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 .
DETAILED ACTION
Response to Amendment
In the preliminary amendment dated 20 September 2023, the following has occurred: Claims 1, 2, 6, 7, 11, 13, and 14 have been amended.
The present office action represents the first action on the merits.
Claims 1-14 are pending.
Priority
This application claims priority to German Patent Application No. DE102022124250.1 dated 21 September 2022.
Specification
The Specification and Abstract are objected to for using incorrect line spacing. The spacing of the lines of the specification is such that it is difficult to read. New application papers with lines 1 1/2 or double spaced (see 37 CFR 1.52(b)(2)) on good quality paper are required. See MPEP 608.01(I)(b)(2)(i).
The abstract of the disclosure is objected to because it exceeds 150 words. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Examiner’s Note
The Examiner notes that while gerunds (“-ing” words) are not required to define the acts or steps of a method claim, this is generally best practice and aids in the understanding or the invention. The Examiner suggests using gerunds to describe the acts/steps of the method claims.
Drawings
The subject matter of this application admits of illustration by a drawing to facilitate understanding of the invention. Applicant is required to furnish a drawing under 37 CFR 1.81(c). No new matter may be introduced in the required drawing. 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).
Claim Objections
Claim 7 is objected to because it uses the word “apparaturs,” which is not a word. The Examiner believes the Applicant meant apparatus. Appropriate correction/clarification is required.
Information Disclosure Statement
The Information Disclosure Statement(s) (lDS) submitted on 06 February 2024 is/are in compliance with the provisions of 37 CFR 1.97 and has/have been fully considered by the Examiner.
The information disclosure statement filed 15 September 2023 fails to comply with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609 because a translated copy of the cited German Search Report dated 06 July 2023 has not been provided. As noted on the signed IDS form accompanying this rejection, the remaining patent documents listed in the IDS have been fully considered by the Examiner. Applicant is advised that the date of any re-submission of any item of information contained in this information disclosure statement or the submission of any missing element(s) will be the date of submission for purposes of determining compliance with the requirements based on the time of filing the statement, including all certification requirements for statements under 37 CFR 1.97(e). See MPEP § 609.05(a).
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
Claim 6
“an apparatus
by which the container is sealed…
by which the breast milk is treated… and the amount…determined
by which a container identifier…is read out or the container is provided with a container identifier
by which at least the determined amount is provided…”
Claim 7
‘“apparatus” that provides’
Claim 13
“an accommodation for a container…
a closing device for sealing…
a system for treating…
a device for determining…
a reading device for reading… or attaching device for attaching…
an interface for transmitting”
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
A review of the specification provides the following disclosure of the structural features that perform the recited functions:
Claim 6
“an apparatus
by which the container is sealed…:
No description of the apparatus that seals is provided. See Spec. Pg. 3, 5.
by which the breast milk is treated… and the amount…determined:
No description of the treatment apparatus is provided. See Spec. Pg. 2, 3, 5.
The amount determination is described to alternately be performed by weighing, which a person having skill in the art would understand to be carried out by a scale. See Spec. Pg. 3.
by which a container identifier…is read out or the container is provided with a container identifier:
The container identifier is described as an RFID and thus a person having skill in the art would understand the reader to be an RFID reader. See Spec. Pg. 2.
No description of the apparatus that provides the container with a container identifier is provided. See Spec. Pg. 3, 5.
by which at least the determined amount is provided…”
No description of the apparatus that provides the information is described. See Spec. Pg. 3-5.
Claim 7
‘“apparatus” that provides’
No description of the apparatus that provides identification or time is provided. See Spec. Pg. 3-4.
Claim 13
“an accommodation for a container…
No description of the accommodation is provided. See Spec. Pg. 3.
a closing device for sealing…
The closing device is described as a screw cap. See Spec. Pg. 1.
a system for treating…
No description of the system for treating is provided. See Spec. Pg. 2, 3, 5.
a device for determining the amount…
The amount determination is described to alternately be performed by weighing, which a person having skill in the art would understand to be carried out by a scale. See Spec. Pg. 3.
a reading device for reading… or attaching device for attaching…
The container identifier is described as an RFID and thus a person having skill in the art would understand the reader to be an RFID reader. See Spec. Pg. 2.
