Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
DETAILED NON-FINAL ACTION
This is the initial Office Action (OA), on the merits, based on the 18/772,583 application filed on July 15, 2024. Claims 1-20 are pending and have been fully considered. All claims are directed to an apparatus.
Information Disclosure Statement
The Examiner has considered the information disclosure statements (IDS) submitted on 11/14/2025. Please refer to the signed copy of the PTO-1449 form attached herewith.
Claim Interpretation
The examined claims are apparatus claims requiring only the positively recited structural components, although structured with physical features that can perform the stated functions or accomplish the intended uses. Functional limitations state either an intended use or operation, a manner of operating a device, apparatus or system, or what the apparatus/system does. Apparatus claims cover what a device is, not what a device does. Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990). Also, a claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987).
Of course, in the patentability analysis of these apparatus claims, functional features are not ignored and Applicant can and should employ such language where appropriate and helpful. However, if a prior art structure is capable of performing the intended use, or if such apparatus can operate in the manner described, then it meets the claim limitation (MPEP §§ 2114, 2173.05(g)).
The recited fluid, for example, is considered a material potentially contained within, transient or passing through, generated or produced, or otherwise worked upon by the apparatus rather than a structural component of the apparatus.
According to the MPEP §2115 [R-2], a material or article worked upon does not limit apparatus claims: Expressions relating an apparatus to contents thereof during an intended operation are of no significance in determining patentability of apparatus claims. Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969). Furthermore, “inclusion of material or article worked upon by a structure being claimed does not impart patentability to the claims.” In re Young, 75 F.2d 996, 25 USPQ 69 (CCPA 1935) (as restated in In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963)).
In summary, while features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997).
In the patentability analysis, the Office applies the broadest reasonable interpretation (BRI) consistent with the specification. However, specific limitations from the specification are not read into the claims. See MPEP §§2111, 2173.01 I. Unless otherwise specified, any citation to Applicant’s specification will generally refer to the original and any substitute or amended specification rather than a published application.
Examiner interprets limitations such as ‘configured,’ ‘configured to’ and/or ‘configured for’ as similar or equivalent to ‘set up to,’ ‘designed to,’ ‘capable of,’ or simply ‘can,’ in the context of an appropriate reference.
Examiner interprets the term inert broadly. An inert substance will not readily react with other elements or compounds but retains a limited ability to react chemically. That is, inertness is relative, and is dependent upon the type of material used upon the ‘inert’ structure.
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 1-20 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 pre-AIA the applicant regards as the invention.
Alternatively or in addition, claims 1-20 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential elements and/or essential structural cooperative relationships of elements and/or essential steps, such omission amounting to a gap between the necessary structural connections, essential elements or essential steps. See MPEP § 2172.01.
Claim 1 recites a sensor but the structural relationship between the sensor and the other components is unclear.
Claim 1 states “. . . an aperture configured to produce a fluidic vortex in a fluid flowing therethrough . . .” The underlined portion constitutes functional language because it recites either a manner of operating the apparatus, a material that the apparatus works upon, or the result of a previously claimed structure rather than clearly imposing any additional structure. The boundaries of this functional language is unclear. That is, the claim does not provide a discernible boundary regarding what provides this functional characteristic. Is any aperture capable of producing a fluidic vortex in a fluid flowing therethrough? Does the mere placement of an aperture in a member inherently produce a fluidic vortex as claimed, or is there a specific structural configuration of these apertures that would accomplish this function? Examiner suggests that Applicant amend the claim to specify how the aperture accomplishes the recited functionality, provided such an amendment is supported by the original specification. MPEP §§2173.02, 2173.05(g).
Claim 2 mentions “the members” in line 1. Since there are a plurality of members, there is insufficient antecedent basis for this limitation in the claim.
Claims 4-10 each recite “the apertures.” However, since there are a plurality of apertures, there is insufficient antecedent basis for this limitation in the claim.
Claim 19 recites the limitation "the inlet" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claim 20 recites the limitation "the outlet" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Claims 2-20 depend on claim 1, and if not otherwise rejected, are rejected based on that dependency.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of pre-AIA 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) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for a patent.
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
Claims 2-4, 7-16 and 18-20 are rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by Farmer (U.S. 5,425,858)(IDS of 11/14/2025).
