DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Election/Restrictions
Due to the amendment of claim 19 dated 11/6/2025, claim 19 is rejoined only under the interpretation that the “further distillation column” reads on the second distillation column (12) of Species 2. In rehearsal, in response to the restriction requirement dated 5/16/2024, the applicant elected Group I (claims 1-11, 14-17), species 2, subspecies B with traverse in the reply filed on 09/06/2024. The amended claim 5 is not drawn to the elected invention, species, or subspecies since the elected invention species, and subspecies have a second distillation column (see 12) and not “one or more further distillation column downstream the second distillation column” and the cryogenic liquid of the elected species is withdrawn from the second distillation column, not the one or more further distillation column. Therefore, claim(s) 5, 7, 8, and 16 are additionally withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, species, or subspecies, there being no allowable generic or linking claim.
Further, claim 20 was withdrawn from further consideration in view of election by original presentation in the final office action dated 8/6/2025. The applicant traverses (REM 11/6/2025) the election by implying that the election by original presentation is in some un-identified way improper merely because claim 20 is a new claim and was not presented prior to the lack of unity dated 5/16/2025. In response, requirements employing election of original presentation are always concerned with new or amended claim(s) at a later date (see MPEP 821.03) and the only reason the lack of unity dated 5/16/2025 did not present Group III (claim 20) is because the applicant did not present claim 20 until later. Further the mere fact that the applicant submitted claim 20 later in prosecution does not negate the propriety of the lack of unity of the election of original presentation in the Final action. The allegation that claim 20 includes a special technical feature is demonstrably false, since a special technical feature must be a shared feature with the other groups and must make a contribution over the prior art. In total contradiction to the allegation of the applicant, the final rejection (8/6/2025) shows via the prior art rejections that Group I does not make a contribution over the art and therefore Group III (claim 20) cannot share a feature with claim 20 that is a special technical feature. Accordingly, claim 20 remains withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03. The requirement is still deemed proper and is therefore made FINAL. In rehearsal, claims 5-9, 12, 13, 15-17, 20 are all presently withdrawn from consideration and should be properly notated as such in any future submission.
Examiner Request
The applicant is requested to provide line numbers to each claim in all future claim submissions to aide in examination and communication with the applicant about claim recitations. The applicant is thanked for aiding examination.
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(s) 1-4, 10, 11, 14, 18, 19 is/are 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 pre-AIA the applicant regards as the invention.
In regard to claim 1, the recitation, “pressurizing a first portion of the cryogenic liquid and vaporizing a remaining second portion of the cryogenic liquid” is indefinite if interpreted to require that there are only two portions as the language does not support such an exclusion. Further, it is unclear where the second portion must be remaining or what characteristic the recitation “remaining” requires of the second portion. Further, the recitation is indefinite inasmuch as interpreted to require that the cryogenic liquid is either pressurized or vaporized as this is entirely inconsistent with the later recitations that the pressurizing of the first portion is accomplished by exposure to the vaporized second portion of the cryogenic liquid and therefore there is no exclusion of both portions being pressurized (increased in pressure).
The recitation, “after pressuring the first portion” is indefinite since it is unclear if this is referencing the previously recited “pressurizing” or if this introduces a separate pressuring.
In regard to claim 11, the recitation, “is used in pressurizing of the first portion” is indefinite for reintroducing anew improperly pressurizing rather than referencing the previously recited pressurizing of the first portion.
CLAIM INTERPRETATION
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
All of the claims have been evaluated under the three-prong test set forth in MPEP § 2181, subsection I, and it is considered that none of the claim recitations should be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-4, 14, 19 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Hirose (WO 2018/219685). See the indefiniteness rejections and note that the prior art teaches the claimed features as far as can be interpreted. Further note the interpretations of the limitations as provided in the rejection.
