DETAILED ACTION
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim Objections
Claims 1 are objected to because of the following informalities:
Regarding claim 1, applicant claims a spring for biasing the terminal end of the rod but never describes the rod as being movable relative to the housing, structural assumptions are made because the claim writing is not explicit about the interaction or behavior between the housing and rod.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
Claims 1, 2, 21, 23, 26-29, 31, and 32, 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.
Regarding claim 1, what is a “fully extended position”? How far does the rod have to extend to be fully extended? Is the rod completely removed from the housing in the fully extended position? Are there multiple positions that can be considered “fully extended” for example, if the size of a lockout actuator can vary, will the fully extended position stop when the terminal end of the rod contacts a lockout actuator?
The claims not addressed above are rejected since they depend from a rejected claim.
Claim Rejections - 35 USC § 102
(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, 2, 21, 23, 26-29, 31, and 32, are rejected under pre-AIA 35 U.S.C. 35 U.S.C. 102(b) as being anticipated by Djupesland (US 2005/0028812).
Regarding claim 1, according to MPEP 2114, while features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Since Djupesland, as applied herein, discloses all the structural limitations as claimed by applicant it follows that it would be capable of performing the recited functions. Furthermore, one of ordinary skill in the art at the time of the invention could have used the structure of Djupesland in order to achieve this function should they have desired.
Djupesland discloses a device 42 that is capable of simulating capsule since it is generally capsule shaped, at 42, fig. 3, for use in association with a nasal irrigation device at 14 having a plurality of lockout actuators, the capsule simulator comprising:
a housing at 44, fig. 5(a) having at least a portion of a rod 47 (bolt) extending therefrom for engaging with a “first lockout actuator” at 45, element 45 is considered to be a lockout actuator since the device cannot operate until the element 45 is actuated against the loading mechanism 33, the rod engages with the device at 45 which functions as a lockout, and
a flange at 49, fig. 5(c) for engaging with a “second lockout actuator” at 58, fig. 3. The lugs 58 are considered to be lockout actuators since they have to engage with the flange (shoulders 49) in order to operate the device.
The "manner of operating the device does not differentiate apparatus from the prior art" And “apparatus claims cover what a device is, not what a device does” MPEP 2114. Absent distinguishing structure, a mere functional limitation is not sufficient to define over the prior art.
Djupesland discloses a spring 43, fig. 5(c) that biases the upper device 45 toward a “fully” extended position (a position away from) with respect to the housing, fig. 5(a) and 5(b) and thereby the head of the rod at 47 (which constrains the element 45 at the fully expanded position) is biased to the fully extended position at the same time since when the parts at 44 and 45 are compressed toward one another the rod will drop to a lower position as device 45 moves downwardly as it is seated in a depression of device 45 and while not compressed, the spring engages the restraining device 45 against the lower side of the head of the rod/link/bolt to lift the bolt to an extended position away from the housing 44.
Djupesland discloses that the rod extends from the housing, as seen in fig. 5(b), the portion of the rod (head of the bolt/terminal end) extends above the wall and engages with the “first lockout actuator” as it projects through an opening of the lockout actuator, fig. 5(b).
Regarding claim 2, Djupesland discloses a wall at 44, figs 5(a)-5(c), coupled to the housing wherein as seen in fig. 5(b), the wall comprises the flange at 49, the portion of the rod (head of the bolt) extends above the wall.
Regarding claims 21, 23, and 31, Djupesland discloses that the rod engages with the first lockout actuator independently of the flange since the rod (the lower surface of the terminal end/ head of the bolt 47) is always engaged with the “lockout actuator” 45 (within the central recess of the “lockout actuator” 45) and the flange engages with a separate “lockout actuator” (at 58 as applied above).
Regarding claim 26, Djupesland discloses that the spring biases the device 45 and thereby the head of the bold/link 47 that is terminal end of the rod lifted by the shoulder of the retaining element 45 through which the bolt passes, fig. 5(b) away from the housing, and is capable of biasing the terminal end of the rod toward a first lockout actuator positioned adjacent to the end of the rod.
Regarding claim 27, Djupesland discloses that the housing further comprises an opening (not numbered, best seen in fig. 5(b)) that acts as a shaft for receiving the rod.
Regarding claim 28, Djupesland discloses a protrusion (nut, fig. 5(b) and 5(c), not numbered) that retains the rod in the rod shaft.
Regarding claim 29, a centerline of the housing is not defined with respect to any particular structure. Djupesland discloses a centerline of housing in a plane defined by the base of the housing is 90 degrees offset from the centerline of the rod, fig. 5(b).
Regarding claim 32, Djupesland discloses that the flange at 49 extends outwardly away from the rod that extends vertically, fig. 5(b).
Claim(s) 1, 2, 21, 23, 26-28, 31, and 32 are rejected under 35 U.S.C. 35 U.S.C. 102(a)(1) as being anticipated by Mickley et al. (US 20030233076).
Regarding claim 1, According to MPEP 2114, while features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Since Mickley as applied herein discloses all the structural limitations as claimed by applicant it would follow that it would be capable of performing the recited functions. Furthermore, one of ordinary skill in the art at the time of the invention could have used the structure of Mickley in order to achieve this function should they have desired.
