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
Applicant's election with traverse of Group I, Claims 1-10 in the reply filed on November 18, 2025 is acknowledged. The traversal is on the grounds that it is believed that search and examination of claims 11-20 will not require different fields of search or result in inapplicable prior art across different groups. Additionally, it is believed that it is unlikely examination of claims 11-20 will raise different non-prior art issues that would otherwise impose a serious burden, and the office action does not articulate any particular prospective non-prior art issues with respect to any of the claims that would differ across groups.
This is not found persuasive because examiner has explained how the inventions are independent and distinct from each other, and hence, are classified in two completely different CPC classes (Group I, Claims 1-10 classified in B01J2/02 and Group II, Claims 11-20 classified in B01J19/12). Further, examiner has provided sufficient reasoning for concluding that a serious search/examination burden is present if a restriction was not required, such as carrying out different search queries and searching in different classes/subclasses in view of their different classification.
The requirement is still deemed proper and is therefore made FINAL.
Group II, Claims 11-20 have been withdrawn as being directed to a non-elected invention.
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.
Claims 1-5 and 10 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-6 of U.S. Patent No. 11,872,632 in view of Wang et al. (US Pat. No. 11,331, 724, hereinafter Wang).
Claim 1 of US Pat. No. 11,872,632 contains substantially similar limitations to claim 1 of instant invention except:
a platform within the enclosure configured to intercept the particles;
one or more generators configured to produce electromagnetic waves and/or acoustic waves to form a fluidized bed of the particles on the platform.
However, Wang teaches an apparatus for preparing ultrafine spherical metal powders. The apparatus comprises a housing (#20) having an enclosure, a crucible (#2) configured to produce a melt of a material (#5), a droplet device (#14) configured to receive the melt of the material (#5) from the crucible (#2) and produce a flow of droplets of melt within the enclosure of the housing (#20), a platform (#8) within the enclosure configured to intercept the particles (#13) and an oscillator generator (#3) configured to produce electromagnetic waves and/or acoustic waves, and wherein the platform (#8) and the oscillator generator (#3) are configured to produce the powder (#9) that includes the particles (see figure 1 and column 7, lines 16-42 and column 8, lines 5-11 and lines 18-52).
It would have been obvious by one of ordinary skill in the art before the effective filing date of the applicant’s invention to modify the system as disclosed by Claim 1 of US Pat. No. 11,872,632 by further including one or more generators configured to produce electromagnetic waves and/or acoustic waves to form a fluidized bed of the particles on the platform, as claimed by the applicant, with a reasonable expectation of success as Wang teaches an apparatus for preparing ultrafine spherical metal powders comprising a housing having an enclosure, a crucible configured to produce a melt of a material, a droplet device configured to receive the melt of the material from the crucible and produce a flow of droplets of melt within the enclosure of the housing, a platform within the enclosure configured to intercept the particles, and an oscillator generator configured to produce electromagnetic waves and/or acoustic waves, and wherein the platform and the oscillator generator are configured to produce the powder that includes the particles, thereby obtaining metal powder particles with narrow particle size distribution, controllable and with high sphericity and low production cost (see figure 1, column 5, lines 22-29, column 7, lines 16-42 and column 8, lines 5-11 and lines 18-52).
Examiner notes that although the combination of US Pat. No. 11,872,632, in view of Wang, does not explicitly disclose wherein the generator is configured to form a fluidized bed of particles on the platform, Wang discloses substantially similar limitations as claimed by the applicant. Therefore, it is reasonably expected, absent evidence to the contrary, that the system of the combination of US Pat. No. 11,872,632, in view of Wang, is capable of functioning in the same manner as claimed, as it has been held that when the structure recited in the reference is substantially identical to that of the claims, claimed functions are considered prima facie obvious. See MPEP 2112.01.
Claim 6 of US Pat. No. 11,872,632 contains substantially similar limitations to claim 1 of instant invention except: one or more generators configured to produce electromagnetic waves and/or acoustic waves to form a fluidized bed of the particles on the platform.
