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
.
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Response to Amendment
The amendments to the claims filed 09/22/2026 have been considered and entered.
Response to Arguments
Applicant's arguments filed 09/22/2026 have been fully considered.
Regarding the objection(s) to claim(s) 6 pertaining to a pronoun, Applicant argued that the amendment overcame said objection(s); the Examiner is in agreement, therefore said objection(s) has/have been withdrawn.
Regarding the objection(s) to the Drawings, Applicant acknowledged-in-part that the drawings were objected to pertaining to unlabeled non-descriptive representations. The Examiner concludes that the drawing objections are retained.
Regarding the anticipatory prior art rejection of independent claim(s) 1, Applicant argued that Prohaska does not teach a chamber that is a gas-impermeable reaction chamber with a hermetically sealable or sealed opening. However this argument is merely an assertion and lacks the necessary supporting evidence. MPEP § 2145(I) states:
Attorney argument is not evidence unless it is an admission, in which case, an examiner may use the admission in making a rejection. See MPEP § 2129 and § 2144.03 for a discussion of admissions as prior art.
The arguments of counsel cannot take the place of evidence in the record. In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965); In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997) (“An assertion of what seems to follow from common experience is just attorney argument and not the kind of factual evidence that is required to rebut a prima facie case of obviousness.”). See MPEP § 716.01(c) for examples of attorney statements which are not evidence and which must be supported by an appropriate affidavit or declaration.
In the present case, Prohaska teaches one or more reaction chambers (fig. 4, container 112 comprising reactant chamber/s 116, 117; the Examiner emphasizes that the entire container 112 is effectively a reaction chamber with reactant reservoir/s), each reaction chamber (fig. 4, container 112 comprising reactant chamber/s 116, 117) ([0066] “the order of sample 118 chamber, reactant 116 chamber, second reactant 117 chamber, or any additional reactant chamber is not to be a limitation on the invention”) comprising: a gas impermeable material enclosing an inner volume (inner volume of container 112) (Examiner notes that the reactant/s and/or sample may each be/comprise a gas, and that the output is measured by a gas sensor); and a hermetically sealable (shown, not labeled; closure portion of container 112) or sealed opening (fig. 4, separable mechanism 130) ([0018] “permitting connection to a headspace sampling device and a sample introduction interface for permitting connection to a sample injector, which introduces a sample into the sample chamber. Optionally, the sample introduction interface may be coupled to a valve for permitting a fixed amount or volume of the sample to enter the container”; [0065] “a separable mechanism 130, such as a membrane, for separating reactant 116 chamber from sample 118 chamber. Separable mechanism 130 may be removable or have a portion of it that is removable so that mixture 16 and the reactant may be combined. Moreover, in certain embodiments, separable mechanism 130 may be automatically dissolvable over time once mixture 16 has been added to sample 118 chamber. This automatic dissolution may be due to the chemical reaction between separable mechanism 130 and the reactant or mixture 16”; [0066] ‘Separable 130 mechanism separating reactant 116 chamber from second reactant 117 chamber includes all of the limitations described above” and “the order in which separable mechanism 130 is removed or dissolved is not a limitation on the invention”). The Examiner is therefore unpersuaded by Applicant’s assertion. See also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (“Attorney’s argument in a brief cannot take the place of evidence").
Furthermore, while Applicant’s argument of inoperability Prohaska’s chamber to be impermeable to the gases held with Prohaska’s chamber has been considered, the Examiner’s assessment of the prior art is based upon MPEP § 2121(I) and MPEP § 716.07:
2121(I)
When the reference relied on expressly anticipates or makes obvious all of the elements of the claimed invention, the reference is presumed to be operable. Once such a reference is found, the burden is on applicant to provide facts rebutting the presumption of operability. In re Sasse, 629 F.2d 675, 207 USPQ 107 (CCPA 1980). See also MPEP § 716.07.”
