436The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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 image intensifier of claim 17 or any additional structure required to meet the “configured to analyze” requirement of claim 32 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.
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 16, 19, 21, 23, 25 and 29-31 are rejected under 35 U.S.C. 103 as being unpatentable over Johnson (US 5,356,818) in view of Boyd (US 3,438,741) or Gateau (US 5,292,246). With respect to claim 16, Johnson teaches a device for chemiluminescence analysis, the device comprising: a reaction chamber (reactor cell 406) having a first end region (the end with inlet 408 in figure 10) and a second end region (the end near optical filter element 413 in figure 10) opposite the first end region; a first inlet opening (flow metering orifice 405 in figure 10) adapted to enable introducing a sample gas into the reactor chamber via a first supply line (conduit/pipe including flow divider 404 in figure 10); a second inlet opening (metering orifice 410 in figure 10) adapted to enable introducing a reaction gas into the reactor chamber via a second supply line (conduit/pipe including ozonizer 409 in figure 10), an outlet opening adapted to enable discharging a mixture of the sample gas and the reaction gas from the reactor chamber via an outlet line (the structure leading to ozone scrubber 411 in figure 10); a mixer unit configured to facilitate mixing of the sample gas and the reaction gas, the mixer unit arranged in the first end region of the reactor chamber (inlet 408 and its associated structure shown in figure 10); and a sensor unit configured to detect chemiluminescence radiation in the reactor chamber (photomultiplier 414), the sensor unit arranged in the second end region of the reactor chamber. Relative to claim 21, the device of Johnson teaches a reflection unit disposed in the first end region of the reactor chamber (mirrored back plate 420). Figure 10 appears to show the two orifices in a concentric configuration. Johnson does not teach that the mixer unit includes a plurality of alternating first and second inlet openings configured to introduce the sample gas and the reaction gas into the reactor chamber, wherein the plurality of first inlet openings are each fluidically connected to the first supply line, and the plurality of second inlet openings are each fluidically connected to the second supply line.
In the patent Boyd teaches a cylindrical gas distributor for use in an apparatus for the incomplete combustion of hydrocarbons with oxygen in a flame reaction having a plurality of parallel channels for passing gas from the mixing chamber to the reaction chamber of said apparatus which contain devices for imparting a swirling motion to the gases exiting therefrom, said gas distributor being fabricated of ceramic material combined with metal and designed so as to provide uniform gas distribution to the pilot flames on the face of the gas distributor and thus provide a uniform flame front in the reactor. Referring to figure 1, preheated oxygen or oxygen-containing gas enters mixing chamber 1 through line 2 where it meets and is mixed with a stream of preheated gaseous hydrocarbons introduced through line 3. The mixing chamber may be of various configurations; however, it is preferred that the mixing chamber conically widens from the entrance portion of the mixing chamber to the gas distributor. From mixing chamber 1, the mixed gases pass through a gas distributor 4 by means of parallel channels 5 into reaction chamber 6 where they react in a flame reaction. In each of the channels 5, the gases encounter devices 5a which impart a swirling motion to the gases as they exit into the reaction chamber 6. Reaction chamber 6 is bounded by side walls 8 and by one end of the gas distributor 4. Within the gas distributor 4 is a hollow inner chamber 10 having end walls 11 and 12 which is in open communication with reaction chamber by means of straight conduits 13. Oxygen or other suitable gas enters the hollow chamber 10 by means of line 14 and exits through straight conduits 13. The combustion of the gas exiting straight conduits 13 provides the pilot flame required to propagate combustion of the reactants in reaction chamber 6. While the apparatus has been pictured in figure 1 as having only three parallel channels 5 in the burner block, it is to be understood that in actual operation the apparatus can have varying numbers of channels. Depending on the capacity of the apparatus, a gas distributor might have from two to 300 parallel channels but will generally have from 120 to 130 parallel channels. These parallel channels may be of various configuration such as round, elliptical, square, or rectangular. Preferably, the parallel channels will be round and have a uniform circular cross-section. In the apparatus shown in figure 1, the gas distributor, other than hollow inner chamber 10, is generally formed of ceramic material such as alumina, silica, or mixtures of the two. The castable refractory ceramic materials are especially useful in forming the gas distributor.
