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 .
Status of Claims
The claim set submitted on 28 JANUARY 2026 is acknowledged and considered. In the claim set, Claims 1 and 2 are ‘Currently amended’; Claims 4, 6-8, and 10-12 are ‘Previously Presented’; Claims 3, 5, 9 and 13-24 are ‘Cancelled’.
Current pending claim are Claims 1, 2, 4, 6-8 and 10-12 and are considered on the merits below.
Response to Amendment
Response to Arguments
Applicant's arguments filed 28 JANUARY 2026 have been fully considered but they are not persuasive.
Applicant’s arguments rely on language solely recited in preamble recitations in claim(s) “cassette for collecting airborne fungal pathogens”. When reading the preamble in the context of the entire claim, the recitation “for collecting airborne fungal pathogens” is not limiting because the body of the claim describes a complete invention and the language recited solely in the preamble does not provide any distinct definition of any of the claimed invention’s limitations. Thus, the preamble of the claim(s) is not considered a limitation and is of no significance to claim construction. See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305, 51 USPQ2d 1161, 1165 (Fed. Cir. 1999). See MPEP § 2111.02.
The language directed to ‘airborne fungal pathogens’ or even previously ‘fungal pathogens’ is language that is recited in the preamble and in the body of the device of Claim 1 the body of the claim does not provide any distinct definition of any of the claimed invention’s limitations in the body of the claim. Other than the mention of ‘fungal pathogens’ in the last line and this merely recited as its intended used of when the device (cassette) is to be used.
There is no structural feature within the claim that is specific for accomplishing this function of in the preamble of “for collecting airborne fungal pathogens”.
In response to Applicant’s assertion that the HIOKI teaches passages that directly contradict of a “single layer of woven polymer mesh having regular opening”, Claim 1 recites the transitional phrase of transitional term "comprising", which is synonymous with "including," "containing," or "characterized by," is inclusive or open-ended and does not exclude additional, unrecited elements or method steps. See, e.g., Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004). While HIOKO does disclose at least one single layer, the claim language of Claim 1 does not exclude additional, unrecited elements.
Regarding Applicant’s assertion on page 6, under section ‘Antimicrobial/Deodorant Coatings’, Applicant is reminted that the Examiner had not used HIOKO to teach or suggest this limitation but rather has suggest the limitation is obvious over RIVAT.
In response to applicant's arguments against the references individually, 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).
In response to Applicant’s assertion that RIVAT’s membrane is not a “single layer of woven polymer mesh having regular openings…” ; Applicant's arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references.
Regarding Applicant’s assertion directed towards ‘for passively capturing fungal pathogens’ this language is directed at how the device is intended to be used. “[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. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987).
Claim Objections
Claim 1 is objected to because of the following informalities: In line 3 of the instant claim, where it reads ‘electrostatically charged fiber fibers woven from monofilament’; should the word ‘fibers’ be deleted? The instance of ‘fibers’ appears to be a duplicate/repeat word. Appropriate correction is required.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 2, 4, 7, 8 and 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over HIOKI, JP 2001037863, cited on the IDS on 18 JULY 2022, and further in view of RIVAT, EP 17290112.
It should be noted that Applicant has not submitted the JP document with the IDS. The Examiner has obtained an English Translation of the JP document from espacent.
Applicant’s invention is directed to a device, a cassette.
Regarding Claim 1, the HIOKO reference discloses a cassette for collecting airborne fungal pathogens, abstract, air cleaning filter, [0001], filter , the cassette comprising:
a collection medium, comprising a single layer of woven polymer mesh having regular openings the mesh comprising electrostatically charged fiber fibers woven from monofilament, HIOKO [0042, 0049]; and
a support frame to support the collection medium in a taut, extended position, thereby exposing an unobstructed capture surface for passively capturing fungal pathogens, [0008, 0019].
