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 Objections
Claims 1 and 19 are objected to because of the following informalities:
In line 10 of each of claims 1 and 19, a comma (,) should be inserted after “10 cm” and before “said spacing”.
In line 26 of claim 1 and line 24 of claim 19, the word “flow” should be changed to “direction”.
Appropriate correction is required.
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.
Claims 1, 7, 8, 11, 13-16, and 18-21 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.
In line 10 of claim 1, the recitation of “said spacing” lacks antecedent basis. It is not clear whether this teaching refers to “distance between the walls of the vent enclosure and side walls of the container” taught in lines 9-10 of this claim or to some other “spacing” based on the use of this word rather than the term “distance” which was used in this passage. For this reason, the nature and position of the “spacing” required by the claim cannot be positively ascertained and claim 1 is rejected under 35 U.S.C. 112(b) as being indefinite.
In lines 23-24 of claim 1, the teachings of “the vertical airflow that passes inside the vent”, as well as of “the vent”, lack antecedent basis. Although the claim teaches “a vent enclosure” in line 3, and teaches a “substantially uniform vertical airflow velocity” in line 11 and teaches that the fan of lines 13-16 “forces air to pass through the vent enclosure toward the top of the vent enclosure”, the lack of previous recitations connecting the “vertical airflow velocity” and the air passing “toward the top of the vent enclosure” as well as the difference in language of “the vent” and “the vertical airflow” makes it unclear whether the recitations of lines 23-24 refer to these previously recited elements or to additional elements which were not properly recited. Further, even taking the new language as referring to the previously recited elements, it is unclear whether “the vertical airflow” simply refers to air passing “toward the top of the vent enclosure” or if it imposes a further limitation of the flow being “vertical” and to what extent this verticality would be required (e.g. whether a diagonal airflow with a vertical component would fall within the claim’s scope). For these reasons, the scope of claim 1 cannot be positively ascertained and the claim is rejected under 35 U.S.C. 112(b) as being indefinite.
The same recitations appear is claim 19 in line 10 regarding “said spacing” and lines 21-22 regarding “the vertical airflow that passes inside the vent” and this claim is rejected as being indefinite for the same reason set forth above with regard to claim 1.
Claims 7, 8, 11, 13-16, 18, and 20-21 are rejected as depending upon base claims which have been rejected under 35 U.S.C. 112(b).
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Claim Rejections - 35 USC § 103
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 1, 7, 8, and 11 are rejected under 35 U.S.C. 103 as being unpatentable over US Patent No. 5,207,762 to Newman in view of WIPO Publication No. 03/083390 A1 to Forbes et al. and WIPO Publication No. 2007/125294 A2 to Rusius.
Newman teaches limitations from claim 1 in fig. 1, shown above, a portable air blast system (the “quick cooling apparatus” of Newman) for freezing and thawing biological solution (see below) comprising:
a vent enclosure (the housing 4 as shown in fig. 1) with a rigid shell having walls (of the housing 4) configured to create a vent (from the top of the housing down through the housing and to the vent holes 10) in the portable air blast system (as taught in col. 3, lines 34-39);
a rigid container (the “item to be cooled 2”, illustrated as a can in fig. 2) having sidewalls within which the biological solution is contained (as taught in in col. 2, lines 46-51 this “item to be cooled” is specifically a bottle of wine. The term “wine” is understood to have its plain meaning as a beverage made from grapes fermented by yeast, both of which are “biological”);
a stand (including the support 24 and flexible element 6) comprising a particular structure (support 24) configured to receive and support the container solely from below the container (as shown in fig. 2, the support 24 is disposed entirely below the item 2 and thus supports it “solely from below” as claimed); and
wherein the position of the container is maintained in the center of the vent enclosure by the stand (specifically by the flexible elements 6, as shown in fig. 1 and taught in col. 3, lines 21-32, taught to hold the item 2 “in a spaced relationship with the inner surface of the housing”; it is noted that the claim requires this property of “the stand” rather than “the particular structure” which is taught to “support the container solely from below” so that the other portions of the stand, such as the flexible elements 6 of Newman which do not “support the container solely from below” may be the portions of the stand which maintain the container in the center of the vent enclosure) said spacing being configured to ensure substantially uniform vertical airflow velocity around all side walls of the container (as Newman teaches the claimed structure of the container being centered and spaced from the sidewalls, examiner finds that it will produce the recited effect of “substantially identical vertical airflow velocity”);
