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 .
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1, 2, 5, 6, and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Smagac taken together with WO 2015/052702 A1, and further in view of either Gosmann or Besel.
Smagac (Abstract; Figs. 1, 5, and 8; col. 2, lines 14-19, 25-67; col. 3, lines 1-5; col. 6, line 43 through col. 7, line 2; col. 7, lines 7-53, 59-61, 66-67; col. 8, lines 1-2, 48-54; col. 10, lines 37-67) discloses a foam generation device mounted on a portable frame, i.e., a backpack (application claim 6), that is completely independent, in service, of external supplies, the device including a foaming liquid reservoir (103), a compressed gas cylinder (101) that would inherently include a pressure gauge (application claim 2), as required for safety of the user, a first pipe (109) out of the reservoir and passing through a gas driven pump (104), a second pipe (106) out of the compressed gas cylinder and passing through an expansion valve (119) to join the first pipe at a junction downstream of the pump, and a third pipe (111) for transporting a mixture of the foaming liquid and the compressed gas between the junction and the foam ejection end (114), the second pipe (106) having a bifurcation (116) leading to a port for starting the pneumatic pump, with a mixer (118) for mixing the joined compressed gas and foaming liquid, the mixer having a cylindrical wall open at the two axial ends (see Fig. 5), the cylindrical wall forming a cage for confining at least one solid body constructed of a rigid material (application claim 1) to cause turbulent agitation of the foaming liquid and compressed gas mixture to produce a foam material that will last a long time and adheres to vertical surfaces exceptionally well. Smagac further discloses an agitation means retainer bar (214 in Fig. 5) that permits foam to flow out of the chamber while retaining the agitation means (202) from moving from the confines of the mixer chamber. Smagac fails to disclose that the solid body within the mixer consists of 1 to 40 balls being 2-20 mm in diameter, in a cage of 10-400 mm length and 10-100 mm diameter.
WO 2015/052702 A1 (Abstract; Figs. 1 and 7; page 12, lines 22-25; page 13, lines 12, 18-21; page 14, lines 5-10; page 17, lines 3-5; claims 1, 4, 9, and 12) disclose a foam forming device, wherein spherical agitation elements (balls 116, 702) are provided within a mixing chamber (108, 706) that has gates (112) at each end of the cylindrical mixing chamber to contain the ball shaped agitation elements therein (application claim 5). The reference discloses that the ball shaped agitation elements may be 1-5 mm in diameter, and may be housed within a mixing chamber that is 10 or 15 mm in diameter, or larger, to allow for the two or more balls (two balls 116 specifically shown in Fig. 1) to freely move within the mixing chamber (see 116, 118 in Fig. 1; page 12, lines 4-7, “at least some agitation elements (e.g., all of the elements) have independent movement in at least one or more of six degrees of freedom (shown as arrows 118), able to move in one or more directions: up, down, left, right, forward, reverse, pitch, roll, and/or yaw.”) to cause aggressive agitation of the foaming liquid and gas in the mixing chamber to form a foam of desired qualities that will last a long time. WO ‘702 furthermore, specifically states at page 12, lines 22-25, “Spheres – may allow for higher overall flow in the inlet-to-outlet direction during foam formation, as the liquid flows over the surface. Spheres may be more easily adjustable to obtain the desired foam parameters, for example, changing the size of the spheres, changing the number of spheres.” While the reference is silent as to the length of the mixing chamber, it is noted that the figures (Figs. 1 and 7) illustrate a cylindrical mixing chamber that is slightly longer than the diameter thereof, and therefore, such would at least suggest, given the specifically disclosed ball diameter and chamber diameter, which each fall within applicant’s claimed ranges, that the chamber length would also fall within the wide range as set forth by instant claim 1. In any event, it would have been obvious for an artisan at the time of the filing of the application, to arrive at an optimal length range, which would likely fall within applicant’s claimed range, by way of routine experimentation with the device, to provide a foam of desired qualities. It would have also been obvious for an artisan at the time of the filing of the application, to modify the mixing chamber of Smagac, by substituting two or more freely movable ball shaped agitation means (Fig. 1 of WO ‘702 specifically illustrates two freely movable agitation spheres (balls 116)) for the helical static mixing means thereof, in view of the teachings by WO ‘702, since such would allow one having ordinary skill in the art to choose a ball shaped agitation means having a diameter specifically designed to produce a foam of desired properties (see WO ‘702 page 12, lines 23-25, and page 13, lines 12-15).
