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 .
Response to Amendment
Claim amendments filed 08 September 2026 are acknowledged. Claims 1-16 and 18-19 are pending with claim 17 being cancelled.
Amendments to claim 8 are sufficient to overcome the previously presented 35 U.S.C. 112(b) rejection.
Response to Arguments
Applicant’s arguments, see pages 6-8 of the applicant’s response, filed 08 September 2026, with respect to the rejections of claims 1 and 9 under 35 U.S.C. 102(a)(1) have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, new grounds of rejection are made in view of 35 U.S.C. 103 with respect to Frische.
In alignment with the applicant’s arguments regarding independent claims 1 and 9, the examiner concedes that primary reference Frische does not explicitly teach the limitation “an impaction target placed in the trajectory of the stream of gas passing the atomizing unit at a distance from the outlet of the atomizing unit that is 1-4 times the width of the outlet”. However, the annotated Figure 2D (shown below in the rejections of claims 1 and 9) sufficiently shows an approximate ratio of the width of the nozzle and the distance to the wall being within the range required by the claims. It has been established that when the only difference between the prior art and the claims is a recitation of relative dimension and that the prior art device does not perform differently than the claimed device, the claimed device is not patentably distinct from the prior art device. Therefore, it would have been obvious to one of ordinary skill in the art to change the ratio of the width of the nozzle and the distance to the wall taught by Frische to achieve the aerosol generation through a change in size (See MPEP 2144.04 IV (A)).
Following the above logic, the 35 U.S.C. 102(a)(1) rejections of claims 2, 5, 7-8, 10-11, and 13-15 are withdrawn. However, upon further consideration, new grounds of rejection are made in view of 35 U.S.C. 103 with respect to Frische.
Applicant's arguments, see pages 8-10 of the applicant’s response, filed 08 September 2026, with respect to the rejection of claim 6 has been fully considered but they are not persuasive.
In response to applicant's argument that the submerged nebulizing unit taught by Shane would not be combined with the air assisted nozzles taught by Frische, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). Applicant asserts that because Frische utilizes air assisted nozzles to produce an aerosol mist that one of ordinary skill in the art would not be able to combine the submerged feature of Shane without drastically changing the operation of Frische. However, the submersion of air assisted nozzles into the liquid storage tank would essentially create a bubbler to produce an aerosol mist. Bubblers are features known in the art to create aerosol droplets (mist generator may be provided with a bubbler to change the sterilizing liquid to a mist state, paragraph [0055], Lim (US 20190015537 A1)). Therefore, a combination of Frische and Shane could and would be combined by one of ordinary skill in the art to create a feature that is known in the art. Following the above logic, the 35 U.S.C. 103 rejection of claims 6, 12, and 16 with respect to Frische in view of Shane is maintained.
Similarly, the 35 U.S.C. rejections of claims 3-4 with respect to Frische in view of Feuchter are maintained.
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.
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.
Claims 1-2, 5, 7-11, and 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over Frische (US 20170304475 A1).
Regarding claim 1, Frische teaches a device for the generation and discharge of an at least partially evaporated aerosol mist from a sterilizing solution (aerosol device generates submicron liquid droplets, abstract, and liquid includes cleaning agents or disinfectants, paragraph [0077]), and the device being formed of a container comprising: a reservoir for holding the sterilizing solution (liquid container, abstract), a gas inlet for carrying a steam of gas into the container (connecting a source of pressurized gas to the chamber, abstract), an atomizing unit for forming an aerosol mist from the sterilizing solution (aerosol device forms an aerosol from a liquid and a gas, paragraph [0076]), an optional feed system for supplying sterilizing solution to the atomizing unit (liquid container that supplies the aerosol device with the liquid to be aerosolized, paragraph [0082]), and a mist outlet for leading a formed vapor-containing mist out of the container (bowl outlet opening through which aerosol generated within the bowl passes out of the bowl, paragraph [0093]), wherein: the device further comprises an inertial separation unit (bowl provides a stages filter system, paragraph [0095]) arranged to cause collision of a fraction of the droplets of the aerosol against a surface of the container (larger droplets impact the bowl wall, paragraph [0095]), thus separating the collided droplets from the aerosol (only the smaller droplets will avoid hitting the wall and remain in the air flow, paragraph [0095]). While Frische does not explicitly teach the inertial separation unit being in the form of an impaction target, placed in the trajectory of the stream of gas passing the atomizing unit at a distance from the outlet of the atomizing unit that is 1-4 times the width of the outlet (referring to figure 2D of Frische seen below, Frische shows that distance between the nozzle and bowl side wall 1-4 times that of width of the outlet of the nozzle).