In regard to claim 1, Hirose teaches a method (see whole disclosure, including figure 2) for providing an oxygen product (O2; “product gas…oxygen gas” page 9, line 20-25) using an air separation plant (see Fig. 2; page 9, line 19) with a distillation column system (see 21, 22), said method comprising:
withdrawing a cryogenic liquid (L5) from the distillation column system (21, 22), and pressurizing a first portion (part of L5) of the cryogenic liquid (L5) and vaporizing a remaining second portion (another part of L5 that is vaporized in 32; see that this part may be pressurized as well) of the cryogenic liquid (L5), wherein the pressurizing of the first portion (part of L5) is accomplished by exposure (in 31 at least) to the vaporized second portion (another part of L5 from 32) of the cryogenic liquid (L5),
wherein at least a part (some) of the first portion (part of L5) of the cryogenic liquid (L5) forms the oxygen product (see O2), and
wherein, after the pressurizing (by the exposure aforementioned) of the first portion (part of L5) of the cryogenic liquid (L5), at least a part (some of another part of L5) of the vaporized second portion (another part of L5 from 32) of the cryogenic liquid (L5) is used in production (some gas is liquefied by contact with liquid and proceeds to O2 product line) of the oxygen product (O2).
In regard to claim 2, Hirose teaches that said part (some of another part of L5) of the vaporized second portion (another part of L5 from 32) of the cryogenic liquid (L5) is (a) materially used for the production of the oxygen product (O2) wherein oxygen molecules contained in said part (some of another part of L5) of the vaporized second portion (another part of L5 from 32) of the cryogenic liquid (L5) are converted (some of the gas is converted to liquid oxygen) into the oxygen product (O2, by mixing), and (b) thermally used for the production of the oxygen product (O2) wherein said part (some of another part of L5) of the vaporized second portion (another part of L5 from 32) of the cryogenic liquid (L5) used as a cooling or heating medium (when vaporized fluid is mixed) in the production of the oxygen product (O2).
In regard to claim 3, Hirose teaches that the distillation column system (21, 22) comprises a first distillation column (21), wherein liquid (at least some of L3) is withdrawn from the first distillation column (21), expanded (at least by 151), and vaporized (by 213) against condensing top gas (gas to 213 from top of 21) of the first distillation column (21), wherein condensed top gas (from 213) is at least partially returned to the first distillation column (21), and wherein the vaporized liquid (at least some of R1) is at least partially recompressed (by 153) and fed back into the first distillation column (21).
In regard to claim 4, Hirose teaches further liquid (at least part of L3 to L31) is withdrawn from the first distillation column (21), expanded (some is expanded in 151), vaporized (some is vaporized by 213) against the condensing top gas (top gas from 21) of the first distillation column (21), and at least partially discharged from the air separation plant (part removed as “waste gas”).
In regard to claim 14, Hirose teaches wherein said part (some) of the vaporized second portion (another part of L5 from 32) of the cryogenic liquid (L5) is materially used for the production of the oxygen product (O2) wherein oxygen molecules contained in said part (some) of the vaporized second portion (another part of L5 from 32) of the cryogenic liquid (L5) are converted (some of the gas is converted to liquid oxygen) into the oxygen product (O2, by mixing).
In regard to claim 19, Hirose teaches that the distillation column system (21, 22) comprises a further distillation column (22) and wherein the cryogenic liquid (L5) is withdrawn from the further distillation column (22), and said part (some of another part of L5) of the vaporized second portion (another part of L5) of the cryogenic liquid (L5) is materially used for the production of the oxygen product (O2) by being at least partially fed (via L52) into the further distillation column (22) prior to the first portion (part of L5) of the cryogenic liquid (L5) being pressurized.
Claim(s) 1-4, 10, 11, 14 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Lochner (WO 2014/173496) (see English translation). See the indefiniteness rejections and note that the prior art teaches the claimed features as far as can be interpreted. Further note the interpretations of the limitations as provided in the rejection.