With regard to independent claim 8, which differs from independent claim 1 by requiring that the balls do not form superposed layers in the cage and that at least one of the balls in the cage has a diameter of 2 to 10 times less than a diameter of the cage, applicant’s attention is drawn to the disclosure of Figure 7, the abstract of WO ‘702, as well as page 23, lines 20-21, wherein the disclosure thereof clearly describes a mixing cage wherein the balls therein are of a diameter of 2 to 10 times less than a diameter of the cage. Further, wherein the abstract clearly discloses that the cage may have as few as one or two balls therein (lines 6-10 of the abstract of WO ‘702, which state, “at least one agitation element 702”), clearly, two balls (agitation elements 116 or 702), cannot form superposed layers in the cage (108 or 706). As such, independent claim 8 is considered to recite an apparatus that would have been obvious to an artisan at the time of the filing of the application, in view of Smagac taken together with WO ‘702 for the same reasons as set forth with respect to independent claim 1 above.
With regard to the language added previously to independent claim 1, providing for first and second planar gates defining a chamber of the mixer, wherein the gates allow for passage of compressed gas and foaming liquid into the chamber and to permit foam to flow out of the chamber, previously cited patent documents to Gosmann and Besel each alternatively disclose the well known use of planar gates in the form of apertured retainer screens (C, C’ in Gosmann; 14R in Fig. 2B of Besel) to define a foam mixing chamber wherein the screens allow for passage of compressed gas and foaming liquid into the chamber and to permit foam to flow out of the chamber. It would have been obvious for an artisan at the time of the filing of the application, to provide the modified foam mixing chamber, as suggested by Smagac taken together with WO ‘702, with foam liquid agitation element retention means, in the form of apertured planar gates at each end of the mixer chamber, in view of either Gosmann or Besel, since such would both retain the agitation elements (1 to 40 balls) within the mixer and allow for free flow of the gas and foaming liquid to the mixer and foam from the mixer to be able to be dispensed by the user at will.
With regard to the newly added language in independent claims 1 and 8, as added by the amendment filed on July 8, 2026, i.e., that the device is “configured to decontaminate or depollute a surface of a building”, and “wherein the balls are each free to move throughout the entire cage and do not come to rest in at least one stationary bed in the chamber or cage”, the reference combination as applied in this paragraph is considered to at least render obvious the device as defined by independent claims 1 and 8, including the newly added language. Specifically, Smagac is clearly configured to spray a long lasting generated foam onto building structures, including inclined or vertical surfaces thereof, to which the foam adheres exceptionally well (see col. 10, lines 65-67 of Smagac). Further, WO ‘702 clearly discloses freely movable balls (116) within a cage or chamber (108) to produce a foam of desired qualities (see Fig. 1; page 12, lines 3-7, and 22-25 of WO ‘702). It is noted that the instant claims do not recite any specific structure that would contribute to the decontamination or depollution of a building surface, as such decontamination or depollution would more likely depend upon an unclaimed material composition of the foam generated by the claimed device.
Claims 3 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over the reference combination as applied to claims 1, 2, 5, 6, and 8 above, and further in view of Schneider.
The reference combination as applied to claims 1, 2, 5, 6, and 8 above, substantially discloses applicant’s invention as recited by instant claims 3 and 4, except for pipe for transporting the mixture comprising a flexible nozzle and a single control lever for ejecting the foam. While these elements almost certainly exist within the scope of the Smagac reference device, since the reference is silent thereto, Schneider (Figs. 1 and 2; col. 6, lines 20-30) clearly discloses a flexible hose including a flexible nozzle on the end thereof, with a control lever (26) for dispensing the foam from the end of the nozzle of the device. It would have been obvious for an artisan at the time of the filing of the application, to provide the flexible foam dispensing hose and nozzle of the primary reference combination, with a single control lever, in view of Schneider, since such would allow a user to easily begin and stop dispensing of the foam from the device at the time desired.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over the reference combination as applied to claims 1, 2, 5, 6, and 8 above, and further in view of applicant’s admission of prior art.