a fan (12 as shown in fig. 1 or propeller fan 40 as discussed below) oriented axially relative to the vent enclosure (as shown in fig. 2), wherein the fan forces air to pass through the vent enclosure toward the top of the enclosure (although Newman teaches in col. 3, lines 34-39 that air moves down from the top of the housing, Newman also teaches in col. 4, lines 21-26 that a propeller fan 40 may be used in the embodiment of fig. 1 “to move cold air up or down through the housing 4”) for uniform heat transfer to the side walls of the container in a first direction (from the bottom of the housing at the vents 10 to the top of the housing 4 based on the upward airflow taught in col. 4, lines 21-26; regarding the “uniform heat transfer”, as noted above, Newman teaches the structure which applicant teaches to produce this outcome and is thus found to be capable of the same effect),
a controller (switch 18) for controlling the vertical airflow velocity (by turning the fan 40 on and off as taught in col. 3, lines 42-44); and
a fan enclosure (the housing 32 below the mesh support 38);
wherein the vent enclosure is configured to decouple the vertical airflow that passes inside the vent in the first direction past the container from a flow of air that passes outside the vent enclosure in a second, opposite direction (It is noted that this recitation presents only a functional limitation and of intended use with regard to “a flow of air that passes outside the vent enclosure”. The claim presents no specific structure that accomplishes the “decoupling” or that produces or ensures any given direction of airflow outside of the invention. The instant specification discusses such decoupling only in ¶ 87, teaching that “The vent enclosure 30 may decouple the vertical airflow that passes inside the vent 302 of the downward flow that passes outside.” so that it no further structure is required to accomplish this “decoupling” other than the vent enclosure and the walls thereof which separate the interior and exterior of the enclosure. As such, examiner’s interpretation of this limitation as requiring only that the enclosure have walls separating the interior and exterior so that airflow within and without do not physically interact represents the broadest reasonable interpretation of the claim which is consistent with the specification. Newman teaches such walls for the enclosure (4) in fig. 1 where it is shown that they delimit the interior of the device from its exterior, thus teaching this limitation. Further and regarding the direction of airflow, MPEP 2114 Apparatus and Article Claims — Functional Language states “A claim containing a ‘recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus’ if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)”. The device of Newman is physically configured in the claimed manner as discussed above, so that, if placed in an external environment with the specified downward airflow, the housing of Newman will decouple the internal airflow from this external flow and Newman is therefore found to anticipate this limitation) wherein the second, opposite direction is a downward flow (as a downward direction would be opposite to the upward direction taught in col. 4, lines 21-26, and the flow itself is a matter of intended use as discussed above).
Newman does not teach the distance between the walls and the sides of the container to be between 1 cm and 10 cm or the vertical airflow velocity to range from 0.5 m/s to 20 m/s. One of ordinary skill in the art before the application was effectively filed would have recognized that these parameters both serve to determine the amount of air which is brought into heat exchange relation with container and with the solution stored therein and thus will determine how effectively the system is able to control and maintain the desired rate of heat exchange and would therefore recognize the rate of airflow and the dimension of the airspace around the container to be result effective variables. It has been held that determining an optimum or workable value for a result effective variable by routine experimentation is a matter of routine skill in the art. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 and MPEP 2144.05 II. Obviousness of Ranges.
Newman does not teach the stand supporting the container to comprise a solid base and pins connecting the stand to the vent enclosure. Forbes teaches in fig. 1, shown below, and in pg. 4, lines 4-13, an apparatus for cooling a bottle (26) within a cylindrical chamber (12) by providing a flow of cooled air in the space between the bottle and the walls of the housing, the system further comprising a stand (28) having a platform (30, providing a solid base for the bottle 26) and a plurality of legs (32, equivalent to the claimed pins) spacing the platform (30) from the bottom (16) of the chamber (12), this stand (28) “comprising a particular support (as discussed above) configured to receive and support the container (the bottle 26 as shown in fig. 1) solely from below the container (as shown in fig. 1)” as taught in claim 1.
