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 .
Claim Objections
Claims 1 and 4 are objected to because of the following informalities:
Claim 1 recites the limitation “drum a composter” in line 2. This should read “a drum composter”.
Claim 1 recites the limitation “water vapour” in line 8. This should read “water vapor”.
Claim 4 recites the limitation “holes” in line 3. This should read “the holes”.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The 35 U.S.C. § 112(b) rejections are withdrawn in light of the amendments.
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.
Claims 1-7 and 11-12 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1 (line 5) and 12 (line 4) recites the limitation “the removal”. There is insufficient antecedent basis for this limitation in the claim.
Regarding the dependent claims 2-7 and 11, these claims are rejected for the same reason as the base claim upon which they depend.
Claim Rejections - 35 USC §§ 102 | 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 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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
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.
Claims 1, 3, and 6 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Ritzel (EP 0847971) (previously cited).
Regarding claim 1, Ritzel discloses a composting drum (1) (abstract “container … intended to roll”) used with [“a”, sic] drum composter (abstract), comprising a shell (3) (Fig. 2) having perforations (4) (col. 4, lines 1-2; Fig. 2, element 22 “sieve”), the composting drum (1) containing an opening (7) suitable for inserting material to be composted (col. 3, lines 45-55), wherein the perforations (4) are suitable for the removal of compost particles (col. 3 line 55 to col. 4 line 2 using Fig. 2, element 22 “sieve”) and the shell (3) is covered in a removable way with a semipermeable membrane (6) (col. 3, lines 37-40 “a permeable cell plastic material”) at least over the perforations (4) (col. 3, line 55 to col. 4 line 2 using Fig. 2, element 22 “sieve”), wherein the semipermeable membrane (col. 3, lines 37-40 “a permeable cell plastic material”) is permeable to water vapor (col. 3, lines 37-40 “a permeable cell plastic material” and claim 1, “air permeable”; inherent that air can contain water vapor).
If it is deemed that the phrase “a semipermeable membrane over the perforations” is not fulfilled by the above rejection, this limitation is alternatively rejected under rearrangement of parts. Regarding this limitation, rearrangement of parts would have been obvious to one of ordinary skill in the art as an obvious matter of design choice and would not have modified the operation of the device. MPEP § 2144.04(VI)(C). It would have been obvious to one skilled in the art before the effective filing date to modify the location of the semipermeable membrane to be over the part with the perforations in order to prevent the device from rainy outdoor weather and other adverse weather conditions.
In addition, regarding the following phrases, these limitations are considered an intended use or manner of operating the apparatus:
“used with [“a” sic] drum composter”
“suitable for inserting material to be composted”
“suitable for the removal of compost particles”
Regarding the limitations, the manner of operating or intended use of a claimed apparatus does not patentably distinguish it from the prior art. MPEP § 2114(II).
Regarding claim 3, Ritzel discloses wherein the shell (3) is cylindrical (Fig. 2; col. 3, lines 25-30).
Regarding claim 6, Ritzel discloses wherein the semipermeable membrane (6) contains a protective layer and a functional layer (col. 2 lines 34-40 “air permeable mantle face and the mantle face having an inner hard-wearing layer and an outer protective layer”; col. 3, lines 25-40).
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.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Ritzel (EP 0847971) (previously cited) as applied to claim 1, further in view of Childress (US 5494350) (previously cited).
Regarding claim 2, Ritzel discloses wherein the semipermeable membrane (6) (col. 3, lines 37-40 “a permeable cell plastic material”).
Ritzel does not disclose securing with a hook-and-loop fastener.
Childress discloses securing with a hook-and-loop fastener (col. 2, lines 9-12).
Additionally, making parts separable or removable would be obvious. MPEP § 2144.04(V)(C).
In the analogous art of composters, it would have been obvious to one skilled in the art before the effective filing date to modify the semipermeable membrane of Ritzel to be removably secured with a hook-and-loop fastener of Childress in order to attach the semipermeable membrane to the composter drum as a weatherproof covering. Additionally, because Ritzel already has a lockable cover (Ritzel, col. 2, line 45 to col. 3, line 10) it would have been obvious to make this a hook-and-loop fastener as another substitute device for ease of fastening by hand.
Claims 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Ritzel (EP 0847971) (previously cited) as applied to claim 1, in view of Kienle (EP 0179362) (translated) (previously cited).
Regarding claim 4, Ritzel discloses wherein the perforations (4) (col. 4, lines 1-2; Fig. 2, element 22 “sieve”) are formed by holes (4a) (col. 4, lines 1-2; Fig. 2, element 22 “sieve”), holes (4a) (col. 4, lines 1-2; Fig. 2, element 22 “sieve”) and the shell (3) (Figs. 1-2, element 22 “sieve”; col. 3 line 55 to col. 4 line 2).
