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 .
Terminal Disclaimer
The terminal disclaimer filed on 12/02/2025 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of US Patent No. 12421141 has been reviewed and is accepted. The terminal disclaimer has been recorded.
Status of the Claims
This is a final Office action in response to Applicant’s amendments and remarks filed on 12/02/2025. Claims 1 and 3-11 are pending in the current Office action. Of these, claims 1 and 3-7 are withdrawn from consideration. Claims 1 and 8 were amended by Applicant. Claim 2 was cancelled by Applicant.
Status of the Rejection
The objections to the drawings are withdrawn in view of Applicant’s amendments.
The rejection of claim 8 under 35 U.S.C. § 102(a)(1) is withdrawn in view of Applicant’s amendments.
The rejections of claims 8-11 under 35 U.S.C. § 103 are withdrawn in view of Applicant’s amendments.
The rejection of claim 8 on the grounds of non-statutory double patenting is withdrawn in view of the terminal disclaimer filed on 12/02/2025.
New rejections are necessitated by Applicant’s amendments.
Election/Restrictions
Applicant did not explicitly affirm their election of group II, claims 8-11, in the response filed on 12/02/2025. However, the amended claim set filed 12/02/2025 lists claims 1 and 3-7 as withdrawn and Applicant has requested rejoinder, which are considered to be implicit confirmation of the telephonic election without traverse made on 08/27/2025. Because applicant did not distinctly and specifically point out errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Applicant’s request for rejoinder is noted. However, as the elected claims are not in condition for allowance, rejoinder is not appropriate at this time (MPEP § 821.04).
Claim Objections
Claim 8 is objected to because of the following informalities:
Claim 8 lines 13, 14, and 15 recite “if sensed chlorine”, but should recite “if a sensed chlorine” to be grammatically correct.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Linke (DE 10017407 A1, with citations to the Espacenet translation provided by Office).
Regarding claim 8, Linke teaches a water sanitization system (abstract and see paras. 25-26) comprising:
an electrolysis cell arranged in a water circulation system of a body of water (“The water containing chlorite and/or chlorate to be treated is circulated. … part of the water can be taken, passed through an electrolysis cell and then returned.” para. 21 and Fig., annotated below) in a swimming pool or spa (“for the water disinfection of swimming pools” para. 26), the body of water containing (a) sodium chlorite and/or sodium chlorate and (b) sodium chloride (“a mixture of chlorite and chloride, for example about 20 to 50 g of sodium chlorite and about 1 kg of sodium chloride” para. 25) the electrolysis cell operable to convert sodium chlorite and/or sodium chlorate to chlorine dioxide (“chlorine dioxide is produced with high efficiency from chlorite and/or chlorate in the water to be treated” para. 16, see also para. 17), and sodium chloride to chlorine (“titanium electrodes being particularly preferred.” para. 18 and see below);
a control unit in communication with the electrolysis cell (“the electrolysis cell can be controlled via an electronic control unit” para. 28 and see Fig. 1); and
a sensor configured to detect a level of chlorine dioxide present in the body of water (see below),
wherein the control unit is configured to stop or slow the electrolysis cell when the sensor determines that a level of chlorine dioxide present in the body of water has exceeded a predetermined threshold (“so that a predetermined chlorine dioxide concentration is constantly and constantly present in the water to be treated” para. 21 and “through a continuously or discontinuously operated electrolysis cell … the electrolysis cell can be controlled via an electronic control unit, for example depending on the … measured chlorine dioxide concentration” para. 28), and
wherein the electrolysis cell is controlled by the control unit (“the electrolysis cell can be controlled via an electronic control unit, for example depending on the … measured chlorine dioxide concentration” para. 28) to result in:
high chlorine dioxide production if the sensed chlorine dioxide is less than 0.05 ppm, a range within the claimed range, low chlorine dioxide production if the sensed chlorine dioxide level is between 0.05 ppm and 0.2 ppm, a range overlapping the claimed range, and lower or no chlorine dioxide production if the sensed chlorine dioxide level is above 0.2 ppm, a range encompassing the claimed range (“The electrolysis is preferably carried out in such a way that the chlorine dioxide is present in the water at a concentration of 0.05 to 0.2 ppm” para. 23, and see below).
Ranges in the prior art overlapping or encompassing claimed ranges establish prima facie cases of obviousness (MPEP § 2144.05).