Mickley discloses a structure capable of being used with a nasal irrigation device, for example if the dose carpule 17 houses a nasal irrigation solution [0018], fig. 2, and as seen in fig. 5, a housing at 39 (actuator tube), and a rod (18 and 43 combined, square portion 42 of 18 is inserted within part 43 [0028]) with a portion of the rod extending from the housing, the rod is capable of engaging a lockout actuator at the terminal end of the rod (for example if a lockout actuator was positioned at the terminal end of the rod);
a flange at 40 (dose metering stop tab) coupled to the housing, and capable of engaging with a lockout actuator depending on the construction of the lockout actuator, and
a spring at 44 for biasing the terminal end of the rod toward a fully extended position relative to the housing [0031] when a trigger is released, the spring is released and rod is driven to an extended position, that is a fully extended position as determined by the amount the rod is capable of extending before the rod is prevented from further extension. Applicant discloses no particular distance required for the rod to be fully extended, with this in mind, fully extended is interpreted as extending until the rod cannot further extend rather than extending until no part of the rod remains within the housing.
Regarding claims 2 and 32, Mickley discloses that the housing comprises a wall (cylindrical wall of the actuator tube), the flange extends radially outwardly away from the wall, away from the rod, the portion of the rod extends above the wall, fig. 4 and 5.
Regarding claim 21, the rod and the flange of Mickley are spaced away from one another and are fully capable of engaging a lockout actuator independently of the flange.
Regarding claim 23, the terminal end of the rod of Mickley is fully capable of engaging with a first lockout actuator if a first lockout actuator is positioned in front of the terminal end of the rod.
Regarding claim 26, the spring of Mickley is configured to bias the terminal end of the rod away from the body of the housing [0031], if a lockout actuator is positioned adjacent to the terminal end of the rod, the terminal end of the rod will be biased toward the lockout actuator.
Regarding claim 27, Mickley discloses, fig. 5, that the housing comprises a rod shaft, that is the circular opening within the wall of the housing/actuator tube that is for receiving the rod.
Regarding claim 28, Mickley discloses a protrusion of the spring, at 44 in fig. 5 retains the rod in the rod shaft by engaging with holes in tabs 46, [0028], the other end of the spring has a protrusion that engages within a hole in the housing (actuator tube 39).
Regarding claim 31, the flange of Mickley is capable of engaging with a second lockout actuator independently of the portion of the rod.
Claim(s) 1, 2, 21, 23, 26-29, 31, and 32 are rejected under 35 U.S.C. 35 U.S.C. 102(a)(1) as being anticipated by Churas et al. (US 3905379).
Regarding claims 1, 2, 23, 26, Regarding claim 1, According to MPEP 2114, while features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Since Churas as applied herein discloses all the structural limitations as claimed by applicant it would follow that it would be capable of performing the recited functions. Furthermore, one of ordinary skill in the art at the time of the invention could have used the structure of Churas in order to achieve this function should they have desired.
Churas discloses a mechanism, fig. 6, capable of being used with a nasal irrigation device if desired, and discloses a housing at 14 having a portion of a rod 98 extending from the housing, a terminal end at 98 in fig. 6 of the portion of the rod is away from the housing, the terminal end of the rod is capable of engaging with a lockout actuator (for example if in a position of an actuator surface at 137 seen in fig. 2 and 4, is replaced with a lockout actuator);
the terminal end of the rod is biased away from the housing toward an extended position via a spring 35 U.S.C. 102, col. 4: 35-40, when a lockout actuator is present and adjacent to the terminal end of the rod, the spring also biases the terminal end toward a lockout actuator; and
a wall 66 with a flange 140, the portion of the rod extends above the wall, the flange is capable of engaging with a lockout actuator.
Regarding claims 21 and 31, the rod of Churas is capable of engaging with a first actuator independently of the flange, in other words, the rod is capable of engaging with a lockout actuator while the flange is not engaged with the lockout actuator and likewise the flange is capable of engaging with a second lockout actuator independently of, or without the use of the portion of the rod.
Regarding claim 27, Churas further discloses a rod shaft, tubular gland 84, in the housing for receiving the rod, fig. 2 and 6.
Regarding claim 28, Churas further discloses that a protrusion, piston at 96 in engagement with the bottom of “tubular gland” at 84 retains the rod in the rod shaft, col. 4: 18-40.
Regarding claim 29, the rod of Churas extends from the housing at an angular offset from a vertical centerline of the housing, fig. 2, annotated figure 2.
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Regarding claim 32, the flange 140 extends outwardly from the wall at 66, fig. 2 and 6, the rod extends at an angle away from the flange, the flange extends away from the rod.
Response to Arguments
Applicant's arguments filed 24 February 2026 have been fully considered but they are not persuasive.
In response to applicant's argument that Djupesland does not teach a spring biasing element that biases a terminal end of the link relative to the lower retaining element, examiner disagrees.
Djupesland discloses a spring 43, fig. 5(c) that biases the upper device 45 toward a “fully” extended position (a position away from) with respect to the housing, fig. 5(a) and 5(b) and thereby the head of the rod at 47 (which constrains the element 45 at the fully expanded position) is biased to the fully extended position at the same time since when the parts at 44 and 45 are compressed toward one another the rod will drop to a lower position as device 45 moves downwardly as it is seated in a depression of device 45 and while the spring is not compressed, the spring engages the restraining device 45, the restraining device 45 pushing against the lower side of the head of the rod/link/bolt to lift the bolt to an extended position away from the housing 44.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 MOLLIE L IMPINK whose telephone number is (571)270-1705. The examiner can normally be reached Monday-Friday (7:30-3:30).
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, Anthony Stashick can be reached at (571) 272-4561. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MOLLIE IMPINK/Primary Examiner, Art Unit 3799
MOLLIE LLEWELLYN IMPINK
Primary Examiner
Art Unit 3799