DETAILED ACTION
Prosecution Reopened
In view of the appeal brief filed on 01 April 2026, PROSECUTION IS HEREBY REOPENED. A new ground of rejection is set forth below.
To avoid abandonment of the application, appellant must exercise one of the following two options:
(1) file a reply under 37 CFR 1.111 (if this Office action is non-final) or a reply under 37 CFR 1.113 (if this Office action is final); or,
(2) initiate a new appeal by filing a notice of appeal under 37 CFR 41.31 followed by an appeal brief under 37 CFR 41.37. The previously paid notice of appeal fee and appeal brief fee can be applied to the new appeal. If, however, the appeal fees set forth in 37 CFR 41.20 have been increased since they were previously paid, then appellant must pay the difference between the increased fees and the amount previously paid.
A Supervisory Patent Examiner (SPE) has approved of reopening prosecution by signing below:
/JOSEPH M ROCCA/ Supervisory Patent Examiner, Art Unit 3671
Allowable Subject Matter
The indicated allowability of CLAIMS 18-20 are withdrawn in view of the newly discovered reference(s) to McAnaney et al. (US 5,534,141 A). Rejections based on the newly cited reference(s) follow.
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 .
Drawings
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the waffle drain of CLAIM 11 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
CLAIM 15 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
CLAIM 15 recites the limitation "the first and second conduits" in lines 3-4. There is insufficient antecedent basis for this limitation in the claim.
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.
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.
CLAIMS 1-3 AND 5-10 are rejected under 35 U.S.C. 103 as being unpatentable over Cunningham (US 4,462,184 A) in view of Presby (US 2015/0329396 A1).
CLAIM 1 Cunningham teaches an aerification system (Fig. 11) comprising:
a porous first layer (305) positioned below a ground surface and comprising gravel (abstract, cl. 12); and
a water permeable second layer (307) on top of the porous first layer delineating a first sub-system (4, Fig. 1).
Cunningham fails to teach the porous first layer comprising a mixture of cement and particulate material.1
Presby ‘396 (“Presby”) discloses an aerification system (1007, Figs. 31A-31C) for a first excavation (the space lined by 320) below a ground surface, the first excavation comprising a porous first layer (322) of a mixture of cement and particulate material (“crushed concrete” or the combination of “crushed cement” and another disclosed aggregate),2 and an overlaying water permeable second layer (“treatment sand”). It would have been an obvious modification for one having ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the porous first layer (Cunningham, 305) of the prior art aerification system such that it would have comprised a mixture of crushed cement and a particulate material (Presby, [0124]), as suggested by Presby. The motivation for making the modification would have been to optimize desired properties of the porous first layer (Presby, [0124]),3 and to have done so with a reasonable expectation of success.
CLAIM 2 In the combination of Cunningham and Presby, the particulate material of the porous first layer comprises a particulate stone material, crushed stone, gravel, or any combination thereof (Presby, [0124]).
CLAIM 3 The system taught by the combination of Cunningham and Presby further comprises a second sub-system (Cunningham, 6, Fig. 1); a first conduit (Cunningham, 10) having a first end and a second end, the first end of the first conduit coupled to the first sub-system (Cunningham, 4); a second conduit (Cunningham, 12) having a first end and a second end, the first end of the second conduit coupled to the second sub-system (Cunningham, 6); and a pumping system (Cunningham, col. 3, ll. 20-23) coupled (fluidly) to the first and second conduits (Cunningham, 10, 12).
Cunningham further discloses the use of basins (Cunningham, Figs. 6, 7) but fails to teach expressly the pumping system positioned in one. However, Presby shows pumping systems (350, 360; Fig. 8A) positioned in a basin (100). It would have been obvious for one having ordinary skill in the art, before the effective filing date of the claimed invention, to have positioned the pumping system (Cunningham, col. 3, ll. 20-23) in a basin (Cunningham, Figs. 6, 7), as suggested by Presby. The motivation for making the modification would have been to provide a clear point of access to the pumping system for observation and maintenance, and to have done so with a reasonable expectation of success.
CLAIM 5 The limitation recited therein pertains to the manner of operating the claimed apparatus. It has been held that 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 satisfying the claimed structural limitations. Ex parte Masham, 2 USPQ2d 1647 (1987). The combination of Cunningham and Presby satisfies the claimed structural limitations.
CLAIM 6 The combination of Cunningham and Presby further comprises one or more controllable valves (Cunningham, 24, 26, 28) configured to control a flow of the fluid between the pumping system (Cunningham, col. 3, ll. 20-23) and the first and second sub-systems (Cunningham, 4, 6).
CLAIM 7 In the combination of Cunningham and Presby, the water permeable second layer (Cunningham, 307) comprises sand (Cunningham, col. 13, ll. 8-9).
CLAIM 8 In the prior art combination, the aerification system further comprises an impermeable membrane layer (Cunningham, 303) under the porous first layer (Cunningham, 305). Presby (Figs. 31A-31C) also teaches an impermeable layer (320) under the porous first layer (322)and discloses plastic as a suitable material ([0160]). It would have been an obvious modification for one having ordinary skill in the art, before the effective filing date of the claimed invention, to have formed the membrane (Cunningham, 303) of the prior art system from plastic (Presby, [0160]). The motivation for making the modification would have been to incorporate an effective and readily available water impermeable material, and to have done so with a reasonable expectation of success.
