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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 23 February 2023 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Drawings
The drawings are objected to because of the following:
Figure 8, last box: The term – Flush – should replace the term “flush”.
Figure 13A: This figure contains a reference to letter “A” and a lead line which is unexplained (upper left of figure).
Figures 5-6, 11-14, and16-18: Lines, numbers and letters not uniformly thick and well defined, clean, durable, and black (poor line quality).
- The weight of type used in the drawing figures and the text used therein is too light (Figures 6 and 11A-13F)
- The lines used to represent the drawing figures/graph (Figures 5-6, 11A-14 and 16) are blurry and have a dot matrix background, which distorts the view.
- The background shading used in Figures 5 and 17-18 should be removed.
Figures 5-6, 8, and 11A-18: Numbers, letters, and reference characters must be at least .32 cm (1/8 inch) in height. See 37 C.F.R. 1.84(p)(3).
- The numerals and information presented in the figures/graph (Figure 14) are too small.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description:
Reference numeral “600” does not appear within Figure 5 as suggested by the disclosure in paragraph [0045], line 11.
Reference numeral “605” does not appear within Figure 7 as suggested by the disclosure in paragraph [0055], line 4.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description:
The term “Mating Surface”, as shown in Figure 6, is described as opening, but box/structure “535” is described as Pump Valves.
Reference numeral “525”, as shown in Figure 7, does not appear within the written description associated with Figure 7.
The term “Mating Valves”, as shown in Figures 12A-12B, does not appear within the written description associated with Figures 12A-12B.
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 following must be shown or the feature(s) canceled from the claim(s):
Providing a circular fluid flow path coupled to each of the reagent pumps by one-way valves and containing a test chamber and peristaltic mixing pump, as recited in claim 1; and
Providing a circular fluid flow path including a test chamber and a peristaltic mixing pump, as recited in claim 6.
NOTE: Applicant shows the circular fluid flow path, test chamber, peristaltic mixing pump, and one-way valve in flow diagrams (Figures 11A-11F) or a block diagram (Figures 6-7), but fails to show these structural features in the actual fluid monitoring device, as presented in Figures 1-5. Without showing these structural features in the actual device, it is hard to picture how each structural component is positioned and interacts with the structural elements shown. There is structure shown in Figure 5 that is not labeled and it is unclear if some of these unlabeled structures are the structures being mentioned above.
No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) 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.
Specification
The abstract of the disclosure is objected to because of the following:
Line 2: A – comma – should be inserted after the term “fluid”; and
Lines 4-14: The abstract refers to purported merits (precise control, optimized, fewer moving parts, reduce failure, increase life) or speculative applications of the invention, which should be avoided.
A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
The disclosure is objected to because of the following informalities:
Page 1, line 3” A paragraph about co-pending applications should be inserted before the “Background” section as this application is a Divisional application of US 17/751,183.
Paragraph [0006], line 5: A – comma – should be inserted prior to the term “such.”
Paragraph [0012], line 3: A – comma – should be inserted prior to the term “such.”
Paragraph [0038], line 3: A – comma – should be inserted prior to the term “such.”
Paragraph [0053], line 4: A – comma – should be inserted prior to the term “such.”
Paragraph [0053], line 7: The term – Figure – should replace the term “figure.”
Paragraph [0054], line 2: Reference numeral – 720 – should be inserted after the term “colorimeter.”
Paragraph [0055], line 1: The term – Figure – should replace the term “figure.”
Paragraph [0055], line 4: The numeral – 525 – should replace the numeral “605.”
Paragraph [0068], line 2: Reference numeral “800” should be corrected to read – 800, 900 – to reflect the different embodiments are being referenced.
Paragraph [0068], line 7: The term – valve – should replace the term “value.”
Paragraph [0070], lines 2 and 4: The term – Figure – should replace the term “figure.”
Paragraph [0071], line 2: The term – Figure – should replace the term “figure.”
Paragraph [0073], line 7: The term – Figure – should replace the term “figure.”
Paragraph [0081], line 4: The term – Figure – should replace the term “figure.”
Paragraph [0084], line 7: The term – Figure – should replace the term “figure.”
Paragraph [0085], lines 1 and 8: The term – Figure – should replace the term “figure.”
Paragraph [0085], line 4: The numeral “5” should be corrected to read – five – as numerals less than ten should be spelled out.
Paragraph [0085], line 6: The numeral “4” should be corrected to read – four --.
Paragraph [0089], line 5: The term – Figure – should replace the term “figure.”
Paragraph [0090], line 9: Should the term – cartridge – be replaced by the term “mating” as the figures show the term “mating” as it relates to the valves?
Paragraph [0090], lines 15 and 21: The term – Figure – should replace the term “figure.”
Paragraph [0092], lines 2, 5, and 7: The term – Figure – should replace the term “figure.”
Paragraph [0092], line 8: Reference numeral – 500 – should replace reference numeral “515.”
Paragraph [0092], line 10: Should the term – cartridge – be replaced by the term “mating” as the figures show the term “mating” as it relates to the valves?
