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 Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1 and 3-13 rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 recites “the controller is exposed to the oxidizing agent” which lacks support in the disclosure as filed. At best, the disclosure supports the controller being inside the enclosure, which is a broader limitation than the controller being exposed to the oxidizing agent within the enclosure. The more narrow limitation presented in the claim therefore lacks proper support as there is no consideration, explicit or implicit, that the controller is exposed to oxidizing agent. There is no requirement that the controller be located in a part of the enclosure that is treated by oxidizing agent and therefore it could be located in a location where it is not exposed to a chemical agent, which can be said to reasonably included in a disinfecting enclosure as it is understood by an ordinary artisan and therefore the limitation cannot be considered to be inherent to the disclosure as filed. Therefore, the claim is directed towards new matter and is rejected.
The remaining claims are rejected for being dependent on claim 1.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 3-4, 9-11, 13, and 31-32 are rejected under 35 U.S.C. 103 as being unpatentable over Yuan (US 6,589,480) in view of Hsu (9,433,694).
Regarding claim 1, Yuan (US 6,589,480) discloses a microbial control system for use in a food processing facility (abstract), comprising:
an electronic component enclosure comprising an access cover configured to be selectively opened to enable access to an interior of the enclosure (ozone off-gas is introduced to sterilize a food storage container, the container inherently or at least obviously including a lid or the like in order to preserve and keep the food free of contaminants during processing; Column 4 lines 15-20), the enclosure being disposed inside the food processing facility (Column 2 lines 18-22 discloses the method being implemented inside a food processing environment/workspace);
An electronic component wherein the electronic component is configured to control the pH of the water in use for the production of ozone for use in the method of sterilizing the food processing environment (Column 7 lines 6-10 disclose the adjusting of pH of the decontaminating solution, Example 1 teaches the solution to produce ozone is water), and
An oxidant generator configured to generate an oxidizing agent in a gaseous state and distribute the oxidizing agent in the gaseous state within the interior of the enclosure (Claim 2 depending from claim 1 requires the generation and introduction of ozone gas into an enclosure like a food storage container).
Regarding the limitation that the water that is controlled or monitored is used outside of the enclosure: Apparatus claims cover what a device is, not what a device does and 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 (see MPEP 2114, II). The system disclosed by Yuan is well capable of performing the claimed function and is reasonably expected to do so. Therefore, all the limitations of the claim are met. Furthermore, claim 2 of Yuan discloses the ozone which is produced via the monitored water is used in both a food storage container and a food processing workspace, reading on the limitation of “used outside of the enclosure”.
Yuan appears to be silent with regards to the electronic component being a controller disposed specifically in the interior of the enclosure, and the oxidant generator positioned within the interior of the enclosure.
Hsu (US 9,433,694) discloses a control circuit within an enclosure (Fig. 5, control circuit 5 is located within the housing 1) that is exposed to the oxidant circulating within the enclosure, the oxidant generator being positioned within the enclosure (Fig. 5 shows the air inside the housing 1 being circulated by fan 512, and the ozone generator 53 directing a similar flow towards the control circuit 5, Col. 2 lines 47-53). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device disclosed by Yuan such that the controller and oxidant generator are disposed inside the enclosure with an access cover as taught by Hsu to arrive at the claimed invention. One would have been motivated to do so to produce ozone at the point of use to avoid undesirable degradation, and to control the operation of the device including sensors and safety mechanisms at the location of the application of oxidant to arrive at a safer an improved microbial control device. The combination of familiar prior art elements, including processing containers and controllers, according to known means to arrive at results that are nothing more than predictable is prima facie obvious. MPEP 2143(I)(A).
Regarding claim 3, modified Yuan further teaches the oxidant generator comprises an ozone generator and wherein the oxidizing agent comprises ozone (Column 2 line 66 – Column 3 line 6 disclose the generation and use of ozone).
