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 .
Election/Restrictions
Newly submitted claims 27-32 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: the claims to the newly added method claim are distinct from the apparatus claims as originally elected. In this case the apparatus can be used without the step of connecting the mixing tube to the emitter and connecting the emitter to the canopy.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 27-32 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Claim limitation “means for providing a predetermined heating pattern upon the emitter” has/have been interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because it uses/they use a generic placeholder “means” coupled with functional language “for providing a predetermined heating pattern upon the emitter” without reciting sufficient structure to achieve the function. Furthermore, the generic placeholder is not preceded by a structural modifier.
A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitation:
Baffle; burner tube; burner base; burner cap; burner port; canopy; control box; distribution chamber; emitter; fuel flow path; gas valve; orifice adaptor; restrictor cup (as identified in applicant’s arguments filed 10/02/2025).
If applicant wishes to provide further explanation or dispute the examiner' s interpretation of the corresponding structure, applicant must identify the corresponding structure with reference to the specification by page and line number, and to the drawing, if any, by reference characters in response to this Office action.
If applicant does not intend to have the claim limitation(s) treated under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may amend the claim(s) so that it/they will clearly not invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, or present a sufficient showing that the claim recites/recite sufficient structure, material, or acts for performing the claimed function to preclude application of 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 102
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The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 1-8, 21-24, and 26 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by HORNE WILLIAM P (US 2985137 A).
Regarding claims 1 and 8 Horne discloses a low profile brooder (Fig. 1), comprising: an emitter (44); a mixing tube (30) disposed at least partially nonvertically (Fig. 2; corresponding to portion 26 of mixing tube 30, which curves away, and is thus at least partially non vertical); and means (Fig. 1; 33) for providing a predetermined heating pattern upon the emitter.
The steps have been anticipated in the normal operation of the device cited above.
Regarding claim 2, Horne, as shown above, discloses all of the limitations of claim 1. Horne further discloses wherein the means for providing a predetermined heating pattern upon the emitter is means for providing a symmetrical heating pattern upon the emitter (corresponding to symmetrical heating shown via arrows in Fig. 2); (Col. 5, lines 60-64).
Regarding claim 3, Horne, as shown above, discloses all of the limitations of claim 1. Horne further discloses wherein the means for providing a predetermined heating pattern upon the emitter is means for providing uniform heating of the emitter (Col. 5, lines 60-64).
Regarding claim 4, Horne, as shown above, discloses all of the limitations of claim 1. Horne further discloses wherein the emitter defines a central axis (Fig. 2; corresponding to an imaginary line which divides the emitter into equal halves) and the mixing tube resides at least in part radial to the central axis (Fig. 1; corresponding to portion of 26 which curves outwardly, thus radial to the imaginary line).
Regarding claim 5, Horne, as shown above, discloses all of the limitations of claim 1. Horne further discloses wherein the emitter defines a central axis (Fig. 2; corresponding to an imaginary line which divides the emitter into equal halves), the mixing tube resides at least in part radial to the central axis (Fig. 1; corresponding to portion of 26 which curves outwardly, thus at least in part radial to the imaginary line), the radiant defines a first polar direction from the central axis, and a baffle is disposed at a location in the first polar direction from the central axis (similar to the disclosed invention, a portion of 40 is disposed at a location in the first polar direction, and in view of the comprising limitation).
Regarding claim 6, Horne, as shown above, discloses all of the limitations of claim 1. Horne further discloses wherein the emitter defines a central axis (Fig. 2; corresponding to an imaginary line which divides the emitter into equal halves) and the mixing tube resides at least in part perpendicular to the central axis (Fig. 1; corresponding to portion of 26 which curves outwardly, thus perpendicular to the imaginary line).
Regarding claim 7, Horne, as shown above, discloses all of the limitations of claim 1. Horne further discloses wherein the emitter defines a central axis (Fig. 2; corresponding to an imaginary line which divides the emitter into equal halves), the mixing tube resides at least in part perpendicular to the central axis, the radiant defines a first polar direction from the central axis (Fig. 1; corresponding to portion of 26 which curves outwardly, thus perpendicular to the imaginary line), and a baffle (40) is disposed at a location in the first polar direction from the central axis (similar to the disclosed invention, a portion of 40 is disposed at a location in the first polar direction, and in view of the comprising limitation).
Regarding claim 21 Horne discloses a low profile brooder (Fig. 1; 10, 13), comprising: a mixing tube (Fig. 2; 30); (Col. 3, lines 40-45), an emitter (31, 32, 42) above the mixing tube, and a canopy (60) above the emitter; the low profile brooder defining a first height in a side elevation view (see annotated Figure above as the outermost line); the mixing tube and emitter together defining a second height (see annotated Figure above, as the innermost line) in a side elevation view; the second height being no more than three-fourths of the first height.
Regarding claim 22 Horne, as shown above, discloses all of the limitations of claim 21. Horne further discloses wherein the emitter defines a central axis and the mixing tube resides, at least in part, apart from the central axis (shown in Fig. 2 above, where portion 26 curves away from the central axis); (Col. 3, lines 36-39).
Regarding claim 23 Horne, as shown above, discloses all of the limitations of claim 21. Horne further discloses in which the second height is no more than two-thirds of the first height (shown in annotated Figure above).
Regarding claim 24 Horne, as shown above, discloses all of the limitations of claim 21. Horne further discloses in which the second height is no more than half of the first height.
Regarding claim 26 Horne, as shown above, discloses all of the limitations of claim 21. Horne further discloses (shown in Fig. 2 above, where portion 26 curves away from the central axis); (Col. 3, lines 36-39) wherein the emitter defines a central axis and the mixing tube resides, at least in part, radial to the central axis.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over HORNE WILLIAM P (US 2985137 A) in view of Hermann; Le Roy Nicholas (US 3563206 A).
Regarding claim 25 Horne, as shown above, discloses all of the limitations of claim 21. Horne does not disclose in which the mixing tube has an upstream end and a downstream end, and is not linear between its upstream end and its downstream end. Hermann teaches the mixing tube has an upstream end and a downstream end, and is not linear between its upstream end and its downstream end (Fig. 3; 34); (Col. 2; lines 64-78).
It would have been obvious to one of ordinary skill within the art before the effective filing date of the claimed invention to have modified the mixing tube of Horne, wherein the mixing tube has an upstream end and a downstream end, and is not linear between its upstream end and its downstream end, as taught by Hermann, in order to substantially eliminate flashback (Col. 2, lines 64-78).
Response to Arguments
Applicant's arguments filed 10/02/2025 have been fully considered but they are not persuasive.
Applicant’s arguments, see pages 12-15, filed 10/02/2025, with respect to Fannon have been fully considered and are persuasive. The rejection of claim 1 has been withdrawn. However, the claims still stand rejected in view of Horne. Applicant’s arguments with respect to Fannon are moot.
Regarding applicant’s argument that Horne provides no disclosure to the mixing tube disposed at least partially nonvertically, this is not found persuasive. As shown in the rejection above, portion 26 which curves outwardly, as a part of mixing tube 30, is disposed “at least partially” nonvertically.
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 BRITTANY LOWERY whose telephone number is (571)270-3228. The examiner can normally be reached M-F 7 am-4 pm MST.
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, Timothy Collins can be reached at 571-272-6886. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRITTANY A LOWERY/Examiner, Art Unit 3644
/TIMOTHY D COLLINS/Supervisory Patent Examiner, Art Unit 3644