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 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.
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.
Claim(s) 1- 20 are rejected under 35 U.S.C. 103 as being unpatentable over CN-104458341 (Dai et al) see translation in view of JP-2001165927 (Takeuchi it al), see translation. As to claims 1, 16 and 20, Dai et al disclose a portable solid phase extracting device for sampling of natural micro-polluted flowing wastewater including an inlet tube (wastewater collecting tube 1) configured to extend into a sewage flow; an outlet port (at filtering return valve 5 back to pipe 1); a high-flow circuit fluidly coupling the inlet tube 1 to the outlet port (at filtering return valve 5 into tube 1) where “high-flow” is simply a relative term based on the speed of the pump 2; a first pump (transfer/conveying pump 2) positioned along the high-flow circuit and configured to pump wastewater from the sewage flow, through the inlet tube 1 and out the outlet port (valve 5 to tube 1), a sampling circuit (4/6/8/9/11/12/13) fluidly coupled to the high-flow circuit via a junction (near valve 3) and comprising: a solid waste filter (filter tower 4) fluidly coupled to the junction 3; and a solid-phase extraction cartridge (extraction column 8 with sleeve 9) fluidly coupled to an outlet of the solid waste filter 4; a second pump (vacuum pump 13) positioned along the sampling circuit; and a controller (control circuit 14) configured to, during a sampling cycle: at a first time, activate the first pump 2 to initiate flow of wastewater from the sewage flow through the high-flow circuit; at a second time, activate the second pump (pump 13) to divert wastewater from the high-flow circuit into the sampling circuit via the junction; and at a third time succeeding the second time by a sampling duration, deactivate the second pump, see translation and figure. It is noted that there is not disclosed pumping “out of the outlet port” by Dai et al, but the inlet acts as the outlet as well, see figure and return from return valve 5. In a related prior art device, Takeuchi et al disclose a method of monitoring sewage 1 with sampling device 2 and filter 3 along with a return at the unnumbered junction or valve between 3 and 4 showing a return outlet prior to the extraction at concentrator 5, see translation and figure. Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing to have included a separate outlet line or port as disclosed by Takeuchi et al as an alternative to using the same inlet as the outlet in order to simultaneously collect a sample and discard a sample back into the flow. As to claim 2, note the fluid repository (water purifying tank 6) fluidly connected to the sampling circuit. As to claim 3, note the outlet is coupled to the extraction cartridge 9/10 via valve 7. As to claim 4, note the suitcase as depicted in the figure suspended above the flow housing all the circuits and pumps and the controller and although the inlet/outlet is not shown as external to the casing but it is indicated that the collector pipe is immersed in the natural water such that it would have been obvious to one of ordinary skill in the art at the time of filing that the pipe would have to extend external to the suitcase in order to be able to immersed in the water source. As to claims 5 and 16, the usage of peristaltic pumps is not particularly disclosed by Dai et al. However, peristaltic pumps are old and known in the art of pumping. Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing to have included any known type of pump for controlling the flow such as a peristaltic pump as a matter of design choice of known pumps and alternatives. As to claim 6, both Dai et al and Takeuchi et al perform solid phase extraction of contaminants which are known to include drug metabolites and chemicals. As to claim 7, note the diverter valve 7 sends the fluid to upper cartridge 8 and lower cartridge 9 which comprises for a set of extraction cartridges. As to claim 8, the filter pore size is 50-100 mm which is able to collect bacteria. As to claims 9 and 16, note these elements of claim 9 are already found in the discussion of claim 1 and can be designated as a “sampling assembly” as a matter of design choice. Further, with regard to a replaceable filter kit, the filter tower 4 is comprised of a 3 staged stacked structure such that it can be replaced with a different stage for different particle size. As to claim 10, note that Takeuchi et al teaches a sequencer device for controlling the filtering and sampling steps, see translation and Dai et al also teach diverting excess water where the filter bypass valve 5 regulates the flow by returning excess water via the bypass line. As to claim 11, note that Takeuchi et al also teach sampling performed at regular intervals such as over 60 minutes. As to claim 12, note Dai et al indicate the flow rate of 1 to 6 liters, preferably 2L for extraction column enriching. As to claim 13, setting up sampling cycles with