716.07 (omissions of paragraphs for brevity)
Affidavits or declarations attacking the operability of a patent cited as a reference must rebut the presumption of operability by a preponderance of the evidence. In re Sasse, 629 F.2d 675, 207 USPQ 107 (CCPA 1980)…
Where the affidavit or declaration presented asserts inoperability in features of the reference which are not relied upon, the reference is still effective as to other features which are operative. In re Shepherd, 172 F.2d 560, 80 USPQ 495 (CCPA 1949.
Where the affidavit or declaration presented asserts that the reference relied upon is inoperative, the claims represented by applicant must distinguish from the alleged inoperative reference disclosure. In re Crosby, 157 F.2d 198, 71 USPQ 73 (CCPA 1946). See also In re Epstein, 32 F.3d 1559, 31 USPQ2d 1817 (Fed. Cir. 1994)…
In the present case, Prohaska teaches that each of the sample, the first reactant, and the second reactant may be/comprise gases and that the reaction chamber (container 112) provides containment thereof ([0060] “Receptacle 110 includes a container 112 having a specified volume of containment, wherein container 112 further includes a reactant 116 chamber for placing a reactant and a sample 118 chamber for placing a sample, or mixture 16, within container 112. The reactant may be a liquid, solid, or gas. Depending on the type of component selected for conversion or mixture 16, the reactant's phase may vary”; reference claim 24 “sample is selected from the group consisting of the liquid phase, solid phase, gas phase, and combinations thereof”). The Examiner notes that Applicant has not provided sufficient facts rebutting the presumption of operability of Prohaska’s chamber to provide Prohaska’s containment of Prohaska’s gases.
Furthermore, MPEP § 2141(II)(C) states: “Office personnel may rely on their own technical expertise to describe the knowledge and skills of a person of ordinary skill in the art. The Federal Circuit has stated that examiners and administrative patent judges on the Board are “persons of scientific competence in the fields in which they work” and that their findings are “informed by their scientific knowledge, as to the meaning of prior art references to persons of ordinary skill in the art.” In re Berg, 320 F.3d 1310, 1315, 65 USPQ2d 2003, 2007 (Fed. Cir. 2003). In addition, examiners “are assumed to have some expertise in interpreting the references and to be familiar from their work with the level of skill in the art.” PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299, 86 USPQ2d 1385 (Fed. Cir. 2008) (quoting Am. Hoist & Derrick Co. v. Sowa & Sons, 725 F.2d 1350, 1360, 220 USPQ 763, 770 (Fed. Cir. 1984). See MPEP § 2141 for a discussion of the level of ordinary skill. In the present case it the Examiner's position that Prohaska’s containment of gases in a reaction chamber is at once envisaged as operably impermeable to gases for the trivially understood reason that permeability would fail to provide the definitional containment thereof (as well as inviting unwanted inward permeation of gases not part of the tested reaction). The Examiner concludes that it would be nonsensical to misinterpret Prohaska’s gas containment as contradictorily gas-permeable.
Further regarding the prior art rejection of independent claim(s) 1, Applicant argued that Prohaska does not teach wherein the reaction chamber comprises a hermetically sealable or sealed opening and wherein said reaction chamber is to hermetically seal therein a test product comprising a test product reactant and at least one reactant that reacts with the test product reactant to produce a gaseous product. As previously noted above, an Attorney argument is not evidence unless it is an admission. In the present case, Prohaska teaches both a hermetically sealable opening (shown, not labeled; closure portion of container 112) and a sealed opening (fig. 4, separable mechanism 130) ([0018] “valve”; [0065] “a separable mechanism 130, such as a membrane, for separating reactant 116 chamber from sample 118 chamber. Separable mechanism 130 may be removable or have a portion of it that is removable so that mixture 16 and the reactant may be combined. Moreover, in certain embodiments, separable mechanism 130 may be automatically dissolvable over time once mixture 16 has been added to sample 118 chamber. This automatic dissolution may be due to the chemical reaction between separable mechanism 130 and the reactant or mixture 16”; [0066] ‘Separable 130 mechanism separating reactant 116 chamber from second reactant 117 chamber includes all of the limitations described above” and “the order in which separable mechanism 130 is removed or dissolved is not a limitation on the invention”). Similar to the preceding analysis, the Examiner again notes that each of the sample and reactants in Prohaska may be/comprise gases (see previous citations) and that Prohaska’s system is presumed operable by the Examiner’s assessment of the facts (see preceding analysis). Therefore, as Prohaska’s system is gastight for the gas samples and/or gas reactants that may be used therewith, the Examiner concludes that both of the aforementioned sealing are operably hermetic.
