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 . 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 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.
Response to Amendment / Arguments
The response and amendments, filed 01/02/26, has been entered. Claims 1-12, 20, and 14-15, 17-19 are pending upon entry of this Amendment. The previous objections are withdrawn due to amendment. Applicant’s arguments regarding the prior art rejections of claims have been fully considered but are moot as amendment necessitated new ground of rejection based on Shaw US20090216419A1.
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.
Claims 1-4 and 6-12, 14-15, 17, 19 are rejected under 35 U.S.C. 103 as being unpatentable over Borges1 , (Borges, Gustavo R., et al. "Use of near infrared for evaluation of droplet size distribution and water content in water-in-crude oil emulsions in pressurized pipeline." Fuel 147 (2015): 43-52.) in view of Singh, US 20130243028 A1 and Shaw US20090216419A1.
Claim 1
Borges teaches2:
A system for online monitoring of the gravitational separation of oil emulsions through their properties, wherein the system comprises:
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a near-infrared region (NIR) spectrophotometer (C: e.g., sec.2.4),
an emulsion cell (vessel E )
a positive displacement pump (A ),
a mechanical stirring unit (e.g., sec. 2.2: For the mechanical agitator, the homogenization conditions were set around stirring rate 800–1400 rpm and 1–5 min),
an optical microscope (e.g., sec.2.3: H,G) comprising a flow chamber (G ),
a sample collection point unit (SC) of the emulsion coupled to the flow chamber (G) in the optical microscope (H,G),
a sample collection point unit of the emulsion (not shown but described in Page 45: col.2 end lines 2nd para for comparison with NIR spectra results) coupled to the flow chamber G in the optical microscope ( H,G) ,
NIR probes (D), and wherein an oil emulsion is under conditions of temperature (room temperature and up to 100C, sec.2.4, sec.2.5) and a pressure up to 40 bar (e.g., page 46 col.1 sec 2.4/sec.2.5: 5 to 30 bar).
Borges does not specifically teaches:
a mobile piston, a heating unit,
the sample collection point unit comprising a first collection point at a first collection point height and a second collection point at a second collection point height, wherein the first and second collection points are coupled to the flow cell of the optical microscope, a first NIR probes coupled to the flow chamber in the optical microscope at a first height, a second NIR probe coupled to the flow chamber in the optical microscope at a second height,
wherein an oil emulsion is under conditions of temperature between 80 and 150° C and a pressure between 10 and 70 bar (1 and 7 MPa)
(although Borges teaches: an oil emulsion is under conditions of room temperature and up to 100C (sec.2.4, sec.2.5) and a pressure up to 40 bar (e.g., page 46 col.1 sec 2.4/sec.2.5: 5 to 30 bar).
Regarding limitations 1 and 3:
In the similar field of endeavor, Singh teaches:
A system 50 for online monitoring of oil emulsions (reservoir fluids) through their properties (¶0012: A technique which facilitates the monitoring of thermodynamic properties of reservoir fluids in high temperature and high pressures), wherein the system 50 comprises:
a mobile piston (64,70),a heating unit (128),a stirring unit (66¶0005), wherein an oil emulsion is under conditions of high temperature between a high pressure (e.g., ¶0012).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use Singh‘s mobile piston and heating unit for Burgers’ system. One of ordinary skill in the art knows reservoir fluids are in high pressure and high temperatures and pressure retaining vessels or cells use pistons (in the case of mercury-free cells) to impart pressure onto the fluid sample via some type of displacement pump or mechanical drive and need thermal management systems for having system under control would have been motivated to make this modification in order to simulate the system under real temperature and pressure controlled conditions (e.g., Singh ¶0003-¶0005).
