DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
This office action is responsive to the amendment filed on 28 July 2026. As directed by the amendment: claims 9-12 have been amended, claims 13-15 have been cancelled, and no claims have been added. Claims 1-8 were cancelled by previous amendment. Thus, claims 9-12 are presently pending in this application.
Specification
The amendment filed 28 July 2026 is objected to under 35 U.S.C. 132(a) because it introduces new matter into the disclosure. 35 U.S.C. 132(a) states that no amendment shall introduce new matter into the disclosure of the invention. The added material which is not supported by the original disclosure is as follows:
The amendment to paragraph 42 adds subject matter which reads “the top and bottom ends of the flexing seal member…are in vertical alignment with each other”. The amendment to the specification and applicant’s remarks point to the figures in support of this amendment, however, the original figures do not show this feature.
Instead, as can be best seen in figure 3, the bottom end of the flexing seal member (at first attachment 150) is attached to the outer side of the external wall 79 of the piston, while the top end of the flexing seal member (at second attachment 151) is attached to the outer side of cylinder 49. As a result, the bottom end of the flexing seal member is radially outward of the top end, thus the top and bottom ends are not “in vertical alignment” as proposed.
Applicant is required to cancel the new matter in the reply to this Office Action.
Claim Objections
Claims 9 & 10 are objected to because of the following informalities:
Claim 9, line 7: “siphon” should read “syphon” for consistency.
Claim 9, line 24: “…in accordance alternate ascending and descending movement…” should read “…in accordance with alternate ascending and descending movement…” or similar.
Claim 9, line 44: “wherein;” should read “wherein:” or similar.
Claim 9, line 49: “piston cylinder” should read “piston chamber”.
Claim 10: “wherein the leakage collection chamber outlet port located in the piston outer wall” should read “wherein the leakage collection chamber outlet port is located in the piston outer wall” or similar.
Claim 10: “below the the bottom end” should read “below the bottom end”.
Appropriate correction is required.
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 9-12 are 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 9 has been amended to recite “the upper and lower ends of the flexing seal member are in vertical alignment”. As explained in the objection to the specification above, applicant appears to be relying on the original figures to support this feature, however, in said figures, the lower end of the flexing seal member is disposed radially outward of relative to the upper end of the flexing seal member. Thus, the upper and lower ends of the flexing seal member are not “in vertical alignment” as is now claimed.
As a result, the claims contain 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, at the time the application was filed, had possession of the claimed invention.
Claims recited in the section heading above but not specifically discussed are rejected due to dependency upon at least one rejected claim.
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.
Claims 9-12 are 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 9 includes narrative descriptions of the intended function of the device resulting from alternating up and down movement of the pump handle. Several of these limitations raise doubt as to whether they are merely functional descriptions of an intended use to further define the device itself, or whether they are positively recited method steps required by the claim.
By way of example, during the descending movement, the claim recites “fluid is drawn from the inner chamber of the tank into the piston cylinder” and “the mid-portion of the flexing seal member elongates thereby drawing air into the interior space of the flexing seal member”, during the ascending movement, the claim recites “fluid is expelled from the piston chamber into the pressure chamber”, and the claim further recites “leakage fluid that passes between the piston head and the inner surface of the piston chamber side wall collects in the leakage collection chamber the decrease in size of the leakage collection chamber during ascending movement of the piston compresses leakage fluid within the leakage collection chamber causing it to be expelled out of said outlet port, through said syphon, and into the inner chamber of the tank, while the shortening of the mid-portion of the flexing seal member compresses air within said interior space, thereby preventing the compressed leakage fluid from rising into said piston-cylinder interface space or into said interior space”.
As best understood, the fluid, air, and “leakage fluid” are not themselves part of the apparatus. While it is understood that the device may be configured to operate in the above manner, the claim appears to require these steps to actually be performed.