Even further regarding the prior art rejection of independent claim(s) 1, Applicant argued that Prohaska does not teach an energy source configured to provide a reaction energy to the one or more reaction chambers sufficient to cause the at least one reactant to react with the test product reactant to produce the gaseous product in the inner volume of the sealed reaction chamber. As previously noted above, an Attorney argument is not evidence unless it is an admission. In the present case, Prohaska teaches an energy source (fig. 4, power heating element 136) configured to provide a reaction energy to the one or more reaction chambers (fig. 4, container 112 comprising reactant chamber/s 116, 117) sufficient to cause the at least one reactant to react with the test product reactant to produce the gaseous product in the inner volume (inner volume of container 112) of each reaction chamber (fig. 4, container 112 comprising reactant chamber/s 116, 117) of the one or more reaction chambers (fig. 4, container 112 comprising reactant chamber/s 116, 117) (Abstract “component in an unknown mixture” and “combining the unknown mixture with the reactant” and “to facilitate converting at least one selected component” and “Upon varying the pH level and temperature, the method will release volatiles from the selected component(s)”; [0022]; [0067]-[0068]; [0070]). The Examiner emphasizes that Prohaska’s heating element is providing the thermal energy which varies the temperature which in combination with a specified pH reactant causes the measurable volatile gas to be released within the reactant container (12 which is then measured by the gas concentration meter (fig. 4, sensor 140 with electronic circuit 142) with an inner volume (inner volume of container 112) of the one or more reaction chambers (fig. 4, container 112 comprising reactant chamber/s 116, 117) (Title “Method And Apparatus For Determining A Concentration Of A Component In An Unknown Mixture”; [0061] “Container 112 further includes a headspace sampling 122 interface for coupling a detection unit, such as a headspace sampling device, to container 112 for detecting the volatiles released from the converted selected component 34. Another detection unit may be a sensor, electrochemical gas sensor, or any unit capable of detecting volatile releases from the converted selected component 34”; [0063] “ports or connections”; [0069] “detection unit capable of detecting volatiles indicative of selected component 34, such as an electrochemical gas sensor or other unit for detecting vapors”; [0016] “calculating the concentration of the component(s) in the unknown mixture based on the detected volatiles, or indication”). The Examiner is therefore unpersuaded by Applicant’s argument.
Regarding the anticipatory and/ obviousness rejections of dependent claim(s) of independent claim(s) 1, Applicant argued that said dependent claim(s) overcome the rejections for substantially similar reasons as put forth for independent claim(s) 1. The Examiner’s assessment of the dependent claim(s) with regards to the aforementioned arguments is substantially similar to the arguments put forth by the Examiner above and therefore Applicant’s arguments are unpersuasive.
For all of the reasons as put forth above, and for the reasons as put forth in the rejections below, the Examiner retains the prior art rejections.
Drawings
37 CFR 1.83(a) states (bold added for emphasis):
The drawing in a nonprovisional application must show every feature of the invention specified in the claims. However, conventional features disclosed in the description and claims, where their detailed illustration is not essential for a proper understanding of the invention, should be illustrated in the drawing in the form of a graphical drawing symbol or a labeled representation ( e.g., a labeled rectangular box). In addition, tables that are included in the specification and sequences that are included in sequence listings should not be duplicated in the drawings.
37 CFR 1.84(n) states (bold added for emphasis):
Symbols. Graphical drawing symbols may be used for conventional elements when appropriate. The elements for which such symbols and labeled representations are used must be adequately identified in the specification. Known devices should be illustrated by symbols which have a universally recognized conventional meaning and are generally accepted in the art. Other symbols which are not universally recognized may be used, subject to approval by the Office, if they are not likely to be confused with existing conventional symbols, and if they are readily identifiable.
