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 .
Applicant's election with traverse of claims 1-15 in the reply filed on 10 September is acknowledged. The traversal is on the ground(s) that the apparatus as claimed can not be used to practice a materially different process. This is not found persuasive because –as shown below—the apparatus can be used in diverse processes. Examiner maintains that the process described by Hater, for example, is materially different from the process of claim 16.
The requirement is still deemed proper and is therefore made FINAL.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the treatment layer must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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.
Claim 14 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.
Claim 14 lacks clear antecedent basis for the second geotextile—which was first mentioned in claim 123.
Claims 1-15 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. Independent claims 1 and 10—and claims 2-9 and 11-15 by dependency—require the layers “configured to laterally disperse the combustible gas through at least the geotextile layer”. This feature is found in the specification at [0005], [0007], and [0009] without significant exposition. One of ordinary skill in the art wound understand that a geotextile is a relatively thin fabric. See, e.g. “geosynthetic” (Mcgraw-Hill Access Science). It is not clear how one can determine whether the gas disperses “laterally” through the geotextile, therefore the metes and bounds of the claim are indefinite. It is noted that the specification includes a single reference to laterally dispersing through geocomposite: “laterally disperse methane 12 through the geocomposite 120” at [0020]. Examiner questions whether the lateral dispersion limitations should refer to the geocomposite.
Claim Rejections - 35 USC § 102
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 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.
Claim(s) 10, 13 is/are rejected under 35 U.S.C. 102a1 as being anticipated by US4768897 Nussbaumer which described a bio-barrier comprising
a geocomposite layer (“sandwich layer” 21.4 fig 5 or 21.2 fig 4) extending laterally beneath a top surface of the ground 1 ; a first geotextile layer (stabilization layer 3 or 5---“filter fabric” col 2 line 22) extending laterally beneath the top surface of the ground 1 and positioned above the geocomposite layer, the geocomposite layer and the geotextile layer configured to laterally disperse the stray gas through at least the geotextile layer (Examiner notes this limitation is indefinite, but as Nussbaumer includes the layers, it would be expected to disperse just as well as the claimed invention); and a first sediment layer 9 (“fine subgrade”—col. 3 line 66) extending laterally beneath and directly contacting the geocomposite layer.
Regarding claim 13: taking 5 as the first geotextile, 3 is a second layer above and spaced as claimed (fig 3,4,or 5)
Claim(s) 10 is/are rejected under 35 U.S.C. 102a1 as being anticipated by -US8419314 McLinn which described a bio-barrier comprising
a geocomposite layer 25 (col. 5 line 62) extending laterally beneath a top surface of the ground 1 ; a first geotextile layer 18 extending laterally beneath the top surface of the ground and positioned above the geocomposite layer, the geocomposite layer and the geotextile layer configured to configured to laterally disperse the stray gas through at least the geotextile layer (Examiner notes this limitation is indefinite, but as McLinn includes the layers, it would be expected to disperse just as well as the claimed invention); and a first sediment layer 24 extending laterally beneath and directly contacting the geocomposite layer.
Claim(s) 10, 11, and 13-15 is/are rejected under 35 U.S.C. 102a1 as being anticipated by US7118308 Hater which described a bio-barrier including geocomposite 18 (fig 3,4) extending laterally beneath top surface (see fig 2 which illustrates a plurality of bioreactor 10 spaced vertically and fig 3,4 which shows the details of bioreactor 10) first geotextile layer 19 (fig 3,4) configured to laterally disperse the stray gas through at least the geotextile layer (Examiner notes this limitation is indefinite, but as Hater includes the layers, it would be expected to disperse just as well as the claimed invention); and sediment layer (“compostable material”—see Hater claim 28 which specifies the bioreactor on top of the compostable material)
Regarding claim 11: see Hater col. 5 line 35-45 which described a distance of 5 ft (5-50 is recited) below surface so taking the uppermost 10, it would be 5 ft; and taking the next lowest 10, a spacing Z of 10 ft (10-100) . 5ft +10ft =15 ft, thus also meeting the claimed between 10 and 20.
Regarding claim 13: the second geotextile layer would be in the upper bioreactor 10; and regarding claim 14, this second layer would be above a compostable material (i.e. second sediment layer) .
Regarding claim 15: treatment layer 28
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.
Claim(s) 1-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hater US7118308 in view of Aitchison US20200191549.
Hater described a bio-barrier including geocomposite 18 (fig 3,4) extending laterally beneath top surface (see fig 2 which illustrates a plurality of bioreactor 10 spaced vertically and fig 3,4 which shows the details of bioreactor 10) first geotextile layer 19 (fig 3,4) configured to laterally disperse the stray gas through at least the geotextile layer (Examiner notes this limitation is indefinite, but as Hater includes the layers, it would be expected to disperse just as well as the claimed invention)
Hater lacks the at least one sensor.
Aitchison is analogous art because it is directed to geosyntheics (i.e. geotextile and geocomposite) and described a sensor incorporated in a geotextile or geocomposite to measure variables including at least temperature and water content (i.e. moisture) and describes this is desirable in [0006] one of ordinary skill in the art would have understood that these variables would advantageously provide updates on otherwise hidden underground conditions.
It would therefore have been obvious to have modified the geocomposite of Hater to have the sensor within the geocomposite to monitor a parameter indicative of the concentration or oxidation of gas below ground (i.e. temperature is a parameter indicative of oxidation of combustible gas) as claimed.
Regarding claim 2: see Hater col. 5 line 35-45 which described a distance of 5 ft (5-50 is recited) below surface so taking the uppermost 10, it would be 5 ft; and taking the next lowest 10, a spacing Z of 10 ft (10-100) . 5ft +10ft =15 ft, thus also meeting v the claimed between 10 and 20.
Regarding claim 3: Aitchsison described multiple sensors on the geocomposite, and mere duplication of parts has no patentable significance unless a new and unexpected result is produced In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). Multiple sensors on the geocomposite would inherently be at substantially the same level.
Regarding claim 4: mere duplication of parts has no patentable significance unless a new and unexpected result is produced In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). Placing sensors on each layer of geocomposite (i.e. each of the multiple levels of bioreactor 10 illustrated by Hater) would result in vertically spaced sensors. Placement at substantially the same horizontal position would have been obvious because each bioreactor 10 of Hater is a substantial duplicate.
Regarding claim 5-6: at least temperature and water content (i.e. soil moisture) are described by Aitchison
Regarding claim 7: the second geotextile layer would be in the upper bioreactor 10 of Hater.
Regarding claim 8: Hater also described the sediment layer (“compostable material”—see Hater claim 28 which specifies the bioreactor on top of the compostable material)
Claims 9 and 12 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Janine M KRECK whose telephone number is (571)272-7042. The examiner can normally be reached telework: M-F 0600-1530 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nicole Coy can be reached at 5712725405. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Janine M Kreck/Primary Examiner, Art Unit 3672