However, Wang teaches an apparatus for preparing ultrafine spherical metal powders. The apparatus comprises a housing (#20) having an enclosure, a crucible (#2) configured to produce a melt of a material (#5), a droplet device (#14) configured to receive the melt of the material (#5) from the crucible (#2) and produce a flow of droplets of melt within the enclosure of the housing (#20), a platform (#8) within the enclosure configured to intercept the particles (#13) and an oscillator generator (#3) configured to produce electromagnetic waves and/or acoustic waves, and wherein the platform (#8) and the oscillator generator (#3) are configured to produce the powder (#9) that includes the particles (see figure 1 and column 7, lines 16-42 and column 8, lines 5-11 and lines 18-52).
It would have been obvious by one of ordinary skill in the art before the effective filing date of the applicant’s invention to modify the system as disclosed by Claim 6 of US Pat. No. 11,872,632 by further including one or more generators configured to produce electromagnetic waves and/or acoustic waves to form a fluidized bed of the particles on the platform, as claimed by the applicant, with a reasonable expectation of success as Wang teaches an apparatus for preparing ultrafine spherical metal powders comprising a housing having an enclosure, a crucible configured to produce a melt of a material, a droplet device configured to receive the melt of the material from the crucible and produce a flow of droplets of melt within the enclosure of the housing, a platform within the enclosure configured to intercept the particles, and an oscillator generator configured to produce electromagnetic waves and/or acoustic waves, and wherein the platform and the oscillator generator are configured to produce the powder that includes the particles, thereby obtaining metal powder particles with narrow particle size distribution, controllable and with high sphericity and low production cost (see figure 1, column 5, lines 22-29, column 7, lines 16-42 and column 8, lines 5-11 and lines 18-52).
Examiner notes that although the combination of US Pat. No. 11,872,632, in view of Wang, does not explicitly disclose wherein the generator is configured to form a fluidized bed of particles on the platform, Wang discloses substantially similar limitations as claimed by the applicant. Therefore, it is reasonably expected, absent evidence to the contrary, that the system of the combination of US Pat. No. 11,872,632, in view of Wang, is capable of functioning in the same manner as claimed, as it has been held that when the structure recited in the reference is substantially identical to that of the claims, claimed functions are considered prima facie obvious. See MPEP 2112.01.
Claim 2 of US Pat. No. 11,872,632 contains substantially similar limitations as claimed in claim 2 of instant invention, thereby reading on the subject matter of the claimed invention.
Claim 3 of US Pat. No. 11,872,632 contains substantially similar limitations as claimed in claim 3 of instant invention, thereby reading on the subject matter of the claimed invention.
Claim 4 of US Pat. No. 11,872,632 contains substantially similar limitations as claimed in claim 4 of instant invention, thereby reading on the subject matter of the claimed invention.
Claim 5 of US Pat. No. 11,872,632 contains substantially similar limitations as claimed in claim 5 of instant invention, thereby reading on the subject matter of the claimed invention.
Claim 1 of US Pat. No. 11,872,632 contains substantially similar limitations as claimed in claim 10 of instant invention, thereby reading on the subject matter of the claimed invention.
Claim Rejections - 35 USC § 103
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 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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-2 and 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over Li et al. (US Pat. Pub. No. 2020/0198005, hereinafter Li) in view of Wang et al. (US Pat. No. 11,331, 724, hereinafter Wang).
In regards to Claim 1, Li discloses a system for producing a powder, the system comprising:
a housing having an enclosure (#10) (see figure 1 and paragraph [0020]);
a crucible (#12) configured to produce a melt of a first material (#16) (see figure 1 and paragraph [0020]);
a droplet device (atomization chamber #14) configured to receive the melt of the first material (#16) from the crucible (#12) and produce a flow of droplets of the melt of the first material (#16) within the enclosure of the housing (#10) (see figure 1 and paragraph [0020]); and
a distribution device (high-velocity jets) configured to propel a second material (water) into the flow of droplets of the first material (#16) within the enclosure (#10) such that the second material is mixed with the flow of droplets of the first material (#16), wherein the droplets solidify in the enclosure to form particles (#26) of the first material, the second material, and/or a reaction product thereof (see figure 1 and paragraph [0020]).
Li fails to disclose:
a platform within the enclosure configured to intercept the particles;
one or more generators configured to produce electromagnetic waves and/or acoustic waves to form a fluidized bed of the particles on the platform, and
wherein the platform and/or the one or more generators are configured to produce, from the fluidized bed, the powder that includes the particles.
