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
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.
1. Claims 1, 5, 6, 21 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over International Patent No. WO2018189306 to Miekisch et al. in view of Chinese Patent Publication No. CN205275598U to Han et al. and U.S. Patent Application Publication No. 2023/0408838 to Daum et al.
Regarding claim 1, Miekisch et al. teaches a device for analyzing volatile organic substances of cells and bacterial cultures that, as shown in Figure 1 includes a housing (shell 1) having an upper surface (lid 5), a lower surface (bottom 2), and sidewalls 3 and an inlet and outlet (passage devices 9) comprising a tubular channel that allows gas to be introduced and discharged from opposite sides of the housing (shell 1).
Miekisch et al. teaches that the upper surface (lid 5) can be made of glass which is considered as being transparent.
The inlet and outlet of Miekisch et al. do not extend through and upper surface of the housing.
Han et al. teaches a circular vessel for culturing cells that includes an inlet 7 and outlet 10 that are perpendicular to and extending through the cover 2.
The body (“housing”) of Han et al. is cylindrical as evidenced by the cooperating threads 3 and 4 on the body and cover. As shown in Fig. 1 the upper surface and lower surface are parallel.
Han et al. teaches using glass as a material of construction so as to be able to sterilize the device.
It would have been obvious to one of ordinary skill in the art before applicant’s effective filing date to modify Miekisch et al. to be circular and have inlet and outlet ports that extend perpendicularly through the lid to provide accessibility to the interior of the housing as taught by Han et al.
Miekisch et al. in view of Ham et al. does not teach that the inlet is disposed 0.3 cm from the sidewall having a diameter of 0.4 cm; the outlet is disposed 0.55 cm from the sidewall having a diameter of 0.7 cm; or each of the inlet and the outlet having a height of 1.0 cm extending upward from the upper surface.
However, Daum et al. teaches providing inlet (120) and outlet (125) each disposed from the sidewall and having a diameter 0.1-0.5 mm (para 0039-0040; see e.g., Figs. 1-2), for the benefit of facilitating laminar flow (para 0030). The discovery of an optimum value of a known result effective variable, without producing any new or unexpected results, is within the ambit of a person of ordinary skill in the art. See In re Boesch, 205 USPQ 215 (CCPA 1980) (see MPEP § 2144.05, II.). Thus, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of the previous art combination to have the claimed dimensions, as taught by Daum et al., for the benefit of facilitating laminar flow.
Applicant’s specification further discloses various dimensions for achieving laminar flow (see e.g., Spec., para 0088-0090). Thus, the claimed specific heights, diameters, and arrangements are not expected are not expected to alter the operation of the device in a patentably distinct way.
The previous art combination does not teach a cylindrical volume comprises a diameter of 7.0 cm and a height of 1.5 cm.
However, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of the previous art combination to have the claimed dimensions, as taught by Daum et al., and conduct routine optimization experimentation to size the cylindrical volume to have a suitable diameter and height, including a diameter of 7.0 cm and a height of 1.5 cm. for the benefit of facilitating laminar flow.
Regarding passing fluid in a substantially laminar flow path, this recitation merely recites an expected result of using the claimed apparatus. The apparatus of the prior art combination above fully constitutes a mechanical structure that is fully capable of passing a laminar flow through the inlet, across the interior chamber, and out the outlet at a flow rate at various flow rates, including the claimed flow rate between 11.7 mL/min, and 30 mL/min. Thus, the apparatus of the prior art combination meets the limitation of claim 1.
I.) Regarding applicant’s claim 1, as noted above Miekisch et al. in view of Han et al. and Daum et al. teaches all the elements of claim 1.
Therefore, claim 1 is obvious over Miekisch et al. in view of Han et al. and Daum et al.
II.) Regarding applicant’s claim 5, as noted above Miekisch et al. in view of Han et al. and Daum et al. renders claim 1 obvious from which claim 5 depends.
Claim 5 recites one or more ports extending through the upper surface and fluidly communicating with the interior chamber.
Miekisch et al. in view of Han et al. and Daum et al. and Daum et al. includes inlet and outlet ports that extend through the upper surface and fluidly communicate with the interior of the housing.
Therefore, claim 5 is obvious over Miekisch et al. in view of Han et al. and Daum et al.
III.) Regarding applicant’s claim 6, as noted above Miekisch et al. in view of Han et al. and Daum et al. renders claim 1 obvious from which claim 6 depends.
Claim 6 recites that the one or more ports are disposed 1.0 cm from the circular sidewall and have a diameter of about 1.25 cm.
As noted above, it would have been obvious to one of ordinary skill in the art before applicant’s effective filing date to modify Miekisch et al. in view of Han et al. and Daum et al. to conduct routine engineering optimization experimentation and locate the inlet and outlet ports of Miekisch et al. in view of Han et al. and Daum et al. at any desired position including 1.0 cm from the sidewall and provide the inlets with a dimeter of about 1.25 cm to produce laminar flow at a desired flow rate.
