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
Independent claims 21 and 37 as well as dependent claims 27 and 28 and 15 recite structural limitations of a flange, channels and valves of an apparatus, followed by the manner to operate said limitations with corresponding functional language including: recitations of “settling a plurality of liquids separable by density over time” (claim 21), the 1st end of a line for passing fluid being maintained at a position proximate a liquid level in the tank (claim 27), a line operably connected to connect from proximate a liquid level (claim 28), and the apparatus as being capable of draining a container from a plurality of locations through a single aperture through the container wall (claim 37).
It is noted that neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. See Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App & Inter. 1987) that states 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.”
Thus, apparatus claims 21 and 37, dependent claims 27 and 28 and dependent claims 22-30 and 38-41, further defining independent apparatus claims 21 and 37, and dependent therefrom have been interpreted, on the merits, for evaluation for Double Patenting and 35 U.S.C. 103 Obviousness purposes, as not including the above functional limitations.
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 21-40 are rejected on the ground of nonstatutory obvious double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,478,728.
The instant claims at issue have overlapping inventorship with respect to the inventorship of patent ‘728 and substantially correspond to or are encompassed in the claims of patent ‘728, as presented herein in the following side-by-side comparison of the instant claims to the claims of ‘728.
21. An apparatus (‘728, claim 1 preamble) comprising:
a flange having an inside surface and an outside surface, and fitting around an opening through a wall in, and proximate a bottom of, a tank settling a plurality of liquids separable by density over time (‘728 claim 1 “flange” clause);
a first channel fixed to and extending through the flange connecting to a snorkel line extending into the tank (‘728 claim 1 “first channel” clause);
a second channel fixed to the flange and being exposed directly to an interior of the tank (‘728 claim 1 “second channel” clause); and
the first and second channels, sized and shaped to define respective, first and second paths, extending separately through the flange from proximate the inside surface to proximate the outside surface (‘728 claim 1 “second channel” clause).
22. The apparatus of claim 21, wherein the second channel encloses the first channel, forming therebetween the second path as an annulus (‘728 claim 2).
23. The apparatus of claim 21, further comprising a valve operably connected to control a flow through the first channel (‘728 claim 3).
24. The apparatus of claim 21, further comprising a valve operably connected to control a flow through the second channel (‘728 claim 4).
25. The apparatus of claim 22, comprising first and second valves operably connected to the first and second channels, respectively, to control flows therethrough (‘728 claim 5).
26. The apparatus of claim 21, wherein: the second channel encloses the first channel, forming therebetween the second path as an annulus; and the apparatus comprises first and second valves operably connected to the first and second channels, respectively, to control respective flows therethrough (‘728 claim 6).
27. The apparatus of claim 26, comprising:
a line passing a fluid therethrough, from a first end thereof maintained at a position proximate a liquid level in the tank, into the first channel operably connected to the line at a second end of the line; and
the second channel operably connected to be open proximate the inside surface of the flange (all in ‘728 claim 7).
28. The apparatus of claim 26, comprising:
the tank operably connected to the flange;
the line operably connected to connect from proximate the liquid level to the first channel; and
the second channel operably connected to drain the tank directly into the second path through the second channel (all in ‘728 claim 8).
29. The apparatus of claim 21, comprising: at least one valve operably connected to control a flow through at least one of the first channel and the second channel (all in ‘728 claim 10).
30. The apparatus of claim 28, further comprising first and second valves operably connected to the first and second channels to control draining of a tank from proximate a liquid level in the tank and proximate a bottom of the tank when the flange is sealingly secured to the tank (all in ‘728 claim 9).
31. A method comprising:
providing a flange having an inside surface and an outside surface, a first channel fixed to and extending through the flange and connecting to a snorkel line; a second channel fixed to the flange and exposed directly to the inside surface, wherein the first and second channels define respective first and second paths, extending separately through the flange from proximate the inside surface to proximate the outside surface (all in ‘728, claim 11 “providing” clause);
connecting the flange to an aperture through a wall of, and proximate a bottom of, a tank containing a mixture capable of separating over time into a plurality of liquids under an influence of gravity (728, claim 11 “connecting the flange” clause);
connecting a snorkel to the first channel to extend to and remain proximate a liquid level in the tank (‘728, claim 11 “connecting a snorkel” clause); and
exposing the second channel directly to an interior of the tank (‘728, claim 11 “exposing” clause).
32. The method of claim 31, comprising providing flotation to the snorkel (‘728, claim 12).
33. The method of claim 31, comprising: filling the tank with the mixture ;
leaving the mixture quiescent for a selected period of time; and
draining a comparatively lighter liquid through the snorkel and first channel from proximate the liquid level (‘728, claim 13).