CLAIM 9 In the prior art combination, the basin (Cunningham, Figs. 6, 7) is configured to store the fluid therein.
CLAIM 10 In the prior art combination, the water permeable second layer (Cunningham, 307) comprises a rooting medium (Cunningham, col. 13, ll. 8-9) and the fluid is transported upwards through the rooting medium at least in part by capillary forces.
CLAIM 4 is rejected under 35 U.S.C. 103 as being unpatentable over Cunningham (US 4,462,184 A) in view of Presby (US 2015/0329396 A1) as applied to CLAIM 3 above, and further in view of Karlsson (US 4,030,521 A).
CLAIM 4 Neither Cunningham nor Presby teaches an air lift pump.
Karlsson discloses means and a method for maintaining a desired fluid level in a series of fluidly connected sub-systems (10, 11, 12, 13) and teaches the use of air lift pumps (16, 17, 18) for controlling fluid levels in those sub-systems. It would have been obvious for one having ordinary skill in the art, before the effective filing date of the claimed invention, to have configured the prior art pumping system (Cunningham, col. 3, ll. 20-23) as an air lift pump (Karlsson, 16). The motivation for making the modification would have been to incorporate a pump, which is (a) capable of tolerating suspended particles (e.g., fertilizer, soil, etc.) and/or (b) scalable to different lift heights and flow rates in the subsystems (Cunningham, 4, 6) with a reasonable expectation of success.
CLAIM 11 is rejected under 35 U.S.C. 103 as being unpatentable over Cunningham (US 4,462,184 A) in view of Presby (US 2015/0329396 A1) as applied to CLAIM 3 above, and further in view of Obermeyer et al. (US 6,280,117 B1).
CLAIM 11 Neither Cunningham nor Presby teaches a waffle drain. Obermeyer et al. ‘117 (“Obermeyer”) shows a waffle drain (22, Figs. 1-5) that, in use, is positioned upright within a permeable layer of material and coupled to a conduit (24). It would have been obvious for one having ordinary skill in the art, before the effective filing date of the claimed invention, to have further modified the prior art system with the addition of a waffle drain (Obermeyer, 22) positioned within the permeable second layer (Cunningham, 307) and coupled to at least one of the first and second conduits (Cunningham, 10 and 12), as suggested by Obermeyer. The motivation for making the modification would have been to include means for accelerating fluid collection and drainage of the second layer, and to have done so with a reasonable expectation of success.
CLAIMS 12, 14, 16, 18 AND 19 are rejected under 35 U.S.C. 103 as being unpatentable over Presby (US 2015/0329396 A1) in view of Karlsson (US 4,030,521 A).
CLAIM 12 Presby ‘396 (“Presby”) discloses an aerification system (1007, Figs. 31A-31C) for a first excavation (the space lined by 320) below a ground surface, the first excavation comprising a porous first layer (322) of a mixture of cement and particulate material (“crushed concrete” or the combination of “crushed cement” and another disclosed aggregate),4 and an overlaying water permeable second layer (“treatment sand”), the system comprising:
a basin (100); and
a pumping system (“pumping” [0112]; “discharge pump” [0119]) configured for pumping a fluid back and forth between the first excavation and the basin (100);
wherein the particulate material of the porous first layer (322) comprises at least one of a slag, ceramics ([0124]), metal ([0125]), glass ([0124]), rubber aggregates ([0125]), or any combination thereof (cl. 194).
Presby fails to teach an air lift pump.
Karlsson discloses a pumping system for maintaining a desired fluid level in a series of fluidly connected sub-systems (10, 11, 12, 13) and teaches the use of air lift pumps (16, 17, 18) for controlling the fluid levels within each of the sub-systems. It would have been obvious for one having ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the prior art pumping system (Presby, generally) such that it would have comprised an air lift pump, as suggested by Karlsson. The motivation for making the modification would have been to incorporate a pump that tolerates well floatable solids, and/or is readily scalable for different lift heights and flow rates, and to have done so with a reasonable expectation of success.
CLAIM 14 In the prior art combination, the particulate material of the porous first layer (322) comprises at least one of a particulate stone material ([0124]), crushed stone ([0124]), gravel ([0124]), or any combination thereof (cl. 194).
CLAIM 16 In the prior art combination, the basin (100) is configured to store fluid therein.
CLAIMS 18, 19 All of the limitations recited therein are inherent to use of the system taught by the combination of Presby and Karlsson. Additionally, the aerification system (Presby, 1007) of Presby includes first and second sub-systems (Presby, Figs. 31A-31C), which are fluidly connected; and wherein the first and second operational modes accommodate fluid flow in opposite directions (i.e., in a first mode, from the first sub-system to the second sub-system; and in a second mode, from the second sub-system to the first sub-system).
CLAIMS 12, 13, 18 AND 20 are rejected under 35 U.S.C. 103 as being unpatentable over Presby (US 2015/0329396 A1) in view of McAnaney et al. (US 5,534,141 A).