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It would have been obvious to one of ordinary skill in the art at the time the application was effectively filed to modify Newman with the stand of Forbes to maintain proper spacing of the bottle from the bottom of the chamber, both to allow proper airflow for cooling the container and to provide spacing for the components (fan, motor, etc.) taught by Newman. Further the simple substitution of one known element for another to obtain predictable results (such as substituting the support of Forbes for that of Newman) is a matter of routine skill in the art and an exemplary rationale to support a finding of obviousness under 35 U.S.C. 103. See 2143 Examples of Basic Requirements of a Prima Facie Case of Obviousness and KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
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Neither Newman nor Forbes teaches the placement of the fan “at a top of the vent enclosure, above the container”. Rusius teaches in fig. 1, shown above, a device (1) for cooling a container (bottle 3) which comprises a shell (the cover 1) into which the container (3) fits and a fan (5) arranged above the container (3) at the top of the shell (1) to provide a flow of air through the shell and around the container. It would have been obvious to one of ordinary skill in the art before the application was effectively filed to modify Newman with the top-mounted location for the fan taught by Rusius because it has been held that the mere rearrangement of parts of a system is a matter of obvious design choice where it does not modify the operation of the system. In this case, Rusius demonstrates that the placement at the fan at the top rather than the bottom does not alter the operation of the system in causing air to flow over the container inside the housing. See MPEP 2144.04 Legal Precedent as Source of Supporting Rationale, subsection (VI)(C) Rearrangement of Parts and In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950) and In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975)
Regarding claim 7, and particularly regarding the requirement for the pins or legs thereof to maintain the spacing of the stand, refer to the above rejection of claim 1.
Neither Newman nor Forbes teaches the legs/pins of the stand to provide a spacing 2 cm to 5 cm between the body of the stand and the vent enclosure. One of ordinary skill in the art at the time the application was effectively filed would have recognized this distance to determine the volume of air which is allowed to flow under the stand and thus the supported item, and the ability of the system to accommodate further equipment (such as the fan of Newman) under the stand and that this distance is thus a result effective variable. It has been held that determining an optimum or workable value for a result effective variable is a matter of routine skill in the art. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 and MPEP 2144.05 II. Obviousness of Ranges.
Regarding claim 8, Newman does not teach the distance between the vent enclosure and the container sidewalls being between 1 and 3 cm. As discussed above regarding the teachings of claim 1, one of ordinary skill in the art before the application was effectively filed would have recognized that the dimensions and thus the volume of this space and the airflow passage it defines serve to determine the amount of air which is brought into heat exchange relation with container and its contents stored and thus the system is able to control and maintain the desired rate of heat exchange and would therefore recognize the rate of airflow and the dimension of the airspace around the container to be result effective variables. It has been held that determining an optimum or workable value for a result effective variable by routine experimentation is a matter of routine skill in the art. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 and MPEP 2144.05 II. Obviousness of Ranges.
Newman teaches limitations from claim 11 in fig. 2, shown above, the portable air blast system according to claim 1 wherein the fan (40) is positioned with the fan enclosure (32) (as shown in fig. 2).
Claims 13-16 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Newman and Forbes as discussed above with regard to claim 1 and US Publication No. 2003/0080126 A1 to Voute et al.
Newman as modified by Forbes teaches limitations from claim 13 in fig. 2, shown above, a method of [cooling] a biological solution inside a container (2) by using the portable air blast system according to claim 1 (as discussed in the above rejection of claim 1), comprising:
obtaining the container filled with biological solution (the bottle 2 containing wine which is a “biological solution” as discussed in the above rejection of claim 1);
placing the container (2) into the vent enclosure (in the sack30/housing 32) and on the stand (the mesh support 38) of the air blast system (the positioning depicted in fig. 2, shown above);
placing the air blast system with the container into a heating or cooling chamber (in a refrigerator as taught in col. 1, lines 51-58 and col. 3, lines 64-68); and
activating the air blast system by activating the fan (40) in the air blast system (using the switch 18 taught in in col. 4, lines 6-7 to activate the motor 14 to drive the fan 40).