Paragraph [0092], line 14: Reference numeral – 515 – should be inserted after the term “pumps.”
Paragraph [0095], line 5: The numerals “4” and “5” should be corrected to read
-- four to five --.
Paragraph [0096], line 3: The term – Figure – should replace the term “figure.”
Paragraph [0097], line 9: A – comma – should be inserted between reference numerals “520” and “550.”
Paragraph [0097], lines 12 and 13: The term – Figure – should replace the term “figure.”
Paragraph [0098], line 2: The term – Figure – should replace the term “figure.”
Paragraph [0100], line 62: The term – Figure – should replace the term “figure.”
Paragraph [0101], line 2: The term – Figure – should replace the term “figure.”
Appropriate correction is required.
Claim Objections
Claims 1-10 are objected to because of the following informalities:
Re claim 1, claim line 29: The phrase “the fluid” lacks antecedent basis. A “fluid monitoring device” and a “circular fluid flow path” have been recited, but not a fluid.
Re claim 1, claim line 32: The phrase “the at least one characteristic” lacks antecedent basis.
Re claim 1, claim line 32-33: The phrase “the mixture” lacks antecedent basis.
Re claim 3, claim line 3: The article – a – should be inserted prior to the term “top.”
Re claim 3, claim line 6: The term – reagent expander – should replace the term “it” so as to avoid possible confusion by the use of the term “it.”
Re claim 6, claim line 1: The term – configured – should be inserted prior to the term “for” in order to positively recite the functionality of the device.
Re claim 6, claim line 12: The conjunction – and – should be inserted after the semicolon.
Re claim 6, claim line 14: The conjunction “and” should be deleted.
Re claim 6, claim line 19: The phrase “the mixture” lacks antecedent basis.
Appropriate correction is required.
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 1-10 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.
Re claim 1, claim line 1: The preamble of the claim recites a method of minimizing power consumption of a fluid monitoring device; however, it is unclear what recited structure provides for minimizing power consumption. The claim does not provide any guidance as to which structure is responsible for this minimizing of power consumption. Moreover, how is this minimizing of the power consumption even measured?
Re claim 1, claim lines 4-34: The preamble of the claim recites a method of minimizing power consumption of a fluid monitoring device; but the body of the claim appears to recite a method of measuring at least one characteristic of a mixture of fluid and at least one reagent. Thus, there does not appear to be any nexus between the preamble of the claim and the body of the claim.
Re claim 6, claim line 2: The term “optimize” is a relative term which renders the claim indefinite. The term “optimize” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Specifically, neither the specification not the claims provide any guidance as to how the fluid monitoring device is optimized. Moreover, how is this optimization even measured or determined?
Re claim 6, claim line 3: The preamble of the claim recites a fluid monitoring device having an optimized circular flow path to minimize power consumption; however, it is unclear what recited structure provides for minimizing power consumption. The claim does not provide any guidance as to which structure is responsible for this minimizing of power consumption. Moreover, how is this minimizing of the power consumption even measured?
Re claim 6, claim lines 5-19: The preamble of the claim recites a fluid monitoring device having an optimized circular flow path to minimize power consumption; but the body of the claim appears to recite a method of measuring at least one characteristic of a mixture of fluid and at least one reagent. Thus, there does not appear to be any nexus between the preamble of the claim and the body of the claim. The body of the claim does not connect any of the structure recited with this proposed “benefit”, which is merely an intended use and really carries not patentable weight.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 6 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of copending Application No. 17/751,183 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the only difference in the instant application claim is the recitation of a “replaceable reagent cartridge.” This is viewed as obvious in view of a reagent cartridge because if the cartridge is not replaceable then the device would only be a one-time use device, which would not be cost effective for its intended environment, which is a pool or spa.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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.
Claims 1-2 and 6-7 are rejected under 35 U.S.C. 103 as being unpatentable over US 9,776,888 (Kurani et al.) in view of US 2015/0099304 (Butcher et al.).
With respect to the limitations of claim 1, Kurani discloses a method of utilizing a water monitoring device, said method comprising:
providing a replaceable reagent cartridge that is separate from the fluid monitoring device, wherein the replaceable reagent cartridge has a plurality of reagent compartments (fluidic chip (203) contains a plurality of containers (205) each containing a reagent – Figure 4);
providing a plurality of cartridge valves (207) each valve coupled to a reagent pump (209), wherein each of the plurality of cartridge valves (207) is coupled to a different reagent compartment (205) when the replaceable reagent cartridge is attached;
providing a circular fluid flow path coupled to each of the plurality of reagent pumps by a one-way pump valve (207) disposed between each of the plurality of reagent pumps and the circular flow path (pumps (209) pump reagent (205) through one-way valves (207) into a flowcell (215)within a circular flow path whereby fluid is drawn into fluid monitoring device (101) via an intake tube (219) into the flowcell (215) and out of the monitoring device via an exit tube (221) – Figure 4), a test chamber disposed in the circular fluid flow path (flowcell (215) disposed in circular fluid flow path);
inserting the replaceable reagent cartridge into the fluid monitoring device and thereby opening the plurality of cartridge valves (fluidic chip (203) containing reagent compartments (205) is inserted into analyzing device and valves are opened when reagent flows from their respective compartments – Figure 4);
delivering a desired amount of at least one reagent (205) from the plurality of reagent compartments (205) and through the one-way pump valve (207) to the circular fluid flow path by activating the at least one of the plurality of reagent pumps (209); and
measuring the at least one characteristic of the mixture of the fluid and the at least one reagent in the test chamber (reagent is mixed with water/fluid in the flowcell (215), wherein a characteristic of the water is measured using a photodiode (217) – col. 11, lines 2-8 and col. 11, line 50 through col. 12, line 1 and Figures 4, 5, and 9), whereby the mixing pumps are deactivated while the mixture is tested in the flowcell (215). Kurani et al. fail to expressly disclose an additional peristaltic mixing pump disposed in the circular fluid flow path.