CLAIMS 12, 18 Presby teaches all of the limitations of the claimed aerification system and its method of use, as applied immediately above in section 5, with the exception of an air lift pump.
McAnaney et al. ‘141 (“McAnaney”) discloses a water treatment system comprising a pumping system (17, 33) that includes air lift pumps for moving fluids containing suspended particles (cl. 2). It would have been obvious for one having ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the prior art pumping system (Presby, generally) such that it would have comprised an air lift pump, as suggested by McAnaney. The motivation for making the modification would have been to incorporate a pump that tolerates well floatable solids, and/or is readily scaled to different lift heights and flow rates, and to have done so with a reasonable expectation of success.
CLAIMS 13, 20 In the combination Presby and McAnaney, the pumping system (McAnaney, 17, 33) is programmed to operate at predetermined time intervals (McAnaney, col. 12, ll. 61-5; and cl. 27).
CLAIM 15 is rejected under 35 U.S.C. 103 as being unpatentable over Presby (US 2015/0329396 A1) in view of Karlsson (US 4,030,521 A) as applied to CLAIM 12 above, and further in view of Lichfield (US 5,938,372 A).
CLAIM 15 The combination of Presby and Karlson fails to teach a controllable valve. Lichfield ‘372 (“Lichfield”) discloses a subsurface irrigation system that comprises a programmable controller (26) for actuating flow control valves (cl. 2), which are connected to a conduit (16) positioned beneath a porous layer; wherein the controller is configured as a timer. It would have been obvious for one having ordinary skill in the art, before the effective filing date of the claimed invention, to have modified the prior art system with the addition of at least one controllable valve, as suggested by Lichfield. The motivation for making the modification would have been to include means for automating operation of the prior art system, and to have done so with a reasonable expectation of success.
CLAIM 17 is rejected under 35 U.S.C. 103 as being unpatentable over Presby (US 2015/0329396 A1) in view of Karlsson (US 4,030,521 A) as applied to CLAIM 12 above, and further in view of Obermeyer et al. (US 6,280,117 B1).
CLAIM 17 Neither Presby nor Karlsson teaches a waffle drain. Obermeyer et al. ‘117 (“Obermeyer”) shows a waffle drain (22, Figs. 1-5) that, in use, is positioned upright within a permeable layer of material and coupled to a conduit (24). It would have been obvious for one having ordinary skill in the art, before the effective filing date of the claimed invention, to have further modified the prior art system with the addition of a waffle drain (Obermeyer, 22) fluidly coupled to the pumping system (Presby, [0112]) via a conduit (Obermeyer, 24), as suggested by Obermeyer. The motivation for making the modification would have been to include means for accelerating fluid collection and drainage, and to have done so with a reasonable expectation of success.
Response to Arguments
Applicant's arguments filed 12 February 2026 have been fully considered but they are not persuasive.
With respect to CLAIM 1, Applicant argues the combination of Cunningham and Presby fails to teach “a porous first layer positioned below a ground surface comprising a mixture of cement and particulate material.” The examiner directs Applicant’s attention to the aerification system (1007) of Presby shown in Figs. 31A-31C, which includes a porous first layer (322) comprising a mixture of cement and particulate material (“crushed concrete;” or the combination of “crushed cement” and another disclosed aggregate; [0161]). Presby goes on to disclose a host of materials (210, [0124-25]) as suitable for use in the porous layer (322), including crushed concrete, crushed cement, porous blocks, and other natural and synthetic aggregates.
The rejection is maintained.
Applicant’s arguments, see Appeal Brief (pp. 8-10), filed 12 February 2026, with respect to the rejection(s) of CLAIMS 12-17 under § 103 have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of (a) Presby (US 2015/0329396 A1) in view of Karlsson (US 4,030,521 A), and (b) Presby (US 2015/0329396 A1) in view of McAnaney et al. (US 5,534,141 A).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TARA MAYO whose telephone number is (571)272-6992. The examiner can normally be reached Monday through Friday 8:30AM-5:00PM EST.
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/TARA MAYO/Primary Examiner, Art Unit 3671
/tm/
10 July 2026
1 For the purpose of prosecution on the merits, the examiner interprets the terms cement and concrete consistent with their definitions on merriam-webster.com.
cement (1b): a powder of alumina, silica, lime, iron oxide, and magnesium oxide burned together in a kiln and finely pulverized and used as an ingredient of mortar and concrete.
concrete (2): a hard strong building material made by mixing a cementing material (such as Portland cement) and a mineral aggregate (such as sand and gravel) with sufficient water to cause the cement to set and bind the entire mass.
2 In [0161], Presby discloses porous materials (210, [0124-25]) as suitable for inclusion the porous layer (322). These materials (210) include crushed concrete, crushed cement, porous blocks, and a host of other natural and synthetic aggregates.
3 Presby teaches the selection of aggregate materials based on desired properties to the porous media (210); e.g., surface area, surface tension, porosity, and favorability for bacterial growth ([0124]).
4 Ibid., 2.
Prosecution Insights