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 39, MPEP 2111.02(II) states “the claim preamble must be read in the context of the entire claim. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction.” Therefore, the limitations of “for absorbing precipitation water from rain events, especially from driving rain events” and “and for water discharge by evaporation” in the preamble of Claim 39 are not given patentable weight.
With regard to Claim 47, “one or more actuators is not positively claimed. As stated in MPEP § 2115, a claim is only limited by positively recited elements. Examples of positively recited elements in Claim 47 comprise "first layer” and “second layer”.
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 § 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 39-65 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 39, “especially from driving rain events” is indefinite since it is not clear what the intended scope of the claim is, and since it is not clear of what rain events are included by the term “driving”.
With regard to Claim 39, line 6, “these layers” lacks antecedent basis in the claims. The Examiner suggests “wherein the first, water-permeable layer and the second, water-guiding layer are connected”.
With regard to Claim 39, line 8, the term “preferably” is indefinite since it is not clear what the intended scope of the claim is. See MPEP § 2173.05(d). Furthermore, it is not clear if “a water discharge conduit” or “a water supply conduit” are part of the apparatus or not.
With regard to Claim 42, the claim recites “the apparatus and/or the textile element”. It is not clear what the differences between the two are. If the textile element is a subset of the apparatus, it is not clear what is claimed for the variation of “the apparatus and the textile element”.
With regard to Claim 43, if “the textile element” and “the three-dimensional textile structure” refer to the same limitation, please delete one of them.
With regard to Claim 43, line 2, since the term “preferably” occurs before any of the further limiting recitations, it is not clear if any of these recitations are required.
With regard to Claim 43, line 3, “and/or other appropriate materials” is indefinite since it is not clear what other appropriate materials includes.
With regard to Claim 44, it is unclear what “filament shape optimization” means. Does the first layer have a filament shape or not?
With regard to Claim 44, line 4, it is unclear what “this layer” refers to. Furthermore, “the spacing structure” lacks antecedent basis in the claims.
With regard to Claim 45, it is unclear what “filament shape optimization” means. Does the first layer have a filament shape or not?
With regard to Claim 45, line 4, it is unclear what “this layer” refers to.
With regard to Claims 46 and 48, the claim recites “the apparatus and/or the textile element”. It is not clear what the differences between the two are. If the textile element is a subset of the apparatus, it is not clear what is claimed for the variation of “the apparatus and the textile element”.
With regard to Claim 49, line 3, “e.g., printing on textile substrate fabric” is indefinite since this is exemplary language.
With regard to Claim 51, “e.g. for a control unit” is indefinite since this is exemplary language; furthermore, “for a control unit” appears to be intended use rather than a claimed limitation.
With regard to Claim 53, “the components” lacks antecedent basis in the claims.
With regard to Claim 55, “the building” lacks antecedent basis in the claims.
With regard to Claim 55, how can the filter be integrated into the textile element AND arranged in or on the water collecting device AND in the building?
With regard to Claim 58, it is not clear if the terms inside the parentheses including “(inside)” and “(outside)” are part of the claim language or optional. Furthermore, it does not appear that the abbreviations “I” or “O” are used in dependent claims on their own and it is unclear what their utility is.
With regard to Claim 62, first and last line, “the further apparatus” lacks antecedent basis in the claims.
With regard to Claim 63, the term “preferably” renders the claim indefinite since it is not clear if “modular profile system” is required by the claim.
With regard to Claim 63, line 2, “the components” lacks antecedent basis in the claims.
With regard to Claim 64, “the building” lacks antecedent basis in the claims.
With regard to Claim 64, the method step of using precipitation water is not connected to a method for operating an apparatus. It does not appear that any method steps for operating the apparatus are set forth. See MPEP § 2173.05(q).
With regard to Claim 65, line 2, the term “in particular” renders the claim indefinite since it is not clear if “an apparatus according to claim 39” is required by the claim.
With regard to Claim 65, line 7, “e.g. by means of consumption analysis” is indefinite since this is exemplary language, such that it is not clear if this term is required by the claim.
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).
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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 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 these layers 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 ([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 and/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 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.
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).
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 precipitation water used to operate the apparatus of Claim 39.
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.
Prior Art
Claims 47, 57, 60, 61, and 65 do not have prior art rejections at this time. However, the 112(b) rejections over the claims are too numerous to indicate allowable subject matter at this time.
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 9 AM - 5:30 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Vickie Kim can be reached at 571-272-0579. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Benjamin Lebron
Primary Examiner
Art Unit 1777
/BENJAMIN L LEBRON/Primary Examiner, Art Unit 1777
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