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 .
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.
New Examiner
This application has been transferred to a new examiner, Nicholas Piro of Art Unit 1738, who can be reached at 571-272-6344.
Election/Restrictions
Applicant’s election of Group I, claims 1-17, in the reply filed on 27 October 2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 18-20 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 27 October 2025.
Applicant’s request for a rejoinder under MPEP §821.04 is acknowledged. Upon finding any of the elected product claims allowable, non-elected claims which require all the limitations of the allowable product will be considered for rejoinder.
Information Disclosure Statements
The Information Disclosure Statement filed on 25 April 2023 has been received and considered by the Examiner.
Claim Objections
Claim 10 recites the limitation “at least one additive independently selected from sodium dihydrogenphosphate or potassium hydroxide, an additional substance and an antifoam.” Because the claim already permits selection of one or more additives from the list, the extra “or” in the middle of the claim should be removed as it only adds confusion to the claim.
Appropriate correction is required.
It is further noted the presence of the phrase “additional substance” in this list, and the lack of limiting definition in the specification (e.g., [0047] does not limit the additional substance), is interpreted as merely requiring any substance in addition to potassium superoxide, an ionic liquid, water, and a further salt or antifreeze in the composition of claim 1.
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 1-13 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.
Claim 1 is drawn to “a composition” but based on the specification, [0012] and [0050], and upon claim 14 which purports to contain the composition of claim 1 but further specifies that components of this composition are physically separated into two compartments, claim 1 can also be interpreted as reciting two distinct compositions: an oxygen source and a water-containing solution or mixture, which are not yet in contact with one another, and therefore do not form a single composition. It is therefore unclear what exactly is being claimed in claim 1, and the claim is rejected.
Claims 2-13 depend upon claim 1 without resolving the indefiniteness and are likewise rejected.
Claim 17 recites the limitation "said delaying means” in line 1. There is insufficient antecedent basis for this limitation in the claim because while claim 16 recites a “delaying device,” it is unclear if this is the same as the “said delaying means” recited in claim 17.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 14-17 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 14 requires that the oxygen generator described in the claim contain the composition of claim 1. However, the limitations of claim 14 further specify that this composition is split into two components which are located in different compartments of the apparatus separated by a physical barrier. These two components located in physically distinct spaces would then not be considered a single composition, and therefore would not constitute the composition of claim 1.
Claims 15-17 likewise require the composition of claim 1 to be physically separated and therefore not constituting a single composition.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-10 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Xu (CN 214390082 U) in view of Ross (US 2006/0269454 A1). The provided English machine translation of Xu (CN 214390082 U) is relied upon in the analysis below.
Regarding claim 1, Xu teaches a composition for generating oxygen comprising an oxygen source of potassium superoxide and a water-containing solution (the potassium superoxide agent and water can mix and react in the mixing reaction oxygen generator … to generate oxygen, thereby replenishing the oxygen content of the ambient air; [n0032]).
Xu does not teach the water-containing solution containing salt and/or antifreeze to effectively lower the freezing point of said water-containing solution.
However, Ross also teaches an apparatus and process for generating oxygen ([0010] and [0032]). Ross further teaches that additives, including salts and antifreeze, can be added to the water of their oxygen generator to influence the temperature ([0026]) and to depress the freezing point of water by 20 °C compared with the freezing point of water (to -5 °F, which is -20 °C; [0027]). Ross further teaches that one such salt that can cause this freezing point depression is lithium chloride ([0027]), an alkali metal chloride.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use in the method of Xu a water-containing solution which contains a given amount of an alkali metal chloride and/or antifreeze to effectively lower the freezing point of the water-containing solution by 20 °C compared with a freezing point of the water, as taught by Ross.
One of ordinary skill in the art would have been motivated to do so because Ross teaches that it is desirable to carry out the oxygen generating reaction at temperatures down to -20 °C (-5°F), for example to meet regulatory requirements ([0028]), and because Ross teaches that additives, and lithium chloride in particular, can depress the freezing point of the solution to this temperature.
Regarding claim 2, modified Xu teaches the composition of claim 1, where Xu teaches that potassium superoxide and water are necessary to generate oxygen (potassium superoxide agent and water can mix and react in the mixing reaction oxygen generator to form potassium hydroxide solution, and react to generate oxygen; [0032]), and Ross teaches that including lithium chloride can cause freezing point depression of 20°C (lithium chloride could be used…to depress the freezing point of water to -5 °F; [0027]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to form a composition consisting of these two constituents—an oxygen source that is potassium superoxide and a water-containing solution comprising lithium chloride. One of ordinary skill in the art would have been motivated to do so because these are the constituents that yield an oxygen generator that can operate at low temperatures, as taught by Xu and Ross.