Regarding claim 4, modified Yuan discloses the ozone generator comprises an ultraviolet UV source of light (Column 2 line 66 – Column 3 line 6).
Regarding claim 9, modified Yuan is set forth with regards to claim 1 above and further teaches the controller is coupled to the oxidant generator and is programmed to control the generator based on a second signal from a sensor (Example 1 discloses the ozone concentration is maintained at a predetermined level by means of a sensor).
Regarding claim 10, modified Yuan is set forth above with regards to claim 1 above and further teaches the oxidant generator is configured to receive electrical power from the electronic component (Example 1 discloses the ozone concentration is controlled and monitored, and therefore requires some electronic component capable of conveying power to the ozone generator). Furthermore, this powering is not positively recited as part of the claim, merely that the device is “configured to” receive electrical power, a function which the oxidant generator is certainly equipped to perform.
Regarding claim 11, modified Yuan is set forth above with regards to claim 1 and further teaches the oxidant generator is configured to receive electrical power from a power source separate from the electronic component (Example 1 discloses the ozone concentration is controlled and monitored, and therefore requires some power source that is not considered to be the electronic component is capable of conveying power to the ozone generator). Furthermore, this powering is not positively recited as part of the claim, merely that the device is “configured to” receive electrical power, a function which the oxidant generator is certainly equipped to perform.
Regarding claim 13, modified Yuan is set forth with regards to claim 1 above and further teaches the oxidant generator is in fluid communication with the interior of the enclosure (Claim 1).
Regarding claim 31, modified Yuan further teaches the electronic component is connected with the enclosure (see fig. 5 of Hsu, incorporated into the primary reference).
Regarding claim 32, modified Yuan is set forth with regards to claim 1 above and further teaches the electronic component is operable to interact with the processing facility while the electronic component is in the interior of the enclosure (Column 7 lines 6-10 disclose the adjusting of pH of the decontaminating solution, which is a water in the processing facility, and therefore the electronic component interacts with the facility while in use).
Claims 5 and 12 are rejected under 35 U.S.C. 103 as being unpatentable Yuan (US 6,589,480) in view of Hsu (9,433,694) as applied to claim 1 above, and further in view of Richardson (US 2018/0055963).
Regarding claim 5, modified Yuan is set forth with regards to claim 1 above, but appears to be silent with regards to the oxidant generator comprising a chlorine dioxide generator.
Richardson (US 2018/0055963) teaches a microbial control system in a food processing system where the oxidant generator comprises a chlorine dioxide generator and wherein the oxidizing agent comprises chlorine dioxide (chlorin dioxide gas 135, pars. 2 and 19). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device taught by Yuan in view of Yamada such that the oxidant generator includes a chlorine dioxide to arrive at the claimed invention. One would have been motivated to do so to utilize a known-effective sterilant for a space that requires sterilization by a sterilant, such as the sterilization of food industry equipment by chlorine dioxide gas as set forth by Yuan to arrive at an improved sterilization device.
Regarding claim 12, Richardson further teaches a pressure source in fluid communication with the interior of the enclosure and configured to provide a positive pressure in the interior of the enclosure (compressed air 115, pressure sensor; Paragraph [0021]). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device disclosed by Yuan such that there is a positive pressure source in fluid communication with the interior of the enclosure and configured to provide a positive pressure in the interior of the enclosure to arrive at the claimed invention. One would have been motivated to do so to circulate the sterilant within the enclosure and to mitigate leakage of microbes into the enclosure from an outside environment to arrive at an improved device.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Yuan (US 6,589,480) in view of Hsu (9,433,694) as applied to claim 1 above, and further in view of Campagna (US 2010/0266445).
Regarding claim 6, modified Yuan is set forth above with regards to claim 1, and Hsu further teaches a switch for activating or deactivating sterilization (Fig. 1 switch 71) but Yuan appears to be silent with regards to a switch in a first or second position activating or deactivating the oxidant generator.