In the patent Gateau teaches a burner for a reactor producing synthetic gas for conveying at least two fluids separately to a reaction zone, one serving as fuel and the other as combustive. It comprises a solid element in which are provided holes penetrating to different depths, these holes opening at one of their ends into the reactor and at the other either into fuel supply means or into combustive supply means depending on the fluid conveyed by the hole considered. Referring to figure 1, reference 1 designates a burner in its entirety. This burner comprises a housing 2 in which is placed a solid element 3 which in which there are formed different gas passages or holes. In figure 1, the solid element comprises holes 4 for conveying a first fluid and holes 5 for conveying a second fluid. These holes convey the gases towards a reaction zone 10. In the case of figure 1, housing 2 comprises at its lower part a truncated cone shape 6 which defines with the solid element 3 a chamber 7 which may serve as chamber for feeding holes 4 with a first fluid. Conduit 8 feeds chamber 8 with a first fluid. Chamber 7 may have other forms than the truncated cone shape. Holes 5 for conveying the second fluid extend from the reaction zone 10 to an intermediate level 11. These holes 5 communicate together through transverse channels or holes 12. The transverse holes 12 communicate with a chamber 13 which may be annular particularly in the case where housing 2 advantageously has a cylindrical shape. Chamber 13 is fed with a second fluid through conduit 14. Column 2, lines 13-14 teach that the elements may be made from metal, ceramic or any other refractory material. Column 2, lines 34-37 teach that the burner is easy to machine when it comprises several blocks or solid elements and it has good resistance to high temperatures for ceramic material elements. Column 1, lines 54-66 teach that the proposed burners are in general tubular or more complex. The simplest technology is represented by two concentric tubes. In this case, the tubes have dimensions (several tens of millimeters) very much greater than the flame front thicknesses. It is then indispensable to let an appreciable residence time elapse (about a second or more) in order to reach the thermodynamic balance. The reactor then comprises zones of high heterogeneity with recirculation of combusting gases. A multiplicity of tubes would provide a better homogeneity but the number of tubes remains limited for industrial applications.
With respect to claims 16 and 19, it would have been obvious to one of ordinary skill in the art at the time the application was filed to modify the inlet/mixer of Johnson to be a plurality of inlet structures as taught by Boyd or Gateau made of a ceramic material as taught by Boyd because of their recognized uniform gas distribution properties, the desirability of forming them from a ceramic material as taught by Boyd and the better homogeneity of a multiplicity of tubes compared to the simplest two concentric tubes as taught by Gateau.
With respect to claim 23, Johnson teaches a window (the part near element 413) in the second end region, and wherein the sensor unit is arranged outside the reactor chamber in a region about the window. With respect to claim 25, Johnson teaches an optical element configured to couple the chemiluminescence radiation into the sensor unit, wherein the optical element is arranged between the window and the sensor unit (optical filter element 413). With respect to claim 29, Johnson appears to show a reactor chamber that is configured as a cylinder. With respect to claim 30, figure 10 of Johnson appears to show that the diameter of the reactor chamber is greater than a diameter of the sensor unit. With respect to claim 31, Johnson teaches an elemental analyzer for elemental analysis of a sample, the elemental analyzer comprising a device according to claim 16 (see the discussion of claim 16 above).
Claims 22, 24 and 27-28 are rejected under 35 U.S.C. 103 as being unpatentable over Johnson in view of Boyd or Gateau as applied to claims 16, 23 and 25 above, and further in view of Charpenet (FR 2495775). With respect to claim 22, column 61, lines 10-24 of Johnson teach that utilization of the mirror backed glass disc back plate 420 in the reaction cell 406 further enhances the intensity of light collected at the photocathode of photomultiplier 414. Johnson does not teach a reflective material, or is at least partially coated with a reflective material on an area of an inner wall of the reactor chamber.
