DETAILED ACTION
Examiner’s Comments
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.
Column and line (or Paragraph Number) citations have been provided as a convenience for Applicants, but the entirety of each reference should be duly considered. Any recitation of a Figure element, e.g. “Figure 1, element 1” should be construed as inherently also reciting “and relevant disclosure thereto”.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the claims at issue 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); and 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 a nonstatutory double patenting ground provided the reference application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The USPTO internet Web site contains terminal disclaimer forms which may be used. Please visit http://www.uspto.gov/forms/. The filing date of the application will determine what form 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 http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1 – 11 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 - 11 of copending Application No. 18/690,371 (U.S. Patent App. No. 2024/0375065 A1) as evidenced by IDS reference to Alexander, Sr. (U.S. Patent No. 4,954,148). Although the claims at issue are not identical, they are not patentably distinct from each other because App. ‘371 claims substantially the same limitations as the present claims. This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
E.g., regarding claim 1, App. ‘371 claims a moisture generating device for generating a moisture-enriched air flow or gas flow (claim 1), the moisture-generating device comprising: a housing with a main extension direction and an outflow region (ibid), wherein a gas flow or air flow can be generated at least in sections (ibid: “regions”) along the main extension direction (ibid), and with a lateral inlet region, which extends at a certain specified angle to the main extension direction (ibid), and with a mixing region, which extends at least partially along the main extension direction in an interior of the housing (ibid); a water injector, which is arranged in the lateral inlet region (ibid) and with which atomized water can be introduced into the mixing region at the specified angle against the main direction of extension (ibid), wherein the gas or the air can be mixed with the atomized water in the mixing region (ibid); a humidifying grid (ibid: “separator grid”) which is arranged in the mixing region (ibid) and towards which the water injector is aligned (necessarily met given that the introduces water into the mixing region), the humidifying grid comprising a plurality of holes and being wettable with and/or penetrable by the atomized water from the water injector (necessarily met given that the separator grid allows flow through it of the mixed air/water and any surface is ‘wettable’; see also claim 10). See also Alexander, Sr., which discloses that baffles, i.e. humidifying grids, are conventional in the art to allow improved air/liquid mixing, which would be a duel function for the ‘separator grid’ in the App. ‘371 claims.
While App. ‘371 does not explicitly recite a flow generator meeting the claimed limitations, the Examiner takes Official Notice that flow generators to generate the flow of air or gas in the humidifying device are conventional and necessary to move the air or gas through the device. The exact location, either forward in the device or backward in the device per the present claim limitations, would have been obvious to a person of ordinary skill in the art. For support of the Examiner’s position of Official Notice on the existence and location of these ‘flow generators’, see IDS art to Alexander, Sr., cited and applied below.
Claims 2 – 11 are met for the reasons set forth above or explicitly in the dependent claims of App. ‘371 (e.g. see claims 5 – 9).
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.
Claim 5 is 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 pre-AIA the applicant regards as the invention.
Claim 5 recites the limitation "a cylindrical cross-section". There is insufficient antecedent basis for this limitation in the claim. This rejection can be overcome by amending claim 5 to recite ‘wherein [a] the housing (H) has a cylindrical cross-section and the cylindrical cross-section of the …”
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 of this title, 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 pre-AIA 35 U.S.C. 103(a) 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.
Regarding numbers (1), (2) and (4), see the rejection(s) provided below. Regarding the level of ordinary skill in the art, the general level of skill is taken as a highly skilled technician having at least a BS, MS, or PhD in the relevant field and 3-5 years experience.
Claims 1 – 9 are rejected under 35 U.S.C. 103(a) as being unpatentable over Alexander, Sr (U.S. Patent No. 4,954,148) in view of Jang (U.S. Patent App. No. 2019/0312290 A1).
Regarding claim 1, Alexander, Sr. claims a moisture generating device for generating a moisture-enriched air flow or gas flow (Title; Abstract; Figures, especially Figures 9 and 10), the moisture-generating device comprising: a housing with a main extension direction and an outflow region (ibid; element 2), wherein a gas flow or air flow can be generated at least in sections (Abstract and Figures) along the main extension direction (ibid), and with a mixing region, which extends at least partially along the main extension direction in an interior of the housing (ibid); a water injector (ibid: element 25) and with which atomized water can be introduced into the mixing region at the specified angle against the main direction of extension (ibid and see col. 4, line 36 bridging col. 5, line 28 and col. 7, line 11 bridging col. 9, line 36), wherein the gas or the air can be mixed with the atomized water in the mixing region (ibid, ‘spraying’ taken as ‘atomized water’ or as a functional equivalent thereof); a humidifying grid (ibid, element 13 ‘baffles’) which is arranged in the mixing region (ibid) and towards which the water injector is aligned (necessarily met given that the introduces water into the mixing region and see also Figures), the humidifying grid comprising a plurality of holes and being wettable with and/or penetrable by the atomized water from the water injector (ibid), and a flow generator (element 6) meeting the claimed limitations (noting outlet 4 as the ‘outflow region’).
