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 .
Priority
Acknowledgement is made to Applicant's claim to priority to U.S. Provisional App. No. 63/584,741 filed 9/22/2023.
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 11-17 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 11 recites the limitation "the one or more components" in line 1-2. There is insufficient antecedent basis for this limitation in the claim. It is unclear if this limitation is intended to refer to the “one or more components” introduced in claim 10 or establish a new “one or more components” limitation. For the purposes of this Office Action, this limitation is interpreted as establishing a new “one or more components” limitation.
Claim 12 recites the limitation "the one or more components" in line 1-2. There is insufficient antecedent basis for this limitation in the claim. It is unclear if this limitation is intended to refer to the “one or more components” introduced in claim 10 or establish a new “one or more components” limitation. For the purposes of this Office Action, this limitation is interpreted as establishing a new “one or more components” limitation.
Claim 13 recites the limitation "the one or more components" in line 1-2. There is insufficient antecedent basis for this limitation in the claim. It is unclear if this limitation is intended to refer to the “one or more components” introduced in claim 10 or establish a new “one or more components” limitation. For the purposes of this Office Action, this limitation is interpreted as establishing a new “one or more components” limitation.
Claim 14 recites the limitation "the toxin absorber solution" in line 1-2. There is insufficient antecedent basis for this limitation in the claim. It is unclear if this limitation is intended to refer to the “toxin absorber solution” introduced in claim 11 or claim 13, or establish a new “one or more components” limitation. For the purposes of this Office Action, this limitation is interpreted as establishing a new “toxin absorber solution” limitation.
Claim 15 recites the limitation "the one or more components" in line 1-2. There is insufficient antecedent basis for this limitation in the claim. It is unclear if this limitation is intended to refer to the “one or more components” introduced in claim 10 or establish a new “one or more components” limitation. For the purposes of this Office Action, this limitation is interpreted as establishing a new “one or more components” limitation.
Claim 16 recites the limitation "the one or more components" in line 1-2. There is insufficient antecedent basis for this limitation in the claim. It is unclear if this limitation is intended to refer to the “one or more components” introduced in claim 10 or establish a new “one or more components” limitation. For the purposes of this Office Action, this limitation is interpreted as establishing a new “one or more components” limitation.
Claim 17 recites the limitation "the protective gear" in line 1-2. There is insufficient antecedent basis for this limitation in the claim. It is unclear if this limitation is intended to refer to the “protective gear” introduced in claim 16 or establish a new “protective gear” limitation. For the purposes of this Office Action, this limitation is interpreted as establishing a new “protective gear” limitation.
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) 1-5 and 7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bibby (WO 2018148799 A1).
Regarding claim 1, Bibby discloses a device for use in providing CPR to an animal (resuscitation apparatus for non-human animals; par. 0009) comprising: an air delivery member (nose piece 130; Fig. 2-6); and a barrier member (barrier 110; Fig. 2-5), said barrier member configured to secure to said air delivery member at a first end (shaped collar 115 of barrier connects with the nose piece 130; Fig. 3, 5, par. 0091), and to an animal at a second end (barrier 110 is sized and shaped to be fitted over the snout of the canine; par. 0087).
Regarding claim 2, Bibby discloses the device according to claim 1 (shown above), wherein the air delivery member (nose piece 130) comprises a first end (end of nose piece 130 at base 132; Fig. 3), a second end (end of nose piece 130 at rim 136; Fig. 3), and a main body separating the first end and the second end (sidewall 135 separating the base 132 and rim 136; Fig. 3).
Regarding claim 3, Bibby discloses the device according to claim 1 (shown above), wherein the barrier member is configured to engage with and/or secure to an animal’s snout (barrier 110 is sized and shaped to be fitted over the snout of the canine; par. 0087), said barrier member comprising a first end (barrier 110 has a first end at opening 114; Fig. 3), a second end (barrier 110 has a second end at opening 113; Fig. 3), and a main body separating the first end and the second end (body 111 separates first end at 114 and second end at 113; Fig. 3).
Regarding claim 4, Bibby discloses the device according to claim 1 (shown above), wherein the barrier member first end comprises a first end opening (opening 114; Fig. 3, par. 0090), and the second end comprises a second end opening (opening 113; Fig. 3, par. 0092).
Regarding claim 5, Bibby discloses the device according to claim 1 (shown above), wherein the barrier member is made of a flexible or stretchable material (barrier 110 is formed from a flexible material; par. 0093).
