Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Priority
Acknowledgment is made of applicant’s claim for priority under 35 U.S.C. § 119(a-d) with reference to Application Number: AU2008906390 filed on 12/10/2008.
Information Disclosure Statement
The Information Disclosure Statement(s) have been reviewed by the examiner and are found to comply with the provisions of 37 CFR 1.97, 1.98, and MPEP § 609.
Drawings
The drawing(s) have been reviewed by the examiner and are found to comply with the provisions of 37 CFR 1.81 to 1.85.
Election/Restrictions
Applicant’s election without traverse of Species Group 4 in the reply filed on 06/23/2026 is acknowledged. The species reads on claims 11 – 40.
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.
Claim 36 is 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 36 recites the limitation "the upper strap portions" in line 1. There is insufficient antecedent basis for this limitation in the claim.
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 pre-AIA 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 –
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
Claim(s) 34-40 is/are rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by Madaus (US 20040025882).
34. Madaus discloses a headgear configured to hold a respiratory mask in position on a patient's face (see Fig. 8, headgear 1, [0045]; a mask is held as generally illustrated in Fig. 7), the headgear comprising: a rear strap portion configured to contact a rear portion of the patient's head in use (see annotated Fig. 8 in attachment 1 below, “RSP”); and a pair of first strap portions extending from the rear strap portion (see annotated Fig. 8 in attachment 1 below, “FSP”; examiner notes that the term “portion” may include two portions that connect together, and the portions “FSP” respectively correspond to left and right sides of the patient’s head), wherein each of the first strap portions and the rear strap portion (see [0045], the lateral reinforcement insert and its corresponding padding is unwound circumferentially to be applied over the forehead and behind the ears around the back of the neck; see also claims 1, 9, and 10, the flexible layer/insert and its padding reinforces the headband section from the forehead descending behind the ears; see Figs. 8 – 9) are constructed from a respective first fabric layer, a respective foam layer, and a respective second fabric layer (see general teachings Figs. 2 – 5, [0035] 6, 5, and 8, respectively), each first fabric layer and each second fabric layer being joined at an edge to at least partially enclose the foam layer to form a rounded edge in order to reduce skin markings (see general teachings Figs. 2 – 4 and corresponding description, e.g. [0036]), wherein a joint is provided to join at least the first and second fabric layers on each lateral side of the first strap portions and the rear strap portion (see 7, [0035 – 36]; the examiner considers the term “lateral side” to broadly encompass right and left parts of the object, as annotated in attachment 2 below, “LS”), and each said joint is positioned at the center or close to the center of the respective lateral side of each of the first strap portions and rear strap portion (see attachment 2 below), and wherein a width of the rear strap portion varies along a length of the rear strap portion with the rounded edge and/or a width of each of the first strap portions varies along a length of the respective first strap portion with the rounded edge (see attachment 1 below, comparing “W1” and “W2” in the rear strap portion RSP; as explained above, the lateral reinforcement insert and padding which forms the rounded edge extends throughout the rear strap portion, see [0045], claims 1, 9, and 10, Figs. 8 – 9).
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35. Madaus discloses the headgear of claim 34, wherein the first strap portions are lower strap portions configured to extend below the patient's ear in use and configured to removably connect to the frame in a length-adjustable manner (examiner broadly considers the first strap portions to include both the indicated “FSP” as well as 22a illustrated in Fig. 9, since both of these portions are located in the front; 22a extends below the patient’s ear and is fully capable of removable connecting to the mask frame; examiner notes that the combined portion indicated by “FSP” and 22a is constructed from fabric, foam, and fabric by virtue of the indicated FSP).
36. Madaus discloses the headgear of claim 35, wherein the upper strap portions extend from the rear strap portion (examiner broadly considers the front strap portion 1 and 22a as including both lower strap portions and upper strap portion, the upper strap portion corresponding to 1 or FSP as described; the upper strap portion may be alternatively considered as the back element 22 in Fig. 8).