No description of the device that provides the container with a container identifier is provided. See Spec. Pg. 3, 5.
an interface for transmitting”
No description of the interface that transmits is described. See Spec. Pg. 3-5.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 6, 7, 13, and 14 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 6, 7, and 13 recite:
Claim 6: an apparatus by which the container is sealed, by which the breast milk is treated to improve the shelf life in the container […], by which […] the container is provided with a container identifier, and by which at least the determined amount is provided as a property together with the container identifier for saving in the memory.
Claim 7: a apparaturs [sic, apparatus] device identification or a time indication is provided by the apparatus together with the container identifier in the memory for saving in the memory.
Claim 13: An apparatus for treating breast milk comprising an accommodation for a container containing breast milk […], a system for treating the breast milk contained in the container to improve the shelf life of the breast milk, […], a […] attaching device for attaching a container identifier to the container and an interface for transmitting information to a memory characterizing the container identifier and the determined amount of breast milk.
The written description is devoid of any description of the structure that corresponds to these noted features evidencing that the Applicant did not have possession of the invention at the time of filing. See claim interpretation, supra.
By virtue of their dependence from Claim 13, this basis of rejection also applies to dependent Claim 14.
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 6, 7, 13, and 14 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 limitations
Claim 6: an apparatus by which the container is sealed, by which the breast milk is treated to improve the shelf life in the container […], by which […] the container is provided with a container identifier, and by which at least the determined amount is provided as a property together with the container identifier for saving in the memory.
Claim 7: a apparaturs [sic, apparatus] device identification or a time indication is provided by the apparatus together with the container identifier in the memory for saving in the memory.
Claim 13: An apparatus for treating breast milk comprising an accommodation for a container containing breast milk […], a system for treating the breast milk contained in the container to improve the shelf life of the breast milk, […], a […] attaching device for attaching a container identifier to the container and an interface for transmitting information to a memory characterizing the container identifier and the determined amount of breast milk.
invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. Aa noted in the 112(f) interpretation, supra, the as-filed disclosure fails to clearly link the “apparatus” to any type of structure. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
For the purposes of examination, the Examiner interprets the structure that performs the recited functions to encompass a person or person/computer/device combination performing the tasks.
By virtue of their dependence from Claim 13, this basis of rejection also applies to dependent Claim 14.
Claim 12 recites “the donor of the breast milk.” This lacks antecedent basis; no donor was previously recited. The Examiner assumes that this is in reference to the female that has expressed the milk in Claim 1, but notes that no donation is recited to occur. Thus, this also represents a non-functional label.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. § 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-3, 5, 8, and 11 is/are rejected under 35 U.S.C. § 102(a)(1) or 35 U.S.C. § 102(a)(2) as being anticipated by Alvarez et al. (U.S. Pre-Grant Patent Publication No. 2016/0082165).
REGARDING CLAIM 1
Alvarez teaches the claimed method for treating breast milk, in which
a breast pump is applied to the female breast; [Fig. 1, 17, Para. 0074 teaches a milk expression device interfacing with a breast to provide vacuum (pumping).]
the breast pump is operated to express breast milk and transfer it to a container; [Fig. 1, Para. 0074, 0104 teaches a collection vessel / reservoir that receives the breast milk from the milk expression device.]
the container is sealed, [Fig. 1, Para. 0152 teaches that the reservoir is securely sealed.]
a container identifier is generated that identifies the container and is or will be assigned to the container, and [Para. 0103, 0104 teaches that a unique identifier is placed on container / reservoir. Alternately or in addition, Para. 0105 teaches a reservoir serial number is produced. Para. 0158 also teaches a reservoir label with unique identifiers stored on RFID.]
the container is made available for feeding breast milk. [Para. 0152 teaches that the child is fed from a reservoir. Para. 0157, 0162 also teaches that the baby is fed from a reservoir.]