34. The method of claim 33, comprising: providing a first valve operably connected to control a flow through the first channel; and providing a second valve operably connected to control a flow through the second channel (‘728, claim 14).
35. The method of claim 34, comprising operating the first valve to drain the comparatively lighter liquid (‘728, claim 15).
36. The method of claim 35, comprising operating a second valve to draining a comparatively heavier liquid through the second channel by operating the second valve (‘728, claim 16).
37. An apparatus capable of draining a container from a plurality of locations through a single aperture through a wall of the container (‘728, claim 17 preamble), the apparatus comprising:
a first channel connecting through an aperture in the container (‘728 claim 17, “first channel” clause);
a second channel connecting through the aperture directly to the interior of the container (‘728 claim 17, “second channel” clause);
a flange fastening sealingly to the container to fix the first and second channels in fluid communication with the interior (‘728 claim 17, “flange” clause); and
a line having a first end operably connectable to the first channel and extending to remain proximate a liquid level in the container as the liquid level descends as a result of draining (‘728 claim 17, “line” clause).
38. The apparatus of claim 37 comprising a valve operably connected to control a flow from the container through the first channel (‘728, claim 18).
39. The apparatus of claim 38, comprising: a float operably connected to maintain the second end of the line proximate the liquid level; and
a valve system operably connected to drain the container selectively through the line and first channel and through the second channel directly from the container (‘728, claim 19).
40. The apparatus of claim 37, comprising a valve system operably connected to drain selectively through the first and second channels to respective first and second destinations (‘728, claim 19).
Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims differ from the claims of ‘728 only as follows.
Instant independent apparatus claim 21 differs from independent apparatus claim 1 of ‘728 only by now not reciting the apparatus as “operable as a separator” and by omitting the phrases including “to be capable of” or “capable of” in the respective clauses concerning “a flange”, “a first channel”, “a second channel.
However, in each instance, it would have been obvious to the skilled artisan in the arts of separating liquids in a container, to have modified the structural units which are capable of respective fitting, connection and exposing to fluid in the container, as recited in the claims of ‘728 to actually be fitting, connecting and being exposed to fluid as recited in the instant claims.
Similarly, independent method claim 31 differs from independent method claim 11 of ‘728 only by omitting the phrase including “capable of” in the clause concerning “a flange” and is otherwise identical in wording.
However, it would have been obvious to the skilled artisan in the arts of separating liquids in a container, to have modified the method step of capability of fitting a flange to an opening in a wall as recited in the method claims of ‘728 to be actually fitting a flange to an opening in a wall as recited in the instant claims.
Similarly, independent apparatus claim 37 differs from independent apparatus claim 17 of ‘728 only by now not reciting the apparatus as “operable as a separator” and by omitting the phrases including “to be capable of” or “capable of” in the respective clauses concerning “a flange”, “a first channel”, “a second channel”, and is otherwise identical in wording.
However, in each instance, it would have been obvious to the skilled artisan in the arts of separating liquids in a container, to have modified the structural units which are capable of respective fitting, connection and exposing to fluid in the container, as recited in the claims of ‘728 to actually be fitting, connecting and being exposed to fluid as recited in the instant claims.
Claims 21-27, 29-31 and 33-40 are rejected on the ground of nonstatutory obvious double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 11,980,834.
The instant claims at issue have overlapping inventorship with respect to the inventorship of patent ‘834 and substantially correspond to or are encompassed in the claims of patent ‘834, as presented herein in the following side-by-side comparison of the instant claims to the claims of ‘834.
21. An apparatus (‘834, claim 1 preamble) comprising:
a flange having an inside surface and an outside surface, and fitting around an opening through a wall in, and proximate a bottom of, a tank settling a plurality of liquids separable by density over time (‘834 claim 1 “flange” clause);
a first channel fixed to and extending through the flange connecting to a snorkel line extending into the tank (‘834 claim 1 “first channel” clause);
a second channel fixed to the flange and being exposed directly to an interior of the tank (‘834 claim 1 “second channel” clause); and
the first and second channels, sized and shaped to define respective, first and second paths, extending separately through the flange from proximate the inside surface to proximate the outside surface (‘834 claim 1 “second channel” clause).
22. The apparatus of claim 21, wherein the second channel encloses the first channel, forming therebetween the second path as an annulus (‘834 claim 2).
23. The apparatus of claim 21, further comprising a valve operably connected to control a flow through the first channel (‘834 claim 4).
24. The apparatus of claim 21, further comprising a valve operably connected to control a flow through the second channel (‘834 claim 5).
25. The apparatus of claim 22, comprising first and second valves operably connected to the first and second channels, respectively, to control flows therethrough (‘834 claim 3).