Although Newman teaches in col. 2, lines 64-66 that the apparatus may be used in a freezer rather than a refrigerator to provide faster cooling of the beverage, Newman teaches that, in the context of the cooling of a beverage, such freezing is undesirable and thus does not teach using the system of his invention in a method for freezing a biological solution. Voute teaches in ¶¶ 9, 76, and 88 an equivalent method for the storage of a biopharmaceutical material in which a container (10) which includes the material is supported inside a frame (15) (equivalent to the supporting of the can 2 of Newman in the housing 4) which is in turn placed “in temperature control unit 20 (FIG. 5) or another controlled temperature environment, such as a walk in freezer” for freezing and storage of the material. It would have been obvious to one of ordinary skill in the art at the time the application was effectively filed to modify the system of Newman with use in the biopharmaceutical freezing operation taught by Voute to provide the benefits of fast cooling taught by Newman (e.g. in col. 1, lines 42-59 and col. 3, lines 11-15) to the context of biopharmaceutical storage in which freezing of stored material is desirable (e.g. ¶ 3-4 of Voute) and thus is not a detriment to be avoided as taught in col. 2, lines 64-66 of Newman. Further, “use of known technique to improve similar devices (methods, or products) in the same way” (here, the use of the known forced air technique of Newman to provide the same benefit of fast cooling to the similar devices and methods of Voute, in which a liquid is stored in a refrigerated space to be cooled similar to the beverage cooling of Newman) is held to be a matter of ordinary skill in the art and an exemplary rationale to support a finding of obviousness under 35 U.S.C. 103. See 2143 Examples of Basic Requirements of a Prima Facie Case of Obviousness and KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007). Further, MPEP 2143 and KSR state that “known work in one field of endeavor may prompt variations of it for use in either the same field or a different one based on design incentives or other market forces if the variations are predictable to one of ordinary skill in the art”; here, known work by Newman in the field of cold storage of beverages is found to prompt variation for use in the related but different field of biopharmaceutical cooling and freezing based on the common design incentive of fast cooling as the result of faster freezing for the stored fluids is a predictable result of applying the technology of Newman (as noted by Newman in col. 2, lines 64-68).
Regarding claim 14, Newman does not teach placing more than one of the cooling devices of his invention in a cooling chamber at a time. Voute teaches in ¶¶ 91 and 102 that multiple of the frames (15) and associated containers (10) of his invention may be stored in a single temperature control unit (20) of in a single large chiller or freezer. It would have been obvious to one of ordinary skill in the art at the time the application was effectively filed in applying the teachings of Newman for the use of fast cooling forced air devices to the biopharmaceutical cooling operation taught by Voute to include Voute’s teaching of processing and storing multiple such containers of biopharmaceutical material in order to allow for a higher volume of material to be frozen and stored, increasing the performance of the operation above the freezing of individual containers and allowing the operation to be performed at an increased scale.
Regarding the limitations of claim 15, refer to the above rejection of claim 1 with regard to the elements 6 which.
Regarding claim 16, Newman does not teach spacing the systems placed in the chamber at a distance from one another to ensure airflow velocity of air between the systems is between 0.05 m/s and 1 m/s. Voute teaches in ¶ 6 that spacing between containers in a freezer determines air movement between them and can affect the quality of freezing of those containers. In light of this teaching, one of ordinary skill in the art at the time the application was effectively filed would have recognized this spacing between containers and thus the airflow permitted by this spacing to be result effective variables. It has been held that determining an optimum or workable value for a result effective variable is a matter of routine skill in the art. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 and MPEP 2144.05 II. Obviousness of Ranges.
Regarding claim 18, Newman teaches the presence of a fan (12/40) in the housing (4) of his invention to drive a flow of air therethrough and does not teach or require any means of moving air outside of the housing but does not explicitly teach an air velocity in the vent enclosure being more than twice the downward velocity of air outside the chamber as taught in claim 18. One of ordinary skill in the art at the time the application was effectively filed would have recognized the speed of the airflow over the container to be cooled and thus the ratio between this speed and the external speed outside of the housing to be result effective variables. It has been held that determining an optimum or workable value for a result effective variable is a matter of routine skill in the art. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 and MPEP 2144.05 II. Obviousness of Ranges.
