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
The information disclosure statement (IDS) submitted on December 20, 2023 has been considered by the examiner.
Specification
The incorporation of essential material in the specification by reference to an unpublished U.S. application, foreign application or patent, or to a publication is improper. The preliminary amendment received December 20, 2023 incorporates by reference: International Application No. PCT/EP2022/066730 and European Patent Application No. 21181310.0. Paragraph [0043] of the instant published application, USPgPub 2024/0285880, incorporates the following publication: “Malayeri et al., “Fluence (UV Dose) Required to Achieve Incremental Log Inactivation of Bacteria, Protozoa, Viruses and Algae”, International Ultraviolet Association Inc News 18(3):4-6 and supplemental tables, 2016”. Applicant is required to amend the disclosure to include the material incorporated by reference, if the material is relied upon to overcome any objection, rejection, or other requirement imposed by the Office. The amendment must be accompanied by a statement executed by the applicant, or a practitioner representing the applicant, stating that the material being inserted is the material previously incorporated by reference and that the amendment contains no new matter. 37 CFR 1.57(g).
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Objections
Claim 1 is objected to because of the following informalities: Article modifiers, such as “a”, are missing before nouns. For example, “a” should be recited in line 3 of claim 1 between “mode” and “first” and “to” (the last word in line 3) and “first” (first word in line 4). Article modifiers are also missing in claims 7, 11, and 15, objected to on the same grounds. Appropriate correction is required where necessary.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 11 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 11 recites the arrangement of the system of claim 1 comprising: an indoor space (recited in line 2 of claim 1); and “configured to (a) subject in the treatment mode first air comprising the airborne pathogen to first radiation to attenuate the airborne pathogen to provide second air with the attenuated airborne pathogen, and to (b) introduce the second air [with the attenuated airborne pathogen] in the indoor space”, all recited in lines 3-5 of claim 1 except for the bracketed terms, “[with the attenuated airborne pathogen]”. However, since the second air is introduced to the first air containing the attenuated airborne pathogen in both claims, the second air of claim 11 comprises the first air containing the attenuated airborne pathogen, recited in claim 1. Though the Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
Claims 1-15 are 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.
In lines 6-7 of claim 1, it states: “wherein a spectral power distribution of the first radiation is controllable in at least part of a wavelength range of 100-380 nm”. It cannot be determined what is intended by “at least part of a wavelength range of 100-380 nm”. Is the “at least part” of the range intended to be broader, narrower, or overlapping the 100-380 nm range? This same issue is presented in claim 10 and lines 5-6 of claim 3 with the language, “such that in a part of the wavelength range of 100-380 nm”. This rejection affects all dependent claims.
Claim 1 is rejected on the basis that it contains an improper Markush grouping of alternatives. See In re Harnisch, 631 F.2d 716, 721-22 (CCPA 1980) and Ex parte Hozumi, 3 USPQ2d 1059, 1060 (Bd. Pat. App. & Int. 1984). A Markush grouping is proper if the alternatives defined by the Markush group (i.e., alternatives from which a selection is to be made in the context of a combination or process, or alternative chemical compounds as a whole) share a “single structural similarity” and a common use. A Markush grouping meets these requirements in two situations. First, a Markush grouping is proper if the alternatives are all members of the same recognized physical or chemical class or the same art-recognized class, and are disclosed in the specification or known in the art to be functionally equivalent and have a common use. Second, where a Markush grouping describes alternative chemical compounds, whether by words or chemical formulas, and the alternatives do not belong to a recognized class as set forth above, the members of the Markush grouping may be considered to share a “single structural similarity” and common use where the alternatives share both a substantial structural feature and a common use that flows from the substantial structural feature. See MPEP § 2117.
The Markush grouping of indoor climate parameters selected from the group comprising temperature, humidity, airflow, airborne particle size, airborne particle size distribution and air composition, is improper because the alternatives defined by the Markush grouping do not share both a single structural similarity and a common use for the following reasons: the climate parameters include airborne particle size and airborne particle size distribution, which are unrelated to climate. This rejection affects all dependent claims.
To overcome this rejection, Applicant may set forth each alternative (or grouping of patentably indistinct alternatives) within an improper Markush grouping in a series of independent or dependent claims and/or present convincing arguments that the group members recited in the alternative within a single claim in fact share a single structural similarity as well as a common use.