26. The apparatus of claim 21, wherein: the second channel encloses the first channel, forming therebetween the second path as an annulus; and the apparatus comprises first and second valves operably connected to the first and second channels, respectively, to control respective flows therethrough (’834 claim 6).
27. The apparatus of claim 26, comprising:
a line passing a fluid therethrough, from a first end thereof maintained at a position proximate a liquid level in the tank, into the first channel operably connected to the line at a second end of the line; and
the second channel operably connected to be open proximate the inside surface of the flange (all in ‘834 claim 7).
29. The apparatus of claim 21, comprising: at least one valve operably connected to control a flow through at least one of the first channel and the second channel (all in ‘728 claim 9).
30. The apparatus of claim 28, further comprising first and second valves operably connected to the first and second channels to control draining of a tank from proximate a liquid level in the tank and proximate a bottom of the tank when the flange is sealingly secured to the tank (all in ‘834 claim 8).
31. A method comprising:
providing a flange having an inside surface and an outside surface, a first channel fixed to and extending through the flange and connecting to a snorkel line; a second channel fixed to the flange and exposed directly to the inside surface, wherein the first and second channels define respective first and second paths, extending separately through the flange from proximate the inside surface to proximate the outside surface (all in ‘834, claim 10 “providing” clause);
connecting the flange to an aperture through a wall of, and proximate a bottom of, a tank containing a mixture capable of separating over time into a plurality of liquids under an influence of gravity (‘834, claim 10 “connecting the flange” clause);
connecting a snorkel to the first channel to extend to and remain proximate a liquid level in the tank (‘834, claim 10 “connecting a snorkel” clause); and
exposing the second channel directly to an interior of the tank (‘834, claim 10 “exposing” clause).
33. The method of claim 31, comprising: filling the tank with the mixture ;
leaving the mixture quiescent for a selected period of time; and
draining a comparatively lighter liquid through the snorkel and first channel from proximate the liquid level (‘834, claim 11).
34. The method of claim 33, comprising: providing a first valve operably connected to control a flow through the first channel; and providing a second valve operably connected to control a flow through the second channel (‘834, claim 12).
35. The method of claim 34, comprising operating the first valve to drain the comparatively lighter liquid (‘834, claim 13).
36. The method of claim 35, comprising operating a second valve to draining a comparatively heavier liquid through the second channel by operating the second valve (‘834, claim 14).
37. An apparatus capable of draining a container from a plurality of locations through a single aperture through a wall of the container (‘834, claim 15 preamble), the apparatus comprising:
a first channel connecting through an aperture in the container (‘834 claim 15, “first channel” clause);
a second channel connecting through the aperture directly to the interior of the container (‘834 claim 15, “second channel” clause);
a flange fastening sealingly to the container to fix the first and second channels in fluid communication with the interior (‘834 claim 15, “flange” clause); and
a line having a first end operably connectable to the first channel and extending to remain proximate a liquid level in the container as the liquid level descends as a result of draining (‘834 claim 15, “line” clause).
38. The apparatus of claim 37 comprising a valve operably connected to control a flow from the container through the first channel (‘834, claim 16).
39. The apparatus of claim 38, comprising: a float operably connected to maintain the second end of the line proximate the liquid level (‘834, claim 17); and
a valve system operably connected to drain the container selectively through the line and first channel and through the second channel directly from the container (‘834, claim 15, “valve system” clause).
40. The apparatus of claim 37, comprising a valve system operably connected to drain selectively through the first and second channels to respective first and second destinations (‘834, claim 15, “valve system” clause).
Although the claims at issue are not identical, they are not patentably distinct from each other because the instant claims differ from the claims of ‘728 only as follows.
Instant independent apparatus claim 21 differs from independent apparatus claim 1 of ‘834 only by now not reciting the apparatus as “operable as a separator” and by omitting the phrases including “to be capable of” or “capable of” in the respective clauses concerning “a flange”, “a first channel”, “a second channel, and by omitting the phrase in the “flange” clause concerning “plurality of liquids separable by density”.
However, in each instance, it would have been obvious to the skilled artisan in the arts of separating liquids in a container, to have modified the structural units which are capable of respective fitting, connection and exposing to fluid in the container, as recited in the claims of ‘728 to actually be fitting, connecting and being exposed to fluid as recited in the instant claims. Additionally, the phrase “plurality of liquids separable by density” is deemed to not distinguish the apparatus or any feature thereof by positively recited structure.
Similarly, independent method claim 31 differs from independent method claim 11 of ‘728 only by omitting the phrase including “capable of” in the clause concerning “a flange” and is otherwise identical in wording.