The modified Borges’ system with Singh does not specifically teach temperature between 80 and 150° C and a pressure between 10 and 70 bar (1 and 7 MPa). Nonetheless, the skilled artisan would know too that the simulation should be according to real conditions of high pressure and temperature ((e.g., Singh ¶0005 and sec.2.2 of Borges)) . The specific claimed temperature between 80 and 150° C and a pressure between 10 and 70 bar (1 and 7 MPa), absent any criticality, is only considered to be the “optimum range disclosed by Borge combined with Singh that a person having ordinary skill in the art would have been able to determine using routine experimentation (see In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)) based, among other things, on the desired conditions, manufacturing costs, etc. (see In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980)), and neither non-obvious nor unexpected results, i.e. results which are different in kind and not in degree from the results of the prior art, will be obtained as long as the temperature between 80 and 150° C and a pressure between 10 and 70 bar (1 and 7 MPa) is used, as already suggested by Borges combined with Singh. Since the applicant has not established the criticality (see next paragraph) of the temperature between 80 and 150° C and a pressure between 10 and 70 bar (1 and 7 MPa) stated and since these ranges are in common use in similar devices in the art, it would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to use these values in the device of Borges combined with Singh. please note that the specification contains no disclosure of either the critical nature of the claimed temperature between 80 and 150° C and a pressure between 10 and 70 bar (1 and 7 MPa) or any unexpected results arising therefrom. Where patentability is said to be based upon particular chosen dimensions or upon another variable recited in a claim, the applicant must show that the chosen dimensions are critical. In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding limitation 2:
It is a common knowledge to use multiple sensors in different depths to monitor and characterizing fluid in various depths. For example, In the similar field of endeavor, Shaw in e.g., ¶0043 teaches an arrangement of the multiple fiber optic sensors along a fluid column or tank at various depths , that is Shaw teaches a monitoring system wherein the sample collection point unit comprising a first collection point 406 at a first collection point height and a second collection point 408 at a second collection point height. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use Shawn‘s first collection point at a first collection point height and a second collection point at a second collection point height for the modified Borges‘s emulsion cell and the modified Borges‘s sample collection point unit comprising a first collection point at a first collection point height and a second collection point at a second collection point height, wherein the modified Borges‘s first and second collection points are coupled to the modified Borges‘s flow cell of the optical microscope. One of ordinary skill in the art would have been motivated to make this modification in order to characterizing the fluid according to depth (e.g., Shaw Abstract).
The combination does not teach a first NIR probes coupled to the flow chamber in the optical microscope at a first height, a second NIR probe coupled to the flow chamber in the optical microscope at a second height. However, Borges discloses a sample collection point unit (SC) of the emulsion coupled to the flow chamber (G) in the optical microscope (H,G), and It would have been obvious to one of ordinary skill in the art at the time the invention was made to duplicate sample collection point unit (SC) of the emulsion coupled to the flow chamber (G) in the optical microscope (H,G), wherein the modified Borges‘s first and second collection points are coupled to the flow cell of the modified Borges‘s optical microscope, a first NIR probes of the modified Borges coupled to the modified Borges‘s flow chamber in the modified Borges‘s optical microscope at a first height, a second NIR probe of the modified Borges‘s coupled to the flow chamber in the modified Borges‘s optical microscope at a second height, since it has been held that mere duplication of the essential working parts of a device (duplication of sample collection point unit) involves only routine skill in the art. St. Regis Paper Co. v. Bemis Co., 193 USPQ 8 (1977).
Claim 2
Borges in view of Singh and Shaw teaches the system of claim 1, Borges teaches wherein the system is configured to simultaneously monitor the properties of drop size distribution (DSD) and water content (WC) of the oil emulsions (e.g., table 4-6, figs.6-10).
Claim 3
Borges in view of Singh and Shaw teaches the system of claim 2, Borges teaches wherein the NIR spectrophotometer comprises a transflectance probe having an adjustable optical path and an NIR analyzer having a wavelength between 4000 and 10000 cm−1 and with 1.0 mm of optical pathlength (Page 46, section 2.4).
Borges does not specifically teach resolution between 1 and 32 cm−1. But the specific claimed wavelength between 4000 and 12000 cm−1 and with resolution between 1 and 32 cm−1, absent any criticality, is only considered to be the “optimum range disclosed by Borges that a person having ordinary skill in the art would have been able to determine using routine experimentation (see In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)) based, among other things, on the desired analyzer , manufacturing costs, etc. (see In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980)), and neither non-obvious nor unexpected results, i.e. results which are different in kind and not in degree from the results of the prior art, will be obtained as long as the wavelength between 4000 and 12000 cm−1 and with resolution between 1 and 32 cm−1is used, as already suggested by Borges. Since the applicant has not established the criticality (see next paragraph) of the wavelength between 4000 and 12000 cm−1 and with resolution between 1 and 32 cm−1stated and since these ranges are in common use in similar devices in the art, it would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to use these values in the device of Borges. Please note that the specification contains no disclosure of either the critical nature of the claimed wavelength between 4000 and 12000 cm−1 and with resolution between 1 and 32 cm−1 or any unexpected results arising therefrom. Where patentability is said to be based upon particular chosen dimensions or upon another variable recited in a claim, the applicant must show that the chosen dimensions are critical. In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Claim 4
Borges in view of Singh and Shaw teaches the system of claim 3, Borges teaches further comprising one or more processors configured to uses PLS models (section 3.2 page 46) to predict the values of DSD and WC in conditions.