Claims 19-21 are rejected under 35 U.S.C. 103 as being unpatentable over Newman in view of Forbes et al.
Newman teaches limitations from claim 19 in fig. 1, shown above, a portable air blast system (the “quick cooling apparatus” of Newman) for freezing and thawing biological solution (see below) comprising:
a vent enclosure (the housing 4 as shown in fig. 1) with a rigid shell having walls (of the housing 4) configured to create a vent (from the top of the housing down through the housing and to the vent holes 10) in the portable air blast system (as taught in col. 3, lines 34-39);
a rigid container (the “item to be cooled 2”, illustrated as a can in fig. 2) having sidewalls within which the biological solution is contained (as taught in in col. 2, lines 46-51 this “item to be cooled” is specifically a bottle of wine. The term “wine” is understood to have its plain meaning as a beverage made from grapes fermented by yeast, both of which are “biological”);
a stand (including the support 24 and flexible element 6) comprising a particular structure (support 24) configured to receive and support the container solely from below the container (as shown in fig. 2, the support 24 is disposed entirely below the item 2 and thus supports it “solely from below” as claimed); and
wherein the position of the container is maintained in the center of the vent enclosure by the stand (specifically by the flexible elements 6, as shown in fig. 1 and taught in col. 3, lines 21-32, taught to hold the item 2 “in a spaced relationship with the inner surface of the housing”; it is noted that the claim requires this property of “the stand” rather than “the particular structure” which is taught to “support the container solely from below” so that the other portions of the stand, such as the flexible elements 6 of Newman which do not “support the container solely from below” may be the portions of the stand which maintain the container in the center of the vent enclosure) said spacing being configured to ensure substantially uniform vertical airflow velocity around all side walls of the container (as Newman teaches the claimed structure of the container being centered and spaced from the sidewalls, examiner finds that it will produce the recited effect of “substantially identical vertical airflow velocity”);
a fan (12 as shown in fig. 1 or propeller fan 40 as discussed below) oriented axially relative to the vent enclosure (as shown in fig. 2), wherein the fan forces air to pass through the vent enclosure toward the top of the enclosure (although Newman teaches in col. 3, lines 34-39 that air moves down from the top of the housing, Newman also teaches in col. 4, lines 21-26 that a propeller fan 40 may be used in the embodiment of fig. 1 “to move cold air up or down through the housing 4”) for uniform heat transfer to the side walls of the container in a first direction (from the bottom of the housing at the vents 10 to the top of the housing 4 based on the upward airflow taught in col. 4, lines 21-26; regarding the “uniform heat transfer”, as noted above, Newman teaches the structure which applicant teaches to produce this outcome and is thus found to be capable of the same effect),
a controller (switch 18) for controlling the vertical airflow velocity (by turning the fan 40 on and off as taught in col. 3, lines 42-44); and
a fan enclosure (the housing 32 below the mesh support 38);
wherein the vent enclosure is configured to decouple the vertical airflow that passes inside the vent in the first direction past the container from a flow of air that passes outside the vent enclosure in a second, opposite direction (It is noted that this recitation presents only a functional limitation and of intended use with regard to “a flow of air that passes outside the vent enclosure”. The claim presents no specific structure that accomplishes the “decoupling” or that produces or ensures any given direction of airflow outside of the invention. The instant specification discusses such decoupling only in ¶ 87, teaching that “The vent enclosure 30 may decouple the vertical airflow that passes inside the vent 302 of the downward flow that passes outside.” so that it no further structure is required to accomplish this “decoupling” other than the vent enclosure and the walls thereof which separate the interior and exterior of the enclosure. As such, examiner’s interpretation of this limitation as requiring only that the enclosure have walls separating the interior and exterior so that airflow within and without do not physically interact represents the broadest reasonable interpretation of the claim which is consistent with the specification. Newman teaches such walls for the enclosure (4) in fig. 1 where it is shown that they delimit the interior of the device from its exterior, thus teaching this limitation. Further and regarding the direction of airflow, MPEP 2114 Apparatus and Article Claims — Functional Language states “A claim containing a ‘recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus’ if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)”. The device of Newman is physically configured in the claimed manner as discussed above, so that, if placed in an external environment with the specified downward airflow, the housing of Newman will decouple the internal airflow from this external flow and Newman is therefore found to anticipate this limitation) wherein the second, opposite direction is a downward flow (as a downward direction would be opposite to the upward direction taught in col. 4, lines 21-26, and the flow itself is a matter of intended use as discussed above).