Therefore, claim 6 is obvious over Miekisch et al. in view of Han et al. and Daum et al.
IV.) Regarding applicant’s claim 21, as noted above Miekisch et al. in view of Han et al. and Daum et al. renders claim 1 obvious from which claim 21 depends.
Claim 21 recites that the junctions of the circular sidewall with the upper surface and lower surface are rounded.
In Miekisch et al. in view of Han et al. and Daum et al. it would have been obvious to make the cover and main body from glass as taught by Han et al. and Daum et al. and fabricate the glass cover and body by molding in which case the junctions of the circular sidewall with the upper surface and lower surface are rounded.
V.) Regarding applicant’s claim 22, as noted above Miekisch et al. in view of Han et al. and Daum et al. renders claim 1 obvious from which claim 22 depends.
Claim 22 recites that the circular sidewall is curved between the upper surface and lower surface.
In Han et al. the circular sidewall is curved between the upper surface and lower surface.
Therefore, in Miekisch et al. in view of Han et al. and Daum et al. the circular sidewall is curved between the upper surface and lower surface.
2. Claims 7 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Miekisch et al. in view of Han et al. and Daum et al. as applied to claim 1 above, and further in view of U.S. Patent Application Publication No. 2019/0112567 to Scibek et al.
I.) Regarding applicant’s claim 7, as noted above, Miekisch et al. in view of Han et al. and Daum et al. renders claim 1 obvious from which claim 7 depends.
Claim 7 recites one or more inlet caps including one or more openings configured to permit fluid flow through the one or more inlets.
Miekisch et al. in view of Han et al. and Daum et al. does not teach inlet caps including one or more openings configured to permit fluid flow through the one or more inlets.
Scibek et al teaches sealing cap 28 that are provided with a “hydrophobic membrane insert 90 made from material that will allow gas transport into the vessel interior but prevent liquid from escaping the vessel 4 and other contaminants from entering the vessel 4,” [0044]
It would have been obvious to modify Miekisch et al. in view of Han et al. and Daum et al. to have vented caps on the inlet to allow for venting as taught by Scibek et al. for purposes of controlling access into and out of the housing.
Therefore, Miekisch et al. in view of Han et al. and Daum et al. and Scibek et al. renders claim 7 obvious,
II.) Regarding applicant’s claim 8, as noted above, Miekisch et al. in view of Han et al. and Daum et al. renders claim 1 obvious from which claim 8 depends.
Claim 8 recites one or more outlet caps including one or more openings configured to permit fluid flow through the one or more outlets.
Miekisch et al. in view of Han et al. and Daum et al. does not teach one or more outlet caps including one or more openings configured to permit fluid flow through the one or more outlets.
As noted above, Scibek et al. teaches sealing cap 28 that are provided with a “hydrophobic membrane insert 90 made from material that will allow gas transport into the vessel interior but prevent liquid from escaping the vessel 4 and other contaminants from entering the vessel 4,” [0044]
It would have been obvious to modify Miekisch et al. in view of Han et al. and Daum et al. to have vented caps on the outlet to allow for venting as taught by Scibek et al. for purposes of controlling access into and out of the housing.
Therefore, Miekisch et al. in view of Han et al. and Daum et al. and Scibek et al. renders claim 8 obvious,
3. Claims 9 -11 are rejected under 35 U.S.C. 103 as being unpatentable over Miekisch et al. in view of Han et al. and Daum et al. as applied to claim 1 above, and further in view of U.S. Patent Application Publication No. 2020/0392448 to Goodwin et al.
I.) Regarding applicant’s claim 9, as noted above Miekisch et al. in view of Han et al. and Daum et al. renders claim 1 obvious from which claim 9 depends.
Claim 9 recites that the housing is configured to withstand autoclaving.
Han et al. teaches the use of glass that can be sterilized.
Goodwin et al. teaches that the device is a borosilicate jar. [0060].
Borosilicate can withstand autoclaving as noted by applicant.
It would have been obvious to modify Miekisch et al. in view of Han et al. and Daum et al. to construct the housing of Miekisch et al. out of borosilicate which Goodwin et al. teaches as being suitable for analyzing volatile organic substances released from biological samples and which is capable of withstanding autoclaving.
Therefore, claim 9 is obvious over Miekisch et al. in view of Han et al. and Daum et al. and Goodwin et al.
II.) Regarding applicant’s claim 10, as noted above Miekisch et al. in view of Han et al. and Daum et al. renders claim 1 obvious from which claim 10 depends.
Claim 10 recites that the housing is heat treated to reduce background VOC release.
As noted above, it would have been obvious to modify Miekisch et al. in view of Han et al. and Daum et al. to construct the housing of Miekisch et al. out of borosilicate which Goodwin et al. teaches as being suitable for analyzing volatile organic substances released from biological samples and which is capable of withstanding autoclaving.