Campagna (US 2010/0266445) teaches a door switch that indicates the state of the door of the sterilizing device wherein the state determines whether or not the sterilization program is activated or not (Claim 18, door state switch including solenoid lock having an on and off state; par. 98), and Hsu discloses a door switch that is a tact switch that moves to control the device (fig. 1 switch 71, Col. 3 lines 7-12). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device taught by Yuan such that the oxidant generator is operably coupled to the switch such that the switch is configured to cause the oxidant generator to operate when the switch is in the second position and prevent operation of the oxidant generator when the switch is in the first position as taught by Campagna and Hsu to arrive at the claimed invention. One would have been motivated to do so to successfully implement a desirable safety function to avoid activation outside of an operational position according to means known in the art to arrive at a safer device.
Claims 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over Yuan (US 6,589,480) in view of Hsu (9,433,694) as applied to claim 1 above, and further in view of Yamada (US 2018/0169284).
Regarding claim 7, modified Yuan is set forth above with regards to claim 1 but appears to be silent with regards to a sensor for controlling oxidant generator operation.
Yamada (US 2018/0169284) discloses a sensor positioned within the enclosure and configured to measure a concentration of the oxidizing agent within the interior of the enclosure, wherein the sensor is operably coupled to the oxidant generator such that a signal generated by the sensor is configured to at least one of: prevent the oxidant generator from operating when the concentration is above a first threshold; or allow the oxidant generator to operate when the concentration is below a second threshold (Fig. 4 sensor 54S; S12 discloses the actuation at a less than a predetermined value; Paragraph [0063]-[0064]). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device disclosed by Yuan such that the oxidant generator is controlled by the measurements of a sensor as claimed to arrive at the claimed invention. One would have been motivated to do so to maintain the oxidant at a safe but still effective threshold value to arrive at a more useful, safe, controllable, and efficient device.
Regarding claim 8, modified Yuan is set forth with regards to claim 1 above but appears to be silent with regards to a timer.
Yamada further teaches a timer operably coupled to the oxidant generator such that the oxidant generator is configured to operate based on the timer (Controller 51 determines whether or not a predetermined time has elapsed or not and controls operation based on said predetermined time, Paragraphs [0056]-[0058]; Fig. 4 S6). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device disclosed by Yuan such that there is a timer that the oxidant generator is configured to operate based on as taught by Yamada to arrive at the claimed invention. One would have been motivated to do so to prevent an undue and unnecessary exposure to sterilizing gas, and to operate the device in a manner such that sterilization is achieved based on a necessary exposure to a sterilant over time to arrive at a more useful, safe, controllable, and efficient device. The combination of familiar prior art elements to perform the same functions together as they do separately, including sterilizing enclosures and timers, according to known means to arrive at results that are nothing more than predictable is prima facie obvious. MPEP 2143(I)(A).
Claims 14, 16-17, 19-20, 33, 35-36, and 38 are rejected under 35 U.S.C. 103 as being unpatentable over Campagna (US 2010/0266445) in view Hecht (US 2016/0029686) in view of Fry (US 3,893,843).
Regarding claim 14, Campagna (US 2010/0266445) teaches –
A kit for an electronic component enclosure for microbial control within an interior of the enclosure (Title, abstract; the assembled components of Figs. 1-4 including chamber 8), the kit including:
a switch configured to operably couple to an access cover of the enclosure or another component of the enclosure such that the switch is configured to be in a first position when the access cover is in an open position with respect to the enclosure and the switch is configured to be in a second position when the access cover is in a closed position with respect to the enclosure (claim 18, door state switch 36 in fig. 6); and an oxidant generator configured to: be positioned within an interior of the enclosure; generate an oxidizing agent in a gaseous state within the interior of the enclosure (Fig. 4 ozone lamp 4; Paragraph [0091]); and be operably coupled to the switch, wherein the switch is further configured to at least one of: prevent operation of the oxidant generator when the switch is in the first position; or allow the oxidant generator to operate when the switch is in the second position (claim 18 door switch and solenoid lock). Campagna appears to be silent with regards to the kit consisting of a switch and an oxidant generator, and the oxidant generator being directly coupled to the switch.