Regarding the limitation “operable to convert … sodium chloride to chlorine”, the limitation “the electrolysis cell operable to convert sodium chlorite and/or sodium chlorate to chlorine dioxide, and sodium chloride to chlorine”, as currently drafted, is a functional recitation i.e., it defines the apparatus by what it does, rather than what it is. For apparatus claims, the broadest reasonable interpretation of a functional limitation is an apparatus capable of performing the recited function (MPEP § 2114).
In the instant case, the specification of the instant application indicates titanium electrodes are capable of converting sodium chloride to chlorine (see e.g., para. 67). Therefore, as the electrolysis cell of Linke uses titanium electrodes, the electrolysis cell of Linke is necessarily capable of converting sodium chloride to chlorine. Linke therefore reads on the limitation “operable to convert … sodium chloride to chlorine”.
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Annotated Linke Figure
Regarding the limitation “a sensor configured to detect a level of chlorine dioxide present in the body of water”, Linke teaches the control unit operates the electrolysis cell based on a measured chlorine dioxide concentration. The system of Linke therefore necessarily comprises a sensor configured to detect a level of chlorine dioxide present in the body of water (either directly or via the fluid recirculating though the electrolysis loop), to allow the control unit to receive a “measured chlorine dioxide concentration”.
Regarding the limitation(s) “the electrolysis cell is controlled by the control unit to result in: high chlorine dioxide production if sensed chlorine dioxide level is less than 0.1 ppm; low chlorine dioxide production if sensed chlorine dioxide level is between 0.1 and 1.5 ppm; and no chlorine dioxide production if sensed chlorine dioxide level is above 1.5 ppm”, Linke teaches the control unit maintains the concentration of chlorine dioxide in the water between 0.05 ppm and 0.2 ppm. The control unit of Linke therefore necessarily or implicitly, increases or initiates the production of chlorine dioxide when the sensed concentration is below 0.05 ppm (reading on “high chlorine dioxide production”), produces some chlorine dioxide until a concentration of 0.2. ppm (reading on “low chlorine dioxide production”), and stops production of the chlorine dioxide when the sensed concentration is above 0.2 ppm (reading on “no chlorine dioxide production”). Otherwise, the concentration of chlorine dioxide would not be maintained between 0.05 and 0.2 ppm by the control unit.
Claims 9-11 are rejected under 35 U.S.C. 103 as being unpatentable over Linke, as applied to claim 8 above, and further in view of Schwartzel (US Pat. Pub. 2011/0024361 A1).
Regarding claim 9, Linke renders obvious the limitations of claim 8, as described above.
Linke further teaches that sodium chlorite or sodium chlorate (paras. 17 and 21) should be added to the body of water every 6 to 12 months (para. 22), but does not teach a dosing device for this sodium chlorite or sodium chlorate addition.
However, Schwartzel teaches a system for electrolytically generating chlorine dioxide (“a low-cost chlorine dioxide (CLO2) generator” para. 102) for sanitizing a swimming pool (“in use in a swimming pool” para. 91 and see para. 102) teaches a dosing device (“precursor carousel 429” Fig. 5 and para. 185) configured to deliver sodium chlorate (“a precursor of … sodium chlorate” para. 102) to the pool (para. 185 and see Fig. 5), which provides the predictable benefit of allowing a control unit to better maintain desired concentrations of different oxidants (paras. 90-91).
As Schwartzel teaches an electrolytic chlorine dioxide generator for sanitizing swimming pools, Schwartzel is analogous art to the instant invention.
It would therefore have been obvious to a person having ordinary skill in the art before the effective filing date of the instant application to modify the system of Linke, by adding a dosing device configured to deliver sodium chlorite and/or sodium chlorate to the body of water. A person having ordinary skill in the art would have been motivated to make this modification because Linke teaches sodium chlorite and/or chlorate should be added to the swimming pool periodically, and Schwartzel teaches use of a dosing device to add chemical oxidants provides additional control over the concentrations of different oxidants produced by an electrochemical cell. Furthermore, combining prior art elements according to known methods to yield predictable results establishes a prima facie case of obviousness (MPEP § 2143(I)(A)).
Regarding claim 10, modified Linke does not explicitly teach the dosing device delivers sodium chlorite and/or sodium chlorate to the body of water at predetermined time intervals.
However, Linke teaches that the sodium chlorite or sodium chlorate should be added every 6 to 12 months (para. 22).