Regarding claim 7, Bibby discloses the device according to claim 5 (shown above), wherein the animal is a dog (mask is configured to be fitted over a snout of a canine; Fig. 1, par. 0086).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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) 6 and 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bibby.
Regarding claim 6, Bibby discloses the device according to claim 5 (shown above). Bibby discloses the barrier can be formed by any material suitable to be fitted over the snout of the animal (par. 0013).
Bibby does not explicitly disclose wherein the flexible or stretchable material is nitrile.
However, it would have been obvious to modify the flexible material of Bibby to be nitrile as a matter of design choice since Applicant places no criticality on the flexible material being nitrile (see par. 0060 of Applicant’s specification which states the barrier member is made of non-latex rubber).
Regarding claim 8, Bibby discloses the device according to claim 1 (shown above), comprising a filter located within the opening of the barrier member or between the air delivery member and the barrier member (par. 0067, 00105).
Bibby does not explicitly disclose wherein the air delivery member comprises a filter.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to rearrange the filter of Bibby such that the air delivery member comprises the filter since this rearrangement of parts would not modify the operation of the device and would be an obvious matter of design choice (see MPEP 2144.04(VI)(C)).
Claim(s) 5 and 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Bibby in view of Roh (US 20170112605 A1).
Regarding claim 5, Bibby discloses the device according to claim 1 (shown above), wherein the barrier member is made of a flexible material (barrier 110 is formed from a flexible material; par. 0093).
Bibby does not explicitly disclose the barrier member is made of a stretchable material.
Roh teaches an artificial respirator for pets (abstract) wherein a barrier member is made of a stretchable material (the mask part 10 is made of a stretchable material; par. 0031, Fig. 1-8) for the purpose of adjusting the size of the barrier member according to the size of the animal (par. 0031).
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 barrier member of Bibby to be made of a stretchable material as taught by Roh for the purpose of adjusting the size of the barrier member according to the size of the animal (Roh par. 0031).
Regarding claim 6, the modified Bibby discloses the device according to claim 5 (shown above).
The modified Bibby does not explicitly disclose wherein the flexible or stretchable material is nitrile.
However, it would have been obvious to modify the stretchable material of the modified Bibby to be nitrile as a matter of design choice since Applicant places no criticality on the stretchable material being nitrile (see par. 0060 of Applicant’s specification which states the barrier member is made of non-latex rubber).
Claim(s) 9-10 and 15-19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kunitz (US 20170020751 A1) in view of “Help! The Bufo Marinus Frog (Cane Toad) Poisoned My Dog!” by Mary Hyatt (article published March 13, 2023), hereafter Hyatt, further in view of Bibby.
Regarding claim 9, Kunitz discloses a kit for use in responding to first aid situations in animals (par. 0003).
Kunitz does not explicitly disclose a kit for use in responding to toxic cane toad poisoning in animals comprising: at least one apparatus for use in providing CPR to an animal.
Hyatt teaches that cane toads produce toxin that can harm animals, such as dogs, and exposure to cane toad toxin requires immediate first aid, which may include providing CPR to the animal (pg. 3-4).
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 first aid kit of Kunitz to be for use in responding to toxic cane toad poisoning and comprise at least one apparatus for use in providing CPR to an animal since Hyatt teaches cane toad toxin exposure requires immediate first aid, which may include providing CPR to the animal (pg. 3-4).
The modified Kunitz does not disclose said apparatus comprising an air delivery member; and a barrier member, said barrier member configured to secure to said air delivery member at a first end, and to an animal at a second end
Bibby teaches an apparatus for use in providing CPR to an animal comprising: an air delivery member (nose piece 130; Fig. 2-6); and a barrier member (barrier 110; Fig. 2-5), said barrier member configured to secure to said air delivery member at a first end (shaped collar 115 of barrier connects with the nose piece 130; Fig. 3, 5, par. 0091), and to an animal at a second end (barrier 110 is sized and shaped to be fitted over the snout of the canine; par. 0087) for the purpose of providing effective resuscitation while avoiding contact with animal body fluids (par. 0010).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify Kunitz wherein the apparatus for providing CPR to an animal comprises an air delivery member and a barrier member as taught by Bibby for the purpose of providing effective resuscitation while avoiding contact with animal body fluids (Bibby par. 0010).
Regarding claim 10, the modified Kunitz discloses the kit according to claim 9 (shown above), further comprising one or more components that are usable for treating an animal suffering from toxic cane toad poisoning (animal first aid kit includes components such as gloves, gauze, and saline solution, Kunitz par. 0017, which could be used for treating an animal suffering from toxic cane toad poisoning).
