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 .
Application Status
Claims 1-18 are pending and have been examined in this application.
This communication is the first action on the merits.
As of the date of this action, no information disclosure statement has been filed on behalf of this case.
Election/Restrictions
Applicant's election with traverse of group 1 in the reply filed on 6/22/2025 is acknowledged. The traversal is on the ground(s) that the two inventions are patentably indistinct and there is no materially different apparatus or process. This is not found persuasive because the claimed apparatus is not required to perform all of the steps of the method to function, most notably the apparatus does not require the step of igniting a gas source wick and placing it within the distribution chamber and instead the apparatus is capable of functioning both without any type of ignited gas source and could instead have something like dry ice placed within the distribution chamber or with a gas source that is located outside of the distribution chamber, and the method does not require all of the specific structure of the apparatus, most notably the specific structure of the door and sealing mechanism and the method could function with a different door arrangement such as a sliding door with a gasket integral to the distribution chamber and with no locking system. For a product and process of use to be considered distinct from each other, it only requires that one of the process of using the product as claimed can be practiced with another materially different product or the product as claimed can be used in a materially different process of using the product, however for these claims both of these difference are met and the two inventions are patentably distinct from each other.
The requirement is still deemed proper and is therefore made FINAL.
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they do not include the following reference sign(s) mentioned in the description: Hinge 209 introduced in paragraph 35 of the specification. Opening 825 introduced in paragraph 29 of the specification.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description: Element 300 shown in figure 3, 500 shown in figure 5, 600 shown in figure 6, and 800 shown in figure 8. Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) 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. 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.
Specification
The disclosure is objected to because of the following informalities: The brief description of the drawings does not include a description of figure 9. Paragraph 29 introduces element 825 however this element does not appear to be shown in the figures. Paragraph 35 introduces element 209 however this element does not appear to be shown in the figures. Line 3 of paragraph 40 of the specification currently reads “the exhaust port 521is”, this should be “the exhaust port 521 is”. The figures include elements 300, 500, 600, and 800 that do not appear to be listed in the specification.
Appropriate correction is required.
Claim Objections
Claims 1-5, and 9-15 are objected to because of the following informalities: Claim 1 states “a air inlet penetrating”, the examiner believes that this should say “an air inlet penetrating”. Claims 2-5, and 9-15 all include element numbers in the claims, the applicant can use element numbering in the claims, however the claims should be consistent and either use the element numbering for all of the elements or not at all, and the element numbers should be placed within parentheses. Appropriate correction is required.
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 1-16 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 states “exhaust ports passing through the distribution chamber”, however the applications specification and figures only show a single exhaust port extending through the distribution chamber and it is not clear if the applicant is attempting to claim multiple ports or if this is meant to be only a single exhaust port as is disclosed in the rest of the application. The examiner believes that this is meant to be only a single exhaust port and the claims will be examined in this manner.
Claim 1 currently references the distribution chamber using “the” prior to the distribution chamber being introduced, the claim should be rewritten so that the distribution chamber is introduced in its first reference.
Claims 2, 5, and 7 all state that elements of the claims “may be differing in length, size, & shape”, it is not clear to the examiner if this is claiming that the elements are adjustable and can have their form changed or if this is stating that the components can be manufactured in differing forms and that the forms themselves are not adjustable. The examiner believes that this is meant to be the second option, and the claims will be examined in this manner.
Claims 5, 8, 11, and 13 all state “that haven’t been invented yet”, these limitations should be removed because this creates uncertainty in the claim because it does not make it clear what the exact scope of the claim is and can result in the scope of the claim changing as time progresses.
Claim 6 states “the chamber door with a attached gasket”, it is unclear from the claim if this “a attached gasket”, is that same gasket that was introduced in claim 1 or if it is meant to be a different gasket. The examiner believes that this is meant to be the same gasket and the claim will be examined in this manner.
Claim 10 states “a exhaust hose”, it is not clear to the examiner if this hose is meant to be part of the “exhaust port hose assembly” introduced in claim 1 or if this is a separate hose. The examiner believes that this hose is meant to be part of the assembly and the claim will be examined in that manner.
