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 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.
Claims 1, 3, 6, 9-14, 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Garces et al [US 2021/0037839A1] in view of Scheja et al [US 2018/0283707A1], Wei et al [US 2019/0117815A1], Garces et al [US 2021/0037840A1], and Higgins et al [US 6,808,777B1].
Garces et al (‘839) teach a system and method for identifying an emissions control failure in an indoor smoker (title) comprising a cabinet with a discharge vent (Figure 1, #102; Figure 3, #202), a smoking chamber with an outlet (Figure 3, #120, 200), an exhaust duct connecting the outlet and vent (Figure 3, #204), an air handler for removing gas and smoke (Figure 3, #172), a catalytic converter including an element and heater within the exhaust duct (Figure 3, #210, 212, 214), an air quality monitoring system including a second air quality sensor located in the duct and in thermal communication with the catalytic element (Figure 3, #216), a first air quality sensor located upstream of the catalytic element and in the same room as the overall device (Figure 3, #192, 194), locating the first sensor at any suitable location (paragraph 0038), a controller in operative communication with the air quality monitoring system (Figure 1, #140; paragraph 0045), the measured catalyst temperature being indicative of the amount of VOC’s or emissions that may be removed from the flow of smoke (paragraph 0046), determining that an emissions control failure has occurred based upon the measured air quality (Figure 5, #330), stopping the flow of smoke if a failure has occurred (Figure 5, #340), the sensor located between the catalytic element and air handler (paragraph 0046), determining that the air quality falls below a predetermined threshold (paragraph 0050, 0054-0055), a smoldering heater for combustible material (Figure 3, #162, 176), turning off the smoldering heater if a failure occurs (paragraph 0056), an exhaust damper which stops smoke flow and seals the chamber if a failure occurs (paragraph 0056), and providing a user notification on a display or remote user device if a failure occurs (Figure 5, #350).
Garces et al (‘839) do not explicitly recite measuring CO/formaldehyde/VOC and the catalytic heater located above the catalytic element (claim 1, 14), the damper pivoting on a horizontal axis to prevent smoke from flowing into the exhaust duct (claim 1, 14), the first sensor located between the catalytic heater and element (claim 6), an optical smoke sensor (claim 9), and adjusting the air handler if a failure occurs (claim 10).
Scheja et al teach a gas filtration system (title) comprising an air pollution source from cooking or smoking (paragraph 0002), the desire to remove VOCs such as formaldehyde from the air (paragraph 0004-0005), using a thermal catalytic filter and heat source (paragraph 0031), a catalytic element and heater (Figure 4, #16, 18), a first formaldehyde sensor before the catalytic element (Figure 4, #10; paragraph 0055), a second formaldehyde sensor (Figure 4, #11), a controller for collecting, analyzing, and storing sensor information (Figure 4, #24), measuring the one-pass efficiency of the catalyst by placing sensors before and after the catalyst to indicate the status of the catalyst and recommend replacement (paragraph 0110), examples of VOC sensors such as photo-ionization detector (PID), metal-oxide semiconductors (MOX), and electromechanical sensors (paragraph 0120); and an external device such as a smart phone (paragraph 0125).