Regarding the limitations directed towards the kit consists only of a switch and an oxidant generator being configured to be retrofitted to an enclosure: The patentability of a product does not depend on its method of production, and if the product in a claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior art product was made by a different process, MPEP 2113.
Regarding the limitation directed towards a kit for retrofitting to an existing structure: Hecht (US 2016/0029686) discloses a kit for retrofitting disinfecting means to an existing structure (par. 46), providing the advantage of applying the device to existing structures in need of disinfection. Therefore it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device disclosed by Campagna such that it is portable and separable, and retrofitable onto an existing structure as taught by Hecht such that the device can have parts separably and able to be changed out and the device can be transported in order to arrive at a device that is capable of being retrofitted or having parts retrofitted thereto to arrive at the claimed invention. One would have been motivated to do so to allow the convenient transport of the device and to allow for the replacement and servicing of broken or old parts and making a claimed device separable and portable is not sufficient to patentably distinguish over an otherwise old device unless there are new or unexpected results, MPEP 2144.04(V). Furthermore, the mere recitation that the kit is intended to be for “retrofitting” an existing enclosure does not modify the structure of the claimed apparatus sufficiently to distinguish it from the prior art device, because there is otherwise no structural difference between the claimed device and the prior art device. The components of the enclosure disclosed by Campagna in a disassembled state includes an oxidant generator and a switch capable of performing the claimed functions, and therefore Campagna discloses a group of components that consists of a switch and an oxidant generator as claimed. Separating the switch and the oxidant generator from the enclosure and defining the components as a kit, particularly when the switch and generator are as claimed applied to an enclosure including other components, does not patentably distinguish those two components from the prior art that also discloses those two components.
Regarding the limitation that the oxidant generator is directly coupled to the switch: Fry (US 3,893,843) discloses a disinfecting device comprising a door-state switch that is directly coupled to the generator (fig. 29B. tub cover 48 closes lid switch 228 which is directly coupled to electric motor 127 which operates the system including disinfectant pump 126, and the opening of switch 228 opens the circuit and prevents operation; Column 18 lines 15-18). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device taught by Campagna such that the switch and oxidant generator are directly coupled to one another as disclosed by Fry to arrive at the claimed invention. One would have been motivated to do so to prevent the accidental operation and possible exposure of a user as desired by Campagna to arrive at an improved and safer device. The combination of familiar prior art elements according to known means to arrive at results that are nothing more than predictable is prima facie obvious. MPEP 2143(I)(A).
Regarding the limitation that the enclosure includes a controller disposed in the interior where the oxidizing agent is adapted to contact and clean the controller: The enclosure is not positively claimed and is not part of the invention. The claimed invention is directed towards a kit with a switch and an oxidant source, where the kit and oxidant source are intended to be used in such a way that they are positioned in an enclosure to perform the claimed functions. The oxidant source and switch disclosed by Campagna when made into a kit as set forth above are well capable of being implemented in an enclosure that includes a controller that is contactable with the oxidant produced by the oxidant source. Apparatus claims cover what a device is, not what a device does and 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 (see MPEP 2114, II).
Regarding claim 16, modified Campagna further teaches the oxidant generator is configured to receive electrical power from an electronic component at least partially disposed in the interior of the enclosure (Paragraph [0016] discloses an electrical connection to the ozone lamp, necessitating some electrical component located within the device).
Regarding claim 17, modified Campagna further teaches the oxidant generator is configured to receive electrical power from a power source separate from an electronic component at least partially disposed in the interior of the enclosure (wall power 48 powers the lamps and requires an electrical connection to the lamps inside the enclosure, fig. 6, see rejection of claim 16 above).
