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 .
Specification
The disclosure is objected to because of the following informalities: The specification should be amended to include claim benefit to the foreign and domestic application(s).
Appropriate correction is required.
Allowable Subject Matter
Claims 10, 12-13, 16-17 and 20 are 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. Claims 10 and 14 propose a structure that is not disclosed, taught or rendered obvious by the references discovered.
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, 14, 18, 21 and 23 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 8 recites the limitation "the first resilient member”. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 recites the limitation "the first tensioning arrangement”. There is insufficient antecedent basis for this limitation in the claim.
Claim 8 recites the limitation "the second resilient member”. There is insufficient antecedent basis for this limitation in the claim.
Claim 14 recites “wherein an angle between the arm holder and the body portion preferably is adjustable”. It is unclear whether the limitations are preferred (i.e., optional) or required. MPEP 2173 states that claims must particularly point out and distinctly claim the invention.
Claim 18 recites “wherein the body portion preferably is height adjustably mounted to the beam member of the stand”. It is unclear whether the limitations are preferred (i.e., optional) or required. MPEP 2173 states that claims must particularly point out and distinctly claim the invention.
Claim 21 recites “wherein the support structure preferably comprises [] wherein the first button and the second button preferably are” . It is unclear whether the limitations are preferred (i.e., optional) or required. MPEP 2173 states that claims must particularly point out and distinctly claim the invention.
Claim 23 recites “second field generator preferably comprises” . It is unclear whether the limitations are preferred (i.e., optional) or required. MPEP 2173 states that claims must particularly point out and distinctly claim the 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 (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 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.
Claim(s) 1-7, 9, 11, 21, 23 is/are rejected under 35 U.S.C. 103 as being unpatentable over multiple embodiment of the single reference WO2021074453A1 (published 04/22/2021) to Schnell et al. (hereinafter “Schnell” – on IDS).
Regarding claim 1. (Currently Amended) Schnell disclose a respiration promoting apparatus (abstract, para 0009) [[(1)]] to coordinately stimulate two Phrenic nerves at a neck of a patient for activating a diaphragm of the patient (para 0010 “stimulate two Phrenic nerves of a patient for activating a diaphragm of the patient”), comprising: a first field generator [[(21)]] configured to generate a first spatial field and configured to be positioned at the patient to stimulate a first Phrenic nerve of the two Phrenic nerves of the patient by means of the first spatial field (para 0006, 0010 “a first forward face configured to be positioned at the patient to stimulate a first Phrenic nerve of the two Phrenic nerves of the patient”); a second field generator [[(22)]] configured to generate a second spatial field and configured to be positioned at the patient to stimulate a second Phrenic nerve of the two Phrenic nerves of the patient by means of the second spatial field (para 0006, 0010 “a second coil unit having a second forward face configured to be positioned at the patient to stimulate a second Phrenic of the patient”); and a support structure (para 0010, 00113 “a bracket structure 95”) [[(3)]] having an arm holder (para 0113, “bracket structure 95”) [[(33)]], a first arm [[(31)]] and a second arm [[(32)]] (para 0113 “first and second height adjusting neck sections 9122, 9222”), wherein the first arm [[(31)]] and the second arm [[(32)]] extend from the arm holder [[(33)]] (figs 8-9), wherein the first field generator [[(21)]] is mounted to the first arm [[(31)]] and the second field generator [[(22)]] is mounted to the second arm [[(32)]] (figs 8-9), and wherein the support structure [[(3)]] is configured to position the arm holder [[(33)]] above and/or behind a head of the patient such that the first arm [[(31)]] and the second arm [[(32)]] laterally extend along the head towards the neck of the patient (para 0032, 0034-0038, 00113-00115, 00119, figs 8-9).
Regarding claim 2. (Currently Amended) Schnell disclose the respiration promoting apparatus [[(1)]] of claim 1, wherein the first arm [[(31)]] and the second arm [[(32)]] are manually adjustable relative to the arm holder [[(33)]] to individually position the first field generator [[(21)]] and the second field generator [[(22)]] in a target position at the neck of the patient (para 0010 “by changing a configuration for adjusting the bracket structure the position of the first coil unit and the second coil unit relative to the patient and relative to each other can be adapted to specific treatment requirements of a specific patient for example by choosing differing distances between the coil units and a patient’s body. Further, the orientation of first and second coil unit relative to each other and the orientation of the coil units relative to the patient can be adapted for example by choosing differing angle adjustments for the first and the second coil units.”, 0020, etc.).
