DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Interpretation
With regard to Claim 49, lines 2-4, “and/or are introduced into the textile element by means of additive or subtractive manufacturing methods e.g. printing on textile substrate fabric” are product-by-process limitations. MPEP § 2113 states that “even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process”. Therefore, the structure implied by the process steps of “and/or are introduced into the textile element by means of additive or subtractive manufacturing methods e.g. printing on textile substrate fabric” will be considered when assessing patentability of Claim 49. However, the Applicant should note that “the Patent Office bears a lesser burden of proof in making out a case of prima facie obviousness for product-by-process claims because of their peculiar nature" than when a product is claimed in the conventional fashion. In re Fessmann, 489 F.2d 742, 744, 180 USPQ 324, 326 (CCPA 1974). See MPEP § 2113(II).
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim 65 is rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claim 65 recites a method for controlling and/or regulating an apparatus for absorbing precipitation water from rain events and discharging water by evaporation, the method comprising the following steps:
Retrieving forecast weather data from a weather service for a defined time period,
estimating the consumption of drinking water, raw water and/or grey water in, on or outside a building or civil engineering structure for the defined time period, and
comparing the estimated consumption of drinking water, raw water and/or grey water with expected precipitation water yields from the forecast weather data.
The limitations of “estimating” and “comparing” are processes that, under broadest reasonable interpretation, cover performance of the limitation in the mind. See MPEP § 2106.04(a)(2)(III). A user may “estimate” consumption of drinking water, raw water and/or grey water by looking at utility bills or making back of the envelope calculations requiring only pencil and paper. The user may also “compare” the estimated consumption with forecast weather data using only lookup tables.
The judicial exceptions are not integrated into a practical application. The preamble is directed to a method for controlling and/or regulating an apparatus for absorbing precipitation water from rain events and discharging water by evaporation, but there are not method steps claimed directed to controlling and/or regulating the generically claimed apparatus. As a result, the claim appears directed to generally linking the use of the judicial exceptions to a particular technological environment or field of use. See MPEP § 2106.05(h) and 2106.04(d).
The claim does not include additional elements that are sufficient to amount to significantly more than the judicial exception. The claimed limitation of retrieving forecast weather data from a weather service for a defined time period appears to be mere data gathering, and which does not integrate the judicial exceptions into a practical application. See MPEP § 2106.05(g).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 60 and 61 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
With regard to Claim 60, the claim is dependent on Claim 58. Furthermore, Claim 60 sets forth further limitations regarding two fluid-flow-through layers and the insulation layer. However, the fluid-flow-through layers and insulation are not set forth until Claim 59. Therefore, Claim 60 appears to be dependent on Claim 59 rather than Claim 58.
With regard to Claim 61, the claim is dependent on Claim 58. Furthermore, the claim states “wherein one of the two or both fluid-flow-through layers”. However, two fluid-flow-through layers are not recited until Claim 60. Therefore, Claim 61 appears to be dependent on Claim 60 rather than Claim 58.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 39-46, 51, 53-54, 56, 58-59, and 62-63 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Dumortier et al (WO 2019/162607, machine translation), as evidenced by Cascone et al (“The evapotranspiration process in green roofs: A review”).
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With regard to Claim 39, Dumortier et al (Dumortier) discloses a connected modular greening device for a building (Abstract). Dumortier discloses an apparatus for absorbing precipitation water from rain events and for water discharge by evaporation ([0005], greening buildings helps retain rainwater; dew on grass discharges via evaporation).
Dumortier discloses at least one textile element for absorbing water from rainwater drops, wherein the textile element is configured to absorb precipitation water ([0050], textile material can retain water). Dumortier discloses that the greening of buildings regulates ambient temperature via evapotranspiration ([0008]).
While Dumortier does not explicitly disclose the processes of evapotranspiration, Cascone discloses that the phenomenon of evapotranspiration is a combination of transpiration from vegetation plus moisture evaporated from the soil surface and vegetation surface (Page 338/Column 1/Section 2). Therefore, the textile surface of Dumortier would inherently discharge water by evaporation, in addition to evaporation of moisture from the vegetation surfaces.
