DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 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 1-4, 6-7 and 13 are finally rejected under 35 U.S.C. 103 as being unpatentable over Kowalsky (US 2013/0180903) in view of Ma et al. (US 2013/0175216).
Per claim 1, Kowalsky discloses a water runoff treatment device (abstract, A stormwater filtration system includes a chamber structure with a treatment cell open at the top to atmosphere and a surrounding wall.) comprising:
a primary receptacle (12) and a secondary receptacle separated by a barrier (16) having at least one treatment port (28, 30) to permit water to pass from the primary receptacle to the secondary receptacle ([0043] Again referring to FIG. 1, the inner wire screen 20 defines a vertically oriented tubular internal collection space 26 with an outlet opening 28 at the bottom. The outlet opening 28 aligns with an opening 30 in the platform 16.);
a runoff water inlet (connected to pipe 35) on one side of the primary receptacle, the runoff inlet connected to a drainage conduit (35) to receive drain flow into the primary receptacle ([0043] However, other variations of inlets are possible, including piped connections to the treatment cell sidewall (e.g., as represented by pipe 35) or combinations of inlet types. Moreover, water can also enter the treatment cell at the top through the tree ring type structure 38. The pipe 35 can deliver water from any source 37, such as standard stormwater collection flow, an upstream detention system (e.g. by gravity flow or by a pumped flow from the detention system), direct from a downspout, parking lot or other pumped source.);
at least one treatment tank (18) comprising a treatment medium (24) mounted over a corresponding treatment port in the primary receptacle (Fig. 1), where the treatment medium includes media having a sorption capacity ([0043] A filtration media is located in the media space 24. In one example, the filtration media may be a mixture of sand and pelletized peat (e.g., 75-95% sand and 25-5% pelletized peat), but any variation of media is possible (e.g., such as 100% sand, or a combination of sand, peat, shale; or other combinations of organic and/or inorganic media).), the at least one treatment tank comprising a treatment tank opening on top of the treatment tank ([0044] Notably, the top of the filter basket is open to expose the media and provide a planting area 36 for vegetative matter (e.g., small trees, shrubs and grasses). The planting area 36 is accessible at ground surface level through a central opening in tree ring type structure 38.), the at least one treatment tank connected to the treatment port to pass treated water into the secondary receptacle ([0045] In operation, water enters the curb inlet (or other inlet) and begins to fill an annular collection and settling space 40 between the basket and the inside wall of the treatment cell. The water travels laterally into the filter basket through wire screen wall 20 and then passes radially through the media space 24 and is filtered by the media and/or root system before passing into the internal collection space 26.); and
at least one drain port (42) formed in the secondary receptacle to pass treated water out of the secondary receptacle and into a flow of treated water ([0045] The treated water then flows downward into the infiltration space or cell 14 for infiltration into the surrounding earth. In this regard, the chamber structure may include numerous openings 42 of any suitable size and shape to allow radial outward infiltration and/or may sit atop of a bed of gravel or stone 43 to allow infiltration out of the bottom of the cell 14.). Kowalsky does not explicitly disclose that the media is engineered media with a high sorption capacity nor that the opening on top of the treatment tank is configured to receive water in the primary receptacle for treatment by the treatment medium.
It is submitted that since Kowalsky explicitly discloses that the top opening is open and exposed, as described above, it would have been readily obvious for the skilled artisan to configure the opening to receive water in the primary receptacle for treatment by the treatment medium in order to, for example, simultaneously provide water to the plants exposed in the opening to sustain the plants while facilitating the removal of contaminants from the water by directly receiving into the top opening water in the form of at least stormwater/rain directly from the atmosphere.
Ma et al., also directed to a water runoff treatment system (abstract, A stormwater filtration system suitable for treatment of stormwater runoff in a developed environment uses a treatment bay that includes a filtration bed with live plant matter and a plurality of functional layers. The filtration bed may include an adsorption layer or area that contains a phosphorus adsorptive granular media.), disclose providing engineered media having a high sorption capacity ([0044] The adsorption layer 34 may have any depth suitable for a particular application. In accordance with one embodiment, the adsorption layer typically has a depth of 3-6 inches and is composed of phosphorus adsorptive granular media such as PhosphoSorb.RTM., which is a lightweight media partially composed of perlite and activated alumina.) in order to, for example, remove contaminants from the runoff and discloses that conventional biomedia may allow contaminants such as phosphorus to leach back into effluent ([0006] However, recent studies show that conventional biomedia may exhibit unacceptable phosphorus (P) leaching due to the decomposition of natural organic components in the biomedia which elevate the effluent phosphorus concentration and result in inferior removal of phosphorus as well as the ability to sequester phosphorus contained in the filtered runoff.).
