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 § 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.
Claims 5 and 12 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 5 recites the limitation "the wavelength range of 200-780 nm" in line 6. There is insufficient antecedent basis for this limitation in the claim. It is unclear if this limitation is referring to and further limiting the “white first device radiation”.
Claim 12 recites the limitation "the second beam" in line 4. There is insufficient antecedent basis for this limitation in the claim.
Claim 12 additionally requires that “the first direction and the second direction have a mutual angle selected from the range of 90-180°. It is unclear if this means that the angle formed between the first and second direction is from 90-180°, or if the first and second direction each form an angle with an unnamed reference (e.g., vertical or horizontal axis of the housing) from 90-180°. It is unclear exactly what is meant by the term “mutual angle”.
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.
Claims 1-4, 7, 8 and 11-15 are rejected under 35 U.S.C. 103 as being unpatentable over Noad (US 20180055961) in view of Lin (US 20180055959).
With respect to claims 1 and 11-13, Noad discloses a lighting device and method in which a housing (see the “mobile trailer unit” depicted in Figs. 2-6) encloses a light generating device (see “UV Light” depicted in Fig. 1A) and a microbe dispenser device (Figure 2:313). The light generating device is described in paragraphs [0010], [0043] and [0044] and is configured to provide in a microbic lighting mode a first beam of first device radiation, which is sufficient to deactivate microbes in the housing. The microbe dispenser device is described in paragraphs [0047] and [0052] and is configured to provide in a microbic application mode an emission (“spray”) of beneficial microbes. Although Noad does not expressly teach that the microbe emission region and the first beam at least partially overlap, it would have been obvious to ensure that they do because both operations are both used to treat the same articles within the housing. Noad, however, does not expressly state that the spectral power distribution of the first device radiation is selected for promoting persistence of the first microbes relative to second microbes.
Lin discloses a lighting system for indoor microbiome management. A light generating device (Figure 1:122) is disposed within a housing (Figure 1:102) and is configured to provide in a microbic lighting mode a first beam (Figure 1:116) of first device radiation. This is described in paragraphs [0025]-[0030]. The first beam is selected for promoting persistence of a first microbe relative to a second microbe (“The types of UV light may be selected based on the types of microbes (for example, bacteria, germs, fungi, viruses, spores, and the like) that may be present on a particular structure. As such, the UV light sanitizing system may be specifically tailored to kill particular types of microbes with different types of UV light”).
Before the effective filing date of the claimed invention, it would have been obvious to ensure that the Noad first device radiation is selected for promoting the inactivation of target pathogens while enabling the persistence of the sprayed probiotics. Lin teaches that UV sanitizing systems may be tailored to kill particular types of microbes with different types of emitting radiation, and that this allows one to more effectively and efficiently sanitize an indoor microbiome. Those of ordinary skill would have naturally desired to not destroy the dispensed probiotics, and therefore would have found it desirable to utilize UV light known to only deactivate a specific set of unwanted pathogens.
With respect to claims 2 and 14, Noad and Lin disclose the combination as described above. When the Noad light generating device is used to selectively deactivate pathogens other than the applied probiotics (in view of the teachings of Lin), those of ordinary skill would understand that the lighting mode may follow or overlap in time with the microbic application mode.
With respect to claim 3, Noad and Lin disclose the combination as described above. As previously discussed, Lin teaches that the spectral power distribution of the first device radiation is selected to deactivate a targeted second microbe that is different than a first microbe.
With respect to claim 4, Noad and Lin disclose the combination as described above. Noad states that the microbe dispenser device is configured to provide the microbic application as a “spray” (“the system includes a sprayer module to apply a pro-biotic spray to hinder any re-growth of bacteria”).
With respect to claims 7 and 8, Noad and Lin disclose the combination as described above. Noad and Lin each teach disinfection mode radiation within the range of 100-380 nm. See, for example, paragraph [0040] of Lin. Lin further teaches that a controller (Figure 1:120) is used to regulate the operation of the light generating device. Paragraph [0073] teaches that a movement/presence/activity sensor provides information to the controller. When using the Noad system, it would have been obvious to control a microbe emission rate (i.e., the rate at which the probiotic is dispensed) at least in part based on the disinfection radiation.
With respect to claim 15, Noad and Lin disclose the combination as described above. When practicing the Noad method, it would have been obvious to direct disinfection radiation to a ceiling and microbic lighting radiation and the microbic spray toward a floor of the indoor microbiome location. Those of ordinary skill would have recognized that Noad and Lin do not limit the direction/orientation of the applied treatment, and it would have been within the ability of a skilled practitioner to direct the emitted light and microbic spray according to basic cardinal directions – i.e., either “up” (“to a ceiling”) or “down” (“toward a floor”) or both or in all directions.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Noad (US 20180055961) in view of Lin (US 20180055959) as applied to claim 1, and further in view of Espina (WO 2021096894).
Noad and Lin disclose the combination as described above. Lin further teaches in paragraphs [0025]-[0032], [0040] and [0041] that the first beam of the microbic lighting mode is characterized by a UV wavelength of about 222 nm, 270 nm and/or 405 nm (i.e., UVA, UVB, UVC). Lin, however, does not appear to state that the UV light generating device is combined with the standard white light source of the indoor location.
