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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 4 March 2026 has been entered.
Priority
Applicant’s renewed petition to add a late claim for priority was granted. Therefore, the claimed invention is entitled to an earlier effective filing date than previously established. A review of the earlier filed applications shows that the instant claims find support in application 15/451,266 and are thus granted an effective filing date of 6 March 2017.
Specification
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required: recitation of the exact claim language “in the absence of air” with respect to the second space storing the HHO gas without exposure to air. Note that it is clear from originally filed paragraph [0119] that Applicant contemplated storing the HHO gas “air-free” in the second space, such that the specification as filed supports this language. Further, original claim 7 of application 15/451,266 to which priority has been claimed under 35 U.S.C. 120 provides explicit support for this claim limitation.
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.
Claims 1-12, 15, 16, 19, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Burns (US 2015/0101926).
Burns teaches (see fig. 1, abstract, paragraphs [0033]-[0036]) an electrolysis system comprising a pressure resistant container (comprised of two parts, 20 and 60) that contains a two-part container (upper portion 40 and lower portion 60) that contained an electrolytic cell, where the upper portion (40) included a first opening (16) through which electrolyte solution is introduced (into the electrolytic cell) and a second opening (19) through which product gas is removed (from the electrolytic cell). There is a first defined space (14) in the electrolytic cell that included an electrolyte solution. There is also a second defined space (the space in 12 to the right of barrier 30 and/or gas trap 26 and/or internal space 28) above the upper portion (40) capable of storing the product gas in the absence of air (note the fluid trap 42 as well as curtain 30 and gas shoot 44 co-act to prevent communication of air into the internal space 28 of gas trap 26). The lower portion of the second defined space (12) was defined by the upper portion (40) and received the product gas directly through the second opening. The electrolysis system of Burns also included a first electrolysis plate (62) and a second electrolysis plate (64) adjacent to the first electrolysis plate.
Thus, Burns meets all of the claim limitations of the presently claimed invention with the exception of being silent with respect to the ratio of volume between the first defined space (14) to the second defined space.
It would have been obvious to one of ordinary skill in the art to have determined an optimal ratio of the volume of the second defined space (12) with respect to the volume of the first defined space (14) on the basis that the ratio of the volumes permitted optimization of the amount of oxygen-hydrogen gas mixture which could be generated without adding water (a specific volume of water produced a specific amount of oxygen-hydrogen gas mixture) against the amount of oxygen-hydrogen gas mixture which could be stored at any instantaneous moment (the volume of the second defined space). See also MPEP 2144.04.IV.A. Changes in size/proportion are considered prima facie obvious, and Applicant has not provided evidence that the claimed ratio was critical is producing any result different than the result produced by the structure of Burns.
Regarding claims 2-4, Burns teaches (see paragraph [0001]) the electrolysis system producing a mixture of hydrogen and oxygen gases.
Regarding claim 5, the gas produced by Burns was a 2:1 stoichiometric mixture of hydrogen and oxygen gases, such that the enhancement gas was predominantly hydrogen gas. The claim term “consists substantially of hydrogen gas” is not expressly defined by the specification, and is treated according to the broadest reasonable interpretation, which is that the gas consists primarily of hydrogen gas, but does not close the composition to only hydrogen gas. A 66.7% hydrogen gas-33% oxygen gas mixture is considered to fall within the claim scope.
Regarding claims 6 and 7, Burns teaches (see paragraph [0031]) that the electrolysis system included an electrolyte in the first defined space (14).
Regarding claims 8 and 9, Burns teaches (see fig. 1, paragraphs [0030] and [0031]) the first and second defined spaces (14, 12, respectively) comprising tubing (e.g. 24, 48).
Regarding claims 10 and 11, Burns teaches (see fig. 1, paragraph [0033]) that the first defined space (14) was in fluid communication with the second defined space (12 to the right of 30) such as via a second flow path (19), which was configured to passively permit the oxygen-hydrogen gas mixture to flow from the first defined space into the second defined space.