a specific interval is considered a matter of design choice obvious to one of ordinary skill in the art at the time of filing based on the desired schedule and level of detection desired. As to claim 14, note filtering return valve 5 controlling the flow. As to claim 15, note that Dai et al disclose controlling the flow with the conveying pump and control circuit to achieve various flows suggesting the usage of a flowmeter to monitor the flow so that it can be controlled. As to claim 17, Dai et al teach periodically sampling at intervals and further replacement of the filter kit is considered an obvious necessity in order to continue collecting representative samples as filter life is known to deteriorate after a certain number of uses. As to claim 18, Dai et al teaches in par[018 and 028] removing by discharging liquid. As to claim 19, although quick disconnects are not particularly discussed, it is noted that the valves 3/5/7/10 all operate to connect or disconnect various parts of the flow circuit as indicated in par[018,028,030] such that by movement of the valve stem the parts are quick connected to other parts of the flow circuit. As to claim 20, note further, a wastewater sampling system comprising: an inlet tube (1) extending into a sewage flow; a first pump (pump 2) configured to pump wastewater from the sewage flow into the wastewater sampling system; a solid waste filter (4) fluidly coupled to the inlet tube; a solid-phase extraction cartridge (8/9) fluidly coupled to an outlet of the solid waste filter (via tank 6); a second pump (13) configured to pump volumes of wastewater through the solid waste filter and the solid-phase extraction cartridge; and a controller (control circuit 14) configured to: periodically execute a series of sampling cycles of over a sampling period (control circuit controls vacuum pump to direct water through the cartridges); for each sampling cycle in the series of sampling cycles, access a target flow rate of the second pump proportional to an approximate flow rate of the sewage flow during the sampling cycle (control circuit turns on the pump to make the filtering safely and form a negative pressure) ; and during each sampling cycle in the series of sampling cycles: at a first time, activate the first pump to initiate sewage flow into the wastewater sampling system; at a second time succeeding the first time, activate the second pump to pass wastewater through the solid waste filter and the solid-phase extraction cartridge at the target flow rate (a rate to allow smooth flow through the cartridge); and at a third time succeeding the second time by a sampling duration, deactivate the second pump (deactivate pump to discharge state).
Response to Arguments
Applicant's arguments filed 6/3/26 have been fully considered but they are not persuasive. Applicant has argued that neither Dai nor Takeuchi employ materially different fluid handling approaches and Dai fails to disclose a high-flow circuit fluidly coupling inlet to an outlet port in which wastewater is first driven through a high flow circuit and selectively diverted to a separate sampling circuit and fails to disclose a second pump that is independently activated which is different from the timed diversion from a high flow circuit to a side sampling circuit. Such an argument is not found persuasive because Dai et al do allow for high through flow by returning excess water and do allow for sampling through the extraction cartridges under the pumping action of the vacuum pump 13 all under the direction of the control circuit 14 controlling the flow and inlet valve 3 transfers the flow from the bypass flow to the sampling mode and the valve is electronically controlled as commanded by the control circuit. The control circuit acts as a sequencer that automatically opens or stops the pumps to move the sample through collection to filtration to spe to drain. Also, the high flow can be achieved based on the pumping speed of the conveying pump 2. Further, the teachings of Takeuchi are only used to support the usage of a separate outlet line as opposed to usage of the inlet line. Again, note that the designation of “high-flow” merely refers to relative language that has not been defined as any specific speed of flow or for any length of time flow or for any specific purpose. It can merely refer to a drainage flow or through flow or any flow that meets the claimed flow circuit coupling the inlet tube to an outlet port.
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 1-3 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11714030. Although the claims at issue are not identical, they are not patentably distinct from each other because all the limitations of claims 2 and 3 of the present application are found in claim 1 of the patent.
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.
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/N.S.F/Examiner, Art Unit 2855
/DANIEL S LARKIN/Primary Examiner, Art Unit 2855
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