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
Claim(s) 2-22 is/are objected to because of the following informalities:
Claims 2-22 should each add a comma following their claim dependency
Appropriate correction is required.
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) 1-23 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.
Claim 1 recites the limitation “the first pathway configured to draw out moisture from the feed gas to produce moisture reduced feed gas” in Ln. 6-7 which deems the claim indefinite. The limitation recites the function of “draw[ing] out moisture from the feed gas” without reciting sufficient structure to perform the function. The term “pathway” in plain language only implies a tube type of structure, which is insufficient to perform the claimed function. Claiming the function as performed by a “pathway” is overly broad and leads to ambiguity as to the boundaries of the claim (see MPEP 2173.05(g)). The claim should be amended to specify a structure of or within the first pathway which performs the claimed function (e.g. separator 1704). Note that many of claims 2-8 and 16 recite sufficient structure for the first pathway which would overcome the present indefiniteness rejection.
Claim 1 recites the limitation “the second pathway configured to apply the drawn-out moisture to the produced oxygen enriched air to produce humidified oxygen enriched air” in Ln. 12-13 which deems the claim indefinite. The limitation recites the function of “apply[ing] the drawn-out moisture to the produced oxygen enriched air” without reciting sufficient structure to perform the function. The term “pathway” in plain language only implies a tube type of structure, which is insufficient to perform the claimed function. Claiming the function as performed by a “pathway” is overly broad and leads to ambiguity as to the boundaries of the claim (see MPEP 2173.05(g)). The claim should be amended to specify a structure of or within the second pathway which performs the claimed function (e.g. reservoir 1710). Note that claim 12 recites sufficient structure for the second pathway which would overcome the present indefiniteness rejection.
Claim 23 recites the limitation “an oxygen concentrator configured to remove moisture from a feed gas that is then applied to a gas adsorption process of the oxygen concentrator and to reapply the removed moisture to an oxygen enriched air that is accumulated from the gas” which deems the claim indefinite. The claim recites the functions of “remov[ing] moisture from a feed gas,” “then appl[ying the removed moisture] to a gas adsorption process of the oxygen concentrator,” and “reapply[ing] the removed moisture to an oxygen enriched air that is accumulated from the gas” without reciting sufficient structure to perform the functions. A conventional oxygen concentrator will not be expected to perform all of the claimed functions. Claiming the functions as only performed by a generic oxygen concentrator is thus overly broad and leads to ambiguity as to the boundaries of the claim (see MPEP 2173.05(g)). The claim should be amended to specify structures of the oxygen concentrator which perform the claimed functions.
Claim Interpretation - 35 USC § 112(f)
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.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
The corresponding structure of the “means for gas separation” is best understood from the specification as at least: canisters 302, 304 (¶0072 of the PGPub copy of the instant application).
The corresponding structure of the “means for feeding a feed gas into the means for gas separation” is best understood from the specification as at least: compression system 200 (¶0074 of the PGPub copy of the instant application).
The corresponding structure of the “accumulation means for receiving oxygen enriched air from the means for gas separation” is best understood from the specification as at least: accumulator 106 (¶0081 of the PGPub copy of the instant application).
The corresponding structure of the “dehumidifying means for removing moisture from the feed gas” is best understood from the specification as at least: moisture separation sub-system 1704 (¶¶0157-0160 of the PGPub copy of the instant application).
The corresponding structure of the “humidifying means for recycling the removed moisture to humidify the oxygen enriched air” is best understood from the specification as at least: moisture containment module 1710 (¶¶0157, 0161 of the PGPub copy of the instant application).
The corresponding structure of the “outlet means for providing the humidified oxygen enriched air to a user” is best understood from the specification as at least: outlet port 174 (¶0157 of the PGPub copy of the instant application).
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 102
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 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.
Claim(s) 23 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Spearman et al. (U.S. Pub. 2005/0072425).
Regarding claim 23, Spearman discloses an oxygen concentrator (Fig. 4; ¶0047) configured to remove moisture from a feed gas (¶0054 – moisture removed at water permeable membrane device 63) that is then applied to a gas adsorption process of the oxygen concentrator (¶¶0032, 0054 – adsorption bed 46) and to reapply the removed moisture to an oxygen enriched air that is accumulated from the gas adsorption process (¶0054 – humidifying at water permeable membrane device 63).
Claim(s) 24 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Connor et al. (U.S. Pub. 2002/0127442).