However, Wang teaches an apparatus for preparing ultrafine spherical metal powders. The apparatus comprises a housing (#20) having an enclosure, a crucible (#2) configured to produce a melt of a material (#5), a droplet device (#14) configured to receive the melt of the material (#5) from the crucible (#2) and produce a flow of droplets of melt within the enclosure of the housing (#20), a platform (#8) within the enclosure configured to intercept the particles (#13) and an oscillator generator (#3) configured to produce electromagnetic waves and/or acoustic waves, and wherein the platform (#8) and the oscillator generator (#3) are configured to produce the powder (#9) that includes the particles (see figure 1 and column 7, lines 16-42 and column 8, lines 5-11 and lines 18-52).
It would have been obvious by one of ordinary skill in the art before the effective filing date of the applicant’s invention to modify the system as disclosed by Li by further having a platform within the enclosure configured to intercept the particles, one or more generators configured to produce electromagnetic waves and/or acoustic waves to form a fluidized bed of the particles on the platform, and wherein the platform and/or the one or more generators are configured to produce, from the fluidized bed, the powder that includes the particles, as claimed by the applicant, with a reasonable expectation of success as Wang teaches an apparatus for preparing ultrafine spherical metal powders comprising a housing having an enclosure, a crucible configured to produce a melt of a material, a droplet device configured to receive the melt of the material from the crucible and produce a flow of droplets of melt within the enclosure of the housing, a platform within the enclosure configured to intercept the particles, and an oscillator generator configured to produce electromagnetic waves and/or acoustic waves, and wherein the platform and the oscillator generator are configured to produce the powder that includes the particles, thereby obtaining metal powder particles with narrow particle size distribution, controllable and with high sphericity and low production cost (see figure 1, column 5, lines 22-29, column 7, lines 16-42 and column 8, lines 5-11 and lines 18-52).
Examiner notes that although Li, in view of Wang, does not explicitly disclose wherein a fluidized bed of particles is formed on the platform, Li, as modified above, discloses substantially similar limitations as claimed by the applicant. Therefore, it is reasonably expected, absent evidence to the contrary, that Li’s system, as modified above is capable of functioning in the same manner as claimed, as it has been held that when the structure recited in the reference is substantially identical to that of the claims, claimed functions are considered prima facie obvious. See MPEP 2112.01.
In regards to Claim 2, Li discloses wherein the particles (#26) of the powder include an alloy of the first material and the second material (see paragraph [0008]).
In regards to Claim 8, Li, in view of Wang, discloses the system as recited in claim 1. Although Li, as modified above, is silent in regards to wherein the one or more generators are configured to control the fluidized bed to produce the powder with a predetermined volume or mass fraction of the first material, the second material, and/or the reaction product thereof, Li, as modified above, discloses substantially the same system as claimed in claim 1. Therefore, it is considered reasonably obvious, absent evidence to the contrary, that Li’s system, as modified above, will reasonably function in the same manner as claimed, as it has been held that when the structure recited in the reference is substantially identical to that of the claims, claimed functions are considered prima facie obvious. See MPEP 2112.01.
In regards to Claim 9, Li, in view of Wang, discloses the system as recited in claim 1. Although Li, as modified above, is silent in regards to wherein the one or more generators are configured to produce the powder with a predetermined particle size distribution, Li, as modified above, discloses substantially the same system as claimed in claim 1. Therefore, it is considered reasonably obvious, absent evidence to the contrary, that Li’s system, as modified above, will reasonably function in the same manner as claimed, as it has been held that when the structure recited in the reference is substantially identical to that of the claims, claimed functions are considered prima facie obvious. See MPEP 2112.01.
Claims 1-5 and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Daul et al. (US Pat. No. 11,872,632, with an effective filing date of December 27, 2022, hereinafter Daul), in view of Wang.