Newman does not teach the distance between the walls and the sides of the container to be between 1 cm and 10 cm or the vertical airflow velocity to range from 0.5 m/s to 20 m/s. One of ordinary skill in the art before the application was effectively filed would have recognized that these parameters both serve to determine the amount of air which is brought into heat exchange relation with container and with the solution stored therein and thus will determine how effectively the system is able to control and maintain the desired rate of heat exchange and would therefore recognize the rate of airflow and the dimension of the airspace around the container to be result effective variables. It has been held that determining an optimum or workable value for a result effective variable by routine experimentation is a matter of routine skill in the art. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 and MPEP 2144.05 II. Obviousness of Ranges.
Newman does not teach the stand supporting the container to comprise a solid base and pins connecting the stand to the vent enclosure. Forbes teaches in fig. 1, shown above, and in pg. 4, lines 4-13, an apparatus for cooling a bottle (26) within a cylindrical chamber (12) by providing a flow of cooled air in the space between the bottle and the walls of the housing, the system further comprising a stand (28) having a platform (30, providing a solid base for the bottle 26) and a plurality of legs (32, equivalent to the claimed pins) spacing the platform (30) from the bottom (16) of the chamber (12), this stand (28) “comprising a particular support (as discussed above) configured to receive and support the container (the bottle 26 as shown in fig. 1) solely from below the container (as shown in fig. 1)” as taught in claim 1. It would have been obvious to one of ordinary skill in the art at the time the application was effectively filed to modify Newman with the stand of Forbes to maintain proper spacing of the bottle from the bottom of the chamber, both to allow proper airflow for cooling the container and to provide spacing for the components (fan, motor, etc.) taught by Newman. Further the simple substitution of one known element for another to obtain predictable results (such as substituting the support of Forbes for that of Newman) is a matter of routine skill in the art and an exemplary rationale to support a finding of obviousness under 35 U.S.C. 103. See 2143 Examples of Basic Requirements of a Prima Facie Case of Obviousness and KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421, 82 USPQ2d 1385, 1395-97 (2007).
Regarding the limitations of claim 20, refer to the above rejection of claim 7.
Regarding the limitations of claim 21, refer to the above rejection of claim 8.
Response to Arguments
Applicant's arguments filed 9 October 2025 have been fully considered but they are not persuasive.
Applicant argues on pp. 6-7 that because of the use of phrase “configured to”, the functionality added to independent claim 1 from cancelled claim 17 with regard to the downward direction of external airflow “is not a case of routine optimization” and “results in an unexpected technical advantage” of more consistent freezing of biological materials so that claim 1 should not be rejected.
In response, examiner disagrees. The rejection of claim 17 in the Non-Final Rejection of 23 June 2025 and of claim 1 in this Office Action does not rely on “routine optimization” so that this argument is not relevant to the rejections at issue.
Regarding the “unexpected technical advantage”, Newman has been found to teach all structural features required of this limitation and to be capable of the intended use recited in the claim. Although the rejection is made under 35 U.S.C. 103, teaching references and modifications to Newman are presented only with regard to the structure of the stand, the location of the fan, and the precise distances and speeds employed in the system, and not to the walls of the enclosure of the separation of the inside and outside thereof. Because the argument is presented with respect to features for which only Newman taken alone and without modification is relied, secondary considerations such as allegations of unexpected results are not relevant to the finding of anticipation as the rejection does not consider the modification of Newman to present the claimed decoupling, but merely finds Newman to already possess the required structure for such intended use.
For this reason, these arguments are not found to be persuasive.