However, it would have been obvious to the skilled artisan in the arts of separating liquids in a container, to have modified the method step of capability of fitting a flange to an opening in a wall as recited in the method claims of ‘728 to be actually fitting a flange to an opening in a wall as recited in the instant claims.
Similarly, independent apparatus claim 37 differs from independent apparatus claim 17 of ‘728 only by now not reciting the apparatus as “capable of draining a container” and by omitting the phrases including “to be capable of” or “capable of” in the respective clauses concerning “a flange”, “a first channel”, “a second channel”, and is otherwise identical in wording.
However, in each instance, it would have been obvious to the skilled artisan in the arts of separating liquids in a container, to have modified the structural units which are capable of respective fitting, connection and exposing to fluid in the container, as recited in the claims of ‘728 to actually be fitting, connecting and being exposed to fluid as recited in the instant claims.
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 28 and 30-40 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.
In claim 28, each of “the line” and “the liquid level” lack antecedent basis (correction of dependency from claim 26 to claim 27 is suggested to establish antecedent basis).
In claim 30, it is unclear whether “a liquid level in the tank” refers to the same or a different “liquid level” as introduced in claim 28, or if claim 28 dependency is corrected to claim 27, as introduced in claim 27.
In independent claim 31, it is unclear whether “a second channel…” is recited as the last in a series of the structural features which are provided in the “providing” clause, insertion of “and” after “snorkel line;” is suggested.
In claim 32, the meaning and scope of “providing flotation to the snorkel” is unclear (was such limitation intended to concern snorkel materials or construction being such as to float in the “mixture” or “plurality of liquids” introduced in claim 31?).
In claim 33, it is unclear whether the recited “a comparatively lighter liquid” refers to one of the “plurality of liquids” or “mixture” introduced in claim 31.
In claim 36, “operating a second valve to draining…” is grammatically confusing (replacing “draining” with “drain” is suggested) and it is unclear whether the recited “a comparatively heavier liquid” refers to one of the “plurality of liquids” or “mixture” introduced in claim 31.
In claim 37, in the preamble, it is unclear whether “a plurality of locations” refers to locations within “the container”; and in the last clause, it is unclear whether “extending to remain proximate a liquid level…” refers to a second end of the line or instead refers to a portion or all of the line.
In claim 39, “the second end of the line” lacks antecedent basis and is ambiguous as to what amount of the line is being referred to; and it is unclear whether “to drain the container selectively…” concerns draining through each of the first and second channels being selective or to a step or functionality of selectively initiating and performing draining through both channels together.
In claim 40, it is unclear whether “to drain selectively…” concerns draining through each of the first and second channels being selective or to a step or functionality of selectively initiating and performing draining through both channels together and unclear as to what is being drained by “valve system operably connected to drain” (are one or more liquids in the container being drained?).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 21-26, 29 and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Keller et al patent 3,485,516 (Keller) in view of Wendel patent 4,073,285, and Grant et al PGPUBS Document US 2002/0090210 (Grant). Paragraph numbers of the Specification of the applied Grant PGPUBS teaching reference are indicated by “[ ]” symbols.
Regarding independent claim 21, Keller discloses: An apparatus comprising:
a flange having an inside surface 5’ and an outside surface 5, and fitting around an opening through a wall in, and proximate a bottom of, a vessel, i.e. “tank”, (figure 1, column 2, lines 25-47 and column 3, lines 20-22 see “pipe-pipe…pipe-to-vessel…couplings”);
a first channel 1/2 fixed to and extending through the flange to be capable of connecting to a line 1’ extending into the tank (figure 1, column 2, lines 25-46, defines pipe to vessel, i.e. “tank” coupling - column 3, lines 20-23);
a second channel 3/6/6’/3’ fixed to the flange and capable of being exposed directly to an interior of the tank (figure 1, column 2, lines 25-46, defines pipe to vessel, i.e. “tank” coupling - column 3, lines 20-23); and
the first and second channels, sized and shaped to define respective, first and second paths 2, 4 , extending separately through the flange from proximate the inside surface to proximate the outside surface (see figure 1 and column 2, lines 25-46 regarding flange surfaces and other features and configuration of the channels and paths, as well as the channels receiving flowing medium or liquid).
Claim 21, and claims dependent therefrom, differ from Keller by requiring that the apparatus is operable to be used also in a tank settling a plurality of liquids.
Keller does suggest in the Background of the Invention, that such double channel or “double tube” flange connections are often used in the chemical industry, in particular for transmission of heat (column 1, lines 33-36), and discloses that the flange may form a pipe-to-vessel coupling (column 3, lines 20-22).
