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 .
Information Disclosure Statement
The information disclosure statements submitted on 3/7/2025 and 9/17/2025 has been considered by the examiner.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
a device for changing alcohol breath analyzer in claim 28.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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 19-22, 25-27 and 30 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent 4,407,152 issued to Guth et al. (“Guth”) in view of US. Patent Application Publication 2014/331737 by Kaneblei et al. (“Kaneblei”) and U.S. Patent 4,278,636 issued to Voight et al. (“Voight”).
As for claim 19, Guth discloses a system (Fig. 1) for testing at least one alcohol breath analyzer comprising:
an alcohol breath gas generation device (Fig. 1) comprising at least one liquid column (10), wherein the gas generation device comprises a gas inlet (44, 48) arranged at a lower part of the gas generation device (see Fig. 1) and a gas outlet (50, 52) arranged at an upper part of the gas generation device (see Fig. 1), wherein gas enters the at least one liquid column (10) at the gas inlet (44, 48) and exits the at least one column (10) at the gas outlet (50, 52), and wherein a liquid (26) in the liquid column comprises water (Abstract).
Although Guth discloses that the alcohol breath gas generation device is connected to an analyzer (Guth: 82) to be tested, Guth does not disclose a test chamber, a reference measuring device, a control and registration unit, or a distribution unit as recited.
However, Kaneblei discloses (Fig. 2) a test chamber (58.1; paragraph [0063]) in fluid communication with a gas generation device (11), wherein the test chamber is arranged to receive at least one alcohol breath analyzer (5.1);
a reference measuring device (5.2) in fluid communication with the gas generation device (11);
a control and registration unit arranged to control an alcohol breath analyzer system (paragraph [0031]); and
a distribution unit in fluid communication with the gas generation device, the distribution unit arranged to distribute gas from the gas generation device to at least one of: a first gas flow path (204.1) arranged to distribute gas from the gas generation device (11) to the test chamber (58.1), a second gas flow path (204.2) arranged to distribute gas from the gas generation device (11) to the reference measuring device (5.2), and a third gas flow path (204.10) arranged to distribute gas from the gas generation device (11) to an opening to the ambient air (at 333; paragraphs [0063] and [0064]).
It would have been obvious for one having ordinary skill in the art before the effective filing date of the present application to modify the system of Guth by including the test chamber, reference measuring device, control and registration unit, and distribution unit as disclosed by Kaneblei in order to allow multiple analyzers to be tested together.
Guth as modified by Kaneblei does not disclose that the control and registration unit is arranged to register testing results.
However, Voight discloses a control and registration unit (25) that is arranged to register testing results (col. 4, lines 4-6).
It would have been obvious for one having ordinary skill in the art before the effective filing date of the present application to modify the control and registration unit of Guth and Kaneblei to register testing results as disclosed by Voight in order to automate the testing of the analyzer.
As for claim 20, Guth as modified by Kaneblei and Voight discloses that the system further comprises valve means (Kaneblei: 55.1, 55.2, 55.10) arranged to shift the gas flow between the first gas flow path, the second gas flow path, and the third gas flow path.
As for claim 21, Guth as modified by Kaneblei and Voight discloses that the third gas flow path (Kaneblei: 204.10) is arranged to distribute gas from the gas generation device (Guth: Fig. 1 and Kaneblei: 11) to an outlet (Kaneblei: 333).
As for claim 22, Guth as modified by Kaneblei and Voight discloses that the test system comprises a first valve (Guth: 92) arranged at the inlet at the gas generation device, arranged to regulate the gas flow into the gas generation device, a second valve (Guth: 104 and Kaneblei: 40.1) arranged in between the gas generation device, and the distribution unit, the second valve is arranged to regulate the gas flow from the gas generation device to the distribution unit, a third valve (Kaneblei: 55.1), a fourth valve (Kaneblei: 55.10), and a fifth valve (Kaneblei: 55.2) arranged at the distribution unit, the third valve (Kaneblei: 55.1) is arranged to regulate the gas flow into a first gas tube (Kaneblei: 204.1), the fourth valve (Kaneblei: 55.10) arranged to regulate the gas flow into a third gas tube (Kaneblei: 204.10), and the fifth valve (Kaneblei: 55.2) arranged to regulate the gas flow into a second gas tube (Kaneblei: 204.2), wherein the first valve, the second valve, and the third valve are arranged to control the gas flow in the first gas flow path, the first valve, the second valve, and the fifth valve are arranged to control the gas flow in the second gas flow path, and the first valve, the second valve, and the fourth valve are arranged to regulate the gas flow in the third gas flow path (Kaneblei: see Fig. 2).
As for claim 25, Guth as modified by Kaneblei and Voight discloses test system according to claim 19 (see the rejection of claim 19 above).
Guth as modified by Kaneblei and Voight does not disclose that the gas generation device has a volume of 3000-7000 cm3.
However, at the time the application was filed, it would have been an obvious matter of design choice to a person of ordinary skill in the art to design the gas generation device to have a volume of 3000-7000 cm3 because Applicant has not disclosed that providing a specific volume provides an advantage, is used for a particular purpose, or solves a stated problem. One of ordinary skill in the art, furthermore, would have expected the gas generation devices of the Guth- Kaneblei-Voight combination and applicant’s invention to perform equally well with either the volume implied by the Guth- Kaneblei-Voight combination or the claimed volume because both volume dimensions would perform the same function of holding an alcohol-water solution and an air-alcohol-vapor mixture.
Therefore, it would have been prima facie obvious to modify Nash to obtain the invention as specified in claim 25 because such a modification would have been considered a mere design consideration which fails to patentably distinguish over the prior art of Guth, Slemeyer, Kaneblei and Voight.
