DETAILED CORRESPONDENCE
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 .
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: the limitations in claim 20, including the term “spill”, do not have antecedent basis in the specification.
Double Patenting Warning
Applicant is advised that should claim 8 be found allowable, claim 9 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Double Patenting Rejection
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 2-4, 6-11, and 15-17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 1,1643,344. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Claim 1 of U.S. Patent No. 11,643,344 contains all the limitations of the pending application’s claims 2-4, 6, and 11.
Claim 2 of U.S. Patent No. 11,643,344 contains all the limitations of the pending application’s claim 7.
Claim 3 of U.S. Patent No. 11,643,344 contains all the limitations of the pending application’s claims 8-9.
Claim 5 of U.S. Patent No. 11,643,344 contains all the limitations of the pending application’s claim 10.
Claim 1 of U.S. Patent No. 11,643,344 contains all the limitations of the pending application’s claims 15-17 except the limitation concerning the output connection. The modification would have been obvious in order to output the product of the device.
Claim Rejections - 35 USC § 112(b)
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 2-21 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 2 recites the limitation "one or more oxygen infusion modules" and then further recites that modules include a first array of a plurality of oxygen infusion modules and a second array of a plurality of oxygen infusion modules. It is unclear if “one” oxygen infusion module is an option because of the recited pluralities.
Claim 2 recites “after it flows”, where the antecedent of “it” is unclear.
Claims 3-14 depend upon claim 2.
Claim 15 recites the limitation "one or more oxygen infusion modules" and then further recites that modules include a first oxygen infusion module and a second oxygen infusion modules. It is unclear if “one” oxygen infusion module is an option because of the two recited modules.
Claims 16 depend upon claim 15.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 2, 5, 12-15, and 21 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Teran et al. US 5,785,864 (hereafter Teran).
Regarding claim 2, Teran teaches an oxygenation system for fluids (col 8 lines 37-50), the system comprising:
an oxygen source (80) configured to supply pressurized oxygen; and
an oxygen infusion system (10) comprising one or more oxygen infusion modules (16, 18, 20) in fluid communication with the oxygen source;
wherein the oxygen infusion system is configured to receive a flow of fluid from a supply line (36) such that the fluid flows through each of the one or more oxygen infusion modules (col 7 lines 44-55); and
wherein the one or more oxygen infusion modules include a first array of a plurality of oxygen infusion modules (16, 18) arranged in parallel and a second array of a plurality of oxygen infusion modules (20) arranged in parallel (col 6 line 66 – col 7 line 2), the second array arranged in series with the first array (col 6 lines 54-65), so that the fluid flows in parallel through the plurality of oxygen infusion modules of each of the first array and the second array, so that the pressurized oxygen flows in parallel through the plurality of oxygen infusion modules of the each of the first array and the second array, and so that the fluid flows through the second array after it flows through the first array (col 6 lines 54-65, Fig 1).
Regarding claim 5, Teran teaches all the limitations of claim 2. Teran further teaches a controller (35, 27) configured to control one or both of the flow of fluid and the flow of pressurized oxygen through the one or more oxygen infusion modules.
Regarding claim 12, Teran teaches all the limitations of claim 2. Teran further teaches an output connection (227) in fluid communication with the one or more oxygen infusion modules, wherein the oxygenated fluid is configured to be discharged from the oxygen infusion system via the output connection.
Regarding claim 13, Teran teaches all the limitations of claim 2. Teran further teaches wherein the oxygen source is configured to supply pressurized oxygen of at least 85% purity (col 10 line 51 – col 11 line 8, where the oxygen generator would be fully capable of producing the claimed purity).
Regarding claim 14, Teran teaches all the limitations of claim 2. Teran further teaches wherein the fluid and the pressurized oxygen flow through the oxygen infusion modules in a co-current manner (as shown in Fig 1).
Regarding claim 15, Teran teaches an oxygenation system for fluids (col 8 lines 37-50), the system comprising:
an oxygen source (80) configured to supply pressurized oxygen; and
an oxygen infusion system (10) comprising one or more oxygen infusion modules (16, 18, 20) in fluid communication with the oxygen source;
wherein the oxygen infusion system is configured to receive a flow of fluid from a supply line (36) such that the fluid flows through each of the one or more oxygen infusion modules (col 7 lines 44-55);
wherein the oxygenated fluid discharged from the oxygen infusion system via an output connection (227), and
wherein the one or more oxygen infusion modules includes a first oxygen infusion module (16, 18) and a second oxygen infusion module (20), the second oxygen infusion module arranged in series with the first oxygen infusion module so that fluid flows through the first oxygen infusion module and then flows through the second oxygen infusion module (col 6 lines 54-65, Fig 1).
Regarding claim 21, Teran teaches all the limitations of claim 15. Teran further teaches a gas vent (201) configured to vent undissolved oxygen and nitrogen from the oxygen infusion system.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Teran as applied to claim 2 above.
Regarding claim 3, Teran teaches all the limitations of claim 2.