Claims 11, and 13 state “the distribution chamber 108 may have different connection methods or moldings to said chamber and may be made up of a variety of fittings and valves”, it is not clear to the examiner what the exact scope of these limitations are, and if there is only meant to be one connection between the air inlet and the chamber or if there is meant to be a plurality. The examiner believes that this is meant to say that there is one connection and that that connection may use a variety of couplings. The claims will be examined in this manner. The examiner notes that the current use of the term “may” does render these limitations as being optional because it is not written as a required limitation but instead as an option for the system.
Claim 16 states “can be installed and function properly with or without a ground penetrating stabilizing spike”, it is not clear from the current claim language if the system is required to be able to both function both with and without the spike or if it is only required to be able to function with just one of the options, the examiner believes that as the claim is currently written the claim does not require that the system can function with both options and that the system is only required to meet one of the two limitations. Additionally, as currently written the examiner believes that regardless of whether or not both spike options are required, if the system utilizes an air source it would meet the limitations of the claim because the air source is an alternative to the mounting limitations.
Claims 3, 4, 9, 12, 14, and 15 are rejected due to their respective dependencies on claims rejected under 35 U.S.C. 112(b). Appropriate correction is required.
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.
Claims 1-14, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Garrison (US #1,309,193) in view of Roy et al. (US #3,694,146).
Regarding claim 1, Garrison teaches an apparatus for introducing a poisonous or repellent gas into subterranean tunnels created by burrowing animals such as (but not limited to) mice, gophers, rats, moles, voles, and various insects with or without the assistance of supplied air comprising: a baseplate (The bottom surface of element 5 as seen in figure 1) designed to seal the bottom of the gas distribution chamber (5, and 6 as seen in figure 1, as can be seen the baseplate helps form the base of the gas distribution chamber which helps to keep the chamber sealed) and supports other components of the gas distribution device (5, and 15 as seen in figure 1, as can be seen the handle of the system is supported on the ground by the baseplate); exhaust ports (23) passing through the distribution chamber (6, 9, and 23 as seen in figure 1); a exhaust port valve assembly (24); a exhaust port hose assembly (26); a gas distribution chamber (6, and 9) that is hollow and will contain a gas source during fumigation (6, and 9 as seen in figure 1); a chamber door (11); and sealed during fumigation; a supplied air inlet assembly (17’, and 20 as seen in figure 1) attached to the exterior wall of the distribution chamber (6, 9, 17’, and 20 as seen in figure 1); and an air inlet penetrating the wall of the distribution chamber located inside the supplied air inlet assembly (6, 9, and 17’ as seen in figure 1). But Garrison does not teach that the chamber door has an attached gasket to help create a seal between the chamber door and the top of the distribution chamber during fumigation; a chamber door hinge that allows the chamber door to open and close properly; a chamber door latch helps to keep the door closed.
However, Roy does teach that the chamber door has an attached gasket to help create a seal between the chamber door and the top of the distribution chamber during fumigation (10, and 22 as seen in figure 1, and Column 3, lines 28-31); a chamber door hinge that allows the chamber door to open and close properly (10, 21, and 22 as seen in figure 1, and Column 3, lines 20-27); a chamber door latch helps to keep the door closed (25 as seen in figure 1, and Column 3, lines 20-27). It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to have the door have a gasket, a hinge and a latch to help seal the door to the chamber because Garrison and Roy are both gas distribution systems with movable top covers. The motivation for having the door have a gasket, a hinge and a latch to help seal the door to the chamber is that it helps to ensure that the gas is only distributed in the desired manner and through the desired areas to help control the spread of the gas and improve the effectiveness of the system.
Regarding claim 2, Garrison as modified by Roy teaches the apparatus of claim 1, but does not explicitly teach that the baseplate may be differing in length, size, & shape due to the differing sized burrowing animal’s subterranean tunnels. However, it would have been an obvious matter of design choice to have the baseplate be of differing length, size or shape dependent upon the differing sized burrows, since such a modification would have involved a mere change in the size and shape of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47. The motivation for having the baseplate be of differing length, size or shape dependent upon the differing sized burrows is that it helps to ensure that the system is properly sized for the desired burrow to ensure that the system is capable of effectively eliminating the pests.