It would have further been obvious to heat treat the housing of Miekisch et al. in view of Han et al. and Daum et al. and Goodwin et al. at least before use to eliminate contaminants that might interfere with analysis of volatile organic substances released from the biological samples being studied.
Therefore, claim 10 is obvious over Miekisch et al, in view of Han et al. and Daum et al. and Goodwin et al.
III.) Regarding applicant’s claim 11, as noted above Miekisch et al. in view of Han et al. and Daum et al. renders claim 1 obvious from which claim 11 depends.
Claim 11 recites that the substantially transparent material comprises borosilicate glass.
As noted above, it would have been obvious to modify Miekisch et al. in view of Han et al. and Daum et al. to construct the housing of Miekisch et al. out of borosilicate which Goodwin et al. teaches as being suitable for analyzing volatile organic substances released from biological samples and which is capable of withstanding autoclaving.
Therefore, claim 11 is obvious over Miekisch et al. in view of Han et al and Goodwin et al.
3. Claim 24 is rejected under 35 U.S.C. 103 as being unpatentable over Miekisch et al. in view of Han et al. and Daum et al.
As noted above, Miekisch et al. teaches a device for analyzing volatile organic substances of cells and bacterial cultures that, as shown in Figure 1 includes a housing (shell 1) having an upper surface (lid 5), a lower surface (bottom 2), and sidewalls 3 and an inlet and outlet (passage devices 9) comprising a tubular channel that allows gas to be introduced and discharged from opposite sides of the housing (shell 1).
Miekisch et al. teaches that the upper surface (lid 5) can be made of glass which is considered as being transparent.
The inlet and outlet of Miekisch et al. do not extend through and upper surface of the housing.
Han et al. teaches a circular vessel for culturing cells that includes an inlet 7 and outlet 10 that are perpendicular to and extending through the cover 2.
The body (“housing”) of Han et al. is cylindrical as evidenced by the cooperating threads 3 and 4 on the body and cover. As shown in Fig. 1 the upper surface and lower surface are parallel.
Han et al. teaches using glass as a material of construction so as to be able to sterilize the device.
It would have been obvious to one of ordinary skill in the art before applicant’s effective filing date to modify Miekisch et al. to be circular and have inlet and outlet ports that extend perpendicularly through the lid to provide accessibility to the interior of the housing as taught by Han et al.
Miekisch et al. in view of Han et al. does not teach that the inlet disposed 0.3 cm from the sidewall having a diameter of 0.4 cm; the outlet is disposed 0.55 cm from the sidewall having a diameter of 0.7 cm; or each of the inlet and the outlet having a height of 1.0 cm extending upward from the upper surface.
However, Daum et al. teaches providing inlet (120) and outlet (125) each disposed from the sidewall and having a diameter 0.1-0.5 mm (para 0039-0040; see e.g., Figs. 1-2), for the benefit of facilitating laminar flow (para 0030). The discovery of an optimum value of a known result effective variable, without producing any new or unexpected results, is within the ambit of a person of ordinary skill in the art. See In re Boesch, 205 USPQ 215 (CCPA 1980) (see MPEP § 2144.05, II.). Thus, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of the previous art combination to have the claimed dimensions, as taught by Daum et al., for the benefit of facilitating laminar flow.
Applicant’s specification further discloses various dimensions for achieving laminar flow (see e.g., Spec., para 0088-0090). Thus, the claimed specific heights, diameters, and arrangements are not expected are not expected to alter the operation of the device in a patentably distinct way.
The previous art combination does not teach a cylindrical volume comprises a diameter of 7.0 cm and a height of 1.5 cm. However, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to modify the apparatus of the previous art combination to have the claimed dimensions, as taught by Daum et al., and conduct routine optimization experimentation to size the cylindrical volume to have a suitable diameter and height, including a diameter of 7.0 cm and a height of 1.5 cm. for the benefit of facilitating laminar flow.
Regarding passing fluid in a substantially laminar flow path, this recitation merely recites an expected result of using the claimed apparatus. The apparatus of the prior art combination above fully constitutes a mechanical structure that is fully capable of passing a laminar flow through the inlet, across the interior chamber, and out the outlet at a flow rate at various flow rates, including the claimed flow rate of between 11.7 mL/min and 30 mL/min. Thus the apparatus of the prior art combination meets the limitations of claim 24.
I.) Regarding applicant’s claim 24, as noted above Miekisch et al. in view of Han et al. and Daum et al. teaches all the elements of claim 24.
Therefore, claim 1 is obvious over Miekisch et al. in view of Han et al. and Daum et al.
Response to Arguments
Applicant’s arguments with respect to claims 1, 5-22 and 24 have been considered but are moot because the rejection relies upon a Daum et al. as a new prior art reference.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL S. GZYBOWSKI whose telephone number is (571)270-3487. The examiner can normally be reached M-F 8:30-5:00.
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/M.S.G./Examiner, Art Unit 1798
/CHARLES CAPOZZI/Supervisory Patent Examiner, Art Unit 1798