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 .
Information Disclosure Statement
In the IDS dated 13 March 2024 Applicant erroneously listed US Patent Application Numbers in the section labeled US Patent Documents. This does not comply with 37CFR 1.198 which requires U.S. patents and U.S. patent application publications be listed in a section separately from citations of other documents.
Applicant is advised to cite the publication numbers or patent numbers of applications which have published instead of application serial numbers. See also MPEP 609.04a1
The “STATEMENT” filed pursuant to the duty of disclosure on 13 March 2024 and 7 August 2024 are not proper information disclosure statements. They each fail to comply with the provisions of 37 CFR 1.97, 1.98 and MPEP § 609 because it lacks the: (ii) A column that provides a space, next to each document to be considered, for the examiner's initials; and (iii) A heading that clearly indicates that the list is an information disclosure statement. It has been placed in the application file, but the information referred to therein has not been considered as to the merits. Applicant is advised that the date of any re- submission of any item of information contained in this information disclosure statement or the submission of any missing element(s) will be the date of submission for purposes of determining compliance with the requirements based on the time of filing the statement, including all certification requirements for statements under 37 CFR 1.97(e). See MPEP § 609.05(a).
Claim Rejections - 35 USC § 112
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 29 and 38 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.
Claim 29 and 38 both lack antecedent basis for “the at least one sensor” and “the at least one flow control mechanism”
Claim Rejections - 35 USC § 103
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 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) 21, 22, 24, 25, 27, 29, 30, 31, 32, 34, 35, 37, 39, and 40 is/are rejected under 35 U.S.C. 103 as being unpatentable over public use and/or sale at Lawrence Landfill2 in view of 40 CFR3
At Lawrence Landfill, prior to 29 January 2019 , at least one controller was used to obtain a first measure of pressure in the gas extraction system4; and responsive to determining that the pressure is not negative, increasing flow5.
The evidence of record does not show the obtaining a second measure of pressure subsequent to increasing the flow and the performing a second corrective action in response.
40 CFR 60.755 (a) (3)described obtaining a second measure of pressure subsequent to a determination that the pressure was not negative6 and as 40CFR described correcting the pressure “within 15 calendar days of the first measurement” this suggests to one of ordinary skill in the art that the obtaining a second measure would be subsequent to increasing the flow rate (i.e. a corrective action taken “within 5 calendar days”).
40 CFR also described the in response to determining that the second measure is not negative7 and if the first amount of time (“15 calendar days”) is greater than or equal to a threshold time performing a second corrective action8 .
One of ordinary skill in the art would have been motivated to apply the teachings of 40CFR to the Lawrence Landfill in order to comply with the federal regulations, Therefore it would have been obvious to one of ordinary skill in the art to have modified the operation at Lawrence Landfill to have included the subsequent to increasing the flow rate of landfill gas being extracted from the landfill and after a first amount of time has passed since the obtaining the first measure of pressure in the gas extraction system, obtaining a second measure of pressure in the gas extraction system; and in response to determining that the second measure of pressure in the gas extraction system is not negative and if the first amount of time is greater than or equal to a threshold amount of time, performing a second corrective action other than increasing the flow rate of the landfill gas being extracted from the landfill via the gas extraction system as called for in claim 21.
Regarding claim 22: 40 CFR describes the first amount of time as 15 days, which is greater than a threshold of 24 hours: the proposed modification would therefore meet the limitations of claim 22.
Regarding claim 24: D1 described the obtaining oxygen concentration and determining whether the concentration meets compliance criteria9; and as the measuring oxygen concentration is described as ongoing or continuous, it would inherently be subsequent as claimed; and regarding claim 25, the same section of D1 describes obtaining temperature continuously (i.e. subsequently) and although D1 does not explicitly describe determining whether the temperature meets compliance criteria, the compliance is taught by 40CFR10. Examiner finds that the CFR provides motivation to determine whether the temperature meets compliance criteria as claimed, in order to comply with regulations. Therefore modification of the prior use to have included determining whether the temperature meets compliance criteria would have been obvious to one of ordinary skill in the art.