Regarding claims 3 and 4, modified Xu teaches the composition of claim 1, where Ross teaches that the water-containing solution can contain an antifreeze comprising the dihydric alcohol of ethylene glycol ([0027]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use ethylene glycol in the method of modified Xu, as taught by Ross. One of ordinary skill in the art would have been motivated to do so because Ross teaches that such an additive can keep water from freezing at low-operating temperatures, such as temperatures that may be required by regulatory agencies (e.g., -5 °F or -20°C; [0028]).
Regarding claim 5, modified Xu teaches the composition of claim 1, where Ross teaches the alkali metal chloride is lithium chloride. Because the salt is being mixed with water, it would have also been obvious to substitute a hydrate of lithium chloride for the lithium chloride used by Ross, thereby arriving at the instantly claimed invention. One of ordinary skill in the art would have found the substitution obvious because the aqueous solutions produced by lithium chloride and lithium chloride hydrate will be identical in composition.
Regarding claim 6, modified Xu teaches the composition of claim 5, where the salt is lithium chloride, or its obvious variant lithium chloride hydrate. Claim 6 further limits an alternative limitation of claims 1 and 5, where the salt is a hydroxide with an organic cation or a hydrate of a salt with an organic cation. Claim 6, however, does not require that the salt be tetrabutylammonium hydroxide, only that if the further salt is a hydroxide of an organic cation that it be tetrabutylammonium hydroxide or that if the salt is a hydrate of a hydroxide with an organic cation that it be a hydrate of tetrabutylammonium hydroxide. Therefore, by teaching the limitations of claim 1 using an alkali metal chloride, modified Xu teaches all the required limitations of claims 5 and 6.
Regarding claims 7 and 8, modified Xu teaches the composition of claim 1, where Ross teaches the total weight of the salt (lithium chloride) relative to the total weight of the water containing solution is 83 g (LiCl) to 183 g (100 g H2O + 83 g LiCl; [0027]), or 45% by weight, which meets the limitations of claims 7 and 8.
Regarding claim 9, modified Xu teaches the composition of claim 1, where Xu teaches that the oxygen source is a potassium superoxide reagent containing binder additives ([0081]), which means that the oxygen source is present in solid form, thereby meeting the limitations of the instant claim.
Regarding claim 10, modified Xu teaches the composition of claim 1, and Ross further teaches that other constituents may be present in the composition, including manganese(II) chloride, which like lithium chloride can be used to lower the freezing point of the solution, and meets the claim limitation as an additional substance.
Therefore, because Ross teaches that both lithium chloride and manganese(II) chloride can serve the purpose of freezing point depression in an oxygen-generating system, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use a solution containing both, where the manganese(II) chloride can be considered the additional substance recited in the instant claim.
It is noted that the courts have held that "it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). MPEP 2144.06(I).
Regarding claim 14, Xu teaches an oxygen generator comprising:
a first and a second compartment (11 and unlabeled water tank attached to water feeder 20; Fig. 1 (copied below) and [0055]);
an opening for releasing or a conduit for discharging oxygen formed in the oxygen generator (the mixing reaction oxygen generator 30 may be provided with an
oxygen discharge port, through which the oxygen generated in the mixing reaction oxygen generator 30 can be discharged; [0062]);
said oxygen source being disposed in said first compartment (potassium superoxide agent feeder 10; [0055]) and the water-containing solution disposed in said second compartment (water supply device 20; [0055]);
a physical barrier configured to separate said first compartment from said second compartment (the compartments are separated by their walls; Fig. 1) and a device for selectively overcoming said physical barrier (feed valve 12; [0057]), wherein said physical barrier is arranged to enable said oxygen source and said water-containing solution or said water-containing mixture, after overcoming said physical barrier, to come into contact with one another (potassium superoxide agent and water can mix and react in the mixing reaction oxygen generator 30 to form potassium hydroxide solution; [0055]);
and said opening or conduit being arranged to allow the oxygen being formed to exit through said opening or through said conduit (through which the oxygen generated in the mixing reaction oxygen generator 30 can be discharged; [0062]).