Butcher et al. disclose a photometric measurement cell, comprising a plurality of peristalic pumps (106, 108, 110) for pumping sample, reagent and standard fluids into a reaction chamber (118). Additionally, air is provided to the reaction chamber (118) to mix the fluids. A further peristaltic pump (112) is provided to pump the mixture to a detector (122) (Figure 1). After the reagent has been mixed within the reaction chamber, pumps (106, 108, 110) are deactivated. Modifying Kurani et al. with a further pump prior to the detector would have been obvious to one of ordinary skill in the art at the time of filing the invention as a means of pumping the fluids to the appropriate locations for faster testing and discharge of fluid.
With respect to the limitations of claim 2, the combination (Kurani et al.) further disclose creating the reagent compartments with different volumes (fluidic chip (203) may store different volumes of reagents based upon a test schedule – col. 12, lines 29-31); and disposing reagents into the reagent compartments (reagent is contained within the compartments; therefore, reagents have been disposed into the compartments).
With respect to the limitation 6, Kurani et al. disclose a fluid monitoring device (201) for testing a fluid, said fluid monitoring device comprised of:
a replaceable reagent cartridge (203) having a plurality of reagent compartments (205) (fluidic chip (203) contains a plurality of containers (205) each containing a reagent – Figure 4);
a plurality of reagent pumps (209), one for each of the plurality of reagent compartments;
a circular fluid flow path coupled to each of the plurality of reagent pumps (205) (fluid enters the monitoring device via an inlet (219) through a chamber (215) and out of the device through an outlet (221) completing the circular flow path – Figure 4); and
a test chamber (215) disposed in the circular fluid flow path;
wherein the circular fluid flow path receives at least one reagent (205) from at least one of the plurality of reagent pumps (209), mixes the at least one reagent (205) with the fluid in the circular fluid flow path, and measures (217) at least one characteristic of the mixture of the fluid and the at least one reagent in the test chamber (215) (reagent is mixed with water/fluid in the flowcell (215), wherein a characteristic of the water is measured using a photodiode (217) – col. 11, lines 2-8 and col. 11, line 50 through col. 12, line 1 and Figures 4, 5, and 9). Kurani et al. fail to disclose a peristalic mixing pump disposed in the circular flow path.
Butcher et al. disclose photometric measurement cell, comprising a plurality of peristalic pumps (106, 108, 110) for pumping sample, reagent and standard fluids to a reaction chamber (118). Additionally, air is provided to the reaction chamber (118) to mix the fluids. A further peristaltic pump (112) is provided to pump the mixture to a detector (122) (Figure 1). Modifying Kurani et al. with a further pump prior to the detector would have been obvious to one of ordinary skill in the art at the time of filing the invention as a means of pumping the fluids to the appropriate locations for faster testing and discharge of fluid.
With respect to the limitations of claim 7, the combination (Kurani et al.) further disclose creating the reagent compartments with different volumes (fluidic chip (203) may store different volumes of reagents based upon a test schedule – col. 12, lines 29-31); and disposing reagents into the reagent compartments (reagent is contained within the compartments; therefore, reagents have been disposed into the compartments).
Allowable Subject Matter
The following is a statement of reasons for the indication of allowable subject matter:
Prior art was not relied upon to reject claims 3-5 and 8-10 because the prior art of record fails to teach and/or make obvious the following:
Claims 3-5: Providing a method comprising providing a reagent expander on top of the reagent cartridge in combination with all of the remaining limitations of the claim and all of the limitations of the base claim.
Claims 8-10: Providing a fluid monitoring device comprising providing a reagent expander on top of the reagent cartridge in combination with all of the remaining limitations of the claim and all of the limitations of the base claim.
Claims 3-5 and 8-10 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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Prior art discloses devices for measuring and treating water.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL SEAN LARKIN whose telephone number is 571-272-2198. The examiner can normally be reached M-F 9:00 AM - 5:30 PM.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Laura Martin can be reached at 571-272-2160. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DANIEL S LARKIN/Primary Examiner, Art Unit 2855