Regarding claim 19, modified Campagna further teaches the oxidant generator is an ozone generator (ozone lamp 4).
Regarding claim 20, modified Campagna further teaches the ozone source is a UV light source (ozone lamp 4, paragraph [0091]).
Regarding claim 33, Campagna teaches –
A kit for an electronic component enclosure for microbial control within an enclosure (Title abstract; Figs. 1-4 chamber 8), including: a switch configured to operably couple to an access cover of the enclosure such that the switch is configured to be in a first position when the access cover is in an open position with respect to the enclosure and the switch is configured to be in a second position when the access cover is in a closed position with respect to the enclosure (claim 18, door switch); and an oxidant generator configured to: be positioned in and in fluid communication with an interior of the enclosure; generate an oxidizing agent in a gaseous state; distribute the oxidizing agent to the interior of the enclosure (Fig. 4 ozone lamp 4; Paragraph [0091]); and be operably coupled to the switch, wherein the switch is further configured to at least one of: prevent operation of the oxidant generator when the switch is in the first position; or allow the oxidant generator to operate when the switch is in the second position (claim 18 door switch and solenoid lock). Campagna appears to be silent with regards to the kit consisting of a switch and an oxidant generator, and the oxidant generator being directly coupled to the switch.
Regarding the limitations directed towards the kit only consists of a switch and an oxidant generator being configured to be retrofitted to an enclosure: The patentability of a product does not depend on its method of production, and if the product in a claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior art product was made by a different process, MPEP 2113.
Regarding the limitation directed towards a kit for retrofitting to an existing structure: Hecht (US 2016/0029686) discloses a kit for retrofitting disinfecting means to an existing structure (par. 46), providing the advantage of applying the device to existing structures in need of disinfection. Therefore it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device disclosed by Campagna such that it is portable and separable, and retrofitable onto an existing structure as taught by Hecht such that the device can have parts separably and able to be changed out and the device can be transported in order to arrive at a device that is capable of being retrofitted or having parts retrofitted thereto to arrive at the claimed invention. One would have been motivated to do so to allow the convenient transport of the device and to allow for the replacement and servicing of broken or old parts and making a claimed device separable and portable is not sufficient to patentably distinguish over an otherwise old device unless there are new or unexpected results, MPEP 2144.04(V). Furthermore, the mere recitation that the kit is intended to be for “retrofitting” an existing enclosure does not modify the structure of the claimed apparatus sufficiently to distinguish it from the prior art device, because there is otherwise no structural difference between the claimed device and the prior art device. The components of the enclosure disclosed by Campagna in a disassembled state includes an oxidant generator and a switch capable of performing the claimed functions, and therefore Campagna discloses a group of components that consists of a switch and an oxidant generator as claimed. Separating the switch and the oxidant generator from the enclosure and defining the components as a kit, particularly when the switch and generator are as claimed applied to an enclosure including other components, does not patentably distinguish those two components from the prior art that also discloses those two components.
Regarding the limitation that the oxidant generator is directly coupled to the switch: Fry (US 3,893,843) discloses a disinfecting device comprising a door-state switch that is directly coupled to the generator (fig. 29B. tub cover 48 closes lid switch 228 which is directly coupled to electric motor 127 which operates the system including disinfectant pump 126, and the opening of switch 228 opens the circuit and prevents operation; Column 18 lines 15-18). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device taught by Campagna such that the switch and oxidant generator are directly coupled to one another as disclosed by Fry to arrive at the claimed invention. One would have been motivated to do so to prevent the accidental operation and possible exposure of a user as desired by Campagna to arrive at an improved and safer device. The combination of familiar prior art elements according to known means to arrive at results that are nothing more than predictable is prima facie obvious. MPEP 2143(I)(A).