Ritzel does not disclose wherein holes are distributed approximately evenly over the entire surface of the shell (3).
Kienle discloses wherein holes (4a) are distributed approximately evenly over the entire surface of the shell (3) (pg. 3, fifth paragraph and last paragraph; Fig. 1, elements 7 “jacket” and 7` “openings”).
In the analogous art of apparatuses for composting organic waste, it would have been obvious to one skilled in the art before the effective filing date to modify the composter drum of Ritzel with the holes forming the perforations over the entire surface of the shell of Kienle in order to aerate and ventilate the composting organic waste (Kienle, pg. 3, fifth paragraph and last paragraph).
Regarding claim 5, Ritzel discloses the holes (col. 4, lines 1-2; Fig. 2, element 22 “sieve”).
Ritzel does not disclose wherein the average diameter of the holes (4a) is in the range of 10 to 20 mm.
Kienle discloses wherein the average diameter of the holes (4a) is in the range of 16 to 24 mm (pg. 4, seventh paragraph).
In the analogous art of apparatuses for composting organic waste, it would have been obvious to one skilled in the art before the effective filing date to modify the holes of Ritzel with the average diameter of those in Kienle in order to result in good ventilation of the drum contents and at the same time counteract a blockage of the ventilation openings (Kienle, pg. 4, seventh paragraph).
Additionally, the range limitation is obvious as a matter of routine optimization, because the diameter of the holes is a property that can be optimized in order to have good air ventilation of the drum contents and at the same time counteract blockage of the ventilation openings from solid particles. MPEP § 2144.05(II).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Ritzel (EP 0847971) (previously cited) as applied to claim 1, in view of Song (CN 105058933) (machine translated) (previously cited).
Regarding claim 7, Ritzel discloses the semipermeable membrane (6) (col. 3, lines 37-40 “a permeable cell plastic material”).
Ritzel does not disclose that the average pore size of the semipermeable membrane (6) is a maximum of 0.5 micrometres.
Song discloses that the average pore size of the semipermeable membrane (6) is a maximum of 0.5 micrometres (paragraph [0018] “micropores with a pore size of 0.2-0.5 µm are provided on the surface of the membrane”).
In the analogous art of semi-permeable membranes for organic solid waste composting fermentation, it would have been obvious to one skilled in the art before the effective filing date to modify the semipermeable membrane of Ritzel with the semipermeable membrane with pores of an average size of a maximum of 0.5 micrometers of Song in order to provide isolation against rainwater and have moisture resistance (Song, abstract), but also allow penetration of air and water vapor (Song, paragraph [0018]).
Claim 11 is rejected under 35 U.S.C. 103 as being unpatentable over Ritzel (EP 0847971) (previously cited) as applied to claim 1, in view of Song (CN 105058933) (machine translated) (previously cited).
Regarding claim 11, Ritzel discloses the semipermeable membrane (6) (col. 3, lines 37-40 “a permeable cell plastic material”).
Ritzel does not disclose wherein the semipermeable membrane (6) contains pores having an average pore size of a maximum of 0.3 micrometres.
Song discloses wherein the semipermeable membrane (6) contains pores having an average pore size of a maximum of 0.3 micrometres (paragraph [0018] “micropores with a pore size of 0.2-0.5 µm are provided on the surface of the membrane”).
In the analogous art of semi-permeable membranes for organic solid waste composting fermentation, it would have been obvious to one skilled in the art before the effective filing date to modify the semipermeable membrane of Ritzel with the semipermeable membrane with pores of an average size of a maximum of 0.3 micrometers of Song in order to provide isolation against rainwater and have moisture resistance (Song, abstract), but also allow penetration of air and water vapor (Song, paragraph [0018]). Additionally, see MPEP § 2144.05(I) for obviousness of similar and overlapping ranges, amounts, and proportions.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Ritzel (EP 0847971) (previously cited) in view of Song (CN 105058933) (machine translated) (previously cited).
