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 .
Response to Arguments
Applicant’s arguments, see pages 8-10, filed 10 March 2026, with respect to previous objections to the specification and drawings, as well as previous rejections under 35 U.S.C. 112(b) have been fully considered and are persuasive. These objections and rejections have been withdrawn.
Applicant's arguments, see pages 11-12, regarding the Berg et al. prior art reference have been fully considered but they are not persuasive. Applicant argues that the spherical canister device disclosed by Berg et al. fails to meet the recited limitations of instant independent claim 2, being a spherical canister for vacuum collection and storage of medical fluids and, allegedly, cannot perform the intended use/functional recited limitation “to hold the medical fluids under vacuum.” Applicant additionally makes reference to portions of the instant specification regarding the instant invention and argues that is for vacuum collection and storage of medical fluids for disposal purposes (e.g., surgical and post-surgical secretions and waste fluids of various kinds from a patient. The Examiner respectfully disagrees for a least four reasons. First, in response to applicant's argument that the Berg et al. reference fails to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., collection and storage of medical fluids for disposal purposes (e.g., surgical and post-surgical secretions and waste fluids of various kinds from a patient) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Second, the preamble of instant independent claim 2 is “for” vacuum collection and storage of medical fluids, as such, this is intended use of the recited canister device, which has no patentable weight on the recited structural aspects recited, which Berg et al. clearly discloses. Third, the manner of operating the spherical canister device does not differentiate an apparatus claim from the prior art. “Apparatus claims cover what a device is, not what the device does.” see Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "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" if the prior art apparatus teaches all the structural limitations of the claim. See Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). As such, the limitations in the preamble of instant independent claim 2, as well as the limitations “to hold the medical fluids under vacuum” are only recitations with respect to the manner a claimed apparatus/device is intended to be employed, and does not differentiate the claimed apparatus/device from the Berg et al. prior art spherical canister device. The claimed invention is directed to an apparatus/device, not a system, or method of collecting fluids including vacuum pumps and/or other system aspects in combination with the recited apparatus/device. Lastly, fourth, the spherical apparatus/device disclosed by Berg et al. is capable of being configured for pressure testing for leaks (see paras 0034-0037), thus is completely functionally capable to perform the intended use limitations regarding the aforementioned limitations regarding holding fluids under vacuum.
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 8 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. Instant independent claim 2 recites: “that a first hemisphere and a second hemisphere are joined (emphasis added) at a canister beltline,” and “the first-hemisphere inner annular rib is in sealable contact (emphasis added) with the second-hemisphere outer annular rib.” As such, instant independent claim 2 is reciting a fully formed spherical canister from previously separate components, being the first hemisphere and the second hemisphere shells. However, instant dependent claim 8, recites: “the first-hemisphere inner annular rib has an outer diameter greater than an inner diameter of the second-hemisphere outer annular rib.” As such, the limitations of instant dependent claim 8 are directed to the diameters of the annular ribs prior to joining or any sealable contact of the annular ribs, which renders the claim indefinite and fails to further limit the fully formed spherical canister recited in instant independent claim 2. Evidence of this is in instant Fig. 5, indicating that the first-hemisphere inner annular rib (52) has the exact same diameter (i.e. D1 = D2), as indicated by the dashed lines (98 and 99) are co-linear in the joined configuration of the fully formed spherical canister.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 2, 7, 9 and 20 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by U.S. 2017/0340812 to Berg et al. Berg et al. disclose a spherical canister for vacuum collection and storage of medical fluids including a first hemisphere (42) and a second hemisphere (44) jointed at a canister beltline (see Fig. 3, where elements 46, 70, 72, 74 are co-located); the first hemisphere including a first shell having one or more ports (10) extending therefrom and a first-hemisphere beltline (location of element 72), the first-hemisphere beltline having a first-hemisphere inner annular rib (74); the second hemisphere including a second shell and a second-hemisphere beltline (location of element 46) having a second-hemisphere outer annular rib (46); wherein the first-hemisphere inner annular rib (74) is in sealable contact with the second-hemisphere outer annular rib (46) to for a medical fluid-holding volume with the sealable contact positioned about the medical fluid-holding volume; and wherein the one or more ports provide fluid communication with the fluid-holding volume to hold the medical fluids under vacuum (as recited in instant independent claim 2); wherein the sealable contact between the first-hemisphere inner annular rib (74) and the second-hemisphere outer annular rib (46) is continuous about the spherical canister (as recited in instant dependent claim 7); wherein the first-hemisphere inner annular rib (74) is in pressured contact with the second-hemisphere outer annular rib (46) to provide the sealable contact (as recited in instant dependent claim 9); wherein the first-hemisphere beltline and the second-hemisphere beltline are located below a maximum fluid collection height in the fluid-holding volume (as recited in instant dependent claim 20).