Regarding claim 27: D1 at page 11 described “continuous” which is inherently at least once per month.
Regarding claim 29: D1 at page 11 described “ readings… below Loci's automated valve”
Regarding claim 30: D1 at page 11 described the controller taking “readings…pressure” which anticipates controlling a pressure sensor.
Note: the rejections for claims 31, 32, 34, 35, 37, 39, and 40 are nearly identical to the rejections of claims 21, 22, 24, 25, 27, 29, and 30 above. The footnotes are omitted for brevity.
Regarding independent claim 31:
At Lawrence Landfill, prior to 29 January 2019 , at least one controller was used to obtain a first measure of pressure in the gas extraction system; and responsive to determining that the pressure is not negative, increasing flow.
The evidence of record does not show the obtaining a second measure of pressure subsequent to increasing the flow and the performing a second corrective action in response.
40 CFR 60.755 (a) (3)described obtaining a second measure of pressure subsequent to a determination that the pressure was not negative, and as 40CFR described correcting the pressure “within 15 calendar days of the first measurement” this suggests to one of ordinary skill in the art that the obtaining a second measure would be subsequent to increasing the flow rate (i.e. corrective action taken “within 5 calendar days”).
40 CFR also described the in response to determining that the second measure is not negative and if the first amount of time (“15 calendar days”) is greater than or equal to a threshold time performing a second corrective action .
One of ordinary skill in the art would have been motivated to apply the teachings of 40CFR to the Lawrence Landfill in order to comply with the federal regulations, Therefore it would have been obvious to one of ordinary skill in the art to have modified the operation at Lawrence Landfill to have included the subsequent to increasing the flow rate of landfill gas being extracted from the landfill and after a first amount of time has passed since the obtaining the first measure of pressure in the gas extraction system, obtaining a second measure of pressure in the gas extraction system; and in response to determining that the second measure of pressure in the gas extraction system is not negative and if the first amount of time is greater than or equal to a threshold amount of time, performing a second corrective action other than increasing the flow rate of the landfill gas being extracted from the landfill via the gas extraction system as called for in claim 31.
Regarding claim 32: 40 CFR describes the first amount of time as 15 days, which is greater than a threshold of 24 hours: the proposed modification would therefore meet the limitations of claim 32.
Regarding claim 34: D1 described the obtaining oxygen concentration and determining whether the concentration meets compliance criteria; and as the measuring oxygen concentration is described as ongoing or continuous, it would inherently be subsequent as claimed; and regarding claim 35, the same section of D1 describes obtaining temperature continuously (i.e. subsequently) and although D1 does not explicitly describe determining whether the temperature meets compliance criteria, the compliance is taught by 40CFR. Examiner finds that the CFR provides motivation to determine whether the temperature meets compliance criteria as claimed, in order to comply with regulations. Therefore modification of the prior use to have included determining whether the temperature meets compliance criteria would have been obvious to one of ordinary skill in the art.
Regarding claim 37: D1 at page 11 described “continuous” which is inherently at least once per month.
Regarding claim 39: D1 at page 11 described “ readings… below Loci's automated valve”
Regarding claim 40: D1 at page 11 described the controller taking “readings…pressure” which anticipates controlling a pressure sensor.
Claim(s) 23, 26 , 33, and 36 is/are rejected under 35 U.S.C. 103 as being unpatentable over public use and/or sale at Lawrence Landfill in view of 40 CFR as applied to claims 21 and 31 above, and further in view of public use and/or sale at Oklahoma City Landfill11
The proposed combination of activities at Lawrence Landfill and 40CFR as applied to claims 21 and 31 lacks the transmitting a notification as required by claims 23 and 33 and the alert as required by claims 26 and 36.