MPEP § 608.02(IX) states-in-part (bold added for emphasis):
37 CFR 1.84(n) indicates that graphic drawing symbols and other labeled representations may be used for conventional elements where appropriate, subject to approval by the Office. Also, suitable legends may be used, or may be required, in proper cases. The American National Standards Institute (ANSI) (www.ansi.org ) and the International Organization for Standardization (ISO) (www.iso.org ) are organizations whose numerous publications include some that pertain to graphical symbols; the symbols therein are considered to be generally acceptable in patent drawings. Although ANSI and ISO documents and other published sources may be used as guides during the selection of graphic symbols for patent drawings, the Office will not "approve" any published collection of symbols as a group because their use and clarity must be decided on a case-by-case basis. Overly specific symbols should be avoided. Symbols with unclear meanings should be labeled for clarification.
37 CFR 1.84(o) states (bold added for emphasis):
Legends. Suitable descriptive legends may be used subject to approval by the Office, or may be required by the examiner where necessary for understanding of the drawing. They should contain as few words as possible.
Unlabeled Non-Descriptive Representations:
The drawings are objected to because:
unlabeled non-descriptive representations are impermissible under 37 CFR 1.83(a); specific illustrated symbols do not yet have a universally recognized conventional meaning nor are those symbols generally accepted in the art in accordance with 37 CFR 1.84(n); and the Examiner has determined suitable descriptive legends comprising a (few) word(s) are required as necessary for understanding of the drawings in accordance with 37 CFR 1.84(o). Element(s)
10, 20, 40, 50,70, 72 of fig(s). 1
,
40, 50, 62, 60, 70, 72 of fig(s). 2
,
30 of fig(s). 3,
and 32, 40, 42, 50, 70 of fig(s). 6
need suitable legends in the form of descriptive text labels in accordance with each of MPEP § 608.02(IX) and MPEP § 608.02(b)(II)(¶ 6.22) (“should be provided with descriptive text labels”) and/or use conventionally acceptable or at least universally recognizable symbols—in addition to any reference characters already present. Empty or not labeled rectangular boxes and/or non-descriptive representations of features are not descriptive (i.e., symbols with unclear meanings), and therefore incomplete. The descriptive text labels should contain as few words as possible. See also 37 CFR 1.84(p) pertaining to standards for the text labels, and see exemplary publications by the American National Standards Institute and/or the International Organization for Standardization which include exemplary conventional/understandable graphical symbols which the Examiner will carefully consider on case-by-case basis as the Examiner Determines Completeness and Consistency of Drawings. Appropriate Correction is required.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action.
The objection to the drawings will not be held in abeyance.
Claim Objections
Claim(s) 1-6 is/are objected to because of the following informalities:
As to independent claim 1:
“a concentration” & “a gas” (second to last line) both already have antecedent basis (see preamble), therefore the Examiner suggests “[[a]] the concentration of [[a]] the gas”; and
the element “one or more reaction chambers” (line 3) already has antecedent basis (see preamble), therefore the Examiner suggests “the one or more reaction chambers”.
As to claim 5,
the element “an inner volume” already has antecedent basis (see independent claim 1), therefore the Examiner suggests “[[a]] the inner volume”.
Dependent claim(s) of objected to claim(s) is/are likewise objected to.
Appropriate correction is required.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1, 3, and 5 is/are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Applicant previously cited Prohaska et al (US 20040142489 A1; hereafter “Prohaska”).