Regarding claim 3, Garrison as modified by Roy teaches the apparatus of claim 1, wherein the exhaust port penetration is passing through the gas distribution chamber wall that allow the poisonous or repellent gas to move from the distribution chamber into the burrowing pest subterranean tunnel (6, 9, 23, 26, and the tunnel as seen in figure 1 of Garrison).
Regarding claim 4, Garrison as modified by Roy teaches the apparatus of claim 1, wherein the gas distribution chamber is securely attached to the top of the baseplate 101 through the utilization of diverse connection methods or moldings (5, 6, 9, and 10 as seen in figure 1 of Garrison, the distribution chamber is secured to the baseplate by rivets).
Regarding claim 5, Garrison as modified by Roy teaches the apparatus of claim 1, but does not explicitly teach that the gas distribution chamber may be differing in length, size & shape due to the differing length, size, and shape of gas sources that are currently available today and those that haven’t been invented yet. However, it would have been an obvious matter of design choice to have the distribution chamber be of differing length, size or shape dependent upon the gas source, since such a modification would have involved a mere change in the size and shape of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47. The motivation for having the distribution chamber be of differing length, size or shape dependent upon the gas source is that it helps to ensure that the system is able to capably perform the needed task with any supplied products and can allow the system to function with a wider range of targets.
Regarding claim 6, Garrison as modified by Roy teaches the apparatus of claim 1, but Garrison does not teach that the chamber door with the attached gasket will help to create a seal between the chamber door and the top of the distribution chamber during fumigation. However, Roy does teach that the chamber door with the attached gasket will help to create a seal between the chamber door and the top of the distribution chamber during fumigation (Column 3, lines 20-31). It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to have the gasket form a seal between the door and chamber because Garrison and Roy are both gas distribution systems with movable top covers. The motivation for having the gasket form a seal between the door and chamber is that it helps to prevent the gases from leaving the chamber at undesired points which can improve the effectiveness of the system.
Regarding claim 7, Garrison as modified by Roy teaches the apparatus of claim 1, but Garrison does not teach that the distribution chamber door latch helps to keep the door closed and sealed during fumigation and may be differing in length, size & shape or have different connectors. However, Roy does teach that the distribution chamber door latch helps to keep the door closed and sealed during fumigation (Column 3, lines 20-31). It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to have the latch keep the door closed and sealed because Garrison and Roy are both gas distribution systems with movable top covers. The motivation for having the latch keep the door closed and sealed is that it helps to prevent the gases from leaving the chamber at undesired points which can improve the effectiveness of the system. But Roy does not explicitly teach that the latch may be differing in length, size & shape or have different connectors.
However, it would have been an obvious matter of design choice to have the latch be of differing length, size or shape, since such a modification would have involved a mere change in the size and shape of a component. A change in size is generally recognized as being within the level of ordinary skill in the art. In re Rose, 105 USPQ 237 (CCPA 1955). A change in form or shape is generally recognized as being within the level of ordinary skill in the art, absent any showing of unexpected results. In re Dailey et al., 149 USPQ 47. The motivation for having the latch be of differing length, size or shape is that it helps to ensure that the latch is sufficient in size and placement to be able to securely hold the door shut and prevent it from opening unexpectedly.
Regarding claim 8, Garrison as modified by Roy teaches the apparatus of claim 1, may be made out of steel, plastic, ceramics, aluminum, concrete, wood, or a composite of many different materials available today Page 1, lines 27-45 of Garrison, this teaches that the system can be made of a composite of metal and asbestos) or those that have not been invented yet.
Regarding claim 9, Garrison as modified by Roy teaches the apparatus of claim 1, further comprising exhaust hose valves that controls the amount of poisonous or repellent gas that enters each individual subterranean tunnel (24 as seen in figure 1, and Page 1, lines 72-81 of Garrison, this teaches that the valve is a cutoff valve that can move between a fully opened and closed state to alter the flow through the valve).
