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 .
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.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 4 December 2025 has been entered.
Amendments
Applicant’s amendments to the claim 1 and cancellation of claims 15 and 16 in the reply filed 4 December 2025 are acknowledged; the amended claim set has been considered for this Action.
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.
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.
Claims 1-3, 6-14, 17-18, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Isaac et al. (US PG Pub 2014/0193522 A1) in view of Taguchi et al. (US PG Pub 2013/0034473 A1), Huber (“The Relation of Rate of Stirring to Rate of Reaction,” PhD Thesis, Johns Hopkins University, 1925), and Pu et al. (US 2003/0118503 A1).
Regarding claim 1, Isaac teaches a method of producing a gas (methods for producing chlorine dioxide gas, abstract), the method comprising: mixing dry particles comprising a precursor (diatomaceous earth impregnated with sodium chlorite, paragraph 38) and dry particles comprising a proton-generating species (citric acid or sodium bisulfate, paragraph 38) for an amount of time to produce the gas (0-48 hours, Table 2); wherein the dry precursor particles comprise a chlorine dioxide precursor (sodium chlorite, paragraph 38) and the gas comprises chlorine dioxide (paragraph 38-39); and wherein when the gas is chlorine dioxide 92% of the precursor is converted to the gas (Table 6), which meets the claim limitation of 80% or more of the precursor being converted to the gas.
Isaac does not teach dynamically mixing the dry particles, the dry particles comprising the precursor or the dry particles comprising the proton-generating species being provided continuously, the gas being produced at a rate that is controlled by the mixing rate, or controlling the rate at which the gas is generated by adding the dry particles comprising the precursor or the dry particles comprising the proton-generating species continuously.
However, Taguchi teaches dynamically mixing dry particles comprising a precursor (stirring to stir up the solid sodium chlorite, paragraph 51) in order to increase the contact between said particles and the proton source, which in the case of Taguchi was water vapor (the efficiency with which the solid chlorite contacts the moisture; paragraph 51).
Furthermore, Huber teaches that it well known that stirring has been used to accelerate chemical reactions (“Historical”, paragraph 1, page 5). Huber further provides examples that include heterogenous reactions (e.g., hydrogenation, wherein a gas, a liquid, and a heavy metal powder must be brought together; page 7, paragraph 4) and teaches that reaction rate (y-axis) can be controlled by the mixing rate (rate of stirring, x-axis; Figures 1 and 2, pages 8 and 12).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to combine the general method of Isaac with the dynamic mixing (stirring) taught by Taguchi in order to control rate, as taught by Huber. One of ordinary skill in the art would have been motivated to do so because Isaac teaches that the rate of reaction can be controlled by any factor capable of controlling the influx of humidity (paragraph 31), which indicates a desire to control the rate, and Taguchi teaches that stirring is one factor that controls the contact with moisture (paragraph 51), and will therefore control the rate, as is desirable. Huber shows that stirring can provide control of reaction rate by control of stirring rate, and the combination of Huber with Isaac and Taguchi provides the predictable result of controlling reaction rate in this method.
Regarding providing the particles continuously, Pu teaches an analogous method for the production of chlorine dioxide from a precursor and a proton-generating species ([0001]-[0003]), and further teaches that the continuous addition of a precursor (chlorate) and a proton-generating species (acid) allows for the steady state conditions in the generator (chlorate and acid are added continuously to maintain steady state conditions; [0003]). Pu goes on to teach that the amount of these species present (acid normality and chlorate molarity; [0005]) and the rate at which they are provided (flow rate) can control the production rate of chlorine dioxide (modifying the initial set points of all said flows in accordance with the changed target production rate; [0017]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify the method of Isaac to provide the dry particles comprising the precursor and the dry particles comprising the proton-generating species continuously over the course of the reaction, as taught by Pu, where the reaction is taking place over the amount of time that the dry particles comprising the precursor and dry particles comprising the proton-generating species are dynamically mixed. It would have been further obvious to control the rate of gas production by said continuous providing, as taught by Pu. One of ordinary skill in the art would have been motivated to do so in order to maintain a steady production of chlorine dioxide, as taught by Pu, and to control the production rate of chlorine dioxide, which is a goal mentioned by Isaac (paragraph 31).