Regarding claims 2-4, 7-16 and 18-20, Farmer discloses a mixing device (Abstract; Figure 3) comprising:
a chamber made of an inert material 30 (“each electrode used in this apparatus should be made of a structurally stable, porous, monolithic solid. Such monolithic electrodes should not become readily entrained in, or depleted by the stream of fluid to be processed, and should not degrade rapidly with cycling . . . It is yet another object of the present invention to provide a new separation process which is chemically stable, thus preventing the novel apparatus from prematurely degrading . . . While, as described above, the electrode 44 is preferably made of carbon aerogel, composite, any monolithic, porous solid that has sufficient electrical conductivity and corrosion resistance (chemical stability) to function as an electrode, can alternatively be used” (col. 4, lies 47-53; col. 6, lines 44-47; col. 14, lines 36-40); Figure 3), the chamber comprising a plurality of members 38, 39, 40, 41 (alternatively, only members 38 and 40 or only members 39 and 41) spaced apart to form sub-chambers (sub-chambers 66, 67, 68, and 69, Figure 3; alternatively, sub-chambers 66, 67-68, and 69 or sub-chambers 66-67 and 68-69, Figure 3), each member comprising an aperture 74, 75, 76, and 77 (alternatively, only apertures 74 and 76 or only apertures 75 and 77) configured to produce a fluidic vortex in a fluid flowing therethrough; and
a sensor for measuring a quality of the fluid (pH meter/sensor 127-136-146 measures fluid across chamber 30 by measuring pH and conductivity near its inlet and outlet; col. 6, lines 36-37; col. 15, line 45 to col. 16, line 12 and Fig. 5).
Additional Disclosures Included: Claim 2: The members are fixed within the chamber parallel to each other (Fig. 3); Claim 3: In the device a fluidic vortex is produced within each sub-chamber (this is a manner of operating the apparatus and is a functional capability of the apparatus); Claim 4: The apertures all have the same diameter (Figure 3); Claim 7: The apertures are located within different places of the members (Fig. 3); Claim 8: The apertures are located in a top portion of the members (apertures 74, 75, 76, and 77 extend through top portions of members 38, 39, 40, and 41, respectively, Figure 3); Claim 9: The apertures are located in a bottom portion of the members (apertures 74, 75, 76, and 77 extend through top portions of members 38, 39, 40, and 41, respectively, Figure 3); Claim 10: The apertures are located in a middle portion of the members (apertures 74, 75, 76, and 77 extend through top portions of members 38, 39, 40, and 41, respectively, Figure 3); Claim 11: Adjacent members have apertures within opposite portions of the members (apertures 74 and 76 are disposed on portions of members 38 and 40 which are opposite from the portions on which apertures 75 and 77 and disposed on adjacent members 39 and 41, respectively, Figure 3); Claim 12: The quality measured by the sensor is pH, conductivity, or a concentration of the fluid (claim 1 analysis); Claim 13: The mixing device further comprising an injection port 47 configured to inject a reagent into the flowing fluid (col. 10, lines 61-64; Figure 3); Claim 14: The chamber comprises four members, a first member 38 having an aperture 74 located in a top portion of the first member (Figure 3); a second member 39 having an aperture 75 located in a bottom portion of the second member 75; a third member 40 having an aperture 76 located in a top portion of the third member; and a fourth member 41 having an aperture 77 located in a bottom portion of the fourth member; Claim 15: The device further comprising an inlet configured to sealably mate with an inlet channel (inlet 47 mates with inlet channel 80-82, such that steam flows through without escaping, column 12, lines 32-37 and Figure 3); Claim 16: The device further comprising an outlet configured to sealably mate with an outlet channel (outlet 92 mates with outlet channel 90-91, such that steam flows through without escaping, column 12, lines 54-58 and Figure 3); Claim 18: The device further comprising an inlet channel 80-82 and an outlet channel 90-91 (Figure 3); Claim 19: The inlet [channel] is configured to sealably mate with the inlet channel (inlet 47 mates with inlet channel 80-82, such that steam flows through without escaping, column 12, lines 32-37 and Figure 3); and Claim 20: The outlet [channel] is configured to sealably mate with the outlet channel (outlet 92 mates with outlet channel 90-91, such that steam flows through without escaping, column 12, lines 54-58 and Figure 3).
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
This application currently names joint inventors. In considering patentability of the claims under pre-AIA 35 U.S.C. 103(a), the Examiner presumes that the subject matter of the various claims was commonly owned at the time any inventions covered therein were made absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and invention dates of each claim that was not commonly owned at the time a later invention was made in order for the Examiner to consider the applicability of pre-AIA 35 U.S.C. 103(c) and potential pre-AIA 35 U.S.C. 102(e), (f) or (g) prior art under pre-AIA 35 U.S.C. 103(a). The inventive entity for a particular application is based on some contribution to at least one of the claims made by each of the named inventors. MPEP §2137.01.
Claims 1-20 are rejected under pre-AIA 35 U.S.C. 103(a) as unpatentable over Gray (U.S. 4,068,830) in view of Blank (U.S. 7,582,324)(IDS of 11/14/2025).