Regarding claim 3. (Currently Amended) Schnell disclose the respiration promoting apparatus [[(1)]] of claim 2, comprising a locking mechanism [[(4)]] to block the first arm [[(31)]] and the second arm [[(32)]] in the target positions (para 0040, 0052-0053 “locking mechanism”).
Regarding claim 4. (Currently Amended) Schnell disclose the respiration promoting apparatus [[(1)]] of claim 3, wherein the locking mechanism [[(4)]] comprises a first lever element [[(41)]] at the first arm [[(31)]] to operate the locking mechanism [[(4)]] with respect to the first arm [[(31)]] and a second lever element [[(42)]] at the second arm [[(32)]] to operate the locking mechanism [[(4)]] with respect to the second arm [[(32)]] (para 0040 “By means of the first and second fastening members the position and orientation of the first coil and second units relative to each other can be blocked in a target configuration”).
Regarding claim 5. (Currently Amended) Schnell disclose the respiration promoting apparatus [[(1)]] of claim 4, wherein the locking mechanism [[(4)]] is configured to allow adjustment of the first arm [[(31)]] when the first lever element [[(41)]] is activated, to block adjustment of the first arm [[(31)]] when the first lever element [[(41)]] is not activated, to allow adjustment of the second arm [[(32)]] when the second lever element [[(42)]] is activated, and to block adjustment of the second arm [[(32)]] when the second lever element [[(42)]] is not activated (see rejection of claims 2-4).
Regarding claim 6. (Currently Amended) Schnell disclose the respiration promoting apparatus [[(1)]] of claim 3, wherein the locking mechanism [[(4)]] comprises a first tensioning arrangement [[(43)]] blocking the first arm [[(31)]] in the target position when being tensioned, and a second tensioning arrangement [[(44)]] blocking the second arm [[(32)]] in the target position when being tensioned (para 00115 “first fastening screw 917”, “second fastening screw 927”).
Regarding claim 7. (Currently Amended) Schnell disclose the respiration promoting apparatus of claim 6, wherein the first tensioning arrangement [[(43)]] comprises a first resilient member (431) blocking the first arm [[(31)]] in the target position when being tensioned and the second tensioning arrangement [[(44)]] comprises a second resilient member (441) blocking the second arm [[(32)]] in the target position when being tensioned (para 00115 “first fastening screw 917”, “second fastening screw 927”).
Regarding claim 9. (Currently Amended) Schnell disclose the respiration promoting apparatus [[(1)]] of claim 2, wherein the first arm [[(31)]], the second arm [[(32)]] and the arm holder [[(33)]] are configured such that a length of the first arm [[(31)]] and a length of the second arm [[(32)]] are adjustable (para 0119).
Regarding claim 11. (Currently Amended) Schnell disclose the respiration promoting apparatus [[(1)]] of claim 9, wherein the support structure [[(3)]] comprises two shifter members
19. (Canceled)
Regarding claim 21. (Currently Amended) Schnell disclose the respiration promoting apparatus [[(1)]] of claim 1, comprising a control unit configured to operate the first field generator [[(21)]] to stimulate the first Phrenic nerve of the patient and to operate the second field generator [[(22)]] to stimulate the second Phrenic nerve of the patient (para 0054-0056), wherein the support structure preferably comprises a first button at the first arm of the support structure and a second button at the second arm of the support structure, wherein the first button and the second button preferably are interfacing with the control unit such that activation of the first button and/or the second button provides control signals to the control unit (limitations introduced as “preferred” are considered optional and not required).
22. (Cancelled)
Regarding claim 23. (Currently Amended) Schnell disclose the respiration promoting apparatus [[(1)]] of claim 1, wherein the support structure [[(3)]] is equipped with a data storage configured to collect data about operation of the first field generator [[(21)]] and the second field generator [[(22)]], wherein the data about operation of the first field generator and the second field generator preferably comprises any of duration or intensity, or a combination thereof (para 0057 “biofeedback” capabilities; limitations introduced as “preferred” are considered optional and not required).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SANA SAHAND whose telephone number is (571)272-6842. The examiner can normally be reached M-Th 8:30 am -5:30 pm; F 9 am-3 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jennifer S McDonald can be reached at (571) 270- 3061. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SANA SAHAND/Examiner, Art Unit 3796
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