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 .
Response to Amendment
The amendments filed on 03/05/2026 has been entered. Claims 1, 7, 10, and 12 have been amended; claims 13-15 have been withdrawn.
Applicant’s amendments to the claims in the Remarks dated 03/05/2026, page 6 – paragraph 1, discussed an addition of claim 21. However, the claim set dated 03/05/2026 does not appear to present any newly added claim 21. Accordingly, claims 1-20 are pending and under consideration.
Response to Arguments
Applicant’s arguments with respect to claim(s) 1, i.e. section A-D, have been considered but are moot because the new ground of rejection does not rely on the same combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
In light of further search and consideration, claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Leonard US 6,113,782 A (previously cited), as cited in the IDS, in view of Prasad US 5,449,457 A (newly cited).
Applicant's arguments filed on 03/05/2026 have been fully considered but they are not persuasive.
Regarding Applicant’s remarks stating that “Fig. 3 does not convey precise spatial relationships, such as whether the connection threads of one sheet are offset relative to the connection threads of another sheet in the manner recited in claim 1” on page 7 of Applicant’s remarks, Examiner acknowledged the remarks, but respectfully disagrees. According to claim 1, the limitation is recited “wherein said sheets are arranged in such a way that the threads of a first sheet are offset with respect to the threads of the other sheet in said first direction”; wherein Leonard is interpreted such that threads 46/T (see annotated Fig. 3 below – top thread T) of a first sheet 40 (Fig. 3; since bundle 70 comprises two sheets 40, sheet 40 shown in Fig. 3 is considered a first/top sheet) are offset with respect to the threads 46/B (see annotated Fig. 3 below – bottom thread B) of the other sheet (Fig. 3; since bundle 70 comprises two sheets 40, 40, it is understood that another row of hollow fibers 44 will be arranged beneath the row of hollow fibers 44 shown in Fig. 3) in said first direction D1 (see annotated Fig. 3 below – thread T is some distance apart from thread B in direction D1). Thus, the limitation is met. See rejection of claims below.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., lateral offset/displacement between adjacent layers on page 8, 9 and 10 of Applicant’s remarks) are not recited in the rejected claim(s). 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). In this instant case, claim 1 merely recites an offset/displacement in “a first direction” without further defining if said first direction is a lateral offset as traversed by Applicant. In fact, Examiner currently contends that the first direction should not be interpreted as the lateral direction as traversed by Applicant, since the capillary fibers are disposed parallel to each other in said first direction (see claim 1, lines 12-13); therefore the “first direction” is interpreted to be the longitudinal direction (such as the x-direction in Fig. 5B of Applicant), thus being a longitudinal displacement. Leonard discloses such longitudinal displacement of threads 46/T and 46/B (see annotated Fig. 3 below). See rejection of claims below.
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.
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.
Claims 1, 2, 4, 5, 7, 8, 9, 10, 11, 12, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Leonard US 6,113,782 A (previously cited, hereinafter Leonard), as cited in the IDS, in view of Prasad US 5,449,457 A (newly cited, hereinafter Prasad).
