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
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.
Claim(s) 2,7,10-11,19-20,and 23-31 are rejected under 35 U.S.C. 103 as being unpatentable over Straus et al – US 2005/0208606 in view of RU2539867 (Dmitrievich et al), see translation. As to claims 2, 11, 19, 23 and 28, Straus et al disclose an apparatus and method of detecting an airborne mycotoxin including agitating air or using an air agitator (vacuum pump 12 draws air which agitates the air to move into the inlet adapted to “condition” air of air space (environmental air) to be representative of air exposed to a person in an indoor environment (enclosure/building) and testing human exposure, note par[2-8] regarding human exposure to mycotoxins, locating an inlet (14) of a filtering unit (14) using a stand at a height representative of a breathing zone within the airspace (the kitchen was sampled at an elevation of about 4 feet or 1.2 meters above floor level, and sampling and filtering with a sampling apparatus (filter 16) with positioning an air inlet (14) with a vacuum pump (12) adapted to draw the “conditioned air” from the inlet into the filter at a rate of 150 liters per minute to 8000lpm, the filter including a foam material (polyurethane foam) being adapted to collect mycotoxins (macrocyclic trichothecenes) in the air at the flow rate and although a “stand” is not described, per se, it is noted that in the example IV sampling is recited at 3.5 feet (about 1 meter) or Example V, the kitchen was sampled at an elevation of about 4 ft (or 1.2 meters) above floor level suggesting that a “stand” of some form was employed since the other examples indicated sampling at floor level, where the “stand” could be any support structure where some form of support would be needed to allow for the various different levels of sampling to be at floor level in some embodiments and to allow for sampling at 1 meter in the living room and 1.2 meters in the kitchen, see fig. 1 and par[15] et seq. Further, it is noted that Straus et al do not specifically disclose an air agitator, per se or drawing the air through the inlet at a rate of about 1 to 3 liters per minute. In a related prior art device, RU 2539867 (Dmitrievich et al) disclose a device for detection of harmful substances in air with filters including an air flow booster/inducer 1 (including air agitators nozzle 19 or air duct 4) where the booster/inducer includes a control unit 3 for controlling an air flow inducer, an air pump connected to the control unit to control the volumetric flow of the pumped air in a wide range of flow rates including 0.1-3 liters per minute, see abstract and description translation as well as figure 1. Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing to have included the air flow booster system with air agitators from Dmitrievich et al into the device of Straus et al so that the air flow rate of pumping can be variable and include a wider range of sampling and can be controlled for a slow flow rate or a high flow rate as well, depending on the type of flow desired where high flow rates are used for dust and slow rates are for gases and vapors. As to claims 20 and 27, the cell diameter of the foam used is considered to have been an obvious matter of design choice based on the type of particles being collected that can be determined without having performed undue experimentation. As to claims 11, 24 and 29, note the discussion in par[32] of Straus et al regarding secondary filter (pre-filters) for larger particles. As to claims 25-26 and 30-31, note the size of the filter as being 5 micron filter or a PVC filter is considered a matter of design choice based on the type of particles to be collected. As to claim 7, it would appear from the vacuum pump inlet of Straus et al as well as the air inducer air inlet nozzle of Dmitrievich et al would be at the height of sampling i.e. 4 ft. or 1.2 meters. As to claim 10, note the flow rate of Dmitrievich et al is given as controlled and inclusive of 2 lpm as given above with regard to claim 2, 11 and 19.
Response to Arguments
Applicant's arguments filed 12/15/25 have been fully considered but they are not persuasive. Applicant has argued that Straus et al do not disclose a “stand” that would be capable of providing a height of 1.1 to 1.8 meters as claimed. Such an argument is not found persuasive because the Straus et al system very clearly implies the usage of a stand since it is indicated that sampling is done at various levels extending from very specifically 3.5 ft (1 meter) and also 4 ft (1.2 meters) which is within the range being claimed. The stand may be a kitchen counter which meets the definition of a stand since the definition of a stand is a support structure. Further, since a very specific 4 foot height is given as well as sampling at floor level, some form of a stand must be employed since the heights of sampling includes the very specific number of “4” feet where a counter has a standard height of 36 in or 3 ft. Therefore, to accomplish the variable heights along with the very specific heights of 3.5ft and 4 ft, it would appear some form of a stand with a measuring means for the height is required if not obvious to achieve the specific variable heights. Please also note that these heights 3.5 to 4 ft are within the ranges being claimed. Further, Applicant has argued that Dimitrievich does not disclose or suggest agitating air within the air space using an agitator representative of air exposed to a person within an indoor environment and the air nozzle simply seems to be an air inlet allowing a smoke filter to be attached. Such an argument is not found persuasive because Straus et al provides a teaching for capturing “airborne mycotoxin” to which animals or humans may be exposed in a building or house by drawing a portion of the environmental air, see examples. Further, par[014] indicates using a pumping apparatus 12 to draw a portion of the environmental air in and to separate and trap mycotoxins from the portion of the air 14. From this disclosure, clearly the pump apparatus agitates the air (at a 3-4 ft level) formulating air exposed to a person within an indoor environment. In the Dimitrievich device, the nozzle 19 would further agitate the air as the nozzle narrows and creates turbulence just by the narrowing nature of the nozzle. It is noted that “agitating air” with an “agitator” along with the air being “conditioned” are very broad recitations where any form of air agitation and conditioning such as drawing the air environment with a pump or through a nozzle at a person’s height level meets the claimed limitations of agitating and providing conditioned air. It is noted that the terminology of “conditioning” the air in the claims appears to also represent agitating the air since the air is merely moved and really not conditioned in the sense of adjusting humidity, temperature or filtering in accordance with the known meaning of conditioning air. Finally, Applicant argues that Dimitrievich is focused on drawing air past a chemical indicator and not capturing the chemical. It is noted that Dimitrievich do disclose capturing the chemical, even if temporarily, and further teach the ability to variably control the flow in order to improve the accuracy of taking air volumes and providing air sampling in wide ranges of air volume flow rate with-lower rates for gases and vapors and higher rates for dust and suspended solids. Therefore, one of ordinary skill in the art at the time of filing would have found it obvious to include the air booster/inducer 1 of Dimitrievich since it is taught that the air booster/inducer allows sampling for a large range of flow rates including as low as 0.1 lpm such that lower flow rates can be included such as gases and vapors as well as higher rates for dust and aerosols allowing the device to be used for a variety of chemicals to be sampled and to be able to control the flow rate and achieve better results.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The additional prior art cited on PTO-892 includes CN 208109484 which includes a dust sampling device having a stand with bottom base with wheels and an adjustable height, see fig. 1 and translation.
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.
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NF
Examiner
Art Unit 2855
/N.S.F/Examiner, Art Unit 2855
/LAURA MARTIN/SPE, Art Unit 2855