Dumortier discloses wherein the textile element is designed as a three-dimensional textile structure ([0043]-[0054], vegetated module). Dumortier discloses a first, water-permeable layer and a second, water-guiding layer ([0048]-[0049], Figure 1, culture complex formed by two layers of synthetic felt with upper layer 3 being first, water permeable layer, and lower layer 2 guiding water along rigid plate 1).
Dumortier discloses wherein the first, water-permeable layer and the second, water-guiding layer are connected to one another by means of water-guiding, connecting threads ([0051], Figure 1, core formed by flexible grid 4 arranged between the two layers 2 and 3). Dumortier discloses wherein the textile element is fluidically connected to a water supply conduit of the apparatus ([0054], Figure 1, conduit 6 runs along upper edge of the complex for the water supply).
With regard to Claim 40, Dumortier discloses wherein a water collecting device is provided which is flow-connected to the textile element ([0064], reservoir 15 (water collecting device) fed by gutter 16).
With regard to Claim 41, Dumortier discloses wherein a water supply device is provided which is flow-connected to the textile element and/or to the water supply conduit ([0063], solenoid valve (water supply device) ensuring flow of water into the conduit 6 (water supply conduit)).
With regard to Claim 42, Dumortier discloses wherein the apparatus or the textile element comprises hydrophilic and/or hydrophobic modifications ([0050], felt sheets 2 and 3 are highly hydrophilic).
With regard to Claim 43, Dumortier discloses wherein the textile element is formed from synthetic fibers ([0050]).
With regard to Claim 44, Dumortier discloses wherein the first layer has a water-attracting and/or hydrophilic lamination, coating, finishing ([0050], felt sheet 2 is highly hydrophilic).
With regard to Claim 45, Dumortier discloses wherein the second layer has a water-guiding lamination, coating, finishing ([0050], felt sheet 3 is highly hydrophilic, suggesting water will absorb into second layer and be guided through the textile).
With regard to Claim 46, Dumortier discloses wherein the textile is planar (Figure 1).
With regard to Claim 51, Dumortier discloses wherein sensors are provided, by means of which climate and/or environmental data are recorded ([0034], humidity probe).
With regard to Claim 53, Dumortier discloses wherein a holding device is provided to which the components of the apparatus are attached or attachable ([0048]-[0049], rigid plate 1).
With regard to Claim 54, Dumortier discloses wherein the water collecting device comprises a frame profile and/or a water storage for storing precipitation water (0064], reservoir 15 (water collecting device) fed by gutter 16).
With regard to Claim 56, Dumortier discloses wherein a pump is provided which is flow connected with the water supply device ([0063], pump 8 connected to solenoid valve).
With regard to Claim 58, Dumortier discloses the apparatus according to Claim 39. Dumortier discloses a façade system including the apparatus separates a building interior from an exterior space ([0035], the apparatus may be fixed to walls or a roof).
With regard to Claim 59, Dumortier discloses whereon on the side on which the second textile layer of the textile element of the apparatus is located, the façade system has at least one inner layer ([0048]-[0049], rigid plate 1 (inner layer)).
With regard to Claim 62, Dumortier discloses wherein said further apparatus forms an inner layer of the façade system, wherein the first layer of the textile element of the further apparatus faces the building interior ([0048]-[0049], the textile element forms the inner layer).
With regard to Claim 63, Dumortier discloses wherein the façade system comprises a modular profile system to which the components of the façade system is attached or attachable ([0028], modules are mounted in a removable manner).
Claims 39, 48-49, and 55 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Stegmaier et al (DE 102010003953, machine translation).
