DETAILED ACTION
This is the first office action on the merits with reference to the above identified patent application filed on 29 March 2024. Claims 1 – 19 are pending.
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 of Species 1A from Group 1 and Species 3A from Group 3 in the reply filed on 29 July 2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Applicant's election with traverse of Species 2A in the reply filed on 29 July 2025 is acknowledged. The traversal is on the ground(s) that Species 2A and 2C are directed to the same species. This is not found persuasive because Species 2C of Figures 10 and 11 has a protruding shaft/pin (24) on the roller (15) that engages the slot (23), which Species 2A of Figure 9 does not have. Furthermore, the cam (17) of Figure 9 is cylindrical, which is clearly a different structure than the plate like structure of the cam (17/18/19) of Figures 10 and 11.
The requirement is still deemed proper and is therefore made FINAL.
Applicant’s response asserted that Claims 1 – 5 and 7 – 19 read on the elected species. However, Claims 10 and 18 recite two cam members in parallel which clearly relates to the non elected Figure 10 embodiment, and are therefore also withdrawn from further consideration pursuant to 37 CFR 1.142(b). Additionally, Claim 19 recites a toothed rack which relates to the non elected Figure 21 embodiment, and is therefore also withdrawn from further consideration pursuant to 37 CFR 1.142(b).
Claim 6, 10, 18 and 19 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected species, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 29 July 2025. Claims 1 – 5, 7 – 9 and 11 – 17 will be examined on the merits.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “squeeze elements” in claim 8.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 – 5 and 7 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 Re Claim 1, the phrase “substantially identical” in Line 10 is a relative term which renders the claim indefinite. The term “substantially” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree of deviation from identical is still within the scope of the claim, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. Indeed, Applicant clearly intended to distinguish “identical” from “substantially identical” because claim 12 recites identical size without the word substantially. For the purpose of prior art analysis, it will be assumed that the phrase “are of substantially identical size” is replaced with the phrase --are of identical size--.
Claim Rejections - 35 USC § 102
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 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(s) 8, 11 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wada (Japanese Patent JP H09222084 A, Machine Translation provided).
In Re Claim 8, Wada discloses a rotor (1, 2, 3, 3a) of a linear peristaltic pump for conveying a fluid through a flexible tube (“C”), comprising: at least one pair of squeeze elements (2) having a first squeeze element and a second squeeze element (diametrically opposed rollers - 2), at least one squeeze element support (1) for accommodating the first squeeze element and the second squeeze element, and at least one cam (3a) for guiding (paragraph [0010]) the at least one squeeze element support (via 1a) (Figures 1, 2; paragraphs [0009], [0010], [0013], [0014], [0015], [0017], [0020]).
In Re Claim 11, Wada discloses that the at least one squeeze element support (1) is set up to be displaced relative to the at least one cam (3a) and/or wherein a first squeeze element support and a second squeeze element support (there are two supports – both labeled 1) are configured to be displaced relative to the at least one cam (3a) and/or relative to one another (compare Figure 1 to Figure 2).
Claim(s) 8, 9 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Schollmeyer (German Patent DE 2452771 A1, Machine Translation provided).
In Re Claim 8, Schollmeyer discloses a rotor (Figure 1 embodiment) of a linear peristaltic pump (the word “linear” has not been given patentable weight because it appears in the preamble; a preamble is generally not accorded any patentable weight where it merely recites the purpose of a process or the intended use of a structure, and where the body of the claim does not depend on the preamble for completeness but, instead, the process steps or structural limitations are able to stand alone. See In re Hirao, 535 F.2d 67, 190 USPQ 15 (CCPA 1976) and Kropa v. Robie, 187 F.2d 150, 152, 88 USPQ 478, 481 (CCPA 1951). Furthermore, it has been held that the recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex part Masham, 2 USPQ2d 1647 (1987)) for conveying a fluid through a flexible tube (3), comprising: at least one pair of squeeze elements (9) having a first squeeze element and a second squeeze element (diametrically opposed rollers 9), at least one squeeze element support (there are two supports 6) for accommodating the first squeeze element and the second squeeze element (diametrically opposed rollers 9), and at least one cam (5, 5’) for guiding and accommodating the at least one squeeze element support (6) (paragraphs [0014] - [0020]; Figure 1).
In Re Claim 9, Schollmeyer further discloses that the at least one cam (5, 5’) has slots, cavities or recesses, wherein the at least one squeeze element support (6) is displaceably arranged in a slot, cavity or recess (paragraph [0017]).
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) 1 – 5, 12 – 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wada (Japanese Patent JP H09222084 A, Machine Translation provided) in view of Meili (British Patent GB 2230301 A, provided in Applicant’s IDS of 2/29/24).
