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 .
Summary
Claims 1-21 are pending. Claims 1-21 are rejected herein. This is a First Action on the Merits.
Information Disclosure Statement
The Applicant is reminded that there is a duty to disclose any and all documents known to the Applicant that may have a bearing on patentability. A list of said documents should be submitted on an Information Disclosure Statement.
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 gas chromatography device, the gas chromatography device in fluid communication with the ammonia detector, and the flame photometric detector must be shown or the feature(s) canceled from the claim(s). 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.
Claim Objections
Claim(s) 14 is/are objected to because of the following informalities. Appropriate correction is required.
Regarding claim 14: Change “bade” to --base--.
Regarding claim 14: Change “removable lid” to --removable top-- so that it agrees with claim 13.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim(s) 8, 9, 19, and 20 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.
Regarding claims 8, 9, 19, and 20: These claims recite a method step “the air sample is analyzed using…” Therefore it is unclear if this is just a statement of intent or it is meant to structurally limit the apparatus of the parent claim. Taken on its face, it does not appear to structurally limit the apparatus. The claim language should be changed to something more definite such as “wherein the detector is a flame photometric detector” or something similar.
Claim Rejections - 35 USC § 112
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.
Claim(s) 8, 9, 19, and 20 is/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. 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.
Regarding claims 8, 9, 19, and 20: These claims appear (see indefiniteness rejections above) to only contain a statement of intended use. They only state what is done with the air sample without providing any definite structural limitations to the apparatus of claim 1. Therefore they do not limit the parent claim from which they depend. Therefore the claims are in improper dependent form.
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.
(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) 1-5, 7, 11, 12, 16, and 18 is/are rejected under 35 U.S.C. 102(a1 and a2) as being anticipated by HITOSHI (JP 2010190751). Please note that a machine translation of HITOSHI has been included with this office action and is deemed sufficient. All references to text in HITOSHI are to the attached translation.
Regarding claim 1: HITOSHI discloses: A system for determining efficacy of an odor absorbing bandage (This is a statement of intended use. Because the invention of HITOSHI contains all of the following structure, it can be used to determine the efficacy of an odor absorbing bandage.), comprising: a sample chamber (10 in FIG. 1, the two 10s mated together) configured to receive the odor absorbing bandage (FIG. 1 shows film 13 clamped between the two sides 11 and 12 of the sample chamber 10, therefore it can receive a bandage.); and an ammonia detector (23) in fluid communication with the sample chamber (through valve 22 and inlet 20) and configured to detect an amount of ammonia emanating from the sample chamber (Page 6 lines 1-6 state that the detector can be a mass spectrometer which is general purpose detector that can detect a wide range of substances including ammonia. Please note that page 4 lines 40-43 state that the gas to be measured is not particularly limited.).
Regarding claim 2: HITOSHI discloses: the sample chamber includes: a base (bottom 10 in FIG. 1); and a removable top (top 10 in FIG. 1) connected to the base (Fasteners which appear to be bolts and nuts and do not have reference characters are shown at the left and right sides of the container 10.) and including a first opening (20 in FIG. 1 connects to the opening in 10.) formed therein to provide fluid communication between the sample chamber (10) and the ammonia detector (23).
Regarding claim 3: HITOSHI discloses: the sample chamber further comprises a seal (14 in FIG. 1) preventing release of vapor between the removable top and the base.
Regarding claim 4: HITOSHI discloses: an adapter element (fluid line 20 in FIG. 1) connected to the first opening (FIG. 1) formed in the removable lid (bottom 10) and providing fluid communication between the sample chamber (10) and the ammonia detector (23; FIG. 1).
Regarding claim 5: HITOSHI discloses: an adaptor element (fluid line 20 in FIG. 1) connecting an interior of the sample chamber (10) to the ammonia detector (23) such that ammonia vapor in the sample chamber (statement of intended use) passes through the adaptor element and enters the ammonia detector (FIG. 7).
Regarding claim 7: HITOSHI discloses: the ammonia detector (23 in FIG. 1) collects an air sample from the sample chamber (page 4 lines 51-57).
Regarding claim 11: HITOSHI discloses: A system for determining efficacy of an odor absorbing bandage (This is a statement of intended use. Because the invention of HITOSHI contains all of the following structure, it can be used to determine the efficacy of an odor absorbing bandage.) comprising: an ammonia chamber (11 in FIG. 1, please note that there is nothing structural about a chamber that makes it an “ammonia chamber” except that it contains ammonia.) configured to receive an ammonia sample (This is a statement of intended use as any gas can be received by the chamber. Please note that page 4 lines 40-43 state that the gas to be used is not particularly limited.); a sample chamber (12) mounted on the ammonia chamber (FIG. 1) and configured to receive the odor absorbing bandage (Because the structure 10 clamps onto film 13, it can clamp onto an odor absorbing bandage.), wherein the sample chamber is in fluid communication with the ammonia chamber such that ammonia vapors pass from the ammonia chamber into the sample chamber through the odor absorbing bandage (FIG. 1); and an ammonia detector (23) in fluid communication with the sample chamber (12; fluid communication is through 20) and configured to detect an amount of ammonia emanating from the sample chamber (Page 6 lines 1-6 state that the detector can be a mass spectrometer which is general purpose detector that can detect a wide range of substances including ammonia. Please note that page 4 lines 40-43 state that the gas to be measured is not particularly limited.).