Alexander, Sr. fails to disclose a lateral inlet region, which extends at a certain specified angle to the main extension direction (ibid) and wherein the water injector is arranged in the lateral inlet region.
However, the Examiner deems that the exact location of the water injector is a matter of routine selection from multiple, equivalent options and that a skilled artisan would be well versed in selecting a location that best optimizes the space, water pattern, etc.. The Examiner points to Jang as at least one example of a water injector being along a lateral inlet region (Figures and relevant disclosure to the water inlet penetrating the side wall, etc.).
Substitution of functional equivalents requires no express motivation as long as the prior art recognizes the functional equivalency. In the instant case, the various locations where the water injector can be located are all deemed functional equivalents in the field of suitable means for injecting water into the humidifying device. In re Fount 213 USPQ 532 (CCPA 1982); In re Siebentritt 152 USPQ 618 (CCPA 1967); Graver Tank & Mfg. Co. Inc. v. Linde Air Products Co. 85 USPQ 328 (USSC 1950).
Should it be shown that a water ‘sprayer’ is not a water ‘atomizer’, the Examiner nevertheless maintains that the Alexander, Sr. disclosure renders obvious the claimed invention as the use of a water ‘sprayer’ is functionally equivalent to the use of a water ‘atomizer’. Substitution of functional equivalents requires no express motivation as long as the prior art recognizes the functional equivalency. In the instant case, both devices inject water into the air/gas flow and are deemed functional equivalents in the field of suitable means for injecting water into the humidifying device. In re Fount 213 USPQ 532 (CCPA 1982); In re Siebentritt 152 USPQ 618 (CCPA 1967); Graver Tank & Mfg. Co. Inc. v. Linde Air Products Co. 85 USPQ 328 (USSC 1950).
It would therefore have been obvious to one of ordinary skill in the art at the time of the Applicants’ invention to modify the device of Alexander, Sr. to use a water injector location meeting the claimed limitations as such an embodiment would be a routine movement of a required injector and, as illustrated in Jang, having water injectors along an outside (lateral inlet) region is a known means for achieving water input.
Regarding claim 2, Alexander, Sr. disclose cylindrical devices and the claimed intended use is rendered obvious by the Jang disclosure of using such a device in a fuel cell application.
Regarding claim 3, the sprayer/atomizer meets the claimed limitations per the Alexander, Sr. disclosure of ‘spraying’ water droplets into the air/gas stream (see citations above).
Regarding claim 4, ‘a modular design’ does not convey additional patentable structure as there is no fixed definition by what is meant by this term. E.g. if something breaks in the Alexander, Sr. device, it can be replaced, so it is necessarily ‘modular’ in its design.
Regarding claim 5, Alexander, Sr. meets the claimed limitations (Figures 9 and 10).
Regarding claim 6, the Examiner takes Official Notice that having a controller meeting the claimed limitations is known in the art to control the flow being provided to the fuel cell1.
Regarding claim 7, it is well understood that temperature directly impacts the amount of water air/gas can hold and, as such, having the humidifying grid be capable of being heated is an obvious variant well within the knowledge base of a person of ordinary skill in the art, since the baffles are the location where the air/water absorption takes place. As such, the Examiner deems that having these be capable of being heated is solving a known problem (controlling the temperature of the air/gas when absorbing the liquid/water) with an obvious solution.
Regarding claims 8 and 9, these method steps are rendered obvious by the disclosed device limitations set forth above and the relevant disclosure in Alexander, Sr. on their operation (see citations above).
Allowable Subject Matter
The following is a statement of reasons for the indication of allowable subject matter: other than the double patenting rejection set forth above, claims 10 and 11 require a separate homogenizing grid in a specific location wherein it homogenized the gradient of moisture within the gas or air flow within at least a certain region. The prior art of record fails to teach or render obvious this additional structure meeting the claimed limitations.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
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/KEVIN M BERNATZ/Primary Examiner, Art Unit 1785
August 3, 2026
1 For support of the Examiner’s position of Official Notice, see Knies et al. (U.S. Patent App. No. 2015/0295258 A1).
Prosecution Insights