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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 7/23/2024 is being considered by the examiner.
Specification
The amendment to the specification appears to add new matter and is therefore not being entered.
Election/Restrictions
Newly submitted method claims 8-10 are directed to an invention that is independent or distinct from the invention originally claimed for the following reasons:
Restriction to one of the following inventions is required under 35 U.S.C. 121:
I. Claims 1-7, drawn to a vacuum getter pump, classified in F04B37/02.
II. Claims 8-10, drawn to a method of forming a vacuum by thermo-sedimentational activation, classified in 417/51.
The inventions are independent or distinct, each from the other because:
Inventions I and II are related as process and apparatus for its practice. The inventions are distinct if it can be shown that either: (1) the process as claimed can be practiced by another and materially different apparatus or by hand, or (2) the apparatus as claimed can be used to practice another and materially different process. (MPEP § 806.05(e)). In this case, the apparatus can be used to practice another and materially different process such as gettering for a time period using the getter in the solid state.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 8-10 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 3-7 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 1 states “essentially without free solid particles”. There appears to be no support for this specific limitation in the specification as filed. Therefore, it is considered new mater.
Claim 4 states “which creates ultimate pressure in the system to 10 -14 mbar”. As per the original claim 4 and the specification as filed at 0059 and 0063, two pumps are used to create the claimed pressure to 10 -14 mbar. Thus, claim 4 is rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, as based on a disclosure which is not enabling. The disclosure does not enable one of ordinary skill in the art to practice the invention without two pumps, which is/are critical or essential to the practice of the invention but not included in the claim(s). See In re Mayhew, 527 F.2d 1229, 188 USPQ 356 (CCPA 1976). In the reply filed 9/30/2025, applicant states “Amended claim 1 now claims a single getter vacuum pump and uses consistent singular references to "the pump," thereby removing any ambiguity.”
Dependent claims are rejected based on their dependency to claim 1.
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 1-6 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 1 recites a pump apparatus in lines 1-6 and method steps of using the pump apparatus in lines 7-16. MPEP2173.05(p) II. states “A single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.”
Claim 1 states “essentially without free solid particles”. The term essentially is a relative term (a term of degree). The term “essentially” in claim 1 is a relative term which renders the claim indefinite. The term “essentially” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
Claim 7 states “wherein the said metallic container is rotated around a longitudinal axis at a given rate of inclination to the vertical”. This is a method step in an apparatus claim. MPEP2173.05(p) II. states “A single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.”
Dependent claims are rejected based on their dependency to claim 1.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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(s) 1, 4-5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kirtley US 20240136165 in view of Mastrup US 4324765.
Regarding claim 1, Kirtley discloses:
(Currently amended) A getter vacuum pump system comprises:
a container (202, 204):
an external heater (210 and/or 230), operationally connectable to said metallic container and configured to controllably heat said metallic container (see e.g. Fig 1 and 0020);
a getter reactant 260 inside said metallic container.
Although Kirtley discloses the use of metal for various components such as 101, 225, 240, and 250, Kirtley does not specifically disclose the material of the container. However, Mastrup discloses the use of metal (see e.g. “A second chamber 54, in which the reactive aerosol reacts with the gaseous material to be removed, is constructed of stainless steel” in col 6 lines 44-46). Before the effective filing date of the claimed invention, one of ordinary skill in the art would have found it obvious to utilize stainless steel for the container of Kirtley as taught by Mastrup to gain the benefit of using a known material for lithium reactant containers as in col 4 line 12 of Mastrup.
Kirtley as modified above does not disclose the limitations:
wherein said getter reactant undergoes a thermos-sedimentational activation process inside said metallic container; wherein during said thermo-sedimentational activation process said getter reactant is in a melt state so that an exterior surface are of said getter reactant is in a melt state, so that an exterior surface area of said getter reactant is readily available to perform sorption reaction with gasses inside the metal container; wherein during said sorption reaction, said getter reactant forms a product, which sinks to a bottom of said metallic container, thereby performing said thermo-sedimentational activation process; whereby said pump creates a vacuum in said metallic container, essentially without free solid particles.