Applicant has admitted that at Oklahoma City Landfill an alert was generated by the system12 . Examiner finds that the “generated an alert” amounts to transmitting a notification as required by claim 23 and 33. One of ordinary skill in the art would have found it obvious to have further modified the activities at Lawrence Landfill to have included the transmitting a notification in order to alert the operator of the regulatory non-compliance. Similarly, with regards to claims 26 and 36: one of ordinary skill in the art would have found it obvious to have further modified the activities at Lawrence Landfill to have included the generating an alert in order to alert the operator of the regulatory non-compliance.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 21-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. Patent No. 11,883,864. Although the claims at issue are not identical, they are not patentably distinct from each other because each limitation of the instant claims is found in the patent claims. Claims 21, 24, 25, 26 , 27, 28, 29, 31, 34, 35, 36, 37, 38, and 39 correspond closely to patent claims 1, 2, 3, 4, 5, 7, 6, 8, 9, 10, 11, 12, 13, and 14 respectively. Claims 23 and 33—which require transmitting a notification—are anticipated by the claims “generating an alert” in patent claims 4 and 11. Claims 30 and 40 require controlling the pressure sensor which is anticipated by the measurement made by the at least one sensor of claim 1 and 8.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Janine M KRECK whose telephone number is (571)272-7042. The examiner can normally be reached telework: M-F 0600-1530 EST.
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.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nicole Coy can be reached at 5712725405. The 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.
/Janine M Kreck/Primary Examiner, Art Unit 3672
1 Pending U.S. applications that are being cited can be listed under the non-patent literature section or in a new section appropriately labeled. If applicant seeks consideration of documents other than the specification (including the claims) and drawings of an application, for example, Office actions, applicant must list such documents separately under the non-patent literature section or in a new section appropriately labeled. (Emphasis added)
2 Public use and or sale is supported by evidence from (a) the document “Automated Landfill Gas Collection Increases Uptime and Revenue for Landfill in Lawrence, KS” [hereinafter “D1”] which describes activities in 2017 and 2018, and (b) admissions in the reply dated 22 November 2022 in parent Application 17/152,252 [hereinafter “D9”]. Examiner maintains that activities at the Lawrence Landfill constitute prior art because the landfill was in public use and/or the landfill gas was sold.
3 40 CFR Parts 51, 52, and 60. US Code of Federal Regulations. 1996 March 12; 61(49):9905-44. https://www.govinfo.gov/content/pkg/FR-1996-03-12/pdf/96- 5529.pdf
4 D9 answer “c”: Yes because, prior to January 29, 2019, a system at the Lawrence landfill measured pressure in a gas extraction system.
5 D9 answer “e”: Yes because, prior to January 29, 2019, a system at the Lawrence landfill
increased a flow when measured pressure was not negative or less than some other
pressure
6 If a positive pressure exists, action shall be initiated to correct the exceedance within 5 calendar days .. If negative pressure cannot be achieved without excess air infiltration within 15 calendar days of the first measurement…
7 negative pressure cannot be achieved without excess air infiltration within 15 calendar days
8 the gas collection system shall be expanded to correct the exceedance within 120 days of the initial measurement
9 D1 at page 11, under Fine Tuning Algorithm: "fine tuning" of each collection well results in optimized CH₄ flow, while maintaining individual well gas composition requirements within balance gas (N₂) and O₂ thresholds. Loci's fine tuning automation is a continuous "process cycle" that optimizes individual well and overall gas collection. The Loci Controllers or Guardians are used to take individual collector readings (gas composition, flow, LFG temperature, ambient pressure, pressure above and below Loci's automated valve
1040CFR 60.753(c) Operate each interior wellhead in the collection system with a landfill gas temperature less than 55 °C and with either a nitrogen level less than 20 percent or an oxygen level less than 5 percent.
11 Activities admitted in D9 answers “g” and “h” to have been prior to 29 January 2019. These activities are prior art because the Oklahoma City Landfill was in public use and/or the gas was sold.
12 a system at the Oklahoma City landfill generated an alert in addition to increasing a flow of extracted landfill gas when measured pressure in a gas extraction system was not negative or less than some other pressure