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 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: “evaporator modules” in claim 1.
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.
Claim 5 is 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 5 recites the limitation "the float" in line 2. There is insufficient antecedent basis for this limitation in the claim. Claim 5 would need to depend upon claim 3 for antecedent basis for this limitation.
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 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) 1, 3 and 5-8 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Rasmussen et al (US 2010/0139871).
Regarding claim 1, Rasmussen discloses an improved surface evaporation system (a dry pond water evaporation system; paragraph [0008]), comprising; one or more evaporator modules floating on or proximate the surface of water in a treatment pit (a portable water evaporation system 400 (evaporator module) that is designed to rest within the area defined by a water capture depression 802 (treatment pit} of a dry pond system. The water evaporation system 400 includes a pair of support legs 401 designed to rest on top of a solid surface and/or float atop a water pond; paragraph (0060]; figure 4), wherein each of said one or more evaporator modules is configured to convert water from the treatment pit into water vapor for dispersal into a dispersal area over or proximate the treatment pit (portable water evaporation system 400 may be a pressurized water evaporation system and includes a plurality of water evaporation nozzles configured to generate clouds of fine water droplets; A fine spray or mist of water droplets is emitted over the water capturing depression 802, which is partially bounded by a raised outer perimeter (a dispersal area), by a pressurized water evaporation system 806. Pressurized water evaporation system 806 receives water from one or more water pumps 810 which are fluid communication with water storage tanks 812 which may receive water recirculated from the collection pool 804, which can receive runoff from water capturing depression 802 (treatment pit) via slope 819; paragraph [0060]; paragraph [0009]; paragraph [0071-0072]; figure 8B); wherein the direction of dispersal and distance of dispersal is controlled based on ambient conditions and dispersal parameters, wherein said ambient conditions include ambient humidity, wind speed, and wind direction (The water evaporation system may be equipped with automatic sensor and adjustment controls, which can dynamically adjust for changes in one or more variables including wind velocity, wind direction, relative humidity. The air pressure and/or water pressure delivered to the water evaporation nozzles can be increased or decreased as necessary to control the size and quantity of the water droplets emitted into the air. The change in size of the water droplets reduces drift, causing larger droplets to fall to the ground more quickly, and affecting their distance of dispersal. In addition, the angle of the spray nozzles may be controlled to alter the direction of dispersal; paragraph [0011]; paragraph [0083]).
Regarding claim 3, Rasmussen discloses the system of claim 1, Rasmussen further discloses wherein the one or more evaporator modules comprise a float with a plurality of spray nozzles extending vertically upward therefrom (portable water evaporation system 400 includes a pair of support legs 401 (floats) designed to float atop a water pond and a plurality of water evaporation nozzles 404 (spray nozzles), some of which are shown in figure 4 to extend approximately vertically upward; paragraph [0060]; figure 4).
Regarding claim 5, Rasmussen discloses the system of claim 1, Rasmussen further discloses wherein said dispersal parameters include one or more of spray nozzle size, spray nozzle height above the float, spray nozzle velocity, spray cone angle, and position of the evaporator module in the pit (Another way to offset the potential for wind Induced drift would be to provide a mobile water evaporation system (evaporator module) that can move into the direction of the wind. On a calm day, the spray nozzles, which are fixed to the mobile system, might Ideally be in the center of the water capture depression (pit); paragraph [0084]).
Regarding claim 6, Rasmussen discloses the system of claim 1, Rasmussen further discloses wherein the water is produced water (Examples of waste water sources that can be evaporated by the dry pond water evaporation systems include, but are not limited to, water produced during the drilling and extraction of oil and gas (produced water); paragraph [0007]).
Regarding claim 7, Rasmussen discloses the system of claim 1, Rasmussen further discloses wherein the direction of dispersal and distance of dispersal for each of said one or more evaporator modules is controlled independently of other evaporator modules (The water evaporation system (module) may be equipped with automatic sensor and adjustment controls, which can dynamically adjust for changes in one or more variables including wind velocity, wind direction, relative humidity. The air pressure and/or water pressure delivered to the water evaporation nozzles can be increased or decreased as necessary to control the size and quantity of the water droplets emitted into the air. The change in size of the water droplets reduces drift, causing larger droplets to fall to the ground more quickly, and affecting their distance of dispersal. In addition, the angle of the spray nozzles may be controlled to alter the direction of dispersal: because one module is being used, the controls are not dependent on other modules; paragraph [0011]; paragraph [0083]).
Regarding claim 8, Rasmussen discloses the system of claim 1, Rasmussen further discloses wherein the direction of dispersal and distance of dispersal for each of said one or more evaporator modules is controlled to prevent the water vapor from dispersing beyond the treatment pit edges (When there is significant wind, it may be desirable or necessary to offset the potential for drift caused by the wind and ensure that the water capture depression (treatment pit) is able to capture falling water and/ or initially dissolved solids emitted into the air. This may be accomplished by increasing the size of the water droplets which causes them to fall to the ground faster. decreasing their travel distance, so that they can be captured by the capture depression (treatment pit); paragraph [0083]).