In regards to Claim 1, Daul discloses a system (#100) for producing a powder, the system comprising:
a housing (#110) having an enclosure (see figure 1 and column 3, lines 21-27);
a crucible (#112) configured to produce a melt of a first material (#116) (see figure 1 and column 3, lines 28-37);
a droplet device (#114) configured to receive the melt of the first material (#116) from the crucible (#112) and produce a flow of droplets (#118) of the melt of the first material (#116) within the enclosure of the housing (#110) (see figure 1 and column 3, lines 38-49); and
a distribution device (#120) configured to propel a second material (#122) into the flow of droplets of the first material (#116) within the enclosure (#110) such that the second material is mixed with the flow of droplets of the first material (#116), wherein the droplets solidify in the enclosure to form particles of the first material, the second material, and/or a reaction product thereof (see figure 1 and column 3, line 50 to column 4, line 8);
a platform (#127-#130 contact surfaces) within the enclosure configured to intercept the particles (see figure 1 and column 4, lines 33-51); and
wherein the platform (#127-#130) is configured to produce the powder (#132) that includes the particles (see figure 1 and column 4, lines 52-67).
Daul fails to disclose:
one or more generators configured to produce electromagnetic waves and/or acoustic waves to form a fluidized bed of the particles on the platform.
However, Wang teaches an apparatus for preparing ultrafine spherical metal powders. The apparatus comprises a housing (#20) having an enclosure, a crucible (#2) configured to produce a melt of a material (#5), a droplet device (#14) configured to receive the melt of the material (#5) from the crucible (#2) and produce a flow of droplets of melt within the enclosure of the housing (#20), a platform (#8) within the enclosure configured to intercept the particles (#13) and an oscillator generator (#3) configured to produce electromagnetic waves and/or acoustic waves, and wherein the platform (#8) and the oscillator generator (#3) are configured to produce the powder (#9) that includes the particles (see figure 1 and column 7, lines 16-42 and column 8, lines 5-11 and lines 18-52).
It would have been obvious by one of ordinary skill in the art before the effective filing date of the applicant’s invention to modify the system as disclosed by Daul by further having one or more generators configured to produce electromagnetic waves and/or acoustic waves to form a fluidized bed of the particles on the platform , as claimed by the applicant, with a reasonable expectation of success as Wang teaches an apparatus for preparing ultrafine spherical metal powders comprising a housing having an enclosure, a crucible configured to produce a melt of a material, a droplet device configured to receive the melt of the material from the crucible and produce a flow of droplets of melt within the enclosure of the housing, a platform within the enclosure configured to intercept the particles, and an oscillator generator configured to produce electromagnetic waves and/or acoustic waves, and wherein the platform and the oscillator generator are configured to produce the powder that includes the particles, thereby obtaining metal powder particles with narrow particle size distribution, controllable and with high sphericity and low production cost (see figure 1, column 5, lines 22-29, column 7, lines 16-42 and column 8, lines 5-11 and lines 18-52).
Examiner notes that although Daul, in view of Wang, does not explicitly disclose wherein a fluidized bed of particles is formed on the platform, Daul, as modified above, discloses substantially similar limitations as claimed by the applicant. Therefore, it is reasonably expected, absent evidence to the contrary, that Daul’s system, as modified above is capable of functioning in the same manner as claimed, as it has been held that when the structure recited in the reference is substantially identical to that of the claims, claimed functions are considered prima facie obvious. See MPEP 2112.01.
In regards to Claim 2, Daul discloses wherein the particles of the powder include an alloy of the first material and the second material (see figure 1, column 2, lines 31-32 and column 6, lines 29-38).
In regards to Claim 3, Daul discloses wherein the particles of the powder include a core formed of the first material and a coating or layer of the second material thereon (see figure 1, column 2, lines 33-35 and column 6, lines 44-52).
In regards to Claim 4, Daul discloses wherein the powder includes a mixture of particles of the first material and the second material (see figure 1, column 2, lines 36-37 and column 6, lines 52-60).
In regards to Claim 5, Daul discloses wherein the droplet device (#114) is configured to apply an electrostatic charge to the first material and/or the distribution device (#120) is configured to apply an electrostatic charge to the second material (#122) (see figure 1, column 1, lines 56-59 and column 4, lines 23-32).
In regards to Claim 10, Daul discloses further comprising a second distribution device (#124) configured to propel a third material (#126) into the flow of droplets of the first material (#116) within the enclosure such that the third material (#126) is mixed with the droplets of the first material (#116) (see figure 1 and column 3, line 50 to column 4, line 8).
Allowable Subject Matter
Claims 6-7 are 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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JELITZA M PEREZ whose telephone number is (571)272-8139. The examiner can normally be reached Monday-Friday 9:00am-6:00pm.
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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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/JELITZA M PEREZ/Primary Examiner, Art Unit 1774