It would therefore have been obvious to a person having ordinary skill in the art before the effective filing date of the instant application, when modifying Linke to comprise the dosing device, to do so such that the sodium chlorite or sodium chlorate is added to the body of water at predetermined time intervals i.e., every 6 to 12 months. A person having ordinary skill in the art would have been motivated to make the modification in this manner because Linke teaches a predetermined time interval of 6 to 12 months is suitable for the addition of sodium chlorite and/or sodium chlorate to the body of water.
Regarding claim 11, modified Linke teaches the limitations of claim 9, as described above.
Modified Linke does not explicitly teach the dosing device delivers sodium chlorite and/or sodium chlorate to the body of water responsive to the level of chlorine dioxide identified by the sensor.
However, Schwartzel further teaches the dosing device is preferably controlled by the control unit in response to a water quality sensor (“As the ORP reading approaches a set point, the chemical precursor volume and/or concentrations can be reduced” para. 172).
It would therefore have been obvious to a person having ordinary skill in the art before the effective filing date of the instant application, when modifying Linke to comprise the dosing device, to do so such that the dosing device delivers sodium chlorite and/or sodium chlorate to the body of water responsive to the level of chlorine dioxide identified by the sensor. A person having ordinary skill in the art would have been motivated to make the modification in this way to provide the predictable benefit of allowing the control unit to maintain an appropriate concentration of sodium chlorite and/or sodium chlorate i.e., chemical precursors, in the body of water as taught by Schwartzel. Furthermore, combining prior art elements according to known methods to yield predictable results establishes a prima facie case of obviousness (MPEP § 2143(I)(A)).
Response to Arguments
Applicant’s arguments, see Remarks p. 6, filed 12/02/2025, with respect to the objections to the drawings, have been fully considered and are persuasive. The objections to the drawings have been withdrawn.
Applicant’s arguments, see Remarks p. 6, filed 12/02/2025, with respect to the rejection of claim 8 under 35 U.S.C. § 102(a)(1), have been fully considered and are persuasive in part. The rejection of claim 8 under 35 U.S.C. § 102(a)(1) has been withdrawn.
Applicant’s arguments, see Remarks p. 8, filed 12/02/2025, with respect to the rejection of claim 8 on the grounds of non-statutory double patenting, have been fully considered and are persuasive. The rejection of claim 8 on the grounds of non-statutory double patenting has been withdrawn.
Applicant's arguments, see Remarks p. 7-8, filed 12/02/2025, with respect to the rejections of claims 8-11 under 35 U.S.C. § 103, have been fully considered but they are not persuasive.
Applicant’s Argument #1
Applicant argues on p. 6 that Linke does not disclose the electrolysis cell is arranged in a body of water in a swimming pool or spa, and that claim 8 as amended is therefore patentably distinguished from the system of Linke.
Examiner’s Response #1
Examiner respectfully disagrees. At issue is whether Linke reads on the limitation “an electrolysis cell arranged in a water circulation system of a body of water in a swimming pool or spa” as recited in amended claim 8.
As currently drafted, the limitation “an electrolysis cell arranged in a water circulation system of a body of water in a swimming pool or spa” describes the intended use of the claimed apparatus i.e., it limits where system is intended to be used, rather than what the system is. During prosecution, claims are given their broadest reasonable interpretation (MPEP § 2111). For apparatus claims, such as the claim in question, the broadest reasonable interpretation of a limitation drawn to an intended use is a system capable of performing the intended use (MPEP § 2114).
In the instant case, Linke teaches the electrolysis cell is intended to be used in a water circulation system of a body of water in a swimming pool. The electrolysis cell of Linke is thus clearly capable of being arranged in a water circulation system of a body of water in a swimming pool or spa.
Furthermore, the Figure of Linke clearly shows the electrolysis cell is located in a portion of the recirculation pipe i.e., “a water circulation system of a body of water in a swimming pool”. Thus, even under Applicant’s proposed interpretation, Linke teaches this limitation.
As Linke does, in fact, teach the limitation in question, Applicant’s argument is not persuasive.
Applicant’s Argument #2
Applicant argues on p. 6 that Linke does not disclose a control unit to stop or slow the rate of electrolysis, and therefore does not read on the limitation “wherein the control unit is configured to stop or slow the electrolysis cell when the sensor determines that a level of chlorine dioxide present in the body of water has exceeded a predetermined threshold” as recited in claim 8.
Examiner’s Response #2
Examiner respectfully disagrees. At issue is whether Linke teaches the limitation “wherein the control unit is configured to stop or slow the electrolysis cell when the sensor determines that a level of chlorine dioxide present in the body of water has exceeded a predetermined threshold” as recited in claim 8.
