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 .
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “control means” recited in claim 13; the “channel choke point” recited in claim 14; the “orifice” recited in claims 8 and 16; the “closure means” recited in claims 10 and 19; the “screw cap” recited in claims 11 and 20; the “channel choke point” recited in claim 14 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
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.
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description: 105P (shown in figure 18). Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) 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. 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 Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
Claim 10 recites the limitation “closure means” in line 2. The “closure means” invokes means plus function under 35 U.S.C. 112(f).
Claim 13 recites the limitation “a control means for controlling the activation and deactivation of each cartridge for the mixing of atomization vapor expelled from the respective cartridges.” The “control means” invokes means plus function under 35 U.S.C. 112(f).
Claim 19 recites the limitation “closure means” in line 2. The “closure means” invokes means plus function under 35 U.S.C. 112(f).
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 10-13 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 10 recites the limitation “closure means for leak-tight closure of the liquid.” The specification merely asserts a closure means but provides no disclosure of the closure means or how it functions.
Claim 12 recites the limitation “a separate attachment point for the attachment element of each of a plurality of respective cartridges.” The claim requires a single attachment point for the attachment element of a plurality of cartridges. The specification does not appear to disclose “a separate attachment point,” i.e., a single attachment point, that attaches to the attachment element of each of a plurality of respective cartridges.
Claim 13 recites the limitation “a control means for controlling the activation and deactivation of each cartridge for the mixing of atomization vapor expelled from the respective cartridges.” The specification merely asserts a control means but provides no disclosure of the control means or how it functions.
Claim 19 recites the limitation “closure means for leak-tight closure of the liquid.” The specification merely asserts a closure means but provides no disclosure of the closure means or how it functions.
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 1-21 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.
In claim 1, line 1, the recitation “store and atomize and disperse” is grammatically and idiomatically incorrect.
Claim 1 recites the limitation “an upstream air inlet” in line 5. The claim fails to provide a reference point to determine “upstream.”
Claim 1 recites the limitation “a downstream choke point” in line 5. The claim fails to provide a reference point to determine “downstream.”
Claim 1 recites the limitation "the cross-sectional area" in line 6. There is insufficient antecedent basis for this limitation in the claim. This cross-sectional area cannot be the same area as the “cross-sectional area” preceding it in line 6.
The term “near” in claim 1 is a relative term which renders the claim indefinite. The term “near” 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. The location/distance limited by the claim is uncertain.
Claim 1 recites the limitation “lowering the downstream air pressure” in lines 13-14. The claim fails to provide a reference to determine “lowering.”
Claim 1 recites the limitation "the downstream air pressure" in line 14. There is insufficient antecedent basis for this limitation in the claim.
Claim 3 recites the limitation "said cartridge" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim.
Claim 4 recites the limitation "said cartridge attachment element" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 4 recites the limitation "said manifold attachment point" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 6 recites the limitation "said cartridge" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 6 recites the limitation "the dispersal rate" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 6 recites the limitation "atomized liquid" in line 2. There is insufficient antecedent basis for this limitation in the claim. It appears to be a double inclusion of the “atomizing the liquid” recited in claim 1.
Claim 7 recites the limitation "said cartridge" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 7 recites the limitation "fluid communication" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 7 recites the limitation “below said atomization outlet” in line 2. It is uncertain what is “below.” Does is refer to the reservoir hole, fluid communication, reservoir, or air duct?
Claim 8 recites the limitation “flows en route to said atomization outlet” in line 3. It is uncertain what “flows.”
Claim 9 recites the limitation "said cartridge" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "said cartridge" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claims 10 and 11 recite the limitation “closure means for leak-tight closure of the liquid…closure means comprising external threading on said atomization outlet rotatably mating with the screw cap.” The specification discloses, in paragraph 00048, the “atomization outlet is more extended and pronounced to include external threading 105R for rotational mating with an internally threaded screw-on cap (not shown).” The “closure means” appears to be a double inclusion of the atomization outlet. Based on the specification, it is uncertain how to distinguish the closure means from the atomization outlet because the closure means is defined as an element of the atomization outlet. Additionally, the atomization outlet does not appear to provide any means of closing.
Claim 12 recites the limitation “a plurality of respective cartridges” in line 2. At least one of the plurality of respective cartridges appears to be a double inclusion of the “casing” recited in claim 1.
Claim 13 recites the limitation "the activation and deactivation" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim.
Claim 13 recites the limitation "each cartridge" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 13 recites the limitation "the mixing" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 13 recites the limitation "atomization vapor" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 15 recites the limitation "unitary construction" in line 1. There is insufficient antecedent basis for this limitation in the claim.
In claim 16, line 1, the recitation “store and atomize and disperse” is grammatically and idiomatically incorrect.
Claim 16 recites the limitation “an upstream air inlet” in line 4. The claim fails to provide a reference point to determine “upstream.”
Claim 16 recites the limitation “a downstream choke point” in line 4. The claim fails to provide a reference point to determine “downstream.”
Claim 16 recites the limitation "the cross-sectional area" in line 5. There is insufficient antecedent basis for this limitation in the claim. This cross-sectional area cannot be the same area as the “cross-sectional area” preceding it in line 5.