Wendel teaches a double channel or double tube coupling connection fitting around a wall opening 22, proximate a bottom of a hot water heater tank or container 12 for providing fluid paths for directing liquid into the container and draining liquid from the container 12 (Figure 1 and column 1, lines 11-49 and column 3, lines 31-55). Wendel teaches the tank as effective to separate hot water from relatively cold water (column 3, lines 3-23).
Wendel teaches in column 1, lines 11-49 that advantages of utilizing double-tube coupling fitting in a lower portion of the wall of the hot water heater near the heater bottom enable maintaining of evenly heated water in the hot water heater tanks, while avoiding premature or un-necessary operation of pressure-relief valves, responsive to false high-temperature sensing, triggered by hot water otherwise being introduced near the top of the tanks,
Grant teaches that hot water heaters may be utilized in chemical industries as well as domestically, and be coupled to piping by connection bodies [0074, 0075, 0079].
Thus, it would have been obvious to one of ordinary skill in the art of connecting flange connections for double-tube coupling fitting to vessels such as tanks to have utilized the Keller apparatus for coupling of drainage and water-supply tubes, to the bottom of a side wall of a hot water heater, as cumulatively taught by Wendel and Grant. Such a structural combination would have advantageously enabled separation of hot from cold water in the tank and would have efficiently maintained evenly heated water in the hot water heater tank, while avoiding premature or un-necessary operation of pressure-relief valves, responsive to false high-temperature sensing, triggered by hot water otherwise being introduced near the top of the tanks.
The water which is present in combination with solids to create sludge or sediment may be considered a first liquid in the vessel or tank, while water remaining separate from the sludge may be considered as a second liquid. Thus, drainage of the sludge from a hot water heater comprises a separation of liquids which are separable by density difference between the sludge and water mix and the remainder of the water.
The claims also differ by requiring that the first channel is connecting to a line which is a snorkel line extending into the tank. However, Wendel also teaches an inner first channel for containing inner tube 32 (figure 1) extends inwards and upwards in a snorkel shape to an air space above the liquid level in the tank upper end 38 (column 3, lines 31-54), thus forming a “snorkel line”. Wendel teaches that such extension of the tube enables collection of hot water near the top of the tank, from the heater tank separate from the cold water entering the tank.
Thus, it would have been further obvious to the skilled artisan to have enabled the first channel of the Keller apparatus as utilized with a hot water heater tank, as taught by Wendel, with such line which is snorkel line, to enable separate drainage of hot and cold water from the heater tank, (or “vessel” or “container”) in which the apparatus is employed.
Optionally, the limitation “a tank settling a plurality of liquids separable by density over time” is deemed to be functional language of a manner to operate or intended use of the tank, without a corresponding structural limitation of the line, hence is of little patentable weight.
It is noted that neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. See Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App & Inter. 1987) that states 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.”
Regarding claim 22, Keller also discloses the 2nd channel (3/6/6’/3’) as enclosing the 1st channel forming the second path as an annulus (figure 1 and column 2, lines 29-34 regarding “inner tubes”, “outer tubes” and “first and second paths”).
Regarding claims 23-26, 29 and 30, these claims further differ by requiring the apparatus as comprising a valve operably connected to control a flow through the first channel, a valve operably connected to connected to control a flow through the second channel, or valves operably connected to connected to control flow through both the first and second channel, respectively.
Wendel further teaches a double channel or double tube coupling connection fitting around a wall opening comprising a first valve 26/28 or 50 operably connected to control a flow through a 1st inner channel 38 (figure and column 3, lines 62-64) and second shut-off valve 40 operably connected to control a flow through a 2nd outer channel 36 of a draining apparatus , respectively (figure and column 3, lines 35-39 and 56-64).
Wendel teaches that such valves enable shutting off of the draining liquid through the channels whenever draining is not required, without causing actuation of a relief valve when the water in the tank is far below the actuation temperature (column 3, lines 25-64).
It would have been further obvious to the skilled artisan to have also modified the Keller device, by installing such first and second shut-off valves, as taught by Wendel, to enable shutting off of the draining liquid through the channels whenever draining is not required, without causing actuation of a relief valve when the water in the tank is far below the actuation temperature.
Specifically, regarding claim 26, Keller also discloses the 2nd channel (3/6/6’/3’) as enclosing the 1st channel forming the second path as an annulus (figure 1 and column 2, lines 29-34 regarding “inner tubes”, “outer tubes” and “first and second paths”).
Wendel further teaches a double channel or double tube coupling connection fitting around a wall opening comprising a first valve 26/28 or 50 operably connected to control a flow through a 1st inner channel 38 (figure and column 3, lines 62-64) and second shut-off valve 40 operably connected to control a flow through a 2nd outer channel 36 of a draining apparatus , respectively (figure and column 3, lines 35-39 and 56-64).
