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/Restrictions
Applicant's election with traverse of Group I and Species A in the reply filed on 3/10/2026 is acknowledged. The traversal is on the ground(s) that Da Vila Martin does not address the claimed swirl-flow capture mechanism from the inner surface of the holed/porous wall, nor the disclosed purpose of the increasing inner volume to maintain flow conditions. This is not found persuasive because the purpose of an invention is not part of the claim limitations or special technical features, and the flow of the fluid is not a positive structural limitation of apparatus claim 1, since it goes to the material or article worked upon and intended use that may change based on the conditions and material. Furthermore, the limitations of claim 1 are not a special technical feature as they do not make a contribution over the prior art in view of the rejection to claim 1 below.
The requirement is still deemed proper and is therefore made FINAL.
Claims 10-12 and 14 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 3/10/2026.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the outer structure as set forth in claim 1; the inner structure as set forth in claims 1 and 8; the holes as set forth in claims 1 and 9; the two or more of the inner structures as set forth in claim 3 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 102
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 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) 1-3 and 5-8 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Johannes (U.S. Patent No. 4,053,142).
Regarding claim 1, Johannes discloses an apparatus capable for enhancing dissolution of gas in liquid (abstract; figures 1 and 2), the apparatus comprising:
an outer structure (figures 1 and 2, outer wall of outer chamber 14) and at least one inner structure inside the outer structure (figures 1 and 2, annular mixing chamber 10);
at least one inlet capable for injecting gas to a gas space between the outer structure and inner structure (figures 1 and 2, first inlet tube 12 injects first fluid that is capable of being a gas into space of chamber 14);
a wall of the inner structure which comprises holes, and the gas is arranged to flow through the holes into the inner structure (figures 1 and 2, wall with ports 16; column 2, lines 38-46);
liquid inlets for feeding the liquid into the inner structure, the liquid inlets arranged to a desired angle capable to provide a swirl liquid flow inside the inner structure and the swirl flow of the liquid is arranged to capture gas bubbles of the gas from an inner surface of the wall to form a liquid-gas mixture (figures 1 and 2, second inlet port 18 with ports 22; column 2, lines 46-68); and
at least one outlet for discharging the liquid-gas mixture out from the apparatus (figures 1 and 2, outlet tube 26), wherein
the inner structure is designed such that volume of the space inside the inner structure increases in a direction of the liquid flow (figure 2, chamber 10 volume is small where numeral 10 is pointing because inlet 18 takes up most of the volume, and chamber 10 volume increases at entrance to outlet 26 where inlet 18 is not located).
Regarding the limitations in the preamble and the limitations directed to the material being a gas and liquid and the limitations directed to a manner of operating disclosed apparatus, including how the liquid flows, it is noted that neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. Further, it has been held that process limitations do not have patentable weight in an apparatus claim. See Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969) that states “Expressions relating the apparatus to contents thereof and to an intended operation are of no significance in determining patentability of the apparatus claim.” Statements in the preamble reciting the purpose or intended use of the claimed invention which do not result in a structural difference (or, in the case of process claims, manipulative difference) between the claimed invention and the prior art do not limit the claim and do not distinguish over the prior art apparatus (or process). See, e.g., In re Otto, 312 F.2d 937, 938, 136 USPQ 458, 459 (CCPA 1963); In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA 1962). If a prior art structure is capable of performing the intended use as recited in the preamble, then it meets the claim. See, e.g., In re Schreiber, 128 F.3d 1473, 1477, 44 USPQ2d 1429, 1431 (Fed. Cir. 1997) and cases cited therein, as it has been held that the recitation of a new intended use for an old product does not make a claim to that old product patentable. In re Schreiber, 44 USPQ2d 1429 (Fed. Cir. 1997). See also MPEP § 2111.02 and § 2112 - § 2112.02. Johannes discloses all the structural limitations of the claims and is directed to mixing two fluids, while the fluids are not specified to be a liquid and a gas, both a gas and a liquid are considered fluids, and therefore, the structure of Johannes is capable to perform as recited in the functional limitations.
Regarding claim 2, Johannes discloses wherein the inner structure comprises a conical inner shaft which is tapered toward the outlet (figure 2, inlet port 18 has a conical end that is angled/tapered toward outlet 26).
Regarding claim 3, Johannes discloses wherein the apparatus comprises two or more of the inner structures inside the outer surface (figure 2, inlet port 18 is one inner structure and chamber 10 with outer wall, not labeled, is second inner structure).
Regarding claim 5, Johannes discloses wherein the liquid inlets are arranged to a 35-55 degree angle capable to provide the swirl liquid flow inside the inner structure (figure 1, ports 22 have an angle of 35-55 degrees; column 2, lines 50-53). It is noted that no reference of measurement has been set forth for how the angle is measured.
Regarding claim 6, Johannes discloses wherein the liquid inlets are arranged to feed the liquid via the liquid inlets for providing the swirl flow and for contacting with the gas near the inner surface of the wall of the inner structure (figures 1 and 2, ports 22; column 2, lines 46-68). It is noted that this limitation is directed to an intended use and functional method of the material which does not further limit an apparatus claim, and the structural limitations of Johannes is capable to perform as recited (figures 1 and 2, ports 22; column 2, lines 46-68).
Regarding claim 7, Johannes discloses wherein the liquid inlets are arranged to feed the liquid via the liquid inlets for moving the liquid flow along the inner surface of the wall by a centrifugal force (figures 1 and 2, ports 22; column 2, lines 46-68). It is noted that this limitation is directed to an intended use and functional method of the material which does not further limit an apparatus claim, and the structural limitations of Johannes is capable to perform as recited (figures 1 and 2, ports 22; column 2, lines 46-68).
Regarding claim 8, Johannes discloses wherein the wall of the inner structure is one or more of a porous or a sinter structure (figures 1 and 2, chamber 10 walls have ports 16 and 22, making it a porous or sinter structure).
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over White (U.S. Patent No. 3,118,958).
Regarding claim 9, Johannes discloses all the limitations as set forth above; however, the reference does not explicitly disclose the size of the holes in the wall of the inner structure to be 1-100 μm.
White teaches another apparatus for feeding and mixing two fluids (figure 1; column 1, lines 10-20). White teaches disclose the size of the holes in the wall of the inner structure to be 1-100 μm (figure 1, wall 54; column 1, lines 21-28; columns 4-5, lines 70-5).
Since the instant specification is silent to unexpected results, it would have been obvious to one of ordinary skill in the art before the time of filing to change the size of the holes in the wall, since such a modification would have involved a mere change in the size (or dimension) of a component. A change in size (dimension) is generally recognized as being within the level of ordinary skill in the art. In re Rose, 220 F.2d 459, 105 USPQ 237 (CCPA 1955). Where the only difference between the prior art and the claims is a recitation of relative dimensions of the claimed device, and the device having the claimed dimensions would not perform differently than the prior art device, the claimed device is not patentably distinct from the prior art device, Gardner v. TEC Systems, Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). It is well known in the art that the extremely small holes will produce a finer and more homogenous mixture, as taught by While column 1, lines 21-28) and that many design parameters are taken into consideration when determining the size of the holes in the wall, and one of ordinary skill in the art before the time of filing would have selected a size of hole suitable for the type of material and conditions of the system.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH INSLER whose telephone number is (571)270-0492. The examiner can normally be reached Monday-Friday 9:00am-5:00pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Claire X Wang can be reached at 571-270-1051. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ELIZABETH INSLER/Primary Examiner, Art Unit 1774
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