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) 8, 11, 16 and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. 2017/0340812 to Berg et al. as applied to claim 2 above, and further in view of U.S. 6,708,839 to Diesterbeck. Berg et al. disclose a spherical canister having all of the elements stated previously. Berg et al. further disclose that the first-hemisphere beltline further includes a first-hemisphere outer annular rib (72) surrounded by the first-hemisphere inner annular rib (74) (as partially recited in instant dependent claim 16). Berg et al. does not explicitly disclose the first-hemisphere inner annular rib has an outer diameter greater than an inner diameter of the second-hemisphere outer rib (as recited in instant dependent claim 8); the second-hemisphere outer annular rib includes a lip at a side opposite the fluid-holding volume and the first-hemisphere beltline includes a first-hemisphere outer annular rib that at least partially encloses the lip (as recited in instant dependent claim 11); the second-hemisphere beltline further includes a second-hemisphere inner annular rib surrounded by the second-hemisphere outer annular rib (as recited in the remaining limitations of instant dependent claim 16); or wherein the second-hemisphere outer annular rib includes a lip at a side opposite the fluid-holding volume and an outer surface of the lip is proximate to an inner surface of the first-hemisphere outer annular rib (as recited in instant dependent claim 17). Diesterbeck discloses a canister/container having a first component (2) and second component (3) with associated beltlines/connection areas and rib structures associated with the beltlines/connections to form a fluid-holding volume with a continuous sealable contact positioned about the canister/container (see Fig. 2 and entire reference); wherein the first component has an outer annular rib (17) and a an inner annular rib (20), and wherein the second component has an outer annular rib (15) and an inner annular rib (22); wherein the second component inner annular rib (22) is surrounded by the second component outer annular rib (15) (meeting the remaining limitations recited in instant dependent claim 16); wherein the second-hemisphere outer annular rib (15) includes a lip (6, 16) at a side opposite the fluid-holding volume and the first component beltline further includes a first component outer annular rib (17) that at least partially encloses the lip (meeting the limitations recited in instant dependent claim 11); and wherein the second component outer annular rib (15) includes the lip (6, 16) at a side opposite from the fluid-holding volume and an outer surface of the lip is proximate to the inner surface of the first component outer annular rib (17) (meeting the limitations recited in instant dependent claim 17), and, as best understood, before connecting the first component to the second component, the first component inner annular rib has an outer diameter greater than an inner diameter of the second component outer rib (as recited in instant dependent claim 8). It would have been obvious to one having ordinary skill in the art as of the effective filing date of the instant invention to employ all the structural elements/details and associated functional aspects recited in instant dependent claims 8, 11, 16 and 17, as taught by Diesterbeck, modifying the spherical canister and hemispherical components and associated elements disclosed by Berg et al., thus providing a spherical canister that reliably fulfills the special demands imposed on leak-proofness being maintained, particularly when exposed to events of external forces, such as blows or jolts, or of the canister falling (see col. 1, lines 15-34).
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. 2017/0340812 to Berg et al. and U.S. 6,708,839 to Diesterbeck as applied to claims 2 and 11 above, and further in view of U.S. 2014/0061215 to Chang. Berg et al. and Diesterbeck disclose a spherical canister having all of the elements and associated functionality stated previously, including the lip (6, 16) of the second-hemisphere outer annular lip. Berg et al. and Diesterbeck do not explicitly disclose the first-hemisphere outer annular rib includes at least one latch opening at which a latch is connected thereto in position to engage the lip of the second-hemisphere outer annular rib. Chang discloses a canister (see entire reference) having a first component (20) and a second component (10) forming the fluid holding volume of the canister (see entire reference) wherein the first component has an outer annular rib (30, 31) and an inner annular rib (21), wherein the outer annular rib includes at least one latch opening (see Fig. 1) at which a latch (41) is connected thereto in a position to engage a lip (12) of the second component annular rib (11). It would have been obvious to one having ordinary skill in the art as of the effective filing date to employ the latch within a latch opening, as taught by Change, modifying the first-hemisphere outer annular rib, the latch engaging the lip of the second-hemisphere outer annular rib disclosed by Berg et al. and Diesterbeck, thus enhancing the engagement of the first-hemisphere component to the second-hemisphere component, preventing difficult in the process of connecting and disconnecting the first-hemisphere component to the second-hemisphere component and increasing stability of the connection, along with other benefits (see paras 0004-0010 of Chang), thus meeting all the limitations recited in instant dependent claim 12.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over U.S. 2017/0340812 to Berg et al. as applied to claim 2 above, and further in view of U.S. 8,444,615 to Tippet et al. Berg et al. disclose a spherical canister having all of the recited elements previously. Berg et al. does not explicitly disclose the canister further includes indicia on an outer surface of the canister sphere, the indicia providing measurement of the volume of the fluid within the fluid-holding volume, as recited in instant dependent claim 3. Tippet et al. disclose a canister sharing some structural aspects of Kim (see entire reference, in particular Fig. 4) wherein indicia (45) is placed on the outer surface to provide measurement of the volume of fluid within the fluid-holding volume of the canister. It would have been obvious to add indicia on the first and/or second hemisphere to indicate/measure the fluid volume within the canister disclosed by Berg et al., employing the teachings of Tippet et al., thus providing a level/volume measurement within the entirety of the container, if desired.
Conclusion
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 Primary Examiner John Fitzgerald whose telephone number is (571) 272-2843. The examiner can normally be reached on Monday-Friday from 7:00 AM to 3:30 PM E.S.T. If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor John Breene, can be reached at telephone number (571) 272-4107. 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. The central 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.
/JOHN FITZGERALD/Primary Examiner, Art Unit 2855