Wendel teaches that such valves enable shutting off of the draining liquid through the channels whenever draining is not required, without causing actuation of a relief valve when the water in the tank is far below the actuation temperature (column 3, lines 25-64).
Specifically for claim 30, Wendel further teaches apparatus further comprising first and second valves operably connected to the first and second channels to control draining of a tank from proximate a liquid level in the tank and proximate a bottom of the tank when the flange is sealingly secured to the tank. (See in Wendel first valve 26/28 or 50 operably connected to control a flow through a 1st inner channel 38 (figure and column 3, lines 62-64) and second shut-off valve 40 operably connected to control a flow through a 2nd outer channel 36 of a draining apparatus , respectively (figure and column 3, lines 35-39 and 56-64).
Wendel teaches that such valves enable selectively, thus controllably shutting off of the draining of liquid through the channels whenever draining is not required, without causing actuation of a relief valve when the water in the tank is far below the actuation temperature (column 3, lines 25-64).
It would have been further obvious to the skilled artisan to have also modified the Keller device, by installing such first and second shut-off valves, as taught by Wendel, to enable controllable or selective shutting off of the draining liquid through the channels whenever draining is not required, without causing actuation of a relief valve when the water in the tank is far below the actuation temperature.
Claims 27 and 28 are rejected under 35 U.S.C. 103 as being unpatentable over Keller et al patent 3,485,516 (Keller) in view of Wendel patent 4,073,285, and Grant et al PGPUBS Document US 2002/0090210 (Grant), as applied to claims 21-26 and 28-30 above, and further in view of Rice patent 1,035,813 (Rice).
For claim 27, Keller further discloses the second channel operably connected to be open proximate the inside surface of the flange.
Claim 27 further differs by requiring a line passing a fluid therethrough, from a first end thereof maintained at a position proximate a liquid level in the tank, into the 1st channel operably connected to the line at a second end of the line.
Rice teaches a steam boiler tank A1 including a fluid connection apparatus extending into the tank (figure 1), regarding a valve connection C2 operably connected to a channel in the form of a pipe elbow, which in turn is connected to a line C7 which is maintained at an opposite end at a position proximate a liquid level in the tank, as a result of being coupled to float means C10 (see figure 1, and page 3, lines 1-29).
Rice teaches such fluid connection structure as aiding purification of the water in the tank, by circulation of water from near the top into the bottom of the tank and by induced aeration from such water circulation, with such circulation and aeration taking place throughout the tank, which also results in precipitated matter settling out of the water into the bottom of the tank so as to be flushed (page 1, lines 19-40 in combination with page 3, lines 98-120).
Optionally, the limitation “a line…maintained at a position proximate a liquid level in the tank” is deemed a manner to be a functional limitation regarding intended use of tank and line with functional language, without a corresponding structural limitation of the line, hence is of little patentable weight.
It is noted that neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. See Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App & Inter. 1987) that states 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.”
It would have been further obvious to one of ordinary skill in the art to have also modified the Keller apparatus to include such a line passing a fluid therethrough, from a first end thereof maintained at a position proximate a liquid level in the tank, into the 1st channel operably connected to the line at a second end of the line, as taught by Rice, so as cause circulation of water from near the top into the bottom of the tank and by induced aeration from such water circulation, with such circulation and aeration taking place throughout the tank, which also results in precipitated matter settling out of the water into the bottom of the tank so as to be flushed.
For claim 28, Keller further discloses the apparatus comprising: vessel, i.e. “tank” operably connected to a flange (column 3, lines 20-23); and
the second channel operably connectable to drain such vessel or tank directly into a second path (figure 1, showing 1st and 2nd channels extending through a flanged wall, between 2nd channel 3’ or 1’ to 2nd flow path 3 or 1, which may define a vessel coupling - column 3, lines 20-23.
Claim 28 further differs by requiring a line operably connected to connect from proximate the liquid level to the first channel.
Rice teaches such line and operable connection ((figure 1), regarding a valve connection C2 operably connected to a channel in the form of a pipe elbow, which in turn is connected to a line C7 which is maintained at an opposite end at a position proximate a liquid level in the tank, as a result of being coupled to float means C10 (see figure 1, and page 3, lines 1-29).
Rice teaches such fluid connection structure as aiding purification of the water in the tank, by circulation of water from near the top into the bottom of the tank and by induced aeration from such water circulation, with such circulation and aeration taking place throughout the tank, which also results in precipitated matter settling out of the water into the bottom of the tank so as to be flushed (page 1, lines 19-40 in combination with page 3, lines 98-120).
