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 as failing to comply with 37 CFR 1.84(p)(4) because reference character “57” has been used to designate both pump turbine isolation valve and pump turbine isolation. (see page 5). 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. 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 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 6-8, 14-32 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 6 is confusing because claim 6 line 8 calls for “a lower portion of penstock”; however a penstock was never previously recited.
Claim 6 line 10, “said penstock” lacks clear antecedent basis.
Claim 16 “said penstock” lacks clear antecedent basis.
Claim 17 “said fish trap” lacks clear antecedent basis.
Claim 20 is indeterminate in scope since one cannot determine the metes and bounds of the limitation “an open-channel water gate”. Unclear where in the specification such limitation is discussed.
Claim 23, “pipe” lacks an article –a—before it.
Claim 24, “said penstock” lacks clear antecedent basis.
Claim 25 “said penstock” lacks clear antecedent basis.
Claim 25 “said open-channel fish trap” lacks clear antecedent basis.
Claim 27 “said penstock” lacks clear antecedent basis.
Claim 30 is indeterminate in scope since one cannot determine the metes and bounds of the limitation “attraction water”. Unclear where in the specification such limitation is discussed.
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.
Claim(s) 6-8, 14-18, 21,22,24,26,28,30-36,39-42 is/are rejected under 35 U.S.C. 103 as being unpatentable over EP 2098640 in view of Reversal of Parts.
EP document ‘640 discloses an apparatus for transporting fish past a dam (W), from headwater (O, Fig. 1) to tailwater (U, see Fig. 1), comprising:
an elevated source of water (70) at greater-than-headwater pressure;
drain piping (50-53) configured to drain said elevated source of water;
valve componentry (71-73) configured to control release of said source of water through
said drain piping;
a headwater fish trap (between 40 and 20);
a lower portion of penstock (part of 60, see Fig. 1) below headwater surface and to which said drain piping (53) is connected; and
an additional portion of said penstock (60, close to U in Fig 1) that is between said lower portion of penstock and said tailwater.
EP document ‘640 discloses the invention substantially in particular page 8 wherein the headwater can be at low tide and thus become tailwater and the tailwater can be at a higher elevation and considered as the headwater. It would have been considered obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify EP document ‘640 and have the headwater become the tailwater and the tailwater become the headwater since it has been held that a mere reversal of essential working parts of a device involves only routine kill in the art. In re Einstein, 8 USPQ 167. Such a modification happens during low tide.
Re claim 7, wherein said elevated source of water (70, Fig. 1) at greater-than-headwater pressure has a water surface that is elevated above a headwater water surface.
Re claim 8, wherein said elevated source of water at greater-than-headwater pressure comprises a tank of water (71).
Re claim 14, wherein said tank of water comprises a siphon-controlled tank of water (71-73, see page 9 of translation).
Re claim 15, wherein said valve componentry (71-73, page 9 of translation) comprises siphon valve componentry.
Re claim 16, further comprising a fish trap drain valve (55, pages 9-11 of translation) configured to block flow of water from said tailwater fish trap to said
penstock when said fish trap drain valve is closed.
Re claim 17, wherein said fish trap comprises an open-channel fish trap (see Figs. 2,3).
Re claim 18, wherein said open-channel fish trap comprises a raisable water gate (40, see page 10 of translation).
Re claim 21, further comprising at least one pump (72) configured to pump water upwards to said elevated source of water through elevated water source fill piping (52).
Re claim 22, wherein said elevated water source fill piping (52) is distinct from said drain piping (53).
Re claim 24, wherein said at least one pump (72) comprises a pump configured to pump water in said penstock upwards to said elevated source of water (this is the case when slide 55 left of 56 is closed and pump (72) pumps water from U to flow thru 60 and 53, see page 11 of translation).
Re claim 26, wherein said at least one pump comprises a pump (72) configured to pump tailwater upwards to said elevated source of water (via 52).
Re claim 28, wherein said drain piping (53) configured to drain said elevated source of water comprises a standpipe.
Re claim 30, insofar claim 30 is understood, EP document ‘640 further comprising attraction water in said tailwater (O, Fig. 1).
Re claim 31, further comprising a discharge valve (55, see page 11 translation) established (indirectly) at an upper end of said additional portion of said penstock.
Re claim 32 further comprising a vent (73) configured to allow air to enter said additional portion of said penstock leading to the headwater.
Re claim 33, EP document ‘640 discloses a method for transporting fish from tailwater to headwater, past a dam (W),
comprising the steps of:
- at least partially filling an elevated source of water (70) having a water surface that is
above a headwater water surface;
- attracting fish to, and trapping fish in, a headwater fish trap to generate trapped
Fish (between 20 and 40);
- draining said trapped fish from said headwater fish trap (see pages 9-11 of translation);
- draining water from said elevated source of water to a penstock (60, pages 9-11 of translation); and
- transporting said trapped fish through at least a portion of said penstock (60) to said
tailwater.
EP document ‘640 discloses the invention substantially in particular page 8 wherein the headwater can be at low tide and thus become tailwater and the tailwater can be at a higher elevation and considered as the headwater. It would have been considered obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify EP document ‘640 and have the headwater become the tailwater and the tailwater become the headwater since it has been held that a mere reversal of essential working parts of a device involves only routine kill in the art. In re Einstein, 8 USPQ 167. Such a modification happens during low tide.
Re claim 34, wherein said step of attracting fish to, and trapping fish in, a tailwater
fish trap comprises the step of attracting fish to, and trapping fish in, an open-
channel tailwater fish trap (see between 20 and 40 Fig. 1).
Re claim 35, wherein said step of at least partially filling an elevated source of
water (70) comprises the step of pumping (72, pages 9-11 of translation) headwater upwards to said elevated source of water.
Re claim 36, it would have been considered obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the step of pumping water within said penstock upwards to said elevated source of water (this is the case when slide 55 left of 56 is closed and pump (72) pumps water from U to flow thru 60 and 53, see page 11 of translation). Such a modification would be based on the desire to move fish from the headwater to the tailwater.
Re claim 39, further comprising the step of preventing passage (55, right of member 56) of said trapped fish from said penstock (60) upwards towards said elevated source of water (70).
Re claim 40, wherein said step of at least partially filling an elevated source of
water comprises the step of at least partially filling a tank (71, pages 9-11 of translation).
Re claim 41, wherein said step of at least partially filling a tank comprises the step
of at least partially filling a siphon-controlled tank (71-73).
Re claim 42, said step of draining water from said elevated source of water
to a penstock comprises the step of opening at least one valve (55, pages 9-11 of machine translation).
Allowable Subject Matter
Claims 19,20,23,25,27,29 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.
Claims, 37,38,43 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SUNIL SINGH whose telephone number is (571)272-7051. The examiner can normally be reached M-Th 8-3, F 9-8 and 2nd Sat 11-7.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Amber Anderson can be reached at 571 270 5281. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/SUNIL SINGH/Primary Examiner, Art Unit 3678
SS
1/10/2026