Accordingly, it would have been readily obvious for the skilled artisan to modify the device of Kent such that it includes loading the filter with engineered media having a high sorption capacity in order to, for example, remove contaminants from the runoff while potentially minimizing contaminants from leaching into effluent.
Per claim 2, Kowalsky discloses where the secondary receptacle is formed as a separate chamber in which at least one opening on a top surface of the separate chamber forms the at least one treatment port (Fig. 1). Kowalsky, as modified by Ma et al., does not disclose where the separate chamber is configured to sit in a bottom of the primary receptacle.
It would have been readily obvious for the skilled artisan to modify the device of Kowalsky, as modified by Ma et al., such that it includes where the separate chamber is configured to sit in a bottom of the primary receptacle in order to, for example, facilitate the lower receptacle being removable from the tank for replenishment of media and/or cleaning the lower receptacle.
Per claim 3, Kowalsky discloses where the primary receptacle and the secondary receptacle are divided by the barrier between the primary receptacle, the barrier having at least one opening (30) to form the at least one treatment port (Fig. 1) and discloses that the secondary receptacle and that the primary and secondary receptacles may be sealed ([0051] Where the treatment cell and infiltration cell are both used, they may be transported in sections and stacked and sealed on-site at the time of installation.). Kowalsky does not explicitly disclose where the barrier provides a sealed surface between the primary receptacle and the secondary receptacle.
It is submitted that it would have been well within the purview of the skilled artisan to provide the barrier in such a way as to seal a surface between the primary receptacle and the secondary receptacle in order to, for example, avoid water unintentionally entering the secondary receptacle in normal flow situations without being treated.
Per claim 4, Kowalsky discloses an overflow port formed in the primary receptacle at an overflow height to pass excess water from the primary receptacle to the flow of treated water ([0011] The treatment cell may include an overflow pipe for delivering excess flows that enter the collection and settling space into the infiltration cell without such excess flows traveling through the filter structure and before such excess flows cause water level in the collection and settling space to exceed a top of the media bed.; [0048] Within the annular space 40 an overflow tube 45 may be provided to deliver water directly from treatment cell 12 to infiltration cell 14, bypassing the filter basket, to assure that the water level does not reach the top of the filter basket.).
Per claim 6, Kowalsky discloses where the at least one treatment tank comprises a cylindrical container (20) where the treatment tank opening extends across at least a portion of a top of the cylindrical container opposite a bottom of the cylindrical container configured to pass treated water through the treatment port (Fig. 1; [0042] A filtration basket 18 is supported by the platform 16 an generally includes a cylindrical outer wire screen 20 forming an outer permeable wall and a spaced apart cylindrical inner wire screen 22 that together define an annular media space 24 of the basket.).
Per claim 7, Kowalsky discloses where the at least one treatment tank attaches at a bottom end to a corresponding at least one treatment port (Fig. 1). Kowalsky, as modified by Ma et al., do not disclose using a gasket housing to seal a fluid passageway between the treatment tank and the secondary receptacle.
It is submitted that it would have been well within the purview of the skilled artisan to use a gasket housing to seal a fluid passageway between the treatment tank and the secondary receptacle in order to, for example, prevent water unintentionally entering the secondary receptacle in normal flow situations without being treated. Further, applicant admits in the remarks filed on January 22, 2025 that push-in gasket seals, threaded mechanisms, and a twist and lock mechanisms are well known in the state of the art. Moreover, applicant has not provided for the record a proper showing (e.g., comparative test data) of any new and unexpected result achieved by utilizing a gasket. Accordingly, the recited subject matter is not considered to involve an inventive step.