Wei teaches an air purifier system comprising an air purifier device including a catalytic converter (Figure 1, #50; paragraph 0033), the air purifier placed in a room of a house, office building, or the like (paragraph 0033), the air purifier removing pollutants such as particulate matter, formaldehyde, and/or VOCs (paragraph 0033), a stand-alone sensor device located remotely in the same room as the air-purifier (Figure 1, #20), and the sensors including a particulate matter sensor, a VOC sensor, and/or a formaldehyde sensor (Figure 1, #21, 23; paragraph 0035).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed sensor locations and measuring of CO/formaldehyde/VOC into the invention of Garces et al (‘839), in view of Scheja et al and Wei et al, since all are directed to systems for cleaning air, since Garces et al (‘839) already included first and second temperature sensors (Figure 3, #192, 216) and determining if an emissions control failure has occurred (Figure 5, #330); since exhaust cleaning systems commonly included a first formaldehyde sensor (Figure 4, #10; paragraph 0055), a second formaldehyde sensor (Figure 4, #11) and measuring the one-pass efficiency of the catalyst by placing sensors before and after the catalyst to indicate the status of the catalyst and recommend replacement (paragraph 0110) as shown by Scheja et al; since air cleaning systems commonly included an air purifier device including a catalytic converter (Figure 1, #50; paragraph 0033), the air purifier placed in a room of a house, office building, or the like (paragraph 0033), the air purifier removing pollutants such as particulate matter, formaldehyde, and/or VOCs (paragraph 0033), a stand-alone sensor device located remotely in the same room (Figure 1, #20), and the sensors including a particulate matter sensor, a VOC sensor, and/or a formaldehyde sensor (Figure 1, #21, 23; paragraph 0035) as shown by Wei et al; since using VOC sensors before and after the catalytic element would have better ensured that the exhausted gas was within safe limits for air quality in the system of Garces et al (‘839) and ensured that the catalytic element of Garces et al was operating effectively, since the system of Garces et al (‘839) already monitored for failures of the catalytic heat element and air handler which could cause unsafe environmental conditions for people in the room, since monitoring room air quality as well as the smoke leaving the smoker device would have provided a more accurate and precise control over the amount of pollutants which people in the rom are exposed to, since direct measurement of VOCs before and after the catalytic element would have also indicated if the catalytic element was malfunctioning or needed replacement in the system of Garces et al (‘839), in view of Scheja et al and Wei et al, and thus ensured that safe operating conditions were present for all people in the room.
It further would have been obvious to one of ordinary skill in the art to incorporate the claimed air handler adjustment into the invention of Garces et al (‘839) since Garces et al (‘839) already disclosed stopping the flow of smoke if a failure occurs (Figure 5, #340) as well as an air handler for exhausting air and smoke (Figure 3, #172), since stopping the air handler would have prevented harmful smoke and contaminants from leaving the device, and since the substitution of one known solution for another would have yielded predictable results to one of ordinary skill in the art.
It further would have been obvious to one of ordinary skill in the art to incorporate the claimed optical sensor into the invention of Garces et al (‘839), in view of Scheja et al and Wei et al, since all are directed to air cleaning systems, since Garces et al (‘839) already included an air quality monitoring system including a second air quality sensor in thermal communication with the catalytic element (Figure 3, #216), since indoor air purifying systems commonly included an optical particulate matter sensor such as a PM2.5 sensor (Figure 1, #21, 23; paragraph 0035) as shown by Wei et al, since air cleaning systems commonly included VOC sensors such as photo-ionization detector (PID) as shown by Scheja et al, since an optical sensor would effectively detect smoke particles in the exhaust gas of Garces et al (‘839), and since detection of smoke particles would permit the system of Garces et al (‘839) to stop operations and prevent emission of harmful smoke into the room.
Garces et al (‘840) teaches an indoor smoker (title) comprising an exhaust duct with a catalytic heater positioned vertically above a catalytic element (Figure 5, #184, 194, 192).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed vertically oriented catalytic heater and element into the invention of Garces et al (‘839), in view of Garces et al (‘840), since both are directed to indoor smoking systems, since Garces et al (‘839) already included an exhaust duct with a catalytic heater and element (Figure 3, #210, 212, 214), since indoor smokers commonly included an exhaust duct with a catalytic heater positioned vertically above a catalytic element (Figure 5, #184, 194, 192) as shown by Garces et al (‘840), since the substitution of one known element (ie vertical orientation) for another (ie horizontal orientation) would have yielded predictable results to one of ordinary skill in the art, and since a vertical orientation would enable a shorter device which would more easily fit on a countertop below kitchen cabinets.
