately have the claimed distance. Further it appears that applicant has placed no critically on the distances claims, indicating simply that the third and fourth distance could be anything and one being further than the other may be within the claimed distance.
Regarding Claim 6, Veliss discloses the headgear frame member of claim 5,
Veliss does not specifically disclose wherein the third distance is greater than the fourth distance.
However, it would have been obvious to one of ordinary skill in the art prior to the relevant date to modify Veliss to include that the third distance is greater than fourth distance as a matter of design choice because Veliss teaches the fingers could be a certain length away from the patient’s ear depending on the age and size of the user (para. 00167). Also, the length may be different in different embodiments which would alter the third distance. Additionally, the lower finger is configured to be located below an patient’s ear lobe, making it length variable and it has been held that “where the only difference between the prior art and the claim was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimension would not perform differently than the prior art device, the claimed device was no patentably distinct form the prior art device” Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984) cert. denied, 469 U.S. 830, 225 SPQ 232 (1984). In the instant case the device of Veliss et al. would not operate differently with the claimed distance and since the distance of the 3rd and 4th distances are intended to reside near the patient ear, the device would functionally appropriately have the claimed distance. Further it appears that applicant has placed no critically on the distances claims, indicating simply that the third and fourth distance could be anything and one being further than the other may be within the claimed distance.
Regarding Claim 13, Veliss discloses the headgear frame member of claim 12, wherein the angle is about 60° and within a range of 30-90° (para. 00169).
Veliss does not specifically disclose that the angle is about 80°.
It would have been obvious to one having ordinary skill in the art before the effective filling date of the claimed invention to modify the angle of Veliss to be “about’” 80° as applicant appears to have placed no critically on the claimed range (Pg. 3 lines 15; Pg. 11 lines 9-16 indicating that the angle may be within 60-90 degrees) and since it has been held that “[i]n the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art' a prima facie case of obviousness exists”. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). Modifying Veliss to have the claimed angle dimensions would not have adverse effects on the performance of the device and thus the changing angle 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).
Claim(s) 19-23 is/are rejected under 35 U.S.C. 103 as being unpatentable over Veliss, as applied to claim 1 (2nd interpretation), in view of Frater et al. (US 20150151065 A1), hereafter as Frater.
Regarding Claim 19, Veliss discloses a facemask kit, comprising:
the headgear frame member of claim 1 (Fig. 3, 69, 70; para. 00165-00170); and headgear comprising a first elongated member (Fig. 70; 154) and a second elongated member (Fig. 70; 152), wherein the first elongated member of the headgear removably couples to the first elongated portion of the first frame member and adjustment of the tension of the first elongated member alters the force exerted perpendicularly with respect to a sealing element of the facemask (Fig. 70; 136 attaches to the member 22 providing a level of rigidity or reinforcement to the headgear 16).
Veliss does not specifically teach wherein the second elongated member of the headgear removably couples to the second elongated portion of the first frame member and adjustment of the tension of the second elongated member vertically raises and lowers the positioning of the facemask on the user's face (Veliss briefly discusses that 160 on 134 is sued to receiving a lower headgear strap but does not show it).
However, Frater teaches wherein the second elongated member (Fig. 11; 50 and 52) of the headgear removably couples to the second elongated portion (Fig. 11; the loop where 50 and 52 connect to the face mask 20) of the first frame member (20) and adjustment of the tension of the second elongated member vertically raises and lowers the positioning of the facemask (Fig. 11; 10) on the user's face (Fig. 11; 40) (para. 0010, 0044).
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 how the second elongated portion is connected in Veliss to include the wherein the second elongated member of the headgear removably couples to the second elongated portion of the first frame member and adjustment of the tension of the second elongated member vertically raises and lowers the positioning of the facemask on the user's face as taught by Frater for the purpose of the advantages of adjustability to fit a mask and produce a proper seal on the face and secure the mask to the patient. Also, the headgear and tensioning straps are adjustable as to size but relatively inextensible once adjusted (para. 0010, 0044).
Regarding Claim 20, Modified Veliss discloses the facemask kit of claim 19 (please see 112b rejection above), further comprising a second headgear frame member (the another 22 on the other side of the mask; shown best in Fig. 3) comprising:
a fourth elongated portion (Fig. 69-70; the other 132) having a fourth terminal end portion comprising (the other 144) comprising a fourth coupling mechanism for removably coupling to the headgear (Examiner notes: the other 144 can couple to 152 and 154);
a fifth elongated portion (the other 134) oriented non-parallel to the fourth elongated portion (Fig. 69-70; the first and second finer are non-parallel), the fifth elongated portion having a fifth terminal end portion (the other 146) comprising a fifth coupling mechanism (the other 160) for removably coupling to the headgear; and
a sixth elongated portion (the other 130) oriented non-parallel to the fourth elongated portion and the fifth elongated portion (Examiner notes; the third finger is extended non-parallel to the other two portions), wherein the sixth elongated portion has a second axis extending along the sixth elongated portion (“B” in Figure A above), wherein the fourth elongated portion extends a first distance along the second axis (the other 132 extends a distance “A” in Figure A above), wherein the fifth elongated portion (the other 134 extends a distance “C” in Figure A above) a second distance along the second axis, and wherein the first distance is different than the second distance (“A” and “C” in Figure A above are two different distances).
Regarding Claim 21, Modified Veliss discloses facemask kit of claim 20, further comprising a third headgear frame member (Fig. 3; 14; Veliss) that removably couples to the headgear frame member (one side of 22; Veliss) and the second headgear frame member (the other side of 22; Fig. 3; Veliss).
Regarding Claim 22, Modified Veliss discloses facemask kit of claim 21, further comprising a facemask body (Fig. 3; 12; Veliss) that removably couples to the third headgear frame member (Fig. 3; 14; para. 00152).
Regarding Claim 23, Modified Veliss discloses facemask kit of claim 22, wherein the facemask body (Fig. 3; 12; Veliss) comprises a fluid-filled cushion (12) that facilitates a seal between the facemask body and the user's face (para. 00112, 00152).
Conclusion
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 at (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 A. ELLABIB
Examiner
Art Unit 3785
/M.A.E./Examiner, Art Unit 3785
/KENDRA D CARTER/Supervisory Patent Examiner, Art Unit 3785
Prosecution Insights