Applicant argues on pp. 7-8 that Newman does not teach the limitations of the fan located at the top of the enclosure of the enclosure being “configured to decouple” as taught in instant independent claim 1 and asserts that “the independent claim recites a structural arrangement that has a decoupling of air flows that results from the claimed configuration having a vent enclosure that is rigid and closed, that is, it lacks side openings, with a fan positioned axially at the top to draw air vertically from the base toward an air outlet above the fan”.
In response, examiner disagrees. Firstly, regarding the placement of the fan, it does not appear that the location of the fan has any substantial effect in the claimed decoupling as air may flow in any direction on either side of a wall regardless of the positions of fans which drive such airflow and applicant has not articulated any function or role for the fan and its position in this “decoupling” beyond this assertion.
Further, although applicant alleges that the claimed invention presents a vent enclosure “that is rigid and closed, that is, it lacks side openings” this does not appear to accurately describe the instant invention. Applicant’s figs. 4 and 5, shown below, provide a cross sectional view of the vent enclosure (30) of the present invention. As shown, in its assembled state, air enters the device through the sides, at the location of the pins (203) as no other inlet for air to enter the enclosure (30) is illustrated or discussed. For this reason, applicant’s assertion that a housing which “lacks side openings” is required by the teachings of independent claim 1 is not found to be persuasive. Further, examiner notes that the openings at the lower end of the enclosure 30, just below the lower end of the container 50, are structurally and functionally equivalent to the vents (10) shown in fig. 1 of Newman in an embodiment in which air flows upward through Newman’s housing (4) (per Newman’s col. 4, lines 21-26) so that the structure taught for the instant invention does not distinguish over that of Newman.
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Applicant argues further on pg. 7 that the distinction between the claimed invention and the system of Newman is further supported by the fact that the fan of the instant invention “forces a vertical upward and unidirectional internal flow [while] the outside air flow, in contrast only moves by natural convection”.
In response, examiner disagrees as applicant has not identified any structure by which this function is performed beyond the fan present in the housing and the walls that separate the internal and external air flows. As discussed above, the system of Newman already teaches such an internal fan and separating walls and applicant provides no reasoning for the assertion that Newman would not provide decoupled flow in the same manner which is taught for the instant device.
Applicant argues on pg. 8 that the system of Forbes “entirely lacks any structure that imparts a difference between internal air flow and external air flow” and thus does not render obvious the limitations added to claim 1 from cancelled claim 17.
In response, examiner notes that Forbes has not been relied upon in this manner and is presented only to teach the claimed structure of the stand. As discussed above, Newman teaches the structure required by the limitations at issue and applicant has not identified any structure distinguishing the instant invention over Newman in this regard.
Further, as “any structure that imparts a difference between internal air flow and external air flow” as argued by applicant appears to refer largely or entirely to walls which separate airflow in these two spaces, the walls of the chamber (12) of Forbes (shown above in fig. 3) separate the internal air from external air in the same manner as those of Newman (that is, but merely providing solid walls through which air does not pass along the length of the container).
Applicant argues on pp. 8-10 that none of the cited prior art teaches the system to be used “for freezing and thawing biological solution inside [the] container” and detailing the problem and challenges of the freezing and thawing of such solutions.
In response, examiner notes that this recitation is presented only as a statement of intended use in the preamble of claim 1. MPEP 2111.02 (II) Preamble Statements Reciting Purpose Or Intended Use states (with emphasis by examiner):
During examination, statements in the preamble reciting the purpose or intended use of the claimed invention must be evaluated to determine whether or not the recited purpose or intended use results in a structural difference (or, in the case of process claims, manipulative difference) between the claimed invention and the prior art. If so, the recitation serves to limit the claim. See, e.g., In re Otto, 312 F.2d 937, 938, 136 USPQ 458, 459 (CCPA 1963) (The claims were directed to a core member for hair curlers and a process of making a core member for hair curlers. The court held that the intended use of hair curling was of no significance to the structure and process of making.); In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA 1962) (statement of intended use in an apparatus claim did not distinguish over the prior art apparatus). To satisfy an intended use limitation which is limiting, a prior art structure which is capable of performing the intended use as recited in the preamble meets the claim. See, e.g., In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed. Cir. 1997) (anticipation rejection affirmed based on Board’s factual finding that the reference dispenser (a spout disclosed as useful for purposes such as dispensing oil from an oil can) would be capable of dispensing popcorn in the manner set forth in appellant’s claim 1 (a dispensing top for dispensing popcorn in a specified manner)) and cases cited therein. See also MPEP § 2112 - MPEP § 2112.02.