With respect to claim 16, figures 1 and 3 with their associated discussion in the attached translation of Charpenet teaches a device for chemiluminescence analysis, the device comprising: a reaction chamber (a generally sealed enclosure 10 with two reaction chambers 11 and 15, only the chamber 11 is shown) having a first end region (the end with elements 61 and 64 in figure 3) and a second end region (the end near window 17) opposite the first end region; a first inlet opening (nozzle 11a at the point where branch 64a joins channel 64 in figure 3) adapted to enable introducing a sample gas into the reactor chamber via a first supply line (conduit/pipe including nozzle 11a); a second inlet opening (nozzle 11b at the point where injector 63 joins channel 64 in figure 3) adapted to enable introducing a reaction gas into the reactor chamber via a second supply line (conduit/pipe including nozzle 11b), an outlet opening adapted to enable discharging a mixture of the sample gas and the reaction gas from the reactor chamber via an outlet line (a discord cavity, which widens in an annular groove around the periphery of the parabolic reaction chambers and the abovementioned annular grooves are connected to a nozzle 14 for connection with a vacuum pump); a mixer unit configured to facilitate mixing of the sample gas and the reaction gas, the mixer unit arranged in the first end region of the reactor chamber (elements 61,63 and 64 of figure 3); and a sensor unit configured to detect chemiluminescence radiation in the reactor chamber (photomultipliers 18 and 18'), the sensor unit arranged in the second end region of the reactor chamber. Relative to claim 21, the device of Charpenet teaches a reflection unit disposed in the first end region of the reactor chamber (wall 60 is very finely polished and covered with a coating of gold with high reflective power). With respect to claim 22, Charpenet teaches a reflective material, or is at least partially coated with a reflective material on an area of an inner wall of the reactor chamber (wall 60 is very finely polished and covered with a coating of gold with high reflective power). With respect to claim 23, Charpenet teaches a window (17) in the second end region, and wherein the sensor unit is arranged outside the reactor chamber in a region about the window. With respect to claim 24, Charpenet teaches that the outlet opening is adapted to be annular and is fluidically connected to the outlet line, and wherein the outlet opening is arranged around the window (a discord cavity, which widens in an annular groove around the periphery of the parabolic reaction chambers and the abovementioned annular grooves are connected to a nozzle 14 for connection with a vacuum pump). With respect to claim 25, Charpenet teaches an optical element configured to couple the chemiluminescence radiation into the sensor unit, wherein the optical element is arranged between the window and the sensor unit (At the window 17, the input optics of the photomultiplier 18 are coupled, by means of a thin layer 18a of a viscous liquid whose refractive index is substantially equal to those of the window 17 and of the input optic of the photomultiplier 18. This layer 18a makes it possible, as is known, to practically suppress the reflections at the interface between the window and the optics). With respect to claim 27 Charpenet teaches that an immersion medium is arranged between the optical element and a sensor of the sensor unit (At the window 17, the input optics of the photomultiplier 18 are coupled, by means of a thin layer 18a of a viscous liquid whose refractive index is substantially equal to those of the window 17 and of the input optic of the photomultiplier 18. This layer 18a makes it possible, as is known, to practically suppress the reflections at the interface between the window and the optics). With respect to claim 28, Charpenet teaches that the outlet opening is adapted to be annular and is fluidically connected to the outlet line, and wherein the outlet opening is disposed in the second end region (a discord cavity, which widens in an annular groove around the periphery of the parabolic reaction chambers and the abovementioned annular grooves are connected to a nozzle 14 for connection with a vacuum pump). With respect to claim 31, Charpenet teaches an elemental analyzer for elemental analysis of a sample, the elemental analyzer comprising a device according to claim 16 (see the discussion of claim 16 above). With respect to claim 32, Charpenet teaches that the device is configured to analyze total nitrogen in a sample, nitrogen oxide, or nitrogen dioxide (see the first paragraph of the translated description, by determining the quantity of light emitted by luminescent reaction of this component with a reaction gas, and in particular dosing of nitrogen oxides by reaction with ozone).