Regarding the limitation that the enclosure includes a controller disposed in the interior where the oxidizing agent is adapted to contact and clean the controller: The enclosure is not positively claimed and is not part of the invention. The claimed invention is directed towards a kit with a switch and an oxidant source, where the kit and oxidant source are intended to be used in such a way that they are positioned in an enclosure to perform the claimed functions. The oxidant source and switch disclosed by Campagna when into a kit as set forth above are well capable of being implemented in an enclosure that includes a controller that is contactable with the oxidant produced by the oxidant source. Apparatus claims cover what a device is, not what a device does and 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 (see MPEP 2114, II).
Regarding claim 35, modified Campagna further teaches the oxidant generator is configured to receive electrical power from an electronic component at least partially disposed in the interior of the enclosure (Paragraph [0016] discloses an electrical connection to the ozone lamp, necessitating some electrical component located within the device).
Regarding claim 36, modified Campagna further teaches the oxidant generator is configured to receive electrical power from a power source separate from an electronic component at least partially disposed in the interior of the enclosure (wall power 48 powers the lamps and requires an electrical connection to the lamps inside the enclosure, fig. 6, see rejection of claim 16 above).
Regarding claim 38, Richardson further teaches the oxidant generator is an ozone generator generating ozone (Ozone lamp 4, Paragraph [0092]).
Claims 21 and 39 are rejected under 35 U.S.C. 103 as being unpatentable over Campagna (US 2010/0266445) in view of Fry (US 3,893,843) in view of Hecht (US 2016/0029686) as applied to claims 14 and 33 above and further in view of Richardson (2018/0055963).
Regarding claims 21 and 39, modified Campagna is set forth with regards to claims 14 and 33 above but appears to be silent with regards to a chlorine dioxide generator.
Richardson discloses an enclosure for microbial control (title, abstract) comprising a chlorine dioxide generator (Fig. 1 chlorite media 130 producing chlorine dioxide gas 135). It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the device taught by Campagna such that chlorine dioxide is used in the sterilization process or alternatively to include the door switches taught by Campagna in the device taught by Richardson to arrive at the claimed invention. One would have been motivated to do so in order to better sterilize the work piece as desired or alternatively to successfully control the oxidant source according to the door state to arrive at a sterilization enclosure with more user control of the sterilizing function or to control the door safety function disclosed by Richardson in paragraph [0021] to arrive at an improved device. The combination of familiar prior art elements according to known means to arrive at results that are nothing more than predictable is prima facie obviousness. MPEP 2143(I)(A).
Response to Arguments
Applicant's arguments filed 12/09/25 have been fully considered but they are not persuasive.
Applicant’s remarks directed towards the 112(a) rejections of claims 1 and 3-13 are not persuasive. Applicant argues that because the disclosure establishes that the oxidant generator and controller can be inside the interior of the enclosure (see par. 77 and 79) that the limitation that the controller is exposed to oxidizing agent is supported, however the claimed limitation of the controller being exposed to oxidizing agent is more narrow than the two components merely both being inside the same enclosure. A controller could be placed inside the enclosure but not be exposed to oxidant, such as in a case where the controller were placed in a sub-compartment of the enclosure or otherwise provided in a location where oxidant cannot reach. Therefore, the disclosure setting forth that the two components exist within the same enclosure does not implicitly support the configuration where the controller itself is exposed to and sterilized by oxidizing agent as the claimed limitation requires. Applicant argues that the sentence in par. 77 that “preventing the enclosure 102 with the electronic component 106 from being a potential microbial source” supports the electronic component is exposed to oxidizing agent is further not persuasive because the enclosure is the structure that is being exposed to oxidizing agent and thereby prevented from being a potential microbial source, not the electronic component 106. Therefore, the specification fails to support the claim limitation and the claim contains new matter.
