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 .
Response to Amendment
The claim objection and 112b rejections in the non-final are withdrawn in view of amendments.
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.
(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.
Claims 1-4, 7-9, 11, 13-15 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zarzycki et al (US20230193344A1 published 06/22/2023; hereinafter Zarzycki).
Regarding claim 1, Zarzycki teaches an inlay (an incubation plate 750 of a filtration system – Fig. 1A) for a flask (“for a flask” merely states the purpose or intended use of the inlay, rather than any distinct definition of any of the claimed inlay’s limitations; therefore, per MPEP 2111.02II, the “flask” recited in the preamble is not considered a limitation), the inlay comprising:
a bottom portion (a bottom portion of the incubation plate 750 below the cutout 752B – Fig. 1A) comprising a downward-facing or downward-and-outward-facing first surface for abutting a bottom inner surface of the flask (the bottom portion having a bottom surface capable of abutting a bottom inner surface of a flask – Fig. 1A);
a side portion (an outer portion of the incubation plate 750 above the cutout 752B – Fig. 1A) comprising an outer surface for abutting a side inner surface of the flask (the outer portion having an outer surface capable of abutting a side inner surface of the flask – Fig. 1A), wherein the outer surface faces outwards with respect to a vertical reference line intersecting the inlay (the outer surface facing outwards with respect to a vertical reference line intersecting the incubation plate 750 – Fig. 1A);
an intermediate portion (a side wall 752 – Fig. 1A) mechanically connecting the bottom portion and the side portion (the side wall 752 connecting the bottom portion and the outer portion – Fig. 1A);
and a baffle element (a rib comprising an upraised surface 751 – Fig. 1A and paragraph 30) extending away from the bottom portion, from the side portion, (the rib extending away from the bottom portion and the outer portion – Fig. 1A) and/or (“and/or” is interpreted as or) from the intermediate portion for extending into an inner volume of the flask;
wherein an inner angle (an angle between the bottom surface and the outer surface – Fig. 1A) between the first surface and the outer surface is at least 50˚ (the angle between the bottom surface and the outer surface is greater than 50˚ – Fig. 1A and 4B),
wherein the inner angle refers to an angle on the side of the vertical reference line in a vertical cross section through the inlay (the angle between the bottom surface and the outer surface is on the side of the vertical reference line in a vertical cross section through the inlay – Fig. 1A and 4B); and
wherein the inlay comprises a first flexible material (a polymer – paragraph 36) (a polymer is interpreted to have some degree of flexibility, so there would be some flask the incubation plate 750 would be capable of being inserted into) adapted to allow for bending said side portion inwards (the incubation plate is capable of bending inwards because polymer is flexible – paragraph 36);
wherein the inlay is adapted to allow for folding the inlay with respect to a horizontal crease line to insert the inlay into the flask (the incubation plate is capable of bending with respect to a horizontal crease line and insert into a flask – paragraph 36 and Fig. 1A); and
wherein the inlay comprises, along a vertical plane comprising the horizontal crease line, a second flexible material (the incubation plate 750 containing agar – paragraph 30) to allow for said folding (agar is flexible and allows the incubation plate 750 to be bent with respect to a horizontal crease line and insert into a flask – paragraph 30).
Regarding claim 2, Zarzycki teaches the inlay according to claim 1, wherein a ratio of a height of the inlay along the vertical direction and a maximum width of the inlay in a horizontal direction is at most 0.5 (the incubation plate 750 having a ratio of a height to a maximum width less than 0.5 – Fig. 1A).
Regarding claim 3, Zarzycki teaches the inlay according to claim 1, wherein the inlay is an integral part (the incubation plate 750 is integral to the filtration system – Fig. 1A).
Regarding claim 4, Zarzycki teaches the inlay according to claim 1, wherein the intermediate portion (the side wall 752 – Fig. 1A) or an outward-facing surface of the intermediate portion extends from the outer surface to the first surface (the side wall 752 extends from the bottom surface of the bottom portion – Fig. 1A).
Regarding claim 7, Zarzycki teaches the inlay according to claim 1, wherein the downward-facing or downward- and-outward-facing first surface is a downward-facing bottom surface of the bottom portion (the bottom surface of the bottom portion is a downward-facing bottom surface of the bottom portion – Fig. 1A).