Regarding claim 12, Burns teaches (see paragraph [0010]) that the system included a control unit configured to control the electrical current and/or voltage supplied to the electrodes (i.e.-electrolysis plates).
Regarding claim 15, Burns teaches (see abstract) using the gas generated to supplement a fuel supply of an internal combustion engine.
Regarding claim 16, Burns teaches (see paragraph [0055]) that the electrolysis system was mounted on a vehicle.
Regarding claim 19, Burns teaches (see fig. 1, abstract, paragraphs [0030]-[0032]) a method comprising immersing a plurality of electrode plates (62, 64) in a first defined space (14) of a pressure resistant container, and containing the gas produce in the first defined space in a second defined space (12 to the right of 30, i.e. internal space 28 of gas trap 26) of the pressure resistant container, wherein the gas is stored in the second defined space in the absence of air (note the fluid trap 42 as well as curtain 30 and gas shoot 44 co-act to prevent communication of air into the internal space 28 of gas trap 26 establishing the inherency of performing the claimed limitation).
Thus, Burns meets all of the claim limitations of the presently claimed invention with the exception of being silent with respect to the ratio of volume between the first defined space (14) to the second defined space (12).
It would have been obvious to one of ordinary skill in the art to have determined an optimal ratio of the volume of the second defined space (12) with respect to the volume of the first defined space (14) on the basis that the ratio of the volumes permitted optimization of the amount of oxygen-hydrogen gas mixture which could be generated without adding water (a specific volume of water produced a specific amount of oxygen-hydrogen gas mixture) against the amount of oxygen-hydrogen gas mixture which could be stored at any instantaneous moment (the volume of the second defined space). See also MPEP 2144.04.IV.A. Changes in size/proportion are considered prima facie obvious, and Applicant has not provided evidence that the claimed ratio was critical is producing any result different than the result produced by the structure of Burns.
Regarding claim 20, Burns teaches (see paragraph [0031]) that the electrolysis system included an electrolyte.
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Burns (US 2015/0101926) as applied to claim 12 above, and further in view of Underwood (US 3,862,624).
Burns fail to teach the controller being configured to regulate the pressure of the HHO gas.
Note that Burns teaches (see abstract) feeding the gas generated in the electrolysis system to an internal combustion engine.
In the same field of endeavor, Underwood teaches (see abstract, fig. 1, col. 3, lines 38-47) that when feeding hydrogen and oxygen gases to an internal combustion engine it was known to provide an automatic valve control to control the quantity of oxygen and hydrogen being introduced into the intake manifold of the engine based at least upon the measured pressure in the intake manifold via a sensor (62). Controlling the quantity of oxygen and hydrogen being introduced is considered to inherently control the pressure of the gases since the rate of flow was related to the pressure of the gas via the ideal gas law (PV=nRT).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing to have incorporated the control of the flow/pressure of the hydrogen and oxygen in the system of Burns at least partially based upon a measured pressure inside the intake manifold of an internal combustion engine as suggested by Underwood for the purpose of permitting the flow rates of hydrogen and oxygen to match the demand of the internal combustion engine as taught by Underwood.
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Burns (US 2015/0101926) as applied to claim 12 above, and further in view of Adair (US 2013/0061822).
Burns fail to teach that the voltage of the power supply is pulse width modulated.
Adair teaches, within the same field of endeavor of producing hydrogen and oxygen gases by electrolysis for enhancement of internal engine combustion (see abstract, paragraph [0001]), that pulse width modulation may be applied to control the voltage in the electrolysis cell to permit matching the volume of gas being produced to the demand of the engine (paragraph [0035]).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing to have added pulse width modulation voltage control to the controller of Burns as suggested by Adair for the purpose of permitting matching the volume of gas being produced to the demand of the engine.
Claims 17 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Burns (US 2015/0101926) in view of Underwood (US 3,862,624).
