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 1-13, drawn to an efficacy-monitored sensor system to test a subject gas environment in the reply filed on October 20, 2025 is acknowledged. Claims 14-26 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected Group II, drawn to a method for efficacy-monitored testing of a subject gas environment, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on October 20, 2025.
The traversal is on the ground(s) that (1) the classification protocol is not an excuse for dismemberment of an application’s claims (p. 2, last para.) and (2) the articulated basis for restriction in the previous Office action is inadequate because it does not amount to a factual illustration of an alternative method of carrying out the claimed invention (p. 2, para. 2). These arguments are unpersuasive. The different classification is representative of divergent subject matter that would require different search on different sources or different search queries. For example, an apparatus claim is defined by its structural limitations and its functional limitations may not carry out patentable weight. The inventions can be shown to be distinct if either or both of the following can be shown: (1) the process for using the product as claimed can be practiced with another materially different product or (2) the product as claimed can be used in a materially different process of using that product. See MPEP § 806.05(h). In the instant case, the measured current flow of the sensor cell would be proportional to the gas concentration as a normal sensor cell does, and thus use of the measured current flow of the gas generator to determine the gas concentration is a materially different process practiced on the same recited apparatus.
The requirement is still deemed proper and is therefore made FINAL.
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.
Claim(s) 1-13 is/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 pre-AIA the applicant regards as the invention.
Claim 1 recites the limitations "any preselected target substance" in lines 8, 9, 21 and "any said preselected target substance" in lines 47-48. It is unclear what “any” target substance would be. It is suggested to change to “a preselected target substance” in line 8, “said preselected target substance” in lines 9, 21, and 47-48.
Claim 1 recites the limitation "a flow of test gas environment" in lines 26-27. It is unclear whether this flow is the same as the one recited in line 24. It is suggested to be “the flow of test gas environment.”
Claim 1 recites the limitation "the electrolyte substance" in lines 33 and 37. There is insufficient antecedent basis for this limitation in the claim. It is suggested to be “the electrolyte.”
Claim 1 recites the limitation "an electrical current flow" in line 36. It is unclear whether this current flow is the same as the one recited in line 32. It is suggested to be “the electrical current flow.”
Claim 1 recites the limitation "said element" in line 42. It is unclear what this element refers to or whether it is the same of the component recited in line 4 that produces an output. Further, there is insufficient antecedent basis for this limitation “element” in the claim, which at least should be “an element.”
Claim 1 recites the limitation "current flow" in line 45. It is suggested to be “the current flow.”
Dependent claim(s) 2-13 is/are rejected based on rejected claim 1.
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 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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) 1-6 and 8-13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kuhn (US 7,704,356) in view of Rabbett (US 2003/0145644), and further in view of Rohrl (US 2004/0033414).
Regarding claim 1, Kuhn teaches an efficacy-monitored sensor system to test a subject gas environment for a preselected target substance (Fig. 1; col. 1, l. 14: a gas sensor array), which sensor system comprises
a sensor cell (Fig. 1; col. 2, l. 37: an electrochemical gas sensor 3) that includes a container having an internal cavity (Fig. 1: the left chamber surrounding an internal cavity) and located within the internal cavity a component (Fig. 1: electrodes, 12, 13, 9) capable of interacting with the preselected target substance and producing an output comprising or being convertible to an electrical current representative of the concentration of target substance detected by the sensor cell (col. 2, ll. 10-11: the gas sensor shows a proportional current; further, the limitation “capable of…” is functional limitation in apparatus claims. MPEP 2114 (II). It does not differentiate the claimed apparatus from a prior art apparatus because the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)), said container further incorporating a membrane at least in part bounding the internal cavity (Fig. 1; col. 2, l. 47: permeable diffusion membrane 8), which membrane is capable of permitting passage of the subject gas environment including any preselected target substance, as well as a test gas environment including any preselected target substance, entrained therewith into the container's internal cavity (the limitation “capable of…” is functional limitation in apparatus claims. MPEP 2114 (II). It does not differentiate the claimed apparatus from a prior art apparatus because the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987));