REGARDING CLAIM 2
Alvarez teaches the claimed method for treating breast milk of Claim 1. Alvarez further teaches
wherein the container is or will be provided with a machine-readable container identifier identifying the container; [Para. 0105, 0106, 0158 teaches that a QR or barcode or RFID is applied to the reservoir.]
at least one property of the breast milk contained in the container is saved to the container identifier in a memory, and [Para. 0105, 0124 teaches that one or more attributes of the expressed milk (composition data) is stored with the unique identifier in a data array / drive / server (see Para. 0155). Para. 0108 further teaches that the composition is detected. Para. 0025, 0102-0105 alternately teaches that the one or more attributes includes expression date, which is used to determine freshness.]
the container identifier is read in or out at a transfer point where the breast milk contained in the container is at least one of being stored or consumed to output the at least one property of the breast milk contained in the container. [Para. 0106, 0157 teaches that the is RFID read by a tag reader when placed in inventory (a transfer point) where the milk is stored. Para. 0170 teaches that the identifier of a reservoir bag in inventory (i.e., in the refrigerator) is scanned (interpreted to encompass scanning via the RFID reader) and the status of the bag (at least one property) is displayed. The Examiner notes that “to output” is an intended use of the reading of the identifier and is not required to occur; however, Para. 0170 has been cited for completeness.]
REGARDING CLAIM 3
Alvarez teaches the claimed method for treating breast milk of Claim 1. Alvarez further teaches
wherein the breast milk is discharged directly from the container during feeding. [Para. 0152 teaches that the reservoir is used for feeding (discharged directly).]
REGARDING CLAIM 5
Alvarez teaches the claimed method for treating breast milk of Claim 1. Alvarez further teaches
wherein a flexible bag is used as container. [Para. 0151 teaches that the reservoir is a bag.]
REGARDING CLAIM 8
Alvarez teaches the claimed method for treating breast milk of Claim 1. Alvarez further teaches
wherein the container is subjected to an external pressure during feeding for expelling the breast milk and that the external pressure is regulated for setting the expelling amount of breast milk. [Para. 0152 teaches that the reservoir bag is used to feed the child/infant. Thus, the reservoir bag, as is known in the art and to every parent who has fed a child, is exposed to atmospheric pressure (external pressure), which is regulated by the earth, when feeding the child.]
REGARDING CLAIM 11
Alvarez teaches the claimed method for treating breast milk of Claims 1 and 2. Alvarez further teaches
wherein a sample is drawn from the container and analyzed and that the result of the analysis is saved in the memory assigned to the container identifier. [Para. 0127 teaches that spectrometry is performed on a sample of the breast milk that is transferred from the reservoir. Para. 0127 further teaches that the obtained composition data is stored locally (the peripheral device of Para. 0124) or remotely (i.e., the array / drive of Para. 0105).]
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 of this title, 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.
Claim(s) 4 and 9 is/are rejected under 35 U.S.C. § 103 as being unpatentable over Alvarez et al. (U.S. Pre-Grant Patent Publication No. 2016/0082165) in view of Laurenzi et al. (U.S. Patent No. 8,172,129).
REGARDING CLAIM 4
Alvarez teaches the claimed method for treating breast milk of Claim 1. Alvarez may not explicitly teach
wherein the container for feeding is connected to a tube comprising a feeding probe.
Laurenzi Col. 4, Lns. 20-22 teaches that it was known in the art of healthcare, at the time of filing, to utilize a feeding tube to feed a premature infant from a bottle
wherein the container for feeding is connected to a tube comprising a feeding probe. [Laurenzi Col. 4, Lns. 20-22 teaches that a feeding tube is connected to the feeding bottle (the reservoir of Alverez).]
Therefore, it would have been prima facie obvious to one of ordinary skill in the art of healthcare, at the time of filing, to modify the breast milk expression tracking and storage system of Alvarez to utilize a feeding tube to feed a premature infant from a bottle as taught by Laurenzi, with the motivation of allowing for careful monitoring of milk amount provided to premature infants (see Laurenzi at Col. 1, Lns. 18-25).
REGARDING CLAIM 9
Alvarez teaches the claimed method for treating breast milk of Claim 1. Alvarez may not explicitly teach
wherein at least one of nutrients or medications are added to the breast milk before feeding.
Laurenzi Col. 2, Lns. 9-13, Col. 5, Lns. 31-41 teaches that it was known in the art of healthcare, at the time of filing, to add nutrients to breast milk
wherein at least one of nutrients or medications are added to the breast milk before feeding. [Laurenzi Col. 2, Lns. 9-13, Col. 5, Lns. 31-41 teaches that nutrients are added to breastmilk to fortify it.]