It would have been obvious to one of ordinary skill in the art at the time the application was filed to provide walls other than the mirror backed plate with a reflective coating as taught by Charpenet because of their ability to cause the light to reflect toward the detector as shown in figure 3 of Charpenet leading to an expectation of an increased intensity of light reaching the detector as taught by Johnson. With respect to claims 24 and 28, the exhaust structure leading to element 411 appears to be an annular structure around the periphery of the chamber. However Johnson does not teach that it is arranged around the window or disposed in the second end region. Such a structure is taught by Charpenet as a discord cavity, which widens in an annular groove around the periphery of the parabolic reaction chambers and the abovementioned annular grooves are connected to a nozzle 14 for connection with a vacuum pump. It would have been obvious to one of ordinary skill in the art at the time the application was filed to modify the Johnson exhaust according to the teachings of Charpenet to place it around the window or disposed in the second end region because it appears to function in a manner similar to the exhaust structure of Johnson. With respect to claim 27, Johnson does not teach an immersion medium is arranged between the optical element and a sensor of the sensor unit. Charpenet teaches that input optics of the photomultiplier 18 are coupled, by means of a thin layer 18a of a viscous liquid (immersion medium) whose refractive index is substantially equal to those of the window 17 and of the input optic of the photomultiplier 18. This layer 18a makes it possible, as is known, to practically suppress the reflections at the interface between the window and the optics. It would have been obvious to one of ordinary skill in the art at the time the application was filed to modify the Johnson structure bay placing an immersion medium between the optical element and a sensor of the sensor unit as taught by Charpenet because of its known ability to practically suppress the reflections at the interface between the window and the optics as taught by Charpenet.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over Johnson in view of Boyd or Gateau as applied to claim 25 above, and further in view of Hiley (US 6,245,567) or Ehrhorn (US 2012/0070334). Johnson does not teach that the optical element is a converging lens or a total reflection element.
In the patent Hiley teaches that energetic materials, particularly explosives materials, are detected in samples by heating a mixture of a sample under a reduced pressure and detecting the chemiluminescent emission therefrom with a suitable light detector, for example a photomultiplier or photodiode. Figure 1 shows/teaches a detector that comprises a chamber 2 for the receipt of samples through input 3, the chamber comprising a quartz cylindrical tube 4 which is sealed to the inlet 3 at one end and is open at its other end to a vacuum chamber 5. Chamber 5 is evacuated through outlet 6 by a pump (not shown) and has, in its wall 7 lying opposite the end of tube 4, a window 8 which is transparent to visible light. Surrounding the tube 4 is an electrical heater coil 9, the leads to which are not shown. A photomultiplier unit 10 is attached to the outside of the vacuum chamber in a position in line with the chamber 2 such that any emission of light within the chamber can be detected by the photomultiplier. Optical and IR filters are placed between chamber 2 and photomultiplier 10. Conveniently one such filter also forms the window 8, in the case of figure 1 this is the IR filter and numeral 11 represents an optical filter. Column 4, lines 44-58 teach that to provide even greater selectivity and to aid in the identification of the particular explosive material which is causing an emission, the light passing through the window may be led into an optical spectrometer either directly, by way of a system of mirrors and lenses, or through a light pipe. In the latter case the collecting end of the pipe is placed in a light-tight tube or housing attached adjacent the window in the vacuum chamber and arranged to face the window. A lens to focus light passing through the window onto the end of the light pipe is also advantageously provided in the housing at a position close to the window.