As set forth in MPEP § 2173.05(p)(II), a single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Claim 9 recites “the upper and lower ends of the flexing seal member are in vertical alignment”. As set forth in MPEP § 2173.03, a claim, although clear on its face, may also be indefinite when a conflict or inconsistency between the claimed subject matter and the specification disclosure renders the scope of the claim uncertain as inconsistency with the specification disclosure or prior art teachings may make an otherwise definite claim take on an unreasonable degree of uncertainty.
As the application as originally filed does not describe this feature, and the corresponding upper and lower ends of the flexing seal member are not in vertical alignment as shown, the limitation is vague in light of the specification.
Claim 9 further recites that the cushioning effect “deters damage or excessive wear to components of the device” which is ambiguous or vague. It is unclear what “components of the device” are included in the scope of the claim, and it is unclear how one would determine whether a cushioning effect is sufficient to “deter damage or excessive wear”, causing the claim to take on an unreasonable degree of uncertainty.
The term “excessive wear”, in particular, is a relative term which renders the claim indefinite. The term “excessive wear is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claims recited in the section heading above but not specifically discussed are rejected due to dependency upon at least one rejected claim.
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 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 9-12 (as understood) are rejected under 35 U.S.C. 103 as being unpatentable over Wirz ‘707 (US 6,412,707) in view of Lucien at al. (US 3,208,760; hereafter Lucien) and Wirz ‘853 (US 5,335,853).
Regarding claim 9, Wirz ‘707 discloses (figs. 1-3) a device (11) for pressurized delivery of an agricultural chemical fluid which comprises a solution or suspension (see col. 1, lines 24-27; col. 2, lines 14-16), said device comprising:
a tank (13) having an interior chamber (see fig. 1);
a pressure container (35) positioned within the interior chamber of the tank;
a hose (127) connected to an exit port (125) of the pressure container;
a syphon positioned within the interior chamber of the tank, said syphon having a top end opening (see fig. 1); and
a pump assembly (see fig. 2) comprising i) a piston chamber (65) having a cylindrical side wall (63) that has an outer surface (i.e., a radially outer surface of wall 63), an inner surface (i.e., a radially inner surface of wall 63) and a bottom end (as shown), and ii) a piston (51) having a piston head (77) and a cylindrical piston body (incl. 75 & 79), the piston body comprising an inner wall (75), an outer wall (79) and a space between said inner and outer wall, said space between the inner wall and outer wall having an open upper end and a closed bottom wall (as shown; incl. 81);
the bottom end of the cylindrical side wall of the piston chamber being inserted through the open upper end of the space between said inner and outer wall of the piston body such that a bottom portion of the piston chamber cylindrical side wall is reciprocally moveable up and down while residing within said space between said inner and outer wall of the piston body (see fig. 2 vs figs. 1 & 3);
a portion of the space between said inner and outer walls of the piston body below the bottom end of the piston chamber cylindrical side wall defining a leakage collection chamber (81; (col. 3, lines 25-28: “The combination of the cylinder wall 63, the inner wall 75, and the outer wall 79 defines a primary leak collection chamber 81 which collects any liquid that may leak from the piston”);
an outlet port (102; see fig. 1) fluidly connected to the syphon (via hose 55 and port / duct 105);
a flexing seal member (53) having an upper end attached to an outer surface (i.e., attached to outer wall 37) and a bottom end attached to the outer wall (79) of the piston body (as shown in fig. 2);
a mid-portion of the flexing seal member comprising flutes, lobes or waves configured to alternately elongate and shorten in accordance alternate ascending and descending movement of the piston (as shown in figs. 1 & 2, the seal member is a sealing bellows or accordion having a mid-portion comprising a plurality of lobes or waves configured to elongate and shorten in accordance with the ascending and descending movement of the piston);
