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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the quick disconnect fittings (first, second and third) must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
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.
Claims 1-15 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. In claim 1, on line 16, “the second pump” lacks any antecedent basis. Further, claims 2-15 are rejected on the basis of their dependency on rejected claim 1.
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 pipe 1) configured to extend into a sewage flow; a first outlet port (at filtering return valve 5 back to pipe 1); second outlet port (at front valve 10); a high-flow circuit fluidly coupling the inlet tube 1 to the outlet port; a first pump (transfer pump 2) positioned along the high-flow circuit and configured to pump wastewater from the sewage flow, through the inlet tube 1, a sampling circuit 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; 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 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 cartridge 8/9 but lacks a teaching for a set of extraction cartridges. However, duplication of parts is considered an obvious design choice for the purpose of collecting multiple contaminants. Duplicating the components of a prior art device is a design consideration within the skill of the art. In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). As to claim 8, the filter pore size is 50-100 mm which is able to collect bacteria. As to claims 9 and 16, as best understood, note these elements of claim 9 are already found in the discussion of claim 1 and it is not clear if these are in addition to those in claim 1. 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. 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.
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 2 and 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
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The additional prior art listed on PTO-892 are cited to illustrate state of the art sampling of sewage and water.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NASHMIYA FAYYAZ whose telephone number is (571)272-2192. The examiner can normally be reached Monday-Thursday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Laura Martin can be reached at (571)272-2160. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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NF
Examiner
Art Unit 2855
/N.S.F/Examiner, Art Unit 2855
/LAURA MARTIN/SPE, Art Unit 2855