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 Interpretation
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.
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.
Claims 1-5 and 7-20 are rejected under 35 U.S.C. 103 as being unpatentable over Leyva eta l. (U.S. Publication No. 2017/0209610) in view of Kain et al. (U.S. Publication No. 2014/0193294).
Concerning claims 1, 12 and 17, Leyva discloses a sanitizing system, comprising:
A base including an opening to a sanitizing chamber (135), the sanitizing chamber (135) comprising at least one exhaust port (125);
A lid (132) configured to transition from an open lid position to a closed lid position, wherein the lid is configured to extend across the opening to the sanitizing chamber (135) when the lid is in the closed position (paragraph 15; Figure 1);
A sanitizing gas generator (202) configured to generate a sanitizing gas, the sanitizing gas generator located within the base (paragraphs 15-22);
An outlet (110) configured to fluidly couple a first end of a continuous positive airway pressure (CPAP) hose (115) to the sanitizing gas generator (paragraph 18);
A passageway (105) configured to be secured to the CPAP hose (115) such that a second end of the CPAP hose is in fluid communication with the sanitizing chamber (paragraphs 15-20); and
A primary fan or pump located within the base, and configured to push or draw at least a portion of the sanitizing gas through the CPAP hose (115) to the sanitizing chamber in the base (paragraphs 15-20).
Leyva does not appear to disclose a secondary fan or pump located within the base, and configured to push or draw gas within the sanitizing chamber through the at least one exhaust port and outside of the sanitizing chamber when the lid is in the closed lid position to seal the chamber. Kain discloses a sanitizing system that includes a base (101) with a sanitizing chamber (Figure 2), and an opening that is closed by a lid/door (500) as set forth in paragraphs 21-23; wherein the system also includes a sanitizing gas generator (353) within the base (Figures 2 & 3; paragraph 29), and a primary fan or pump (319) located within the base (Figures 2 & 3) configured to push gas within the sanitizing chamber (paragraphs 38 & 39). The reference continues to disclose a secondary fan or pump (333) located within the base (Figures 2 & 3), and configured to push or draw gas within the sanitizing chamber through at least one exhaust port (354) when the lid (500) is in the closed lid position to seal the chamber in order to expedite converting the sanitizing gas into a harmless exhausted gas flow (paragraphs 29 and 42-44). Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the system of Leyva with a secondary fan or pump located within the base, and configured to push or draw gas within the sanitizing chamber through the at least one exhaust port and outside of the sanitizing chamber when the lid is in the closed lid position to seal the chamber in order to expedite converting the sanitizing gas into a harmless exhausted gas flow as exemplified by Kain.
Therefore, claims 1, 12 & 17 are not patentable over Leyva in view of Kain (herein referred to as modified Leyva).
Regarding claims 2, 13 and 18, modified Leyva continues to disclose a filter (paragraph 23 of Leyva; numeral 339 of Kain disclosed in paragraphs 42 & 44), wherein the secondary fan or pump is configured to push or draw the gas withing the sanitizing chamber through a filter (paragraph 23 of Leyva; paragraphs 42 & 44 of Kain).
With respect to claim 3, Leyva does not appear to disclose that the filter is a filter cartridge comprising a shell and a filter media housed within the shell, the shell comprising a filter inlet and a filter outlet. Nonetheless, Kain continues to disclose that the filter is a filter cartridge comprising a shell and a filter media housed within the shell, the shell comprising a filter inlet and a filter outlet in order to house a catalyst converting element that decomposes the sanitizing gas into a harmless byproduct (paragraphs 42-44). Thus, it would have also been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize a filter with a filter cartridge comprising a shell and a filter media housed within the shell, the shell comprising a filter inlet and a filter outlet in Leyva in order to house a catalyst converting element that decomposes the sanitizing gas into a harmless byproduct as exemplified by Kain.
As such, claim 3 is not patentable over Leyva in view of Kain as well.