It would have been further obvious to one of ordinary skill in the art to have also modified the Keller apparatus to include such a line passing a fluid therethrough, from a first end thereof maintained at a position proximate a liquid level in the tank, into the 1st channel operably connected to the line at a second end of the line, as taught by Rice, so as cause circulation of water from near the top into the bottom of the tank and by induced aeration from such water circulation, with such circulation and aeration taking place throughout the tank, which also results in precipitated matter settling out of the water into the bottom of the tank so as to be flushed.
Optionally, the limitation “to drain the tank directly into the second path” is deemed a manner to operate and utilize a tank and line in functional language, without a corresponding structural limitation of the tank or line, hence is of little patentable weight.
It is noted that neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. See Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App & Inter. 1987) that states 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.”
Claims 37-40 are rejected under 35 U.S.C. 103 as being unpatentable over Wendel patent 4,073,285 in view of Keller et al patent 3,485,516 (Keller) and Rice patent 1,035,813 (Rice).
For independent claim 37, Wendel discloses an apparatus capable of draining a container from a plurality of locations through a single aperture through a wall of the container (aperture within drain connection 22, see figure), the apparatus comprising:
a first pipe or tubing channel 32, having opening 38 connecting through an aperture in the container (figure, column 3, lines 31-55);
a second channel 25/23 defining annular flow space 36 connecting through the aperture directly to the interior of the container (figure, column 3, lines 31-55); and,
a connection fastening sealingly to the container to fix the first and second channels in fluid communication with the interior 22 (column 2, lines 8-15 re nested tubes containing the channels being sealed from each other and column 3, lines 12-20 re details of the drain connection); and
Claim 37 firstly differs by requiring a line having a first end operably connectable to the first channel and extending into the container.
Rice teaches a steam boiler tank A1 including a fluid connection apparatus extending into the tank (figure 1), proximate a valve connection C2 operably connected to a channel in the form of a pipe elbow, which in turn is connected to a line C7, which is maintained at an opposite end at a position proximate a liquid level in the tank, as a result of being coupled to float means C10 (see figure 1, and page 3, lines 1-29).
Rice teaches such fluid connection structure as aiding purification of the water in the tank, by circulation of water from near the top into the bottom of the tank and by induced aeration from such water circulation, with such circulation and aeration taking place throughout the tank, which also results in precipitated matter settling out of the water into the bottom of the tank so as to be flushed (page 1, lines 19-40 in combination with page 3, lines 98-120).
It would have been further obvious to one of ordinary skill in the art to have also modified the Keller apparatus to include such a line extending into the container, for passing a fluid therethrough, from a first end thereof maintained at a position proximate a liquid level in the tank, into the 1st channel operably connected to the line at a second end of the line, as taught by Rice, so as cause circulation of water from near the top into the bottom of the tank and by induced aeration from such water circulation, with such circulation and aeration taking place throughout the tank, which also results in precipitated matter settling out of the water into the bottom of the tank so as to be flushed.
Claim 37 also differs by requiring the connection as being a flange connection. However, Keller teaches an apparatus comprising:
a flange having an inside surface 5’ and an outside surface 5, and fitting around an opening through a wall in, and proximate a bottom of, a vessel, i.e. “tank”, (figure 1, column 2, lines 25-47 and column 3, lines 20-22 see “pipe-pipe…pipe-to-vessel…couplings”);
a first channel 1/2 fixed to and extending through the flange to be capable of connecting to a line 1’ extending into the tank (figure 1, column 2, lines 25-46, defines pipe to vessel, i.e. “tank” coupling - column 3, lines 20-23); and
a second channel 3/6/6’/3’ fixed to the flange and capable of being exposed directly to an interior of the tank (figure 1, column 2, lines 25-46, defines pipe to vessel, i.e. “tank” coupling - column 3, lines 20-23).
Keller teaches such flange connection arrangement as enable secure connection and positioning of the connection by securing of bolts (column 2, lines 47-56) and providing of grooves for installing sealing material 13 or sealing rings 14-16 for more secure leak-free sealing (column 2, lines 57-70)
It would have been obvious to one of ordinary skill in the art of selectively draining containers, to have modified the apparatus of Wendel, by constructing the container wall connection to be a flange connection, as taught by Keller, in order to enable secure connection and positioning of the connection by securing of bolts and providing of grooves for installing sealing material or sealing rings for more secure leak-free sealing
None of Wendel, Keller, nor Rice clearly teaches a line in a tank being drained, as remaining proximate a liquid level in the container as the liquid level descends as a result of draining. However, such limitation is deemed a manner to operate the claim limitations of container, fluid channels, flange connection and line with corresponding functional language, without a corresponding structural limitation of the line, hence is of little patentable weight.
It is noted that neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. See Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App & Inter. 1987) that states 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.”