Furthermore, it is noted that the courts have held that continuous operations are obvious in light of a batch process in the prior art. In re Dilnot, 319 F.2d 188, 138 USPQ 248 (CCPA 1963). MPEP 2144.04(V)(E). Therefore, in view of Isaac and Taguchi teaching a batch process with dynamic mixing (stirring), it would have also been obvious to provide the dry particles comprising the precursor continuously over the course of the reaction, which is the amount of time that the dry particles comprising the precursor and dry particles comprising the proton-generating species are dynamically mixed, and/or to provide the dry particles comprising the proton-generating species continuously over this same time.
Additionally, it is well known in the art that for nearly all reactions the rate at which product is produced is related to the amount of reactants present, and therefore reaction rate can be controlled by the amount of reactants present, including by changing the rate at which they are provided in a continuous process.
Regarding claim 2, modified Isaac teaches the method of claim 1, as analyzed above, and Isaac further teaches the gas being chlorine dioxide (paragraph 38-39).
Regarding claim 3, modified Isaac teaches the method of claim 2, as analyzed above, and Issac further teaches the chlorine dioxide precursor being a metal chlorite (sodium chlorite, paragraph 38).
Regarding claim 6, modified Isaac teaches the method of claim 1, as analyzed above, and Isaac further teaches the dry particles comprising the precursor further comprising the porous carrier of diatomaceous earth and the precursor impregnated in the porous carrier (diatomaceous earth impregnated with sodium chlorite, paragraph 38).
Regarding claim 7, modified Isaac teaches the method of claim 1, as analyzed above, and Isaac further teaches the dry particles comprising the precursor including 5% by weight of the precursor (the final concentration of sodium chlorite in the impregnate was 5% by weight, paragraph 38), which falls within the claim limitations of from 1% to 50% by weight of the precursor.
Regarding claim 8, modified Isaac teaches the method of claim 1, as analyzed above, and Isaac further teaches the proton-generating species comprising the organic acid of citric acid (paragraph 38).
Regarding claim 9, modified Isaac teaches the method of claim 1, as analyzed above, and Isaac further teaches the proton-generating species comprising the metal salt of sodium bisulfate (paragraph 38).
Regarding claim 10, modified Isaac teaches the method of claim 1, as analyzed above, and Taguchi further teaches the particles being mixed with a rotary mixer or a vibratory mixer (a device may be provided which regularly or irregularly rotates or moves the cartridge itself using a vibration device (vibrator) or a motor (rotating device), paragraph 51).
Regarding claim 11, modified Isaac teaches the method of claim 1, as analyzed above, and Taguchi further teaches the particles being mixed with a rotary mixer (a device may be provided which regularly or irregularly rotates … the cartridge itself using a …motor (rotating device), paragraph 51). Neither Isaac nor Taguchi teach the specific mixing rate being in the claimed range of from 1 revolution per day to 100 revolutions per minute.
However, Huber teaches that the gas producing rate (reaction rate) is a variable that can be modified by adjusting mixing (stirring) rate (rate of reaction is approximately a linear function with speed of stirring; p. 6, paragraph 2). Therefore, the precise mixing rate would have been considered a result effective variable for controlling reaction rate by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed range cannot be considered critical.
Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the mixing rate in the modified method of Isaac to obtain the desired gas producing rate. The courts have found that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05 II.
Therefore, the claimed ranges of mixing rate merely represent an obvious variant and/or routine optimization of the values of the cited prior art.
Regarding claim 12, modified Isaac teaches the method of claim 1, as analyzed above, and Taguchi further teaches the particles being mixed with a vibratory mixer (a device may be provided which regularly or irregularly … moves the cartridge itself using a vibration device (vibrator), paragraph 51). Neither Isaac nor Taguchi teach the specific mixing rate being in the claimed range of from 1 revolution per day to 100 revolutions per minute.
