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, claims 1-9 and 13 in the reply filed on 08/24/2026 is acknowledged. (Note: the Restriction Requirement dated 06/23/2026 grouped claim 14 within Group I due to a typographical error; however, as Applicant correctly points out, claim 14 is directed to the method, and therefore claim 14 belongs within Group II). The traversal is on the ground(s) that Groups I and II have unity of invention because they are directed to a product and a method of using the product, and further that they share a special technical feature that makes a contribution over the prior art, particularly, because Applicant alleges that the prior art of record does not teach or disclose a shaker unit including a shaker drive and support member carrying at least two storage racks, in which the incubator includes several separate shaker units. This is not found persuasive because the Examiner maintains that the shared technical feature of the two invention groups does not make a contribution over the prior art. The Examiner maintains that of Malin (US Patent Application Publication 2006/0289371) (already of record) in view of Malin (US Patent 6,478,524) (already of record) teaches each and every aspect of the shared technical feature, as set forth in the Restriction Requirement. Particularly, Malin (US Patent Application Publication 2006/0289371) discloses wherein “at least one storage rack” can be arranged on a rack carrier (para. 9) and further discloses a plurality of separate rack carriers which can be shaken by a plurality of separate shaker drives (para. 74) and therefore, Malin clearly arrives at a shaker unit including a shaker drive and support member carrying at least two storage racks, in which the incubator includes several separate shaker units.
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Claims 10-12 and 14 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 08/24/2026.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 03/22/2024 is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Claim Objections
Claims 2, 9, and 13 are objected to because of the following informalities:
In claim 2, it is believed “into first and a second section” should read “into a first and a second section”.
In claim 9, it is believed “the climate control” should read “the climate control unit”.
In claim 13, it is believed “the climate control” should read “the climate control unit”.
Appropriate correction is required.
Claim Interpretation
The claims of this application contain multiple recitations of the term “several”. The term “several” has been interpreted as meaning two or more, consistent with Applicant’s specification and with the dictionary definition of the word “several” (“Several”, Merriam-Webster.com Dictionary).
Claim Rejections - 35 USC § 102
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 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bishop et al. (US Patent Application Publication 2010/0311108).
Regarding claim 1, Bishop et al. discloses an incubator (para. 114, 124) comprising:
a chamber (defined within panels 1072) (para. 115, 123) (Figs. 25-30, sheets 20-25 of 28),
a climate control unit connected to the chamber (para. 124, 144-145) (Fig. 30, sheet 25 of 28),
several storage racks arranged in the chamber (para. 115) (Figs. 25-30, sheets 20-25 of 28),
wherein each storage rack comprises several storage locations arranged on top of each other (each storage rack 1002 comprises a first row of receptacles 1004 for storing containers and a second row 1004 for storing containers arranged on top of the first row) (para. 116) (Fig. 25, sheet 20 of 28),
a shaker unit (para. 119) comprising:
a shaker drive (para. 126) and
a support member (portion of frame comprising bearings for supporting the racks) connected to the shaker drive and carrying at least two of the storage racks (para. 116-117, 126) (Figs. 31-33, sheets 26-28 of 28),
wherein the incubator comprises several shaker units (para. 116, 127) (Figs. 31-33, sheets 26-28 of 28).
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.
Claims 1, 9, and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Malin (US Patent Application Publication 2006/0289371) (already of record) (hereinafter referred to as Malin ‘371) in view of Malin (CH 713385 A2) (machine translation) (already of record) (hereinafter referred to as Malin ‘385).
Regarding claim 1, Malin ‘371 discloses an incubator (called cabinet, wherein the cabinet reads on an incubator because it is “a climate controlled cabinet with such a storage device, where the storage racks can be stored under controlled temperature and, where necessary, under controlled gas composition, in particular under controlled humidity”, see para. 22; see also Abstract and para. 2) comprising:
a chamber (2) (para. 35) (Fig. 1, sheet 1 of 7),
means to generate a controlled climate in the chamber (para. 35),
several storage racks (5) arranged in the chamber (para. 35) (Fig. 1, sheet 1 of 7),
wherein each storage rack comprises several storage locations arranged on top of each other (para. 36),
a shaker unit (para. 35-39, 74) comprising:
a shaker drive (para. 35, 74) and
a support member (called rack carrier) connected to the shaker drive and carrying at least two of the storage racks (para. 9, 37, 74),
wherein the incubator comprises several separate shaker units (para. 74).
Malin ‘371 does not expressly teach a climate control unit connected to the chamber; rather, Malin ‘371 discloses means to generate a controlled climate in the chamber as set forth above. Malin ‘371 further discloses controlling temperature and humidity within the chamber (para. 22).