Per claim 13, Kowalsky, as modified by Ma et al., discloses where the treatment media includes at least activated alumina (see, Ma et al., [0045] as described above) in order to, for example, remove contaminants from the runoff while potentially minimizing contaminants from leaching into effluent.
Claim 5 is finally rejected under 35 U.S.C. 103 as being unpatentable over Kowalsky (’903) in view of Ma et al. (‘216) as applied above, and further in view of Mitchell et al. (US 2008/0245710).
Per claim 5, Kowalsky, as modified by Ma et al., does not disclose where the primary receptacle and the secondary receptacle are made of a thermoplastic material.
Mitchell et al., also directed to a water runoff treatment device ([0017] The present application discloses an improved exfiltration apparatus for removing contaminants from surface runoff water, such as for example, stormwater or snowmelt that does not soak into the ground.), discloses where a receptacle (504, 508) is made of a thermoplastic material ([0054] The container 511 is made from a lightweight, thermoplastic material, such as for example polyethylene. A recycled thermoplastic may be used, but that is not required. The surface of the container 511 may also be coated or bonded with an amphoteric material to give the surface of the container a filter/sorptive function. For example, the polyethylene may be coated with a manganese oxide, such as manganese dioxide, for example, which has the capacity to attract heavy metals. Thus, the container 511 itself may act to remove pollutants from fluid that comes into contact with it.) in order to, for example, make the receptacle lightweight and capable of being coated with treatment materials to assist in filtering/sorbing contaminants.
Accordingly, it would have been readily obvious for the skilled artisan to modify the device of Kowalsky, as modified by Ma et al., such that it includes where the primary receptacle and the secondary receptacle are made of a thermoplastic material in order to, for example, make the receptacle lightweight and capable of being coated with treatment materials to assist in filtering/sorbing contaminants.
Claim 12 is finally rejected under 35 U.S.C. 103 as being unpatentable over Kowalsky (’903) in view of Ma et al. (‘216) as applied above, and further in view of Hannah et al. (US 2014/0374332).
Per claim 12, Kowalski discloses where the at least one treatment tank is fixedly attached over the corresponding at least one treatment port (Fig. 1). Kowalsky, as modified by Ma et al., does not disclose the at least one treatment tank configured to support removable bags containing treatment media.
Hannah et al., also directed to a water treatment device (abstract, A storm water drain filter including a collapsible frame supporting a filter bag. The filter may be installed in a stormwater drain pit to capture contaminants and particulate matter before it enters a stormwater drain.), disclose at least one treatment tank (Fig. 11) configured to support removable bags (27) containing treatment media (29; [0059] FIG. 11 shows an alternate embodiment in which the side walls 26 of bag 27 are impermeable and the base 28 of bag 27 is permeable. The base 28 of the bag 27 is filled with filtration media 29. The filtering media may be material filtered out by the filter system and/or introduced material selected from sand, Zeolite, rain garden mix, activated carbon, absorbents and adsorbents This construction ensures that introduced material passes through the filtering media 29 to remove contaminants. This method utilises stored contaminants in the filter and/or additional filter media (such as soil mix or other media mixes) to enhance treatment performance.) in order to, for example, remove contaminants from the water utilizing a mix of engineered and natural sorptive elements to facilitate enhanced treatment performance.
Accordingly, it would have been readily obvious for the skilled artisan to modify the device of Kowalsky, as modified by Ma et al., such that it includes the at least one treatment tank configured to support removable bags containing treatment media in order to, for example, remove contaminants from the water utilizing a mix of engineered and natural sorptive elements to facilitate enhanced treatment performance.
Claims 17 and 19-21 are finally rejected under 35 U.S.C. 103 as being unpatentable over Kowalsky (’903) in view of Ma et al. (‘216) taken together with Robertson et al. (US 5,330,651).