Regarding claim 8, Zarzycki teaches the inlay according to claim 1, wherein, in a horizontal plane intersecting the bottom portion, a shape of the bottom portion is a ring segment or a ring (in a horizontal plane intersecting the bottom portion, a shape of the bottom portion is a ring segment – Fig. 1A).
Regarding claim 9, Zarzycki teaches the inlay according to claim 1, wherein the bottom portion and the first surface comprise an opening (an opening in the bottom surface of the bottom portion of the incubation plate 750 – Fig. 1A).
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[AltContent: textbox (an opening)][AltContent: arrow]Regarding claim 11, Zarzycki teaches the inlay according to claim 1, wherein the first surface extends in a horizontal plane (the bottom surface of the bottom portion extends in a horizontal plane – Fig. 1A).
Regarding claim 13, Zarzycki teaches the inlay according to claim 1, wherein the baffle element extends upwards from the bottom portion (the ribs extends upwards from the bottom portion of the incubation plate 750 – Fig. 1A).
Regarding claim 14, Zarzycki teaches the inlay according to claim 1, wherein the flask is an Erlenmeyer flask (“the flask” is needed to be an intended use of the inlay) (the incubation plate 750 is capable of being used with an Erlenmeyer flask – Fig. 1A).
Regarding claim 15, Zarzycki teaches the inlay for the flask according to claim 1, wherein the bottom portion comprises the downward-facing first surface for abutting the bottom inner surface of the flask (the bottom portion having a bottom surface capable of abutting a bottom inner surface of a flask – Fig. 1A).
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.
Claims 5-6, 10, 12 are rejected under 35 U.S.C. 103 as being unpatentable over in view of Zarzycki in view of Ubukata et al (US20180201891A1 published 07/19/2018; hereinafter Ubukata).
Regarding claim 5, Zarzycki teaches the inlay according to claim 1, wherein:
the first flexible material is adapted to promote a force-fit connection of the first surface to the bottom inner surface of the flask (the polymer capable of promoting a force-fit connection of the bottom surface of the bottom portion to a bottom surface of a flask – paragraph 36) and/or (“and/or” is interpreted as or) to promote a force-fit connection of the outer surface to the side inner surface of the flask.
However, Zarzycki does not teach wherein the first flexible material is a first elastomer.
Ubukata teaches a cell culture container with an elastic body formed of a rubber material wherein the first flexible material is a first elastomer (the elastic body is formed of a rubber material containing silicone rubber – paragraph 16). Ubukata also teaches to use a flexible container so that cells can be removed without damage (paragraph 15).
It would have been obvious to one of ordinary skill in the art before the effective filing date to modify the incubation plate 750, as taught by Zarzycki, with the rubber material containing silicone rubber, taught by Ubukata, to gain a flexible container so that cells can be removed without damage. One of ordinary skill would have expected that this modification could have been performed with a reasonable expectation of success because Zarzycki and Ubukata teaches devices for processing cells.
Regarding claim 6, Zarzycki, modified by Ubukata, teaches the inlay according to claim 5, wherein the first elastomer is adapted to, upon the bending the side portion inwards, provide an elastic restoration force against the bending (the incubation plate 750 comprising a silicone rubber is capable of providing an elastic restoration force against bending – Ubukata paragraph 16), said restoration force promoting said force-fit connection of the side portion to the side inner surface of the flask (the incubation plate 750 comprising a silicone rubber is capable of promoting a force-fit connection of the bottom surface of the bottom portion to a bottom surface of a flask – Ubukata paragraph 16 and Zarzycki Fig. 1A) and/or (“and/or” is interpreted as or) of the first surface to the bottom inner surface of the flask.
Regarding claim 12, Zarzycki, modified by Ubukata, teaches the inlay according to claim 6, wherein the bending the side portion inwards bends the side portion towards the vertical reference line (bending the incubation plate 750 inwards bends the outer portion of the incubation plate 750 towards the vertical reference line – Fig. 1A) and/or (“and/or” is interpreted as or) reduces the inner angle, wherein, the elastic restoration force acts to bend the side portion away from the vertical reference line and to increase the inner angle (the polymer capable of providing an elastic restoration force that bends the outer portion of the incubation plate 750 away the vertical reference line and to increase the angle between the bottom surface and the outer surface – Fig. 1A and paragraph 36).