Regarding claim 24, Connor discloses a portable oxygen concentrator apparatus (Figs. 11-12; ¶¶0145-0156) comprising: means for gas separation (Fig. 11 #4; ¶0147); means for feeding a feed gas into the means for gas separation (Fig. 11 #11; ¶0147); accumulation means for receiving oxygen enriched air from the means for gas separation (Fig. 1 #612; ¶0149); dehumidifying means for removing moisture from the feed gas (Fig. 12 #642; ¶0156); humidifying means for recycling the removed moisture to humidify the oxygen enriched air (Fig. 12 #650; ¶0156); and outlet means for providing the humidified oxygen enriched air to a user (Fig. 12 #646; ¶¶0155-0156). A portion of feed air stream 606 passes to fuel cell 618 (Fig. 11; ¶0150) and then flow as exhaust stream 632 to cyclone separator 642 (Fig. 12; ¶0156). Thus, the cyclone separator 642 can be read as removing moisture from the feed gas.
Allowable Subject Matter
Claim(s) 1-22 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 1, the prior art fails to teach or suggest an oxygen concentrator including all elements and functionality recited by the instant claim. Attention is initially drawn to the 35 U.S.C. 112(b) rejections of the claim and their need for further structural definitions in regard to the first and second pathways. The claim generally requires the sequential receiving of a flow of a feed gas into the oxygen concentrator, where it is dehumidified in a first pathway and the moisture reduced feed gas is then passed through one or more sieve beds configured to produce oxygen enriched air, the oxygen enriched air is then received in an accumulator, a second pathway then receives the oxygen enriched air from the accumulator and applies the moisture drawn out in the first pathway to the oxygen enriched air, and a third pathway transfers the drawn-out moisture from the first pathway to the second pathway. The claim thus requires the distinct structures of a dehumidifier (i.e. in the first pathway), a rehumidifier (i.e. in the second pathway), and a structural connection to pass the moisture drawn out in the first pathway to the second pathway where the moisture can be reapplied.
Closest prior art to the instant claim include: Connor et al. (U.S. Pub. 2002/0127442), Spearman et al. (U.S. Pub. 2005/0072425), and Nitta et al. (WO Pub. 2015/015852 A1; citations from attached machine translation).
Connor teaches a PSA system in Fig. 11 (¶0147) and teaches sending an exhaust stream 632 from a fuel cell 618 to a cyclone separator 642 where water is separated out and then fed to a humidifier 650 where the water is vaporized and added to an oxygen enriched gas fed through first user supply line 614 (Fig. 12; ¶¶0155-0156). However, what is missing in Connor is a drawing out of moisture before producing the oxygen enriched gas. Instead Connor splits feed air between PSA device 4 and conduit 660, which leads to fuel cell 618 (Fig. 11). Thus, while Connor teaches dehumidifying a feed gas and then humidifying an oxygen enriched gas with the drawn-out moisture Connor fails to teach or suggest the drawing out of moisture occurring at the required location within the system. And based at least upon how Connor intends a portion of light product stream 608 to also be fed into the fuel cell 618 (Fig. 11; ¶0150) one of ordinary skill in the art would not have been motivated to move the location of dehumidifying to upstream of the PSA device 4.
Spearman teaches an oxygen humidifier (Figs. 3-4) including configurations where a feed gas is dehumidified in membrane device 63 before an oxygen enriched gas is later humidified in the membrane device 63 with moisture previously drawn out (e.g. Fig. 4; ¶0047). However, Spearman at least fails to teach or suggest the required third pathway of the claim which transfers the drawn-out moisture from the first pathway to the second pathway. In Spearman all moisture removal and application occurs within membrane device 63 (Fig. 4; or membrane device 81 in Fig. 3). The transfer of moisture in Spearman is direct between the first pathway and the second pathway without need for any intermediary third pathway (e.g. Fig. 3A; ¶0046). The device of Spearman could not be modified in order to include the required third pathway without a complete change in technology which would replace membrane device 63 or membrane device 81.
Similar to Spearman, Nitta teaches an oxygen concentration device where a dehumidifying / humidifying unit 11 performs both the functions of dehumidifying and humidifying by way of membrane 11c (Fig. 1; Pg. 3-4). Nitta at least fails to teach or suggest the required third pathway of the claim which transfers the drawn-out moisture from the first pathway to the second pathway. In Nitta all moisture removal and application occurs within dehumidifying / humidifying unit 11 (Fig. 1). The transfer of moisture in Nitta is direct between the dehumidifying mechanism 11a and the humidifying mechanism 11b without need for any intermediary third pathway (e.g. Fig. 1; Pg. 3-4). The device of Nitta could not be modified in order to include the required third pathway without a complete change in technology which would replace dehumidifying / humidifying unit 11.
It is thus found that one having ordinary skill in the art at the time of the effective filing of the invention would only have arrived at the instantly claimed invention by way of improper hindsight reasoning.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure, see PTO-892 for additional attached references.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JOSEPH D BOECKER whose telephone number is (571)270-0376. The examiner can normally be reached M-F 9:00 AM - 4:00 PM.
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/JOSEPH D. BOECKER/Primary Examiner, Art Unit 3785