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 .
Response to Amendment
The Double Patenting rejections of claim 1 have been withdrawn in light of the Terminal Disclaimers filed December 9, 2025.
The rejection of claims 3-5 under 35 USC 112(b) have been withdrawn in light of the amendment filed December 9, 2025.
The rejection of claim 7 under 35 USC 112(d) has been withdrawn in light of the amendment filed December 9, 2025.
Response to Arguments
Applicant's arguments filed December 9, 2025 have been fully considered but they are not persuasive.
Applicant argues that Taylor (US 2016/0175550) is not eligible as prior art because the instant application has priority to: Application No. 16/556,985 filed August 30, 2019; Application No. 15/581,919 filed April 28, 2017, and Application No. 14/964,552 filed December 9, 2015; App. no. 14/877,856 filed October 7, 2015; and App. no. 29/697,810 filed July 11, 2019.
However, a proper claim to benefit of priority has not been made in the instant application since the ADS filed does not make specific reference to these applications.
If applicant desires to claim the benefit of a prior-filed application under 35 U.S.C. 119(e), 120, 121, 365(c) or 386(c), the instant application must contain, or be amended to contain, a specific reference to the prior-filed application in compliance with 37 CFR 1.78. If the application was filed before September 16, 2012, the specific reference must be included in the first sentence(s) of the specification following the title or in an application data sheet (ADS) in compliance with pre-AIA 37 CFR 1.76; if the application was filed on or after September 16, 2012, the specific reference must be included in an ADS in compliance with 37 CFR 1.76. For benefit claims under 35 U.S.C. 120, 121, 365(c), or 386(c), the reference must include the relationship (i.e., continuation, divisional, or continuation-in-part) of the applications.
If the instant application is a utility or plant application filed under 35 U.S.C. 111(a), the specific reference must be submitted during the pendency of the application and within the later of four months from the actual filing date of the application or sixteen months from the filing date of the prior application. If the application is a national stage application under 35 U.S.C. 371, the specific reference must be submitted during the pendency of the application and within the later of four months from the date on which the national stage commenced under 35 U.S.C. 371(b) or (f), four months from the date of the initial submission under 35 U.S.C. 371 to enter the national stage, or sixteen months from the filing date of the prior application. See 37 CFR 1.78(a)(4) for benefit claims under 35 U.S.C. 119(e) and 37 CFR 1.78(d)(3) for benefit claims under 35 U.S.C. 120, 121, 365(c), or 386(c). This time period is not extendable and a failure to submit the reference required by 35 U.S.C. 119(e) and/or 120, where applicable, within this time period is considered a waiver of any benefit of such prior application(s) under 35 U.S.C. 119(e), 120, 121, 365(c), and 386(c).
A benefit claim filed after the required time period may be accepted if it is accompanied by a grantable petition to accept an unintentionally delayed benefit claim under 35 U.S.C. 119(e) (see 37 CFR 1.78(c)) or under 35 U.S.C. 120, 121, 365(c), or 386(c) (see 37 CFR 1.78(e)). The petition must be accompanied by (1) the reference required by 35 U.S.C. 120 or 119(e) and by 37 CFR 1.78 to the prior application (unless previously submitted), (2) the applicable petition fee under 37 CFR 1.17(m)(1) or (2), and (3) a statement that the entire delay between the date the benefit claim was due under 37 CFR 1.78 and the date the claim was filed was unintentional. The presentation of a benefit claim may result in an additional fee under 37 CFR 1.17(w)(1) or (2) being required, if the earliest filing date for which benefit is claimed under 35 U.S.C. 120, 121, 365(c), or 386(c) and 1.78(d) in the application is more than six years before the actual filing date of the application. The Director may require additional information where there is a question whether the delay was unintentional. The petition should be addressed to: Mail Stop Petition, Commissioner for Patents, P.O. Box 1450, Alexandria, Virginia 22313-1450.
If the reference to the prior application was previously submitted within the time period set forth in 37 CFR 1.78 but was not included in the location in the application required by the rule (e.g., if the reference was submitted in an oath or declaration or the application transmittal letter), and the information concerning the benefit claim was recognized by the Office as shown by its inclusion on the first filing receipt, the petition under 37 CFR 1.78 and the petition fee under 37 CFR 1.17(m)(1) or (2) are not required. Applicant is still required to submit the reference in compliance with 37 CFR 1.78 by filing an ADS in compliance with 37 CFR 1.76 with the reference (or, if the application was filed before September 16, 2012, by filing either an amendment to the first sentence(s) of the specification or an ADS in compliance with pre-AIA 37 CFR 1.76). See MPEP § 211.02.
Since a proper claim to the benefit of priority has not yet been made, the rejections of claims 1, 2, 6, and 7 over Taylor, as well as claims 3-5 over Taylor in view Bentley, are maintained.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1, 2, 6, and 7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Taylor (US 2016/0175550).