Regarding claim 15, as best understood based on the 35 U.S.C. 112(b) issue identified above, the modified Kunitz discloses the kit according to claim 9 (shown above), wherein the one or more components that are usable for treating an animal suffering from toxic cane toad poisoning comprises a bottle for holding and delivering a fluid (bottle of saline solution; Kunitz Fig. 2, par. 0004, 0017).
Regarding claim 16, as best understood based on the 35 U.S.C. 112(b) issue identified above, the modified Kunitz discloses the kit according to claim 9 (shown above), wherein the one or more components that are usable for treating an animal suffering from toxic cane toad poisoning comprises protective gear (kit includes gloves; Kunitz par. 0017).
Regarding claim 17, as best understood based on the 35 U.S.C. 112(b) issue identified above, the modified Kunitz discloses the kit according to claim 9 (shown above), wherein the protective gear includes protective gloves or safety glasses (kit includes gloves; Kunitz par. 0017).
Regarding claim 18, the modified Kunitz discloses the kit according to claim 9 (shown above).
The modified Kunitz does not explicitly disclose including two or more barrier members.
However, the duplication of parts has no patentable significance unless a new and unexpected result in produced (see MPEP 2144.04(VI)(B)). Additionally, the kit of Kunitz contains multiples of other components, such as multiple swabs and bandages (Fig. 2, par. 0017). Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify Kunitz to include two or more barrier members since Kunitz discloses that a kit may have multiples of some components. One of ordinary skill in the art would have recognized that having two or more barrier members would allow for the kit to be used multiple times or for a first barrier member to be replaced if it is damaged or otherwise rendered unusable.
Regarding claim 19, the modified Kunitz discloses the kit according to claim 18 (shown above), wherein the two or more barrier members are the same size (kit contains multiples of the barrier member, as modified above, which would be of the same size).
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kunitz, in view of Hyatt, in view of Bibby, as applied to claim 9 above, and further in view of “Toxicology case: Successful treatment of Bufo marinus intoxication in a dog” (article published March 18, 2015), hereafter Toxicology.
Regarding claim 11, as best understood based on the 35 U.S.C. 112(b) issue identified above, the modified Kunitz discloses the kit according to claim 9 (shown above).
The modified Kunitz does not disclose wherein the one or more components that are usable for treating an animal suffering from toxic cane toad poisoning comprises toxin absorber solution.
Toxicology teaches a toxin absorber solution for treating toxic cane toad poisoning (treatment methods include activated charcoal, which is likely effective in binding bufotoxins; last three lines of pg. 1, pg. 3 under “Decontamination”).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify Kunitz to include a toxin absorber solution, such as activated charcoal, since Toxicology teaches activated charcoal is effective in treating cane toad poisoning.
Claim(s) 12-14 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kunitz, in view of Hyatt, in view of Bibby, as applied to claim 9 above, further in view of Toxicology, and further in view of “How to Administer Activated Charcoal | Activated Charcoal Administration in Veterinary Patients” by atDove (YouTube video posted January 27, 2017), hereafter Dove.
Regarding claim 12, as best understood based on the 35 U.S.C. 112(b) issue identified above, the modified Kunitz discloses the kit according to claim 9 (shown above).
The modified Kunitz does not disclose wherein the one or more components that are usable for treating an animal suffering from toxic cane toad poisoning comprises a toxin absorber delivery device.
Toxicology teaches a toxin absorber solution for treating toxic cane toad poisoning (treatment methods include activated charcoal, which is likely effective in binding bufotoxins; last three lines of pg. 1, pg. 3 under “Decontamination”).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify Kunitz to include a toxin absorber solution, such as activated charcoal, since Toxicology teaches activated charcoal is effective in treating cane toad poisoning.
The modified Kunitz does not disclose a toxin absorber delivery device.
Dove teaches a method of delivering a toxin absorber to animals using a toxin absorber delivery device (activated charcoal comes in syringes for delivery to dogs; shown in screen capture, audio transcript on pg. 2 line 2, 5, 8-16, 27).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify Kunitz to comprise a toxin absorber delivery device since Dove teaches that a delivery device is effective for administering a toxin absorber, such as activated charcoal (Dove audio transcript on pg. 2 line 2, 5, 8-16, 27).
Regarding claim 13, as best understood based on the 35 U.S.C. 112(b) issue identified above, the modified Kunitz discloses the kit according to claim 9 (shown above).
The modified Kunitz does not disclose wherein the one or more components that are usable for treating an animal suffering from toxic cane toad poisoning comprises a toxin absorber solution prefilled in a toxin absorber delivery device.