In regard to claim 1, Lochner teaches a method (see whole disclosure, including figure 2) for providing an oxygen product (LOX or GOX, page 7) using an air separation plant (Fig. 2, page 7, last para. “air separation plant) with a distillation column system (see 12, 38), said method comprising: withdrawing a cryogenic liquid (41) from the distillation column system (12, 38), and pressurizing a first portion (part of 41) of the cryogenic liquid (41) and vaporizing a remaining second portion (another part via 73) of the cryogenic liquid (41), wherein the pressurizing of the first portion (part of 41) of the cryogenic liquid (41) is accomplished by exposure (mixing of the gas and liquid) to the vaporized second portion (another part via 73) of the cryogenic liquid (41),
wherein at least a part (some) of the first portion (part of 41) of the cryogenic liquid (41) forms the oxygen product (LOX, GOX),
wherein, after the pressurizing of the first portion (part of 41) of the cryogenic liquid (41), at least a part of the vaporized second portion (another part via 73) of the cryogenic liquid (41) is used in production of the oxygen product (LOX, GOX) (page 8, para. 6-8).
In regard to claim 2, Lochner teaches that said part (some) of the vaporized second portion (another part of 41 from 73) of the cryogenic liquid (41) is (a) materially used for the production of the oxygen product (LOX, GOX) wherein oxygen molecules contained in said part (some) of the vaporized second portion (another part of 41 from 73) of the cryogenic liquid (41) are converted (some of the gas is converted to liquid oxygen) into the oxygen product (LOX or GOX, by mixing) and (b) thermally used for the production of the oxygen product (O2) wherein said part (some) of the vaporized second portion (another part of 41 from 73) of the cryogenic liquid (41) used as a cooling or heating medium (when vaporized fluid is mixed) in the production of the oxygen product (O2).
In regard to claim 3, Lochner teaches that the distillation column system (12, 38) comprises a first distillation column (12), wherein liquid (18) is withdrawn from the first distillation column (12), expanded (see expansion valve on line 18), and vaporized (by 13) against condensing top gas (gas to 13 from top of 12) of the first distillation column (12), wherein condensed top gas (from 13) is at least partially returned to the first distillation column (12), and wherein the vaporized liquid (at least some of 29) is at least partially recompressed (by 30) and fed back into the first distillation column (12).
In regard to claim 4, Lochner teaches further liquid (14) is withdrawn from the first distillation column (12), expanded (see expansion valve on line 14), vaporized (some is vaporized by 13) against the condensing top gas (top gas from 12) of the first distillation column (21), and at least partially discharged from the air separation plant (at least part of 60 or 24).
In regard to claim 10, Lochner teaches that the cryogenic liquid (41) and the oxygen product (LOX, GOX) have an oxygen content of more than 99 mole percent (page 3, para. 9 see that 10 ppb Ar is more than 99% pure oxygen).
In regard to claim 11, Lochner teaches a tank system (see 70 ) with at least two tanks (see both 72 in 70) that are alternately filled and emptied (see tanks are fully capable of being filled and emptied) is used in the pressurizing of the first portion (part of 41) of the cryogenic liquid (41) by the exposure to the vaporized second portion (another part of 41 that is vaporized in 32) of the cryogenic liquid (41), wherein a respective tank (one of 72) being filled is pressurized by the vaporized second portion (another part of 41 that is vaporized in 73) of the cryogenic liquid (41), and the second portion (another part of 41) of the cryogenic liquid (41) is discharged from another respective tank (other 72) of the at least two tanks (both 72) being emptied (page 3, para. 4-6; page 8, para. 3, 6 “filled alternately” “alternating operation”).
In regard to claim 14, Lochner teaches that said part (some) of the vaporized second portion (another part of 41 from 73) of the cryogenic liquid (41) is materially used for production of the oxygen product (LOX, GOX) wherein oxygen molecules contained in said part (some) of the vaporized second portion (another part of 41 from 73) of the cryogenic liquid (41) are converted (some of the gas is converted to liquid oxygen) into the oxygen product (LOX or GOX, by mixing).
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.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lochner (WO 2014/173496) in view of Sugenaga (JP 2004-20158). See the indefiniteness rejections and note that the prior art teaches the claimed features as far as can be interpreted. Further note the interpretations of the limitations as provided in the rejection.