Regarding claim 10, Garrison as modified by Roy teaches the apparatus of claim 1, further comprising a exhaust hose (26 of Garrison) that one end of the hose attaches to the exhaust hose valve assembly (24, and 26 as seen in figure 1 of Garrison) and the other end of the hose is inserted into a subterranean tunnel for fumigation (26 as seen in figure 1 of Garrison).
Regarding claim 11, Garrison as modified by Roy teaches the apparatus of claim 1, wherein the supplied air inlet assembly is attached to the exterior wall of the distribution chamber (6, 17’, and 20 as seen in figure 1 of Garrison) may have different connection methods or moldings to said chamber and may be made up of a variety of fittings and valves that can be adapted for attaching supplied air from many air sources that are available today and air sources that haven’t been invented yet (6, 17’, 18’, and 20 as seen in figure 1 of Garrison, as can be seen the air supply uses a valve to help connect the air supply to the chamber, and the system of Garrison is capable of have the valve exchanged for another component).
Regarding claim 12, Garrison as modified by Roy teaches the apparatus of claim 11, wherein inside the supplied air assembly is an opening penetrating the distribution chamber wall (6, 17’, and 20 as seen in figure 1 of Garrison), this will allow the supplied air to flow into the distribution chamber and the subterranean tunnel while spreading the poisonous or repellent gas internally (6, 17’, 20, 23, 26, and the tunnel as seen in figure 1 of Garrison).
Regarding claim 13, Garrison as modified by Roy teaches the apparatus of claim 1, wherein the distribution exhaust port assembly is attached to the exterior wall of the distribution chamber (6, 23, 24, and 25 as seen in figure 1 of Garrison) may have different connection methods or moldings to said chamber and may be made up of a variety of fittings and valves that are currently available or that haven’t been invented yet (6, 23, 24, and 25 as seen in figure 1 of Garrison, as can be seen the exhaust port uses a valve to help connect the chamber to the hose, and the system of Garrison is capable of have the valve exchanged for another component).
Regarding claim 14, Garrison as modified by Roy teaches the apparatus of claim 13, wherein inside the exhaust port assembly is an opening penetrating the distribution chamber wall (6, 9, and 23 as seen in figure 1 of Garrison), this will allow the poisonous or repellent gas to flow through the exhaust port plumbing assembly and hose into the subterranean tunnel spreading the poisonous or repellent gas internally (6, 9, 23, 24, 25, 26, and the tunnel as seen in figure 1 of Garrison).
Regarding claim 16, Garrison as modified by Roy teaches the apparatus of claim 1, can be installed and function properly with or without a ground penetrating stabilizing spike (The system as seen in figure 1 of Garrison, as can be seen the system can function without a spike) or utilizing an air source to move the poisonous gas or repellent into the subterranean tunnel (20 as seen in figure 1, and Page 1, lines 82-104 of Garrison).
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Garrison (US #1,309,193) as modified by Roy et al. (US #3,694,146) as applied to claim 1 above, and further in view of Jones (US #5,588,252).
Regarding claim 15, Garrison as modified by Roy teaches the apparatus of claim 1, but does not teach a ground penetrating stabilizing spike, perpendicularly attached to the bottom of the baseplate and is driven into the soil to elevate and stabilize the device during fumigation. However, Jones does teach a ground penetrating stabilizing spike (21b), perpendicularly attached to the bottom of the baseplate (21a, and 21b as seen in figure 1) and is driven into the soil to elevate and stabilize the device during fumigation (21a, and 21b as seen in figure 1). It would have been obvious to one skilled in the art before the effective filing date of the claimed invention to have a spike extending perpendicular from the baseplate and put into the ground to support the baseplate above the ground because Garrison and Jones are both tunnel fumigation systems that direct noxious gases into tunnels. The motivation for having a spike extending perpendicular from the baseplate and put into the ground to support the baseplate above the ground is that it helps to keep the system stable while in use and allows the system to be more easily used in uneven terrains by allowing the chamber to maintain a steady horizontal position relative to the tunnel even on inclined surfaces.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to WILLIAM LAWRENCE GMOSER whose telephone number is (571)270-5083. The examiner can normally be reached Mon - Thu 7:00-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kimberly Berona can be reached at 571-272-6909. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/WILLIAM L GMOSER/Primary Examiner, Art Unit 3647