Burns teaches (see fig. 1) an electrolysis system comprising a pressure-resistant container comprising a first defined space (14) configured to immerse a plurality of electrolysis plates (62, 64) in an electrolyte solution container therein and a second defined space (12) configured to store the generated oxygen-hydrogen gas mixture (i.e.-“HHO gas”). In paragraph [0030], Burns teaches the use of a fluid trap (42) to lock air to only within a downwardly projecting tube (24), and the curtain 30 and gas shoot 44 co-act to further provide isolation of the stored oxygen-hydrogen gas mixture from outside air. Thus, the oxygen-hydrogen gas mixture was stored in the absence of air.
Thus, Burns meets all of the claim limitations of the presently claimed invention with the exception of (1) being silent with respect to the ratio of volume between the first defined space (14) to the second defined space (12) and (2) the controller being configured to regulate the pressure of the HHO gas relative to the intake manifold pressure of an internal combustion engine.
Regarding (1), it would have been obvious to one of ordinary skill in the art to have determined an optimal ratio of the volume of the second defined space (12) with respect to the volume of the first defined space (14) on the basis that the ratio of the volumes permitted optimization of the amount of oxygen-hydrogen gas mixture which could be generated without adding water (a specific volume of water produced a specific amount of oxygen-hydrogen gas mixture) against the amount of oxygen-hydrogen gas mixture which could be stored at any instantaneous moment (the volume of the second defined space). See also MPEP 2144.04.IV.A. Changes in size/proportion are considered prima facie obvious, and Applicant has not provided evidence that the claimed ratio was critical is producing any result different than the result produced by the structure of Burns.
Regarding (2), note that Burns teaches (see abstract) feeding the gas generated in the electrolysis system to an internal combustion engine.
In the same field of endeavor, Underwood teaches (see abstract, fig. 1, col. 3, lines 38-47) that when feeding hydrogen and oxygen gases to an internal combustion engine it was known to provide an automatic valve control to control the quantity of oxygen and hydrogen being introduced into the intake manifold of the engine based at least upon the measured pressure in the intake manifold via a sensor (62). Controlling the quantity of oxygen and hydrogen being introduced is considered to inherently control the pressure of the gases since the rate of flow was related to the pressure of the gas via the ideal gas law (PV=nRT).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of filing to have incorporated the control of the flow/pressure of the hydrogen and oxygen in the system of Burns at least partially based upon a measured pressure inside the intake manifold of an internal combustion engine as suggested by Underwood for the purpose of permitting the flow rates of hydrogen and oxygen to match the demand of the internal combustion engine as taught by Underwood.
Regarding claim 18, Burns teaches (see paragraph [0031]) that the electrolysis system included an electrolyte.
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 1-7, 10-13, and 15-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-15 of U.S. Patent No. 10,605,162. Although the claims at issue are not identical, they are not patentably distinct from each other because see claim 7 of the ‘162 patent which recites the first defined space, second defined space and electrolysis plates as required by the instant claims.
Claims 1-7, 10-13, and 15-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-22 of U.S. Patent No. 11,280,261. Although the claims at issue are not identical, they are not patentably distinct from each other because see claim 1 of the ‘162 patent which recites the first defined space, second defined space and electrolysis plates as required by the instant claims.
Response to Arguments
Applicant's arguments filed 4 March 2026 have been fully considered but they are not persuasive. Applicant has argued that Burns fails to teach storing the gas produced by electrolysis in the absence of air.
In response, for at least claims 1 and 17, note that these claims are apparatus claims and are interpreted based upon recited structural elements and the necessary structural elements for performing a functional limitation. Here, Applicant has failed to recite any structural elements in the specification that provide for the function of storing the gas in the absence of air. Thus, the structure of Burns, which is capable of storing the gas in the absence of air as described above, meets the structural elements required by this functional limitation. For claim 19, it is noted that it appears that the structure of Burns inherently performs the step of storing the gas in the absence of air due to the isolation of the internal space of the gas trap from the outside air.
Conclusion
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/HARRY D WILKINS III/Primary Examiner, Art Unit 1794
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