Higgins et al teach a smoker apparatus (title) comprising a cabinet with a discharge vent (Figure 4, #100, 20), a smoking chamber (Figure 3, #16), an exhaust duct connected to the discharge vent (Figure 4, #22, 20), and an exhaust damper located at the chamber outlet and pivoting on a horizontal axis to stop smoke flow from entering the exhaust duct (Figure 3-4, #17, 22).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed horizontal pivot into the invention of Garces et al (‘839), in view of Higgins et al, since both are directed to smoking systems, since Garces et al (‘839) already included an exhaust damper which stops smoke flow from the chamber if a failure occurs (paragraph 0056), since smoking systems commonly used horizontally pivoting dampers to prevent smoke flow into the exhaust duct (Figure 3, #17) as shown by Higgins et al, since holding gas and smoke in the chamber would have prevented the discharge of potentially harmful chemicals into the surrounding room, and since horizontal pivoting would have enabled safe and efficient closing of the exhaust duct of Garces et al (‘839).
In conclusion, all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 3, 6, 9-14, 18-20 (particularly claim 1) are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 (particularly claim 8) of US Pat. No. 12,543,745 in view of Garces et al (‘839), Garces et al (‘840), Higgins et al. The ‘745 patent does not claim determining an emission control failure and stopping smoke flow, the catalytic heater above the element, and a horizontal axis exhaust damper. Garces et al (‘839), Garces et al (‘840), Higgins et al teach the above mentioned concepts and components. It would have been obvious to one of ordinary skill in the art to incorporate the claimed failure determination, smoke flow stop, and horizontal pivot exhaust damper into the invention of ‘745, in view of Garces et al (‘839), Higgins et al, and Garces et al (‘840), since all are directed to systems for smoking and/or cleaning exhaust gases, since ‘745 already included a smoke sensor and controller for detecting VOC in the exhaust gas and adjusting operation of the catalyst heater (claim 8), since exhaust cleaning systems commonly included determining that an emissions control failure has occurred based upon the measured air quality (Figure 5, #330) and stopping the flow of smoke if a failure has occurred (Figure 5, #340) as shown by Garces et al (‘839), since indoor smokers also commonly included an exhaust duct with a catalytic heater positioned vertically above a catalytic element (Figure 5, #184, 194, 192) as shown by Garces et al (‘840), since smoker systems commonly included horizontally pivoting exhaust dampers to prevent smoke flow into the exhaust duct (Figure 3, #17) as shown by Higgins et al, since excess smoke/VOC/CO and a lack of reduction of these gases would be an indication of a catalyst failure in the system of ‘745, since stopping the flow of gas would prevent potentially harmful compounds from being exhausted into the room, and since a vertical arrangement of the catalytic heater and element would have enabled a more compact and convenient size of the device of ‘745, in view of Garces et al (‘839), Higgins et al, and Garces et al (‘840).
Response to Arguments
Applicant's arguments filed 6/22/26 have been fully considered but they are not persuasive.
Applicant argues that the references do not disclose a damper at the chamber outlet. However, Higgins et al teach an exhaust duct connected to the discharge vent (Figure 4, #22, 20), and an exhaust damper located at the chamber outlet and pivoting on a horizontal axis to stop smoke flow from entering the exhaust duct (Figure 3-4, #17, 22).
It would have been obvious to one of ordinary skill in the art to incorporate the claimed horizontal pivot into the invention of Garces et al (‘839), in view of Higgins et al, since both are directed to smoking systems, since Garces et al (‘839) already included an exhaust damper which stops smoke flow from the chamber if a failure occurs (paragraph 0056), since smoking systems commonly used horizontally pivoting dampers to prevent smoke flow into the exhaust duct (Figure 3, #17) as shown by Higgins et al, since holding gas and smoke in the chamber would have prevented the discharge of potentially harmful chemicals into the surrounding room, and since horizontal pivoting would have enabled safe and efficient closing of the exhaust duct of Garces et al (‘839).
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the smoke being motionless in the chamber) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Carballo et al disclose a food smoker with a downward smoke flow through a catalytic heater and element (Figure 5, #192, 194).
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 DREW E BECKER whose telephone number is (571)272-1396. The examiner can normally be reached 8am-5pm Monday-Friday.
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/DREW E BECKER/Primary Examiner, Art Unit 1792
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