The reference combination as applied to claims 1, 2, 5, 6, and 8 above substantially discloses applicant’s invention as recited by newly added dependent claim 10, except for the specific recitation that the foam comprises a gelling agent.
Initially, it is noted that independent claim 1 and dependent claim 10, which depends directly upon claim 1, are each directed to a foam generating device, which is not limited by the materials worked on by the device, or by the fact that applicant wishes to add a gelling agent to the materials worked on by the device. In any event, applicant admits, at page 1, lines 10-14 of the instant specification, that adding gelling agents to a foam forming composition was well known within the foam generating art at the time of the filing of the application, especially where it is desired to generate foams that are less likely to run off of very inclined or vertical surfaces. Applicant cited FR 2841802 A1 (see page 1 of the instant specification) as providing an example of such well known use of gelling agents within foam forming compositions. Further, it is noted that Smagac is interested in forming foams that last a long time and adhere well to vertical surfaces (see col. 10, lines 65-67 of Smagac). As such, it would have been obvious for an artisan at the time of the filing of the application, to modify the foam forming composition used by the reference combination, as applied to claims 1, 2, 5, 6, and 8 above, by adding a gelling agent, in view of the admitted well known prior art teachings, as set forth on page 1, lines 10-14 of the instant application.
Response to Arguments
Applicant's arguments filed July 8, 2026 have been fully considered but they are not persuasive.
Specifically, applicant wishes to disqualify the WO ‘702 reference as non-analogous art. In order for a reference to be proper for use in an obviousness rejection under 35 U.S.C. 103 , the reference must be analogous art to the claimed invention. In re Bigio, 381 F.3d 1320, 1325, 72 USPQ2d 1209, 1212 (Fed. Cir. 2004). A reference is analogous art to the claimed invention if: (1) the reference is from the same field of endeavor as the claimed invention (even if it addresses a different problem); or (2) the reference is reasonably pertinent to the problem faced by the inventor (even if it is not in the same field of endeavor as the claimed invention). Note that "same field of endeavor" and "reasonably pertinent" are two separate tests for establishing analogous art; it is not necessary for a reference to fulfill both tests in order to qualify as analogous art. See Bigio, 381 F.3d at 1325, 72 USPQ2d at 1212. See MPEP 2141/01(a)(I.).
In this case, WO ‘702 is analogous art because the reference is pertinent to the problem faced by the inventor, i.e., how to improve the formation of foam having the desired foam parameters. Clearly, WO ‘702 addresses the same issues that are crucial to applicant’s invention, that being the enhancement of foam formation having the desired foam product characteristics. See WO ‘702 (Fig. 1; page 12, lines 4-7, 22-25), wherein the reference clearly addresses forming foam of desired parameters by the advantageous use of freely movable balls within a mixing chamber. Therefore, WO ‘702 is analogous art and the use of the reference within a combination of references drawn to forming a sprayable foam is proper under 35 U.S.C. 103.
With regard to applicant’s arguments directed to Figure 1 of the WO ‘702 reference (on page 6 of 7 in the Remarks/Arguments Section of the amendment filed on July 8, 2026, and the statement that “WO ‘702 shows the balls coming to rest in stationary beds”, such is not understood, since only two agitation balls (116) are shown in Figure 1 of the reference, and those two balls are shown as having omnidirectional movement (by reference numeral 118) within the chamber (108) to form foam bubbles (102). Perhaps applicant is misinterpreting the plethora of foam bubbles (102) in the figure as the agitation elements, which may be leading applicant to believe that the elements (102) are coming to rest in stationary beds. In any event, the two omnidirectional agitation balls (116 in Fig. 1), which are designed to provide a foam of desired parameters (see page 12, lines 22-25 of WO ‘702), clearly establish a mixing chamber, wherein the two omnidirectional agitation balls do not come to rest in at least one stationary bed in the mixing chamber.
WO ‘702 is analogous art and the rejection of the instant claims must stand.
Conclusion
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHARLES S BUSHEY whose telephone number is (571)272-1153. The examiner can normally be reached M-Th 6:30-5:00.
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/C.S.B/9-12-26
/CHARLES S BUSHEY/ Primary Examiner, Art Unit 1776
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