When considering the teachings of the prior art, in addition to express teachings, those teachings that are implicit or inherent are also considered (“The express, implicit, and inherent disclosures of a prior art reference may be relied upon in the rejection of claims under 35 U.S.C. 102 or 103.” MPEP § 2112).
In the instant case, Linke teaches “a continuously or discontinuously operated electrolysis cell … the electrolysis cell can be controlled via an electronic control unit, for example depending on the … measured chlorine dioxide concentration” (para. 28). I.e., Linke teaches the control unit operates the electrolysis cell to maintain a particular chlorine dioxide concentration. The control unit of Linke must, therefore, necessarily “stop or slow the electrolysis cell when the sensor determines that a level of chlorine dioxide present in the body of water has exceeded a predetermined threshold”, or else the concentration of chlorine dioxide would exceed the predetermined thresholds reported in Linke.
As Applicant has not provided any alternative readings for this teaching of Linke, or explained why they believe Examiner’s interpretation of these teachings is incorrect, Applicant’s argument is not persuasive.
Applicant’s Argument #3
Applicant argues on p. 6 that Linke does not teach the electrolysis cell produces chlorine, and therefore does not read on the limitation “the electrolysis cell operable to convert … sodium chloride to chlorine” as recited in claim 8.
Examiner’s Response #3
Examiner respectfully disagrees. At issue is whether Linke teaches the limitation “the electrolysis cell operable to convert … sodium chloride to chlorine” as recited in claim 8.
As currently drafted, the limitation “the electrolysis cell operable to convert … sodium chloride to chlorine” is a functional recitation i.e., it defines the apparatus by what it does, rather than what it is. For apparatus claims, the broadest reasonable interpretation of a functional limitation is an apparatus capable of performing the recited function (MPEP § 2114).
In the instant case, Linke teaches the electrodes are made of titanium (“titanium electrodes being particularly preferred.” para. 18), and the instant specification teaches that titanium electrodes are capable of generating chlorine gas from sodium chloride (para. 67). It is therefore considered that the electrolysis cell of Linke is necessarily capable of converting sodium chloride to chlorine. Linke therefore reads on the limitation “the electrolysis cell operable to convert … sodium chloride to chlorine”.
As Applicant has not provided any arguments or evidence as to why the electrolysis cell of Linke would not be capable of converting sodium chloride to chlorine, Applicant’s argument is not persuasive.
Applicant’s Argument #4
Applicant argues on p. 7-8 that Schawartzel in view of Barnes and Silveri do not reasonably render obvious certain of the limitations of claims 8-11 as currently amended.
Examiner’s Response #4
It is not believed that the current grounds of rejection do not rely on any reference applied in the prior rejection of record for any particular teaching or matter specifically challenged in Applicant’s arguments. Applicant’s arguments regarding Schawartzel in view of Barnes and Silveri are therefore considered moot.
Applicant’s Argument #5
Applicant argues that the invention as claimed results in the beneficial result of reducing the amount of chlorine required for disinfection and minimizing known drawbacks of chlorine dioxide sanitization, advantages that were not recognized in the prior art of record.
Examiner’s Response #5
Examiner respectfully disagrees. In response to applicant's argument that the invention as claimed reduces the amount of chlorine required for disinfection, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Furthermore, Applicant has not provided evidence that these benefits are not present in the system of Linke.
Applicant’s argument is therefore not persuasive.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Tremblay (US Pat. Pub. 2003/0006144) teaches an electrolysis system for use in a pool (para. 71) configured to produce chlorine dioxide (Id.), wherein the concentration of chlorine dioxide produced is controlled by adjusting the flow rate, sodium chlorite concentration, or power supplied to the electrolyzer (Table C). Moser (US Pat. Pub. 2014/0097095 A1) teaches a system for the production of chlorine dioxide, wherein the concentration of the produced chlorine dioxide is controlled by a control unit configured to adjust the voltage and/or current applied to an electrolytic cell in response to a determined concentration of chlorine dioxide (e.g., para. 39).
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 ALEXANDER R PARENT whose telephone number is (571)270-0948. The examiner can normally be reached M-F 11:00 AM - 6 PM EST.
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/ALEXANDER R. PARENT/Examiner, Art Unit 1795
/LUAN V VAN/Supervisory Patent Examiner, Art Unit 1795