The HIOKO reference discloses the claimed invention, but is silent in regards to wherein the support frame comprising a pair of discrete, mating members, each of the mating members comprising an annular ring having a circumferential groove, the grooves being opposed and configured to receive and clamp a circumferential margin of the collection medium therebetween to provide a continuous radial compression around the entire circumference of the mesh, wherein the mating members are configured to clamp the collection medium therebetween and to support the collection medium in a taut, extended position, thereby exposing an unobstructed capture surface for passively capturing fungal pathogens.
The RIVAT reference discloses a cassette for collecting microorganisms, page 1 line 5-22, Figure 7, filter assembly 1, page 13 line 13, page 10 line 20-25, the cassette comprising: a collection medium, Figure 7, membrane 11, page 9 line 13-32, page 13 line 13-22, comprising a single layer of woven polymer mesh having regular openings, Figure 7, membrane 11, page 13 line 28-page 14 line 16, and a support frame comprising a pair of discrete, mating members, each of the mating members comprising an annular ring having a circumferential groove, page 4 line 18-28, the grooves being opposed and configured to receive and clamp a circumferential margin of the collection medium therebetween to provide a continuous radial compression around the entire circumference of the mesh, wherein the mating members are configured to clamp the collection medium therebetween and to support the collection medium in a taut, extended position, with the mesh spanning an entire open area defined by the annular rings, thereby exposing an unobstructed capture surface for passively capturing microorganisms, Figure 1 and 7, page 13 line 28-page 14 line 16, page 16 line 3-20, support 10 has mating members (see Figure 7), skirt 14 and 35, which are annular rings with grooves, membrane is clamped between, page 15 line 24-page 16 line 2.
It would be obvious to one having ordinary skill in the art before the effective filing date to modify the HIOKO with the support frame and discrete, mating members as taught by RIVAT to avoid fold formation created by membrane dilation due to ‘swallowing effect’, page 7 line 15-19. Examiner’s Note: In regards to the language solely recited in preamble recitations in claim(s) “cassette for collecting airborne fungal pathogens”; when reading the preamble in the context of the entire claim, the recitation “for collecting airborne fungal pathogens” is not limiting because the body of the claim describes a complete invention and the language recited solely in the preamble does not provide any distinct definition of any of the claimed invention’s limitations. Thus, the preamble of the claim(s) is not considered a limitation and is of no significance to claim construction. See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305, 51 USPQ2d 1161, 1165 (Fed. Cir. 1999). See MPEP § 2111.02.
Additional Disclosures Included by the combination are: Claim 2: wherein the cassette of claim 1, wherein the woven polymer mesh is comprised of a polyamide, polyethylene, polypropylene, ethylene tetrafluoroethylene, polyether ether ketone, or combinations thereof, HIOKO [0042, 0049]. ; Claim 4: wherein the cassette of claim 2, wherein the polymer mesh has a mesh size of 1 mm to 200 mm and the mesh is free of any deodorant or antimicrobial coatings. The RIVAT reference discloses that the filter membrane is capable of capturing microorganisms of interest, page 1 line 15-22, and it is known in the art that membranes inherently have pore or a mesh size. Therefore, it would be obvious to one having ordinary skill in the art before the effective filing date to modify the claimed invention of HIOKO in view of RIVAT so that the membrane is capable of capturing microorganisms of interest so that large particles can be trapped or filtered out of the sample and the filtered sample can achieve the desired collection characteristics. Furthermore, it would have been obvious to one having ordinary skill in the art before the effective filing date to modify the claimed invention so that the polymer mesh has a mesh size of 1 mm to 200 mm and the mesh is free of any deodorant or antimicrobial coatings out of routine optimization, “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) since RIVAT reference discloses that the screens in the diffusion stage can comprise any material and can have any porosity or pore size to achieve the desired collection characteristics. ; Claim 7: wherein cassette of claim 1, 2, or 4, wherein the mating members comprise discrete, annular, interlocking rings, wherein the interlocking rings, RIVAT Figure 7, each having a circumferential groove, the grooves