For claim 38, Wendel further discloses a valve operably connected to control a flow from the container through the first channel (any of drain valves 28, 40 and 50 for controlling flow through channels 36 or 38, see the figure and column 3, lines 30-63).
For claim 39, Wendel further discloses a valve system operably connected to drain the container selectively through the line and first channel and through the second channel directly from the container (combination of drain valves 28, 40 and 50 for controlling flow through channels 36 or 38, see the figure and column 3, lines 30-63).
Claim 39 further differs by requiring a float operably connected to maintain the second end of the line proximate the liquid level.
Rice teaches Rice teaches a steam boiler tank A1 including a fluid connection apparatus extending into the tank (figure 1), proximate a valve connection C2 operably connected to a channel in the form of a pipe elbow, which in turn is connected to a line C7 which is maintained at an opposite end at a position proximate a liquid level in the tank, as a result of being coupled to float means C10 (see figure 1, and page 3, lines 1-29).
Rice teaches such fluid connection structure as aiding purification of the water in the tank, by circulation of water from near the top into the bottom of the tank and by induced aeration from such water circulation, with such circulation and aeration taking place throughout the tank, which also results in precipitated matter settling out of the water into the bottom of the tank so as to be flushed (page 1, lines 19-40 in combination with page 3, lines 98-120).
It would have been further obvious to one of ordinary skill in the art to have also modified the Keller apparatus to include such a line passing a fluid therethrough, from a first end thereof maintained at a position proximate a liquid level in the tank, into the 1st channel operably connected to the line at a second end of the line, as taught by Rice, so as cause circulation of water from near the top into the bottom of the tank and by induced aeration from such water circulation, with such circulation and aeration taking place throughout the tank, which also results in precipitated matter settling out of the water into the bottom of the tank so as to be flushed.
For claim 40, Wendel further discloses a valve system operably connected to drain selectively through the first and second channels to respective first and second destinations (again see any of drain valves 28, 40 and 50 for controlling flow through channels 36 or 38, see the figure and column 3, lines 30-63).
Allowable Subject Matter
Claims 31-36 would be allowable if rewritten or amended to overcome the rejections under Obviousness Double Patenting and 35 U.S.C. 112(b) set forth in this Office action.
Claim 31 would distinguish and be non-obvious over all of the prior art of record in view of recitation of a method comprising:
providing a flange having an inside surface and an outside surface,
a first channel fixed to and extending through the flange and connecting to a snorkel line;
a second channel fixed to the flange and exposed directly to the inside surface,
wherein the first and second channels define respective first and second paths, extending separately through the flange from proximate the inside surface to proximate the outside surface;
connecting the flange to an aperture through a wall of, and proximate a bottom of a tank;
exposing the second channel directly to an interior of the tank, , and
containing a mixture capable of separating over time into a plurality of liquids under an influence of gravity (all obvious over the closest prior art including a combination of Wendel, Rice and Keller, of record, and applied against the apparatus claims of this application); in view of further recitation of:
“connecting a snorkel to the first channel to extend to and remain proximate a liquid level in the tank” .
Such language requires the "snorkel" to thus either have a particular buoyancy, be coupled to a floatation device, or coupled to a control mechanism for such maintaining of position. Rice patent 1,035,813 is noted as teaching a steam boiler water purifying system including plural tanks and a tank with a telescoping, flexible pipe, attached to a floatation device, and coupled through a single drain pipe or tube to a complex circulation network of multiple valves and piping elbows and connections for draining and routing treated water to filtration tank. Such tank employs a combination of chemical treatment, precipitation and settling mechanisms for purifying the water. The complex circulation network of Rice would however, not be structurally compatible with the double-channel flange and coupling apparatus disclosed in Keller and as modified by Wendel, and thus it would not be further obvious to modify the modified Keller apparatus, to include maintaining a snorkel, which extends to and remains proximate a liquid level in the tank”.
Claims 32-36 would also be deemed to distinguish and be non-obvious over all of the prior art, in view of their dependence on claim 31.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Specifically, Anderson et al patent 3,189,725 teaches a hot water storage tank having a water-tight piping connection and drain valve on a lower portion of a tank wall proximate the bottom of the tank.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Primary Examiner Joseph Drodge at his direct government formal facsimile phone number telephone number of 571-272-1140. The examiner can normally be reached on Monday-Friday from approximately 8:00 AM to 1:00PM and 2:30 PM to 5:30 PM.
If attempts to reach the examiner are unsuccessful, the examiner' s supervisor, Benjamin Lebron, of Technology Center Unit 1773, can reached at 571-272-0475.
The telephone number, for official, formal communications, for the examining group where this application is assigned is 571-273-8300.
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JWD
08/13/2026
/JOSEPH W DRODGE/ Primary Examiner, Art Unit 1773
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