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It has been established that when the only difference between the prior art and the claims is a recitation of relative dimension and that the prior art device does not perform differently than the claimed device, the claimed device is not patentably distinct from the prior art device. Therefore, it would have been obvious to one of ordinary skill in the art to change the ratio of the width of the nozzle and the distance to the wall taught by Frische to achieve the aerosol generation through a change in size (See MPEP 2144.04 IV (A)).
Regarding claim 2, Frische teaches wherein the atomizing unit comprises one or more of the following: one or more misting nozzles (aerosol system includes a nozzle, paragraph [0013]), arranged wither to mix the sterilizing solution with a created high velocity jet of the stream of gas or arranged to receive the sterilizing solution that is pumped through the nozzle at high pressure (liquid container fluidly coupled to the nozzle and a source of pressurized gas connected to the nozzle, abstract) , one or more vibrating orifices, or one or more ultrasonic misters.
Regarding claim 5, Frische teaches wherein the device comprises a feed system for supplying sterilizing solution to the atomizing unit is in the form of: one or more vacuum ejectors, arranged to transfer sterilizing solution from the reservoir via a liquid channel to the atomizing unit by means of Venturi effect, one or more liquid pumps, arranged to pump the sterilizing solution from the reservoir via a liquid channel to the atomizing unit (aerosol system includes a pump configured to pump liquid from the liquid container to the nozzle, paragraph [0013]), or a liquid channel arranged to feed the sterilizing solution from the reservoir, placed at an elevated position to the atomizing unit by gravitational forces.
Regarding claim 7, Frische teach wherein the device is made of durable material selected from the group consisting of plastic, glass, and metal (outer box may be plastic, paragraph [0083]).
Regarding claim 8, Frische teach wherein the gas inlet is in fluid communication with a gas distributor (source of pressurized gas may be a compressor, paragraph [0023]).
Regarding claim 9. Frische teaches a method for generation and discharge of an at least partially evaporated aerosol mist from a sterilizing solution at ambient temperature (treating a room at initial ambient temperature, paragraph [0010], and aerosol device generates submicron liquid droplets, abstract, and liquid includes cleaning agents or disinfectants, paragraph [0077]) comprising the steps of: carrying a stream of gas into a container holding a sterilizing solution, leading the stream of gas through the container, to an atomizing unit (connecting a source of pressurized gas to the chamber of the nozzle, abstract), providing sterilizing solution at the atomizing unit (liquid container fluidly connected to the nozzle, abstract), atomizing the sterilizing solution in the atomizing unit, thus forming an aerosol mist containing at least partially evaporated droplets (aerosol device forms an aerosol from a liquid and a gas, paragraph [0076]), and leading the formed aerosol mist with the gas stream through a mist outlet out of the container (bowl outlet opening through which aerosol generated within the bowl passes out of the bowl, paragraph [0093]), and separating a fraction of droplets of sterilizing solution from the gas stream via collision against an impaction target (bowl provides a stages filter system, larger droplets impact the bowl wall, and only the smaller droplets will avoid hitting the wall and remain in the air flow, paragraph [0095]). While Frische does not explicitly teach the impaction target is placed in the trajectory of the stream of gas passing the atomizing unit at a distance from the outlet of the atomizing unit that is 1-4 times the width of the outlet, thus separating the collided droplets from the gas stream carried to the mist outlet (referring to figure 2D of Frische seen below, Frische shows that distance between the nozzle and bowl side wall 1-4 times that of width of the outlet of the nozzle).
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It has been established that when the only difference between the prior art and the claims is a recitation of relative dimension and that the prior art device does not perform differently than the claimed device, the claimed device is not patentably distinct from the prior art device. Therefore, it would have been obvious to one of ordinary skill in the art to change the ratio of the width of the nozzle and the distance to the wall taught by Frische to achieve the aerosol generation through a change in size (See MPEP 2144.04 IV (A)).