an electrochemical generator cell (Fig. 1; col. 2, l. 36: a gas generator 2) for producing said preselected target substance (col. 2, ll. 38-39: test or calibrating gas generated in the gas generator 2) that includes a container having an internal cavity (Fig. 1: the right chamber surrounding an internal cavity), and located within the generator's internal cavity electrode components (Fig. 1: electrodes, 14, 15, 4) which are capable of interacting with one another as anode and cathode (the limitation “capable of…” is functional limitation in apparatus claims. MPEP 2114 (II). It does not differentiate the claimed apparatus from a prior art apparatus because the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)), said container further incorporating a membrane (Fig. 1; col. 2, l. 45: permeable membrane 7) capable of permitting passage into the generator cell's internal cavity of said test gas environment (the limitation “capable of…” is functional limitation in apparatus claims. MPEP 2114 (II). It does not differentiate the claimed apparatus from a prior art apparatus because the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)), and passage (Fig. 1; col. 2, l. 56: the opening 6) of preselected target substance out of the generator cell's internal cavity (col. 2, ll. 38-40: test or calibration gas generated in the gas generator can reach the area of the measuring electrode of the gas senor 3);
conduit (Fig. 1; col. 2, l. 38: a gas channel 1) providing a pathway for flow therealong of both said subject gas environment and said test gas environment including any preselected target substance entrained therewith (Fig. 1: the subject gas environment of the gas generator 2 and the test gas environment of the gas sensor 3; further, the limitation “for flow…” is functional limitation in apparatus claims. MPEP 2114 (II). It does not differentiate the claimed apparatus from a prior art apparatus because the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)), said conduit being interconnected at a first location with the electrochemical generator cell (Fig. 1: the connection between the gas generator 2 and the gas channel 1) and at a second location with said sensor cell (Fig. 1: the connection between the gas sensor 3 and the gas channel 1);
a source of said test gas environment which is capable of furnishing a flow of the test gas environment along said pathway and through the interconnection at the first location into said electrochemical generator cell's internal cavity (Fig. 1: the test gas environment has a source of the generated gas from the gas generator 2; further, the limitation “capable of…” is functional limitation in apparatus claims. MPEP 2114 (II). It does not differentiate the claimed apparatus from a prior art apparatus because the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)), and further furnishing a flow of test gas environment suitable for entraining the preselected target substance passing out of said generator cell's internal cavity through the interconnection at said first location (Fig. 1: the generated gas including the target substance flows out of the gas generator 2; further, the limitation “capable of… furnishing” is functional limitation in apparatus claims. MPEP 2114 (II). It does not differentiate the claimed apparatus from a prior art apparatus because the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)), thereby to transport said preselected target substance along said pathway to the second location and through the interconnection thereat into the internal cavity of the sensor cell (Fig. 1: the test gas environment flows along the gas channel 1 and into the gas sensor 3; col. 2, ll. 38-40: test or calibration gas generated in the gas generator can reach the area of the measuring electrode of the gas senor 3);
a power source interconnected with said electrochemical generator cell's electrode components to induce between them an electrical current flow effective to bring about an interaction between the electrolyte substance and the test gas environment or constituent thereof which results in the production of said preselected target substance (Fig. 1; col. 3, ll. 22-24: the gas is generated in the gas generator 2 by applying an electric voltage between the working electrode 4 and the counterelectrode 15 of the gas generator 2; for example, hydrogen and oxygen are formed by the electrolysis of water; further, the limitation “to induce…” is functional limitation in apparatus claims. MPEP 2114 (II). It does not differentiate the claimed apparatus from a prior art apparatus because the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987));
first circuitry interconnected with said power source (Fig. 1; col. 3, ll. 7-8: connection lines 21, 22, 23; all connection lines connected to the common control and evaluating unit 20) and capable of directing said power source to induce an electrical current flow between the electrode components of said generator cell effective to bring about said interaction between the electrolyte substance and the test gas environment or constituent thereof which results in the production of said preselected target substance (the limitation “capable of…” is functional limitation in apparatus claims. MPEP 2114 (II). It does not differentiate the claimed apparatus from a prior art apparatus because the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)), whereby a first signal representative of the amount of current flow is produced (col. 2, ll. 13-15: the actual concentration of the measuring gas in the environment can be inferred in the knowledge of the generator current);
third circuitry (Fig. 1; col. 3, ll. 7-8: connection lines 17, 18, 19) in electronic communication with said first circuitry (Fig. 1: connection lines 17, 18, 19 are in electronic communication with connection lines 21, 22, 23) whereby to receive said first signal corresponding to current flow between the electrode components of the electrochemical gas generator (col. 2, l. 15: the generator current), and capable of deriving therefrom whether any said preselected target substance is present or the concentration thereof (col. 2, ll. 13-15: the actual concentration of the measuring gas in the environment can be inferred in the knowledge of the generator current).