Regarding claims 1-20, Gray discloses a mixing device (Abstract) comprising:
a chamber 10 (Fig. 1) made of an inert material (col. 3, ln. 11; col. 4, lines 44-46; and Table III, where glass, stainless steel etc. are interpreted as inert), the chamber comprising a plurality of members spaced apart to form sub-chambers 12a, 12b, 12c, and 12d (Figs. 1, 1a), each member comprising an aperture 14 (Figs. 2, 5 and 7) configured to produce a fluidic vortex in a fluid flowing therethrough (where the apertures are capable of producing a vortex depending on the manner of operating the apparatus).
Therefore, Gray discloses the claimed invention, except a sensor for measuring a quality of the fluid.
Blank discloses a hypotonic performance beverage featuring the use of a polyglucoside having a molecular weight within a range from about 3140 to about 3760, said beverage having a pH within a range from about 3.2 to about 3.5 (Abstract). The acidity measurement is conventionally made using a glass electrode (Id.). Power mixing is employed as opposed to the normal patterns of merely mixing liquids when formulating a bottled beverage (col. 8, lines 15-53; Example 12). A glass electrode pH meter is employed during the terminal stages of adding mixing (col. 9, lines 28-32, where a pH meter is a water quality sensor; that is, pH is a metric employed to determine if a desired diffusivity and degree of mixing are achieved; col. 8, lines 64-66 and col. 9, lines 8-14).
It would have been obvious to one having ordinary skill in the art at the time of the invention to employ a fluid sensor, such as the pH meter of Blank, with Gray’s device to determine, for example, the pH of the mixture for ensuring that a desired fluid quality, diffusivity and degree of mixing is achieved, as disclosed in Blank.
Additional Disclosures Included: Claim 2: The members are fixed within the chamber parallel to each other (Figs. 1-1a); Claim 3: In the device, a fluidic vortex is produced within each sub-chamber (this is a manner of operating the apparatus rather than a structural feature); Claim 4: The apertures all have the same diameter (Gray, col. 5, Table III, Example 1-7-11); Claim 5: The apertures have different diameters (Gray, col. 5, Table III, Example 1-7-7); Claim 6: The apertures are about 6 mm in diameter (Gray, holes are 6.3 mm, Figure 5); Claim 7: The apertures are located within different places of the members (Gray, col. 5, Table III, Example 1-7-7); Claim 8: The apertures are located in a top portion of the members (Gray, top apertures of consecutive plate members, Fig. 8 and col. 5, Table III, Example 1-7-11); Claim 9: The apertures are located in a bottom portion of the members (Gray, bottom apertures of consecutive plate members, Fig. 8 and col. 5, Table III, Example 1-7-11); Claim 10: The apertures are located in a middle portion of the members (Gray, middle apertures of consecutive plate members, Fig. 8 and col. 5, Table III, Example 1-7-11); Claim 11: Adjacent members have apertures within opposite portions of the members (Gray, oppositely disposed apertures of consecutive repeating plate members, Fig. 8 and col. 5, Table III, Example 1-7-11); Claim 12: The quality measured by the sensor is pH, conductivity, or a concentration of the fluid (Blank, pH meter, column 9, lines 28-32); Claim 13: The device further comprising an injection port (Gray, injection port 11/11a, col. 2, lines 4-8 and Fig. 1) capable of injecting a reagent into the flowing fluid; Claim 14: The chamber comprises four members, a first member having an aperture located in a top portion of the first member; a second member having an aperture located in a bottom portion of the second member; a third member having an aperture located in a top portion of the third member; and a fourth member having an aperture located in a bottom portion of the fourth member (Gray, top, bottom, top, and bottom apertures, respectively, of consecutive plate members, col. 5, Table III, Example 1-7-11 and Fig. 8); Claim 15: The device further comprises an inlet configured to sealably mate with an inlet channel (Gray, inlet 11 sealably mates with inlet channel 10a of conduit 10, column 2, lines 4-14 and Fig. 1); Claim 16: The device further comprises an outlet configured to sealably mate with an outlet channel (Gray, outlet 10b mates with an outlet channel portion of conduit 10, Fig. 1); Claim 17: The chamber comprises a length of about 5.5 cm (Gray, any 5.5 cm length section taken from conduit 10, Figure 1) and a diameter of about 5 cm (Gray, diameter of conduit accommodating perforated plate 12 is about 2 inches, col. 2, line 34 and Table I, row 4, col. 9 and Fig. 1); Claim 18: The device further comprises an inlet channel (Gray, inlet channel 10a of conduit 10, Fig. 1) and an outlet channel (Gray, outlet channel portion of conduit 10, Fig. 1); Claim 19: The inlet is configured to sealably mate with the inlet channel (Gray, inlet 11 sealably mates with inlet channel 10a of conduit 10, col. 2, lines 4-14 and Fig. 1); and Claim 20: The outlet is configured to sealably mate with the outlet channel (Gray, outlet 10b mates with an outlet channel portion of conduit 10, Figure 1).
