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 .
Information Disclosure Statement
The information disclosure statement filed 24 April 2023 fails to comply with 37 CFR 1.98(a)(2), which requires a legible copy of each cited foreign patent document; each non-patent literature publication or that portion which caused it to be listed; and all other information or that portion which caused it to be listed. It has been placed in the application file, but the information referred to therein has not been considered.
Drawings
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.
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.
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.
Claim(s) 1-3 and 5-11 is/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).
With regard to claim 1, Cunningham teaches an aerification system comprising:
a porous first layer (305, 335, 343) positioned below a ground surface and comprising gravel (abstract, cl. 12); and
a water permeable second layer (307, 337, 345) 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. Presby discloses an aerification system1 comprising porous media (210) of varying porosity (¶0124), wherein the porous media can comprise a range of materials including crushed concrete, crushed cement, pea gravel, ceramic and glass (¶0124). 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, 335, 343) of the prior art aerification system such that it would have comprised a mixture of crushed cement and ceramic or glass (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)2, and to have done so with a reasonable expectation of success.
With regard to 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).
With regard to 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) and coupled (fluidly) to the first and second conduits (Cunningham, 10 and 12). Cunningham further discloses the use of basins (Cunningham, Figs. 6, 7) but fails to teach expressly the pumping system positioned in one. 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 of the same type shown in Figs. 6 and 7, since Cunningham shows the structure as known and the examiner takes Official Notice of use of the same in the irrigation art. The motivation for making the modification would have been to provide a clear point of access to the pumping system and to have done so with a reasonable expectation of success.
With regard to 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.
With regard to 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 and 6).
With regard to claim 7, in the combination of Cunningham and Presby, the water permeable second layer (Cunningham, 307, 337, 345) comprises sand.
With regard to claim 8, the combination of Cunningham and Presby further comprises an impermeable membrane layer (Cunningham, 303, 333) under the porous first layer (Cunningham, 305, 335). While Cunningham implies the impermeable membrane is made from plastic (col. 3, ll. 35-40), it fails to teach the same directly. 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, 305, 335) of the prior art system from plastic or rubber, since the same is suggested by known prior art and because it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 125 USPQ 416. The motivation for making the modification would have been to incorporate an inexpensive and readily available water impervious material, and to have done so with a reasonable expectation of success.
With regard to claim 9, in the modified combination of Cunningham and Presby, the basin (Cunningham, Figs. 6 and 7) is configured to store the fluid therein.
With regard to claim 10, in the combination of Cunningham and Presby, the water permeable second layer (Cunningham, 307, 337, 345) comprises a rooting medium and the fluid is transported upwards through the rooting medium at least in part by capillary forces.
With regard to claim 11, neither Cunningham nor Presby teaches a waffle drain. 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 within the permeable second layer (Cunningham, 307, 337, 345) and coupled to at least one of the first and second conduits (Cunningham, 10 and 12), since the examiner takes Official Notice of subsoil waffle drains. The motivation for making the modification would have been to include drainage means having an increased collection area.
Claim(s) 4 is/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) as applied to claim 3 above, and further in view of Karlsson (US 4,030,521 A).
With regard to 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 modified the prior art pumping system (Cunningham, col. 3, ll. 20-23) such that it would have comprised an air lift pump (Karlsson, 16), as suggested by Karlsson. The motivation for making the modification would have been to incorporate energy efficient means for maintaining desired fluid levels in the first and second sub-systems (Cunningham, 4 and 6), and to have done so with a reasonable expectation of success.
Claim(s) 12-20 is/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) and Karlsson (US 4,030,521 A).
With regard to claims 12-17, Cunningham teaches all of the features of the claimed invention with the exceptions addressed below.
With regard to claim 12, Cunningham fails to teach the porous first layer comprising a mixture of cement and particulate material. Presby discloses an aerification system3 comprising porous media (210) of varying porosity (¶0124), wherein the porous media can comprise a range of materials including crushed concrete, crushed cement, pea gravel, ceramic and glass (¶0124). 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, 335, 343) of the prior art aerification system such that it would have comprised a mixture of crushed cement and ceramic or glass (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)4, and to have done so with a reasonable expectation of success.
With further regard to claim 12, Cunningham further discloses the use of basins (Cunningham, Figs. 6, 7) but fails to teach expressly the pumping system positioned in one. 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 of the same type shown in Figs. 6 and 7, since Cunningham shows the structure as known and the examiner takes Official Notice of use of the same in the irrigation art. The motivation for making the modification would have been to provide a clear point of access to the pumping system and to have done so with a reasonable expectation of success.
With further regard to claim 12, 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 modified the prior art pumping system (Cunningham, col. 3, ll. 20-23) such that it would have comprised an air lift pump (Karlsson, 16), as suggested by Karlsson. The motivation for making the modification would have been to incorporate energy efficient means for raising or lowering the fluid level within the permeable material (Cunningham, 307, 337, 345) of the first excavation (Cunningham, 4), and to have done so with a reasonable expectation of success.
With regard to claim 13, in the combination of Cunningham, Presby and Karlsson, the pumping system (Cunningham, col. 3, ll. 20-23) is configured to operate at predetermined time intervals (Cunningham, via “programmable control panel,” col. 6, ll. 22-32).
With regard to claim 17, none of Cunningham, Presby or Karlsson teaches a waffle drain. 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 within the permeable second layer (Cunningham, 307, 337, 345) and coupled to at least one of the first and second conduits (Cunningham, 10 and 12), since the examiner takes Official Notice of subsoil waffle drains. The motivation for making the modification would have been to include drainage means having an increased collection area.
With regard to claims 18-20, the method steps recited therein are inherent to use of the system taught by the combination Cunningham, Presby and Karlsson, as applied above to the claims 12-17.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1, 12 and 18 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; i.e., Woodberry.
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 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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Joseph Rocca can be reached on 571-272-8971. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TARA MAYO/Primary Examiner, Art Unit 3671
09 July 2025
1 In the abstract and para. 0113, Presby teaches expressly use of its treatment systems for conducting aerobic processes.
2 In para. 0124, Presby teaches the selection of aggregate materials for imparting the porous media (210) with desired properties; e.g., surface area, surface tension, porosity, and bacterial growth.
3 Ibid, 1.
4 Ibid, 2.
Prosecution Insights