Concerning claims 4 & 8, modified Leyva discloses that the secondary fan or pump is located downstream of said filter outlet (See explanation to claims 2, 3, 13 and 18 above).
Regarding claims 5, 9, 14 and 19, modified Leyva does not appear to disclose that the secondary fan is located upstream of said filter. Nonetheless, In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) (Claims to a hydraulic power press which read on the prior art except with regard to the position of the starting switch were held unpatentable because shifting the position of the starting switch would not have modified the operation of the device.); In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) (the particular placement of a contact in a conductivity measuring device was held to be an obvious matter of design choice). See MPEP 2144.04 [VI](C). Thus, the placement of the secondary fan upstream from the filter does not create a patentable distinction over the secondary fan being located downstream of the filter in modified Leyva.
Therefore, claims 5, 14 and 19 are not patentable over Leyva in view of Kain as well.
Concerning claim 7, Leyva does not appear to disclose that the base comprises a filter tray that is movable between an open and closed position, the filter tray configured to receive the filter. However, Kain continues to disclose a filter tray (330) that is movable between an open and closed position (paragraphs 33 & 27), the filter tray configured to receive the filter (339) in order to allow access to the components of a filter system (paragraphs 27, 33, 42 and 43). Therefore, It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide a filter tray that is movable between an open and closed position in the system of Leyva, the filter tray configured to receive the filter in order to allow access to the components of a filter system as exemplified by Kain.
Thus, claim 7 is not patentable over Leyva in view of Kain as well.
With respect to claims 10 & 15, Leyva continues to disclose the CPAP hose (115), wherein a first end of the CPAP hose (115) is configured to be fluidly coupled to an outlet of the sanitizing gas generator and the CPAP hose (115) is configured to be secured to the base such that a second end of the CPAP hose is in fluid communication with the sanitizing chamber (paragraph 15; Figures 1 & 2).
Concerning claims 11, 16 and 20, Leyva also discloses that the base is configured to form a seal with an intermediate portion of the CPAP hose (115) when the lid (132) is transitioned from the open lid position to the closed lid position to seal the chamber (paragraph 15).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Leyva eta l. (U.S. Publication No. 2017/0209610) in view of Kain et al. (U.S. Publication No. 2014/0193294) as applied to claim 2 above, and further in view of Beam et al. (U.S. Publication No. 2006/0034737).
Leyva is relied upon as set forth above. Leyva does not appear to disclose a filter detection sensor configured to detect said filter and output a filter detection signal; and a controller configured to permit or prevent generation of said sanitizing gas based at least in part on said filter detection signal. Beam discloses a method of sanitizing by generating a sanitizing gas from a gas generator (paragraph 16) located in a housing (10), wherein the housing is provided with a filter (paragraph 15) as shown in Figure 1. The reference continues to disclose a filter detection sensor configured to detect said filter and output a filter detection signal, and a controller configured to permit or prevent generation of said sanitizing gas based at least in part on said filter detection signal in order to ensure that the filter is properly installed (paragraph 24). As such, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the system of Leyva with a filter detection sensor configured to detect said filter and output a filter detection signal, and a controller configured to permit or prevent generation of said sanitizing gas based at least in part on said filter detection signal in order to ensure that the filter is properly installed as exemplified by Beam.
Thus, claim 6 is not patentable over Leyva in view of Kain and Beam.
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-24 of U.S. Patent No. 12,168,079 (herein referred to as ‘079).
Although the claims at issue are not identical, they are not patentably distinct from each other because all of the limitations of the instant application are met by claims 1-24 of ‘079.