Kuhn does not disclose said container of the electrochemical generator cell being adapted for confining an electrolyte within said generator internal cavity, which electrolyte comprises a substance capable of interacting with a test gas environment or a constituent thereof to produce said preselected target substance.
However, Rabbett teaches a gas generator 12 including an assembly 28, including an ion exchange membrane 34 (Fig. 3; ¶46). The assembly includes two electrodes 30, 32 located on the opposite sides of the ion exchange membrane 34 (Fig. 5: assembly 30, 34, 32 or Fig. 3: 22, 34, 36; ¶47: layers 22 and 36 could serve the function of electrodes 30, 32) and is within the internal cavity of the gas sensor 12 (Fig. 3). The oxygen ions produced by electrolysis of water within the electrolyte react with the electrode surface to produce CO and CO2 (¶32).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Kuhn by incorporating an electrolyte inside the gas generator to produce the test gas as taught by Rabbett because the production of the gas by electrochemical processes is based on the use of an ion transporting membrane (also known as an ion exchange membrane) to act as the electrolyte (¶33). Here, the claimed limitations are obvious because all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results. MPEP 2143(I)(A).
Kuhn does not disclose a flow sensor located such that it is capable of intercepting the flow of test gas environment at said second location or past the second location in the direction of said flow, and second circuitry interconnected with said element to process the element's output and produce a second signal indicative of the test gas environment's flow; and the third circuitry is also in electronic communication with said second circuitry.
However, Rohrl teaches a process system 10 including a supply 12 of a source gas (Fig. 1; ¶51). The source gas flows from supply 12 in line 14 to the abatement processing unit 16 (Fig. 1; ¶51). A side stream of the source gas from line 14 is flowed in line 20, and into the gas sensor 26 (Fig. 1; ¶53). In the abatement operations, the process conditions, e.g., flow rates, in the abatement processing unit 16 may be modulated to effect the desired reduction in the concentration of the target gas species in the effluent stream being treated (¶55). Thus, Kuhn teaches a flow sensor (Fig. 16: abatement processing unit 16; here Examiner notes that the abatement processing unit 16 must have a flow sensor so that it can modulate the flow rate) located such that it is capable of intercepting the flow of test gas environment at said second location or past the second location in the direction of said flow (Fig. 1: the abatement processing unit 16 is after the gas sensor 26), and second circuitry interconnected with said element to process the element's output and produce a second signal indicative of the test gas environment's flow (Fig. 1; ¶54: control signal line 32 that is connected to the CPU 30; ¶55: the flow rate may be modulated); and the third circuitry is also in electronic communication with said second circuitry (¶54: the control signal line 32 is in electronic communication with the signal transmission line 28). Further, the limitation “capable of…” is functional limitation in apparatus claims. MPEP 2114 (II). It does not differentiate the claimed apparatus from a prior art apparatus because the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Kuhn by incorporating a flow sensor for modulating flow rate as taught by Rohrl because the flow rates, as a process condition, would be modulated to effect the desired reduction in the concentration of the target gas species in the effluent stream being treated (¶55). Here, the claimed limitations are obvious because all the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination yielded nothing more than predictable results. MPEP 2143(I)(A).