Regarding claim 10, Frische teaches wherein the aerosol mist is formed by atomizing the liquid solution: by driving the liquid solution through one or more misting nozzles (aerosol system includes a nozzle, paragraph [0013]), where it is mixed with a created high velocity jet of the stream of gas, by pumping the liquid solution at high pressure through one or more misting nozzles (liquid container fluidly coupled to the nozzle and a source of pressurized gas connected to the nozzle, abstract, and aerosol system includes a pump to pump liquid to the nozzle, paragraph [0013), by driving the liquid solution through one or more vibrating orifices, or by using a separate ultrasonic mister, or by using two or more of these alternatives simultaneously.
Regarding claim 11, Frische teaches wherein the gas is nitrogen, oxygen, carbon dioxide, argon, or air (pressurized gas source is an adjustable air compressor, paragraph [0081]).
Regarding claim 13, Frische teaches wherein the sterilizing solution is fed to the atomizing unit in a separate feeding step by: using one or more vacuum ejectors, which transfer sterilizing solution by Venturi effect, pumping the sterilizing solution using one or more liquid pumps (aerosol system includes a pump configured to pump liquid from the liquid container to the nozzle, paragraph [0013]), or using gravitational forces to feed the sterilizing solution.
Regarding claim 14, Frische teaches wherein a fraction of droplets of sterilizing solution is separated from the gas stream by colliding the fraction of droplets against either a surface of the container of a surface of the impaction target, the collided droplets being the largest droplets of the solution, thus causing either the atomization of these collided droplets of their return to the solution in the container (larger droplets impact the bowl wall and flow down to the reservoir and the smaller droplets remain in the air flow, paragraph [0095]).
Regarding claim 15, Frische teaches wherein the diameter of the droplets in the formed aerosol mist is limited to a droplet diameter of less than 10µm via a separation of a fraction of the droplets including the largest droplets of the mist (liquid droplets have a maximum dimension in a range between 0.1 µm and 0.7 µm, paragraph [0007]).
Claims 3-4 and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Frische in view of Feuchter (US 20230201403 A1).
Regarding claim 3, Frische teaches all aspects of the current invention except wherein the atomizing unit is a misting nozzle having an outlet with a width of 0.01-10mm. However, Feuchter teaches wherein the atomizing unit is a misting nozzle having an outlet with a width of 0.01-10mm (outlet my range in diameter from about 1/8 inch to 1 inch [3.175mm to 25.4 mm], paragraph [0028]).
Frische and Feuchter are considered analogous to the current invention because all are in the field of aerosol generation devices. While Feuchter does not explicitly teach a nozzle width of 0.01-10mm, a case of prima facie case of obviousness exists when a range taught by prior art overlaps with the claimed range in the current invention (see MPEP 2144.05 I). Additionally, it would have been obvious to combine the aerosol generation device taught by Frische with the range of nozzle outlet widths taught by Feuchter because Feuchter teaches such nozzle sizes increases the efficiency of distribution of the decontamination agent due to the high volume of air exchange within the target volume (paragraph [0037]).
Regarding claim 4, Frische teaches all aspects of the current invention except wherein the impaction target is placed at a distance from the outlet from of the atomizing unit that is 1.5-2.5 times the width of the outlet. However, Feuchter teaches wherein the impaction target is placed at a distance from the outlet from of the atomizing unit that is 1.5-2.5 times the width of the outlet (gap established between the deflector surface and nozzle outlet and gap may range from about 1/10 inch to about ¾ inches [2.54mm-19.05mm], paragraph [0029], this establishes a ratio between the gap distance and the width of the nozzle outlet is 0.1-6).
Frische and Feuchter are considered analogous to the current invention as discussed above. While Feuchter does not explicitly teach a ratio of 1.5 to 2.5, a case of prima facie case of obviousness exists when a range taught by prior art overlaps with the claimed range in the current invention (see MPEP 2144.05 I). Additionally, it would have been obvious to combine the aerosol generation device taught by Frische with the ratio between the nozzle width and the gap distance taught by Feuchter because Feuchter teaches such distances increases the efficiency of distribution of the decontamination agent due to the high volume of air exchange within the target volume (paragraph [0037]).