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With regard to Claim 39, Stegmaier et al (Stegmaier) discloses structure formed as textile element connected by spacing threads (Abstract). Stegmaier discloses an apparatus for absorbing precipitation water from rain events and for discharge by evaporation ([0070], Fig 16, mist/fog collector 1). Stegmaier discloses at least one textile element, wherein the textile element is configured to absorb precipitation water and to discharge water by evaporation ([0070], Fig 16, mist/fog collector 1 absorbs precipitation water and can discharge water by evaporation from its surfaces). Stegmaier discloses wherein the textile element is designed as a three-dimensional textile structure (Figure 14, [0091]). The reference discloses a first, water-permeable layer and a second, water-guiding layer, wherein these layers are connected to one another by means of water-guiding, connecting threads ([0091], Figure 14, textile element 12e has first textile layer 13e (first water-permeable layer) and second textile layer 13f (second, water-guiding layer) connected by spacer threads 20 (water-guiding, connecting threads)). The textile element is fluidically connected to a water discharge conduit ([0097], collecting channel 8).
With regard to Claim 48, Stegmaier discloses wherein the textile element comprises folding structures which divide the textile element into several foldable, folded, pivotable, and/or rotatable sections (Figure 16, [0097], fog collector 1 comprises bending points 23a and 23b such that the textile element is foldable).
With regard to Claim 49, Stegmaier discloses wherein the folding structures have a mechanical substructure (Figure 16, [0097], carriers 22a and 22b are mechanical substructures).
With regard to Claim 55, Stegmaier discloses wherein a filter for filtering precipitation water is provided, wherein the filter is arranged in or on the water collecting device ([0097], Figure 16, filter provided in drain line 9).
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.
Claim 57 is rejected under 35 U.S.C. 103 as being unpatentable over Dumortier et al (WO 2019/162607, machine translation), as evidenced by Cascone et al (“The evapotranspiration process in green roofs: A review”), as applied to the claims above, and in further view of Stephan (US 2015/0007601).
With regard to Claim 57, Dumortier discloses all the limitations in the claims as set forth above. However, Dumortier is silent to wherein the water supply device and/or the water collecting device is connected to a heat exchanger.
Stephan discloses a building cooling system involving circulation of a cooling liquid in a hydraulic circuit comprising multiple tanks and a heat exchanger connected in series (Abstract). When the system is in operation a hydraulic pump circulates cooling liquid from the first tank to the second tank through the heat exchanger (Abstract). Stephan discloses that passive cooling systems, such as cooling by evaporation, use different heat exchange systems than traditional air conditioning units that require large quantities of electricity ([0004]). Stephan discloses that the cooling liquid is preferably rainwater collected from the roof of a building ([0066]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for wherein the water supply device and/or the water collecting device of Dumortier is connected to a heat exchanger, as taught by Stephan, in order to operate a passive cooling system in the building using the collected water from the green roof, further reducing the amount of energy required to operate the building and further contributing to the greening of the building.
Claims 64 are rejected under 35 U.S.C. 103 as being unpatentable over Dumortier et al (WO 2019/162607, machine translation), as applied to the claims above.
With regard to Claim 64, Dumortier discloses all the limitations in the claims as set forth above. Dumortier discloses the apparatus of Claim 39. Dumortier discloses the apparatus is used for vegetated greening of buildings ([0028]). However, Dumortier is silent to supplying precipitation absorbed by the apparatus for use in, on, or outside the building.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for wherein precipitation water is used to operate the apparatus of Claim 39, in order to promote vegetated greening of buildings.
Claims 50 and 52 are rejected under 35 U.S.C. 103 as being unpatentable over Stegmaier (DE 102010003953, machine translation), as applied to the claims above.
With regard to Claims 50 and 52, Stegmaier discloses all the limitations in the claims as set forth above. Stegmaier discloses that deflection or folding of the textile element offers significantly lower flow resistance to the naturally moving mist ([0098]. However, Stegmaier is silent to wherein actuators are provided, by means of which the foldable, folded, pivotable, and/or rotatable sections can be operated (Claim 50), wherein a control unit for operating and/or regulating the actuators is provided, wherein the control unit is configured in such a way that the textile element and/or sections thereof are oriented towards precipitation (Claim 52).