Per claim 17, Kowalsky discloses a water runoff treatment system (abstract, A stormwater filtration system includes a chamber structure with a treatment cell open at the top to atmosphere and a surrounding wall.) comprising:
a primary receptacle (12) and a secondary receptacle separated by a barrier (16) having at least one treatment port (28, 30) to permit water to pass from the primary receptacle to the secondary receptacle ([0043] Again referring to FIG. 1, the inner wire screen 20 defines a vertically oriented tubular internal collection space 26 with an outlet opening 28 at the bottom. The outlet opening 28 aligns with an opening 30 in the platform 16.);
a runoff water inlet (connected to pipe 35) on one side of the primary receptacle, the runoff inlet connected to a drainage conduit (35) to receive drain flow into the primary receptacle ([0043] However, other variations of inlets are possible, including piped connections to the treatment cell sidewall (e.g., as represented by pipe 35) or combinations of inlet types. Moreover, water can also enter the treatment cell at the top through the tree ring type structure 38. The pipe 35 can deliver water from any source 37, such as standard stormwater collection flow, an upstream detention system (e.g. by gravity flow or by a pumped flow from the detention system), direct from a downspout, parking lot or other pumped source.);
at least one treatment tank (18) comprising a treatment medium (24) mounted over a corresponding treatment port in the primary receptacle (Fig. 1), where the treatment medium includes media having a sorption capacity ([0043] A filtration media is located in the media space 24. In one example, the filtration media may be a mixture of sand and pelletized peat (e.g., 75-95% sand and 25-5% pelletized peat), but any variation of media is possible (e.g., such as 100% sand, or a combination of sand, peat, shale; or other combinations of organic and/or inorganic media).), the at least one treatment tank comprising a treatment tank opening on top of the treatment tank (38; [0044] Notably, the top of the filter basket is open to expose the media and provide a planting area 36 for vegetative matter (e.g., small trees, shrubs and grasses). The planting area 36 is accessible at ground surface level through a central opening in tree ring type structure 38.) configured to receive water in the primary receptacle for treatment by the treatment medium, the at least one treatment tank connected to the treatment port to pass treated water into the secondary receptacle ([0045] In operation, water enters the curb inlet (or other inlet) and begins to fill an annular collection and settling space 40 between the basket and the inside wall of the treatment cell. The water travels laterally into the filter basket through wire screen wall 20 and then passes radially through the media space 24 and is filtered by the media and/or root system before passing into the internal collection space 26.); and
at least one drain port (42) formed in the secondary receptacle to pass treated water out of the secondary receptacle and into a flow of treated water ([0045] The treated water then flows downward into the infiltration space or cell 14 for infiltration into the surrounding earth. In this regard, the chamber structure may include numerous openings 42 of any suitable size and shape to allow radial outward infiltration and/or may sit atop of a bed of gravel or stone 43 to allow infiltration out of the bottom of the cell 14.). Kowalsky does not explicitly disclose that the media is engineered media with a high sorption capacity, a network of drainage conduits extending in a layer of soil, nor that the opening on top of the treatment tank is configured to receive water in the primary receptacle for treatment by the treatment medium, the drainage conduits including openings on an upper side of the drainage conduits vessels to allow for water in the soil to enter the drainage conduits, where the water flows in the drainage conduits to at least one outlet drainage conduit.
It is submitted that since Kowalsky explicitly discloses that the top opening is open and exposed, as described above, it would have been readily obvious for the skilled artisan to configure the opening to receive water in the primary receptacle for treatment by the treatment medium in order to, for example, simultaneously provide water to the plants exposed in the opening to sustain the plants while facilitating the removal of contaminants from the water by directly receiving into the top opening water in the form of at least stormwater/rain directly from the atmosphere.
Ma et al., also directed to a water runoff treatment system (abstract, A stormwater filtration system suitable for treatment of stormwater runoff in a developed environment uses a treatment bay that includes a filtration bed with live plant matter and a plurality of functional layers. The filtration bed may include an adsorption layer or area that contains a phosphorus adsorptive granular media.), disclose providing engineered media having a high sorption capacity ([0044] The adsorption layer 34 may have any depth suitable for a particular application. In accordance with one embodiment, the adsorption layer typically has a depth of 3-6 inches and is composed of phosphorus adsorptive granular media such as PhosphoSorb.RTM., which is a lightweight media partially composed of perlite and activated alumina.) in order to, for example, remove a contaminants from the runoff and discloses that conventional media biomedia may allow contaminants such as phosphorus to leach back into effluent ([0006] However, recent studies show that conventional biomedia may exhibit unacceptable phosphorus (P) leaching due to the decomposition of natural organic components in the biomedia which elevate the effluent phosphorus concentration and result in inferior removal of phosphorus as well as the ability to sequester phosphorus contained in the filtered runoff.).
