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 .
Response to Arguments
Applicant's arguments filed 30 March 2026 have been fully considered but they are not persuasive. Applicant argues the claimed invention meet the written description requirement as well as the enablement requirement under 35 U.S.C. 112(a). In regards to the written description requirement, Applicant alleges the Examiner misapplied 35 U.S.C. 112(a), and refers to instant field specification paragraphs 0020-0022, as well as to instant Fig. 1, and alleges the written description requirement does not require the inventor to enumerate equations implementing known physical relationships where whose relationships are well known to those of ordinary skill in the art of gas sensing instrumentation, and that the flow rate cross-sensitivity correction is explicitly disclosed. The Examiner respectfully disagrees. Neither instant Fig. 1 or the instant specification paragraphs provide evidence of written description in regards to the necessary and requisite algorithms (i.e. formulas, equations, functional relationships, descriptive details to form these algorithms/equations/functional relationships) to perform the recited limitations: “as a function of the composition (emphasis added), output a flow rate measured value corrected with respect to cross-sensitivity of the flow rate to the composition of the gas based on flow rate dependent signals of the thermal flow sensor.” These claim limitations explicitly state that there exists a undisclosed, and, thus unknown requisite mathematical function(s) (emphasis added), i.e. a functional equation/formula wherein the variables of the function are the measured inputs, to output a flow rate measured value corrected with respect to a cross-sensitivity, thus the claimed invention lacks clear written description for this function. This requisite, but undisclosed/unknown function to determine a flow rate measured value corrected with respect to the cross-sensitivity would take the form of:
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wherein:
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wherein:
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is the corrected flow rate measured value;
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is the composition of the gas, which, in turn, is a function of the measured variables of:
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which is the measured density of the composition of the gas; P which is the pressure of the gas and T which is the temperature of the gas. The instant disclosure clearly lacks written description in regards to the above functions.
In regards to the enablement requirement, due to the lack of not only the requisite function(s) as previously pointed out above, the instant disclosure additionally fails to disclose any directions and/or instructional details to form these function(s), thus failing to enable one of ordinary skill in the art to make and/or use the claimed invention. Applicant alleges that the formulation of the functions and/or algorithms would only require minimal and routine, not undue experimentation to from alleged routine calibration tables or empirical fits as described in para 0022 of the instant filed specification. The Examiner respectfully disagrees. The requisite functions and/or algorithms are not routine calibration procedures to determine the corrected flow rate. Instant specification paragraph 0022 only states: “The corresponding compensation functions (emphasis added) with gas-dependent parameters are stored in a working memory of the measuring and operating circuit.” There is no mention of any calibration aspects. Applying the Wand factors (see In re Wands, 858 F.2d 731, 737, 8 USPQ2d 1400, 1404 (Fed. Cir. 1988), Wands factor (F), being the amount of direction provided by the inventor, it is clear the instant disclosure fails to provide sufficient direction and/or instructional details to determine the required and necessary functions and/or algorithms to perform the claimed invention, which requires the limitations: “as a function of the composition (emphasis added), output a flow rate measured value corrected with respect to cross-sensitivity of the flow rate to the composition of the gas based on flow rate dependent signals of the thermal flow sensor.” Wands factor (G), being the existence of working examples of algorithms necessary to perform the claimed invention, the instant filed disclosure fails to prove any working examples, algorithms, or actual functional relationships to perform aforementioned claim limitations. Wands factor (H), being the quantity of experimentation needed to make or use the invention based on the content of the disclosure, the instant disclosure, as pointed out previously, does not provide sufficient directions, instructions, equations, formulas or any aspects of required algorithms to perform the claimed invention, rendering claim 1 and its dependents failing to enable of ordinary skill in the art to make and/or use the instant claimed invention. As such, all rejections under 35 U.S.C. 112(a) are maintained by the Examiner.
Lastly, in view of Applicant’s amendments of instant dependent claims 7 and 9, the previous rejections under 35 U.S.C. 112(b) have been withdrawn.
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 1-13 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. Instant independent claim 1 recites in part: “as a function of the composition, output a flow rate measured value corrected with respect to a cross-sensitivity of the flow rate to the composition of the gas based on flow rate-dependent signals of the thermal flow sensor.” The instant filed specification states in paragraph 0025: “The algorithms and parameters for identifying a gas composition on the basis of signals of the density sensor 12 and of the pressure sensor 14 and the temperature sensor 16 are stored in a (program) memory of the microcontroller 18, as are the algorithms and gas-specific parameters for compensating for the cross-sensitivity of the thermal flow measurement with respect to gas composition.” However, none of these alleged algorithms are disclosed within the instant disclosure. There are no formulas, equations, or descriptive details to form these algorithms to perform the claimed limitations of instant independent claim 1. As such, the instant disclosure lacks written description in regards to the claimed invention. Claims 2-13 are similarly rejected due to their dependency.
Claims 1-13 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 enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention. Instant independent claim 1 recites in part: “as a function of the composition, output a flow rate measured value corrected with respect to a cross-sensitivity of the flow rate to the composition of the gas based on flow rate-dependent signals of the thermal flow sensor.” The instant filed specification states in paragraph 0025: “The algorithms and parameters for identifying a gas composition on the basis of signals of the density sensor 12 and of the pressure sensor 14 and the temperature sensor 16 are stored in a (program) memory of the microcontroller 18, as are the algorithms and gas-specific parameters for compensating for the cross-sensitivity of the thermal flow measurement with respect to gas composition.” However, none of these alleged algorithms are disclosed within the instant disclosure. There are no formulas, equations, or descriptive details to form these algorithms to perform the claimed limitations of instant independent claim 1. Wands factor (F), being the amount of direction provided by the inventor, it is clear the instant disclosure fails to provide sufficient direction and/or instructional details to determine the required and necessary functions and/or algorithms to perform the claimed invention, which requires the limitations: “as a function of the composition (emphasis added), output a flow rate measured value corrected with respect to cross-sensitivity of the flow rate to the composition of the gas based on flow rate dependent signals of the thermal flow sensor.” Wands factor (G), being the existence of working examples of algorithms necessary to perform the claimed invention, the instant filed disclosure fails to prove any working examples, algorithms, or actual functional relationships to perform aforementioned claim limitations. Wands factor (H), being the quantity of experimentation needed to make or use the invention based on the content of the disclosure, the instant disclosure, as pointed out previously, does not provide sufficient directions, instructions, equations, formulas or any aspects of required algorithms to perform the claimed invention, rendering claim 1 and its dependents failing to enable of ordinary skill in the art to make and/or use the instant claimed invention. All other claims are rejected due to their dependency from instant independent claim 1.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Primary Examiner John Fitzgerald whose telephone number is (571) 272-2843. The examiner can normally be reached on Monday-Friday from 7:00 AM to 3:30 PM E.S.T. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor John Breene, can be reached at telephone number (571) 272-4107. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, Applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. The central fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JOHN FITZGERALD/Primary Examiner, Art Unit 2855