Therefore, it would have been prima facie obvious to one of ordinary skill in the art of healthcare, at the time of filing, to modify the breast milk expression tracking and storage system of Alvarez to utilize a feeding tube to feed a premature infant from a bottle as taught by Laurenzi, with the motivation of improving the health of the infant (see Laurenzi at Col. 1, Lns. 18-25).
Claim(s) 6, 7, 10, 13, and 14 is/are rejected under 35 U.S.C. § 103 as being unpatentable over Alvarez et al. (U.S. Pre-Grant Patent Publication No. 2016/0082165) in view of Christen et al. (U.S. Pre-Grant Patent Publication No. 2017/0142992).
REGARDING CLAIM 6
Alvarez teaches the claimed method for treating breast milk of Claims 1 and 2. Alvarez further teaches
wherein the container, after the breast milk has been expressed, is transferred to an apparatus [Para. 0152 teaches that the breast milk in the reservoir is transferred to a storage location (an apparatus).]
by which the container is sealed, [Para. 0152 teaches that the reservoir is securely sealed and transferred to a refrigerator or freezer.]
by which the amount of breast milk contained in the container is determined, [Para. 0108, 0122 teaches that the volume of expressed milk is measured and/or that the weight is measure by a scale.]
by which a container identifier provided on the container is read out or the container is provided with a container identifier, and [Para. 0106, 0157 teaches that the RFID read by a tag reader.]
by which at least the determined amount is provided as a property together with the container identifier for saving in the memory. [Para. 0151 teaches that expressed volume per pumping session is stored in memory.]
Alvarez may not explicitly teach
by which the breast milk is treated to improve the shelf life in the container
Christen at Fig. 9, Para. 0068 teaches that it was known in the art of healthcare, at the time of filing, to pasteurize breast milk in a storage container
by which the breast milk is treated to improve the shelf life in the container [Christen at Fig. 9, Para. 0068 teaches Pasteurizing breast milk in a container, which improves shelf life of the milk (see Spec. Pg. 3).]
Therefore, it would have been prima facie obvious to one of ordinary skill in the art of healthcare, at the time of filing, to modify the breast milk expression tracking and storage system of Alvarez to pasteurize breast milk in a storage container as taught by Christen, with the motivation of reducing the amount of biological contaminants in human milk to improve infant health (see Christen at Para. 0002).
The Examiner notes that, per the interpretation provided in the 112(b) rejection, supra, the “apparatus” that performs certain functions of the claim is not described by the Applicant and is interpreted to encompass a person and/or person/computer/device combinations performing the tasks.
REGARDING CLAIM 7
Alvarez/Christen teaches the claimed method for treating breast milk of Claims 1, 2, and 6. Alvarez/Christen further teaches
wherein at least one of
a apparaturs device identification or
a time indication is provided by the apparatus together with the container identifier in the memory for saving in the memory. [Alvarez at Para. 0105 teaches that time information (a time indication) is provided by a controller (an apparatus) and stored with the identifier.]
REGARDING CLAIM 10
Alvarez teaches the claimed method for treating breast milk of Claim 1. Alvarez may not explicitly teach
wherein the breast milk is treated before feeding, in particular at least one of being filtered or concentrated.
Christen at Para. 0025 teaches that it was known in the art of healthcare, at the time of filing, to process breast milk by concentrating it
wherein the breast milk is treated before feeding, in particular at least one of being filtered or concentrated. [Christen at Para. 0025 teaches processing breast milk by concentrating it.]
Therefore, it would have been prima facie obvious to one of ordinary skill in the art of healthcare, at the time of filing, to modify the breast milk expression tracking and storage system of Alvarez to process breast milk by concentrating it as taught by Christen, with the motivation of improving the nutritional density of the milk which improves infant outcomes.
REGARDING CLAIM 13
Alvarez teaches the claimed apparatus for treating breast milk comprising
an accommodation for a container containing breast milk [Para. 0152 teaches a refrigerator (an accommodation).] and a closing device for sealing the container, [Para. 0152 teaches that the reservoir is sealed meaning there is a sealing (closing) device.]
a device for determining the amount of breast milk contained in the container, [Para. 0122 teaches a scale.]
a reading device for reading out a container identifier provided on the container or attaching device for attaching a container identifier to the container and [Para. 0157 teaches an RFID reader.]
an interface for transmitting information to a memory characterizing the container identifier and the determined amount of breast milk. [Para. 0124 teaches a server having Bluetooth functionality (an interface).]