Espina discloses a lighting system for indoor microbiome management comprising a light generating device configured to produce white light in a standard lighting mode (see Fig. 10A) and UV light in a microbic lighting mode (see Fig. 10B). Proximity sensors are provided to ensure that only white light is generated when humans are present, and that UV sterilizing light is produced when there is no activity detected. See paragraph [0069].
Before the effective filing date of the claimed invention, it would have been obvious to ensure that the modified Noad system is capable of producing white light during normal operation and UV light characterized by an elevated spectral power distribution when there is a need for disinfection. Espina shows how light generating devices may switch between operating modes as necessary, and that this may be done automatically using room activity sensors. Espina indicates that modular lighting units may provide one such solution, wherein a first module is dedicated to the emission of white light, while a second module is dedicated to the emission of a UV light at a higher spectral power distribution.
Claims 6 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Noad (US 20180055961) in view of Lin (US 20180055959) as applied to claim 1, and further in view of Alkoby (US 20230248874).
Noad and Lin disclose the combination as described above. Lin further teaches that a controller (Figure 1:120) is used to regulate the operation of the light generating device. Paragraph [0073] teaches that a room awareness sensor provides information to the controller. Noad and Lin, however, do not expressly teach a microbe from the set of claimed microbes.
Alkoby discloses an indoor microbiome management system comprising a microbe dispenser device (Figure 2:202) configured to provide in a microbic application mode an emission of first microbes. This is described in paragraphs [0041]-[0045]. Paragraph [0042] indicates that the dispensed probiotic microbe may be any Bacillus species.
Before the effective filing date of the claimed invention, it would have been obvious to use essentially any microbe, such as Bacillus, in the modified Noad system known to build and contribute to a microbiome that facilitates human flourishing. Alkoby makes it clear that the selection of a particular microbe is not limited and that one of ordinary skill may choose from a wide variety of probiotics (“The probiotic solution may comprise nonpathogenic bacteria, by way of example Bacillus species”). Alkoby states that it is desirable to “introduce[e] non-pathogenic micro-organisms to room surfaces while simultaneously preventing or minimizing the introduction of new pathogenic micro-organisms on the same surfaces, thus advantageously increasing the efficiency and/or speed by which the probiotic treatment reduces the concentration of pathogenic micro-organisms on the treated surfaces”.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Noad (US 20180055961) in view of Lin (US 20180055959) as applied to claim 1, and further in view of Dery (US 20210204774).
Noad and Lin disclose the combination as described above. Noad additionally teaches that a first holder is provided for dispensing the probiotic microbes and optionally a perfume. See paragraph [0042]. Noad, however, does not expressly state that a mist dispenser comprising a cartridge holder configured to support a plurality of cartridges is provided.
Lin discloses an indoor microbiome management system comprising a microbe dispenser device configured to provide in a microbic application mode an emission (Figure 1A:215) of first microbes. Paragraphs [0043]-[0049] indicate that a mist dispenser having a cartridge (Figure 2A:220) is used to spray the probiotics. Lin shows that multiple cartridges (see Fig. 1B) may be utilized simultaneously. Lin further indicates that a cartridge holder is provided to store multiple cartridges (“additional components of the microbe spreading device 300, e.g. a cartridge storing the solution…may be housed in base 170”).
Before the effective filing date of the claimed invention, it would have been obvious to ensure that the modified Noad system dispenses probiotic microbes using a cartridge-based system. Lin teaches that this allows one to choose which environmentally friendly microbes and/or perfumes to apply at a desired time by selecting the corresponding cartridge type. Lin teaches that the cartridges may be individually stored in a cartridge holder for ease of use and to improve accessibility and organization.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-11 and 13-15 of copending Application No. 18/578,037 (reference application).
Although the claims at issue are not identical, they are not patentably distinct from each other. Independent claim 1 of copending Application No. 18/578,037 is drawn to
A lighting system for indoor microbiome management, wherein the lighting system comprises a light generating device and a microbe dispenser device; wherein:
the microbe dispenser device is configured to provide in a microbic application mode an emission of first microbes, wherein the microbe dispenser device has a microbe emission region;
the light generating device is configured to provide in a microbic lighting mode a first beam of first device radiation;
a spectral power distribution of the first device radiation is selected for promoting persistence of the first microbes relative to second microbes, other than the first microbes; and
the microbe emission region and the first beam at least partly spatially overlap.
The primary difference is that the claims of Application No. 18/578,037 are drawn to an animal enclosure, while the instant claims are drawn to a generic indoor space. This is believed to be an obvious difference that is not patentably distinct (i.e., the animal enclosure is a subclass/species of the generic indoor space).
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The Hawkins (US 20160375161), Edquist (US 20220090777) and Wingren (WO 2021213633) references disclose the state of the art regarding indoor microbiome management systems and methods.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NATHAN ANDREW BOWERS whose telephone number is (571)272-8613. The examiner can normally be reached M-F 7am-5pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/NATHAN A BOWERS/Primary Examiner, Art Unit 1799
Prosecution Insights