However, claim 1 is an apparatus claim and these limitations are directed to the manner of employing the claimed apparatus (the claimed apparatus being a metallic container, an external heater, and a getter reactant). MPEP 2114 II. states: "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Kirtley as modified above teaches all the structural limitations of the claim and is structurally capable of being employed in the claimed manner. Thus, Kirtley as modified above meets the limitations of the apparatus claim. For example, the apparatus of Kirtley is structurally capable of heating a getter such as lithium and structurally capable of carrying out the method steps claimed in claim 1.
Kirtley as modified above discloses:
Regarding claim 4, Kirtley as modified above discloses wherein said getter reactant is in a solid state at room temperature (see e.g. lithium in 0020 of Kirtley).
Regarding the limitations which creates an ultimate pressure of 10^-14 mbar, this limitations appears to be directed to the use of more than one pump. However, the addition of a second pump is merely a duplication of parts. It has held that a mere duplication of parts has no patentable significance unless a new and unexpected result is produced. See MPEP 2144.04. VI. B. Before the effective filing date of the claimed invention, one of ordinary skill in the art would have found it obvious to utilize two pumps in the system of Kirtley as modified above to gain the benefit of achieving a desired vacuum level for the system.
Regarding claim 5, Kirtley as modified above discloses wherein said getter reactant is in a melt state at a temperature not exceeding 240 degree Celsius, which creates ultimate pressure of 10-^-10 – 10^-11 mbar (see e.g. lithium in 0020 of Kirtley).
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kirtley US 20240136165 in view of Mastrup US 4324765 in further view of Chuntonov US 20130294988.
Regarding claim 7, Kirtley as modified above discloses wherein a melt surface area is set to change a pumping rate by an angle of inclination of a cylinder axis to a vertical, according to an expression s=Pi*2/cosB, where “s” is the melt surface area, “r” is an inner radius of said cylinder and “B” is the angle of inclination of said cylinder axis to said vertical (Claim 7 is an apparatus claim and these limitations are directed to the manner of employing the claimed apparatus [the claimed apparatus being a metallic container, an external heater, and a getter reactant]. MPEP 2114 II. states: "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Kirtley as modified above teaches all the structural limitations of the claim and is structurally capable of being employed in the claimed manner. Thus, Kirtley as modified above meets the limitations of the apparatus claim. For example, the apparatus of Kirtley is structurally capable of being tilted to e.g. a small angle if desired which would meet the limitations of the claim.), wherein the said metallic container is rotated around a longitudinal axis at a given rate of inclination to the vertical (Claim 7 is an apparatus claim and these limitations are directed to the manner of employing the claimed apparatus [the claimed apparatus being a metallic container, an external heater, and a getter reactant]. MPEP 2114 II. states: "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). Kirtley as modified above teaches all the structural limitations of the claim and is structurally capable of being employed in the claimed manner. Thus, Kirtley as modified above meets the limitations of the apparatus claim. For example, the apparatus of Kirtley is structurally capable of being tilted to e.g. a small angle if desired which would meet the limitations of the claim.).
Kirtley as modified above does not disclose wherein the said metallic container is filled with a noble gas and configured for the purpose of purification of said gas.
Chuntonov discloses wherein the said container is filled with a noble gas and configured for the purpose of purification of said gas (see e.g. 0009).
Before the effective filing date of the claimed invention, one of ordinary skill in the art would have found it obvious to utilize the getter pump for purifying noble gas as taught by Chuntonov to gain the benefit of removing impurities from the noble gas.
Allowable Subject Matter
Claims 3 and 6 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.
Response to Arguments
Applicant's arguments regarding the pending claims have been fully considered but they are not persuasive.