As for claim 26, Guth as modified by Kaneblei and Voight discloses that the liquid column has a volume of 2000-3000 ml (Guth: col. 3, lines 59-61 and Fig. 2).
As for claim 27, Guth as modified by Kaneblei and Voight discloses that the gas generation device further comprises a dead space (Guth: space above 122 in Fig. 2), and wherein the volume of the dead space is 0.1-3.5 L (Guth: col. 3, lines 59-61 and Fig. 2).
As for claim 30, Guth as modified by Kaneblei and Voight discloses test system according to claim 19 (see the rejection of claim 19 above).
Guth as modified by Kaneblei and Voight does not disclose that the test system comprises more than one gas generation devices, such as two gas generation devices or three.
However, Kaneblei discloses that multiple gas sources can be attached to the system (Kaneblei: see Fig. 2). Furthermore, it has been held that mere duplication of parts has no patentable significance unless a new and unexpected result is produced. See MPEP 2144.04 (VI)(B). Therefore, it would have been obvious for one having ordinary skill in the art before the effective filing date of the present application to modify the system of Guth, Kaneblei and Voight to duplicate the gas generation devices in order to achieve the predictable result of providing redundant sources of calibration gases that can be used to calibrate the gas analyzers.
Claim 23 is rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent 4,407,152 issued to Guth et al. (“Guth”) in view of U.S. Patent Application Publication 2014/331737 by Kaneblei et al. (“Kaneblei”) and U.S. Patent 4,278,636 issued to Voight et al. (“Voight”) as applied to claim 22, further in view of EP 0070738 by Duggin et al. (“Duggins”).
As for claim 23, Guth as modified by Kaneblei and Voight discloses test system according to claim 22 (see the rejection of claim 22 above).
Guth as modified by Kaneblei and Voight does not disclose that the inner diameter of the valves is 0.5-2 cm. Instead, Guth and Kaneblei teach valves of undisclosed sizes that open and close to control the flow of fluid (Guth: see Fig. 1 and Kaneblei: see Fig. 2).
However, Duggins discloses a valve having an inner diameter of 0.5-2 cm (page 37, lines 12-15). Duggins discloses that the valve opens and closes to control the flow of fluid (page 37, lines 12-15).
Because Duggins and Guth and Kaneblei disclose valves that open and close to control the flow of fluid, it would have been obvious for one having ordinary skill in the art before the effective filing date of the present application to substitute the valve of Duggins for each of the valves of Guth and Kaneblei to achieve the predictable result of providing valves that open and close to control the flow of fluid.
Claim 24 is rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent 4,407,152 issued to Guth et al. (“Guth”) in view of U.S. Patent Application Publication 2014/331737 by Kaneblei et al. (“Kaneblei”) and U.S. Patent 4,278,636 issued to Voight et al. (“Voight”) as applied to claim 19, further in view of U.S. Patent 10,925,515 issued to Purves (“Purves”).
As for claim 24, Guth as modified by Kaneblei and Voight discloses test system according to claim 19 (see the rejection of claim 19 above) and that the test system comprises at least a first heater (Guth: 64) arranged to heat the system.
Guth as modified by Kaneblei and Voight does not disclose that the test system comprises at least a second heater arranged to heat the system.
However, Purves discloses a second heater (col. 14, lines 25-32) arranged to heat a system (6, 8).
It would have been obvious for one having ordinary skill in the art before the effective filing date of the present application to modify the system of Guth, Slemeyer, Kaneblei and Voight to include the second heater as disclosed by Purves in order to reduce condensation (Purves: col. 14, lines 25-32).
Guth as modified by Kaneblei, Voight and Purves discloses that the test system comprises a first (Guth: 64) and second (Purves: col. 14, lines 25-32) heater arranged to heat the system so that the temperature is higher at the distribution unit (Purves: 40º C; col. 14, lines 25-32) than at the gas generation device (Guth: 34º C).
Claims 28 and 29 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent 4,407,152 issued to Guth et al. (“Guth”) in view of U.S. Patent Application Publication 2014/331737 by Kaneblei et al. (“Kaneblei”) and U.S. Patent 4,278,636 issued to Voight et al. (“Voight”) as applied to claim 19, further in view of U.S. Patent 7,104,115 issued to Kahn et al. (“Kahn”).
As for claim 28, Guth as modified by Kaneblei and Voight discloses test system according to claim 19 (see the rejection of claim 19 above) and that the test system comprises at least a first heater (Guth: 64) arranged to heat the system.
Guth as modified by Kaneblei and Voight does not disclose that the test system further comprises a device for changing alcohol breath analyzer arranged in the test chamber.
However, Kahn discloses a test system (Figs. 1L and 1M) that further comprises a device (116, 119D) for changing an analyzer (111) arranged in a test chamber (119’’).
It would have been obvious for one having ordinary skill in the art before the effective filing date of the present application to modify the test system of Guth, Kaneblei and Voight to include the device for changing an analyzer as disclosed by Kahn in order to allow analyzers to be calibrated with respect to each other (Kahn: col. 3, lines 41-50).
As for claim 29, Guth as modified by Kaneblei, Voight and Kahn discloses that the device for changing alcohol breath analyzer (Kahn: 116) comprises a revolver mechanism (Kahn: 116, 119D; col. 17, lines 21-26).
Response to Arguments
Applicant’s arguments with respect to claim 19 have been considered but are moot in view of the new grounds of rejection. The examiner notes that the inlet and outlet of Guth have been reinterpreted in view of the amended scope of the independent claim.
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 JUSTIN N OLAMIT whose telephone number is (571)270-1969. The examiner can normally be reached M-F, 8 am - 5 pm (Pacific).
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/JUSTIN N OLAMIT/Primary Examiner, Art Unit 2853