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Annotated Figure 2 of Wada
In Re Claim 1, Wada discloses a device for a linear peristaltic pump (Figures 1, 2) for conveying a fluid through a flexible tube (“C”), with a continuously running track or slideway (7, 8), wherein the track or slideway has, in sections, a circular course (although “circular” is not specifically disclosed, any conventional peristaltic pump has a circular raceway) with a radius and a midpoint (see annotated Figure 2 above, center of shaft 3 is the midpoint), wherein the track or slideway (7, 8) further comprises: a first subregion (see annotated Figure 2 above) with a linear course which runs spaced apart relative to the circular course (the shaded area in the annotated Figure 2 above represents the spacing) and has, in a radial direction, a first maximum spacing; and a second subregion (see annotated Figure 2 above) with a curved course, wherein the second subregion is arranged opposite the first subregion, and wherein the second subregion runs spaced apart relative to the circular course (the shaded area in the annotated Figure 2 above represents the spacing) and, in the radial direction, has a second maximum spacing (Figures 1, 2; paragraphs [0009], [0010], [0013], [0014], [0015], [0017], [0020]),
Although there are only three options related to the magnitude (size) of the first maximum spacing and the second maximum spacing (greater than, less than or identical), Wada does not explicitly disclose that the first maximum spacing and the second maximum spacing are of identical size.
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Annotated Figure 2 of Meili
However, Meili discloses that the first maximum spacing (annotated shaded area represents the spacing, the maximum of which is in the center of the shaded area) can be changed based on the position of plate (5) (Figure 1 shows one position and Figure 2 shows another position). A change in the first maximum spacing varies the amount of liquid pumped (Page 3, Lines 17 – 23), thus establishing the first maximum spacing as a result effective variable (Figures 1, 2; Page 2, Line 22 – Page 3, Line 23).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed the invention to vary the first maximum spacing of Wada such that it is of identical size to the second maximum spacing, because it has been held that discovering the optimum value of a result effective variable involves routine skill in the art – MPEP 2144.05 (II-B). Note also that choosing from a finite number of options (greater than, less than or identical) for the relative maximum spacings would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed the invention because the results of the choice are predictable (MPEP 2141, Section III, Rationale E). The results of the choice are predictable because Meili has established the first maximum spacing as a result effective variable. Finally, it is not clear from applicant’s specification what the criticality is that requires identical maximum spacings, and it appears the device would work equally well if one maximum spacing was smaller/larger than the other maximum spacing.
In Re Claims 2 and 3, the combined references disclose all the limitations of Claim 1, and the annotated Figure 2 of Wada above discloses all the claimed limitations when the first maximum spacing is equal to/identical to the second maximum spacing.
In Re Claim 4, the combined references disclose all the limitations of Claim 1, and the annotated Figure 2 of Wada above discloses that the maximum spacings are clearly in the middle of the subregions.
In Re Claim 5, the combined references disclose all the limitations of Claim 1, and Figure 2 of Wada discloses two arcs of a circular course (that the annotated circle overlaps) that are connected at one end to the first subregion and at the other end to the second subregion.
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Annotated Figure 2 of Wada
In Re Claim 12, Wada discloses a linear peristaltic pump (Figures 1, 2) comprising at least one device (7, 8), and a rotor (1, 2, 3, 3a), the rotor (1, 2, 3, 3a) comprising: at least one pair of squeeze elements (2) having a first squeeze element and a second squeeze element (diametrically opposed rollers - 2), at least one squeeze element support (1) for accommodating the first squeeze element and the second squeeze element, and at least one cam (3a) for guiding (paragraph [0010]) the at least one squeeze element support (via 1a), and the at least one device (7, 8) comprising a continuously running track or slideway (7, 8 – note that 8 is made of two arc sections), wherein the track or slideway has, in sections, a circular course (although “circular” is not specifically disclosed, any conventional peristaltic pump has a circular raceway) with a radius and a midpoint (see annotated Figure 2 above, center of shaft 3 is the midpoint), wherein the track or slideway (7, 8) further comprises: a first subregion (see annotated Figure 2 above) with a linear course which runs spaced apart relative to the circular course (the shaded area in the annotated Figure 2 above represents the spacing) and has, in a radial direction, a first maximum spacing; and a second subregion (see annotated Figure 2 above) with a curved course, wherein the second subregion is arranged opposite the first subregion, and wherein the second subregion runs spaced apart relative to the circular course (the shaded area in the annotated Figure 2 above represents the spacing) and, in the radial direction, has a second maximum spacing (Figures 1, 2; paragraphs [0009], [0010], [0013], [0014], [0015], [0017], [0020]),
Although there are only three options related to the magnitude (size) of the first maximum spacing and the second maximum spacing (greater than, less than or identical), Wada does not explicitly disclose that the first maximum spacing and the second maximum spacing are of identical size.
