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 .
Election/Restrictions
Applicant's election with traverse of Species 1a in the reply filed on 5/5/26 is acknowledged. The traversal is on the ground(s) that the finding that the technical feature of claim 1 is not a special technical features is incorrect because PRADEL does not teach the aeration device is configurable with respect to a discharge of gas in the ways stated in the specification. This is not found persuasive because PRADEL does disclose configuring the aeration device to scale for different volumes by varying the number of gas outlet openings or the area of the openings (0043) which meets the claim limitation of “the aeration device is configurable with respect to a predetermined discharge of gas via the outlet ports” under broadest reasonable interpretation. Applicant’s arguments that PRADEL fails to teach the gas flow is adjustable at the sparger, for example by blocking some of the openings in the sparger are directed to a narrower embodiment of the invention and therefore are not commensurate in scope with the current claims.
The requirement is still deemed proper and is therefore made FINAL.
Claims 12-19 and 21-28 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 5/5/26.
Claims 29-32 withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 11/11/25.
Claims 1-33 are currently pending, claims 12-19, 21-32 are withdrawn.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 3/2/23 and 10/28/22 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the embodiment that results from including all the claimed “and” alternative limitations must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 8, 16, 28 objected to because of the following informalities: the claims all include typographical errors in punctuating with double commas. Appropriate correction is required.
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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: Adjusting mechanism in claim 3, closing element in claim 4, and electronic control unit in claim 20.
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.
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.
Adjusting mechanism in claim 3, closing element in claim 4, and electronic control unit in claim 20 have been interpreted under 35 U.S.C. 112(f) as stated above.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 5 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Claims 5 recites various limitations of the closing element in an alternative “and/or” fashion. However, the specification does not provide any support for an embodiment which includes all the claimed limitations together (i.e. no support for using “and” between limitations). While the specification as filed does provide support for the list of alternative limitations, it states “In various embodiments the closing element”. Therefore the current specification merely provides support for some combination of the claimed closing element limitations, but does not provide embodiments for all of the different permutations of elements encompassed by the “and/or” language. Applicant should correct the claim to only include limitations joined by “and” that have a supporting embodiment in the current specification, or to change the alternative language to solely “or” or “at least one of the following group:”.
Claim 20 limitation “electronic control unit” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. There is no definition of what structures form the electronic control unit in either the specification or drawings as filed. Therefore, the claim is fails to comply with the written description requirement and is rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
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 2, 5-6, 8-9, and 11 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.
Claim 8 recites the limitation "the first type and the second type of gas outlet ports" in line4-5. There is insufficient antecedent basis for this limitation in the claim.
Regarding claims 2, 5, 6, 8, 9, the claims exhibit multiple uses of the terms “and/or” which renders the scope of the claims unclear as the alternatives create numerous possible permutations of the device such that the meets and bounds of applicant’s invention cannot be clearly determined. The and/or limitations should be removed or covered in dependent claims.
Regarding claim 11, the claim limitation appears to be missing words or otherwise contains typos such that it renders the claim unclear. The limitation “in one adjusting position of the closing element it releases discharge opening which are associated with one or more other aeration channels than in another adjusting position of the closing element” does not provide context what is being compared by the term “than”. It cannot be determined if the claim is meant to recite more than, less than, different than or another comparison term and therefore the claim is indefinite.
Claim 20 limitation “electronic control unit” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. There is no definition of what structures form the electronic control unit in either the specification or drawings as filed. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
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 (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.
Claim(s) 1, 2, 33 is/are rejected under 35 U.S.C. 102a1 as being anticipated by PRADEL (US 2012/0313267).
Regarding claim 1, PRADEL discloses an aeration device for bioreactors comprising:
housing 2, wherein the housing comprises one or more aeration channels in its interior 7, 8,
wherein the housing further comprises one or more gas inlet ports for introducing a gas into at least one aeration channel of the housing 21, 24 respectively connected to 7 and 8,
wherein the housing further comprises a plurality of gas outlet openings in aeration ring 14 and gas outlet openings 36 in aeration element 3, in which gas can be discharged from the respective aeration channels 7, 8, to the outside of the aeration device (Figs 2-3, 0036-0039) and configuring the aeration device to scale for different volumes by varying the number of gas outlet openings or the area of the openings (0043) (aeration device is configurable with respect to a predetermined discharge of gas via the gas outlet ports).