The term “near” in claim 16 is a relative term which renders the claim indefinite. The term “near” 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. The location/distance limited by the claim is uncertain.
Claim 16 recites the limitation “lowering the downstream air pressure” in line 11. The claim fails to provide a reference to determine “lowering.”
Claim 16 recites the limitation "the downstream air pressure" in line 14. There is insufficient antecedent basis for this limitation in the claim.
Claim 17 recites the limitation “air” in line 2. It appears to be a double inclusion of the “air” recited in claim 16.
Claim 17 recites the limitation “an includes” in line 2. It is uncertain whether the reference is to the “system” or the “manifold.”
Claim 17 recites the limitation "said cartridge" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 19 recites the limitation "the bottom" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 19 recites the limitation "said cartridge" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claims 19-20 recite the limitation “closure means for leak-tight closure of the liquid…closure means comprising external threading on said atomization outlet rotatably mating with the screw cap.” The specification discloses, in paragraph 00048, the “atomization outlet is more extended and pronounced to include external threading 105R for rotational mating with an internally threaded screw-on cap (not shown).” The “closure means” appears to be a double inclusion of the atomization outlet. Based on the specification, it is uncertain how to distinguish the closure means from the atomization outlet because the closure means is defined as an element of the atomization outlet. Additionally, the atomization outlet does not appear to provide any means of closing.
The claims are generally narrative and indefinite, failing to conform with current U.S. practice. They appear to be a literal translation into English from a foreign document and are replete with indefiniteness.
The listing above is only exemplary. Limited time for search and examination precludes a complete editorial review. Applicant is required to review and amend all of the claims in their entirety to ensure full compliance with 35 U.S.C. 112(b). Any uncorrected indefiniteness will be subject to a final rejection in the next Office action.
Applicant should not misconstrue any lack of art rejection as an indication of allowable subject matter.
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.
Claim(s) 1-3, 7, 8, 10, 12-17 and 19 (as best understood) is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Le Pesant et al. (6,712,287).
Le Pesant et al. disclose a system configured to store and atomize and disperse an unclaimed liquid, the system comprising a casing (entirety of figure 1) defining:
(a) a reservoir (reservoir holding liquid 6) storing the liquid to be atomized and comprising a bottom connection point (at the bottom of first end 24a);
(b) an air duct 26 comprising an upstream air inlet 26a and a downstream choke point 26c having a cross-sectional area smaller than the cross sectional area of the air duct upstream of the choke point;
(c) an atomization outlet 22a, 8a, 8b, 8c; and
(d) a vacuum channel 24 comprising a junction point (downstream of mouth 26c and mouth 24c) in fluid communication with said bottom connection point, and an upper connection point 24c in fluid communication with said air duct downstream of and near the choke point; and
wherein, air supplied by an unclaimed air supplied by an unclaimed air supply 10 enters the air inlet under pressure and travels into the air duct and through the choke point, converting the air into an air jet and lowering the downstream air pressure of the air duct near the chole point, creating a Venturi vacuum (col. 7, l. 25) suctioning the liquid up the vacuum channel and into the air jet, thereby atomizing the liquid and propelling it out the atomization outlet;
said system further comprising a manifold (item identified with reference 16 having an arrow head leader line in figure 1) whereby the air supply supplies air to said air inlet, and includes an air delivery element 10a in fluid communication with said air inlet;
said manifold further comprising an attachment point (attachment point for tank 6a, 6b, 6c), said cartridge further comprising an attachment element (element that attaches to the manifold) aligned and cooperating with said attachment point to removably secure (extractable and interchangeable; col. 6, l. 2) the cartridge to the manifold;
further comprising a reservoir hole (hole for tube 24) providing fluid communication between the reservoir and the air duct below said atomization outlet;
wherein said reservoir further comprises an upper gaseous region (above liquid 6) having an orifice (orifice at the upstream end of orifice 22a) into which said air duct, downstream of said upper connection point of the vacuum channel, flows en route to said atomization outlet;
wherein said cartridge has a flat bottom (bottom of reservoir holding liquid 6) and said atomization outlet comprises closure means 8a, 8b, 8c for leak-tight closure of the liquid;
said manifold further comprising a separate attachment point (attachment point for tanks holding liquid 6a, 6b, 6c) for the attachment element of each of a plurality of respective cartridges;
further comprising a control means 12 for controlling the activation and deactivation of each cartridge for the mixing of atomization vapor expelled from the respective cartridges;
said vacuum channel further comprising a channel choke point 24c terminating at said upper connection point;
wherein said cartridge comprises unitary construction (unitary as defined in Applicant’s specification, paragraph 00023; the cartridge of Le Pesant et al. includes a plurality of parts constructed of the same or chemically-related material(s), bonded together into an indivisible single piece).
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 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 1-3, 12-17 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-18 of U.S. Patent No. 12,329,903. Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of U.S. Patent No. 12,329,903 fully disclose the currently claimed invention.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CHRISTOPHER S KIM whose telephone number is (571)272-4905. The examiner can normally be reached M-F 7:30-3:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Arthur O Hall can be reached at (571) 270-1814. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHRISTOPHER S KIM/Primary Examiner, Art Unit 3752 CHRISTOPHER S. KIM
Examiner
Art Unit 3752
CK