an interior space within the flexing seal member (e.g., 101) in communication with a piston-cylinder interface space located between the outer surface of the piston chamber side wall and the outer wall of the piston body (see fig. 2); and
a pump handle (117);
wherein:
the pump handle is connected to the piston (via 57 / 119), such that alternating up and down movement of the pump handle causes alternating ascending and descending movement of the piston (see fig. 2 [piston ascended / handle descended] vs figs. 1 & 3 [piston descended / handle ascended]);
during descending movement of the piston, i) fluid is drawn from the inner chamber of the tank into the piston chamber (col. 3, lines 61-67), ii) the size of the leakage collection chamber increases as the closed bottom of the space between said inner and outer wall of the piston body piston body descends away from the bottom end of the piston chamber side wall (i.e., from fig. 1/3 config to fig. 2 config), and iii) the mid-portion of the flexing seal member elongates thereby expanding the volume of the interior space of the flexing seal member (see col. 4, lines 23-27);
during ascending movement of the piston, i) fluid is expelled from the piston chamber into the pressure container (col. 3, line 67 – col. 4, line 7), ii) the size of the leakage collection chamber decreases as the closed bottom of the space between said inner and outer wall of the piston body ascends toward the bottom end of the piston cylinder wall (i.e., from fig. 2 config to fig. 1/3 config), and iii) the mid- portion of the flexing seal member shortens;
leakage fluid that passes between the piston head and the inner surface of the piston chamber side wall collects in the leakage collection chamber (col. 3, lines 25-28; col. 4, lines 52-55; col. 4, lines 56-60);
the decrease in size of the leakage collection chamber during ascending movement of the piston compresses leakage fluid within the leakage collection chamber causing it to be expelled out of said leakage collection chamber (col. 4, lines 60-63);
leaked liquid expelled from the leakage collection chamber subsequently expelled through said syphon (via the second collection chamber / interior space of the flexing seal member), and into the inner chamber of the tank, while the shortening of the mid-portion of the flexing seal member compresses said interior space (col. 4, line 64 – col. 5, line 7; col. 4, lines 27-31).
Regarding the limitation wherein the flutes, lobes or waves of the mid-portion are configured to create increasing resistance as the piston reaches its furthest extent of ascending movement, thereby providing a cushioning effect which deters damage or excessive wear to components of the device, attention is drawn to figures 1 & 2, wherein figure 1 shows a short configuration corresponding to a maximum ascended position of the piston, while figure 2 shows a long configuration corresponding to a descended position of the piston. As shown in figure 2, the flexing seal member is relatively elongated such that, when it transitions to the short configuration as shown in figure 1, the lobes or waves of the flexing seal member are configured to compress (see more compact shape / tighter folds, etc. in fig. 1 vs fig. 2). As understood, because the seal member is formed of a resilient material (e.g., rubber), this gradual compression of the lobes or waves would create some degree of increased resistance to further compression, thereby providing a cushioning effect as the piston ascends to a furthest extent of travel (as in fig. 1). See also MPEP § 2114(I).
Moreover, as understood, applicant’s specification suggests that this cushioning effect via increased resistance is attributed to the compression of the material which is used to form the flexing seal member (para. 42), and that the flexing seal member may be “any adequately flexible and durable material such as rubber or elastomer…” (para. 41). Wirz ‘707 similarly discloses that the flexing seal member is formed of “a suitably flexible and resilient material…preferably, the bellows is constructed using rubber that is weather and chemical resistant” (col. 4, lines 11-15).
Finally, it does not appear that applicant’s disclosure attributes the function of compression and providing increased resistance for cushioning to any special or unique configuration of the seal member bellows. However, if not already seen as such, when the flexing seal member is formed to be a tubular seal member (as set forth below, in view of Lucien), the resulting flexing seal member would appear to be substantially identical to the claimed flexing seal member.