Regarding claim 1, Leonard discloses oxygenator 10 (Fig. 1 – oxygenator 10) of organic fluids (Abstract – “blood”), comprising
- a container body 12 (Fig. 1 – housing 12) delimiting an oxygenating chamber 36 (Fig. 4 – blood oxygenation chamber 36) to oxygenate the organic fluid (Col. 5, line 39-44 – “After traveling through the blood inlet 20, blood flows radially outward within the blood oxygenation chamber 36, where the blood passes through several gas exchange layers 40 which give oxygen to the blood and receive carbon dioxide from the blood”) and having:
- a first aperture 24 (Fig. 1 – gas inlet 24) for the entry of oxygen (Col. 4, line 55-56 – “During use the gas inlet 24 will receive a flow of humidified oxygen”) and a second aperture 26 (Fig. 1 – gas outlet 26) for the exit of an exhausted gas (Col. 4, line 56-59 – “while the gas flow at the gas outlet 26 will generally be a mixture of carbon dioxide emitted from the blood, water vapor and oxygen”);
- a third aperture 20 (Fig. 1– blood inlet 20) for the entry of an organic fluid to be oxygenated (Col. 4, line 53-54 – “one blood inlet 20 for venous blood”) and a fourth aperture 22 (Fig. 1 – main blood outlet 22) for the exit of an oxygenated organic fluid (Col. 4, line 54-55 – “a main blood outlet 22 for filtered arterial blood”);
Wherein inside the oxygenation chamber 36 (Fig. 4) there is provided a mass 70 (Fig. 4 – roll/bundle 70) of capillary fibers 44 (Fig. 2-4 – hollow fibers 44) which are impermeable to liquids and porous to gases (Fig. 3, and Col. 5, line 55-64 – “Gas flows through the lumens of the gas exchange layer 40 as shown by arrows 48. The radial direction of blood flow is shown by arrows 50, generally perpendicular to the gas exchange layer 40. The interaction between these flows causes oxygen to diffuse outward through the walls of the fibers 44 and into the blood, and causes carbon dioxide to simultaneously diffuse inward through the walls of the fibers 44 into the gas flow”), configured to be lapped by said organic fluid 50 (Fig. 3 – blood flow direction 50, and Col. 5, line 55-64 – blood flows over the hollow fibers 44) inside said oxygenation chamber 36 (Fig. 2) and disposed parallel to each other in a first direction D1 (see annotated Fig. 3 below – hollow fibers 44 are parallel to each other in direction D1); and
wherein said mass 70 (Fig. 4-5) of capillary fibers 44 (Fig. 3) comprises at least two sheets 40, 40 (Fig. 4 – gas exchange layer 40; Fig. 4 depicts two adjacent gas exchanger layers 40 and 40) made of capillary fibers 44 (Fig. 3 depicts the hollow fibers 44 of gas exchanger layer 40), where the capillary fibers 44 (Fig. 4) of each sheet 40, 40 (Fig. 4-5) are connected to each other (Fig. 5 shows two layers 40 being brought together) by at least two connection threads 46/T+B (see annotated Fig. 3 below – cross strands 46; annotated Fig. 3 below further interprets cross strands 46 into a top thread T and a bottom thread B) which extend in a second direction D2 (see annotated Fig. 3 below) perpendicular to said first direction D1 (see annotated Fig. 3 below – direction D1 is longitudinal while direction D2 is transverse, thus being perpendicular to each other), said sheets 40, 40 (Fig. 5) being in reciprocal contact along a respective surface thereof (Fig. 5 depicts two layers 40 being brought together and making contact to form a roll 70), said oxygenator 10 (Fig. 1-2) being wherein said sheets 40, 40 (Fig. 4-5) are arranged in such a way that the threads 46/T (see annotated Fig. 3 below – top thread T) of a first sheet 40 (Fig. 3; since bundle 70 comprises two sheets 40, sheet 40 shown in Fig. 3 is considered a first/top sheet) are offset with respect to the threads 46/B (see annotated Fig. 3 below – bottom thread B) of the other sheet (Fig. 3; since bundle 70 comprises two sheets 40, 40, it is understood that another row of hollow fibers 44 will be arranged beneath the row of hollow fibers 44 shown in Fig. 3) in said first direction D1 (see annotated Fig. 3 below – thread T is some distance apart from thread B in direction D1).
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Annotated Fig. 3 of Leonard
However, Leonard does not explicitly disclose so that the capillary fibers of one sheet are distanced by the capillary fibers of the other sheet adjacent thereto by a distance that is equal to the cross section of one single thread.