In the patent publication Ehrhorn teaches a system for detecting and reducing ethylene comprising a sensing reaction chamber (10) and a ethylene/ozone reaction chamber (19) in which ozone and air are brought into reaction with each other, an ozone generator (6) and light detecting means (8) for detecting light emitted via reaction between the ozone and ethylene, said light detection means producing detection signals (12), processing means (9) and airstream means (4) for forcing an airstream through the system (1). In figure 2 a replaceable air filter 15 is positioned inside a filter case 14 with an output duct 24 connected to a heater 31 which has the purpose of heating the air to avoid condensation of water vapor in the system. From the heater the airstream is split in two separate streams, the one goes via the duct 21 through the ozone generator 6 and via the duct 22 into the sensing reaction chamber 10. In the sensing reaction chamber 10 the fluorescence (chemiluminescence) from the reaction with ozone and ethylene is detected by the light detection means 8 which may be improved by the optical filter 28 and the lens 27. The optical filter 28 may selectively pass fluorescence (chemiluminescence) from the ethylene/ozone chemical reaction. The focusing lens 27 is increasing the sensitivity, by focusing the fluorescent (chemiluminescent) light on the light sensitive part of the light detection means 8. The electrically powered heater 31 positioned in the airstream before the venturi 16 and before the input 21 to the ozone generator 6 has the function of heating the air in order to avoid moisture and wet surfaces inside the system.
It would have been obvious to one of ordinary skill in the art at the time the application was filed to incorporate the lens of Hiley or Ehrhorn into the Johnson device because of its recognized ability to increasing the sensitivity by focusing the fluorescent (chemiluminescent) light on the light sensitive part of the light detection means as taught by at least Ehrhorn.
Claim 17 is rejected under 35 U.S.C. 103 as being unpatentable over Johnson in view of Boyd or Gateau as applied to claim 16 above, and further in view of Yamanaka (JP 2000-356631). Johnson does not teach that the sensor unit includes an image intensifier.
In the patent publication Yamanaka teaches an analyzer in which chemical are mixed producing chemiluminescent light. The chemiluminescence is detected by a detector 6, converted into a TOC value by a data processor 7 and recorded. As the detector 6, a photomultiplier, an avalanche photodiode, an image intensifier or the like are used.
It would have been obvious to one of ordinary skill in the art at the time the application was filed to incorporate an image intensifier as taught by Yamanaka into the Johnson sensor unit because Yamanaka shows that they are known and used for detection of chemiluminescent signals in a manner similar to photomultipliers, an avalanche photodiodes or the like.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Johnson in view of Boyd or Gateau as applied to claim 16 above, and further in view of Ehrhorn as described above or van Heusden (US 4,130,258). Johnson does not teach a temperature control unit configured and/or arranged to control a temperature of the sample gas and/or a temperature of the reaction gas before either is supplied to the mixer unit and/or introduced into the reactor chamber.
In the patent van Heusden teaches devices for determining the concentration of vaporous components in a gas current, wherein the gas current reacts in a heated reaction room with ozone and the intensity of the chemiluminescent radiation emitted herewith is measured by a photoelectric cell. Column 1, lines 7-23 describe an article disclosing a device with which the concentration of a plurality of vaporous components is determined in a reaction room wherein reaction with ozone takes place at an elevated temperature. In this reaction a portion of the energy is released in the form of chemiluminescent radiation. There is a dependency of the sensitivity of these reactions as a function of the temperature. Column 1, lines 35-40 teach that the device described in the article is, however, rather complicated. Supply pipes for ozone and the carrier gas current of the gas-chromograph end in the reaction chamber which comprises means for heating it, which gases are pre-heated before flowing into the chamber. The authors found that at a temperature of 300 °C both alkanes and alkenes have a useful sensitivity in the chemiluminescent emission and that at temperatures below 150 °C alkanes have a negligibly small sensitivity. Column 1, lines 24-27 teach that applicants found that at temperatures which were varied between room temperature and 350 °C many classes of compounds show an increasing sensitivity as compared with that at room temperature. The drawing shows diagrammatically a preferred embodiment of the device. In the device, the reaction chamber 1 has an inlet 2 for ozone, which is prepared by means of a silent discharge (6kV) in an oxygen current of 80 ml/min. The device has an inflow 3 through which the mixture to be analyzed is provided in an air current at a flow rate of 70 ml/min. The reactive gases are removed through a discharge pipe 4. The reaction chamber 1 is heated by means of heating tape 5. The light emitted by the chemiluminescent reaction is incident through a cylinder 7 which is coated with reflective material, two quartz glass windows 13, 14, mounted in a ring 8, the cylinder 10 which is coated with reflecting material and one or more optical filters mounted in ring 11 onto the photomultiplier tube 12. This tube is accommodated together with the light pipes in a thermoelectrically cooled casing 9.