Accordingly, it would have been readily obvious for the skilled artisan to modify the device of Kent such that it includes loading the filter with engineered media having a high sorption capacity in order to, for example, remove contaminants from the runoff while potentially minimizing contaminants from leaching into effluent.
Robertson et al., also directed to a water runoff system (col. 1, lines 5-6, This invention relates to the treatment of run-off water from agricultural fields.), disclose a network of drainage conduits (3) extending in a layer of soil (Figs. 1-2, col. 1, lines 60-62, The use of land-drains, consisting of pipes of porous material inserted a few inches or more below the ground surface, is also common.), the drainage conduits including openings on the drainage conduits vessels to allow for water in the soil to enter the drainage conduits, where the water flows in the drainage conduits to at least one outlet drainage conduit (col. 3, lines 63-68 to col. 4, lines 1-2, The field 2 contains land-drains 3. The land-drains 3 may be formed from plastic pipes having many slits or openings, or from porous ceramic material, etc. The land-drains lead to a drainage ditch 4, which in turn leads to a collection sump 5. The sump 5 is located at a low point with respect to the field, so that water collected in the land-drains 3 flows naturally towards the sump 5.) and at least one water runoff treatment device fluidly coupled to a corresponding at least one of the outlet drainage conduits (Fig. 1) in order to, for example, ultimately deliver runoff water to a tank (6, 12) containing media (14; col. 4, lines 3-27, In the sump 5 is a tank 6, which is made of substantially leakproof material, such as concrete, steel, or PVC. The tank may be provided with an openable lid (not shown). Water collecting in the sump 5 enters the tank 6 via an inlet pipe 8. The tank is provided with an outlet pipe or overflow 9. The overflow 9 is positioned high up on the side of the tank 8, so that the tank 6 is caused to remain full of water, up to the level of the level of the overflow 9, and the water level 10 in the tank is caused to remain constant. Inside the tank is a basket 12. The basket is made of a geopolymer or geotextile material, which allows water to pass therethrough, and which comprises a highly non-degradable plastic material. Contained inside the basket 12 is a body of material 14 which includes organic carbon. The organic carbon in the material may be, for example, compost, or silage, or sawdust, or seaweed, etc. The consistency of the material 14 contained within the basket 12 is such that the water entering through the inlet pipe 8 may percolate through the material. If the material is liable to consolidate, i.e. become less permeable, it may be advisable to add gravel or other inert filler, to maintain the correct consistency.) in order to, for example, transport water runoff to a treatment device (abstract, Nitrate-polluted run-off water from a field is conveyed via land drains to a reservoir. From the reservoir, the run-off water enters a tank which contains wood or other organic carbon material.).
Accordingly, it would have been readily obvious to modify the system of Kowalsky, as modified by Ma et al., such that it includes disclose a network of drainage conduits extending in a layer of soil, the drainage conduits including openings on the drainage conduits vessels to allow for water in the soil to enter the drainage conduits, where the water flows in the drainage conduits to at least one outlet drainage conduit and at least one water runoff treatment device fluidly coupled to a corresponding at least one of the outlet drainage conduits in order to, for example, ultimately deliver water runoff to the treatment device and treat the water runoff.
Regarding the openings being on an upper side of the conduits, it is submitted that it would have been readily obvious for the skilled artisan to place the openings on an upper side of the conduits in order to, for example, make use of gravity and allow the water above the conduits to seep/trickle into the conduits via the openings.
Per claim 19, Kowalsky discloses where the at least one treatment tank comprises a cylindrical container (20) where the treatment tank opening extends across at least a portion of a top of the cylindrical container opposite a bottom of the cylindrical container configured to pass treated water through the treatment port (Fig. 1; [0042] A filtration basket 18 is supported by the platform 16 an generally includes a cylindrical outer wire screen 20 forming an outer permeable wall and a spaced apart cylindrical inner wire screen 22 that together define an annular media space 24 of the basket.).