Regarding independent claim 1,
Prohaska teaches in fig. 4 a system (fig. 4, apparatus 100) for determining a concentration of a gas in one or more reaction chambers (fig. 4, container 112 comprising reactant chamber/s 116, 117; Examiner emphasizes that the entire container 112 is effectively a reaction chamber with reactant reservoir/s) (Title “Method And Apparatus For Determining A Concentration Of A Component In An Unknown Mixture”; Abstract “method and apparatus for determining a concentration of a component in an unknown mixture. The method includes the steps of preparing a reactant having a specified pH level and a specified temperature and combining the unknown mixture with the reactant”; [0030] “determines the concentration of a component in a liquid or solid phase by transforming the component to a gaseous phase. Once in the gaseous phase, the component is detectable by a detection unit, such as an electrochemical gas sensor or other unit for detecting vapors”; reference claim 7 “combining the unknown mixture in a basic solution”; reference claim 8 “combining the unknown mixture in an acidic solution”; [0066] “In further embodiments, receptacle 110 includes more than one reactant chamber”), the system (fig. 4, apparatus 100) comprising:
one or more reaction chambers (fig. 4, container 112 comprising reactant chamber/s 116, 117), each reaction chamber (fig. 4, container 112 comprising reactant chamber/s 116, 117) ([0066] “the order of sample 118 chamber, reactant 116 chamber, second reactant 117 chamber, or any additional reactant chamber is not to be a limitation on the invention”) comprising:
a gas impermeable material enclosing an inner volume (inner volume of container 112) (Examiner notes that the reactant/s and/or sample may each be/comprise a gas, and that the output is measured by a gas sensor); and
a hermetically sealable (shown, not labeled; closure portion of container 112) or sealed opening (fig. 4, separable mechanism 130) ([0018] “permitting connection to a headspace sampling device and a sample introduction interface for permitting connection to a sample injector, which introduces a sample into the sample chamber. Optionally, the sample introduction interface may be coupled to a valve for permitting a fixed amount or volume of the sample to enter the container”; [0065] “a separable mechanism 130, such as a membrane, for separating reactant 116 chamber from sample 118 chamber. Separable mechanism 130 may be removable or have a portion of it that is removable so that mixture 16 and the reactant may be combined. Moreover, in certain embodiments, separable mechanism 130 may be automatically dissolvable over time once mixture 16 has been added to sample 118 chamber. This automatic dissolution may be due to the chemical reaction between separable mechanism 130 and the reactant or mixture 16”; [0066] ‘Separable 130 mechanism separating reactant 116 chamber from second reactant 117 chamber includes all of the limitations described above” and “the order in which separable mechanism 130 is removed or dissolved is not a limitation on the invention”),
wherein the one or more reaction chambers (fig. 4, container 112 comprising reactant chamber/s 116, 117) are to hermetically seal therein (so capable) a test product comprising a test product reactant and at least one reactant that reacts with the test product reactant to produce a gaseous product ([0060] “Receptacle 110 includes a container 112 having a specified volume of containment, wherein container 112 further includes a reactant 116 chamber for placing a reactant and a sample 118 chamber for placing a sample, or mixture 16, within container 112. The reactant may be a liquid, solid, or gas. Depending on the type of component selected for conversion or mixture 16, the reactant's phase may vary”; reference claim 24 “sample is selected from the group consisting of the liquid phase, solid phase, gas phase, and combinations thereof”);
an energy source (fig. 4, power heating element 136) configured to provide a reaction energy to the one or more reaction chambers (fig. 4, container 112 comprising reactant chamber/s 116, 117) sufficient to cause the at least one reactant to react with the test product reactant to produce the gaseous product in the inner volume (inner volume of container 112) of each reaction chamber (fig. 4, container 112 comprising reactant chamber/s 116, 117) of the one or more reaction chambers (fig. 4, container 112 comprising reactant chamber/s 116, 117) (Abstract “component in an unknown mixture” and “combining the unknown mixture with the reactant” and “to facilitate converting at least one selected component” and “Upon varying the pH level and temperature, the method will release volatiles from the selected component(s)”; [0022]; [0067]-[0068]; [0070]); and
a gas meter (fig. 4, sensor 140 with electronic circuit 142) capable of measuring a concentration of a gas in the one or more reaction chambers (fig. 4, container 112 comprising reactant chamber/s 116, 117) ([0069] “detection unit capable of detecting volatiles indicative of selected component 34, such as an electrochemical gas sensor or other unit for detecting vapors”; [0016] “calculating the concentration of the component(s) in the unknown mixture based on the detected volatiles, or indication”).