Claim 6 requires “the spectral power distribution of the first radiation and the intensity of the first radiation are selected to provide at least a 1-log reduction of the airborne pathogen”. However, since the initial concentration and pathogen type is not identified, it is unclear how at least a 1-log reduction of the airborne pathogen is determined.
Claim Rejections - 35 USC § 103
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.
Claims 1-6, 8-13, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Potember et al. (USPgPub 2004/0120845) and Jones et al. ("UV-C for HVAC Air and Surface disinfection." Air Movement and Control Association (AMCA). Last modified October 1, 2020).
Potember et al. teach a method utilizing a system comprising an air inlet into which indoor room air, contaminated with airborne pathogenic bacteria, spores, and viruses, flows into and passes through an ultraviolet light emitting wavelengths between 100-350 nm to neutralize, inactivate, mutate, or kill the airborne pathogens prior to reaching a chamber air outlet, releasing the pathogen-neutralized air, see paragraphs [0013, 0025, 0026, 0051, 0052, 0097], Figures 1, 2, and claims 1 and 19. (Note: paragraphs [0060 and 0063] teach that killed airborne pathogens are encompassed by “attenuated” pathogens treated in the instant published disclosure, USPgPub 2024/0285880).
Potember et al. teach UV-C damages pathogen DNA and proteins in paragraphs [0010, 0027, and 0049], as required by instant claim 3. Therefore, the ratio of at least 2 between the absorption of radiation by the genetic material and outer proteins is achieved by Potember et al. since the UV-C wavelength range applied to pathogen-contaminated air is emitted between 100-350 nm, as instantly required.
The system of Potember et al. comprises a control pathogen sensor system that adjusts optimization of duration, wavelength, and intensity of the UV light distribution, depending on various pathogens, in paragraphs [0048 and 0051].
The teachings of Potember are pertinent against the first paragraph and sensor system control of (i)-(iii) of claim 1 and claims 4, 8-11, and 15.
Paragraphs [0038 and 0042] of Potember et al. teach that the neutralization sensors monitor humidity, particle sampling, and temperature by microprocessors. However, Potember et al. do not teach whether the microprocessors monitor these climate conditions in the room comprising the contaminated air prior to delivery into the air inlet, as required by the beginning of the second paragraph of claim 1.
Under “Environmental Factors”, Jones et al. teach site-specific conditions that impact pathogen kill-rate including temperature, humidity, and the volume and velocity of air traveling through an HVAC system comprising a UV-C lamp.
One of ordinary skill in the art prior to the instant effective filing date would have been motivated to have incorporated the microprocessors measuring temperature and/or humidity of pathogen-contaminated air prior to delivery into the air inlet of Potember et al. because Jones et al. teach that cold air reduces UV-C lamp output and high humidity affects pathogen susceptibility to UV-C air. One of ordinary skill in the art prior to the instant effective filing date would have had a reasonable expectation of success to have incorporated the microprocessors measuring the temperature and/or humidity of pathogen-contaminated air prior to delivery into the air inlet of Potember et al. because Jones et al. specifically teach, “air-stream-disinfection measures can be more effective on the upstream side of a coil” in “Temperature-” under “Environmental Factors” and Figure 5.
Potember et al. do not mention that the airborne virus inactivated includes respiratory viruses, as required by instant claim 2; or hosting a human having a respiratory disease in a second indoor space retrieving the first air, required by instant claims 12 and 13.
The first paragraph of Jones et al. states:
For nearly a century, short-wave ultraviolet (UV) C (UV-C) energy…has been used to destroy airborne…microbes, including chickenpox, measles, mumps, tuberculosis (TB), and cold viruses.
Chickenpox, measles, mumps, and cold viruses destroyed by UV-C all comprise a core part of genetic material and a protein outer part, as required by instant claims 2 and 3.
As required by instant claim 12, under, “Killing/Inactivating Airborne Pathogens”, Jones et al. teach:
During the 1940’s, many hospitals began utilizing UV-C energy to control airborne infectious diseases.
Therefore, it would have been prima facie obvious to one of ordinary skill prior to the instant effective filing date to have used the system and method of Potember et al. and Jones et al. comprising the pathogen sensor and external database information of the hospital in the room of a respiratory disease-infected human to reduce and prevent circulation of airborne-infectious pathogens, as required by instant claim 13. One of ordinary skill in the art prior to the instant effective filing date would have had a reasonable expectation of success to have used the system and method of Potember et al. and Jones et al. comprising the pathogen sensor and external database information of the hospital in the room of a respiratory disease-infected human to reduce and prevent circulation of airborne-infectious pathogens because the second paragraph of Jones et al. states:
This article will provide engineer-level guidance for the use of UV-C light to continuously reduce and even prevent the growth of dangerous microbes in HVAC systems and the circulation of infectious pathogens in air streams.