Prasad, in the same field of endeavor of hollow fiber membrane (Abstract) for sweep gases and liquid separation (Col. 1, line 19-26), teaches so that the capillary fibers Ff (Fig. 2 – feed fiber Ff) of one sheet 12 (Fig. 2 – fabric sheet 12) are distanced by the capillary fibers Fs (Fig. 2- strip fiber Fs) of the other sheet 14 (Fig. 2 – fabric sheet 14) adjacent thereto by a distance that is equal to the cross section of one single thread W (Fig. 2 – fiber W, and Col. 4, line 17-23 – “The weft-wise fibers W serve as spacers to essentially maintain a separation distance between the feed-fibers Ff in fabric sheet 12 and the adjacent strip-fibers Fs in fabric sheet 14. That is, adjacent ones of the feed- and strip-fibers Ff and Fs, respectively, will be separated one from another at least by a dimension corresponding essentially to the denier of the weft-wise fibers W”).
It would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the capillary fibers of Leonard’s two sheets such that they are distanced defined by a cross-section of a single thread as taught by Prasad, in order to provide structural support for the hollow fiber membranes and maintain fiber-to-fiber parallelism between the hollow fiber membranes in the lengthwise direction of the module (Col. 2, line 44-48 of Prasad). Such configuration also minimizes contact between the hollow fibers and impart self-centering functions to the hollow fiber membranes (Col. 2, line 48-52 of Prasad).
Regarding claim 2, Leonard in view of Prasad discloses the invention of claim 1. However, the combination does not disclose wherein the two sheets are offset with respect to each other in the first direction.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have rearranged the position of two sheets to so they were offset to each other in the first direction, since this claimed position of the sheets does not change the sheet’s ability to form a membrane for fluid-gas exchange. Since applicant has not given any criticality to why the position of the sheets disclosed has any importance to the function of the claimed device (see Applicant’s Par. 77 in the PG-PUB), the Federal Circuit held that, where the only difference between the prior art and the claims was the position of a claimed element and altering the position of that claimed element would not have modified the operation of the device, the claimed device was not patentably distinct from the prior art device because it merely involved the rearrangement of parts. See MPEP 2144. In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950).
Regarding claim 4, Leonard in view of Prasad discloses the invention of claim 1. The combination further discloses wherein the contact between the two sheets 40, 40 (Fig. 5 of Leonard) is made only between the threads 46/T+B (see annotated Fig. 3 of Leonard above) of each sheet 40, 40 (Fig. 5 of Leonard) and the capillary fibers 44 (Fig. 3 of Leonard) of the other sheet (see annotated Fig. 3 of Leonard above, Fig. 5 of Leonard, and as established in claim 1 in Col. 4, line 17-23 of Prasad).
Examiner notes that once the modification is made as discussed in claim 1, the sheets are spaced by the threads as taught by Prasad. Thus, the limitation is met.
Regarding claim 5, Leonard in view of Prasad discloses the invention of claim 1. The combination further discloses wherein the connection threads 46 (Fig. 3 of Leonard) of a same sheet (see annotated Fig. 3 of Leonard above, and as established in claim 1, top thread T is for top layer 40, bottom thread B is for bottom layer 40) are distanced by a predefined first pitch (see annotated Fig. 3 of Leonard above).
However, the combination does not disclose that the two sheets are offset in the first direction by a distance equal to half said first pitch.
It would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to have made offset distance in the first direction between two sheets to be half of the first pitch, in order to fit the particular procedure being done since this claimed dimension of the two sheets does not change the sheet ability to form a membrane for fluid-gas exchange. Since applicant has not given any criticality to why the dimension disclosed has any importance to the function of the claimed device (see Applicant’s Par. 78 in PG-PUB), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777.