37. Madaus discloses the headgear of claim 33, wherein a width of the rear strap portion varies along a length of the rear strap portion with the rounded edge (see attachment 1 below, comparing “W1” and “W2” in the rear strap portion RSP; as explained above, the lateral reinforcement insert and padding which forms the rounded edge extends throughout the rear strap portion, see [0045], claims 1, 9, and 10, Figs. 8 – 9).
38. Madaus discloses the headgear of claim 34, wherein a width of each of the first strap portions varies along a length of the respective first strap portion with the rounded edge (see clarified attachment 3 below, in which the front strap portion clearly curves in width prior to meeting the rear strap portion; in an alternative interpretation, see also attachment 4 below).
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39. Madaus discloses a headgear configured to hold a respiratory mask in position on a patient's face (see Fig. 8, headgear 1, [0045]; the held mask 17 is generally illustrated in Fig. 7), the headgear comprising: a rear strap portion configured to contact a rear portion of the patient's head in use (see annotated Fig. 8 in attachment 1 above, “RSP”), wherein the rear strap portion (see [0045], the lateral reinforcement insert and its corresponding padding is unwound circumferentially to be applied over the forehead and behind the ears around the back of the neck; see also claims 1, 9, and 10, the flexible layer/insert and its padding reinforces the headband section from the forehead descending behind the ears; see Figs. 8 – 9) is constructed from a first fabric layer configured to face towards the patient's skin, a second fabric layer positioned opposite the first fabric layer, and foam material positioned between the first and second fabric layers (see general teachings Figs. 2 – 5, [0035] 6, 5, and 8, respectively), wherein the first and second fabric layers form at least part of opposed longitudinal edges of the rear strap portion (see Figs. 2 – 4), the first fabric layer at the longitudinal edges being configured to, in use, curve away from the patient's skin to reduce skin markings (see annotated Figs. 2 – 4 in attachment 5 below, the arrows showing where the first fabric layer curves away at the longitudinal edges), and a central portion of the first fabric layer, between the longitudinal edges as seen in cross section, being configured to, in use, engage the patient's skin (see attachment 5 below, Fig. 3 has been representatively annotated to indicate the central portion “CP”; see [0035]), and wherein a width of the rear strap portion with the first fabric layer configured to curve away from the patient's skin varies along a length of the rear strap portion (see attachment 1 above, comparing “W1” and “W2” in the rear strap portion RSP; as explained above, the lateral reinforcement insert and padding which curves away from the patient’s skin extends throughout the rear strap portion, see [0045], claims 1, 9, and 10, Figs. 8 – 9).
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40. Madaus discloses the headgear of claim 39, wherein the first and second fabric layers are joined along the longitudinal edges of the rear strap portion to at least partially enclose the foam material to form rounded edges in order to reduce skin markings (see Figs. 2 – 4, stitching 7 enclosing the foam with rounded edges, [0035 – 0036]; as explained above, the lateral reinforcement insert and padding which curves away from the patient’s skin extends throughout the rear strap portion, see [0045], claims 1, 9, and 10, Figs. 8 – 9).
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 (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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim 11 – 24, and 26 – 33 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Madaus (US 20040025882) in view of Amarasinghe (US 20040112377).