[AltContent: textbox ([img-media_image1.png]
Figure: Oxygen generator from Figure 1 of Xu (CN 214390082 U).)]
Xu does not teach the water-containing solution containing salt and/or antifreeze to effectively lower the freezing point of said water-containing solution.
However, Ross also teaches an apparatus and process for generating oxygen ([0010] and [0032]). Ross further teaches that the additives, including salts and antifreeze, can be added to the water of an oxygen-generator to influence the temperature ([0026]) and to depress the freezing point of water by 20 °C compared with the freezing point of water (to -5 °F, which is -20 °C; [0027]). Ross further teaches that one such salt that can cause this freezing point depression is lithium chloride ([0027]), an alkali metal chloride.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use in the apparatus of Xu a water-containing solution which contains a given amount of an alkali metal chloride and/or antifreeze to effectively lower the freezing point of the water-containing solution by 20 °C compared with a freezing point of the water, as taught by Ross, thereby arriving at the oxygen generator of the instant claim.
One of ordinary skill in the art would have been motivated to do so because Ross teaches that it is desirable to carry out the oxygen generating reaction at temperatures down to -20 °C (-5°F), for example to meet regulatory requirements ([0028]), and because Ross teaches that additives, and lithium chloride in particular, can depress the freezing point of the solution to this temperature.
Claims 10, 11, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Xu (CN 214390082 U) in view of Ross (US 2006/0269454 A1), as applied to claim 1, and further in view of Rho (WO 2006/001607 A1; Foreign patent document #7 on the IDS filed 25 April 2023), and with respect to claim 11, as evidenced by Kumari et al. (“Basics of Clay Minerals and Their Characteristic Properties”, in Clay and Clay Minerals, G. M. D. Nascimento, ed. IntechOpen, 2001, DOI: 10.5772/intechopen.97672). The provided English machine translation of Xu (CN 214390082 U) is relied upon in the analysis below.
Regarding claims 10 and 11, modified Xu teaches the composition of claim 1, but does not teach an additional substance of a phyllosilicate or fumed silica being added to the composition.
However, Rho teaches an oxygen generating composition comprised of potassium superoxide and a material for improving moldability and processability, where the material for improving moldability and processability can be bentonite or kaolinite (abstract and [36]), two phyllosilicates, as evidenced by Kumari (clay minerals such as kaolinite, smectite, chlorite, micas are main components of raw materials of clay and formed in presence of water… They are known as hydrous phyllosilicate (abstract); Bentonite is an impure form of aluminum phyllosilicate clay (p. 10, ¶ 4)).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the composition of modified Xu an additional substance that is a phyllosilicate, as taught by Rho, thereby meeting the limitations of claims 10 and 11. One of ordinary skill in the art would have been motivated to do so in order to increase the moldability and processability of the potassium superoxide, as taught by Rho.
Regarding claim 13, modified Xu teaches the method of claim 1, but does not explicitly teach the total weight of the oxygen source relative to the total wight of the composition.
However, Xu does teach that the total weight of the oxygen source and the mass of the water-containing solution are to be determined by preset rules (the first mass of potassium superoxide agent to be delivered and the second mass of water to
be delivered are calculated according to the oxygen generation and preset rules; [0026]). Xu further teaches that in their invention potassium superoxide can react completely with water which improves safety ([0032]).
It is further noted that potassium superoxide reacts with water in a 2:1 molar ratio to generate oxygen, as taught by Rho ([9]). This molar ratio corresponds to 142 grams of KO2 per 18 grams of water. Ross teaches that this 18 grams of water should contain an additional 15 grams of LiCl for freezing point depression of water to -5 °F (83 g per 100 g water; [0027]). Such a composition containing the stoichiometrically required amount of water to decompose all the superoxide would therefore contain a total weight of 142 grams of oxygen source for a 175 g total composition, or 81% total weight of oxygen source to total weight of the composition, which falls in the instantly claimed range.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use up to 81% total weight of oxygen source to total weight of the composition. One of ordinary skill in the art would have been motivated to do so in order to completely consume the potassium superoxide, as taught by Xu, while affording the freezing point depression taught by Ross.
It is noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985) (see MPEP 2144.05.01). Therefore, the claimed ranges merely represent an obvious variant and/or routine optimization of the values of the cited prior art.