Teran does not teach wherein the first array of oxygen infusion modules is spaced vertically above the second array of oxygen infusion modules.
MPEP 2144.04 VI C states that rearrangement of parts does not patentably distinguish the claimed invention from the prior art. Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the system (col 8 lines 37-50) of Teran such that the first array of oxygen infusion modules is spaced vertically above the second array of oxygen infusion modules as a matter of obvious rearrangement of parts and in order to allow the water to flow form the first array to the second array with the aid of gravity.
Claims 6-11 are rejected under 35 U.S.C. 103 as being unpatentable over Teran as applied to claim 2 above and further in view of Glassford US 6,209,855 (hereafter Glassford).
Regarding claim 6, Teran teaches all the limitations of claim 2.
Teran does not teach wherein each oxygen infusion module comprises a housing, a plurality of hydrophobic hollow microporous fibers disposed in the housing, each of the plurality of hydrophobic hollow microporous fibers having a longitudinal bore and a plurality of micropores on a circumferential wall about the longitudinal bore.
Glassford teaches an oxygenation system for fluids (col 3) comprising a oxygen infusion module (Fig 2) wherein each oxygen infusion module comprises a housing (2), a plurality of hydrophobic hollow microporous fibers (27, col 5 lines 15-26) disposed in the housing, each of the plurality of hydrophobic hollow microporous fibers having a longitudinal bore and a plurality of micropores on a circumferential wall about the longitudinal bore (col 5 lines 16-26).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the oxygen infusion modules (16, 18, 20) of Teran by substituting the oxygen infusion modules (Fig 2) of Glassford in order to produce better gas/liquid mixing (Glassford col 3 lines 17-25).
Regarding claim 7, Teran in view of Glassford teaches all the limitations of claim 6.
Teran does not teach wherein the micropores have a pore pathway diameter of between about 0.01 μm to about 5 μm.
Glassford teaches wherein the micropores have a pore pathway diameter of between about 0.01 μm to about 5 μm (col 4 lines 40-45).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the oxygen infusion modules (16, 18, 20) of Teran by substituting the oxygen infusion modules (Fig 2) with the pore pathway diameter (col 4 lines 40-45) of Glassford in order to produce better gas/liquid mixing (Glassford col 3 lines 17-25).
Regarding claims 8-9, Teran in view of Glassford teaches all the limitations of claim 6.
Teran does not teach wherein each of the plurality of hydrophobic hollow microporous fibers has a length of between about 9 inches and about 13 inches.
Glassford teaches wherein each of the plurality of hydrophobic hollow microporous fibers has a length of between about 12 inches and about 25 inches (col 6 table II).
it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the oxygen infusion modules (16, 18, 20) of Teran by substituting the oxygen infusion modules (Fig 2) with the 12 to 25 inch length (Table II) of Glassford in order to produce better gas/liquid mixing (Glassford col 3 lines 17-25).
MPEP 2144.05 II states that where the prior art and claim ranged overlap, a prima facie case of obviousness exists to choose the overlapping portions.
Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the Glassford length to be 12 to 13 inches as a matter of obvious choosing the overlapping portion.
Regarding claim 10, Teran in view of Glassford teaches all the limitations of claim 6.
Teran does not teach wherein the plurality of hydrophobic hollow microporous fibers for each of the oxygen infusion modules has a porosity of 75%.
Glassford teaches wherein the plurality of hydrophobic hollow microporous fibers for each of the oxygen infusion modules has a porosity of at least 10% and a specific teaching of 70% (col 4 lines 53-54, col 6 table I).
it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the oxygen infusion modules (16, 18, 20) of Teran by substituting the oxygen infusion modules (Fig 2) with the at least 10% porosity (Table I) of Glassford in order to produce better gas/liquid mixing (Glassford col 3 lines 17-25).
MPEP 2144.05 II states that where the prior art and claim ranged overlap, a prima facie case of obviousness exists to choose the overlapping portions.
Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the Glassford porosity to be 75% as a matter of obvious choosing the overlapping portion.
Regarding claim 11, Teran in view of Glassford teaches all the limitations of claim 6.
Teran does not teach wherein as the fluid flows through each of the one or more oxygen infusion modules, the fluid comes in contact with the circumferential wall of one or more of the plurality of hydrophobic hollow microporous fibers so that the pressurized oxygen is transferred to the fluid through the plurality of micropores such that oxygen transfer to the fluid occurs free of oxygen bubbles in the fluid.
Glassford teaches wherein as the fluid flows through each of the one or more oxygen infusion modules, the fluid comes in contact with the circumferential wall of one or more of the plurality of hydrophobic hollow microporous fibers so that the pressurized oxygen is transferred to the fluid through the plurality of micropores such that oxygen transfer to the fluid occurs free of oxygen bubbles in the fluid (col 2 line 53 – col 3 line 12).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the oxygen infusion modules (16, 18, 20) of Teran by substituting the oxygen infusion modules (Fig 2) with the circumferential wall (col 2 line 53 – col 3 line 12) of Glassford in order to produce better gas/liquid mixing (Glassford col 3 lines 17-25).