Regarding claim 18, Frische teaches all aspects of the current invention except wherein the impaction target is separate from walls of the container. However, Feuchter teaches wherein the impaction target is separate from walls of the container (Figure 1 deflector surface “22” help spaced from outlet “16” by support “26”).
Frische and Feuchter are considered analogous to the current invention as discussed above. Therefore, it would have been obvious to one of ordinary skill in the art to combine the aerosol generation device taught by Frische with the impaction target surface taught by Feuchter because Feuchter teaches a separate impaction surface allows for increased control of the angle and dispersion pattern of the liquid-gas stream (paragraph [0036]).
Regarding claim 19, Frische teaches all aspects of the current invention except wherein the impaction target is separate from walls of the container. However, Feuchter teaches wherein the impaction target is separate from walls of the container (Figure 1 deflector surface “22” help spaced from outlet “16” by support “26”).
Frische and Feuchter are considered analogous to the current invention as discussed above. Therefore, it would have been obvious to one of ordinary skill in the art to combine the aerosol generation device taught by Frische with the impaction target surface taught by Feuchter because Feuchter teaches a separate impaction surface allows for increased control of the angle and dispersion pattern of the liquid-gas stream (paragraph [0036]).
Claims 6, 12, and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Frische in view of Shane (US 20190201565 A1).
Regarding claim 6, Frische teaches all aspects of the current invention except wherein the device further comprises an atomizing unit submerged into the reservoir containing the sterilizing solution, whereby no separate feed system is needed. However, Shane teaches wherein the device further comprises an atomizing unit submerged into the reservoir containing the sterilizing solution, whereby no separate feed system is needed (cleaning fluid passively lies in the bottom chamber portion and submerges the distal end of the ultrasonic cavitator, paragraph [0007]).
Frische and Shane are considered analogous to the current invention because all are in the field of disinfecting aerosol generators. Therefore, it would have been obvious to one of ordinary skill in the art to combine the aerosol generation device taught by Frische with the submerged atomizing unit taught by Shane because Shane teaches that the use of such nebulizing devices allows for control of the dosage emitted by a specific nebulizer (paragraph [0037]).
Regarding claim 12, Frische teaches all aspects of the current invention except wherein the gas further comprises ozone, ethylene oxide, ammonia, chlorine, chlorine dioxide, or nitrogen dioxide as an additive. However, Shane teaches wherein the gas further comprises ozone, ethylene oxide, ammonia, chlorine, chlorine dioxide, or nitrogen dioxide as an additive (sterilant gas comprises chlorine dioxide, ethylene oxide, ozone, or nitrogen dioxide, paragraph [0014]).
Frische and Shane are considered analogous to the current invention as discussed above. Therefore, it would have been obvious to one of ordinary skill in the art to combine the aerosol generation device taught by Frische with the use of sterilant gases as taught by Shane because Shane teaches the use of such gases will provide at least a 6-log-10 reduction of bacteria and viruses (paragraph [0014]).
Regarding claim 16, Frische teaches all aspects of the current invention wherein the sterilizing solution is a solution containing hydrogen peroxide in water in a concentration of 1-100 vol%, the method thus forming hydrogen peroxide vapor. However, Shane teaches wherein the sterilizing solution is a solution containing hydrogen peroxide in water in a concentration of 1-100 vol%, the method thus forming hydrogen peroxide vapor (cleaning fluid comprises hydrogen peroxide at a concentration of about 7.8%, paragraph [0014], and mist is generated from cleaning fluid, paragraph [0013]).
Frische and Shane are considered analogous to the current invention as discussed above. Therefore, it would have been obvious to one of ordinary skill in the art to combine the aerosol generation method taught by Frische with the use of hydrogen peroxide taught by Shane because Shane teaches the hydrogen peroxide will produce active species that will react with the cell walls of microbiological organisms to destroy the cells (paragraph [0048])
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KAYLA ROSE SARANTAKOS whose telephone number is (703)756-5524. The examiner can normally be reached Mon-Fri 7:00-4:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Marcheschi can be reached at (571) 272-1374. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/K.R.S./Examiner, Art Unit 1799
/DONALD R SPAMER/Primary Examiner, Art Unit 1799