However, broadly providing an automatic or mechanical means to replace a manual activity which accomplished the same result is not sufficient to distinguish over the prior art. See MPEP § 2144.04(III), citing In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for wherein actuators are provided, by means of which the foldable, folded, pivotable, and/or rotatable sections can be operated (Claim 50), wherein a control unit for operating and/or regulating the actuators is provided, wherein the control unit is configured in such a way that the textile element and/or sections thereof are oriented towards precipitation (Claim 52), since broadly providing an automatic or mechanical means to replace a manual activity which accomplished the same result is not sufficient to distinguish over the prior art. See MPEP § 2144.04(III), citing In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958).
Allowable Subject Matter
Claims 47, 60, and 61 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. The Examiner notes that Claims 60 appears to be dependent on Claim 59, and Claim 61 appears to be dependent on Claim 60, as set forth in the 35 USC 112(b) rejection above.
None of Dumortier, Stephan, Cascone, nor Stegmaier disclose operating actuators to displace the layers of the textile relative to one another along a direction parallel to the plan of the first layer or the second layer. Furthermore, the prior art appears to be free of the combination of Claims 39 and 47.
With regard to Claims 60 and 61, the prior art is silent to the combination of fluid flow layers sandwiching an insulation layer for the textile element of Claim 39 and façade system of Claims 58 and 59, as set forth in Claim 60.
Response to Arguments
The Examiner has made a new 35 USC 103 rejection over Claim 57, made new 35 USC 112(b) rejections over Claims 60 and 61, and made a new 35 USC 101 rejection over Claim 65. Therefore, this Office action is Non-Final.
Applicant’s arguments dated 19 November 2025 regarding previous rejections under 35 USC 112(b) have been fully considered and are persuasive. The Examiner appreciates Applicant’s efforts in amending the claims to be in compliance with 35 USC 112(b). All previous 35 USC 112(b) rejections have been withdrawn.
Applicant argues on Page 8 of the filing that Dumortier fails to describe the feature of discharging water by evaporation. Applicant argues that any water loss occurring in Dumortier results solely from evapotranspiration from the vegetation. Applicant argues that evaporation and evapotranspiration are different processes as evaporation is a physical process while evapotranspiration is a biological process.
In response, the Examiner respectfully disagrees with Applicant’s definition of evapotranspiration. As can be seen from evidentiary reference Cascone, the phenomenon of evapotranspiration is a combination of transpiration from vegetation plus moisture evaporated from the soil surface and vegetation surface (Page 338/Column 1/Section 2). Therefore, the textile surface of Dumortier would inherently discharge water by evaporation, in addition to evaporation of moisture from the vegetation surfaces.
Applicant argues on Pages 8 to 9 of the filing that Dumortier fails to describe the water-guiding layer of Claim 39. Applicant points to an example from the specification of a water-guiding (water-repellent) and/or hydrophobic lamination, coating, finishing, etc. Applicant argues that Dumortier’s two layers of synthetic felt are not water-guiding or water-evaporating layers. Applicant argues that Dumortier’s hydrophilic, synthetic felt layers attract and hold moisture but do not guide water along defined paths or toward a collecting device. Applicant argues that the Office’s interpretation of the “lower layer 2” as a water-guiding layer does not conduct water along a functional structure or surface as it merely retains moisture for roots. Applicant argues that Dumortier’s synthetic felt layers serve the exact same purpose, and have no functional difference. Applicant argues that Dumortier fails to describe a water-guiding layer, let alone a water-guiding layer that is separate and distinct from a water-permeable layer.
In response, the Examiner respectfully disagrees. Dumortier discloses that a conduit 6 runs along the upper edge of the complex for the water supply ([0054]). If the lower felt layer 2 were not a water-guiding layer, as Applicant argues, then the water from the conduit would not be able to permeate through the complex, allowing vegetation roots to soak up the water from the lower felt layer 2. Applicant’s interpretation of Dumortier’s lower felt layer 2 would cause the apparatus of Dumortier to be inoperable for its intended purpose. Therefore, the Examiner maintains that Dumortier’s lower felt layer 2 is a water-guiding layer that guides water through the complex between the water supply conduit 6 ([0054]) and the gutter 16 which is a water collecting device ([0064]). Finally, the Examiner notes that none of the claims require the water-guiding layer to be hydrophobic, as any limitations directed to hydrophobic lamination are recited as optional or alternative embodiments.