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. US 9,878,293, claims 1-20 of U.S. Patent No. US 10,906,014, and claims 1-13 of U.S. Patent No. 12,036,519. Although the claims at issue are not identical, they are not patentably distinct from each other because the patents and application both recite the same or similar limitations relating to a mixing device comprising a chamber made of inert material, with a plurality of members spaced apart to form sub-chambers, each member comprising an aperture capable of producing a fluidic vortex in a fluid flowing through the chamber, and a sensor (such as pH meter) for measuring or sensing a quality (e.g., pH of fluid) of the fluid in the chamber or flowing through the chamber.
Conclusion
Examiner recommends that Applicant carefully review each identified reference and all objections/rejections before responding to this office action to properly advance the case in light of the pertinent objections/rejections and the prior art. With respect to the patentability analysis, Examiner has attempted to claim map to one or more of the most suitable structures or portions of a reference. However, with respect to all OAs, Examiner notes that citations to specific pages, columns, paragraphs, lines, figures or reference numerals, in any prior art or evidentiary reference, and any interpretation of such references, should not be considered to be limiting in any way. A reference is relevant for all it contains and may be relied upon for all that it would have reasonably disclosed and/or suggested to one having ordinary skill in the art. The use of publications and patents as references is not limited to what one or more applicant/inventor/patentee describes as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain. MPEP §2123.
Examiner further recommends that for any substantive claim amendments made in response to this Office Action, or to otherwise advance prosecution, or for any remarks concerning support for added subject matter or claim priority, that Applicant include either a pinpoint citation to the original Specification (i.e. page and/or paragraph and/or line number and/or figure number) to indicate where Applicant is drawing support for such amendment or remarks, or a clear explanation indicating why the particular limitation is implicit or inherent to the original disclosure.
Electronic Inquiries
Any inquiry concerning this communication or an earlier communications from the examiner should be directed to Hayden Brewster whose telephone number is (571) 270-1065. The examiner can normally be reached M-Th 9 AM - 4 PM.
Alternatively, to contact the examiner, Applicant may send a communication, via e-mail or fax. Examiner’s direct fax number is: (571) 270-2065. Examiner's official e-mail address is: "Hayden.Brewster@uspto.gov." However, since e-mail communication may not be secure, Examiner will not respond to a substantive e-mail unless Applicant’s communication is in accordance with the provisions of MPEP §502.03 & related sections that discuss the required Authorization for Internet Communication (AIC). Nonetheless, all substantive communications will be made of record in Applicant’s file.
To facilitate the Internet communication authorization process, Applicant may file an appropriate letter, or may complete the USPTO SB439 fillable form available at https://www.uspto.gov/sites/default/files/documents/sb0439.pdf, preferably in advance of any substantive e-mail communication. Since one may use an electronic signature with this particular form, Applicant is encouraged to file this form via the Office’s system for electronic filing of patent correspondence (i.e., the electronic filing system (EFS-Web)). Otherwise, a handwritten signature is required. In addition to EFS-web, Applicant can submit their Internet authorization request via US Postal Service, USPTO Customer Service Window, or Central Fax. Examiner can also provide a one-time oral authorization, but this will only apply to video conferencing. It is improper to request Internet Authorization via e-mail.
Examiner interviews are available via telephone, in-person, and via video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, Applicant is encouraged to use the USPTO Automated Interview Request (AIR) form available at http://www.uspto.gov/interviewpractice, or Applicant may call Examiner, if preferable. Applicant can access a general list of patent application forms at either https://www.uspto.gov/patent/forms/forms-patent-applications-filed-or-after-september-16-2012 (applications filed on or after September 16, 2012) or https://www.uspto.gov/patent/forms/forms (applications filed before September 16, 2012). Note that the language in an AIR form is not a substitute for the requirements of an AIC, where appropriate. The mere filing of an Applicant Initiated Interview Request Form (PTOL-413A) or a Letter Requesting Interview with Examiner, in EFS-Web, may not apprise Examiner of such a request in a timely manner.
If attempts to reach the Examiner are unsuccessful, Applicant may reach Examiner’s supervisor, Bobby Ramdhanie at 571-270-3240. The central fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/HAYDEN BREWSTER/Examiner, AU 1779
Prosecution Insights