11. Madaus discloses a mask system for treatment of sleep disorder breathing by providing positive pressure respiratory therapy to a patient [0001], the mask system comprising: a respiratory mask (see [0045]; mask 17 is generally illustrated in Fig. 7) and headgear configured to hold the respiratory mask in position on a patient's face (see Fig. 8, headgear 1), the headgear comprising: a rear strap portion configured to contact a rear portion of the patient's head in use (see annotated Fig. 8 in attachment 1 below, “RSP”); and a pair of first strap portions extending from the rear strap portion (see annotated Fig. 8 in attachment 1 below, “FSP”; examiner notes that the term “portion” may include two portions that connect together, and the portions “FSP” respectively correspond to left and right sides of the patient’s head), wherein each of the first strap portions and the rear strap portion (see [0045], the lateral reinforcement insert and its corresponding padding is unwound circumferentially to be applied over the forehead and behind the ears around the back of the neck; see also claims 1, 9, and 10, the flexible layer/insert and its padding reinforces the headband section from the forehead descending behind the ears; see Figs. 8 – 9) is constructed from a respective first fabric layer, a respective foam layer, and a respective second fabric layer (see general teachings Figs. 2 – 5, [0035] 6, 5, and 8, respectively) each first fabric layer and each second fabric layer being joined at an edge to at least partially enclose the foam layer to form a rounded edge in order to reduce skin markings (see general teachings Figs. 2 – 4 and corresponding description, e.g. [0036]), wherein a joint is provided to join at least the first and second fabric layers on each lateral side of the first strap portions and the rear strap portion (see 7, [0035 – 36]; the examiner considers the term “lateral side” to broadly encompass right and left parts of the object, as annotated in attachment 2 below, “LS”), and each said joint is positioned at the center or close to the center of the respective lateral side of each of the first strap portions and rear strap portion (see attachment 2 below), and wherein a width of the rear strap portion varies along a length of the rear strap portion with the rounded edge and/or a width of each of the first strap portions varies along a length of the respective first strap portion with the rounded edge (see attachment 1 below, comparing “W1” and “W2” in the rear strap portion RSP; as explained above, the lateral reinforcement insert and padding which forms the rounded edge extends throughout the rear strap portion, see [0045], claims 1, 9, and 10, Figs. 8 – 9).
However, Madaus does not explicitly disclose the mask comprising a frame and a cushion configured to seal with at least the patient's nasal passages. However, Amarasinghe discloses a respiratory mask comprising a frame and a cushion configured to seal with at least the patient's nasal passages (see Fig. 1, 12, 14, [0034]). Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was made to modify the mask of Madaus according to the frame and cushion of Amarasinghe for the benefit of a rigid supporting frame that can comfortably and sealingly engage the patient at the cushion.
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12. Madaus discloses the mask system of claim 11, wherein the first strap portions are lower strap portions configured to extend below the patient's ear in use and configured to removably connect to the frame in a length-adjustable manner (examiner broadly considers the first strap portions to include both the indicated “FSP” as well as 22a illustrated in Fig. 9, since both of these portions are located in the front; 22a extends below the patient’s ear and is fully capable of removable connecting to the mask frame).
13. Madaus discloses the mask system of claim 12, further comprising a pair of upper strap portions extending in use from a posterior portion of the headgear towards the frame (examiner broadly considers the front strap portion 1 and 22a as including both lower strap portions and upper strap portions, the upper strap portion corresponding to 1 as described).
14. Madaus discloses the mask system of claim 13, wherein the upper strap portions extend from the rear strap portion (examiner broadly considers the front strap portion 1 and 22a as including both lower strap portions and upper strap portion, the upper strap portion corresponding to 1 as described).
15. Madaus discloses the mask system of claim 11, wherein the rear strap portion is configured to overlay the patient's occipital bone in use (see Fig. 9 illustrating the rear strap portion overlaying the occipital bone; without admitting otherwise, the strap is also fully capable of overlaying the occipital bone, e.g. when placed on a larger head).
16. Madaus as modified discloses the mask system of claim 11, wherein the frame further comprises a pair of lateral outriggers (see Amarasinghe, 42, [0036]), wherein the first strap portions are configured to be connected, respectively, to the pair of lateral outriggers (see Fig. 1, [0036] of Amarasinghe; as described in claim 12 above, examiner broadly considers the the first strap portions to include both the indicated “FSP” as well as 22a illustrated in Fig. 9; 22a corresponds to the frame lateral outrigger).
However, Amarasinghe does not disclose each lateral outrigger being semi-rigid and formed from a material more rigid than the headgear. Nonetheless, Amarasinghe discloses a semi-rigid component formed from a material more rigid than the headgear front strap portion, see [0041, 0042]. Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was made to modify the lateral outrigger of Amarasinghe to be more rigid than the headgear front strap portion for the benefit of maintaining a flexible comfortable headgear strap that can interact with and translate force to the rigid frame supporting mask cushion.