Regarding claim 10, Zarzycki, modified by Ubukata, teaches the inlay according to claim 5, wherein the bottom portion comprises or is composed of the first elastomer (the bottom portion of the incubation plate 750 comprises silicone rubber – Ubukata paragraph 16 and Zarzycki Fig. 1A).
Response to Arguments
Applicant's arguments filed 01/12/2026 have been fully considered but they are not persuasive.
Point 1: The applicant argues that “Zarzycki does not disclose any structure whose sidewall is bendable inward as recited in claim 1” and is not persuasive.
The examiner points out that “flexible material” is a property that read on a material with a degree of flexibility. Furthermore, the applicant acknowledges that the “category of "polymer" references literally millions of possible materials having broad ranges of characteristics including their degree of flexibility”; therefore, polymer is deemed to be a flexible material and reads on the claim.
Point 2: The applicant argues that “nothing in Zarzycki suggests the plate has any elastomeric properties” and is not persuasive.
The examiner points out that the features upon which applicant relies (i.e., “elastomeric properties”) are not recited in the rejected claim(s). Although the claim 1 is interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Point 3: The applicant argues that “nothing in Zarzycki suggests that the incubation plate 750 can be folded at all, let alone with respect to a horizontal crease line” and “These ribs are expressly described as fill-level indicators, not as flexible hinges. Id. Their structure contradicts foldability” and is not persuasive.
The examiner points out that the limitation “for folding the inlay with respect to a horizontal crease” is an intended use recitation of the inlay and is not the same as a structural limitation that says the inlay comprises a foldable crease line. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Furthermore, per MPEP 2111.02 a statement of intended use in an apparatus claim did not distinguish over the prior art apparatus. To satisfy an intended use limitation which is limiting, a prior art structure which is capable of performing the intended use as recited in the preamble meets the claim. Zarzycki teaches a polymer incubation plate comprising ribs that are capable of being folding with respect to a horizontal crease line and is deemed read on the claim.
Point 4: The applicant argues that the agar is “not a structural material of the plate body and cannot create a foldable crease line for a body” and is not persuasive.
The examiner points out that the limitation “for folding the inlay with respect to a horizontal crease line” is an intended use recitation of the inlay and is not the same as a structural limitation that says the inlay comprises a foldable crease line. Furthermore, the incubation plate is deemed to read on the limitation because the incubation plate can comprise agar without the agar being a structural element of the incubation plate.
The examiner points out that the features upon which applicant relies (i.e., “the agar is not a structural material”) are not recited in the rejected claim(s). Although the claim 1 is interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Point 5: The applicant argues that the agar is not “arranged along any vertical plane” or “described as enabling folding” is not persuasive.
The examiner points out that the agar is arranged long a plane that is vertical relative to the ribs of the incubation plate. Furthermore, the agar is capable of being folded to a degree and deemed to “allow for said folding”.
The examiner points out that the features upon which applicant relies (i.e., “described as enabling folding”) are not recited in the rejected claim(s). Although the claim 1 is interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Point 5: Regarding claim 5, the applicant argues that “the Examiner's suggestion that a person of ordinary skill would configure the incubation plate 750 of Zarzycki as a flexible container as in Ubukata” and “If the teachings of Ubukata were applied to the inlay recited in claim 5, it would lead one of ordinary skill to employ a flexible flask which would allow the inlay to be removed without damage” and is not persuasive.
The examiner points out that the action does not mention using a flask because the limitation “for a flask” is an intended use of the inlay; therefore, per MPEP 2111.02II, the “flask” is not considered a structural limitation of the inlay. Furthermore, the combination of Zarzycki and Ubukata results in an incubation plate 75 made of silicone rubber so that the resulting rubber incubation plate 75 can contain cells without damage.
Point 6: The applicant argues that “this feature disclosed by Ubukata is irrelevant to the patentability of the inlay recited in claim 5” and is not persuasive.
In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, Ubukata teaches to use a flexible container so that cells can be removed without damage (paragraph 15).
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/T.C.S./Examiner, Art Unit 1796
/ELIZABETH A ROBINSON/Supervisory Patent Examiner, Art Unit 1796