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 Objections
Claim 6 is objected to because of the following informalities: claim 6 has been misnumbered with the number “5.” 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.
Claim 2 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.
The term “located near each other” in claim 2 is a relative term which renders the claim indefinite. The term “located near each other” 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. If the claim were allowed to issue, one of ordinary skill in the art would not be reasonably apprised of the metes and bounds of the limitation so as to be able to avoid infringement.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 9 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 9 recites “wherein the first filter is comprised by the dispensing device” while parent claim 8 requires wherein “the filtering device comprises a first filter.” Therefore, claim 9 fails to include all the limitations of the claim upon which it depends. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-9 and 10-22 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Buczynski et al. (US 7,550,122; hereinafter “Buczynski”).
In regard to claim 1-7 and 13, Buczynski discloses an air sanitizing system (decontamination system 10) comprising a dispensing device (combination of supply conduit 22, heater 120, vaporizer 130 with an internal heater, decontaminant supply 160 and pump 170) capable of dispensing a sanitizing composition into liquid sanitizing composition particles and sanitizing composition vapor into air; a fan (one of blowers 66, 100 and 110) which is configured to direct the air through the dispensing device to carry the liquid sanitizing composition particles and the sanitizing composition vapor; and a filtering device (HEPA filter 62 or carbon filter 64) capable of receiving air from the fan and capable of removing at least a portion of the liquid sanitizing composition particles from the air with a media filter, wherein the dispensing device and filtering device are separate components located near each other in a same space and are attached via the various conduits as depicted in the figure. The dispensing device comprises a pump 170 with an evaporative surface (interior vaporization chamber of vaporizer 130; see col. 4, lines 25-28) and a heater (heater 120 or the internal heater of vaporizer 130) disposed adjacent to the evaporative surface for evaporating the sanitizing composition by heating air flowing through the supply conduit 22 of the dispensing device. See col. 3, line 33 through col. 6, line 36 and the figure.
While Buczynski does not explicitly teach wherein the vaporizer dispenses a sanitizing composition into both particles and vapor, it is noted that Buczynski discloses wherein the dispensing has the same structure as recited in the claims. The Courts have held that when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. The Courts have held that it is well settled that where there is a reason to believe that a functional characteristic would be inherent in the prior art, the burden of proof then shifts to the applicant to provide objective evidence to the contrary. See In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1478, 44 USPQ2d at 1432 (Fed. Cir. 1997) (see MPEP § 2112.01, I.). Therefore, it is viewed that the vaporizer of Buczynski inherently would produce at least some liquid sanitizing composition particles along with sanitizing composition vapor into the air.
In regard to claim 8, Buczynski discloses wherein the dispensing device is attached to the filtering device via the various conduits of the apparatus (see figure) and wherein the filtering device comprises a first filter (HEPA filter 62) and a second filter (carbon filter 64) separate from the first filter. See figure and col. 5, lines 40-44.
In regard to claims 10-12, it is noted that the sanitizing composition has not been explicitly recited in claim 1. Therefore, the limitations of claims 10-12 do not further limit the patentability of the recited system as the limitations merely regard the contents of the system during an intended operation. “Expressions relating the apparatus to contents thereof during an intended operation are of no significance in determining patentability of the apparatus claim.” Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969). Furthermore, “[i]nclusion of material or article worked upon by a structure being claimed does not impart patentability to the claims.” See In re Young, 75 F.2d *>996<, 25 USPQ 69 (CCPA 1935) (as restated in In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963)) (see MPEP § 2115). Courts have held that apparatus claims must be structurally distinguishable from the prior art in terms of structure, not function. See In re Danley, 120 USPQ 528, 531 (CCPA 1959); and Hewlett-Packard Co. V. Bausch and Lomb, Inc., 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (see MPEP §§ 2114 and 2173.05(g)). Furthermore, as it is taught that the dryer 90 can have a drying capacity “in the range of 120 to 6000 cubic meters of air per hour” (col. 5, lines 62-65), which is equivalent to roughly 70 to 3500 CFM, it would stand to reason that the blowers of Buczynski would be capable of operating in the range of 10 to 200, 22 to 100, 70 to 500 and 125 to 300 cfm as claimed in order to make use of the drying capabilities of the dryer.
In regard to claims 14-17, it is noted that the limitations merely regard the capacity of the fan during an intended operation thereof. As the capacity of a fan is directly related to the size and operational speed of the fan, it is held that the limitations do not further limit the patentability of the recited system as the size of an article is not a matter of invention. See In re Rose, 105 USPQ 237 (CCPA 1955) (see MPEP § 2144.04). Further, the Courts have held that the manner of operating an apparatus does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim. See Ex Parte Masham, 2 USPQ2d 1647 (BPAI 1987).
In regard to claim 18, Buczynski discloses a second fan (another of the blowers 66, 100 and 110), wherein the fan (such as blower 100 or 110) is necessarily utilized during evaporation of the sanitizing composition and the second fan (such as blower 66) is utilized during filtration of the liquid sanitizing composition particles from the air. See the figure.
In regard to claims 19-22, Buczynski discloses temperature sensor (temperature sensors 124, 144, 148), humidity sensor 18, and chemistry sensor (concentration sensor 15) which are in signal communication indirectly through a microprocessor (controller 202), with the fan, the heater, the pump and dispensing device to be capable of controlling, at least in part the concentration level of sanitizing composition in the air. See col. 3, line 33 through col. 6, line 36 and the figure. As noted in the above rejection of claims 3-4, Buczynski discloses a pump 170 capable of delivering the sanitizing composition onto an evaporative surface of the vaporization chamber of vaporizer 130 and a heater (heater 120 or the internal heater of vaporizer 130) for heating the evaporative surface.
Response to Arguments
Applicant's arguments filed 30 October 2025 have been fully considered but they are not persuasive.
In response to applicant's argument that Buczynski does not disclose or suggest such a problem or solution to a dispensing device which produces haze, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). It is also noted above that the structure the vaporizer of Buczynski has the same structure as the dispensing device recited in the claims. The Courts have held that when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. The Courts have held that it is well settled that where there is a reason to believe that a functional characteristic would be inherent in the prior art, the burden of proof then shifts to the applicant to provide objective evidence to the contrary. See In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1478, 44 USPQ2d at 1432 (Fed. Cir. 1997) (see MPEP § 2112.01, I.). Therefore, it is viewed that the vaporizer of Buczynski inherently would produce at least some liquid sanitizing composition particles along with sanitizing composition vapor into the air.
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 TIMOTHY C CLEVELAND whose telephone number is (571)270-5041. The examiner can normally be reached M-F 9:00-5:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Claire Wang can be reached at (571) 270-1051. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/TIMOTHY C CLEVELAND/Primary Examiner, Art Unit 1774