Regarding claim 2, PRADEL discloses the gas outlet openings in a first aeration element having openings of greater than 0.1mm in diameter and openings in a second aeration element with openings of less than 0.1mm in diameter (0015-17), these prior art ranges are within the claimed ranges of a diameter of at least 0.005mm and/or a diameter of at most 0.2mm.
Regarding claim 33, PRADEL discloses a bioreactor 25 (bioprocessing installation comprising a container) accommodating a liquid medium 37 and an aeration device according to claim 1 as rejected above (Fig 6, 0044).
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(s) 3-11, 20 is/are rejected under 35 U.S.C. 103 as being unpatentable over PRADEL (US 2012/0313267) in view of KRAULING (US 5166072).
Regarding claim 3-5, “adjusting mechanism” has been interpreted under 35 USC 112f as stated above, the term interpreted to mean a “moveable closing element” [Spec 0119] which is interpreted itself as a slider or flap [Spec 0092, 0102]; or to mean control valves [Spec 0122] and functional equivalents of either.
PRADEL discloses configuring the aeration device to scale for different volumes by varying the number of gas outlet openings or the area of the openings (0043) but does not explicitly disclose the device has an adjusting mechanism that by the adjusting mechanism the discharge of gas via the outlet ports is adjustable.
However, KRAULING discloses an apparatus for the cultivation of microorganisms (bioprocessing installation) comprising a gas distributor (aeration device) having ring pipes 4 (housing with one or more aeration channels), the pipes having inlets for gas from the main gas pipe 7 (see area at container wall between 8 and 3 or 4), the pipes further comprising bores 5 (gas outlet ports) from which gas can be discharged from the pipes (channels) and the device has regulating valves (adjusting mechanisms, valves inherently function via a flap, rotary or linear slider or functional equivalent thereof) that are controlled so that the desired gassing is produced (configurable with respect to a predetermined discharge of gas via the gas outlets, in that by the adjusting mechanism the discharge of gas from the outlet ports is adjustable) (Claims 1-3, fig 1, Col. 3, line 7-22).
It would have been obvious to one of ordinary skill in the art at the time the invention was filed to modify the aeration device of PRADEL to include the adjusting mechanism of valves as taught by KRAULING because it allows for control of gas through the gas pipe inlets such that they can be sequentially turned on and off to feed the gas to the segments of gas pipes to cause the desired flow (Claims 1-3, Col. 3, line 7-22).
Regarding claim 6, KRAULING discloses the valves 8 are for completely blocking the fluid communication of the aeration channels to outside the device and are positioned completely offset of the discharge openings (Fig 1).
Regarding claim 7-8, KRAULING discloses that one or more other segments 3 of ring pipes 4 (aeration channels) cannot be affected by the valve 8 (closing element) of the other, and are in permanent fluid communication with only one type of gas outlet port and given each separate segment of gas distributor 3 can be controlled (released and blocked) by its own valve 8 (closing element) that does not affect the other segments (Fig 1, 2, Col. 3, line 7-22).
Regarding claim 9-11, KRAULING discloses control of each valve 8 (adjusting mechanism, closing element) which means each valve can be positioned to block or release certain flow to gas outlets or discharge openings that are not blocked or are not released in another position.
Regarding claim 20, KRAULING discloses the valves are controlled through a central regulating unit 19 (electronic control unit) for desired gassing patterns to be produced (Col. 3, lines 7-22, Fig 1).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See additional references cited on the attached PTO 892 that provide references that describe the state of the art of applicant’s endeavor.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIELLE B HENKEL whose telephone number is (571)270-5505. The examiner can normally be reached M-Th 11-7 EST, Alt. Fridays.
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.
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/DANIELLE B HENKEL/Examiner, Art Unit 1799
/William H. Beisner/Primary Examiner, Art Unit 1799
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