Wirz ‘707 does not explicitly disclose the additional limitations wherein said leakage collection chamber has an outlet port that is fluidly connected to the syphon; wherein the upper end of the flexing seal member is attached to the outer surface of the piston chamber; wherein, when the mid-portion of the flexing seal member elongates, it draws air into the interior space of the flexing seal member; wherein the compression of the leakage fluid due to the decrease in size of the leakage collection chamber during ascending movement of the piston causes the leakage fluid to be expelled out of said outlet port, through said syphon, and into the inner chamber of the tank, while the shortening of the mid-portion of the flexing seal member compresses air within said interior space, thereby preventing the compressed leakage fluid from rising into said piston-cylinder interface space or into said interior space; or wherein the upper and lower ends of the flexing seal member are in vertical alignment (as best understood).
Lucien teaches (figs. 1 & 2) a device (V1) comprising:
a piston chamber (45) having a cylindrical side wall (40) that has an outer surface (i.e. a radially outer surface of 40), an inner surface (i.e. a radially inner surface of 40) and a bottom end (as shown), and
a piston (35) having a piston head (i.e., portion indicated at 35) and a cylindrical piston body (i.e., 32), the piston body comprising an inner wall (see "Inner Wall" in annotated partial fig. 2, below), an outer wall (“Outer Wall”, below) and a space between said inner and outer wall, said space between the inner wall and outer wall having an open upper end and a closed bottom wall (incl. “Chamber”, below);
a portion of the space between said inner and outer walls of the piston body below the bottom end of the piston chamber cylindrical side wall defining a leakage collection chamber (“Chamber”, below), said leakage collection chamber having an outlet port (“Port”) that is fluidly connected to the interior of a tank (2);
a flexing seal member (“Seal Member”, below; see col. 2, line 15: “shock-absorber jacks comprising bellows”) having an upper end (“Upper End”) attached to the outer surface of the piston chamber and a bottom end (“Bottom End”) attached to the outer wall of the piston body (as shown);
a mid-portion of the flexing seal member comprising flutes, lobes or waves (i.e., waves as shown) configured to alternately elongate and shorten in accordance alternate ascending and descending movement of the piston (see below);
an interior space within the flexing seal member in communication with a piston-cylinder interface space located between the outer surface of the piston chamber side wall and the outer wall of the piston body; wherein:
leakage fluid that passes between the piston head and the inner surface of the piston chamber side wall collects in the leakage collection chamber (col. 2, lines 10-18);
the upper and lower ends of the flexing seal member are in vertical alignment (at least in the same manner as applicant’s disclosed embodiment).
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Figure 2 of Lucien clearly shows the leakage collection chamber outlet port being disposed in the outer wall of the piston defining the leakage collection chamber (i.e., at least at the terminal portion thereof), below the lower end of the flexing seal member. Moreover, even in the event that the outlet port of Lucien is seen to be disposed in, i.e., a lower wall of the piston body rather than an outer wall, it is noted that the original leakage collection chamber outlet port of Wirz ‘707 is already disclosed as being generally arranged on an outer wall (i.e., radially / horizontally extending, rather than vertically extending, etc.).
Nevertheless, to promote compact prosecution, the following additional teaching is provided.
Wirz ‘853 teaches a device for pressurized delivery of an agricultural chemical fluid, said device comprising:
a tank (10/11) having an interior chamber (12);
a pressure container (21) positioned within the interior chamber of the tank;
a hose (83) connected to an exit port (82) of the pressure container;
a return fitting (61) positioned within the interior chamber of the tank; and
a pump assembly comprising i) a piston chamber (42), a piston (37), and a leakage collection chamber (57) which consists of a space between an inner wall and an outer wall of a body (i.e., a cap body 52);
a leakage collection chamber outlet port (58; “horizontal passage 58) located in the outer wall of the body defining the leakage collection chamber and fluidly connected to the inner chamber of the tank (via hose 60 & fitting 61)
wherein fluid which leaks between the piston and the inner surface of the piston cylinder is received within the leakage collection chamber (see col. 5, lines 40-44); and movement of the piston expels fluid from the leakage collection chamber, through the leakage collection chamber outlet port, and into the interior chamber of the tank (see col. 5, lines 34-39).
