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 .
Response to Arguments
Applicant’s arguments with respect to claim(s) 10, 12, 14, 16 have been considered but are moot because the new ground of rejection does not rely on the combination of references/or references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Specifically, the Applicant has amended the claims to make the cylindrical member side wall that is straight from a cylindrical member lower end through an upper extent of the cylindrical member that is within the raw material container, such that the scope of the claims has changed, thus requiring further search and consideration. The resulting rejection, based on JP Patent No. 6987481 to 織田 容征 (PCT/JP2020/001477, United States Patent Application No. 2022/0203390 to Orita et al relied upon as the English Language equivalent thereof, hereinafter referred to as Orita) in view of United States Patent Application No. 2018/0097073 to Oda et al is presented below.
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.
Claims 10 and 30 are rejected under 35 U.S.C. 103 as being unpatentable over JP Patent No. 6987481 to 織田 容征 (PCT/JP2020/001477, United States Patent Application No. 2022/0203390 to Orita et al relied upon as the English Language equivalent thereof, hereinafter referred to as Orita) in view of United States Patent Application No. 2018/0097073 to Oda et al.
In regards to Claim 10, Orita teaches an atomizing apparatus Fig. 1 for film formation [0003], comprising: a raw-material container 12 configured to accommodate a raw-material solution 15 , the raw-material container including a raw-material container side wall that extends vertically and a raw-material container bottom; a cylindrical member 3 including a cylindrical member side wall 3A and a cylindrical member lower end (bottom of 3A), wherein the cylindrical member is configured to spatially connect inside of the raw-material container to an outer unit (MT/ mist outside [0002-0004], and is disposed such that the cylindrical member lower end of the cylindrical member does not touch a liquid surface of the raw-material solution in the raw-material container (as shown in Fig. 1); an ultrasound generator 2 having at least one ultrasound generation source configured to emit ultrasound (as there are two); and a liquid tank (water tank 10) where the ultrasound propagates to the raw-material solution through a middle solution (water), wherein a side wall of the raw material container and a side wall of the cylindrical member both extend vertically (see vertical alignment), an intersection between a center line of an ultrasound-emitting surface of the ultrasound generation source and a plane containing an outer-most side wall surface of the cylindrical member and an extension of the outer-most side wall surface of the cylindrical member is below a lower end point of the cylindrical member (as it intersects with 3B), and the center line reaches intersects a vertically extending portion of the raw-material container side wall of the raw material container that extends vertically (as it would intersect with the vertical planes of the vertical sidewalls of 12, the ultrasonic planes of 22 being angled).
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Orita does not expressly teach the cylindrical member has a cylindrical side wall that is straight from a cylindrical member lower end through an upper extent of the cylindrical member that is within the raw material container but does expressly that the cylindrical member lower end is free, as shown above.
Oda teaches a cylindrical member 4/mist generator Fig. 5 in an ultrasonic semiconductor processing apparatus Fig. 5, where the shape of the cylindrical member only has vertical cylindrical walls [0116-0230].
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It has been held that change of shape is generally recognized as being within the skill of one of ordinary skill in the art. It is noted that Applicant has not made any showing of criticality in the shape of the cylindrical member that would tend to point toward the non-obviousness of freely selecting a cylindrical member with only vertical walls, thus fulfilling the claimed invention. In re Dailey, 357 F.2d 669, 149 USPQ 47 (CCPA 1966). See MPEP 2144.04 IV B.
In regard to Claim 30, Orita in view of Oda teach that the cylindrical member terminates at the cylindrical member lower end, as the final shape of Orita in view of Oda is a straight wall cylindrical member, as per the rejection of Claim 10 above.
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.
Claims 12, 14, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over JP Patent No. 6987481 to 織田 容征 (PCT/JP2020/001477, United States Patent Application No. 2022/0203390 to Orita et al relied upon as the English Language equivalent thereof, hereinafter referred to as Orita) in view of United States Patent Application No. 2018/0097073 to Oda et al, as applied to Claim 10 above, and in further view of United States Patent Application No. 2008/0223953 to Tomona et al.
