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 .
Election/Restriction
Restriction to one of the following inventions is required under 35 U.S.C. 121:
I. Claims 1-8, drawn to a carbon precursor comprising defective amorphous carbon spheres, classified in C01P2002/00.
II. Claims 9-13, drawn to a carbon precursor comprising amorphous carbon nanoclusters, classified in C01B32/15.
III. Claims 14-20, drawn to a method of fabricating a single-layer graphitic structure comprising annealing amorphous carbon spheres, classified in H01M4/926.
The inventions are independent or distinct, each from the other because:
Inventions I and II are directed to related products. The related inventions are distinct if: (1) the inventions as claimed are either not capable of use together or can have a materially different design, mode of operation, function, or effect; (2) the inventions do not overlap in scope, i.e., are mutually exclusive; and (3) the inventions as claimed are not obvious variants. See MPEP § 806.05(j). In the instant case, the inventions as claimed have a materially different design, do not overlap in scope and are not obvious variants. Invention I is required to have defects and Invention II is required to have nanoclusters. Furthermore, the inventions as claimed do not encompass overlapping subject matter and there is nothing of record to show them to be obvious variants.
Inventions I and III are related as product and process of use. The inventions can be shown to be distinct if either or both of the following can be shown: (1) the process for using the product as claimed can be practiced with another materially different product or (2) the product as claimed can be used in a materially different process of using that product. See MPEP § 806.05(h). In the instant case the product as claimed as can be used in a materially different process, such as a catalyst support or for an adsorption process.
Inventions II and III are related as product and process of use. The inventions can be shown to be distinct if either or both of the following can be shown: (1) the process for using the product as claimed can be practiced with another materially different product or (2) the product as claimed can be used in a materially different process of using that product. See MPEP § 806.05(h). In the instant case the product as claimed as can be used in a materially different process such as a catalyst support or an adsorption process.
Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply:
The above noted inventions designated by Groups I-III have acquired a separate status in the art as evidenced by their different classification, they have acquired a separate status in the art due to their recognized divergent subject matter, and a completed search of both inventions would necessitate different fields of search. For at least these reasons, a concerted search of both groups of inventions would impose an undue burden upon the office.
Applicant is advised that the reply to this requirement to be complete must include (i) an election of an invention to be examined even though the requirement may be traversed (37 CFR 1.143) and (ii) identification of the claims encompassing the elected invention.
The election of an invention may be made with or without traverse. To reserve a right to petition, the election must be made with traverse. If the reply does not distinctly and specifically point out supposed errors in the restriction requirement, the election shall be treated as an election without traverse. Traversal must be presented at the time of election in order to be considered timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are added after the election, applicant must indicate which of these claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
During a telephone conversation with Matthew Jakubowski on 06/17/2026 a provisional election was made without traverse to prosecute the invention of Group I, claims 1-8. Affirmation of this election must be made by applicant in replying to this Office action. Claims 9-20 have been withdrawn from further consideration by the examiner, 37 CFR 1.142(b), as being drawn to a non-elected invention.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
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 4 is 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. The claim requires that the defective amorphous carbon spheres include defects. However, having defects is already implied by the term “defective” in the independent claim. Claim 1 thus already requires the defective amorphous carbon spheres to include defects. 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.
Claim Rejections - 35 USC § 102
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.
Claim(s) 1-7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Ringstrand et al. “Discontinuous Density Gradient Fractionation of Detonation Soot for Complete Nanocarbon Characterization”.
Regarding claims 1-7, the Ringstrand reference categorizes components of soot based on density (Pg. 1, last para). The reference discloses a component of amorphous carbon nanospheres with a density of less than 1.0 g/cm3 (See pg. 4, last para). The mass loss is based on the starting weight of the source of the precursor, in this case, the defect-free amorphous carbon spheres and on the processing parameters. The mass difference from initial mass and final mass is not considered limiting to the composition of the instant product. “…determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. ” (MPEP §2113 I.). The reference defines the amorphous carbon nanospheres as porous and hollow (Pg. 4, last para). Pores are considered to read on cylindrical defects. The ability to from a single-layer graphitic structure is intrinsic to any carbon containing precursor.
Claim(s) 1, 4, 6 and 7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Barbera et al. “Low-temperature graphitization of amorphous carbon nanospheres”.
Regarding claims 1 and 4, Barbera et al. teaches a graphitization process utilizing amorphous carbon nanospheres (Abstract). The reference teaches formation of ordered portions on the amorphous carbon and the spherical shape was retained (See Pg. 871, section 3.1, first para). These are considered as defects as claimed. The mass loss is based on the starting weight of the source of the precursor, in this case, the defect-free amorphous carbon spheres and on the processing parameters. The mass difference from initial mass and final mass is not considered limiting to the composition of the instant product. “…determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. ” (MPEP §2113 I.).
Regarding claims 6 and 7, the Barbera reference describes the morphology as spheres similar to a ‘nano-onion” formed by concentric shells. These are considered to read on hollow nanospheres since the reference uses the term “shells”.
Claim(s) 1, 4, 6 and 7 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wang et al. “Hollow nanospheres constructed by ultrafine few-layered MoS2 partially with amorphous fragments homogeneously incorporate in N-doped amorphous carbon for…”.
Regarding claims 1, 4, 6 and 7, the Wang reference teaches nanospheres constructed by ultrafine and few-layeredMoS2 homogeneously incorporated in N-doped amorphous carbon (HUF MoS2/NC) (Abstract). The doped nitrogen atoms adjust the original structure of amorphous carbon, introducing a great deal of defects which are significant to provide more electro chemical active sites (Pg.# 807, right hand column, last para). The reference also teaches that these amorphous carbon based nanospheres are hollow and porous (Pg. #811, left hand column, last para).
Allowable Subject Matter
Claim 8 is 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.
The following is a statement of reasons for the indication of allowable subject matter: Claim 8 requires “The carbon graphitic structure precursor of claim 1, wherein the defective amorphous carbon spheres include micropores of lower than 2 nanometers in a range of 0.5 to 2.0 cm3/g”.
The references of Ringstrand et al., Wang et al. and Barbera et al. do not teach or suggest “wherein the defective amorphous carbon spheres include micropores of lower than 2 nanometers in a range of 0.5 to 2.0 cm3/g”.
Relevant Art
US 20120126438 teaches a phase change of carbon nanospheres from amorphous to graphitic carbon (Para[ [0054]). The reference highlights that defects and lattice distortions are observed.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SYED TAHA IQBAL whose telephone number is (571)270-5857. The examiner can normally be reached M-F; 7-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anthony Zimmer can be reached at (571) 270-3591. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SYED T IQBAL/ Examiner, Art Unit 1736
/ANTHONY J ZIMMER/ Supervisory Patent Examiner, Art Unit 1736
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