As can be seen from fig. 2 of Wirz ‘853, and similar to the arrangement of Lucien, the leakage collection chamber outlet port is located near the bottom of the outer wall which defines the leakage collection chamber. As would be understood by a person having ordinary skill in the art, locating an outlet / drain near the bottom of a collection chamber avoids / minimizes dead space below the outlet which might otherwise retain stagnant fluid and/or accumulate debris.
As set forth in MPEP § 2141.03(I), "A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton." KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 421, 82 USPQ2d 1385, 1397 (2007). "[I]n many cases a person of ordinary skill will be able to fit the teachings of multiple patents together like pieces of a puzzle." Id. at 420, 82 USPQ2d 1397. Office personnel may also take into account "the inferences and creative steps that a person of ordinary skill in the art would employ." Id. at 418, 82 USPQ2d at 1396.
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Wirz ‘707 such that the outlet port fluidly connected to the syphon for returning leakage fluid to the tank is located in the outer wall of the piston (i.e., the outer wall which defines the leakage collection chamber), in view of the teachings of Lucien and/or Wirz ‘853, as the use of a known technique (e.g., locating a leakage collection chamber outlet port for an annular leakage collection chamber at/near a bottom region of the outer wall which defines the collection chamber, as in Lucien and/or Wirz ‘853) to improve a similar device (the device of Wirz ‘707) in the same way (e.g., by providing the return port directly through the piston wall into the leakage collection chamber and, in particular, near a bottom of the collection chamber, more of the leaked fluid can be returned to the tank, as the return port is located at a lower point in the system as compared to the original configuration of Wirz ‘707, where fluid would need to accumulate to a large enough volume to reach the port / duct in a second collection chamber before it could be returned to the tank; moreover, in the configurations of Lucien and Wirz ‘853, gravity could assist in collecting the leaked fluid near the return port; and the “dead space” volume is minimized, which may minimize areas where debris could potentially accumulate below the level of the outlet port).
Examination Note: to promote compact prosecution, it is noted that providing piston/cylinder leakage collection chamber outlet ports in an outer wall which defines the collection chamber is otherwise known. See, e.g., US 4,463,663 to Hanson Jr., et al.
It would have been further obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to modify the device of Wirz ‘707 such that the upper end of the flexing seal member is attached to the outer surface of the piston chamber, whereby the flexing seal member has an upper end attached to the outer surface of the piston chamber and a bottom end attached to the outer wall of the piston, the upper and lower ends of the flexing seal member being in vertical alignment, in view of the teachings of Lucien, as the simple substitution of one known arrangement (i.e. the seal member shape and attachment arrangement of Wirz ‘707) for another (the seal member shape and attachment arrangement of Lucien) to yield predictable results (e.g., enabling the piston outer wall to be sealed to the piston chamber wall prior to mating with the lower end of the container 35, and/or allowing the piston outer wall to remain sealed to the piston chamber wall upon removal, etc.), or otherwise as the use of a known technique (providing a flexing seal member in the form of a tubular seal member attached to an outer wall of a piston at one end and the outer surface of the piston chamber wall at the other end, to protect / seal the space between the piston and the cylinder, as in Lucien) to improve a similar device (e.g. the device of Wirz ‘707, having a piston / cylinder sealing arrangement) in the same way.
Examination note: to further promote compact prosecution, it is noted that sealing arrangements wherein a flexing seal member is attached to an outer wall of a piston at a lower end and an outer surface of a piston chamber at the other end, in general, are well known in the art. See, e.g., US 3,088,726 to Dangauthier, US 3,807,717 to Ito and US 4,214,775 to Taft).