Regarding claim 12: HITOSHI discloses: the ammonia chamber (11 in FIG. 1) includes a first top element (The section of the upper 10 in FIG. 1. Please note that “top” and “bottom” are arbitrary in the setup shown in FIG. 1. HITOSHI shows the detector at the bottom of the figure, but the present application has the detector at the top of the figure.) including at least a first opening (where the film 13 is located) configured to allow ammonia vapors to pass therethrough (Gas passes through the film from 11 to 12.).
Regarding claim 16: HITOSHI discloses: an adaptor element (fluid line 20 in FIG. 1) connecting an interior of the sample chamber (12) to the ammonia detector (23) such that ammonia vapor in the sample chamber passes through the adaptor element and enters the ammonia detector (arrows in FIG. 1).
Regarding claim 18: HITOSHI discloses: the ammonia detector collects an air sample from the sample chamber (according to the process discussed on page 4 line 51-page 5 line 6).
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.
Claim(s) 6, 8-10, 13, 14, 17, and 19-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over HITOSHI.
Regarding claims 6, 8-10, 17, and 19-21: HITOSHI discloses a mass spectrometer as the detector (page 6 lines 1-6). Therefore HITOSHI does not disclose the three gas sensing technologies (Draeger tube, gas chromatography, flam photometric detector) specified in the claims. The Examiner takes Official Notice that gas sensing is a mature art, and all three of these sensing technologies are known. Therefore it would be obvious to one skilled in the art when testing the diffusion across a barrier as taught in the present application and in HITOSHI to use any known gas sensing technology based on such engineering considerations as cycle time, accuracy, precision, cost, available space, portability etc. Therefore, unless some particular sensing technology provides some new and unexpected result, it is “simple substitution of one known element for another to obtain predictable results” (see MPEP 2143 (I)(B)). In the present case, the known elements are different known gas sensing technologies, and the expected results are that the concentration of the gas is sensed.
Regarding claim 13: HITOSHI discloses: the sample chamber (12 in FIG. 1) includes: a base (upper part of the lower 10; Please note that “top” and “bottom” are arbitrary in the setup shown in FIG. 1. HITOSHI shows the detector at the bottom of the figure, but the present application has the detector at the top of the figure.) including a second opening (where 12 meets the film 13) formed in a bottom surface thereof (The “bottom” surface in FIG. 1 is the top of 12 because FIG. 1 has the detector 23 on the bottom.) and in fluid communication with the first opening in the first top element of the ammonia chamber such that ammonia vapors flow into the sample chamber from the ammonia chamber (The openings face each other and are on either side of 13.).
HITOSHI does not disclose a removable top connected to the base and including a third opening formed in a top surface thereof to provide fluid communication between the sample chamber and the ammonia detector. The is best shown in FIGS. 8 and 9 of the present application and only means that the ammonia chamber 122 is made of two pieces instead of one.
This two-piece construction does appear to affect the functioning of the invention at all. It would therefore be obvious to one skilled in the art to make a container or chamber out of any number of pieces based on how it is to be connected, storage requirements, available space, etc. Therefore unless the ammonia chamber being two pieces provides some criticality or new and unexpected result, it is an obvious variation. Please see MPEP 2144.04 (V) (c) regarding making parts separable.
Regarding claim 14: HITOSHI discloses: the sample chamber (12) further comprises a seal (14) preventing release of vapor between the removable lid and the base (upper part of the lower 10; Please note that HITOSHI does not disclose a removable lid/top, but this is an obvious variation as discussed in the rejection of claim 13.).
Regarding claim 15: HITOSHI discloses: an adapter element (fluid line 20 in FIG. 1) connected to the third opening (FIG. 1) formed in the removable top and providing fluid communication between the sample chamber and the ammonia detector (23; FIG. 1; Please note that HITOSHI does not disclose a removable lid/top, but this is an obvious variation as discussed in the rejection of claim 13.).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Several references have been added to the Notice of References Cited for teaching the apparatus of claim 1.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NATHANIEL J KOLB whose telephone number is (571)270-7601. The examiner can normally be reached M-F 9-5 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, JESSICA HAN can be reached at (571) 272-2078. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/NATHANIEL J KOLB/Examiner, Art Unit 2896