In regard to Claims 12, 14, and 16, Orita teaches a height H15 of 30-40 mm [0065].
Orita in view of Oda teaches the ultrasound sources are angled but does not expressly teach a distance between the intersection and the lower end point is 10 mm or more or 25 mm or more.
Tomona teaches a mist generating device which creates atomized fine particles Fig. 1-4 and 14 comprising a raw material container 20 configured to accommodate a raw material solution Liq2(WA), a cylindrical member 29 configured to spatially connect inside the raw material container to an outer unit (83, more specifically shown in Fig. 4), and disposed to that a lower end of the cylindrical member does not touch a liquid surface of the raw material solution in the raw material container (as shown in Fig. 1-4) and an ultrasonic transducer 40 Fig. 1/an ultrasound generator having at least one ultrasound generation source 43 (power) and a liquid tank 19 where the ultrasound propagates to the raw material solution through a middle solution Liq1(W) [0044-0053], provided that a center line of an ultrasound emitting surface of the ultrasound generation source is designated as u and is provided such that an intersection P between the center line u and a plane containing a sidewall surface of the cylindrical member 27 is located below a lower end point B of the cylindrical member [0039-0272], the ultrasound generation source is provided such that the center line u reaches a side wall of the raw-material container, as shown in the annotated copy of Fig. 1 below
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Tomona further teaches that 27 is connected to the dispersed liquid collecting mechanism so that liquid that hasn’t been atomized can be trapped and returned to be atomized again, thus atomizing the liquid effectively [0223-0229], and it creates ultrasonic atomization efficiency to increase [0019-0021].
Tomona teaches the ultrasound generation source is provided such that a distance between the intersection P and the lower end point B is 10 mm or more, as the distance of Dc is 2 cm, or 20 mm [0216] or 5 cm, 50 mm [0217] or that the ultrasound generation source is provided such that a distance between the intersection P and the lower end point B is 10 mm or more, as the distance of Dc is 5 cm, 50 mm [0217], such that the distance is 25 mm or more as Tomona teaches that the ultrasonic wave is reflected with an angle adjustment mirror lens 25 [0129], the angle being adjusted so that the amount of atomization can be changed, which also adjusts implicitly the distance of the intersection points and the lower ends of the cylinder (as the angle changes the center line), such that it is a result effective variable to change the angle and thus the centerline for the ultrasonic source.
It has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. As the teachings of Orita in view of Oda and in further view of Tomona expressly teach the ranges of the angles (and thus the distances as claimed which are dependent on the angle of the centerline) as taught are result effective variables for the amount of atomization such that the optimization is known within prior art conditions or through routine experimentation, with an articulated rationale supporting the rejection, changing the ranges is considered obvious to one of ordinary skill in the art before the effective filing date.
See MPEP 2144.05 II. A, B. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955); In re Hoeschele, 406 F.2d 1403, 160 USPQ 809 (CCPA 1969); Merck & Co. Inc. v. Biocraft Lab. Inc., 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir.), cert. denied, 493 U.S. 975 (1989); In re Kulling, 897 F.2d 1147, 14 USPQ2d 1056 (Fed. Cir. 1990); and In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997); Smith v. Nichols, 88 U.S. 112, 118-19 (1874); In re Williams, 36 F.2d 436, 438 (CCPA 1929); KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
The Examiner notes that this application of Tomona to Orita in view of Oda is only for the angle of which the ultrasonic waves are applied to the raw material liquid. As such, all aspects of Orita in view of Oda remain while changing the direction of the ultrasonic source angle would change, which would change the centerline and thus a distance between the intersection and the lower end point, which have distances of above 10/25 mm in the teachings of Tomona already. Thus, modifying the angle as a result effective variable to optimize the atomization, would through routine optimization, implicitly form above 10-25 mm.
The resulting apparatus fulfills the limitations of the claims.
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 TIFFANY Z NUCKOLS whose telephone number is (571)270-7377. The examiner can normally be reached M-F 10AM-7PM.
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/TIFFANY Z NUCKOLS/Examiner, Art Unit 1716
/Jeffrie R Lund/Primary Examiner, Art Unit 1716
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