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 .
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.
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.
Claim(s) 1 and 4 is/are rejected under 35 U.S.C. 103 as being unpatentable over CN102898448A, hereinafter ‘He’.
Regarding Claim 1, He discloses a metal organic framework comprising zinc (Zn); and
at least one ligand selected from 4-methylimidazole (4-MeIm), imidazole (Im), and benzimidazole (BzIm) ([0004], [0012]-[0013]: He discloses an MOF comprising an imidazole-based ligand selected from the group consisting of 2-methylimidazole, 2-ethylimidazole, 4-methylimidazole, 2,4 dimethylimidazole, 2-nitroimidazole, 2-methyl-4-nitroimidazole, benzimidazole, and 5,6-dimethylbenzimidazole, and a metal compound selected from the group consisting of ZnCl₂, Zn(OH)₂, Zn(Ac)₂, Zn(NO₃)₂, Co(OH)₂, Co(Ac)₂, and Co(NO₃)₂, or a combination thereof – given this, one of ordinary skill in the art before the effective filing date of the claimed invention would have found it obvious to select a zinc-containing metal in combination with 4-methylimidazole to form the disclosed zeolitlc imidazolate framework),
wherein when a mole ratio of the 4-MeIm, Im, and BzIm is x:y:z (4-MeIm:Im:BzIm), the mole ratio x:y:z falls within a polygonal region (including on a boundary line) having the claimed vertices in a ternary composition diagram (as discussed above, He suggests a framework in which 4-methylimidazole is chosen as the ligand – in such a framework, the molar ratio x:y:z as claimed would be 1:0:0, which falls on the boundary line of the polygon formed by the claimed vertices).
Regarding Claim 4, He discloses the inventive framework is used for gas adsorbing ([0004]).
Allowable Subject Matter
Claims 2-3 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.
The following is a statement of reasons for the indication of allowable subject matter:
CN102898448A (He), the closest prior art pertinent to the claimed invention, does not reasonably disclose or suggest the limitations of Claim 2, requiring the metal organic framework to have an ACO-type topology. He is silent regarding the topology of the produced metal organic framework, and there is no reasonable basis to conclude that the MOF suggested by the teachings of He would possess such a framework.
Further, He does not reasonably disclose or suggest the limitations of Claim 3, requiring diffraction peaks appear at diffraction angles (2θ) of at least 28.4±0.4°, 30.6±0.4°, and 35.2±0.4° in an X-ray powder diffraction measurement with a CuKα ray at an X-ray wavelength of 1.5418 Å. While He discloses X-ray diffraction measurements of the disclosed embodiments which possess peaks in the claimed ranges, the embodiments do not utilize 4-methylimidazole as a ligand, and there is no reasonable basis to conclude that the MOF suggested by the teachings of He using such a ligand would possess the claimed X-ray diffraction pattern.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LOGAN LACLAIR whose telephone number is (571)272-1815. The examiner can normally be reached M-F, 9:30-5:30 PST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Anthony Zimmer can be reached at (571) 270-3591. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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LOGAN LACLAIR
Examiner
Art Unit 1736
/L.E.L./ Examiner, Art Unit 1736
/ANTHONY J ZIMMER/ Supervisory Patent Examiner, Art Unit 1736
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