The Examiner additionally notes that it has been held that 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 satisfying the claimed structural limitations. See MPEP § 2144(II) and Ex parte Masham, 2 USPQ2d - 164 7 (1987). In the present case the Examiner notes that the system does not comprise as required claimed elements thereof the test product, test product reactant, and reactant(s), nor the associated step of to hermetically seal therein.
Regarding claim 3, which depends on claim 1,
Prohaska teaches further comprising a fixture (fig. 4, receiver 144 with receptacle 110) configured to hold at least one of the one or more reaction chambers (fig. 4, container 112 comprising reactant chamber/s 116, 117) ([0071] “receiver 144 for receiving any one of a plurality of receptacles 110, where receptacles 110 vary in size, geometry, or weight. Receiver 144 may be a platform for receiving and supporting any container 112 as well as heating element 136”).
Regarding claim 5, which depends on claim 1,
Prohaska teaches further comprising a connector device (fig. 4, headspace sampling interface 122) fluidly connected to the gas meter (fig. 4, sensor 140 with electronic circuit 142), the connector device (fig. 4, headspace sampling interface 122) configured to fluidly connect the gas meter (fig. 4, sensor 140 with electronic circuit 142) with an inner volume (inner volume of container 112) of the one or more reaction chambers (fig. 4, container 112 comprising reactant chamber/s 116, 117) ([0061] “Container 112 further includes a headspace sampling 122 interface for coupling a detection unit, such as a headspace sampling device, to container 112 for detecting the volatiles released from the converted selected component 34. Another detection unit may be a sensor, electrochemical gas sensor, or any unit capable of detecting volatile releases from the converted selected component 34”; [0063] “ports or connections”).
Claim Rejections - 35 USC § 102/103
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 6 is/are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Applicant previously cited Prohaska.
Regarding claim 6, which depends on claim 1,
Prohaska reasonably teaches further comprising a computer (computer with storage device with computer portion of instrument measurement and control unit 142) that includes a non-transitory (at once envisaged as non-transitory; additional obviousness analysis provided) computer readable medium (computer storage and/or storage device) ([0043] “Reporting 38 the concentration is performed through all known or novel manners for reporting information, such as merely displaying the concentration on a monitor or LCD. Reporting 38 may also be storing or sending the concentration to a computer or other storage device”; [0070] “electronic circuit 142 performs what otherwise would be manually laborious, tedious, or time consuming operations and centralizes the operations in an electrical panel having controls for each of the above mentioned items”; [0036] “automatically”; [0068] “automatic”), the non-transitory computer readable medium (computer storage and/or storage device) comprising
computer readable instructions for
collecting and storing a gas concentration transmitted from the gas meter (fig. 4, sensor 140 with electronic circuit 142) for each reaction chamber (fig. 4, container 112 comprising reactant chamber/s 116, 117) tested ([0043] “storing or sending the concentration to a computer or other storage device”) and
providing an output (report and/or display) associating the gas concentration with a sample (fig. 4, sample in container 112 comprising sample chamber 118) contained in the reaction chamber (fig. 4, container 112 comprising reactant chamber/s 116, 117) from which the gas concentration was collected (Abstract “sample introduction interface for permitting connection to a sample injector to introduce a sample into the sample chamber”; [0037] “Method 10 further includes calculating 30 the concentration of selected component 34 and reporting 38 the concentration. Calculating 30 the concentration is performed using correlation information, such as the following formula, to correlate the amount of indications 26, or volatiles, detected by the detection unit and the amount, or concentration, of selected component 34 originally in mixture 16”; [0043] “reporting” and “displaying”).
The Examiner acknowledges that Prohaska is unclear if fig. 4 instrument’s measurement and control unit 142 explicitly comprises the computer and storage device referenced in the specification, and Prohaska does not explicitly state that the computer & storage device comprise non-transitory readable medium.