being opposed and configured to receive and clamp a circumferential margin of the collection medium therebetween to provide a continuous radial compression around the entire circumference of the mesh, Figure 1 and 7, page 10 line 15-25 , page 13 line 13-page 14 line 16, configured to secure the collection medium therebetween when the interlocking rings are coupled together, RIVAT Figure 7.; Claim 8: wherein the cassette 7, wherein the interlocking rings of the support frame comprises a pair of mating members configured to secure the collection medium there between when the pair of mating members are coupled together are coupled together so that the mesh spans an entire open area defined by the rings, thereby exposing an unobstructed capture surface for passively capturing fungal pathogens, Figure 1 and 7, page 10 line 15-25 , page 13 line 13-page 14 line 16, page 15 line 24 – page 16 line 2, membrane 11.; Claim 10: wherein the cassette of claim 8, wherein the collection medium spans across the entire open area defined by the pair of annular mating rings, and the and cassette is dimensioned for removable insertion into a wind-vane environmental sampler, RIVAT Figure 1 and 7, page 5 line 28-page 6 line 2, collection and position of lid can an allow to be used in a wind-vane environmental sampler. Examiner’s Note: the language directed to “cassette is dimensioned for removable insertion into a wind-vane environmental sampler” does not further define the structure itself, but to where it is intended to be used and where it is to be operated. “[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). 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). ; Claim 11: wherein the cassette of any one of claims 1, 2 or 4 for collecting plant pathogens, including fungal pathogens, RIVAT page 1 line 15-18. It should be noted that the claim language in the instant claim is directed towards the material or article worked upon by the cassette. 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); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935). Furthermore, the language of ‘for collecting plant pathogens’ is directed towards the cassette’s intended use. There is no patentable distinction made by the cassette’s intended use or result unless some structural difference is imposed by the use or result on the structure or material recited in the claim, or some manipulative difference is imposed by the use or result on the action recited in the claim. In re Otto, 312 F.2d 937, 938, 136 USPQ 458, 459 (CCPA 1963). In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA 1962). ; and Claim 12: wherein the cassette of claim 11, wherein the plant pathogens comprise spores, and the collection medium is configured to capture spores, fragments of spores, and/or hyphae, RIVAT page 1 line 15-18. It should be noted that the claim language in the instant claim is directed towards the material or article worked upon by the cassette. 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); see also In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935), In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA 1962). Furthermore, the language defining the plant pathogens comprise spores does not impart any structural difference is imposed by the use or result on the structure or material recited in the claim, or some manipulative difference is imposed by the use or result on the action recited in the claim.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over HIOKI, JP 2001037863, in view of RIVAT, EP 17290112, and further in view of INAMI, US Publication No. 2007/0281350 A1, submitted on the Information Disclosure Statement on 24 FEBRUARY 2023; US Patent Application Publications, Cite No. 1.
Regarding Claim 6, the combination of HIOKO in view of RIVAT suggests the claimed invention, but is silent in regards to wherein the support frame is formed of electrostatically charged styrene.
The INAMI reference discloses a cassette, Figure 1-3, trapping unit 14, [0022], abstract, for collecting bacteria, the cassette comprising: a collection medium, Figure 1-3, trapping material 141, [0023, 0045], comprising
It would have been obvious to one having ordinary skill in the art before the effective filing date to modify the support frame of the cassette such that it is electrostatically charged styrene as taught by INAMI, since it is known that styrene products are inexpensive and resistant to the processing temperature (60° C) in a subsequent enzymatic treatment of bacteria, [0027].
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 CHRISTINE T MUI whose telephone number is (571)270-3243. The examiner can normally be reached M-Th 5:30 -15:30 EST.
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CTM
/CHRISTINE T MUI/Primary Examiner, Art Unit 1797