Per claim 20, Kowalsky discloses where the at least one treatment tank of the at least one water treatment device attaches at a bottom end to a corresponding at least one treatment port (Fig. 1). Kowalsky, as modified by Ma et al., does not disclose using a gasket housing to seal a fluid passageway between the treatment tank and the secondary receptacle.
It is submitted that it would have been well within the purview of the skilled artisan to provide the use a gasket housing to seal a fluid passageway between the treatment tank and the secondary receptacle in order to, for example, prevent water unintentionally entering the secondary receptacle in normal flow situations without being treated. Further, applicant admits in the remarks filed on January 22, 2025 that push-in gasket seals, threaded mechanisms, and a twist and lock mechanisms are well known in the state of the art. Accordingly, the recited subject matter is not considered to involve an inventive step. Moreover, applicant has not provided for the record a proper showing (e.g., comparative test data) of any new and unexpected result achieved by utilizing a gasket.
Per claim 21, Kowalsky, as modified by Ma et al., discloses where the treatment media includes at least activated alumina (see, Ma et al., [0045] as described above) in order to, for example, remove contaminants from the runoff while potentially minimizing contaminants from leaching into effluent.
Claim 18 is finally rejected under 35 U.S.C. 103 as being unpatentable over Kowalsky (’903) in view of Ma et al. (‘216) as applied above, and further in view of Mitchell et al. (US 2008/0245710).
Per claim 18, Kowalsky, as modified by Ma et al., does not disclose where the primary receptacle and the secondary receptacle are made of a thermoplastic material.
Mitchell et al., also directed to a water runoff treatment system ([0017] The present application discloses an improved exfiltration apparatus for removing contaminants from surface runoff water, such as for example, stormwater or snowmelt that does not soak into the ground.), discloses where a receptacle (504, 508) is made of a thermoplastic material ([0054] The container 511 is made from a lightweight, thermoplastic material, such as for example polyethylene. A recycled thermoplastic may be used, but that is not required. The surface of the container 511 may also be coated or bonded with an amphoteric material to give the surface of the container a filter/sorptive function. For example, the polyethylene may be coated with a manganese oxide, such as manganese dioxide, for example, which has the capacity to attract heavy metals. Thus, the container 511 itself may act to remove pollutants from fluid that comes into contact with it.) in order to, for example, make the receptacle lightweight and capable of being coated with treatment materials to assist in filtering/sorbing contaminants.
Accordingly, it would have been readily obvious for the skilled artisan to modify the system of Kowalsky, as modified by Ma et al., such that it includes where the primary receptacle and the secondary receptacle are made of a thermoplastic material in order to, for example, make the receptacle lightweight and capable of being coated with treatment materials to assist in filtering/sorbing contaminants.
Response to Affidavit
The affidavit filed on November 7, 2025 is insufficient to overcome the rejection of the claims based upon Kowalsky in view of Ma et al., as set forth in the last Office action because:
It refers only to the system/device described in the above referenced application and not to the individual claims of the application. Thus, there is no showing that the objective evidence of non-obviousness is commensurate in scope with the claims. See MPEP § 716.
For example, the affidavit repeatedly refers to the suitability of the system/device for treating agricultural runoff and removing dissolved phosphorus from the runoff. The examiner notes that the independent and dependent claims do not recite that that system/device is configured to treat agricultural runoff and remove dissolved phosphorus from the runoff. Accordingly, the affidavit, when considered in its entirety, is not commensurate in scope with the recited claims.
It states that the claimed subject matter solved a problem that was long standing 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.
For example, by applicant’s own admission, none of the prior art referenced in items 17-23 of the affidavit are directed to agricultural runoff and dissolved phosphorus removal from the runoff. While Penn and Bowen (2018) describe agricultural runoff and phosphorus removal, there is no evidence that Penn and Bowen knew of the teachings of Kowalsky and Ma et al. and certainly no evidence that if Penn and Bowen knew of the teachings of Kowalsky and Ma they would still be unable to solve the problem.
It includes statements which amount to an affirmation that the affiant has never seen the claimed subject matter before, the invention has been praised and the invention has been copied by others. This is not relevant to the issue of non-obviousness of the claimed subject matter and provides no objective evidence thereof. See MPEP § 716.