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Annotated Figure 2 of Meili
However, Meili discloses that the first maximum spacing (annotated shaded area represents the spacing, the maximum of which is in the center of the shaded area) can be changed based on the position of plate (5) (Figure 1 shows one position and Figure 2 shows another position). A change in the first maximum spacing varies the amount of liquid pumped (Page 3, Lines 17 – 23), thus establishing the first maximum spacing as a result effective variable (Figures 1, 2; Page 2, Line 22 – Page 3, Line 23).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed the invention to vary the first maximum spacing of Wada such that it is of identical size to the second maximum spacing, because it has been held that discovering the optimum value of a result effective variable involves routine skill in the art – MPEP 2144.05 (II-B). Note also that choosing from a finite number of options (greater than, less than or identical) for the relative maximum spacings would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed the invention because the results of the choice are predictable (MPEP 2141, Section III, Rationale E). The results of the choice are predictable because Meili has established the first maximum spacing as a result effective variable. Finally, it is not clear from applicant’s specification what the criticality is that requires identical maximum spacings, and it appears the device would work equally well if one maximum spacing was smaller/larger than the other maximum spacing.
In Re Claim 13, Wada and Meili disclose all the limitations of Claim 12, and the annotated Figure 2 of Wada above discloses all the claimed limitations when the first maximum spacing is equal to/identical to the second maximum spacing.
In Re Claim 14, Wada and Meili disclose all the limitations of Claim 12, and the annotated Figure 2 of Wada above discloses that the maximum spacings are clearly in the middle of the subregions.
In Re Claim 15, Wada and Meili disclose all the limitations of Claim 12, and Figure 2 of Wada discloses two arcs of a circular course (that the annotated circle overlaps) that are connected at one end to the first subregion and at the other end to the second subregion.
In Re Claim 16, the combined references disclose all the limitations of Claim 1, and Wada depicts in annotated Figure 2 above that the second subregion is convex (note that the “and/or: limitation is being broadly interpreted as “or”).
Claim(s) 7 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wada (Japanese Patent JP H09222084 A, Machine Translation provided) in view of Meili (British Patent GB 2230301 A, provided in Applicant’s IDS of 2/29/24) and further in view of Baron (PG Pub US 20140212314 A1).
In Re Claim 7, Wada and Meili disclose all the limitations of Claim 1, but they do not disclose a groove, aperture and cover.
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Annotated Figure 7 of Baron
However, Baron discloses a device having a groove (see annotated figure above) for accommodating the flexible tube (13), wherein the groove has an aperture (see grey area in the annotated figure above) in a region of the first subregion (40) and wherein the device secures the flexible tube (13) in the device via a closure or a cover (44)(Figures 7, 16, 17; Abstract, paragraphs [0082], [0085]).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed the invention to modify the device of Wada / Meili to incorporate a groove, aperture and cover as taught by Baron for the purpose of allowing access for removal/replacement of the tube that is simple for the operator (paragraph [0025] of Baron).
In Re Claim 17, Wada discloses that the rotor (1, 2, 3, 3a) is configured to squeeze, by at least one pair of squeeze elements (2), a flexible tube (“C”), in order to convey fluid through the flexible tube (2), wherein the at least one squeeze element support (1) is arranged to be displaced relative to the at least one cam (3a), relative another squeeze element support (there are two depicted, each labeled “1”), and/or relative to the track or slideway (7, 8). Wada and Meili disclose all the limitations of Claim 12, but they do not disclose a groove and an aperture as claimed.
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Annotated Figure 7 of Baron
However, Baron discloses a device having a groove (see annotated figure above) for accommodating the flexible tube (13), wherein the groove has an aperture (see grey area in the annotated figure above) in a region of the first subregion (40) and the flexible tube (13) is arrangeable into a groove of the device, and the flexible tube (13) protrudes into the aperture as depicted (Figures 7, 16, 17; Abstract, paragraphs [0082], [0085]).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed the invention to modify the device of Wada / Meili to incorporate a groove, aperture and cover as taught by Baron for the purpose of allowing access for removal/replacement of the tube that is simple for the operator (paragraph [0025] of Baron).
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DNYANESH G KASTURE whose telephone number is (571)270-3928. The examiner can normally be reached Mon-Thu, 7:30 AM to 6:00 PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Essama Omgba can be reached at 469-295-9278. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/D.G.K/Examiner, Art Unit 3746
/ESSAMA OMGBA/Supervisory Patent Examiner, Art Unit 3746