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 Objections
Applicant is advised that should claim 15 be found allowable, claim 17 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 15-17 are rejected under 35 U.S.C. 103 as being unpatentable over Kenyon et al. (US 2009/0301485), referred to hereafter as Kenyon in view of Brungart et al. (US 2010/0059055), referred to hereafter as Brungart.
With regard to claim 15:
Kenyon discloses a compact respiratory therapy device suitable for use by a patient during sleep to provide respiratory pressure therapy, the device comprising: a housing (Fig. 4); an inlet (18, also see corresponding element in other embodiments); an outlet (86, also see corresponding element in other embodiments); a motor including a rotor (Fig. 24, [0112]); an impeller (62) configured to be rotated by the rotor to deliver a flow of air from the inlet toward the outlet, the impeller comprising: a first moulded part comprising a first shroud (90) comprising a wall forming a periphery of a center opening of the impeller, the center opening forming an inlet of a flow passage through the impeller (Fig. 9); a second moulded part comprising: a hub (50) configured to couple to the rotor; and a second shroud (92); and a third moulded part comprising a plurality of impeller blades (88, see Fig. 8. Regarding moulding, see [0071] and note that the claim doesn’t require the moulded parts to be moulded separately and distinct from each other), each impeller blade comprising a leading edge and a trailing edge (Fig. 8), wherein the compact respiratory therapy device is configured to deliver the flow of air from the outlet for delivery to the patient at a pressure between 4-30 cmH20 ([0006], claim 5) reducing any disturbance to a quality of sleep for the patient (see less/low/reduce noise throughout Kenyon’s specification, such as in [0011], [0073], [0076]), and each shroud at least partly forms the flow passage through the impeller (Fig. 8, 9).
Kenyon discloses that their disclosed respiratory device has less acoustic noise, and in a smaller package ([0011]), but does not appear to explicitly disclose that an overall sound power level is less than 50 dB(A), and that a diameter of the impeller is less than about 50 mm.
However, Brungart teaches a respiratory device comprising a housing, inlet, outlet, motor, impeller, and impeller blades, (Fig. 2, 3), and further teaches that an overall sound power level is less than 50 dB(A) ([0012], [0040]), and a diameter of the impeller is less than about 50 mm ([0034]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the application to use a known technique to improve similar devices in the same way, and make the impeller with an overall sound power level less than 50 dB(A), and a diameter of the impeller being less than about 50 mm, and have a respiratory device which has less acoustic noise, and is in a smaller package, as was Kenyon’s objective.
Although Kenyon discloses that the first, second, and third parts are moulded parts, and further discloses that other manufacturing techniques could be employed ([0071]), the limitation “moulded part” is being treated as a product by process limitation; that is that the part is made by the process of moulding. As set forth in MPEP 2113, product by process claims are NOT limited to the manipulation of the recited steps, only to the structure implied by the steps. Once a product appearing to be substantially the same or similar product is found, a 35 U.S.C. § 102/103 rejection may be made and the burden is shifted to applicant to show an unobvious difference. This rejection under 35 U.S.C. 103 is proper because the “patentability of a product does not depend on its method of production.” In re Thorpe, 227 USPQ 964, 966 (Fed. Cir. 1985). Here, the structure implied by the step is merely the formation of an impeller which is taught by Kenyon. See MPEP 2113. Furthermore, note that based on applicant’s specification, there is no criticality for the parts being moulded in the specific arrangement recited in claim 15, as they are mere examples.
With regard to claim 16:
Kenyon discloses an impeller (62) configured to be rotated by a rotor (Fig. 24, [0112]) to deliver a flow of air, the impeller comprising: a first moulded part comprising a first shroud (90) comprising a wall forming a periphery of a center opening of the impeller, the center opening forming an inlet of a flow passage through the impeller (Fig. 9); a second moulded part comprising: a hub (50) configured to couple to the rotor; and a second shroud (92); and a third moulded part comprising a plurality of impeller blades (88, see Fig. 8. Regarding moulding, see [0071] and note that the claim doesn’t require the moulded parts to be moulded separately and distinct from each other), each impeller blade comprising a leading edge and a trailing edge (Fig. 8), wherein each shroud at least partly forms the flow passage through the impeller (Fig. 8, 9).
Kenyon discloses that their disclosed respiratory device is in a smaller package ([0011]), but does not appear to explicitly disclose that a diameter of the impeller is less than about 50 mm.
However, Brungart teaches a respiratory device comprising a housing, inlet, outlet, motor, impeller, and impeller blades, (Fig. 2, 3), and further teaches that a diameter of the impeller is less than about 50 mm ([0034]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the application to use a known technique to improve similar devices in the same way, and make a diameter of the impeller to be less than about 50 mm, and have a respiratory device which is in a smaller package, as was Kenyon’s objective.
Although Kenyon discloses that the first, second, and third parts are moulded parts, and further discloses that other manufacturing techniques could be employed ([0071]), the limitation “moulded part” is being treated as a product by process limitation; that is that the part is made by the process of moulding. As set forth in MPEP 2113, product by process claims are NOT limited to the manipulation of the recited steps, only to the structure implied by the steps. Once a product appearing to be substantially the same or similar product is found, a 35 U.S.C. § 102/103 rejection may be made and the burden is shifted to applicant to show an unobvious difference. This rejection under 35 U.S.C. 103 is proper because the “patentability of a product does not depend on its method of production.” In re Thorpe, 227 USPQ 964, 966 (Fed. Cir. 1985). Here, the structure implied by the step is merely the formation of an impeller which is taught by Kenyon. See MPEP 2113. Furthermore, note that based on applicant’s specification, there is no criticality for the parts being moulded in the specific arrangement recited in claim 16, as they are mere examples.