Lochner teaches most of the claim limitations, including that the second distillation column (38) has the sump reboiler (37) and is downstream of the first column (12), the cryogenic liquid (41) is withdrawn from the second distillation column (38), but does not explicitly teach that the part of the vaporized second portion (part from 73) of the cryogenic liquid (41) is cooled at least partially in the sump reboiler (37) of the second distillation column (38). However, it is well known to employ vaporized fractions of product fluid to provide heating to reboilers with heated fluid as taught by Sugenaga. Sugenaga teaches (see all figures including figure 2) that a vaporized portion (23) of product fluid is branched from a vaporized product line to provide heat to a reboiler (17) of a second side column (6) thereby providing additional reboiling heat with a fluid that is readily available. Therefore it would have been obvious to those of ordinary skill in the art at the time the invention was made to modify Lochner to cool at least a part of the vaporized second portion (part from 73) of the cryogenic liquid (41) in the sump reboiler (37) of the second distillation column (38) for the purpose of providing additional reboiling heat with a fluid that is readily available and to permit recycling and reuse of a portion of the product fluid so as to still maintain provision of the product fluid.
Response to Arguments
Applicant's arguments filed 11/6/2025 have been fully considered but they are not persuasive.
Applicant's arguments (page 9) are an allegation that Hirose does not teach that the vaporized portion is “subsequently used for any purpose”.
In response, the allegation is unpersuasive since alleging that the fluid is “not used for any purpose” is entirely without merit. Further rejection explains the purpose the fluid is used for and the applicant is ignoring the mixing of the second portion with the first portion as taught by Hirose which is a use.
Applicant's arguments (page 9) are an allegation that Hirose does not teach the amended limitations.
In response, the allegation is unpersuasive and the applicant is directed to the detailed grounds of rejection and it is not persuasive to ignore the grounds of rejection and make allegations without any evidence.
Applicant's arguments (page 9) are an allegation that Hirose does not teach a crude liquid oxygen. In response, the allegation is unpersuasive since claim 3 does not recite a crude liquid oxygen and therefore this is no basis for distinguishing the prior art from the claim.
Applicant's arguments (page 9) are an allegation that Hirose expands waste gas removed from the top of the column 22 and not a liquid withdrawn from the first distillation column as recited in claim 3.
In response, the allegation ignores the fact that the liquid (L3) provides the fluid that flows to the turbine and therefore the recited liquid is expanded as claimed. Further, it is noted that the claim does not exclude flowing the claimed liquid to other structures before being expanded and the rejection is maintained.
Applicant's arguments (page 9) are an allegation that the liquid withdrawn via line L2 is not vaporized in evaporator 213. In response, the allegation is unpersuasive for failing to address the grounds of rejection and having no relation to the claimed limitations.
Applicant's arguments (page 9-10) are an allegation that that the rejection had a typographical error.
In response, the allegation is unpersuasive and the applicant is directed to the detailed rejection above.
Applicant's arguments (page 11) are an allegation that Lochner would not remove the vaporized oxygen product with the liquefied oxygen product.
In response, the allegation is unpersuasive for entirely failing to respond to the grounds of rejection and ignoring the identified vapor portion that is condensed when contacting the liquid. Additionally the identified product can include the oxygen gas product as identified by the rejection and therefore the rejection is maintained.
Applicant's arguments (page 11-12) are an allegation that Sugenaga does not teach a high purity oxygen product stream. In response, the allegation is unpersuasive for failing to address the grounds of rejection which is based on the modification of Lochner in view of the teachings of Sugenaga and the teachings of Sugenaga fully support the modification made and the rejection is maintained.
Conclusion
The prior art made of record on the 892 and not relied upon is considered pertinent to applicant's disclosure. Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOHN F PETTITT whose telephone number is (571)272-0771. The examiner can normally be reached on M-F, 9-5p. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR): http://www.uspto.gov/interviewpractice. The examiner’s supervisor, Frantz Jules can be reached on 571-272-6681. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see http://pair-direct.uspto.gov. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JOHN F PETTITT, III/Primary Examiner, Art Unit 3763
JFPIII
January 10, 2026