It would have been obvious to one of ordinary skill in the art at the time the application was filed to modify the Johnson device by adding a heater to heat the gas lines as taught by Ehrhorn or in the article described by van Heusden because of the increase in sensitivity at temperature above room temperature as taught by van Heusden or to avoid condensation of water vapor in the system as taught by Ehrhorn.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The additionally cited art is directed to various chemiluminescence detector structures, gas distribution structures and optical components.
Applicant's arguments filed April 15, 2026 have been fully considered but they are not persuasive. In response to the claim changes and arguments the drawing objection has been maintained, the specification rejection has been withdrawn, the rejection under 35 U. S. C. 112(b) has been withdrawn, the anticipation rejections have been withdrawn and the obviousness rejections have been modified to incorporate the claims previously rejected as anticipated by Johnson.
With respect to the drawing objection under 37 C.F.R. 1.83(a), examiner notes that as applicant has pointed out – drawings are required by C.F.R. 1.81(a) where it is necessary for the understanding of the subject matter to be patented. Since applicant has furnished drawings, applicant determined that, in this application, drawings were necessary to understand the subject matter that is to be patented. However, C.F.R. 1.81(a) is directed to when drawings should be provided. It does not cover the content and/or completeness of the drawings. That is covered by 37 C.F.R. 1.83 in which paragraph (a) requires that a “drawing in a nonprovisional application must show every feature of the invention specified in the claims.” That paragraph further explains that conventional features disclosed in the description and claims, where their detailed illustration is not essential for a proper understanding of the invention, should be illustrated in the drawing in the form of a graphical drawing symbol or a labeled representation (e.g., a labeled rectangular box). In other words, while 37 C.F.R. 1.83(a) requires that the drawings show every feature specified in the claims, every feature does not need to be illustrated in detail in the drawings. Rather those features that are conventional or a detailed illustration is not essential for a proper understanding of the invention should be illustrated in the drawings as a graphical drawing symbol or a labeled representation such as a labeled rectangular box. In other words even though a detailed illustration of a claimed element may not be essential to understand the invention, it must still be shown in the drawings in some form. Thus the argument is not persuasive.
With respect to the obviousness rejection, examiner notes that in an obviousness rejection based on a combination of references, the basic premise is that no one reference discloses, teaches or suggests all of the elements of any claim to which the combination of references was applied. Thus, it is the teachings of the reference combination(s) that must be considered and argued against in a proper response to the obviousness rejection so that arguments against the references individually (separately) cannot show nonobviousness. In other words, attacking references individually where the rejections are based on combinations of references is nonviable on its face. 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). Thus, while examiner agrees that Johnson, Boyd and Gateau considered separately fail to disclose, teach or suggest all elements of independent claim 16, examiner urges that the references considered in the combination proposed by examiner does disclose, teach or suggest all elements of independent claim 16.
With respect to the mixer of the Johnson reference, examiner agrees that, in figure 10, metering orifices 405 and 410 appear to be arranged concentrically. However, element 308 of figure 8 is not an element of the nitric oxide analyzer of figure 10, it is an element of a completely different part, a photoreactor. While it might function to mix two gases, it does not release them into a chamber to measure light that might be produced from components therein. Rather it is located in a chamber used to illuminate the gases passing through the tubes in the chamber. Thus its function is rather different from the metering orifices 405 and 410 in figure 10.
