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 .
Priority
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a) or the first paragraph of pre-AIA 35 U.S.C. 112, except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application, Application No.17/072,508, fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph for one or more claims of this application. Specifically, the prior filed application does not have support for a column comprising an outer porous tube, an inner porous tube, wherein the inner porous tube comprises an adsorbent bed comprising a plurality of zeolites, and an inner cavity and wherein the column is configured to channel the air radially through and across the outer porous tube, through and across the absorbent bed in the inner porous tube, into the inner cavity of the column, and through the output.
As stated above, claims 1-20 include certain subject matter that is not supported by U.S. Patent Appln. No. 17/072,508. The examiner notes that individual claims have their own priority dates, and priority does not belong to individual limitations within a claim. (see. e.g., Santarus, Inc. v. Par Pharmaceutical, Inc., 694 F.3d 1344 (Fed. Cir. 2012)). Therefore, each of the claims of the current application (including each of the limitations of each of the claims) has a priority date of 2/28/22 which is the filing date of the current application.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 2, 6, 8-9, and 12-20 are rejected under 35 U.S.C. 103 as being unpatentable over Wang et al (WO2019/202390), hereinafter Wang in view of Celik et al (Us 2012/0079938), hereinafter Celik. Neary (US 2006/0236867), hereinafter Neary.
Regarding claim 1, Wang teaches a portable oxygen concentrator (Fig. 3), comprising:
an input configured to receive air flow (Figs. 3-4: inlet;
a column comprising a housing (Figs. 3-5, columns 1, 2, outside wall of column is the housing),
an input configured to receive air flow into the column;
a spring disposed at one end of the column (Fig. 13, 14, wave spring, paragraph 94), a tube chassis positioned radially outside and supporting the spring (Figs. 13 and 14, Paragraph 95, a customized lid design that incorporates a hybrid tapered funnel that houses a spring, the lid has a tapered funnel integrated into the lid design to channel flow in and out of the columns),
and
an output configured to release oxygen to a user from the column(paragraph 8 “a first output configured to release oxygen to a user”, paragraph 15, “configured to provide oxygen to the first output”), wherein the column comprises an adsorbent bed comprising a plurality of zeolites (paragraph 8, paragraph 14), and
wherein the column is configured to channel the air flow radially through and across the adsorbent bed (paragraph 15, the first and second columns may be configured to allow are to flow radially to thereby channel the air through the first and second columns), and through the output, and wherein, when the air flow contacts the adsorbent bed, the oxygen is released. (The examiner has interpreted the oxygen being released as oxygen being allowed to flow through while nitrogen is absorbed. Wang teaches that oxygen is released, , paragraph 67)
Wang teaches a radial flow but does not teach the structure of an outer porous tube, an inner porous tube, and an inner cavity; a plurality of zeolites positioned between the outer porous tube and the inner porous tube, the column is configured to channel the received air flow along a path extending radially through the spring, the tube chassis, across the outer porous tube, through and across the adsorbent bed in the inner porous tube, into the inner cavity of the column, and through the output.
However, Celik teaches a radial bed vessel (Abstract, Figs. 1-3) with a column comprising a housing (Fig. 3: 3), an outer porous tube (Fig. 3: 5, paragraph 49, outer basket), an inner porous tube defining an inner cavity (Fig. 3, paragraph 49, inner basket 7, cavity 7), an input to receive airflow into the column (Fig. 1: input at bottom of column,9), an output to release oxygen from the column (Fig. 1: output at top of column 11), an absorbent bed of zeolites (paragraph 50, for air purification or separation a bed of zeolite is typically used) positioned between the outer porous tube and the inner porous tube (paragraph 49, the bed is contained between outer basket 5 and inner basket 6), wherein the column is configured to channel the received air flow along a path extending radially across the outer porous tube (See Fig. 2a, paragraph 51), through and across the adsorbent bed outside the inner porous tube (See Fig. 2a), into the inner cavity of the column, and through the output. (See Fig. 2a, paragraph 51, feed gas flow can be introduced from outer channel 8 and flows radially inward through the bed and the product gas exits the vessel by passing through the inner channel.)
Since Wang teaches a spring and tube chassis at the inlet, the column is configured to channel the received air flow along a path extending radially through the spring, the tube chassis across the outer porous tube, through and across the absorbent bed and through the output flows from the combination of Wang and Celik.