However, Huber teaches that the gas producing rate (reaction rate) is a variable that can be modified by adjusting mixing (stirring) rate (rate of reaction is approximately a linear function with speed of stirring; p. 6, paragraph 2). Therefore, the precise mixing rate would have been considered a result effective variable for controlling reaction rate by one having ordinary skill in the art at the time the invention was made. As such, without showing unexpected results, the claimed range cannot be considered critical.
Accordingly, one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the mixing rate in the modified method of Isaac to obtain the desired gas producing rate. The courts have found that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05 II.
Therefore, the claimed ranges of mixing rate merely represent an obvious variant and/or routine optimization of the values of the cited prior art.
Regarding claim 13, modified Isaac teaches the method of claim 1, as analyzed. Taguchi further teaches that stirring can be conducted at a regular or irregular rate (paragraph 51). Stirring at an irregular rate means that the rate is changing, and so will occur at one rate for a first period of time, and then at a second rate for a second period of time. As analyzed above, it would have been obvious to one of ordinary skill in the art, as of the effective filing date of the invention, to apply the method of Taguchi to the system of Isaac, and doing so with the system irregularly rotating will result in a method wherein the dry particles comprising the precursor and dry particles comprising the proton-generating species are dynamically mixed for a first amount of time at a first mixing rate, after which the dry particles comprising the precursor and dry particles comprising the proton-generating species are dynamically mixed for a second amount of time at a second mixing rate, the second mixing rate being different than the first mixing rate.
Regarding claim 14, modified Isaac teaches the method of claim 1, as analyzed above, and Isaac further teaches the reaction taking place for 1, 3, 5 and 23 hours (Table 2). Taguchi teaches conducting their gas releasing for 2, 4, and 21 hours (Table 3). Therefore, both Isaac and Taguchi teach the reaction time, or the amount of time the dry particles comprising the precursor and the dry particles comprising the proton-generating species are combined/dynamically mixed, being in the claimed range of from 1 minute to 24 hours.
Regarding claims 17 and 18, modified Isaac teaches the method of claim 1 where Pu teaches that the continuous addition of a precursor (chlorate) and a proton-generating species (acid) allows for the steady state production of chlorine dioxide (chlorate and acid are added continuously to maintain steady state conditions; [0003]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the dry particles comprising the precursor and the dry particles comprising the proton-generating species continuously over the amount of time that the dry particles comprising the precursor and dry particles comprising the proton-generating species are dynamically mixed, as required by claims 17 and 18. One of ordinary skill in the art would have been motivated to do so in order to maintain a steady production of chlorine dioxide, as taught by Pu.
Furthermore, it is noted that the courts have held that continuous operations are obvious in light of a batch process in the prior art. In re Dilnot, 319 F.2d 188, 138 USPQ 248 (CCPA 1963). MPEP 2144.04(V)(E).
Regarding claim 20, modified Isaac teaches the method of claim 1, as analyzed above, and Isaac further teaches mixing a deliquescent (calcium chloride) with the dry particles comprising the precursor and dry particles comprising the proton-generating species (paragraphs 18 and 49).
Claims 4 and 5 are rejected under 35 U.S.C. 103 as being unpatentable Isaac et al. (US 2014/0193522 A1) in view of Taguchi et al. (US 2013/0034473 A1), Huber (“The Relation of Rate of Stirring to Rate of Reaction,” PhD Thesis, Johns Hopkins University, 1925), and Pu et al. (US 2003/0118503 A1), as applied to claim 1, and further in view of Ernst et al. (US 2004/0051080 A1).
Regarding claims 4 and 5, modified Isaac teaches the method of claim 1, but does not teach the gas produced being carbon dioxide.