Applicant’s statement that Johnson teaches mixing in the reactor cell 406 by a “radial pattern through the disc shaped chemiluminescent reaction cell 406" is inaccurate. Column 60, lines 56-61 teach that, "At the inlet 408 to radial-flow chemiluminescent reactor cell 406 the selected and metered stream is mixed with a metered supply of ozonised air which is provided by ozoniser 409 and delivered at a constant flow rate by metering orifice 410 to the reactor inlet 408." Column 60 lines 61-64 teach that, "The mixture from inlet 408 flows with radial flow pattern through the disc shaped chemiluminescent reaction cell 406, passing between mirrored back plate 420 and optical filter 413." From these two sequential sentences, it is clear that the mixing occurs at or before reactor inlet 408 so that the already formed mixture is what flows through radial flow chemiluminescent reaction cell 406. The sentence bridging columns 60-61 teaches that light produced in the radial flow chemiluminescent reaction cell 406 by reaction of ozone with nitric oxide passes through optical filter element 413 and is detected by photomultiplier 414. Column 61 lines 10-16 teach that advantages of the disc shaped radial flow chemiluminescent reaction cell include for a given cell volume, the system has the minimum gas mixture residence time and provides rapid purge out of the cell when a new sample stream is selected and also providing good optical coupling with the photocathode of the photomultiplier. Based on the fact that the light is produced through the reaction of two components brought together when the two flows are mixed and the fact that gas residence time in the disc shaped radial flow chemiluminescent reaction cell is minimized, one of ordinary skill in the art would have understood that the quality of the mixture would affect the amount of light produced by the reaction. Thus looking at mixing structures giving improved mixing would have been reasonably pertinent to improving the performance of Johnson’s nitric oxide analyzer.
In this respect, examiner points first to the fact that Johnson, Boyd and Gateau are directed toward structures in which two or more gases are combined/mixed to enable a reaction to occur between components of the gases. Thus each is concerned with mixing gases to enable the occurrence of a reaction. Column 1, lines 54-66 of Gateau are part of a section discussing the background of that invention. These particular lines teach that the burners used to combine/mix the gases were in general tubular or more complex. The simplest technology was represented by two concentric tubes. In that case, the tubes have dimensions (several tens of millimeters) very much greater than the flame front thicknesses. It was indispensable to let an appreciable residence time elapse (about a second and more) in order to reach a thermodynamic balance. The reactor then comprises zones of high heterogeneity with recirculation of combusting gases. A multiplicity of tubes would provide a better homogeneity but the number of tubes remains limited for industrial applications. These would point to a recognition that the concentric tube structure of Johnson produces a mixture with zones of high heterogeneity and a clear recognition that a multiplicity of tubes would provide a better homogeneity. In other words, Gateau provides a clear benefit for replacing the concentric tube mixing structure of Johnson with a multiple tube structure as disclosed by Gateau. Thus contrary to the urging of applicant, the Gateau reference includes teachings that are reasonably pertinent to a particular problem with which one looking to improve Johnson would have been concerned. As such Gateau and similar references (Boyd) are properly considered analogous art and contain motivation/reasons that one of ordinary skill in the art would have found sufficient to replace the concentric tube structure of Johnson with the plurality of alternating first and second inlet openings, each fluidically connected to different supply lines structure of Boyd or Gateau.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). As described above, the teachings of Johnson, Boyd and Gateau include knowledge which was within the level of ordinary skill at the time the claimed invention was made sufficient to motivate the replacement of the concentric tube structure of Johnson with the plurality of alternating first and second inlet openings, each fluidically connected to different supply lines structure of Boyd or Gateau.
For these reasons the arguments are not persuasive. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The additionally cited art is directed to various chemiluminescence detector structures, gas distribution structures and optical components.
Examiner notes that paragraph [0030] of the previously applied Weckstrom (US 2002/0137227) patent publication teaches that the orifices of the input conduits can be positioned in one point within the bottom end region 45 or divided, in case both of the input conduits are provided with several orifices, over the area A5 or over the volume of the bottom end region 45. While examiner elected to not apply Weckstrom in an obviousness rejection, examiner decided it would be appropriate to notify applicant of the teaching.
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.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The additionally cited art is directed to various chemiluminescence detector structures, gas distribution structures and optical components.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Arlen Soderquist whose telephone number is (571)272-1265. The examiner can normally be reached 1st week Monday-Thursday, 2nd week Monday-Friday.
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, Lyle Alexander can be reached at (571)272-1254. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ARLEN SODERQUIST/ Primary Examiner, Art Unit 1797
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