17. Madaus as modified discloses the mask system of claim 16, wherein the first strap portions are configured to be connected, respectively, to the pair of lateral outriggers via a pair of headgear connectors (see Amarasinghe, [0036]).
18. Madaus as modified discloses the mask system of claim 17, wherein the headgear connectors are clips (see Amarsinghe, [0037]).
19. Madaus discloses the mask system of claim 11, wherein each first fabric layer and each second fabric layer are joined at the respective edge to encapsulate the foam layer to form the rounded edge in order to reduce skin markings (see Figs. 2 – 4).
20. Madaus discloses the mask system of claim 11, wherein each foam layer and each of the respective first and second fabric layers are laminated to one another (see Fig. 2 illustrating the form laminated to both fabrics via stitching 7, [0035 – 0036]).
21. Maduas discloses the mask system of claim 11, wherein the rear strap portion is ultrasonically cut to provide the rounded edge (as currently constructed, the product-by-process claim reads on the fabric inner/outer layer being ultrasonically cut, then laminated to the foam and rigidizer; in the instant case, Madaus meets the structure implied by the product-by-process limitation, because the fabric layers 6 and 8 would form the rounded edge independent of how they are cut prior to lamination).
22. Madaus discloses the mask system of claim 11, wherein a width of the rear strap portion varies along a length of the rear strap portion with the rounded edge (see attachment 1 below, comparing “W1” and “W2” in the rear strap portion RSP; as explained above, the lateral reinforcement insert and padding which forms the rounded edge extends throughout the rear strap portion, see [0045], claims 1, 9, and 10, Figs. 8 – 9).
23. Madaus discloses the mask system of claim 11, wherein a width of each of the first strap portions varies along a length of the respective first strap portion with the rounded edge (see clarified attachment 3 below, in which the front strap portion clearly curves in width prior to meeting; in an alternative interpretation, see also attachment 4 below).
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24. Madaus discloses the mask system of claim 11, but does not disclose wherein each respective first fabric layer has the same weave, stretch characteristics and/or heat shrink characteristics as each respective second fabric layer. Nonetheless, Madaus discloses that the first fabric is designed with a generic textile, see [0035 – 0036]. Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was made to modify the first fabric 6 according to the same fleece as the second fabric 8 used in Madaus, as such fleece would constitute a generic textile as required by Madaus, and is furthermore known to provide the benefits of fleece such as comfortable appearance/touch. The material would provide reduced cost to manufacture, and cut from the same fleece as the second fabric.
26. Madaus discloses the mask system of claim 11, wherein the pair of first strap portions has a different extensibility than the rear strap portion (examiner broadly considers the first strap portions to include both the indicated “FSP” as well as 22a as discussed above; 22 provides the elastic tension for holding the device and is thus of a higher extensibility than the rear strap portion which would otherwise lack the elastic tension, see [0045, 0047]).
27. Madaus discloses a mask system for treatment of sleep disorder breathing by providing positive pressure respiratory therapy to a patient [0001], the mask system comprising: a respiratory mask (see [0045]; mask 17 is generally illustrated in Fig. 7) and headgear configured to hold the respiratory mask in position on a patient's face (see Fig. 8, headgear 1), the headgear including a rear strap portion configured to contact a rear portion of the patient's head in use (see annotated Fig. 8 in attachment 1 above, “RSP”), wherein the rear strap portion (see [0045], the lateral reinforcement insert and its corresponding padding is unwound circumferentially to be applied over the forehead and behind the ears around the back of the neck; see also claims 1, 9, and 10, the flexible layer/insert and its padding reinforces the headband section from the forehead descending behind the ears; see Figs. 8 – 9) is constructed from a first fabric layer configured to face towards the patient's skin, a second fabric layer positioned opposite the first fabric layer, and foam material positioned between the first and second fabric layers (see general teachings Figs. 2 – 5, [0035] 6, 5, and 8, respectively), wherein the first and second fabric layers form at least part of opposed longitudinal edges of the rear strap portion (see Figs. 2 – 4), the first fabric layer at the longitudinal edges being configured to, in use, curve away from the patient's skin to reduce skin markings (see annotated Figs. 2 – 4 in attachment 5 below, the arrows showing where the first fabric layer curves away at the longitudinal edges), and a central portion of the first fabric layer, between the longitudinal edges as seen in cross section, being configured to, in use, engage the patient's skin (see attachment 5 below, Fig. 3 has been representatively annotated to indicate the central portion “CP”; see [0035]), and wherein a width of the rear strap portion with the first fabric layer configured to curve away from the patient's skin varies along a length of the rear strap portion (see attachment 1 above, comparing “W1” and “W2” in the rear strap portion RSP; as explained above, the lateral reinforcement insert and padding which curves away from the patient’s skin extends throughout the rear strap portion, see [0045], claims 1, 9, and 10, Figs. 8 – 9).