However, Borges does not explicitly teach of temperature between 80 and 120° C and pressure of up to 35 bar (3.5 MPa). Nonetheless, the skilled artisan would know too that would know the real conditions of gf pressure and temperature for fluid reservoirs. The specific claimed of temperature between 80 and 120° C and pressure of up to 35 bar (3.5 MPa), absent any criticality, is only considered to be the “optimum” of temperature between 80 and 120° C and pressure of up to 35 bar (3.5 MPa) disclosed by Borges that a person having ordinary skill in the art would have been able to determine using routine experimentation (see In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)) based, among other things, on the desired conditions, manufacturing costs, etc. (see In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980)), and neither non-obvious nor unexpected results, i.e. results which are different in kind and not in degree from the results of the prior art, will be obtained as long as the of temperature between 80 and 120° C and pressure of up to 35 bar (3.5 MPa)is used, as already suggested by Borges. Since the applicant has not established the criticality (see next paragraph) of the of temperature between 80 and 120° C and pressure of up to 35 bar (3.5 MPa)stated and since these ranges are in common use in similar devices in the art, it would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to use these values in the device of Borges. Please note that the specification contains no disclosure of either the critical nature of the claimed of temperature between 80 and 120° C and pressure of up to 35 bar (3.5 MPa)or any unexpected results arising therefrom. Where patentability is said to be based upon particular chosen dimensions or upon another variable recited in a claim, the applicant must show that the chosen dimensions are critical. In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Claim 6
Borges in view of Singh and Shaw teaches the system of claim 1, Borges teaches wherein the emulsion cell is pressurized at high pressure through the mobile piston and has a variable volume of up to 300 mL (sec.2.2 on page 45).
However, Borges does not explicitly teach up to 200 mL. Nonetheless, the skilled artisan would know too the Water-in-oil emulsions procedure (sec.2.2 page 45) . The specific claimed 200 mL, absent any criticality, is only considered to be the “optimum” vol disclosed by Borges that a person having ordinary skill in the art would have been able to determine using routine experimentation (see In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)) based, among other things, on the desired procedure, manufacturing costs, etc. (see In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980)), and neither non-obvious nor unexpected results, i.e. results which are different in kind and not in degree from the results of the prior art, will be obtained as long as the 200 mL is used, as already suggested by Borges. Since the applicant has not established the criticality (see next paragraph) of the 200 mL stated and since these range vol. are in common use in similar devices in the art, it would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to use these values in the device of Borges. Please note that the specification contains no disclosure of either the critical nature of the claimed 200 mL or any unexpected results arising therefrom. Where patentability is said to be based upon particular chosen dimensions or upon another variable recited in a claim, the applicant must show that the chosen dimensions are critical. In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Claim 7
Borges in view of Singh and Shaw teaches the system of claim 6, Borges teaches wherein high pressure of the emulsion cell is maintained through the positive displacement pump (A).
Claim 8
Borges in view of Singh and Shaw teaches the system of claim 7, Borges teaches wherein the high pressure of the emulsion cell is preferably maintained at 35 bar (3.5 MPa) (page 46, section 2.4).
Claim 9
Borges in view of Singh and Shaw teaches the system of claim 1, Singh teaches wherein the emulsion cell further comprises a thermostatic bath, a jacket, for circulation of thermal fluid and a thermocouple to maintain a temperature in the emulsion cell (128/130/52). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use Singh‘s thermal management system for the modified Borges’ system. One of ordinary skill in the art knows this thermal management techniques and would have been motivated to make this modification in order to highly precise and robust system for maintaining a specific temperature.
Claim 10
Borges in view of Singh and Shaw teaches the system of claim 9, Singh teaches wherein the emulsion cell further comprises electrical resistors coupled to the emulsion cell, the electrical resistors configured to maintain the temperature in the emulsion cell (¶0069) for the same reason and motivation as cited above in claim 9.
