DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the spectro photometer must be shown or the feature(s) canceled from the claim(s). The examiner notes that specification recites “spectro-pyrometer.” No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered, and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
The disclosure is objected to because of the following informalities: applicant should update the status of application number 17/365,943.
Appropriate correction is required.
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.
Claim 15 is 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. The specification does not recite “spectro photometer” as recited in Claim 15. For purposes of examination, this limitation is interpreted as “spectro pyrometer” as described in [0038].
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, 14, 17, and 19 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 6 recites the limitation "the wave guide" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 14 recites the limitation "the microwave generator" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Where applicant acts as his or her own lexicographer to specifically define a term of a claim contrary to its ordinary meaning, the written description must clearly redefine the claim term and set forth the uncommon definition so as to put one reasonably skilled in the art on notice that the applicant intended to so redefine that claim term. Process Control Corp. v. HydReclaim Corp., 190 F.3d 1350, 1357, 52 USPQ2d 1029, 1033 (Fed. Cir. 1999). The term "refractory package" in Claim 17 is used by the claim to mean "a component of the furnace chamber" based on [0039] in the instant specification, while the accepted meaning is a non-specific reference to refractory materials that may or may not be a component of the furnace. The term is indefinite because the specification does not clearly redefine the term. For purposes of examination, the “refractory package” is interpreted as an outer lining disposed around the crucible based on the drawings.
The term “high temperature resistant fibrous material” in claim 19 is a relative term which renders the claim indefinite. The term “high temperature” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The specification does not provide any examples of what temperature range the fibrous material should have to meet this claim limitation.
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 (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 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.
Claims 1, 4, 5, 7-12, and 16-19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by CN 204589273 U, based on the machine translation and original document.
CN 204589273 U (CN ‘273) teaches a system for melting metals (abstract) as represented below in the annotated drawing:
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The tiltable furnace assembly is represented by 7, with the housing represented by 6 and ceramic crucible represented by 4. The microwave energy source and guide assembly are taught by the control system 14 that is attached to the microwave generator 12. CN ‘273 anticipates the claimed invention.
Regarding Claim 4, the removable plug is taught by 2.
Regarding Claim 5, the inner layer of refractory material is taught by 5, which is made of ceramic. The outer layer of microwave absorbent material is taught by 11 which prevents microwave leakage (page 2).
Regarding Claim 7, 1 reads on the removable lid.
Regarding Claim 8, CN ‘273 teaches more than one microwave guides as taught by 12.
Regarding Claim 9, the locations of 12 are in different locations, which reds on directing microwave energy from different directions.
Regarding Claim 10, the locations of 12 are substantially opposing as represented in the drawing above.
Regarding Claim 11, the locations of 12 surround the furnace shell 6, which reads on a tunnel.
Regarding Claim 12, the smelting furnace taught by CN ‘273 is “tuned” or provides specified levels of energy depending on the type of metal to be melted, based on the instant specification at [0010]. The furnace in CN ‘273 smelts manganese iron powder (abstract).
Regarding Claim 16, the shielding is taught by 1.
Regarding Claim 17, the refractory package is taught by 4 and 5.
Regarding Claim 18, the blanket is taught by 5.
Regarding Claim 19, the layer 5 is made of ceramic fiber cotton or ceramic fiber plate (page 2).
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.
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 13 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over CN ‘273 as applied to claim 1 above, further in view of Muginstein et al (US 2012/0164022 A1).
CN ‘273 discloses the invention substantially as claimed. However, CN ‘273 does not teach the microwave generator is capable of use at about 2.15 GHz as in Claim 13 or up to 0.915 GHz as in Claim 14.
Muginstein et al teaches an apparatus for applying radio frequency energy to an object in an energy application zone including melting furnaces (abstract) and smelting and melting of metallic powders [0165]. Typical microwave ovens supply a frequency of 2.45 GHz [0003]. Applied electromagnetic radiation energy may include a frequency of 3 kHz to 300 GHz [0036], which encompasses the range of 2.15 GHz in Claim 13 and up to 0.915 GHz (915 kHz) in Claim 14. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the apparatus of Muginstein et al with the system of CN ‘273 for supplying the microwave energy, since Muginstein et al teaches determining a desired energy absorption level in the object to be processed or heated to target the desired energy absorption level [0009].
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over CN ‘273 as applied to claim 1 above, and further in view of Smith (US 3,222,930).
CN ‘273 discloses the invention substantially as claimed. However, CN ‘273 does not teach a spectro photometer or spectro pyrometer (see instant specification at [0038]) for monitoring the melting of the metal within the crucible as claimed.
Smith teaches a spectropyrometer apparatus to measure temperature. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use the apparatus of Smith in the system of CN ‘273, since Smith teaches pyrometric measurement unaffected by the emittance of the heat source undergoing measurement and a speedy, reliable and accurate, true temperature measurements (column 3, lines 35-44).
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 1-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 11,800,609 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims do not recite the ceramic crucible is microwave energy absorbing. However, one carrying out a system in accord with the claims of U.S. Patent ‘609 would in fact carry out a system fully within the scope of the instant claims. Thus, no patentable distinction is seen between a system as presently claimed and a system as defined in the claims of U.S. Patent ‘609.
Allowable Subject Matter
Claims 2 and 3 are objected to as being dependent upon a rejected base claim but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Claim 6 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding Claims 2 and 3, CN ‘273 teaches pouring the contents of the melting furnace from the furnace cover and does not suggest an assembly extending from the bottom of the furnace shell or the crucible, recited as the bottom of the housing as claimed.
Regarding Claim 6, CN ‘273 teaches a trunnion to tilt the furnace but does not suggest a bearing assembly between the furnace shell or crucible and the microwave generators, recited as the furnace housing and microwave guide assembly as claimed.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Tima M. McGuthry-Banks whose telephone number is (571)272-2744. The examiner can normally be reached Monday through Friday, 7:30 am to 4:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Keith D. Hendricks can be reached at (571) 272-1401. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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Tima M. McGuthry-Banks
Primary Examiner
Art Unit 1733
/TIMA M. MCGUTHRY-BANKS/Primary Examiner, Art Unit 1733