Applicant argues on Dumortier fails to describe the connecting threads of Claim 39. Applicant argues that a mesh is not a set of connecting threads, and that the flexible grid has no water transporting function and does not guide water in any direction. Applicant argues that the geometry of Dumortier’s flexible grid is incompatible with the capillary style water-guiding behavior exemplified by the connecting threads of Claim 39.
In response, the Examiner respectfully disagrees. Merriam-Webster defines mesh as “one of the openings between the threads or cords of a net” or “a woven, knit, or knotted material of open texture with evenly spaced holes”. Furthermore, the holes of the meshes may guide water through them. Therefore, the Examiner maintains that the claimed water-guiding connecting threads may be rejected by the flexible grid made of plastic material, with meshes having a section of a few millimeters of Dumortier.
Applicant argues on page 10 of the filing that Stegmaier does not disclose a first, water-permeable layer and a second, water-guiding layer. Applicant argues that Stegmaier emphasizes that the textile layer 13e and 13f are essentially the same and serve the same function. Applicant argues that these two layers are described as having an analogous, uniform structure to provide a low-resistance flow path for aerosol. Applicant argues that textile layers 13e and 13f are distinct from the water-permeable layer and the water-guiding layer of Claim 39 considering that they merely intercept particles within an airflow-through system.
In response, the claim language of “first, water-permeable layer” and “second, water-guiding layer” in Claim 39 do not imply that the first and second layers need to be of different structure or material. Both layers may be water-permeable and both layers may be water-guiding. The functional language of “water-guiding” is especially vague, and does not mean that the second layer is hydrophobic, or of a specific material, or of a specific shape. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). If the textile layer 13f of Stegmaier can guide water across its surface, which, as a fog/mist collector, it inherently can, then the textile layer 13f of Stegmaier meets the limitation. Applicant’s arguments are not persuasive.
Applicant argues on page 11 of the filing that Stegmaier fails to describe the connecting threads of Claim 39. Applicant argues that the spacer threads 20 connecting the first and second textile layers are not water-guiding connecting threads. Applicant argues that Stegmaier’s spacer threads 20 do not have water transporting or water guiding functions. Applicant argues that the geometry and purpose of the spacer threads 20 are incompatible with the capillary water-guiding behavior exemplified by the connecting threads of Claim 39.
In response, Claim 39 recites that “the first, water-permeable layer and the second, water-guiding layer are connected to one another by means of water-guiding, connecting threads”. The Examiner notes that no limitations are present regarding the connecting threads having capillary action. Furthermore, as above, the functional language of “water-guiding” is especially vague. If the spacer threads 20 of Stegmaier can guide water across its surface, which, as a fog/mist collector, it inherently can, then the spacer threads 20 of Stegmaier meets the limitation. Applicant’s arguments are not persuasive.
Applicant argues on page 11 of the filing that Stegmaier’s collecting channel merely collects water after it drips off the textile surface. Applicant argues that Stegmaier’s structure does not transport water towards this channel, and Stegmaier’s structure is not integrated into a fluidic system. Applicant argues that water movement in Stegmaier’s structure occurs only by passive dripping after condensation and not through a guided transport within a textile.
In response, Stegmaier’s structures meet the limitation of “the textile element is fluidically connected to a water discharge conduit of the apparatus”. The fact that water collected on the textile surface of Stegmaier can drip down to the collecting channel shows that the water is guided from the textile surface to the collecting channel and that the textiles and collecting channel are fluidically connected. If water were not guided from the textile surface to the collecting channel or if the textiles and collecting channel were not fluidically connected, then water would not be collected in the collected channel. However, Stegmaier states that water is collected in the collecting channel ([0097]), such that the structure of Stegmaier meets the claimed limitations.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BENJAMIN LEBRON whose telephone number is (571)272-0475. The examiner can normally be reached 7 AM - 4 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Benjamin Lebron can be reached at (571) 272-0475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Benjamin Lebron
Supervisory Primary Examiner
Art Unit 1773
/BENJAMIN L LEBRON/Supervisory Patent Examiner, Art Unit 1773
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