Alvarez may not explicitly teach
a closing device for sealing the container,
a system for treating the breast milk contained in the container to improve the shelf life of the breast milk,
Christen at Fig. 9, 12, 13, Para. 0068 teaches that it was known in the art of healthcare, at the time of filing, to pasteurize breast milk in a storage container and provide a lid to the container
a closing device for sealing the container, [Assuming arguendo that Alvarez does not teach a closing device, Christen at Fig. 12, 13 teaches that the milk container has a lid (a closing device).]
a system for treating the breast milk contained in the container to improve the shelf life of the breast milk, [Christen at Fig. 9, Para. 0068 teaches a UV light for Pasteurizing.]
Therefore, it would have been prima facie obvious to one of ordinary skill in the art of healthcare, at the time of filing, to modify the breast milk expression tracking and storage system of Alvarez t to pasteurize breast milk in a storage container and provide a lid to the container as taught by Christen, with the motivation of reducing the amount of biological contaminants in human milk to improve infant health (see Christen at Para. 0002).
The Examiner notes that MPEP 2114(II) states that “apparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co.v.Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987).”). Here, and pursuant to the 112(f)/112(a)/112(b) interpretation/rejection, the various devices subject to the 112(a)/112(b) rejection are not defined and are interpreted to be taught by Alvarez/Christen.
Alternatively, assuming the functions are required by the claim, Claim 13 is rejected in the same manner as Claim 6.
REGARDING CLAIM 14
Alvarez/Christen teaches the claimed apparatus for treating breast milk of Claim 13. Alvarez/Christen further teaches
wherein the apparatus [Alvarex/Christen teaches the apparatus of Claim 13, see citations, supra.] is adapted to provide at least one of an apparatus identification or a time indication together with the container identifier at the interface for saving in the memory.
The Examiner notes that MPEP 2114(II) states that “apparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co.v.Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987).”). Here, and pursuant to the 112(f)/112(a)/112(b) interpretation/rejection, the various devices subject to the 112(a)/112(b) rejection are not defined and are interpreted to be taught by Alvarez/Christen.
Alternatively, assuming the functions are required by the claim, Claim 14 is rejected in the same manner as Claim 7.
Claim(s) 12 is/are rejected under 35 U.S.C. § 103 as being unpatentable over Alvarez et al. (U.S. Pre-Grant Patent Publication No. 2016/0082165) in view of Bhatnagar (U.S. Pre-Grant Patent Publication No. 2017/0354771).
REGARDING CLAIM 12
Alvarez teaches the claimed method for treating breast milk of Claims 1 and 2. Alvarez may not explicitly teach
wherein at least one property saved to the breast milk in the memory is sent to a mobile device deposited in the memory as the mobile device of the donor of the breast milk.
Bhatnagar at Para. 0073, 0076, 0081, 0204 teaches that it was known in the art of healthcare, at the time of filing, to access breast milk information on a server and transmit that information to a mobile device of the mother
wherein at least one property saved to the breast milk in the memory is sent to a mobile device deposited in the memory as the mobile device of the donor of the breast milk. [Bhatnagar at Para. 0073 teaches that a mobile client device of a donor mother receives information from a management server database (the server/array of Alvarez). Para. 0076, 0204 teaches that the information is expiration date (at least one property; interpreted to correspond to the attributes of Alvarez). Para. 0081 teaches that the received information is stored on the mobile client device.
Therefore, it would have been prima facie obvious to one of ordinary skill in the art of healthcare, at the time of filing, to modify the breast milk expression tracking and storage system of Alvarez to access breast milk information on a server and transmit that information to a mobile device of the mother as taught by Bhatnagar, wit the motivation of improving milk tracking, verification, and organization (see Bhatnagar at Para. 0040).
Conclusion
Prior art made of record though not relied upon in the present basis of rejection are noted in the attached PTO 892 and include:
Medo et al. (U.S. Pre-Grant Patent Publication No. 2008/0227101) which discloses methods for testing breast milk in a milk bank to confirm identity.
Jahn et al. (U.S. Pre-Grant Patent Publication No. 2006/0159817) which discloses a method for treating breast milk and combining it into a milk pool for treatment.
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/JASON S TIEDEMAN/Primary Examiner, Art Unit 3683