Regarding claim 12, Ritzel discloses a composting drum (1) (abstract “container … intended to roll”) used with a drum composter (abstract), comprising a shell (3) (Fig. 2) having perforations (4) (col. 4, lines 1-2; Fig. 2, element 22 “sieve”), the composting drum (1) containing an opening (7) suitable for inserting material to be composted (col. 3, lines 45-55), wherein the perforations (4) are suitable for the removal of compost particles (col. 3 line 55 to col. 4 line 2 using Fig. 2, element 22 “sieve”) and the shell (3) is covered in a removable way with a semipermeable membrane (6) (col. 3, lines 37-40 “a permeable cell plastic material”) at least over the perforations (4) (col. 3, line 55 to col. 4 line 2 using Fig. 2, element 22 “sieve”), wherein the semipermeable membrane (col. 3, lines 37-40 “a permeable cell plastic material”) is permeable to water vapor (col. 3, lines 37-40 “a permeable cell plastic material” and claim 1, “air permeable”; inherent that air contains water vapor).
Ritzler does not disclose “and wherein liquid phase water does not pass through said semipermeable membrane”.
Song discloses “and wherein liquid phase water does not pass through said semipermeable membrane” (paragraph [0013] “strong waterproof and moisture-proof properties”).
In the analogous art of semi-permeable membranes for organic solid waste composting fermentation, it would have been obvious to one skilled in the art before the effective filing date to modify the semipermeable membrane of Ritzel with the waterproof semipermeable membrane of Song in order to provide isolation against rainwater and have moisture resistance (Song, abstract), but also allow penetration of air and water vapor (Song, paragraph [0018]).
In addition, it would have been obvious to one skilled in the art before the effective filing date to modify the semipermeable membrane of Ritzel with the semipermeable membrane with pores size of Song (0.3 micrometers) in order to provide isolation against rainwater and have moisture resistance (Song, abstract), but also allow penetration of air and water vapor (Song, paragraph [0018]).
It is to be noted that the permeability of the semipermeable membrane is a function of the pore size and the intended use of the membrane. Because the pore size of modified Ritzel is the same as that of the instant invention (see rejection above), the same function (permeability to water vapor) is apparent absent clear evidence otherwise (i.e. the pore size has the same effect as the invention (see section 0057 of the PG pub of the instant application)). Also, it would have been obvious to one skilled in the art before the effective filing date to modify the pore size of the membrane to be a pore size appropriate for water vapor permeability, but not liquid water permeability in order to retain a liquid-tight container for protection against weather but also allow composting gases to off-gas.
If it is deemed that the phrase “a semipermeable membrane over the perforations” is not fulfilled by the above rejection, this limitation is alternatively rejected under rearrangement of parts. Regarding this limitation, rearrangement of parts would have been obvious to one of ordinary skill in the art as an obvious matter of design choice and would not have modified the operation of the device. MPEP § 2144.04(VI)(C). It would have been obvious to one skilled in the art before the effective filing date to modify the location of the semipermeable membrane to be over the part with the perforations in order to prevent the device from rainy outdoor weather and other adverse weather conditions.
In addition, regarding the following phrases, these limitations are considered an intended use or manner of operating the apparatus:
“used with a drum composter”
“suitable for inserting material to be composted”
“suitable for the removal of compost particles”
Regarding the limitations, the manner of operating or intended use of a claimed apparatus does not patentably distinguish it from the prior art. MPEP § 2114(II).
Additional Prior Art References
The prior art made of record and not relied upon is considered pertinent to Applicant’s disclosure.
National Oceanic and Atmosphere Administration. “The Atmosphere” (newly cited) – This non-patent literature describes that atmospheric air can comprise water vapor with an upper limit approaching 4%.
Response to Arguments
Applicant’s arguments filed 08/18/2025 have been fully considered but they are not persuasive.
Regarding arguments about the composition of air, the percentage of atmospheric air that is water vapor according to the National Oceanic and Atmosphere Administration can vary from 0% to approaching 4%. Therefore, if Ritzel’s invention describes air permeability, it inherently describes water vapor permeability.
Additionally, the permeability of the semipermeable membrane is a function of the pore size and the intended use of the membrane. Because the pore size of modified Ritzel is the same as that of the instant invention, the pore size has the same effect as the invention (see section 0057 of the PG pub of the instant application). Also, modifying the pore size of the membrane to be a pore size appropriate for water vapor permeability, but not liquid water permeability (see above rejections) in order to retain a liquid-tight container for protection against weather but also allow composting gases to off-gas is well within the level of ordinary skill in the art absent clear evidence otherwise.
Conclusion
THIS ACTION IS MADE FINAL. 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 NATHAN G ESPERON whose telephone number is 571-272-9807, and whose fax number is 571-273-8464. The examiner can normally be reached 9 am - 6 pm Monday through Thursday, and 9 am - 6 pm every other Friday.
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) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Marcheschi can be reached at 571-272-1374. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/N.G.E./Examiner, Art Unit 1799
/MICHAEL A MARCHESCHI/Supervisory Patent Examiner, Art Unit 1799