Regarding claim 7, Leonard in view of Prasad discloses the invention of claim 1. The combination further discloses further comprising an entry chamber (see annotated Fig. 4 of Leonard below) for the entry of the organic fluid to be treated (see annotated Fig. 4 of Leonard below – the annotated entry chamber is meant for blood to enter), located between the third aperture 20 (Fig. 4 of Leonard) and the oxygenation chamber 36 (see annotated Fig. 4 of Leonard below – the annotated entry chamber is between the blood inlet 20 and the blood oxygenation chamber 36), wherein said entry chamber (see annotated Fig. 4 of Leonard below) comprises static distribution means (see annotated Fig. 4 of Leonard below).
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Annotated Fig. 4 of Leonard
Regarding claim 8, Leonard in view of Prasad discloses the invention of claim 7. The combination further discloses wherein the static distribution means (see annotated Fig. 4 of Leonard above) comprise fins (see annotated Fig. 4 of Leonard above – circular protrusions extend from the potting layer 38b) made in a single piece with an upper surface of the container body 12 (Fig. 1-2 of Leonard, and see annotated Fig. 4 of Leonard above – the annotated fins are a part of the blood inlet 20, which are integral to the housing 12, in the annotated upper surface).
Regarding claim 9, Leonard in view of Prasad discloses the invention of claim 8. The combination further discloses wherein the fins (see annotated Fig. 4 of Leonard above) have a flat lower surface (see annotated Fig. 4 of Leonard above – the innermost flat ends of annotated fins that are facing towards the center of the device), and that said flat lower surfaces of all the fins (see annotated Fig. 4 of Leonard above) are disposed on the same plane (see annotated Fig. 4 of Leonard above – the two innermost flat ends of annotated fins are both disposed on a vertical plane; in other words, the surfaces of annotated fins facing toward the center of the device are on a vertical plane).
Regarding claim 10, Leonard in view of Prasad discloses the invention of claim 1. The combination further discloses further comprising an exit chamber (see annotated Fig. 4 of Leonard above) of the organic fluid to be treated (see annotated Fig. of Leonard 4 – blood has to travel to the annotated exit chamber to reach the blood outlet 22), located between the oxygenation chamber 36 (Fig. 4 of Leonard) and the fourth exit aperture 22 (Fig. 4 of Leonard), wherein that said exit chamber (see annotated Fig. 4 of Leonard above) comprises second static distribution means 32 (Fig. 2 of Leonard – filter 32).
Regarding claim 11, Leonard in view of Prasad discloses the invention of claim 10. The combination further discloses wherein the second static distribution means 32 (Fig. 2 of Leonard) comprise fins (Fig. 2 of Leonard, and Col. 5, line 17-19 of Leonard – “The filter 32 is… folded with accordion pleating”) made in a lower surface (see annotated Fig. 4 of Leonard above) of the container body 12 (Fig. 2 of Leonard, and see annotated Fig. 4 of Leonard above).
However, Leonard does not disclose the second static distribution means made in a single piece with a lower surface of the container body.
It would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the static distribution means of the combination to be in a single piece with the container body, since such modification would have involved making elements integral. Making elements integral is generally recognized as being within the level of ordinary skill in the art. In re Larson, 340 F.2d 965, 968, 144 USPQ 347, 349 (CCPA 1965).
Regarding claim 12, Leonard in view of Prasad discloses the invention of claim 11. The combination further discloses wherein the fins (Fig. 2 of Leonard – each pleated segment) of the second static distribution means 32 (Fig. 2 of Leonard) have a flat upper surface (Fig. 2 of Leonard and see annotated Fig. 4 of Leonard above – since Fig. 2 of Leonard shows a cut-out version of filter 32, and from the orientation established in the annotated Fig. 4 of Leonard above, each fin/pleated segment will have a flat surface at both ends of the filter 32 and away from the center of the device), and wherein said flat upper surfaces of all the fins (Fig. 2 of Leonard and as established previously) are disposed on the same plane (Fig. 2 of Leonard – the outermost flat ends of each fin/pleated segment are disposed on a vertical plane; in other words, the surfaces of each fin/pleated segment facing away from the center of the device are on vertical plane).