However, Ernst teaches a largely similar process for making a gas, in this case carbon dioxide, by the mixing of an impregnated solid carrier (e.g. zeolites) and a proton generating species such as an acid (abstract). In particular, Ernst teaches a method of producing a gas (carbon dioxide was recovered, paragraph 44), the method comprising: mixing dry particles comprising a precursor (Na2CO3 impregnated zeolite, paragraph 44) and dry particles comprising a proton-generating species (ferric chloride impregnated zeolite, paragraph 44) for an amount of time to produce the gas (0.25-77 hours, Example 3 table, paragraph 44).
The table provided with Example 3 of Ernst (paragraph 44) shows that 0.16 L of CO2 were produced per gram of sodium carbonate after 77 hours. The theoretical maximum from the ideal gas law (at room temperature and pressure) is 0.23 L/g. Ernst therefore teaches 70% of the precursor being converted to the gas, which falls in the instantly claimed range of from 1% to 75% of the precursor being converted to the gas, therefore meeting the limitations of claim 4. The carbon dioxide precursor of Ernst is sodium carbonate, and therefore also meets the limitations of claim 5.
Ernst also teaches that there is a need in the art to produce carbon dioxide at a controlled rate (paragraph 3) and that the carbon-containing compound (precursor) can be provided on other porous carriers, such as diatomaceous earth (paragraph 17), as in the example used in the analysis of claim 1, above.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to combine the carbon-dioxide generating precursors of Ernst in the method of modified Isaac described above, to arrive at the invention of claims 4 and 5. One of ordinary skill in the art would have been motivated to do so by the desire to produce carbon dioxide at a controlled rate, as taught by Ernst.
Claim 19 is rejected under 35 U.S.C. 103 as being unpatentable over Isaac et al. (US PG Pub 2014/0193522 A1) in view of Taguchi et al. (US 2013/0034473 A1), Huber (“The Relation of Rate of Stirring to Rate of Reaction,” PhD Thesis, Johns Hopkins University, 1925), and Pu et al. (US 2003/0118503 A1), as applied to claim 1, and further in view of Thangaraj et al. (US 2008/0067470 A1) and Pauling (General Chemistry, Chapter 16-1, New York: Dover Publications; 1970.).
Regarding claim 19, modified Isaac teaches the method of claim 1, but does not teach milling, crushing, abrading, or a combination thereof, of the dry particles comprising the precursor and dry particles comprising the proton-generating species.
However, Thangaraj teaches a composition of dry particles comprising a precursor (alkali chlorite salts, paragraph 45) and dry particles comprising a proton-generating species (solid acids, paragraph 45), and Thangaraj also teaches the crushing of these particles before mixing (all ingredients are individually crushed [and] an appropriate amount of ingredients are mixed, paragraph 60).
Furthermore, it is well known in the art that particle size influences reaction rate, in that reactions can be made to go faster by increasing the extent of the surfaces (Pauling, p. 553) which will be greater for smaller particles.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to apply the crushing taught by Thangaraj to the method of modified Isaac. One of ordinary skill in the art would have been motivated to do so in order to increase the rate of gas production by increasing the surface area as taught by Pauling.
Response to Arguments
Applicant’s arguments with respect to the rejection of claim 1 under 35 USC § 103, pages 7-8 of the reply filed 4 December 2025, have been fully considered and are persuasive in that the combination of Isaac, Taguchi, and Huber alone does not teach all the limitations of the amended independent claim. Therefore, the prior rejections of all claims have been withdrawn. However, upon further consideration, a new ground of rejection is made in view of Isaac, Taguchi, Huber, and Pu, as analyzed above.
Applicant additionally argues for the allowability of dependent claims 2-14 and 17-20 based upon the allowability of claim 1, page 8. Claim 1 being found obvious over the combination of Isaac, Taguchi, Huber and Pu, these dependent claims were examined based upon their further limitations, as analyzed above.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Nicholas A Piro whose telephone number is (571)272-6344. The examiner can normally be reached Mon-Fri, 8:00 am-5:00 pm.
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/NICHOLAS A. PIRO/Assistant Examiner, Art Unit 1738
/PAUL A WARTALOWICZ/Primary Examiner, Art Unit 1735