Malin ‘385 discloses a device for storing biological samples (para. 1-5) under a defined temperature and humidity (para. 15) (thus, the device reads on an incubator). The incubator comprises a chamber (2) and several storage racks arranged in the chamber (para. 14-19) (Fig. 1), a shaker drive to shake the samples within the chamber (Abstract, para. 25-29), and a climate control unit (5) connected to the chamber (para. 15) (Fig. 1). The climate control unit is configured to maintain a desired temperature and humidity in the chamber (para. 15).
It would have been obvious to one of ordinary skill in the art at the time before the effective filing date of the claimed invention to modify the incubator disclosed by Malin ‘371 to comprise a climate control unit connected to the chamber, as Malin ‘385 discloses that it was known in the art to provide a climate control unit in such a manner to control temperature and humidity within a chamber, and the skilled artisan would have been motivated to adopt a known configuration for controlling temperature and humidity conditions.
Regarding claim 9, Malin ‘371 in view of Malin ‘385 teaches the climate control unit, as set forth above. Malin ‘385 discloses wherein the climate control unit is adapted to maintain a relative humidity of at least 80% within the chamber (para. 15), and therefore the prior art combination arrives at the claimed subject matter.
Regarding claim 13, Malin ‘371 in view of Malin ‘385 teaches the climate control unit, as set forth above. Malin ‘385 discloses wherein the climate control unit is adapted to maintain a relative humidity of at least 80% within the chamber (para. 15), and therefore the prior art combination arrives at the climate control unit being adapted to maintain a relative humidity of at least 80% in the chamber.
The prior art combination does not expressly teach a relative humidity of at least 90% in the chamber.
Nonetheless, it has been held that in the case wherein the claimed range lies inside the range disclosed by the prior art, a prima facie case of obviousness exists (MPEP 2144.05). In this case, the claim range (at least 90%) lies within the prior art range (at least 80%). Therefore, absent a persuasive showing of criticality of the claimed range, the claim limitation does not introduce a patentable distinction over the prior art.
Claims 9 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Bishop et al. (US Patent Application Publication 2010/0311108) in view of Kawasaki et al. (US Patent 11,142,742).
Regarding claim 9, Bishop et al. discloses the climate control unit, as set forth above. Bishop et al. further discloses wherein the incubator is configured to store culture containers containing a sample and a growth medium such that a culture process can be conducted within the incubator (Abstract, para. 129).
Bishop et al. is silent as to wherein the climate control is adapted to maintain a relative humidity of at least 60%.
Kawasaki et al. discloses an incubator comprising a chamber wherein culture containers containing a culture fluid are stored (Abstract, col. 6 lines 51-62). Kawasaki et al. discloses wherein the incubator further comprises a climate control unit configured to maintain a relative humidity of 95% or more in the chamber to prevent evaporation of a culture solution (col. 8 lines 32-58, col. 11 lines 43-47).
It would have been obvious to one of ordinary skill in the art at the time before the effective filing date of the claimed invention to modify the climate control unit disclosed by Bishop et al. to be adapted to maintain a relative humidity of 95% or more (falls within the claim range), as Kawasaki et al. discloses that it was known in the art to equip an incubator with a climate control device adapted to maintain such a relative humidity in order to prevent evaporation of culture fluid, and the skilled artisan would have been motivated to prevent evaporation of samples.
Regarding claim 13, Bishop et al. discloses the climate control unit, as set forth above. Bishop et al. further discloses wherein the incubator is configured to store culture containers containing a sample and a growth medium such that a culture process can be conducted within the incubator (Abstract, para. 129).
Bishop et al. is silent as to wherein the climate control is adapted to maintain a relative humidity of at least 90% in the chamber.
Kawasaki et al. discloses an incubator comprising a chamber wherein culture containers containing a culture fluid are stored (Abstract, col. 6 lines 51-62). Kawasaki et al. discloses wherein the incubator further comprises a climate control unit configured to maintain a relative humidity of 95% or more in the chamber to prevent evaporation of a culture solution (col. 8 lines 32-58, col. 11 lines 43-47).
It would have been obvious to one of ordinary skill in the art at the time before the effective filing date of the claimed invention to modify the climate control unit disclosed by Bishop et al. to be adapted to maintain a relative humidity of 95% or more (falls within the claim range) in the chamber, as Kawasaki et al. discloses that it was known in the art to equip an incubator with a climate control device adapted to maintain such a relative humidity in order to prevent evaporation of culture fluid, and the skilled artisan would have been motivated to prevent evaporation of samples.
Allowable Subject Matter
Claim 2 (and accordingly claims 3-7 which depend therefrom) and claim 8 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Citation of Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Frei (US Patent Application Publication 2017/0233693) is directed to an incubator comprising several shaker units at different vertical levels.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HOLLY KIPOUROS whose telephone number is (571)272-0658. The examiner can normally be reached M-F 8.30-5PM.
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/HOLLY KIPOUROS/Primary Examiner, Art Unit 1799
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