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.
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 11-14,18-21 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.
Claim 11 is incomplete since it calls for the outside diameter of what?
Claims 13 and 14 are similarly rejected as claim 11 above.
Claim 18 is incomplete since it calls for the outside diameter of what?
Claims 20 is similarly rejected as claim 18 above.
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.
Claim(s) 2-5,9-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over French document (FR 2736949) in view of either Anderson (US 2665796) or Reid (US 4019830).
Re claim 2, French document ‘949 discloses a fish pass system, comprising:
a tunnel (1) including: an elevated upstream end (8) at least partially submergible or connectable so that water enters at the upstream end; a lower downstream end (2) opposite the elevated upstream end; the inside diameter defining an opening (6) for the fish pass system, wherein fish traveling in an opposite direction to the direction of the flow of the water pass through the fish pass system by riding or swimming in a volume of water contained in a space between two adjacent partitions (4), and
fish traveling in the direction of the flow of the water pass through the opening of the fish pass system by swimming or moving through the opening (see machine translation wherein “fish to go up stream (salmon) or downstream (catadromous fish)” to spawn).
French document ‘949 discloses the invention substantially as claimed. However, French document is silent about the partitions being constructed as a helical blade, wherein the helical blade including an elevated upstream end at least partially submergible or connectable so that water enters the helical blade at the upstream end, a lower downstream end opposite the elevated upstream end; a first side; a second side opposite the first side; an outside diameter extending between the first side and the second side; and an inside diameter extending between the first side and the second side, the inside diameter for controlling a flow of the water entering the elevated upstream end and flowing in a direction from the first side to the second side, the
inside diameter defining an open center of the fish pass system,
wherein fish traveling in an opposite direction to the direction of the flow of
the water pass through the fish pass system by riding or swimming in a volume of
water contained in a space between two adjacent turns of the helical blade as the
helical blade is rotating upstream or uphill, and fish traveling in the direction of the flow of the water pass through the open center of the fish pass system by swimming or moving over the inside diameter of the helical blade.
Anderson and Reid both teach rotating a helical blade for lifting and conveying water, sludge, coal and the like from a lower level to a higher level (fluid conveyor), wherein the helical blade including an elevated end, a lower end opposite the elevated end; a first side; a second side opposite the first side; an outside diameter extending between the first side and the second side; and an inside diameter extending between the first side and the second side (see Figs. 1,2, cols. 2,3; Figs 1,5, cols. 2-6); it should be noted the inside diameter is capable of allowing water entering the elevated end and flowing in a direction from the first side to the second side, the inside diameter defining an open center of the pass system, wherein fish is capable of being conveyed in an opposite direction to the direction of the flow of the water pass through the pass system by riding or swimming in a volume of water contained in a space between two adjacent turns of the helical blade as the helical blade is rotating upstream or uphill, and fish is capable of traveling in the direction of the flow of the water pass through the open center of the pass system by swimming or moving over the inside diameter of the helical blade.
It would have been considered obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify French document ‘949 by replacing the partitions with the helical blades as taught by either Anderson or Reid since such a modification assists the fish in the uphill climb. Fluid conveyors safely move fish by reducing stress.
Re claim 3, wherein the outside diameter of the helical blade is attachable to an inside surface of a tube (see col. 3 line 20+; col. 3 line 20+ of Anderson and Reid respectively).
Re claim 4, it would have been considered obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to further modify French document ‘949 (as modified above) to have the tube formed of a plurality of tubular segments since it has been held that constructing a formerly integral structure in various elements involves only routine skill in the art. Nerviw v. Erlichman, 168 USPQ 177, 179.
Re claim 5, wherein the helical blade is integrally formed with an inside surface of a tube as a single unit of material (col. 3; col. 3 of Anderson and Reid respectively).
Re claim 9, further comprising: a tube having a downstream end and an upstream end opposite the downstream end;
a downstream transition (see Fig. 1 of French document ‘949) disposed at the downstream end of the tube; and an upstream transition (see Fig. 1 of French document ‘949) disposed at the upstream end of the tube.
Re claim 10, French document ‘949 (as modified above) discloses the invention substantially as claimed (see discussion above) expect that the helical blade is made up of blade segments joined together. It would have been considered obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to make the helical blade in blade segments joined together since such a modification facilitates repair. It has been held that constructing a formerly integral structure in various elements involves only routine skill in the ar. Nerwin v. Erlichman, 168 USPQ 177, 179.
Re claims 11,12,14, see discussion above with respect to claims 3-4,9.
Re claim 13, wherein the outside diameter is integrally formed with an inside surface of a tube as a single unit of material (see col. 3 and col. 3 of Anderson and Reid respectively).
Re claim 15, see discussion above with respect to claim 2.
Re claim 16, see discussion above with regards to claim 10.
Re claim 17, the helical blade is formed as a single unit of material (see col. 3; col. 3 of Anderson and Reid respectively).
Re claims 18,19 21, see discussion with respect to claims 3,4 above.
Re claim 20 see discussion of claim 13 above.
Allowable Subject Matter
Claims 6-8 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.
Response to Arguments
Applicant’s arguments with respect to claim(s) 2,10,15 have been considered but are moot because the new ground of rejection does not rely on at least one reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Hoffman (US 1618338) teaches fluid conveyor. German document (DE 10003761) teaches fish bypass system going from upper water level to lower water level. Korean document (KR 200418401) teaches fish bypass system going from lower water level to upper water level. EP document (EP 1930597) teaches helical blade when rotate in one direction pumps water (move fish upstream) and when rotate in the other direction generates electricity.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 SUNIL SINGH whose telephone number is (571)272-7051. The examiner can normally be reached M-Th 8-3, F 9-8 and 2nd Sat 11-7.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amber Anderson can be reached at 571 270 5281. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SUNIL SINGH/Primary Examiner, Art Unit 3678
SS
5/28/2026
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