Regarding claims 2-3, Kuhn teaches wherein the sensor cell is an electrochemical device (col. 2, l. 37: an electrochemical gas sensor 3).
Regarding claim 4, Kuhn, Rabbett, and Rohrl disclose all limitations of claim 1, including the sensor cell (Kohn, Fig. 1; col. 2, l. 37: an electrochemical gas sensor 3) and the generator cell (Rabbett, Fig. 3; ¶45: the gas generator 12; ¶54: electrochemical gas generator) are electrochemical devices of substantially similar configuration (both of them include electrodes and electrolyte as an electrochemical device, e.g., Kuhn, Fig. 1; col. 3, l. 29; Rabbett, Fig. 3; ¶47).
Regarding claim 5, Kuhn, Rabbett, and Rohrl disclose all limitations of claim 1, including the sensor cell (Kohn, Fig. 1: the gas sensor 3; Rohrl, Fig. 1: gas sensor 26) and the flow sensor (Rohrl, Fig. 1: processing unit 16), wherein the flow sensor interfaces with the conduit downstream of the sensor cell's interface with the conduit (Fig. 1: indicating the processing unit 16 is downstream of the interface between the sensor 26 and line 14).
Regarding claim 6, Kuhn teaches the sensor system further comprises a reference electrode component interposed within the sensor cell (Fig. 1; col. 3, l. 2: reference electrode 12).
Regarding claim 8, Kuhn teaches wherein the conduit is rigid tubing (Fig. 1: since the gas channel 1 is defined by the housing 16, it would be rigid as a tubing).
Regarding claim 9, Kuhn teaches wherein the generator cell and sensor cell are each permanently interconnected with the conduit Fig. 1: since the gas channel 1 is defined by the housing 16 and interconnected with the gas generator and gas sensor with the housing, both cells would be permanently interconnected with the gas channel).
Regarding claims 10-11, Kuhn teaches wherein the generator cell is detachably interconnected with the conduit and wherein the sensor cell is detachably interconnected with the conduit (col. 3, ll. 9-11: the combination of the gas sensor 3, the gas generator 2 and the gas channel 1 may also have a modular design and may be connected in a mechanically detachable manner).
Regarding claim 12, Kuhn teaches wherein the membrane is formed of a polymer-based material (claim 7: said diffusion membrane consists of a polymer).
Regarding claim 13, the limitation “wherein the target substance is carbon monoxide” is directed to a material or article worked upon. "Expressions relating the apparatus to contents thereof during an intended operation are of no significance in determining patentability of the apparatus claim." Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969). Furthermore, "[i]nclusion of material or article worked upon by a structure being claimed does not impart patentability to the claims." In re Young, 75 F.2d. 25 USPQ 69 (CCPA 1935) (as restated in In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963)). MPEP 2115.
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kuhn in view of Rohrl and Rohrl, and further in view of Flinchbaugh (US 2002/0139419).
Regarding claim 7, Kuhn, Rabbett, and Rohrl disclose all limitations of claim 1, but fail to teach wherein the conduit is flexible tubing.
However, Flinchbaugh teaches an apparatus providing flow control in a very flexible tube section to selectively, and programmably, closing and opening the flow pathway for coupling electrochemical sensors ([Abstract]). It is well-known in the art to regulate flow of fluid through a flexible tube for various industrial and consumer applications (¶1).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Kuhn, Rabbett, and Rohrl by substituting the gas channel with flexible tubing as taught by Flinchbaugh because it is well known to use flexible tubing for coupling electrochemical sensors and the substitution of one known element for another would yield nothing more than predictable results. MPEP 2141(III)(B).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CAITLYN M SUN whose telephone number is (571)272-6788. The examiner can normally be reached M-F: 8:30am - 5:30pm.
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/C. SUN/Primary Examiner, Art Unit 1795