With regard to claim 17:
The combination of Kenyon and Brungart discloses a compact respiratory therapy device suitable for use by a patient during sleep to provide respiratory pressure therapy, the device comprising: a housing (Kenyon, Fig. 4); an inlet (Kenyon, 18, also see corresponding element in other embodiments); an outlet (Kenyon, 86, also see corresponding element in other embodiments); a motor including a rotor (Kenyon, Fig. 24, [0112]); and the impeller as claimed in claim 16 (as set forth above), wherein the compact respiratory therapy device is configured to deliver the flow of air from the outlet for delivery to the patient at a pressure between 4-30 cmH20 (Kenyon, [0006], claim 5) reducing any disturbance to a quality of sleep for the patient (Kenyon, see less/low/reduce noise throughout Kenyon’s specification, such as in [0011], [0073], [0076]).
The combination of Kenyon and Brungart discloses that their disclosed respiratory device has less acoustic noise ([0011]), but does not appear to explicitly disclose that an overall sound power level is less than 50 dB(A).
However, Brungart teaches a respiratory device comprising a housing, inlet, outlet, motor, impeller, and impeller blades, (Fig. 2, 3), and further teaches that an overall sound power level is less than 50 dB(A) ([0012], [0040]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the application to use a known technique to improve similar devices in the same way, and make the impeller with an overall sound power level less than 50 dB(A), and have a respiratory device which has less acoustic noise, as was Kenyon’s objective.
Claims 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Kenyon et al. (US 2009/0301485), referred to hereafter as Kenyon in view of Brungart et al. (US 2010/0059055), referred to hereafter as Brungart, and Vedula et al. (US 2014/0169971), referred to hereinafter as Vedula.
With regard to claim 18:
Kenyon discloses an impeller (62) configured to be rotated by a rotor to deliver a flow of air, the impeller comprising: a set of impeller blades (88), each impeller blade comprising a leading edge and a trailing edge (Fig. 8); and a first shroud and a second shroud (90, 92), each shroud at least partly forming a flow passage through the impeller (Fig. 8, 9), the first shroud comprising a wall forming a periphery of a center opening of the impeller, the center opening forming an inlet of the flow passage through the impeller (Fig. 9).
Kenyon discloses that their disclosed respiratory device is in a smaller package ([0011]), but does not appear to explicitly disclose that a diameter of the impeller is less than 50 mm, the impeller comprises a metallic material, and the impeller is a three-dimensional printed member.
Regarding the diameter of the impeller being less than 50 mm, Brungart teaches a respiratory device comprising a housing, inlet, outlet, motor, impeller, and impeller blades, (Fig. 2, 3), and further teaches that a diameter of the impeller is less than about 50 mm ([0034]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the application to use a known technique to improve similar devices in the same way, and make the impeller with a diameter of the impeller being less than about 50 mm, and have a respiratory device which is in a smaller package, as was Kenyon’s objective.
Regarding the impeller comprising a metallic material, and being a three-dimensional printed member, Vedula, teaches an impeller and further teaches that the impeller comprises a metallic material, and the impeller is a three-dimensional printed member (abstract, [0017]). Further, Vedula teaches that using three-dimensional printing has important advantages ([0024]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the application to use a known technique to improve similar devices in the same way, and make the impeller comprising a metallic material, and being a three-dimensional printed member.
With regard to claim 19:
The combination of Kenyon, Brungart, and Vedula discloses a compact respiratory therapy device suitable for use by a patient during sleep to provide respiratory pressure therapy, the device comprising: a housing (Kenyon, Fig. 4); an inlet (Kenyon, 18, also see corresponding element in other embodiments); an outlet (Kenyon, 86, also see corresponding element in other embodiments); a motor including a rotor (Kenyon, Fig. 24, [0112]); and the impeller as claimed in claim 18 (as set forth above), wherein the compact respiratory therapy device is configured to deliver the flow of air from the outlet for delivery to the patient at a pressure between 4-30 cmH20 (Kenyon, [0006], claim 5) reducing any disturbance to a quality of sleep for the patient (Kenyon, see less/low/reduce noise throughout Kenyon’s specification, such as in [0011], [0073], [0076]).
The combination of Kenyon, Brungart, and Vedula discloses that their disclosed respiratory device has less acoustic noise (Kenyon, [0011]), but does not appear to explicitly disclose that an overall sound power level is less than 50 dB(A).
However, Brungart teaches a respiratory device comprising a housing, inlet, outlet, motor, impeller, and impeller blades, (Fig. 2, 3), and further teaches that an overall sound power level is less than 50 dB(A) ([0012], [0040]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the application to use a known technique to improve similar devices in the same way, and make the impeller with an overall sound power level less than 50 dB(A), and have a respiratory device which has less acoustic noise, as was Kenyon’s objective.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Refer to the attached form PTO-892 for pertinent prior art disclosing similar impellers such as US 8096783, US 9039360, US 8272837, and US 8636479.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BEHNOUSH HAGHIGHIAN whose telephone number is (571)270-7558. The examiner can normally be reached Mon-Fri, 7:00am-15:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Courtney D Heinle can be reached at (571) 270-3508. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BEHNOUSH HAGHIGHIAN/
Examiner
Art Unit 3745
/COURTNEY D HEINLE/Supervisory Patent Examiner, Art Unit 3745
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