Claims 10, 12, and 15-17 are rejected under 35 U.S.C. 103 as being unpatentable over Xu (CN 214390082 U) in view Ross (US 2006/0269454 A1), as applied to claims 1 and 14 above, and further in view of Huvard et al. (US 8,147,760 B1). The provided English machine translation of Xu (CN 214390082 U) is relied upon in the analysis below.
Regarding claims 10 and 12, modified Xu teaches the composition of claim 1 but does not teach the composition containing an antifoam comprising or consisting of octanol, paraffin wax, or a polysiloxane.
However, like Xu, Huvard teaches a composition and apparatus for oxygen production from an oxygen source and water-containing solution (oxygen is produced in a reaction chamber from the reaction between an oxygen generating composition and a water/catalyst solution; abstract) and Huvard further teaches that an antifoam agent can be included in the water mixture (water, catalyst, and antifoam begin to flow out of the spout; col. 13, lines 31-32). Huvard additionally teaches that polydimethylsiloxane can serve as an antifoam (col. 8, line 1).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the composition of modified Xu an antifoam consisting of a polysiloxane, as taught by Huvard, thereby meeting the limitations of claims 10 and 12. One of ordinary skill in the art would have been motivated to do so because Huvard teaches that antifoams, such as polydimethylsiloxane, can control foam formation during an analogous oxygen-generating processes (col. 7, line 65).
Regarding claim 15, modified Xu teaches the oxygen generator of claim 14, as analyzed above, but does not teach the apparatus comprising an additive among those recited in the instant claim.
However, like Xu, Huvard teaches a composition and apparatus for oxygen production from an oxygen source and water-containing solution (oxygen is produced in a reaction chamber from the reaction between an oxygen generating composition and a water/catalyst solution; abstract) and Huvard further teaches that an antifoam agent can be included in the water mixture (water, catalyst, and antifoam begin to flow out of the spout; col. 13, lines 31-32).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include in the water-containing solution within the second compartment of modified Xu an antifoam, as taught by Huvard, thereby meeting the limitations of claims 15. One of ordinary skill in the art would have been motivated to do so because Huvard teaches that antifoams can control foam formation during an analogous oxygen-generating processes (col. 7, line 65).
Regarding claims 16 and 17, modified Xu teaches the apparatus of claim 14, but does not teach the oxygen generator comprising a delaying device.
However, like Xu, Huvard teaches a composition and apparatus for oxygen production from an oxygen source and water-containing solution (oxygen is produced in a reaction chamber from the reaction between an oxygen generating composition and a water/catalyst solution; abstract). Huvard further teaches a delaying device disposed and configured to allow a total amount of the water-containing solution present in the oxygen generator after overcoming the physical barrier to come into contact only gradually with the total amount of the oxygen source present (formulated into controlled release tablets which dissolve slowly in water and release [the oxygen source] at a constant rate thereby controlling the rate of release of [the oxygen source] to … aqueous solution; col. 3, lines 37-40). Huvard also teaches the delaying device being a bulk material mixed with the oxygen source (mixing [the oxygen source] with a slowly dissolving binder; col. 9, lines 27-28) which is inert with respect to the oxygen source and the water-containing solution (slowly dissolving inert solids known to those skilled in the art; col. 9, line 36).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to mix the oxygen source used by Xu with a bulk material that is inert with respect to the oxygen source and the water-containing solution to act as delaying device to allow the total amount of the water-containing solution present in the oxygen generator, after overcoming the physical barrier, to come into contact only gradually with the total amount of oxygen source, as taught by Huvard. One of ordinary skill in the art would have been motivated to do so in order to produce oxygen at a predictable and constant flow rate, as taught by Huvard (col. 3, lines 19-20).
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, 3-12, and 14-16 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 18/306,272. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the ‘272 application include all the limitations of the instant claims.
In particular, claim 1 of the ‘272 application contains all the limitations of instant claim 1; claims 8-13 recite all the limitations of instant claims 3-8; claims 14-16 of the ‘272 application recite all the limitations of instant claims 10-12; and claims 17-18 of the ‘272 application recite all the limitations of instant claims 14 and 16.
Regarding instant claim 9, claim 17 of the ‘272 application recites an apparatus that contains a composition meeting the limitations of instant claim 1 and where the oxygen source is present with an ionic liquid (line 5). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include the oxygen source in suspended form in the ionic liquid in the composition of claim 1, thereby meeting the limitations of the instant claim. One of ordinary skill in the art would have been motivated to do so because potassium superoxide will form a suspension when mixed with most ionic liquids.