However:
The Examiner previously took Official Notice that (generically) a computer comprising a non-transitory computer readable medium with computer readable instructions is conventional in the art. As the Applicant had not adequately traversed this assertion, this is considered admitted prior art in accordance with MPEP § 2144.03(C).
Furthermore, it has been held that broadly providing a mechanical or automatic means to replace manual activity which has accomplished the same result involves only routine skill in the art, see MPEP § 2144.04(III) and In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958). In the present case it is the Examiner’s position that only ordinary skill is required to store computer readable instructions for automated control by a control unit—including to collect, store, and output data.
In view of the above, either one of ordinary skill in the art at the time the invention was effectively filed would at once envisaged that Prohaska reasonably teaches a computer comprising a non-transitory computer readable medium with computer readable instructions, or nevertheless, or in the alternative, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine a conventional non-transitory computer readable medium with computer readable instructions with Prohaska’s instrument’s measurement control unit for automation of Prohaska’s method so as to perform what otherwise would be manually laborious, tedious, or time consuming operations and centralize the operations in a computerized controller having controls for each of the above mentioned items.
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.
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Applicant previously cited Prohaska in view of previously cited Ellis et al (US 20070131863 A1; hereafter “Ellis”).
Regarding claim 2, which depends on claim 1,
Prohaska teaches the gas meter (fig. 4, sensor 140 with electronic circuit 142) ([0069] “Headspace sampling device 140 is any detection unit capable of detecting volatiles indicative of selected component 34, such as an electrochemical gas sensor or other unit for detecting vapors”).
Prohaska is silent to wherein the gas meter is a hydrogen gas meter, oxygen gas meter, carbon monoxide gas meter, carbon dioxide gas meter or a chlorine gas meter.
Ellis teaches a gas meter that is a hydrogen gas meter, oxygen gas meter, carbon monoxide gas meter, carbon dioxide gas meter or a chlorine gas meter (Title “Multi-Gas Sensor”; Abstract; [0001] “Gas sensors capable of detecting the presence and/or concentration level of various gases are used in may applications, and the number of such applications is increasing as the ability to detect various gases increases and as the application of these sensors is shown to have an increasing role in how gases form, react, and affect the environment”; [0002] “gas sensors have been used to detect the presence of vapors” and “detect a plurality of different gases in a compact, portable sensor, although the invention is not so limited”; [0012] “multi-gas sensor that can be configured to detect a plurality of gases including vapors (e.g., hydrocarbon based vapors, carbon dioxide, carbon monoxide, oxygen, acid vapors, phosphorous, ammonia, methanol, isopropyl alcohol, ether, etc.)”; [0016] “detect the presence and/or an approximate concentration of a particular gas”; [0027] “Sensor 400 is thus not limited to detecting carbon monoxide, carbon dioxide, or hydrocarbon gases”; [0032] “processing circuitry 736, 738, 740, 742 may amplify signals 714, 730, 732, 734, convert those signals from analog form to digital form, and further convert the signals into a format suitable for display to a user of gas sensor 400. For example, the signals output 744, 746, 748, 750 by processing circuitry 736, 738, 740, 742 may be in a format suitable for display on any readout or display device. As another alternative, outputs 744, 746, 748, 750 may be stored in one or more electronic, magnetic, optical, or other storage devices. As still other alternatives, outputs 744, 746, 748, 750 may be transmitted to another device or entity. Of course, outputs 744, 746, 748, 750 may be further processed by electronics (not shown) at sensor 400. It should be apparent that output signal 744 indicates the presence of and/or concentration of oxygen in chamber 410, output signal 746 indicates the presence of and/or concentration of carbon monoxide in chamber 410, output signal 748 indicates the presence of and/or concentration of carbon dioxide in chamber 410, and output signal 750 indicates the presence of and/or concentration of hydrocarbons in chamber 410”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine Ellis’ specific multi-gas sensor that detects concentration of vapor with Prohaska’ generic gas sensor for detecting vapors for the expected purpose of providing a particular device for so detecting concentration of vapor with the advantages as put forth by Ellis, the Examiner further emphasizing the convenience of multi gas concentration detection, compact design, ability to display, store, and/or transmit outputs to other devices (in this case, Prohaska’s device).
