Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Information Disclosure Statement
The Information Disclosure Statement(s) have been reviewed by the examiner and are found to comply with the provisions of 37 CFR 1.97, 1.98, and MPEP § 609.
Drawings
The drawing(s) have been reviewed by the examiner and are found to comply with the provisions of 37 CFR 1.81 to 1.85.
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 2, 3, and dependents therein 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.
The claim term “concave” found in claim 2 is unclear upon review of the specification. A claim, although clear on its face, may also be indefinite when a conflict or inconsistency between the claimed subject matter and the specification disclosure renders the scope of the claim uncertain as inconsistency with the specification disclosure or prior art teachings may make an otherwise definite claim take on an unreasonable degree of uncertainty. See MPEP 2173.02. In the instant case, the “recess formed concave” found in claim 2 corresponds to the space 114 in Fig. 2, see instant specification. Such space is not curved and therefore is not “concave” per the ordinary definition of the term. As such, examiner will hereby interpret the phrase as a “recess formed cave” or merely “recess” for the purposes of examination.
Claim 3 recites the limitation "a plurality of airflow holes". There is improper antecedent basis for this limitation in the claim, since the plurality of airflow holes have been previously recited.
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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “a functional material accommodation member” in claims 1 – 4 and 7 – 10.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 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.
Claim(s) 1 – 10 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Guentert (DE 19502725; see provided translation).
1. Guentert discloses an inhaler for inhaling functional materials (see Figs. 1 – 2, [0001]), the inhaler comprising: a holder (2) comprising an opening and an inner space communicating with the opening (holder 2 having opening and inner space allowing unit 3 and casing 17 to compressably engage with the interior of the unit 2, see [0022]; in an alternative interpretation, examiner notes that the holder may be considered to be both units 2 and 3 together, with the proximal edge of 17 forming the opening for insertion of 19/11, see [0022]); a piercing member that is arranged in the inner space and protrudes toward the opening (20, see [0025], Fig. 1); and a functional material accommodation member that is inserted from the opening into the inner space of the holder along a longitudinal axis of the holder and is configured to accommodate the functional materials (3, see Fig. 1, [0022], [0019]; in the alternative interpretation, the accommodation member is 19/11) , wherein the piercing member comprises a plurality of holes through which air communicates (31, see Fig. 1).
2. Guentert discloses the inhaler of claim 1, wherein the holder comprises a first holder surface in which the opening is formed, a second holder surface facing the first holder surface, and a side holder surface between the first holder surface and the second holder surface, wherein the inner space comprises a recess formed concave from the opening towards the second holder surface, and wherein the piercing member protrudes from an end of the inner space toward the opening (see Fig. 1, respective distal, proximal, and side surfaces of 2; note alternative interpretation 2/3 as well; note interpretation of concave per section 112(b) above).
3. Guentert discloses the inhaler of claim 2, wherein the piercing member comprises: a base combined with the end of the inner space; a body extending from the base towards the opening; a tip arranged at an end of the body (see Fig. 1, distal base, sidewall body, and tip 29); an airflow path formed inside the body (see Fig. 2, 33); and a plurality of airflow holes that communicates with the airflow path and is formed on an outside of the body (31, see Fig. 2).
4. Guentert discloses the inhaler of claim 3, wherein the plurality of airflow holes is formed to be spaced apart along a longitudinal direction of the body (31, see Fig. 2).
5. Guentert discloses the inhaler of claim 4, wherein the functional material accommodation member comprises: a stick that is insertable into the inner space; and a capsule that is arranged inside the stick and is configured to accommodate the functional materials (examiner considers the stick as unit 3, capsule 7, see Fig. 1, [0019]; in the alternative interpretation, the stick is 11).
6. Guentert discloses the inhaler of claim 5, wherein a length from the base to the tip of the piercing member is configured to be longer than a longitudinal length of the capsule (see Fig. 2).
7. Guentert discloses the inhaler of claim 1, further comprising: an elastic member arranged at the end of the inner space (spring 22, see Fig. 1).
8. Guentert discloses the inhaler of claim 7, wherein the airflow holes include a first airflow hole set (32 on right and left sides) and a second airflow hole set (31), wherein the first airflow hole set is formed in a first body area of the piercing member and the second airflow hole set is formed in a second body area of the piercing member, wherein the first body area is an area between the base and an end of the elastic member, in a state where the elastic member is uncompressed (see Fig. 1), and wherein the second body area is an area between the end of the elastic member and the tip, in a state where the elastic member is uncompressed (see Fig. 1).
9. Guentert discloses the inhaler of claim 8, wherein a longitudinal length of the second body area is configured to be shorter than the longitudinal length of the capsule (examiner considers the second body area as delimited by top/bottom edges of holes 31; however, examiner notes that per [0022], the device is fully capable of receiving a different accommodation member having an elongated capsule, for example a capsule longer than unit 3, in an alternative interpretation).
10. Guentert discloses the inhaler of claim 1, wherein an inlet, through which airflow flows in, is formed between an outside of the holder and the inner space (see 53, [0034]).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Piercing through capsule - US 4137914
Plurality of holes in piercing member - US 20100108062
Piercing housing - US 20190116879
Piercing housing multiple holes - US 20200046020
Piercing housing - US 20220379051
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRADLEY H PHILIPS whose telephone number is (571)270-5180. The examiner can normally be reached 8:00 - 5:00 M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brandy Lee can be reached at (571) 270-7410. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRADLEY H PHILIPS/Primary Examiner, Art Unit 3799