However, Madaus does not explicitly disclose the mask including a cushion configured to seal with at least a portion of the patient's face to deliver a flow of pressurized air to the patient for treatment of sleep disordered breathing. However, Amarasinghe discloses a mask including a cushion configured to seal with at least a portion of the patient's face to deliver a flow of pressurized air to the patient for treatment of sleep disordered breathing (see Fig. 1, 12, 14, [0034]). Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was made to modify the mask of Madaus according to the cushion of Amarasinghe for the benefit of comfortably and sealingly engaging the patient during treatment.
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28. Madaus discloses the mask system of claim 27, wherein at least the first and second fabric layers are joined at a joint along each of the longitudinal edges of the rear strap portion (See Figs. 2 – 4, stitching 7, [0035 – 0036]; as explained above, the lateral reinforcement insert and padding which curves away from the patient’s skin extends throughout the rear strap portion, see [0045], claims 1, 9, and 10, Figs. 8 – 9).
29. Madaus discloses the mask system of claim 27, wherein the first and second fabric layers are joined along the longitudinal edges of the rear strap portion to at least partially enclose the foam material to form rounded edges in order to reduce skin markings (See Figs. 2 – 4, stitching 7, [0035 – 0036]; as explained above, the lateral reinforcement insert and padding which curves away from the patient’s skin extends throughout the rear strap portion, see [0045], claims 1, 9, and 10, Figs. 8 – 9).
30. Maduas discloses the mask system of claim 27, wherein the first and second fabric layers encapsulate the foam material such that the foam material is not exposed at the longitudinal edges (see Figs. 2 – 4).
31. Madaus as modifed discloses the mask system of claim 27, further comprising a frame to support the cushion on the patient's face in use (see Amarasinghe, Fig. 1, 12, 14, [0034]).
32. Madaus discloses the mask system of claim 31, wherein the rear strap portion is removably connected to the frame (Madaus illustrates various figures with the rear strap portion disconnected, e.g. Fig. 8, and Amarsinghe further discloses removable connection to the frame at [0036]).
33. Madaus discloses the mask system of claim 27, wherein at least a part of the rear strap portion is configured to overlie a part of the patient's head located 1) posterior to a rear part of the patient's ear and 2) inferior to a top point of the patient's ear (see Fig. 9).
Claim 25 is/are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Madaus (US 20040025882) in view of Amarasinghe (US 20040112377) in view of Blaszczkiewicz (US 20100000544).
25. Madaus as modified discloses the mask system of claim 11, wherein: the rear strap portion is secured to the first strap portions via respective connections (examiner broadly considers the first strap portions to include both the indicated “FSP” as well as 22a as discussed above; the first strap portion 22a is secured to the rear strap portion via the illustrated connection); and each said first strap portion includes a free end with hook or loop material (see corresponding first end of Amarasinghe, 44; examiner additionally notes that the first end 44 also applies to the upper strap 38 corresponding to headgear 1).