It would have been obvious to a person of ordinary skill in the art prior to the filing date of the invention to have included the outer porous tube, the inner porous tube and inner cavity of Celik in the device of Wang, since Celik discloses that the structure of a column for gas separation with a radial flow has an outer porous tube and an inner porous tube provides an even flow distribution throughout the separation process. (Paragraph 13)
Regarding claim 2, Wang in view of Celik teaches the portable oxygen concentrator of claim 1, and Celik further teaches wherein the inner porous tube and the outer porous tube comprise walls having a plurality of holes configured to allow air to flow therethrough while preventing the plurality of zeolites from flow therethrough. (paragraph 2, gas permeable baskets to contain a bed of material, Paragraph 49, the baskets are made of a porous material to allow process gas to flow through )
Regarding claim 6, Wang in view of Celik teaches the portable oxygen concentrator of claim 2, and Wang further teaches wherein the column may be produced by 3d printing.(paragraph 77, the columns may be 3D printed.)
Therefore, it would have been obvious to a person of ordinary skill in the art to have at least one of the inner porous tube and the outer porous tube is 3D printed since Wang teaches that the column may be produced by 3D printing. The examiner notes the claim is a product by process claim. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process."
Regarding claim 9, Wang in view of Celik teaches the portable oxygen concentrator of claim 1, and Wang in view of Celik further teaches comprising a plunger (figs 12 and 14, sintered gas filter disc, paragraph 74), wherein the plunger and the wave spring are configured to compress the plurality of zeolites. (paragraph 74 of Wang “the spring is compressed as the cap is screwed down forcing the sintered glass disc to push down on the zeolites below) within the inner porous tube. (the combination of Wang and Celik teaches the inner porous tube)
Regarding claim 12, Wang in view of Celik teaches the portable oxygen concentrator of claim 9, wherein the tube chassis is configured to create a cavity for the wave spring and the plunger to compress the plurality of zeolites within the inner porous tube. (Figs. 13 and 14 the wave spring and sintered disc are inside the tube chassis of the outer housing- interior of lid, paragraph 74 “the spring is compressed as the cap is screwed down forcing the sintered glass disc to push down on the zeolites. )
Regarding claim 13, Wang in view of Neary teaches a portable oxygen concentrator of claim 1, and Wang further teaches comprising a first lid at a top end of the column and a second lid at a bottom end of the column. (Fig. 13, manifold top, Fig. 15, manifold bottom)
Regarding claim 14, Wang in view of Celik teaches the portable oxygen concentrator of claim 1, and Wang teaches further comprising one or more O- rings configured to air-seal the column. (paragraph 71, Fig. 12, O-rings seal the structure)
Regarding claim 15, Wang in view of Celik teaches the portable oxygen concentrator of claim 1, and Wang further teaches comprising at least one sensor and a processor (paragraph 13), wherein: the at least one sensor is configured to detect at least one physiological parameter of the user (paragraph 13); and the processor is configured to adjust an amount of oxygen released to the user based on the detected at least one physiological parameter. (paragraph 13)
Regarding claim 16, Wang in view of Celik teaches the portable oxygen concentrator of claim 15, and Wang further teaches wherein the at least one sensor comprises at least one of a pulse oximeter, differential pressure sensor, ECG, EEG, gyroscope, or accelerometer. (paragraph 13)
Regarding claim 17, Wang in view of Celik teaches the portable oxygen concentrator of claim 15, and Wang further teaches wherein the processor is further configured to generate an alarm when the detected at least one physiological parameter is above or below a predetermined threshold. (paragraph 13)
Regarding claim 18, Wang in view of Celik teaches the portable oxygen concentrator of claim 15, and Wang further teaches comprising a user interface configured to receive user input, wherein the processor is configured to adjust the amount of oxygen released to the user based on the user input. (paragraph 16)
Regarding claim 19, Wang in view of Celik teaches the portable oxygen concentrator of claim 15, and Wang further teaches comprising a wireless receiver configured to receive data from a remote device, wherein the processor is configured to adjust the amount of oxygen released to the user based on the received data. (paragraph 16)
Regarding claim 20, Wang teaches a method of providing concentrated oxygen to a user from a portable oxygen concentrator (Fig. 3, paragraph 66) , the method comprising:
receiving air flow through an input of the portable oxygen concentrator (Figs. 3-4, inlet, see page 16, step 1)
wherein the oxygen concentrator comprises a column comprising a housing (Figs. 3-5, Columns 1, 2, outside wall of column is the housing), a spring disposed at one end of the column (Figs. 13, 14, paragraph 94, wave spring), a tube chassis positioned radially outside and supporting the spring (Figs. 13-14, paragraph 95, a customized lid design that incorporates a hybrid tapered funnel that houses a spring, the lid has a tapered funnel integrated into the lid designed to channel flow in and out of the columns);
directing the air flow radially through and across the spring and tube chassis and adsorbent bed(paragraph 15, the first and second columns may be configured to allow are to flow radially to thereby channel the air through the first and second columns), wherein the column comprises an adsorbent bed comprising a plurality of zeolites, (paragraph 8, paragraph 14) wherein the air flow is configured to flow radially through and across the adsorbent bed (paragraph 15, the first and second columns may be configured to allow are to flow radially to thereby channel the air through the first and second columns);
and releasing oxygen to a user through an output of the portable oxygen concentrator, wherein the oxygen is released when the air flow contacts the adsorbent bed. (paragraph 8 “a first output configured to release oxygen to a user”, paragraph 15, “configured to provide oxygen to the first output”)
Wang teaches a radial flow but does not teach the structure of an outer porous tube, an inner porous tube, and an inner cavity; a plurality of zeolites positioned between the outer porous tube and the inner porous tube, the column is configured to channel the received air flow along a path extending radially through the spring, the tube chassis, across the outer porous tube, through and across the adsorbent bed in the inner porous tube, into the inner cavity of the column, and through the output.