Claim(s) 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Applicant previously cited Prohaska in view of previously cited Stella (US 20230333130 A1; hereafter “Stella”).
Regarding claim 4, which depends on claim 1,
Prohaska does not teach an auto-sampler configured to convey the one or more reaction chambers to a reaction site.
However:
It has been held that broadly providing a mechanical or automatic means to replace manual activity which has accomplished the same result involves only routine skill in the art, see MPEP § 2144.04(III) and In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958). The Examiner previously took Official Notice that auto-samplers are well known in the art; as the Applicant had not adequately traversed this assertion, this is considered admitted prior art in accordance with MPEP § 2144.03(C). In the present case it is the Examiner’s position that only ordinary skill is required to automate for sampling, and therefore one of ordinary skill in the art would be able to select and/or design an auto-sampler for automating the manual activity without undue experimentation
Furthermore, and as supporting factual evidence of the aforementioned assertion, Stella teaches an auto-sampler (autosampler comprising autosampling portions of Sample Handling and Preservation Station 12 and Analyzer Station 14; see also figs. 2 & 3, especially Transport Unit 22 & 28 thereof) configured to convey the one or more reaction chambers (not shown in fig. 1; reaction vessel) to a reaction site (fig. 1, analyzer station 14) (Title “System And Method For Disposing Of A Reaction Vessel Of A Mass Spectrometry System”; Abstract “An analyzer and sample handling system suitable for retrieving and processing a sample housed within a suitably configured reaction vessel” and “autosampler”; [0005] “reaction vessel is then conveyed or transported to the analyzer station”; [0031] “The illustrated sample handling and preparation station 14 can also include a transport unit 22 that can include, according to one example, a transport element, such as a robotic arm (not shown), for manipulating the reaction vessel 40. For example, the robotic arm can retrieve a reaction vessel 40 from a storage location (if desired) and hold the reaction vessel when the sample 48 is dispensed or aliquoted therein. The transport arm can then be controlled by the controller 16 to move or transport the reaction vessel 40 to the analyzer station 14”; [0032] “optional transport unit 28. The analyzer unit 26 can be configured to analyze the sample 48 and the optional transport unit 28 can include a transport element, such as a robotic arm, for holding, moving and manipulating the reaction vessel 40, if desired”; [0055] “reaction vessel 40 is then conveyed or transported by the robotic arm to the analyzer station 14”).
In view of the above, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to automate Prohaka’s reaction chamber handling and sampling therefrom—as factually supported by Stella’s automated robotic conveying & sampling of reaction vessel—for the expected purpose of reducing manual activity, increasing throughput and efficiency of reactions and sampling thereof without having to make all elements in parallel (e.g., re-using components such as the gas sensor across a plurality of reaction vessels).
Conclusion
The prior art made of record and not relied upon is considered pertinent to Applicant's disclosure. Applicant is invited to review PTO form 892 accompanying this Office Action listing Prior Art relevant to the instant invention cited by the Examiner. The Examiner notes in particular that:
US20230313399A1 pertains to a reaction chamber 102; energy source 114 is configured to apply a stimulation voltage to an electrode, see fig. 1;
US20040241065 A1 pertains to a kit comprising a gas and liquid impermeable container/envelope, apparatus, and reaction components, see exemplary fig. 14; and
US20100240022A1 pertains to a kit comprising reaction chambers, see exemplary fig. 1.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to DAVID L SINGER whose telephone number is (303) 297-4317. The Examiner can normally be reached on Monday - Friday 8:00 am - 6:00pm CT, EXCEPT alternating Friday.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s supervisor, John Breene can be reached on 571-272-4107. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DAVID L SINGER/Primary Examiner, Art Unit 2855 13OCT2026