Because the preamble does not present any teachings that require structure and because device of Newman is capable of holding a container with such contents (and is indeed taught to hold the biologically-produced solution of wine) and is capable of freezing such product (e.g. by use inside a freezing temperature compartment), applicant’s argument that this preamble distinguishes the claimed invention from the prior art of Newman is not found to be persuasive.
Regarding the further arguments regarding the function of the system in freezing and thawing of biological solutions, examiner notes apparatus claims are interpreted and limited according to the physical structure recited in the claims themselves. As set forth above, the combination of Newman, Forbes, and Rusius teaches all structure which is recited for the invention of claim 1 and thus renders it obvious. Should applicant wish to incorporate the limitations discussed in the remarks regarding the effects of uniform airflow on freezing patterns, their incorporation into a method claim is recommended.
Further, with regard to the method claims 13-16 and 18, it is noted that because these are not apparatus claims, the intended use has been given additional weight and the prior art of Voute has been relied upon in combination with Newman. Regarding the rejections of these claims and the arguments directed thereto, see below.
If the intent of the discussion found on pp. 9-10 was to assert that the spacing and speeds found in claim 1 would not be arrived at through routine experimentation and optimization, examiner disagrees with this assertion. Applicant’s remarks asserts only that the values use are important to the functionality of the system but this only establishes that they are result effective variables for which one of ordinary skill in the art would be motivated to find optimized values. Should applicant wish to argue that such optimization would be outside the scope of ordinary skill in the art, it is recommended that evidence of unexpected results be presented as required and detailed in MPEP 716.02(a) and (b) as the mere assertion of the importance of these values is not sufficient to establish their nonobviousness.
Applicant argues on pg. 8-9 that Newman and Forbes fail to teach “any structural arrangement in which the container is supported solely from below” (emphasis from original) so that they are deficient in rejecting independent claim 1.
In response, examiner disagrees. Claim 1 does not require that the container is “supported solely from below”, but that “a stand comprising a particular support configured to receive and support the container solely from below the container”. This language requires that the particular structure of the stand “receive and support the container solely from below the container, not that the container is “supported solely from below” as this language would require that no elements (rather than simply the particular structure of the stand) provide any support which is not “from below”. In the system of Newman, the support 24 only contacts and thus only supports the container from below and in the system of Forbes, the stand (28) and the platform (30) thereof are shown to be arranged exclusively below the container. As such, both of these structures meet the limitations taught for the stand regarding the structure which supports the container solely from below and applicant’s argument is not found to be persuasive.
Applicant argues on pp. 10-11 that “Voute fails to teach or suggest the features that are missing from Newman and Forbes” with regard to amended claim 1.
In response, although examiner agrees with this characterization of the teachings of Voute, it is noted that Voute has not been relied upon in rejecting claim 1 in this or the previous Office Action so that this argument is not persuasive.
Applicant does not present arguments with regard to the teachings of Voute which are relied upon in rejecting claims 13-16 besides the assertion found on pg. 11 that Voute does not teach the limitations of claim 1 which are included in these claims by their dependency. As has been explained in detail above, the rejection of claim 1 is not found to be deficient so the dependence of claim 13 upon claim 1 does not present the alleged deficiencies and Voute is not relied upon to remedy them.
Applicant argues on pg. 11 that claim 19 is allowable for the subject matter of claim 1 included therein.
In response, examiner disagrees and directs attention to the remarks presented above in support of the rejection of this subject matter within claim 1 as these remarks are also applicable to claim 19.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL C COMINGS whose telephone number is (571)270-7385. The examiner can normally be reached Monday - Friday, 8:30 AM to 5 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jerry-Daryl Fletcher can be reached at (571)270-5054. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DANIEL C COMINGS/ Examiner, Art Unit 3763
/JERRY-DARYL FLETCHER/ Supervisory Patent Examiner, Art Unit 3763