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 .
Reissue Applications
For reissue applications filed before September 16, 2012, all references to 35 U.S.C. 251 and 37 CFR 1.172, 1.175, and 3.73 are to the law and rules in effect on September 15, 2012. Where specifically designated, these are “pre-AIA ” provisions.
For reissue applications filed on or after September 16, 2012, all references to 35 U.S.C. 251 and 37 CFR 1.172, 1.175, and 3.73 are to the current provisions.
Applicant is reminded of the continuing obligation under 37 CFR 1.178(b), to timely apprise the Office of any prior or concurrent proceeding in which Patent No. 11,006,657 is or was involved. These proceedings would include any trial before the Patent Trial and Appeal Board, interferences, reissues, reexaminations, supplemental examinations, and litigation.
Applicant is further reminded of the continuing obligation under 37 CFR 1.56, to timely apprise the Office of any information which is material to patentability of the claims under consideration in this reissue application.
These obligations rest with each individual associated with the filing and prosecution of this application for reissue. See also MPEP §§ 1404, 1442.01 and 1442.04.
It is noted that the patent owner response of August 31, 2023 states that the patent has not been assigned. Patent owner will need to file a consent of assignee if this is not the case.
The March 28, 2023 preliminary amendment is not in the proper format for a reissue amendment. Claims 2-7 are in their patented form, so they should have the status indicator “(Original)” after the claim number. Claim 8 is a new claim and thus should be completely underlined. See MPEP 1453 and 37 C.F.R. 1.173 (b) and (d).
Claims 1-7 are rejected under 35 U.S.C. 251 as being an impermissible recapture of broadened claimed subject matter surrendered in the application for the patent upon which the present reissue is based. See Greenliant Systems, Inc. et al v. Xicor LLC, 692 F.3d 1261, 103 USPQ2d 1951 (Fed. Cir. 2012); In re Shahram Mostafazadeh and Joseph O. Smith, 643 F.3d 1353, 98 USPQ2d 1639 (Fed. Cir. 2011); North American Container, Inc. v. Plastipak Packaging, Inc., 415 F.3d 1335, 75 USPQ2d 1545 (Fed. Cir. 2005); Pannu v. Storz Instruments Inc., 258 F.3d 1366, 59 USPQ2d 1597 (Fed. Cir. 2001); Hester Industries, Inc. v. Stein, Inc., 142 F.3d 1472, 46 USPQ2d 1641 (Fed. Cir. 1998); In re Clement, 131 F.3d 1464, 45 USPQ2d 1161 (Fed. Cir. 1997); Ball Corp. v. United States, 729 F.2d 1429, 1436, 221 USPQ 289, 295 (Fed. Cir. 1984). The reissue application contains claim(s) that are broader than the issued patent claims. The record of the application for the patent shows that the broadening aspect (in the reissue) relates to claimed subject matter that applicant previously surrendered during the prosecution of the application. Accordingly, the narrow scope of the claims in the patent was not an error within the meaning of 35 U.S.C. 251, and the broader scope of claim subject matter surrendered in the application for the patent cannot be recaptured by the filing of the present reissue application.
MPEP 1412.02 establishes a three step test for recapture:
(1) first, we determine whether, and in what respect, the reissue claims are broader in scope than the original patent claims;
[NOTE: if the claims are not broader in scope than the original patent claims, there is no recapture; if the claims are broader in scope, then proceed to step (2).]
(2) next, we determine whether the broader aspects of the reissue claims relate to subject matter surrendered in the original prosecution; and
[NOTE: if the broader aspects of the reissue claims do not relate to surrendered subject matter, there is no recapture; if the broader aspects of the reissue claims do relate to surrendered subject matter, then proceed to step (3).]
(3) finally, we determine whether the reissue claims were materially narrowed in other respects, so that the claims may not have been enlarged, and hence avoid the recapture rule.
[NOTE: if the reissue claims were materially narrowed in aspects related to the surrendered subject matter, there is no recapture; if the claims were not materially narrowed in related aspects or were narrowed in unrelated aspects, there is recapture.]
In this instance, the reissue claims are broader in scope, due to the broadening of “a piezoelectric transducer” to “an atomizer”. Thus, the first prong of the test has been met.
In regard to the second prong, during the original prosecution of the 16/235,126 application, the interview summary of February 23, 2021 stated, “the proposed amendments ‘humidifier comprising a piezoelectric transducer’ would appear to overcome the rejection of record of McGann, Graziano, and Pinheiro”. The following amendment (2/26/2021) amended claim 1 to add, “said humidifier comprising a piezoelectric transducer whereby the humidifier produces a mist and wherein said fan moves mist into air inside said aging chamber”. The remarks submitted with the amendment stated in the final paragraph of page 18, “Claim 1 as amended recites a piezoelectric humidifier. This is disclosed in Applicant’s specification in paragraph [0033]. This is a significant difference from other aging apparatus. The interaction of the piezoelectric humidifier and Applicant’s system provides an improved result.”
This amendment and argument led to the withdrawal of the art rejections and the allowance of the application. Thus, the application was allowed because the claims were amended to include a humidifier comprising a piezoelectric transducer whereby the humidifier produces a mist and wherein said fan moves mist into air inside said aging chamber, a limitation that was added by applicant and also argued by applicant to overcome a pending rejection. The claim without these limitations is seen as surrendered by applicant.
In regard to the third prong, the reissue claims are not amended other than the removal of the piezoelectric limitation. As such the claims cannot be seen to have been materially narrowed in other aspects.
Allowable Subject Matter
Claim 8 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: While various features of the claim are known, there is no teaching to combine these teachings into the claimed apparatus utilizing the claimed control using a communications interface communicating with both a portable interactive device and a cloud resource. Noh et al (US 2014/0188463) shows a household device (refrigerator) controllable with a communication device (a cell phone) to provide control instructions to modify the operation of the household device. This can use a communication network to connect to a remote server, but does not teach control of humidity or the use of aging protocols and only modifies the set points and does not have an operating mode communicating with the cloud resource. McCann (US 2010/0154452) shows a household device which is disclosed to be usable to age meats using a humidifier and temperature controls, but is not connectable with a portable interactive device, or a network or cloud source, does not use aging protocols or an atomizer. Bortoletto (US 2011/0232304) and Kamisako et al (US 2010/0024462) each disclose a piezoelectric atomizer for use in a food storage compartment (refrigerator) and the humidity level can be set by the user, but the controls do not communicate with a portable interactive device or disclose an operating mode communicating with a cloud resource. Bianchi et al (US 2008/0196427) shows a refrigerator with humidity control, but no aging protocols, communication with a portable interactive device or an operating mode communicating with a cloud resource. Reiman show that aging meat in a temperature and humidity controlled environment has been know, but lacks the aging protocols, communication with a portable interactive device and an operating mode communicating with a cloud resource.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WILLIAM C DOERRLER whose telephone number is (571)272-4807. The examiner can normally be reached M-F, 7-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Patricia Engle can be reached on (571) 272-6660. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/WILLIAM C DOERRLER/Reexamination Specialist, Art Unit 3993
Conferees:
/WILLIAM E DONDERO/Reexamination Specialist, Art Unit 3993
/Patricia L Engle/SPRS, Art Unit 3993