However, Celik teaches a radial bed vessel (Abstract, Figs. 1-3) with a column comprising a housing (Fig. 3: 3), an outer porous tube (Fig. 3: 5, paragraph 49, outer basket), an inner porous tube defining an inner cavity (Fig. 3, paragraph 49, inner basket 7, cavity 7), an input to receive airflow into the column (Fig. 1: input at bottom of column,9), an output to release oxygen from the column (Fig. 1: output at top of column 11), an absorbent bed of zeolites (paragraph 50, for air purification or separation a bed of zeolite is typically used) positioned between the outer porous tube and the inner porous tube (paragraph 49, the bed is contained between outer basket 5 and inner basket 6), wherein the column is configured to channel the received air flow along a path extending radially across the outer porous tube (See Fig. 2a, paragraph 51), through and across the adsorbent bed outside the inner porous tube (See Fig. 2a), into the inner cavity of the column, and through the output. (See Fig. 2a, paragraph 51, feed gas flow can be introduced from outer channel 8 and flows radially inward through the bed and the product gas exits the vessel by passing through the inner channel.)
Since Wang teaches a spring and tube chassis at the inlet, the column is configured to channel the received air flow along a path extending radially through the spring, the tube chassis across the outer porous tube, through and across the absorbent bed and through the output flows from the combination of Wang and Celik.
It would have been obvious to a person of ordinary skill in the art prior to the filing date of the invention to have included the outer porous tube, the inner porous tube and inner cavity of Celik in the device of Wang, since Celik discloses that the structure of a column for gas separation with a radial flow has an outer porous tube and an inner porous tube provides an even flow distribution throughout the separation process. (Paragraph 13)
Claims 3 and 5 are rejected under 35 U.S.C. 103 as being unpatentable over Wang in view of Celik, and further in view of Ross et al (US 2008/0028933), hereinafter Ross.
Regarding claim 3, Wang in view of Celik teaches the portable oxygen concentrator of claim 2, but does not teach wherein the plurality of holes on the walls of the inner porous tube are about 0.2 mm in diameter.
However, Ross teaches a radial sieve module having an inner and outer porous tube (See fig. 2) wherein the poor size of the porous tubes must have a maximum diameter smaller than a minimum diameter of each of the plurality of particles of the adsorbent material. (Paragraph 26) Thus, the diameter size is a results effective variable depending on the size of the adsorbent particles.
Therefore it would have been obvious to one having ordinary skill in the art prior to the filing date of the invention to modify Wang in view of Celik by making the diameter of the holes about 0.2mm as claimed as a matter of routine optimization since it has been held that “where 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.
Regarding claim 5, Wang in view of Celik teaches the portable oxygen concentrator of claim 2, but does not teach wherein the plurality of holes on the walls of the outer porous tube and the plurality of holes on the walls of the inner porous tube have same diameters.
Ross teaches a radial sieve module having an inner and outer porous tube (See fig. 2) wherein the pore size of the porous tubes must have a maximum diameter smaller than a minimum diameter of each of the plurality of particles of the adsorbent material. (Paragraph 26)
Therefore, it would have been obvious to have the holes in the wall of the inner and outer porous tubes be the same diameter to have the maximum diameter allowed to prevent the adsorbent articles from passing through the walls.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Wang in view of Celik, and further in view of Spiegelman et al (US 2002/0134247), hereinafter Spiegelman.