Claim 11
Borges in view of Singh teaches the system of claim 10, Singh teaches wherein the thermostatic bath and jacket are configured to maintain a temperatures but does not specifically cite vary from 80 to 120° C. Nonetheless, the skilled artisan would know too the temperature is close to the real fluid reservoir temperatures . The specific claimed temperature, absent any criticality, is only considered to be the “optimum” vol disclosed by Borges that a person having ordinary skill in the art would have been able to determine using routine experimentation (see In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)) based, among other things, on the desired procedure, manufacturing costs, etc. (see In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980)), and neither non-obvious nor unexpected results, i.e. results which are different in kind and not in degree from the results of the prior art, will be obtained as long as the temperature is used, as already suggested by Borges. Since the applicant has not established the criticality (see next paragraph) of the temperature stated and since these range vol. are in common use in similar devices in the art, it would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to use these values in the device of Borges. Please note that the specification contains no disclosure of either the critical nature of the claimed temperature or any unexpected results arising therefrom. Where patentability is said to be based upon particular chosen dimensions or upon another variable recited in a claim, the applicant must show that the chosen dimensions are critical. In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Claim 12
Borges in view of Singh and Shaw teaches the system of to claim 1, Borges teaches mechanical stirring unit but does not specifically teach wherein the mechanical stirring unit is located at the bottom of the cell and comprises a rotor with a three-blade propeller. Borges (in e.g., sec.2.2) and Singh (e.g., in ¶0009) both teach that agitation systems are varied and specifically claiming wherein the mechanical stirring unit is located at the bottom of the cell and comprises a rotor with a three-blade propeller absent any criticality, just having same function of creating agitation in the system to simulate conditions and It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use Borges‘ mechanical agitation system located at the bottom of the cell and comprises a rotor with a three-blade propeller, and based on MPEP 2143 (C), courts have ruled that Use of known technique to improve similar devices (methods, or products) in the same way is within the purview of a skilled artisan. See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 415-421,82 USPQ2d 1385, 1395-97 (2007).
Claim 14
Borges in view of Singh and Shaw teaches the system of claim 13, Borges teaches wherein the optical microscope H,G configured to determines the drop size distribution (DSD) property of the emulsion under pressurized conditions (e.g., figs.9-10).
Claim 15
Borges in view of Singh and Shaw teaches the system of claim 13, Borges teaches wherein the flow cell G of the microscope H is coupled to the sample collection unit SC and wherein the potentiometric titrator is configured to determine the water content of the oil emulsion (e.g., Page 45: col.2 end lines 2nd para).
Claim 17
Borges in view of Singh and Shaw teaches the system of claim 1, Borges teaches wherein stirring unit is configured to maintain the homogeneous emulsion and the suspension of water drops in the emulsion cell (e.g., sec. 2.2)
Claim 19
Borges in view of Singh and Shaw teaches the system of claim 1, wherein the oil emulsions has a water contents of up to 20% and an average drop size between 10 and 30 μm. E.g., figs.9-10.
However, Borges does not explicitly teach [the oil emulsions has a water contents of up to 50% and an average drop size between 5 and 10 μm.]. Nonetheless, the skilled artisan would know too the real range of emulsion drop sizes and oil in water wt%. The specific claimed [the oil emulsions has a water contents of up to 50% and an average drop size between 5 and 10 μm.], absent any criticality, is only considered to be the “optimum range disclosed by Borges that a person having ordinary skill in the art would have been able to determine using routine experimentation (see In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)) based, among other things, on the desired system, manufacturing costs, etc. (see In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980)), and neither non-obvious nor unexpected results, i.e. results which are different in kind and not in degree from the results of the prior art, will be obtained as long as the [the oil emulsions has a water contents of up to 50% and an average drop size between 5 and 70 μm.] is used, as already suggested by Borges. Since the applicant has not established the criticality (see next paragraph) of the [RANGE] stated and since these [RANGES] are in common use in similar devices in the art, it would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to use these values in the device of Borges. Please note that the specification contains no disclosure of either the critical nature of the claimed [the oil emulsions has a water contents of up to 50% and an average drop size between 5 and 10 μm.] or any unexpected results arising therefrom. Where patentability is said to be based upon particular chosen dimensions or upon another variable recited in a claim, the applicant must show that the chosen dimensions are critical. In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Borges , (Borges, Gustavo R., et al. "Use of near infrared for evaluation of droplet size distribution and water content in water-in-crude oil emulsions in pressurized pipeline." Fuel 147 (2015): 43-52.) in view of Singh, US 20130243028 A1 , Shaw US20090216419A1, and ZHANG, CN 114878513 A .
Claim 5
Borges in view of Singh and Shaw teaches the system of claim 4, the combination teaches the NIR spectrophotometer and teach wherein the NIR spectrophotometer is configured to collect NIR spectra correlating the variation in the size of drops and water content with the spectra obtained over time under the same conditions of high temperatures and pressures (e.g., figs.9-10 of Borges), but the combination does not teach NIR spectrophotometer is configured to collect NIR spectra at different heights, which coincide with a collection points of the samples correlating the variation in the size of drops and water content with the spectra obtained over time under the same conditions of high temperatures and pressures.