Applicant’s remarks directed towards the 103 rejection of claim 1 on pages 9-10 are not persuasive. Applicant argues that the food storage container of Yuan is not an electronic component enclosure, however this distinction is only nominal as a container such as the one taught by Yuan is well capable of containing an electronic component and in an industrial setting is expected to do so, in the form of wiring or a thermometer or the like. Yuan is not relied upon for teaching the controller disposed inside the container and therefore Applicant’s argument attacking the reference for failing to teach this limitation are moot.
Applicant then argues that Hsu discloses an ozone generator 52 that is designed to clean the toothbrush and not the control circuit which is further not perusasive. The device disclosed by Hsu circulates the ozone throughout the enclosure, including through the fan 512 housing that contains the controller (see fig. 5). Therefore, the device is well capable of and reasonably expected to perform this function. See MPEP 2114, II.
Applicant further argues that there is no motivation to include an ozone generator in the food storage container of Yuan and that Yuan fails to teach a controller inside the food storage container, which is further not persuasive. Yuan is not relied upon for teaching the controller inside the container, Hsu is. This fails to consider the references in combination and instead attacks the combination of references individually, and one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Furthermore, Yuan teaches the ozone concentration of the storage container is desirably at relatively high concentrations (see the abstract and col. 4 lines 15-20 Yuan) and therefore including an oxidant generator to facilitate higher concentrations and thus more thorough sanitization of the food storage container would not foil the intended purpose of Yuan as argued by Applicant. The inclusion of an oxidant generator would allow for better control of the ozone concentrations a the point of use, which would provide a benefit and not undermine one of the purposes of Yuan which is the re-use of ozone off-gas. This benefit would be readily obvious to one having ordinary skill in the art and would not require hindsight reconstruction as argued by Applicant. Claim 1 and its dependents remain rejected.
Applicant argues on page 12 with respect to claims 14 and 33 that Campagna does not disclose a kit that can be used to retrofit a pre-existing electronic component enclosure, which is not persuasive. The patentability of a product does not depend on its method of production. The limitation that the set of components that make up the claimed kit are for a retrofitting use-case does not distinguish the prior art device, alone or in combination, that includes all the structural limitations of the claimed device. Applicant further argues the limitation directed towards a kit for retrofitting on page 13 which is similarly not persuasive, because the limitation that the set of components are for retrofitting is further merely an intended use for the claimed components, and a claim recitation directed towards an intended use of an apparatus, including components of a “kit”, do not distinguish the claimed device from the prior art. See MPEP 2114, II. The components disclosed in the kit of Campagna, which are separable and portable in view of Hecht, would be well capable of being retrofitted to an existing device as claimed.
Applicant argues further that Campagna fail to teach an oxidant generator inside an enclosure for contacting the controller with oxidizing agent which is further not persuasive as neither claim 14 nor 33 require an enclosure with a controller. Neither the controller nor the enclosure is positively recited as being part of the claim.
Applicant further argues on pages 13-14 that it would not have been obvious to retrofit the UVC sterilizer with the UV device of Hecht which is not persuasive because that is not the manner in which the references are combined nor is what Hecht is relied upon for teaching. Hecht is relied upon for teaching the modification of a sterilizing device to be constructed or used as a kit that is retrofitted to an existing piece of equipment. Applicant’s arguments directed towards the sensor of the holster of Hecht are similarly not persuasive as Hecht is not relied upon for a sensor or holster.
Applicant argues on page 14 that Fry fails to teach an oxidizing agent being adapted to contact and clean the controller and with regards to a kit are further not persuasive. The claimed invention does not require a controller nor an enclosure as set forth in the rejection above, and Fry is not relied upon for teaching a kit.
Claims 14 and 33 remain rejected similarly.
Applicant’s arguments directed towards the remaining dependent claims do not attack the references for any of the reasons they are relied upon in the rejections, and the claims remain rejected similarly.
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 BRENDAN A HENSEL whose telephone number is (571)272-6615. The examiner can normally be reached Mon-Thu 8:30 - 7pm;.
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/BRENDAN A HENSEL/Examiner, Art Unit 1758