Applicant argues:
Claim Rejections - 35 USC§ 102
At the outset it should be noted that the present invention is based on a novel thermo- sedimentational activation process of the getter reactant, the fluid dynamics of which is clearly depicted on Fig. 2. The thermo-sedimentational activation process of the getter reactant involves:
" melting the getter reactant inside a metallic container;
" performing a sorption reaction by the exterior surface area of the melt getter reactant
is with gases in the container;
" forming a product of the getter reactant from the sorption reaction on the exterior
surface area of the melt getter reactant;
" sinking the product to the bottom of the container and exposes new melt getter to the
exterior surface area reactant;
thereby performing continuous thermo-sedimentational activation process of the melt
getter reactant in the container.
Examiner’s reply:
Claim 1 is an apparatus claim, not a method/process claim.
Applicant argues:
Kirtley's teachings are cardinally different in this respect. Kirtley teaches a sprayed-droplet hybrid diffusion pump. Kirtley repeatedly discloses injectors/nozzles that spray liquefied getter into the pump chamber as a getter spray of micro- and sub-micron droplets. The injectors/nozzles create spray particles/droplets in the pumping space and Kirtley adds baffles to manage backstreaming of getter spray particles toward the vacuum chamber. Accordingly Kirtley neither teaches nor implies the specific fluid dynamics of a thermo- sedimentational activation process of the getter reactant, which is currently is articulated in claim 1.
Kirtley further states that the getter product may form as particulates from the spray. This is fundamentally incompatible with claim 1's requirement of "without generating free solid particles" and with a stationary interface in which reaction products sediment into the melt (not circulate as droplets/particulates in the chamber).
Applicant believes that the amended claim 1 entails sufficient novelty and inventive step and therefore §102 rejection of should be withdrawn.
Due to the current amendment, independent claim 1 as amended is new and involves inventive step, and therefore dependent claim 2-10 (after amendments) are a fortiori believed to be inventive
Examiner’s reply:
Firstly, as stated above, claim 1 is an apparatus claim, not a method/process claim. The structure claimed in claim 1 is a metallic container, an external heater, and a getter reactant. Kirtley discloses these structural limitations except the “metallic” material of the container which would be understood and which is taught by Mastrup.
Secondly, particles collect in the bottom of the container (see below) so that there are essentially no free solid particles as the pumping process proceeds to the desired vacuum at which time the pump will have created a vacuum in said metallic container without free solid particles which meets the limitations of the claims. Additionally, the liquefied getter at the bottom of the container would create thermo-sedimentation to some degree which also meets the limitation of the claim as claim 1 includes the transition term “comprising”.
Thirdly, claim 1 is an apparatus claim. The structure of Kirtley is capable of heating the getter to a liquid state with the heater and if desired not pumping or spraying the getter which would leave a pool of liquid getter which would then be capable of performing the claimed thermo-sedimentational activation process as claimed. Since the apparatus of Kirtley as modified by Mastrup meets all the structural limitations of the claim and is structurally capable of the process steps claimed, Kirtley as modified by Mastrup meets the limitations of the apparatus claim (see MPEP 2114 II.: "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987).
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Applicant argues:
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Applicant adds new claim 7 which elaborates the control over the melt surface area of the getter reactant and claims 8-10 directed the novel thermo-sedimentational activation process of the getter reactant, underlying the action of the getter vacuum pump according to claims 1 to 7.
Examiner’s reply:
As stated above, claim 1 is an apparatus claim not a method/process claim. The structure claimed in claims 1 and 7 is a metallic container, an external heater, a getter reactant, and a noble gas. Kirtley discloses these structural limitations except the “metallic” material of the container which would be understood and which is taught by Mastrup, and the noble gas which is taught by Chuntonov.
Applicant argues:
Claims 8-10 recite all the constituents of claim 1 and thereby strictly limited in implementation to getter vacuum pump according to claims 1 to 7 and therefore sustains the requirements for unity of the invention.
Examiner’s reply:
The application was filed under 35 USC 111(a) and therefore unity of invention does not apply.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to THOMAS ANDREW FINK whose telephone number is (571)270-3373. The examiner can normally be reached on M-W 9-7.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Mark Laurenzi can be reached on (571) 270-7878. The fax phone number for the organization where this application or proceeding is assigned is 571-270-4373.
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/Thomas Fink/Primary Examiner, Art Unit 3746