Regarding instant claim 15, claim 17 of the ‘272 application recites all the limitation of instant claim 14, but does not recite an additive from the group recited in instant claim 15. However, claim 14 of the ‘272 application recites such additives. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include these additives in the apparatus of the ‘272 application, thereby arriving at the instantly claimed invention.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 13 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 18/306,272, as applied to instant claim 1 above, and further in view of Xu (CN 214390082 U) and Rho (WO 2006/001607 A1; Foreign patent document #7 on the IDS filed 25 April 2023). The provided English machine translation of Xu (CN 214390082 U) is relied upon in the analysis below.
Regarding instant claim 13, claim 1 of the ‘272 application recites all the limitations of instant claim 1, but the ‘272 application does not claim the total weight of the oxygen source relative to the total weight of the composition.
However, Xu teaches a similar composition for generating oxygen (potassium superoxide agent and water can mix and react in the mixing reaction oxygen
generator to form potassium hydroxide solution, and react to generate oxygen [0032]), and also teaches that the total weight of the oxygen source and the mass of the water-containing solution are to be determined by preset rules (the first mass of potassium superoxide agent to be delivered and the second mass of water to be delivered are calculated according to the oxygen generation and preset rules; [0026]). Xu further teaches that in their invention potassium superoxide can react completely with water which improves safety ([0032]).
It is further noted that potassium superoxide reacts with water in a 2:1 molar ratio to generate oxygen, as taught by Rho ([9]). This molar ratio corresponds to 142 grams of KO2 per 18 grams of water. Ross teaches that this 18 grams of water should contain an additional 15 grams of LiCl for freezing point depression of water to -5 °F (83 g per 100 g water; [0027]). Such a composition containing the stoichiometrically required amount of water to decompose all the superoxide would therefore contain a total weight of 142 grams of oxygen source for a 175 g total composition, or 81% total weight of oxygen source to total weight of the composition, which falls in the instantly claimed range.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use up to 81% total weight of oxygen source to total weight of the composition. One of ordinary skill in the art would have been motivated to do so in order to completely consume the potassium superoxide, as taught by Xu, while affording the freezing point depression taught by Ross.
It is noted that the courts have stated where the claimed ranges “overlap or lie inside the ranges disclosed by the prior art” a prima facie case of obviousness exists (see In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990); Titanium Metals Corp. of America v. Banner, 778 F2d 775. 227 USPQ 773 (Fed. Cir. 1985) (see MPEP 2144.05.01). Therefore, the claimed ranges merely represent an obvious variant and/or routine optimization of the values of the cited prior art.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim 17 is provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of copending Application No. 18/306,272, as applied to instant claim 16 above, and further in view of Huvard et al. (US 8,147,760 B1).
Regarding instant claim 17, the limitations of instant claim 16 are recited in the claims of the ‘272 application, but the ‘272 application does not claim the specifics of the delaying means required by instant claim 17.
However, Huvard teaches a composition and apparatus for oxygen production from an oxygen source and water-containing solution (oxygen is produced in a reaction chamber from the reaction between an oxygen generating composition and a water/catalyst solution; abstract). Huvard also teaches a delaying device disposed and configured to allow a total amount of the water-containing solution present in the oxygen generator after overcoming the physical barrier to come into contact only gradually with the total amount of the oxygen source present (formulated into controlled release tablets which dissolve slowly in water and release [the oxygen source] at a constant rate thereby controlling the rate of release of [the oxygen source] to … aqueous solution; col. 3, lines 37-40). Huvard further teaches the delaying device being a bulk material mixed with the oxygen source (mixing [the oxygen source] with a slowly dissolving binder; col. 9, lines 27-28) which is inert with respect to the oxygen source and the water-containing solution (slowly dissolving inert solids known to those skilled in the art; col. 9, line 36).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to mix the oxygen source used in the ‘272 application with a bulk material that is inert with respect to the oxygen source and the water-containing solution to act as delaying device to allow the total amount of the water-containing solution present in the oxygen generator, after overcoming the physical barrier, to come into contact only gradually with the total amount of oxygen source, as taught by Huvard. One of ordinary skill in the art would have been motivated to do so in order to produce oxygen at a predictable and constant flow rate, as taught by Huvard (col. 3, lines 19-20).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
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/NICHOLAS A. PIRO/Assistant Examiner, Art Unit 1738
/PAUL A WARTALOWICZ/Primary Examiner, Art Unit 1735