And in “Upper-room/ air systems”, Jones et al. teach:
Airborne droplets containing infectious agents can remain in room air for 6 min or longer. Operating 24/7/365, upper-room/air germicidal fixtures can inactivate these microbes in a matter of seconds.
Potember et al. also do not mention distribution of at least 90% of the 100-300 nm wavelength range is in the range between 255-300, recited in claim 5; or providing at least 1-log reduction of the airborne pathogen, recited in instant claim 6.
Under “Germicidal UV-C Basics”, Jones et al. teach that a wavelength at 253.7 nm (within the 255-300 nm wavelength UV-C range, as evidenced by paragraph [0043] of the instant published disclosure) changes nucleic acid structures and inhibits cell reproduction. In this same section, Jones et al. teach that UV exposure inactivating 90% of a pathogen is referred to as ‘one-log kill’ and that the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) recognizes that UV-C will kill 99% of airborne tuberculosis in 24 seconds. Also see Figure 1.
Therefore, it would have been prima facie obvious to one of ordinary skill in the art prior to the instant effective filing date to have distributed at least 90% of the 100-300 nm wavelength range in the range between 255-300 and provide at least 1-log reduction of the airborne pathogen to remit airborne pathogenic infections with a reasonable expectation of success, absent unexpected results to the contrary.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Potember et al. and Jones et al. as applied to claims 1-6, 8-13, and 15 above, and further in view of Gordon (WO 2007035907) and Horton et al (Photochemical & Photobiological Sciences. 2020 Oct; 19 (10): 1262-1270).
See the teachings of Potember et al. and Jones et al. above. Neither reference mentions a radiation sensor to detect and control a third radiation having a wavelength range between 550-580 nm, as required.
Gordon claims an apparatus comprising a light source having germicidal properties producing wavelengths ranging between about 185 nm and about 253.7 nm and a visible light source component associated with the radiation source, see claims 1-4.
One of ordinary skill in the art prior to the instant effective filing date would have been motivated to have included a visible light source associated with the radiation source, as taught by Gordon in the apparatus and method of Potember et al. and Jones et al. with a reasonable expectation of success because Horton et al. teach visible light (400 nm-700 nm) possesses biocidal activity against bacteria and fungi, see “Visible light” bridging pages 1265-1266.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Potember et al. and Jones et al. as applied to claims 1-6, 8-13, and 15 above, and further in view of Christopherson et al. (USPgPub 2009/0020016).
See the teachings of Potember et al. and Jones et al. above. Neither reference suggests the indoor space is for livestock, as required.
Christopherson et al. claim a system comprising an ultraviolet light for killing airborne viruses and bacteria in a confined livestock stable, see claims 11 and 19. Also see paragraphs [0013, 0015, and 0017].
One of ordinary skill in the art prior to the instant effective filing date would have been motivated to have used the system and method of Potember et al. and Jones et al. in a confined livestock stable, as taught by Christopherson et al., to reduce and prevent circulation of airborne-infectious pathogens. One of ordinary skill in the art prior to the instant effective filing date would have had a reasonable expectation of success to have used the system and method of Potember et al. and Jones et al. in a confined livestock stable, as taught by Christopherson et al. because both the airborne pathogen-neutralizing wavelength used in the system of Potember et al., Jones et al. and Christopherson et al. ranges between 100-350 nm and includes 254.7 nm, see paragraphs [0026 and 0051] and claim 19 of Potember et al.; 200-280 nm or 253.7 nm in the introduction and “Germicidal UV-C Basics” of Jones et al.; and 100-280 nm or 253.7 nm in paragraphs [0019, 0021] and claims 20-22 of Christopherson et al.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Sood et al. (USPgPub 2022/0008605) teach an ultraviolet pathogen disinfection system for an indoor space, see claim 1.
Lu et al. (Journal of Hazardous Materials. 2025; 484: 136666) discuss wavelength-specific inactivation of airborne human coronavirus OC43, see the graphical abstract and Figure 1.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SHANON A FOLEY whose telephone number is (571)272-0898. The examiner can normally be reached M-F, generally 5:30 AM-5 PM, flexible.
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/Shanon A. Foley/Primary Examiner, Art Unit 1671
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