With respect to the limitations wherein, when the mid-portion of the flexing seal member elongates, it draws air into the interior space of the flexing seal member; wherein the compression of the leakage fluid due to the decrease in size of the leakage collection chamber during ascending movement of the piston causes the leakage fluid to be expelled out of said outlet port, through said syphon, and into the inner chamber of the tank, while the shortening of the mid-portion of the flexing seal member compresses air within said interior space, thereby preventing the compressed leakage fluid from rising into said piston-cylinder interface space or into said interior space, as set forth in MPEP § 2114(II), "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). 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.
Furthermore, as set forth in MPEP § 2115, A claim is only limited by positively recited elements. Thus, "[i]nclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims." In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963).
Nevertheless, when the device of Wirz ‘707 is modified as set forth above such that the leakage collection chamber has said outlet port located in the outer wall of the piston and such that the upper end portion of the flexing seal member (i.e., provided as tubular sealing bellows) is attached to the outer surface of the piston chamber, the resulting device is reasonably seen to teach all of the structural limitations of the claim.
If the resulting device having the above structure were to be operated in a manner as in the claim, wherein the tank is provided with agricultural chemical fluid, the interior space of the flexing seal member and leakage collection chamber are (at least initially) filled with air, then, if leakage of fluid were to occur past the piston the device would, in its normal and usual operation, read on the additional limitations wherein, when the mid-portion of the flexing seal member elongates, it draws air into the interior space of the flexing seal member (i.e., the interior space of flexing seal member, now closed to the exterior due at the upper end due to relocation of the outlet port to the lower part of the piston wall, and attaching the upper end to the cylinder wall, would create suction relative to the leakage collection chamber during expansion, drawing air from the leakage collection chamber); wherein the compression of the leakage fluid due to the decrease in size of the leakage collection chamber during ascending movement of the piston causes the leakage fluid to be expelled out of said outlet port (i.e., now that the outlet port is in the outer wall of the piston, and the interior space of the flexing seal member is sealed, the resulting increase in pressure would force fluid through the outlet port), through said syphon (connected to said outlet port via the hoses as originally shown; analogous to the return fitting of Wirz ‘853), and into the inner chamber of the tank (via the syphon), while the shortening of the mid-portion of the flexing seal member compresses air within said interior space (i.e., as the interior space of the flexing seal member is closed to the exterior, as previously noted, shortening of the mid-portion during ascent of the piston would raise the air pressure within), thereby preventing the compressed leakage fluid from rising into said piston-cylinder interface space or into said interior space (i.e., at least when the pressure in the flexing seal member is higher than the pressure required to move the leakage fluid through the outlet port, and/or the volume of leakage fluid is less than, e.g., the maximum volume of the leakage collection chamber, etc.).
Regarding claim 10, the device of Wirz ‘707, as modified above, reads on or otherwise renders obvious the additional limitations wherein the leakage collection chamber outlet port is located in the piston outer wall, below the bottom end portion of the flexing seal member (i.e. as taught by Lucien). See discussion in the grounds of rejection for claim 9 above, not repeated for brevity.
Regarding claim 11, the device of Wirz ‘707, as modified above, reads on the additional limitations wherein the piston reaches its furthest extent of ascending movement, and the flexing seal member reaches its shortest configuration, when the pump handle reaches its maximum extent of downward motion (i.e., see fig. 3 of Wirz ‘707; col. 4, lines 27-31; col. 5, lines 21-23).
As would be understood by a person having ordinary skill in the art, if the pump handle were permitted to continue moving downward after the piston has reached the furthest extent of ascent, the piston would be compressed between the bellcrank and the upper elements within the piston chamber, risking damage to the piston itself, the valve elements of the pump, and/or the joint elements between the piston and the pump handle.
Alternatively, as the pump handle and piston are positively connected, the furthest extent of ascending movement of the piston, and the maximum extent of downward motion of the pump handle may be considered to occur simultaneously: if the pump handle were to be limited in its downward movement, the corresponding position of the piston may be considered the furthest extent of ascent (even if there remains clearance in the cylinder above), as the piston would not be able to move further while connected to the pump handle. Similarly, even if the pump handle were technically able to travel further downward, the piston impacting the top of the cylinder would prevent further movement of the pump handle (unless the device were to break), whereby that point may be considered the maximum extent of downward motion of the pump handle. In either event, the furthest extent of ascent of the piston also would define the shortest configuration of the flexing seal member.