In the similar field of endeavor, ZHANG teaches wherein the NIR (e.g., underlined in page 4) spectrophotometer 2 is configured to collect NIR spectra at different heights 4 (page 6: movable control 34 through the upper end of the knob control sliding block along the supporting rod of the sliding block to slide up and down, so as to drive the second object platform 35 along the vertical direction, so as to realize the water absorption test adjusting the height of the optical fiber probe 4 of the second object platform 35), which coincide with a (rock sample saturated with water S103/pages 4-5).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to use ZHANG‘s NIR spectrophotometer configured to collect NIR spectra at different heights for the modified Borges’ NIR spectrophotometer and the modified Borges’ NIR spectrophotometer is configured to collect NIR spectra at different heights, which coincide with a collection points of the samples correlating the variation in the size of drops and water content with the spectra obtained over time under the same conditions of high temperatures and pressures. One of ordinary skill in the art would have been motivated to make this modification in order to obtain the results in different positions (underlined portion on page 5 of ZHANG).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Borges , (Borges, Gustavo R., et al. "Use of near infrared for evaluation of droplet size distribution and water content in water-in-crude oil emulsions in pressurized pipeline." Fuel 147 (2015): 43-52.) in view of Singh, US 20130243028 A1, Shaw, US20090216419A1, and WU, CN 103913434 A.
Claim 18
Borges in view of Singh and Shaw teaches the system of claim 1, Borges teaches online monitoring (e.g., page 51 col.2 first para) wherein the NIR spectrophotometers are configured to take NIR spectra (e.g., fig.4) and total volume of 300 mL (sec.2.2) but does not specifically teach every 30, every 30 minutes through 5 mL aliquots, and approximately 40 mL of emulsion are used in each monitoring interval until the use of the entire useful volume of the emulsion cell of 200 mL is used.
In the similar field of endeavor, WU teaches a system (fig.1) for online monitoring of the water content (e.g., fig.2), wherein the system comprises a near-infrared region (NIR) spectrophotometer (7) and every some interval minutes of time (fig.2) through aliquots (5), and approximately are used in each monitoring interval until the use of the entire useful volume of the cell of (5) and (1) is used (e.g., figs.1-2).
The modified Borges with Singh ad WU teaches real-time monitoring (e.g., page 44 col.1 2nd and 3th para / Online monitoring section 2.5 page 46 of Borges). However, the modified Borges does not explicitly teach every 30 minutes through 5 mL aliquots, and approximately 40 mL of emulsion are used in each monitoring interval until the use of the entire useful volume of the emulsion cell of 200 mL is used. Nonetheless, the skilled artisan would know too that Real-time monitoring is especially important when pressurized emulsion systems are involved. The specific claimed every 30 minutes through 5 mL aliquots, and approximately 40 mL of emulsion are used in each monitoring interval until the use of the entire useful volume of the emulsion cell of 200 mL is used, absent any criticality, is only considered to be the “optimum” minutes through mL aliquots disclosed by Borges that a person having ordinary skill in the art would have been able to determine using routine experimentation (see In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)) based, among other things, on the desired system, manufacturing costs, etc. (see In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980)), and neither non-obvious nor unexpected results, i.e. results which are different in kind and not in degree from the results of the prior art, will be obtained as long as the every 30 minutes through 5 mL aliquots, and approximately 40 mL of emulsion are used in each monitoring interval until the use of the entire useful volume of the emulsion cell of 200 mL is used, as already suggested by Borges. Since the applicant has not established the criticality (see next paragraph) of the every 30 minutes through 5 mL aliquots, and approximately 40 mL of emulsion are used in each monitoring interval until the use of the entire useful volume of the emulsion cell of 200 mL is used stated and since these are in common use in similar devices in the art, it would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to use these values in the device of Borges. Please note that the specification contains no disclosure of either the critical nature of the claimed every 30 minutes through 5 mL aliquots, and approximately 40 mL of emulsion are used in each monitoring interval until the use of the entire useful volume of the emulsion cell of 200 mL is used or any unexpected results arising therefrom. Where patentability is said to be based upon particular chosen dimensions or upon another variable recited in a claim, the applicant must show that the chosen dimensions are critical. In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 Fatemeh E. Nia whose telephone number is (469)295-9187. The examiner can normally be reached 9:00 am to 4:00 pm.
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/FATEMEH ESFANDIARI NIA/Examiner, Art Unit 2855
1 Prior art of record
2 For citation also see reproduced drawings here