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.
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rasmussen et al (US 2010/0139871) as applied above, and further in combination with Reinhardt (WO 2008/104172).
Regarding claim 4, Rasmussen discloses the system of claim 3, Rasmussen further discloses wherein said dispersal parameters include water droplet size (The air pressure and/or water pressure delivered to the water evaporation nozzles can be increased or decreased as necessary to control the size of the water droplets emitted into the air, which may be adjusted due to wind conditions; paragraph [0011]; paragraph [0083]). However, Rasmussen does not disclose wherein water droplet size is controlled by spray nozzle size.
Reinhardt teaches a system for wastewater brines disposal with atom, Reinhardt teaches that water droplet size is controlled by spray nozzle size (The invention thus discloses a nozzle device for spraying or atomizing liquid media with a main nozzle, the geometry of which generates a predetermined spray pattern with a predetermined droplet size spectrum. The droplet size Is adjustable via nozzle geometry; page 7; paragraph 7; page 6; paragraph 7).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the system of Rasmussen to include the water droplet size being controlled by spray nozzle size, as taught by Rasmussen, because the droplet size affects the distance of dispersal. Therefore, it would be advantageous to choose nozzles with size and dimensions that are capable of producing the desired droplet size under anticipated conditions.
Claim(s) 2 and 9-10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Rasmussen et al (US 2010/0139871) as applied above, and further in combination with Boulter (US 2014/0174672).
Regarding claim 2, Rasmussen discloses the system of claim 1, however Rasmussen fails to disclose wherein the one or more evaporator modules are ultrasonic evaporators with one or more piezoelectric transducers suspended below a surface of the water.
Boulter teaches a wastewater evaporation system that floats upon a pond (see title, abstract) Boulter discloses wherein the one or more ultrasonic transducers or evaporators are wholly or partially submerged under the water surface (In FIG. 11 the entire evaporator system 1000 is ready to move to another reservoir. Alternatively one skilled in the art can understand that the unit is operational as it stands so long as the pump inlet assembly 13 is submerged.; paragraph [0042]; figures 1, 10, 11, and 15).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the system of Rasmussen to include the one or more ultrasonic transducers or evaporators are wholly or partially submerged under the water surface, because Boulter discloses wherein the one or more ultrasonic transducers or evaporators are wholly or partially submerged under the water surface, as taught by Boulter, and therefore the skilled artisan would be motivated to ensure large volumes of wastewater are evaporated at an economically feasible cost (Boulter, paragraph [0015]).
Regarding claim 9, Rasmussen discloses the system of claim 2, however Rasmussen fails to disclose a hood above the ultrasonic transducers or evaporators, and a fan configured to draw water vapor up and through the hood.
Boulter teaches a wastewater evaporation system that floats upon a pond (see title, abstract) Boulter discloses a hood above the ultrasonic transducers or evaporators, and a fan configured to draw water vapor up and through the hood (A dissipater 121 ejects water out over the fan blade 120 as shown by arrows E and through the grated cover such that micro droplets 14 are blown into the atmosphere; paragraph [0043-0044]; figure 6).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the system of Rasmussen to include a hood above the ultrasonic transducers or evaporators, and a fan configured to draw water vapor up and through the hood, as taught by Boulter motivated to ensure large volumes of wastewater are evaporated at an economically feasible cost (Boulter; paragraph [0015]).
Regarding claim 10, Rasmussen discloses the system of claim 9, however Rasmussen fails to disclose a duct and blower configured to cause the water vapor to flow from the hood through the duct to an ejection point.
Boulter teaches a wastewater evaporation system that floats upon a pond (see title, abstract) Boulter discloses a hood above the ultrasonic transducers or evaporators, and a duct and blower configured to cause the water vapor lo flow from the hood through the duct to an ejection point (the water is sent to the evaporator fans at 60 via pipes 70 over fan blade 120. Finally, the fans evaporate the water to atmosphere at 80; paragraph [0037]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify the system of Rasmussen to include a duct and blower configured to cause the water vapor to flow from the hood through the duct to an ejection point, as taught by Boulter motivated to ensure large volumes of wastewater are evaporated at an economically feasible cost (Boulter, paragraph [0015]).
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 1-10 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-10 of U.S. Patent No. 11,944,919. Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims are the broader of the two sets of claims however it is held as obvious to claim the broader instantly claimed invention.
Pertinent Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Noles Jr (US 2018/0186659) teaches a wastewater evaporator for a water body. Noel et al (US 2018/0073247, etc) teaches a wastewater evaporator for a water body. Philips et al (US 2016/0325202) teaches a wastewater evaporator for a water body. Haslem et al (US 2007/0227674) teaches a wastewater evaporator for a water body. Foust (US 4,762,276) teaches a wastewater evaporator for a water body. House et al (US 4,428,842) teaches a wastewater evaporator for a water body.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHAN MILLER whose telephone number is (571)270-1603. The examiner can normally be reached Monday - Friday 9 - 5.
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/JONATHAN MILLER/Primary Examiner, Art Unit 1772