As to claim 1, Taylor discloses a face-soaking-device 100 (Fig. 2A, 4A) comprising: a vessel 200 having an open top and capable of holding a liquid in an interior volume of the vessel 200 (paragraph [0656]); and a breathing apparatus 400 (Fig. 4A-4H) comprising: a mouth piece member 401, at least one tubing 420, and at least one connector 430, wherein the at least one tubing 420 comprises two opposing terminal ends 405,422, wherein one of the two opposing terminals ends is connected to the mouth piece member 401 and the other of the two opposing terminal ends is connected to the at least one connector 430, wherein the at least one connector 422 is configured to be attachable to a side wall 201 of the vessel 200, wherein the breathing apparatus 400 is configured to permit a user to breathe while a face of the user is at least partially submerged within the liquid in the interior volume of the vessel 200 (paragraph [0787]).
As to claim 2, Taylor discloses that the at least one tubing comprises a first tubing 420 and a second tubing 420 (the at least on tubing 420 may be two tubes 420, paragraph [0787]).
As to claim 6, Taylor discloses a breathing apparatus 400 (Figs. 22D-E, paragraph [0867]-[0869]) that is configured for use with a face-soaking-device 100, wherein the breathing apparatus 400 comprises: a mouth piece member 401; at least one tubing 420, wherein the at least one tubing 420 comprises two opposing terminal ends 421,422; and at least one connector 2221; wherein one of the two opposing terminals ends is connected to the mouth piece member 401 and the other of the two opposing terminal ends 422 is connected to the at least one connector 2221; wherein the at least one connector 2221 is configured to be attachable to a side wall of a vessel 200 of the face-soaking-device 100; wherein the breathing apparatus 400 is configured to permit a user to breathe while a face of the user is at least partially submerged within a liquid in an interior volume of the vessel 200; wherein the mouth piece member 401 is movable from below the at least one connector 2221 to above the at least one connector 2221 when the at least one connector is attached to the side wall (see Fig. 22A and Fig. 22D, the tubing 420 is flexible and can be bent about collar hinge 2221; thus, it is capable of being bent so that the mouthpiece 401 is at a height above connectors 2221, Figs. 22D-E, paragraph [0867]-[0869]).
As to claim 7, Taylor discloses that the at least one tubing 420 comprises a first tubing 420 and a second tubing 420 (Fig. 22D-E, paragraph [0868]).
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.
Claims 3-5 are rejected under 35 U.S.C. 103 as being unpatentable over Taylor (US 2016/0175550), in view of Bentley et al. (US 2019/0125996).
As to claim 3, Taylor discloses a breathing apparatus 400 (Fig. 20A, paragraphs [0833]-[0836]) that is configured for use with a face soaking device 200, wherein the breathing apparatus 400 comprises: a mouth piece member 401; at least one tubing (see annotated Fig. 20A below), wherein the at least one tubing comprises two opposing ends (see annotated Fig. 20A below); and at least one elongate-hollow-member (the top portion of the tubing 420, see annotated Fig. 20A below), wherein the at least one elongate-hollow-member comprises at least one aperture 2001 for bringing in air that is external to the breathing apparatus 400; wherein one of the two opposing ends is connected to the mouth piece member 401 (first end 421, see Fig. 20A) and the other of the two opposing ends is connected to the at least one elongate-hollow-member (see annotated Fig. 20a below showing second end connected to the elongate hollow member); wherein the breathing apparatus 400 is configured to permit a user to breathe while a face of the user is at least partially submerged within a liquid in an interior volume of the vessel 200 (paragraph [0833]-[0836]); wherein during breathing use of the breathing apparatus with the face of the user is at least partially submerged within the liquid in the interior volume of the vessel 200, the at least one elongate-hollow-member is configured to be disposed at least mostly behind an upper portion of the user (see annotated Fig. 20A below).
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Taylor does not disclose that the second end of the tubing is a terminal end. In other words, Taylor’s tubing/elongate hollow member are integral, forming one continuous tubing, rather than being separate members attached at respective terminal ends. However, Bentley teaches a breathing apparatus comprising at least one tubing (conduits 3301, Fig. 10) having a terminal end 3303 at a mask 3200 and a second opposing terminal end (at connector 3302) attached to an elongate hollow member (flexible portion 3304, paragraph [0302]). Therefore, it would have been obvious to one of ordinary skill in the art as of the effective filing date of the invention to modify the breathing apparatus of Taylor so that the elongate hollow member is a separate flexible tubing connected to the tubing at the second terminal end, as taught by Bentley, in order to allow the end of the tubing to be flexible and maneuverable into a desired position.
As to claim 4, modified Taylor discloses that the at least one tubing comprises a first tubing and a second tubing (one on each side of the mouth piece 401, see annotated Fig. 20A of Taylor above).
As to claim 5, modified Taylor discloses the claimed invention except that an overall shape of the breathing apparatus forms a closed loop structure (see Bentley, Fig. 10).
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to VALERIE L WOODWARD whose telephone number is (571)270-1479. The examiner can normally be reached Monday - Friday 8:30 am - 4:30 pm.
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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.
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/VALERIE L WOODWARD/Primary Examiner, Art Unit 3785