Regarding claim 20, Leonard in view of Prasad discloses the invention of claim 7. The combination further discloses wherein it comprises an exit chamber (see annotated Fig. 4 of Leonard above) of the organic fluid to be treated (see annotated Fig. of Leonard 4 – blood has to travel to the annotated exit chamber to reach the blood outlet 22), located between the oxygenation chamber 36 (Fig. 4 of Leonard) and the fourth exit aperture 22 (Fig. 4 of Leonard), and that said exit chamber (see annotated Fig. 4 of Leonard above) comprises second static distribution means 32 (Fig. 2 of Leonard – filter 32).
Claims 3, 6, 16, 17, 18, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Leonard in view of Prasad as applied to claim 1 above, and further in view of Galavotti WO 2018173092 A1 (previously cited, hereinafter Galavotti), as cited in the IDS.
Regarding claim 3, Leonard in view of Prasad discloses the invention of claim 1. However, the combination does not explicitly disclose wherein the two sheets of capillary fibers are offset also in the second direction.
Galavotti, in the same field of endeavor of oxygenator of organic fluid (Title), teaches wherein the two sheets “S”, “S”(Fig. 15 – any two adjacent layer “S”) of capillary fibers 8 (Fig. 15 – hollow fibers 8) are offset also in the second direction (Fig. 15 shows a transverse view of the hollow fibers 8, which depicts an offset in said direction between two adjacent layers “S”).
It would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the two sheets of the combination and arranged them to be offset to one another in the second direction as taught by Galavotti, in order to increase nominal and useful gas exchange surfaces, putting the capillaries in direct contact with the blood that flows around it (Page 3, line 15-16 of Galavotti). Furthermore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have rearranged the position of two sheets to so they were offset to each other in the second direction, since this claimed position of the sheets does not change the sheet’s ability to form a membrane for fluids. Since applicant has not given any criticality to why the position of the sheets disclosed has any importance to the function of the claimed device (see Applicant’s Par. 79 in the PG-PUB), the Federal Circuit held that, where the only difference between the prior art and the claims was the position of a claimed element and altering the position of that claimed element would not have modified the operation of the device, the claimed device was not patentably distinct from the prior art device because it merely involved the rearrangement of parts. See MPEP 2144. In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950).
Regarding claim 6, Leonard in view of Prasad in view of Galavotti discloses the invention of claim 3. The combination further discloses wherein the capillary fibers 44 (Fig. 3 of Leonard) of a same sheet 40 (Fig. 3 of Leonard) are distanced by a second pitch (see annotated Fig. 3 of Leonard above), and that the two sheets 40, 40 (Fig. 5 of Leonard) are offset in the second direction (see annotated Fig. 3 of Leonard above) by a distance equal to half said second pitch (see annotated Fig. 15 of Galavotti below).
Examiner notes that once the modification is made as discussed in claim 3, the two sheets 40, 40 of Leonard will be offset in the second direction as taught by Galavotti, including the offset distance. Thus, the limitation is met.
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Annotated Fig. 15 of Galavotti
Regarding claim 16, Leonard in view of Prasad discloses the invention of claim 2. However, the combination does not explicitly disclose wherein the two sheets of capillary fibers are offset also in the second direction.
Galavotti, in the same field of endeavor of oxygenator of organic fluid (Title), teaches wherein the two sheets “S”, “S”(Fig. 15 – any two adjacent layer “S”) of capillary fibers 8 (Fig. 15 – hollow fibers 8) are offset also in the second direction (Fig. 15 shows a transverse view of the hollow fibers 8, which depicts an offset in said direction between two adjacent layers “S”).