Claims 16-20 are rejected under 35 U.S.C. 103 as being unpatentable over Teran as applied to claim 15 above and further in view of Clark et al. US 2012/0024784 (hereafter Clark).
Regarding claim 16, Teran teaches all the limitations of claim 15.
Teran does not teach wherein each oxygen infusion module comprises a housing, a plurality of hydrophobic hollow microporous fibers disposed in the housing, each of the plurality of hydrophobic hollow microporous fibers having a longitudinal bore and a plurality of micropores on a circumferential wall about the longitudinal bore, each oxygen infusion module being in fluid communication with the oxygen source so that the plurality of hydrophobic hollow microporous fibers receive the pressurized oxygen from the oxygen source through the longitudinal bore thereof.
Clark teaches an oxygenation system (¶31) wherein each oxygen infusion module comprises a housing, a plurality of hydrophobic hollow microporous fibers disposed in the housing, each of the plurality of hydrophobic hollow microporous fibers having a longitudinal bore and a plurality of micropores on a circumferential wall about the longitudinal bore, each oxygen infusion module being in fluid communication with the oxygen source so that the plurality of hydrophobic hollow microporous fibers receive the pressurized oxygen from the oxygen source through the longitudinal bore thereof (¶57-58, Figs 2).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the oxygen infusion modules (16, 18, 20) of Teran by substituting the oxygen infusion modules (Figs 2) of Clark in order to produce microbubbles (Clark ¶7).
Regarding claim 17, Teran in view of Clark teaches all the limitations of claim 16.
Teran does not teach wherein, as the fluid flows through each of the one or more oxygen infusion modules the fluid comes in contact with the circumferential wall of one or more of the plurality of hydrophobic hollow microporous fibers so that the pressurized oxygen is transferred to the fluid through the plurality of micropores such that oxygen transfer to the fluid occurs free of oxygen bubbles in the fluid.
Clark teaches wherein, as the fluid flows through each of the one or more oxygen infusion modules the fluid comes in contact with the circumferential wall of one or more of the plurality of hydrophobic hollow microporous fibers so that the pressurized oxygen is transferred to the fluid through the plurality of micropores such that oxygen transfer to the fluid occurs free of oxygen bubbles in the fluid (Figs 2, ¶7).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the oxygen infusion modules (16, 18, 20) of Teran by substituting the oxygen infusion modules (Figs 2) including the circumferential wall of Clark in order to produce microbubbles (Clark ¶7).
Regarding claim 18, Teran in view of Clark teaches all the limitations of claim 16.
Teran does not teach wherein the housing of each oxygen infusion module includes one or more openings in a sidewall of the housing via which fluid enters the oxygen infusion module.
Clark teaches wherein the housing of each oxygen infusion module includes one or more openings (230) in a sidewall of the housing via which fluid enters the oxygen infusion module.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the oxygen infusion modules (16, 18, 20) of Teran by substituting the oxygen infusion modules (Figs 2) including the one or more openings (230) of Clark in order to produce microbubbles (Clark ¶7).
Regarding claim 19, Teran in view of Clark teaches all the limitations of claim 16.
Teran does not teach wherein the one or more openings are a pair of openings on opposite sides of the housing.
Clark does not teach wherein the one or more openings are a pair of openings on opposite sides of the housing.
MPEP §2144.04 VI B states “that mere duplication of parts has no patentable significance unless a new and unexpected result is produced”. Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the module (Fig 2A) of Clark by duplicating the number of fluid inlets (230) as a matter of obvious duplication of parts (MPEP §2144.04 VI B).
Regarding claim 20, Teran in view of Clark teaches all the limitations of claim 16.
Teran does not teach wherein the one or more oxygen infusion modules receive the flow of fluid as a level of fluid outside the housing and surrounding the housing rises and reaches the one or more openings in the sidewall of the housing, allowing the flow of fluid to spill into the housing via the one or more openings.
Clark teaches wherein the one or more oxygen infusion modules receive the flow of fluid as a level of fluid (level of fluid supplied to 230) outside the housing and surrounding the housing rises and reaches the one or more openings (230) in the sidewall of the housing, allowing the flow of fluid to spill into the housing via the one or more openings (as shown in Fig 2A).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the oxygen infusion modules (16, 18, 20) of Teran by substituting the oxygen infusion modules (Figs 2) including the one or more openings (230) of Clark in order to produce microbubbles (Clark ¶7).
Allowable Subject Matter
Claim 4 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Regarding claim 4, the closest prior art is Teran US 5,785,864 and Glassford US 6,209,855. Teran teaches the oxygenation system for fluids comprising the first and second array of oxygen infusion modules. Glassford teaches a supply of pressurized oxygen comprising one or more gas infusion modules comprising hydrophobic fibers. The prior art does not teach the oxygenation system comprising the pair of plates and gap as claimed.
Conclusion
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/STEPHEN HOBSON/Examiner, Art Unit 1776