Regarding skepticism by experts and teaching away by others, the examiner notes that applicant did not provide any studies or evidence of experts skeptical or teaching away from the invention as claimed.
In view of the foregoing, when all of the evidence is considered, the totality of the rebuttal evidence of non-obviousness fails to outweigh the evidence of obviousness.
Response to Arguments
Applicant's arguments filed November 7, 2025 have been fully considered but they are not persuasive.
In response to applicant's repeated arguments that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., treating agricultural runoff and phosphorus removal) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Accordingly, while applicant’s repeated arguments related to treatment of agricultural runoff and/or removal of phosphorus have been reviewed and carefully considered, the assertions are not persuasive of patentability.
Applicant asserts that, unlike Kowalsky, the instant invention requires no valve to control flow through the media. The examiner notes that Kowalsky explicitly discloses that in the embodiment shown in Fig. 1, no moving valves are required ([0048] The embodiment of FIG. 1 lacks any moving valve and may use simple static flow control (e.g., a restricted opening size or fixed opening valve) to define maximum flow rate through the filter basket to a level below the initial infiltration capacity of the media bed.). Clearly, a restricted opening and/or simple static flow control is not inherently a valve. Further, omitting a valve in a system/device is not considered by the examiner to involve an inventive or non-obvious step.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., a treatment system addressing “large” areas of land and mitigating the flow of phosphorus containing runoff water into lakes) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
In response to applicant's argument that the instant invention addresses elements a, b, d and d as recited on page 9 of the Remarks, it is noted that the features upon which applicant relies (i.e., an effective amount of phosphorus sorption material (PSM), containment of the PSM with a hydrologically active area, passive drainage relying on gravity at adequate flow rates for a site and the capability to replace the PSM as needed) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Accordingly, the argument is not persuasive of patentability.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the device and system are scalable by using multiple treatment tanks with a primary receptacle and multiple devices for a large field) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Accordingly, the argument is not persuasive of patentability.
Applicant asserts that embodiments of the claimed devices and systems have been used and have earned praise by others as shown in the videos discussed by Mr. Kieser at paragraphs 28 to 30 and further asserts that the claimed devices have operated well providing solutions that overcome the skepticism and teaching away by others. As pointed out by the examiner above, earning praise is not necessarily indicative of non-obviousness. Regarding a showing of skepticism by experts, applicant admits in the affidavit that the invention has not been documented/reviewed in peer-reviewed publications and points to articles or studies involving hydraulic clogging when treating agricultural runoff and or overcoming chemical clogging when using phosphorus sorption media. However, as pointed out above, applicant does not claim that the device/system is configured to treat agricultural runoff and is configured with phosphorus sorption media. Thus, applicant is arguing limitations not claimed. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Regarding a teaching away by experts, applicant admits that there have been no studies specifically highlighting the limitations of disadvantages of the instant device/system. Regarding doubts of whether phosphorus filter media would remain effect over time, Applicant does not recite in the claims that the device/system is configured with phosphorus filter media. Thus, applicant is arguing limitations not claimed. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Accordingly, the argument is not persuasive of patentability.
Applicant generally argues that none of the asserted references address solutions for mitigating dissolved phosphorus runoff from non-point sources such as large agricultural landscapes, nor do they suggest the solutions provided by the claimed subject matter and further argues the evidence provided by Mr. Kieser strongly demonstrates that independent claims 1 and 17 are not obvious over the references asserted by the examiner. The examiner generally points out that applicant is arguing features not claimed. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Accordingly, the argument is not persuasive of patentability.
Applicant argues that the device covered by the pending claims is on its way to achieving commercial success and that sales will likely be higher given the pervasiveness of the problem with dissolved phosphorus. The examiner notes that a device being on its way to commercial success is not indicative of non-obviousness and further notes that applicant does not recite in the claims that the device/system is configured for removing phosphorus, much less preventing dissolved phosphorus from appearing in lakes.
Applicant generally asserts that independent and dependent claims are allowable over the prior art. The examiner generally disagrees for the reasons provided above.
For the reasons provided above, a holding of obviousness is required.
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.
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/FRED PRINCE/
Primary Examiner
Art Unit 1779