However, Madaus does not disclose that the connection is a joint. Nonetheless, Blaszcyzkiewicz discloses a headgear having a rear strap portion 524 and first strap portion with a free end of hook material 526, wherein the two portions are secured via respective joints 510, see [0054]. Therefore, it would have been obvious to a person having ordinary skill in the art at the time the invention was filed to modify the headgear including 1 and/or 22a of Madaus to be secured via joint as taught in Blaszcyckiewicz as such connection securely joins the two components, and additionally may allow for differing properties.
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 11, 27, 34, 39, and dependents therein are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-33 of U.S. Patent No.11819615 (herein after ‘615). Although the claims at issue are not identical, they are not patentably distinct from each other because ’615 discloses all of the features of the claims.
USPN ‘615 discloses claim 11, a mask system for treatment of sleep disorder breathing by providing positive pressure respiratory therapy to a patient (claim 1, c. 23: 47 – 49), the mask system comprising: a respiratory mask comprising a frame and a cushion configured to seal with at least the patient's nasal passages (c. 23: 50 – 52); and headgear configured to hold the respiratory mask in position on a patient's face, the headgear comprising: a rear strap portion configured to contact a rear portion of the patient's head in use (c. 23: 55 – 58); and a pair of first strap portions extending from the rear strap portion (c. 23: 59), wherein each of the first strap portions and the rear strap portion is constructed from a respective first fabric layer, a respective foam layer, and a respective second fabric layer, each first fabric layer and each second fabric layer being joined at an edge to at least partially enclose the foam layer to form a rounded edge in order to reduce skin markings (c. 23: 66 – c. 24: 4), wherein a joint is provided to join at least the first and second fabric layers on each lateral side of the first strap portions and the rear strap portion, and each said joint is positioned at the center or close to the center of the respective lateral side of each of the first strap portions and rear strap portion (c. 24: 6 – 13), and wherein a width of the rear strap portion varies along a length of the rear strap portion with the rounded edge and/or a width of each of the first strap portions varies along a length of the respective first strap portion with the rounded edge (c. 24: 14 – 20).
USPN ‘615 discloses claim 27, a mask system for treatment of sleep disorder breathing by providing positive pressure respiratory therapy to a patient, the mask system comprising: a respiratory mask including a cushion configured to seal with at least a portion of the patient's face to deliver a flow of pressurized air to the patient for treatment of sleep disordered breathing; and headgear configured to hold the respiratory mask in position on a patient's face (claim 23, c. 26: 1 – 3), the headgear including a rear strap portion configured to contact a rear portion of the patient's head in use (c. 26: 6), wherein the rear strap portion is constructed from a first fabric layer configured to face towards the patient's skin, a second fabric layer positioned opposite the first fabric layer, and foam material positioned between the first and second fabric layers (c. 26: 17 – 21), wherein the first and second fabric layers form at least part of opposed longitudinal edges of the rear strap portion, the first fabric layer at the longitudinal edges being configured to, in use, curve away from the patient's skin to reduce skin markings (c. 26: 22 – 25, wherein lateral edges read on longitudinal edges given the lack of other edges introduced in the claim), and a central portion of the first fabric layer, between the longitudinal edges as seen in cross section, being configured to, in use, engage the patient's skin (c. 26: 26 – 28), and wherein a width of the rear strap portion with the first fabric layer configured to curve away from the patient's skin varies along a length of the rear strap portion (c. 26: 29 – 32).
Claims 34, 39 in the instant application are disclosed by claims 1 and 23 in USPN ‘615, and corresponding dependents 12 – 26, 28 – 33, 35 – 38, and 40 in the instant application are disclosed by claims 2 – 22 and 24 – 33 in USPN ‘615.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Doherty (US 20100258136) appears to disclose the claimed foam construction in Fig. 13. The patent appears to be commonly owned at the time the invention was made.
Blaszczkiewicz (US 20100000544) discloses a headgear with thermoformed foam fabric construction of varying width, and one seam on a top surface.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRADLEY H PHILIPS whose telephone number is (571)270-5180. The examiner can normally be reached 8:00 - 5:00 M-F.
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/BRADLEY H PHILIPS/Primary Examiner, Art Unit 3799
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