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 .
Claim Rejections - 35 USC § 112
Claims 2-18 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.
As to claims 2,9, what does the term “structuring” (line 2) mean in relation to a step in this method claim? The phrase “structuring a handheld device” seems to suggest that something (unidentified) is done to a handheld device, and that only after “a handheld device” is structured does something (lines 3-last) appear. The term “structuring” has no clear meaning in the context of lines 3-last. What is Applicant’s intent by employing the term “structuring”? What meaning is to be attributed to the term “structuring”?
As to claims 2,3,4,5,7,8,9,10,11,12,13,14,16,17,18, the verb “structuring” is not clear as to its meaning. One of ordinary skill can only speculate as to whether it is providing, constructing or something otherwise unfamiliar. Line 3 suggests a method to make, but the method is akin to carrying out a test. What meaning is attributed to its meaning, and where is such meaning provided in the specification.
As to claims 6,15, it’s not clear how a handheld device 44 is formed from housing 46 containing the buffer chamber 40. As disclosed, the many different elements of base claim 2 are separate from the housing 46, and one does not form the device as a whole from only the buffer chamber. There is no “forming” connection. Is there a new meaning for the term “form”? What is Applicant’s intent?
Claim 18 is confusing because it calls for a room and wall was being portions of a “handheld device” (line 2, claim 9). Consider that claim 9 calls for a “handheld device” that includes a buffer chamber; yet claim 18 states that the buffer chamber is that of a room with the reference gas inlet being that of a hole in a wall that’s separate from a second room. As such, the 2 rooms and wall are not consistent with a handheld device. Applicant is combining limitation from 2 different embodiments.
Claim Rejections - 35 USC § 112
Claim 18 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. Claim 18’s 2 room limitation is directed to an embodiment (Para 32 of Pub), and thus removes the “handheld device” (italics added, line 2 of claim 9) that includes a buffet chamber as a part of a handheld device. 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.
Double Patenting
Claims 2,9,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17 rejected on the ground of nonstatutory double patenting as being unpatentable over corresponding claims 1,1,2,3,6,8,9,10,11,11,1,2,3,6,8,9,10 of U.S. Patent No. 11,852,562. Although the claims at issue are not identical, they are not patentably distinct from each other because:
As to claims 2,9,11, the device of claim 1 ‘562 was provided or constructed, which is as much structuring as claimed in Applicant’s claim 1. Claim 1 ‘562 includes every structural limitation as that of Applicant’s claim 1. As to claim 2,9 and 11, It would have been obvious for one of ordinary skill to perform a method of structuring the device of claim 1 ‘562 as the patent provides for an effective sniffer that requires construction if such is to be used.
As to Applicant’s claims 3-8,12,13,14,15,16,17 corresponding claims 2,3,6,8,9,10,2,3,6,8,9,10 ‘562 includes all of the limitations in claim 3-8 respectively.
As to claims 9,10, the device of claim 11 ‘562 was provided or constructed, which is as much structuring as claimed in Applicant’s claims 9,10. Claim 11 ‘562 includes every structural limitation as that of Applicant’s claims 9,10. It would have been obvious for one of ordinary skill to either provide or construct the device of claim 11 ‘562.
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.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ROBERT R RAEVIS whose telephone number is (571)272-2204. The examiner can normally be reached on Monday to Friday from 8am to 4pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kristina DeHerrera, can be reached at telephone number 303-297-4237. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ROBERT R RAEVIS/Primary Examiner, Art Unit 2855
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