It would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the two sheets of Leonard and arranged them to be offset to one another in the second direction as taught by Galavotti, in order to increase nominal and useful gas exchange surfaces, putting the capillaries in direct contact with the blood that flows around it (Page 3, line 15-16 of Galavotti). Furthermore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have rearranged the position of two sheets to so they were offset to each other in the second direction, since this claimed position of the sheets does not change the sheet’s ability to form a membrane for fluids. Since applicant has not given any criticality to why the position of the sheets disclosed has any importance to the function of the claimed device (see Applicant’s Par. 79 in the PG-PUB), the Federal Circuit held that, where the only difference between the prior art and the claims was the position of a claimed element and altering the position of that claimed element would not have modified the operation of the device, the claimed device was not patentably distinct from the prior art device because it merely involved the rearrangement of parts. See MPEP 2144. In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950).
Regarding claim 17, Leonard in view of Prasad in view of Galavotti discloses the invention of claim 3. The combination further discloses wherein the contact between the two sheets 40, 40 (Fig. 5 of Leonard) is made only between the threads 46/T+B (see annotated Fig. 3 of Leonard above) of each sheet 40, 40 (Fig. 5 of Leonard) and the capillary fibers 44 (Fig. 3 of Leonard) of the other sheet (see annotated Fig. 3 of Leonard above, Fig. 5, and as established in claim 1 as established in claim 1 in Col. 4, line 17-23 of Prasad).
Examiner notes that once the modification is made as discussed in claim 1, the sheets are spaced by the threads as taught by Prasad. Thus, the limitation is met.
Regarding claim 18, Leonard in view of Prasad in view of Galavotti discloses the invention of claim 17. The combination further discloses wherein the capillary fibers 44 (Fig. 3 of Leonard) of a same sheet 40 (Fig. 3 of Leonard) are distanced by a second pitch (see annotated Fig. 3 of Leonard above), and that the two sheets 40, 40 (Fig. 5 of Leonard) are offset in the second direction (see annotated Fig. 3 of Leonard above) by a distance equal to half said second pitch (see annotated Fig. 15 of Galavotti above).
Examiner notes that once the modification is made as discussed in claim 17, the two sheets 40, 40 of Leonard will be offset in the second direction as taught by Galavotti, including the offset distance. Thus, the limitation is met.
Regarding claim 19, Leonard in view of Prasad in view of Galavotti discloses the invention of claim 3. The combination further discloses wherein the connection threads 46 (Fig. 3 of Leonard) of a same sheet (see annotated Fig. 3 of Leonard above, and as established in claim 1, top thread T is for top layer 40, bottom thread B is for bottom layer 40) are distanced by a predefined first pitch (see annotated Fig. 3 of Leonard above), and
wherein the capillary fibers 44 (Fig. 3 of Leonard) of a same sheet 40 (Fig. 3 of Leonard) are distanced by a second pitch (see annotated Fig. 3 of Leonard above), and that the two sheets 40, 40 (Fig. 5 of Leonard) are offset in the second direction (see annotated Fig. 3 of Leonard above) by a distance equal to half said second pitch (see annotated Fig. 15 of Galavotti above).
Examiner notes that once the modification is made as discussed in claim 3, the two sheets 40, 40 of Leonard will be offset in the second direction as taught by Galavotti, including the offset distance. Thus, the limitation is met.
However, Leonard in view of Galavotti does not disclose that the two sheets are offset in the first direction by a distance equal to half said first pitch.
It would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to have made offset distance in the first direction between two sheets to be half of the first pitch, in order to fit the particular procedure being done since this claimed dimension of the two sheets does not change the sheet ability to form a membrane for fluid-gas exchange. Since applicant has not given any criticality to why the dimension disclosed has any importance to the function of the claimed device (see Applicant’s Par. 78 in PG-PUB), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777.
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 QUYNH DAO LE whose telephone number is (571)272-7198. The examiner can normally be reached Monday - Friday 8:30 am - 5:30 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sarah Al-Hashimi can be reached at (571) 272-7159. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/QUYNH DAO LE/Examiner, Art Unit 3781
/JESSICA ARBLE/Primary Examiner, Art Unit 3781
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