Toxicology teaches a toxin absorber solution for treating toxic cane toad poisoning (treatment methods include activated charcoal, which is likely effective in binding bufotoxins; last three lines of pg. 1, pg. 3 under “Decontamination”).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify Kunitz to include a toxin absorber solution, such as activated charcoal, since Toxicology teaches activated charcoal is effective in treating cane toad poisoning.
The modified Kunitz does not disclose a toxin absorber solution prefilled in a toxin absorber delivery device.
Dove teaches a method of delivering a toxin absorber to animals using a toxin absorber solution prefilled in a toxin absorber delivery device (activated charcoal comes in syringes for delivery to dogs; shown in screen capture, audio transcript on pg. 2 line 2, 5, 8-16, 27).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify Kunitz to comprise a toxin absorber solution prefilled in a toxin absorber delivery device since Dove teaches that a delivery device is effective for administering a toxin absorber, such as activated charcoal (Dove audio transcript on pg. 2 line 2, 5, 8-16, 27).
Regarding claim 14, as best understood based on the 35 U.S.C. 112(b) issue identified above, the modified Bibby discloses the kit according to claim 9 (shown above).
The modified Kunitz does not disclose wherein the toxin absorber solution is activated charcoal.
Toxicology teaches a toxin absorber solution which is activated charcoal for treating toxic cane toad poisoning (treatment methods include activated charcoal, which is likely effective in binding bufotoxins; last three lines of pg. 1, pg. 3 under “Decontamination”).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify Kunitz to include activated charcoal as a toxin absorber solution since Toxicology teaches activated charcoal is effective in treating cane toad poisoning.
Claim(s) 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kunitz, in view of Hyatt, in view of Bibby, as applied to claim 18 above, further in view of Jackson (US 20180169358 A1).
Regarding claim 20, the modified Kunitz discloses the kit according to claim 18 (shown above).
The modified Kunitz does not disclose wherein the two or more barrier members are varied sizes.
Jackson teaches a device for administering CPR to pets (abstract) including a barrier member (muzzle 14 functions as a protective barrier during mouth to snout rescue breathing; par. 0023) wherein the device is provided in varied sizes (device 10 which includes muzzle 14 comes in various sizes; par. 0017-0018) for the purpose of accommodating various sizes of animals (par. 0017).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify Kunitz wherein the two or more barrier members are varied sizes since Jackson teaches devices for providing CPR are preferably provided in various sizes for the purpose of accommodating various sizes of animals (Jackson par. 0017).
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 conflicting claims 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); 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 nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) 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 www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-8 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-8 of copending Application No. 19/080,297 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claim 1, the reference application recites a device for use in providing CPR to an animal (claim 1 line 1) comprising: an air delivery member (claim 1 line 3); and a barrier member (claim 1 line 4), said barrier member configured to secure to said air delivery member at a first end, and to an animal at a second end (claim 1 lines 4-6).
Regarding claim 2, the recited limitations are contained in reference application claim 2, lines 1-3.
Regarding claim 3, the recited limitations are contained in reference application claim 3, lines 1-3 and claim 1 lines 6-8.
For application’s dependent claims 4-8, the recited limitations are contained in reference application claims 4-8, respectively.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
A rejection based on double patenting of the “same invention” type finds its support in the language of 35 U.S.C. 101 which states that “whoever invents or discovers any new and useful process... may obtain a patent therefor...” (Emphasis added). Thus, the term “same invention,” in this context, means an invention drawn to identical subject matter. See Miller v. Eagle Mfg. Co., 151 U.S. 186 (1894); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Ockert, 245 F.2d 467, 114 USPQ 330 (CCPA 1957).
A statutory type (35 U.S.C. 101) double patenting rejection can be overcome by canceling or amending the claims that are directed to the same invention so they are no longer coextensive in scope. The filing of a terminal disclaimer cannot overcome a double patenting rejection based upon 35 U.S.C. 101.
Claims 9-20 are provisionally rejected under 35 U.S.C. 101 as claiming the same invention as that of claims 9-20 of copending Application No. 19/080,297 (reference application). This is a provisional statutory double patenting rejection since the claims directed to the same invention have not in fact been patented.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
“Toad Venom Poisoning in Dogs” by Barri J. Morrison, DVM (article published January 3, 2023) discloses methods for treating toxic cane toad poisoning in dogs.
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/K.R./Examiner, Art Unit 3785
/BRANDY S LEE/Supervisory Patent Examiner, Art Unit 3785
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