Regarding claim 12, with respect to the limitation wherein said cushioning effect provides for cushioned stopping of the pump handle as it reaches said maximum extent of downward motion, as explained in the grounds of rejection for claim 9 above, the mid-portion would be configured to create increasing resistance as the piston reaches its furthest extent of ascending movement, thereby providing a cushioning effect which deters damage or excessive wear to components of the device, especially when the flexing seal member is formed to be a tubular seal member (i.e., in view of Lucien), wherein the resulting flexing seal member would appear to be substantially identical to the claimed flexing seal member.
As explained for claim 11 above, the piston reaches its furthest extent of ascending movement, and the flexing seal member reaches its shortest configuration, when the pump handle reaches its maximum extent of downward motion.
In view of the above, as the pump handle and piston are connected, the cushioning effect created by the increasing resistance of the flexing seal member as the piston reaches its furthest extent of ascending movement would also provide for cushioned stopping of the pump handle as it reaches said maximum extent of downward motion.
Response to Arguments
The Declaration of Romina Wirz Piasini under 37 CFR 1.132 and applicant's arguments filed 28 July 2026 have been fully considered.
The declaration under 37 CFR 1.132 filed 28 July 2026 is insufficient to overcome the rejections of claims 9-12 under 35 USC § 103 as set forth in the last Office action because:
It refers only to the system described in the application and not to the individual claims of the application. Thus, there is no showing that the objective evidence of nonobviousness is commensurate in scope with the claims. See MPEP § 716.
It also includes statements which amount to an affirmation that the claimed subject matter functions as it was intended to function. This is not relevant to the issue of nonobviousness of the claimed subject matter and provides no objective evidence thereof. See MPEP § 716.
Finally, while declarant’s description of functionality and shortcomings of the prior art references of Wirz ’707 and Wirz ‘853 are appreciated, they ultimately amount to arguments against the 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).
Applicant’s remarks, filed concurrently on 28 July 2026, suggest that the declarant intended to establish evidence of overcoming a “long standing need” in the art. However, there is no showing that others of ordinary skill in the art were working on the problem and if so, for how long. In addition, there is no evidence that if persons skilled in the art who were presumably working on the problem knew of the teachings of the above cited references, they would still be unable to solve the problem. See MPEP § 716.04.
Furthermore, it is not clear exactly what applicant considers to be the “long standing need” in this instance. With respect to the issue of leakage, it is noted that Wirz ‘707 and Wirz ‘853 each provide means for returning leakage to the tank. Declarant and Wirz ’707 note that the solution in Wirz ‘853 may leak if portions “were not replaced regularly”, while declarant notes that Wirz ‘707 might be subject to issues of abrasion and premature wear. However, the solutions proposed by the instant invention, locating the outlet to the leakage collection chamber through the outer wall of the piston, and attaching the upper end of the flexing seal member to the outer surface of the piston chamber, are otherwise rendered obvious in view of Lucien (in combination with the above references).
Finally, while applicant’s remarks include a conclusory statement suggesting that “numerous limitations have been added that are not taught or rendered obvious by the cited prior art references”, neither the declaration nor applicant’s remarks contain articulated arguments addressing the pertinent combination of references when considered as a whole.
Conclusion
The prior art made of record in the attached PTO-892 and not relied upon is considered pertinent to applicant's disclosure.
Applicant's amendment necessitated any new grounds 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 Richard K Durden whose telephone number is (571) 270-0538. The examiner can normally be reached Monday - Friday, 9:00 AM - 5:00 PM ET.
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/Richard K. Durden/Examiner, Art Unit 3753
/KENNETH RINEHART/Supervisory Patent Examiner, Art Unit 3753
