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 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 1 and 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Chiba (JP S63102663-A; with English machine translation).
Regarding claim 1, It is noted that while the invention contains a piston, the piston is not positively recited in the instant claims. Chiba discloses a cartridge for a plurality of petri-dishes, comprising: a cylindrical cartridge housing configured to receive the plurality of petri-dishes
in a stack aligned with an axial direction of the cartridge housing in an interior space of the cartridge housing such that the stack of petri-dishes can be moved in the axial direction within the interior space (FIGS. 1-9: basket (6) configured to receive the plurality of petri-dishes (1); see pages 3-7 of the English machine translation document), wherein an axial end portion of the cartridge housing has a first opening dimensioned so that the petri-dishes can be exposed from the cartridge housing by the sliding motion in the axial direction (see FIGS. 2-9: basket (6) includes an upper opening),
wherein another axial end portion of the cartridge housing has a second opening dimensioned to prevent removal of the petri-dishes through the second opening and so that a piston can be inserted into the interior space of the cartridge housing for moving the stack of petri-dishes in the axial direction towards the first opening (see FIGS. 2-9: basket (6) includes a lower opening configured to receive a lifting device (7a,b); pages 5 to 6). Chiba discloses the claimed second opening having an outline (see, e.g., FIGS. 2 and 5), but does not explicitly disclose the outline includes a plurality of recesses or protrusions distributed about a circumference of the second opening. However, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the shape of the outline of the second opening or Chiba to comprise the claimed outline, since it has been held that a mere change in shape of an element is generally recognized as being within the level of ordinary skill in art when the change in shape is not significant to the function of the combination (see MPEP 2144.04 IV.B.).
Furthermore, it is noted that the phrase “can be” renders the limitation(s) following the phrase optional. Furthermore, it is noted that the recitations of functional language "e.g., for a plurality of petri-dishes; to receive the plurality of petri-dishes in a stack aligned with an axial direction of the cartridge housing in an interior space of the cartridge housing such that the stack of petri-dishes can be moved in the axial direction within the interior space; and, for moving the stack of petri-dishes in the axial direction towards the first opening" are drawn to intended use of the claimed invention. It is noted that a recitation directed to the manner in which a claimed apparatus is intended to be used does not distinguish the claimed apparatus from the prior art, if the prior art has the capability to so perform. Apparatus claims must distinguish from the prior art in terms of structure rather than function (see MPEP 2114). The prior art discloses all of the structural features of the claimed cartridge and thus since the structure is the same, the claimed functions are apparent.
Regarding claim 17, regarding the limitation “wherein the piston is formed to be able to enter the second opening in a first rotational position and to be prevented from entering the second opening in a second rotational position,” as discussed above, the piston is not positively recited in the instant claims.
Regarding claim 18, Chiba discloses wherein the outline of the second opening is complementary to a shape of a head of the piston (see, e.g., FIGS. 2 and 5, which show the outline of the second opening being complementary to the shape of the lifting device (7a-7b).
Claim(s) 2-3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chiba as applied to claim 1 above, and further in view of Mori (already of record, JP 2004-154099-A; English machine translation has been provided).
Regarding claims 2-3, Chiba discloses the cartridge according to claim 1. Chiba discloses wherein a plurality of petri-dishes in a stack received in the interior space of the cartridge housing (see FIGS. 1-9), but does not explicitly disclose that the plurality of petri-dishes in the stack received in the interior space of the cartridge housing is in a sterile environment, and a film respectively sealing the first and second openings in a removable manner. Although Chiba does not explicitly disclose wherein the petri-dishes are sealed with a removable film in a sterile environment, Chiba discloses that petri-dishes are used for containing culture medium (see page 1). Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have employed a removable sealing film with the openings of the cartridge housing of Chiba in a sterile manner, because Mori discloses that it is well known in the art to maintain culture petri-dishes in a sterile environment by employing covers (see Mori at pages 1-2 of the English machine translation document). One of ordinary skill in the art would have made said modification for the purpose of preserving the culture medium within the petri-dishes.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1-3 have been considered but are moot in view of the new ground of rejection. It is respectfully submitted that the limitations of amended claim 1 are disclosed by the reference of Chiba in view of the revised rejection discussed above.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action. Any inquiry concerning this communication or earlier communications from the examiner should be directed to LIBAN M HASSAN whose telephone number is (571)270-7636. The examiner can normally be reached on 8:30 AM - 5:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Marcheschi can be reached on 5712721374. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LIBAN M HASSAN/Primary Examiner, Art Unit 1799
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