Regarding claim 4, Wang in view of Celik teaches the portable oxygen concentrator of claim 2, but is silent as to wherein the plurality of holes on the walls of the outer porous tube are bigger in diameter than the plurality of holes on the walls of the inner porous tube.
However, Spiegelman teaches a radial flow device (Fig. 1) wherein the plurality of holes on the walls of the outer porous tube are bigger in diameter than the plurality of holes on the walls of the inner porous tube. (paragraph 9, the openings in outer sleeve may be larger than the inner sleeve )
It would have been obvious to a person of ordinary skill in the art to have provided the inner tube with smaller diameter holes than the outer tube so that the inner tube will filter out any remaining particulates, paragraph 9)
Regarding claim 10, Wang in view of Celik teaches the portable oxygen concentrator of claim 1, but does not teach wherein a length of the inner porous tube is shorter than a length of the outer porous tube.
However, Spiegelman teaches a radial flow device (Fig. 1) wherein a length of the inner porous tube 16) is shorter than a length of the outer porous tube. (18)
It would have been obvious to a person of ordinary skill in the art prior to the filing date of the invention to have provided Wang in view of Celik with the inner tube shorter than the outer tube in order to allow the adsorbent to completely surround the inner tube thereby allowing more absorbent.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Wang in view of Celik, and further in view of Taylor et al (US 2018/0344963), hereinafter Taylor.
Regarding claim 7, Wang in view of Celik teaches the portable oxygen concentrator of claim 2, but does not teach wherein at least one of the inner porous tube and the outer porous tube comprise sintered polyethylene.
However, Taylor teaches a portable oxygen concentrator (abstract, Fig. 2) wherein a muffler comprises sintered polyethylene. (Paragraph 39)
The courts have held that the selection of a known material based on its suitability for its intended use supported a prima facie obviousness determination. See In re Leshin (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)
Therefore, it would have been obvious to a person of ordinary skill in the art to have modified the device of Wang so that at least one of the inner porous tube and the outer porous tube comprise sintered polyethylene since Taylor teaches that the material is suitable for use in an oxygen concentrator.
Claims 8 is rejected under 35 U.S.C. 103 as being unpatentable over Wang et al (WO2019/202390), hereinafter Wang in view of Celik et al (Us 2012/0079938), hereinafter Celik, and further in view of Neary (US 2006/0236867), hereinafter Neary.
Regarding claim 8, Wang in view of Celik teaches the portable oxygen concentrator of claim 2, but is silent as to the material.
However, Neary teaches a gas separating apparatus (Abstract) with an inner and outer porous tube (Fig. 1A) wherein at least one of the inner porous tube and the outer porous tube comprise a metal alloy mesh. (paragraph 47)
It would have been obvious to a person of ordinary skill in the art prior to the filing date of the invention to have made the inner and outer porous tubes out of a metal alloy mesh as taught by Neary since the courts have held that the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (MPEP 2144.07)
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Wang in view of Celik, and further in view of Kulish et al (US Pat. No. 5,827,358), hereinafter Kulish.
Regarding claim 11, Wang in view of Celik teaches the portable oxygen concentrator of claim 1, but does not teach further comprising a filter paper disposed proximate the output, wherein the filter paper is configured to allow air to flow therethrough while preventing the plurality of zeolites from flowing therethrough.
However, Kulish teaches a rapid cycle pressure swing adsorption oxygen concentration apparatus (abstract, Fig. 1, Fig. 2) which comprises a filter paper disposed proximate the output, wherein the filter paper is configured to allow air to flow therethrough while preventing the plurality of zeolites from flowing therethrough. (Col. 8: lines 40-45, filter paper 78 facilitates the flow of gas between the particles and the ports and prevent any fine particles or powder from escaping the sieves.)
Therefore, it would have been obvious to a person of ordinary skill in the art prior to the filing date of the invention to have modified Wang in view of Neary to include the filter paper as taught by Kulish in order to prevent any fine particles or powder from escaping the sieves)
Response to Arguments
Applicant’s arguments with respect to the claims have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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 MARGARET M LUARCA whose telephone number is (303)297-4312. The examiner can normally be reached 6:30 am - 3:30 pm MT.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brandy Lee can be reached at 571-270-7410. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MARGARET M LUARCA/Primary Examiner, Art Unit 3785
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