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 .
Election/Restrictions
Applicant’s election without traverse of claims 1-4 in the reply filed on 12/17/2025 is acknowledged.
Claims 5-7 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
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 1-4 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 contains the limitation “the grooves formed on the surface and the mesopores connected to the grooves have a funnel shape in which an average diameter of the mesopores connected to the surface gradually decreases”. The first part of the limitation indicates that both the mesopores and the grooves have a funnel shape but the second instance indicates that only the mesopores have an average diameter which gradually decreases. It is therefore unclear if the grooves are also funnel shaped if they also should have an average diameter that gradually decreases, given that the two limitations are linked together with the phrase “in which”.
Furthermore, “in which an average diameter of the mesopores connected to the surface gradually decreases” is unclear because “average diameter” implies a single average of a single mesopore. This implies therefore that the limitation is claiming a gradual “average diameter” decrease throughout distribution of all mesopores in the spherical mesoporous silica (i.e. a population of smaller mesopore and a population of larger meospores with a gradual transition between the two). However, it appears that the limitation is intended to capture the feature of a conical structure wherein the diameter of the pore starts larger at the surface and gradually decreases towards the center of the spherical mesoporous silica (see Applicant’s specification, page 3, lines 4-8). Due to the different interpretations yielding significantly different structures, the metes and bounds of the claim are unclear and therefore the claim is indefinite. MPEP 2173.02.
Claims 2-4 are rejected as being dependent on claim 1.
Claim Rejections - 35 USC § 102
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 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.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Chen et al. (CN 106179282).
Regarding claim 1, Chen et al. discloses a porous microsphere having taper holes uniformly distributed throughout the surface thereof including mesopores. (Abstract, page 4, first full paragraph). Chen et al. further discloses that the microsphere may be made of SiO2. (page 4, 6th paragraph). The taper holes therefore meet the limitation “an average diameter of the mesopores connected to the surface gradually decreases” and in a structure that has mesopores, is spherical and contains silica. A visualization of the pores as well as “grooves” formed between the pores can be seen in Fig. 1-3
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 2-4 are rejected under 35 U.S.C. 103 as being unpatentable over Chen et al. (CN 106179282).
Regarding claim 2, Chen et al. discloses an average diameter of the microspheres in the range of 200-2000 nm (page 4, 3rd full paragraph.), overlapping with the presently claimed range. (page 4, 4th full paragraph). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 3, Chen et al. discloses that the surface area of the porous microsphere lies in the range of 100-600 m2/g, overlapping with the presently claimed range. (page 4, 4th full paragraph).
Regarding claim 4, Chen et al. discloses an average pore diameter in the range of 1-60 nm and an average pore volume of 0.1 to 1.1 cm3/g, overlapping with the presently claimed range. (page 4, 1st and 4th full paragraphs).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEXANDRE F FERRE whose telephone number is (571)270-5763. The examiner can normally be reached M-F: 8 am to 4 pm ET.
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/ALEXANDRE F FERRE/Primary Examiner, Art Unit 1788 02/07/2026