More specifically, each claim a sanitizing system comprising a base including an opening to a sanitizing chamber, the sanitizing chamber comprising at least one exhaust port; and a lid configured to transition from an open lid position to a closed lid position, wherein the lid is configured to extend across the opening to the sanitizing chamber when the lid is in the closed position. Further, each claim a sanitizing gas generator configured to generate a sanitizing gas, the sanitizing gas generator located within the base; an outlet configured to fluidly couple a first end of a continuous positive airway pressure (CPAP) hose to the sanitizing gas generator; and a passageway configured to be secured to the CPAP hose such that a second end of the CPAP hose is in fluid communication with the sanitizing chamber. Still further, both claim a primary fan or pump configured to push or draw at least a portion of the sanitizing gas through the CPAP hose to the sanitizing chamber in the base; and a secondary fan or pump configured to push or draw gas within the sanitizing chamber through the at least one exhaust port and outside of the sanitizing chamber when the lid is in the closed lid position; wherein the primary fan or pump and the secondary fan or pump are both co-located within the base. See claims 1, 10, 23 and 24 of ‘079.
As such, the obviousness type double patenting rejection exists.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-21 of U.S. Patent No. 12,280,169 (herein referred to as ‘169).
Although the claims at issue are not identical, they are not patentably distinct from each other because all of the limitations of the instant application are met by claims 1-21 of ‘169.
More specifically, each claim a sanitizing system comprising a base including an opening to a sanitizing chamber, the sanitizing chamber comprising at least one exhaust port; and a lid configured to transition from an open lid position to a closed lid position, wherein the lid is configured to extend across the opening to the sanitizing chamber when the lid is in the closed position. Further, each claim a sanitizing gas generator configured to generate a sanitizing gas, the sanitizing gas generator located within the base; an outlet configured to fluidly couple a first end of a continuous positive airway pressure (CPAP) hose to the sanitizing gas generator; and a passageway configured to be secured to the CPAP hose such that a second end of the CPAP hose is in fluid communication with the sanitizing chamber. Still further, both claim a primary fan or pump configured to push or draw at least a portion of the sanitizing gas through the CPAP hose to the sanitizing chamber in the base; and a secondary fan or pump configured to push or draw gas within the sanitizing chamber through the at least one exhaust port and outside of the sanitizing chamber when the lid is in the closed lid position; wherein the primary fan or pump and the secondary fan or pump are both co-located within the base. See claims 1, 11-13, 16-18 and 21 of ‘169.
As such, the obviousness type double patenting rejection exists.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-19 of U.S. Patent No. 11,484,613 (herein referred to as ‘613).
Although the claims at issue are not identical, they are not patentably distinct from each other because all of the limitations of the instant application are met by claims 1-19 of ‘613.
More specifically, each claim a sanitizing system comprising a base including an opening to a sanitizing chamber, the sanitizing chamber comprising at least one exhaust port; and a lid configured to transition from an open lid position to a closed lid position, wherein the lid is configured to extend across the opening to the sanitizing chamber when the lid is in the closed position. Further, each claim a sanitizing gas generator configured to generate a sanitizing gas, the sanitizing gas generator located within the base; an outlet configured to fluidly couple a first end of a continuous positive airway pressure (CPAP) hose to the sanitizing gas generator; and a passageway configured to be secured to the CPAP hose such that a second end of the CPAP hose is in fluid communication with the sanitizing chamber. Still further, both claim a primary fan or pump configured to push or draw at least a portion of the sanitizing gas through the CPAP hose to the sanitizing chamber in the base; and a secondary fan or pump configured to push or draw gas within the sanitizing chamber through the at least one exhaust port and outside of the sanitizing chamber when the lid is in the closed lid position; wherein the primary fan or pump and the secondary fan or pump are both co-located within the base. See claims 1 and 11 of ‘613.
As such, the obviousness type double patenting rejection exists.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KEVIN C JOYNER whose telephone number is (571)272-2709. The examiner can normally be reached Monday-Friday 8:00AM-4:30PM.
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, MICHAEL MARCHESCHI can be reached at (571) 272-1374. 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.
/KEVIN JOYNER/Primary Examiner, Art Unit 1799
