DETAILED ACTION
Election/Restrictions
The election requirement is withdrawn in view of the claim amendments.
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.
Claim 1 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12050151 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because patented claim 1 anticipates claim 1.
Claim 2 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12050151 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because patented claim 1 anticipates claim 2.
Claim 3 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12050151 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because patented claim 1 anticipates claim 3.
Claim 4 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12050151 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because patented claim 1 anticipates claim 4.
Claim 5 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12050151 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because patented claim 1 anticipates claim 5.
Claim 6 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12050151 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because patented claim 1 anticipates claim 6.
Claim 7 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12050151 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because patented claim 1 anticipates claim 7.
Claim 8 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12050151 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because patented claim 1 anticipates claim 8.
Claim 9 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12050151 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because patented claim 1 anticipates claim 9.
Claim 10 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12050151 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because patented claim 1 anticipates claim 10.
Claim 11 is rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 12050151 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because patented claim 5 anticipates claim 11.
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 14-22 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.
Regarding claim 14, it is not clear which claim it depends on. For purposes of examination, it has been examined to depend on claim 1.
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, 6 is/are rejected under 35 U.S.C. 102a1 as being anticipated by Chorpening (US 7927095 B1).
Regarding claim 1, Chorpening discloses a burner, comprising:
a fuel source (col. 5, line 56- col. 6, line 4);
an oxidant source (col. 5, line 56 – col. 6, line 4);
a wall (Fig. 4: wall defining inlets into the combustion chamber 22) defining a mixing volume, the mixing volume configured to receive fuel and oxidant respectively from the fuel source and the oxidant source, the mixing volume further configured to convey the fuel and oxidant to facilitate mixture of the fuel and oxidant into a fuel- oxidant mixture;
an ignition source oriented to ignite the fuel-oxidant mixture to produce a flame in a flame region (col. 6, lines 4-6);
at least a first electrode (Fig. 4; G) and a second electrode (Fig. 4; E) arranged adjacent to the flame region, the first electrode configured to broadcast an excitation signal to produce a time-varying electromagnetic field across the flame region, the second electrode being configured to receive a detection signal, the detection signal including the broadcast excitation signal as affected by a change in electrical permittivity or electrical capacitance in the flame region (abstract); and
a control circuit configured to generate the excitation signal and provide the excitation signal to the first electrode, to receive the detection signal from the second electrode, and to identify a flame characteristic based on a comparison of the received detection signal with a reference value (Figs. 5-7).
Regarding claim 3, Chorpening discloses the burner according to claim 1, wherein the change in electrical permittivity or electrical capacitance in the flame region is determined from the time-varying electromagnetic field (this feature is inherent).
Regarding claim 6, Chorpening discloses the burner according to claim 1, wherein the first electrode and the second electrode are disposed opposite each other across the flame region (Fig. 4).
Claim Rejections - 35 USC § 103
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.
Claim(s) 2, 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chorpening (US 7927095 B1).
Regarding claim 2, Chorpening discloses the burner according to claim 1, except wherein the ignition source is disposed at a distal portion of the mixing volume. However, Official Notice is taken that this feature is well-known and common knowledge.
It would have been obvious to a person skilled in the art at the time of effective filing of the application to modify Chorpening wherein the ignition source is disposed at a distal portion of the mixing volume, e.g., upstream the flame, so that the mixture can be easily ignited due to the high concentration of fuel and oxidant.
Regarding claim 7, Chorpening discloses wherein the control circuit is further configured to receive the detection signal from the second electrode and to determine a magnitude of the electrical permittivity (capacitance is determined; see comment below) of the flame region by measuring or calculating a signal characteristic from the detection signal.
Comment. Although capacitance is determined and not electrical permittivity, the choice between the two is a matter of obvious design choice. The relationship between capacitance and permittivity is given by the equation ε = C(d/A), where ε is electrical permittivity, C is capacitance, d is distance between two plates/electrodes, and A is the area of the electrode. d and A are constants. Therefore, ε and C only differ by a factor of d/A and choosing one over the other would not affect the real-time measurement of the flame.
Claim(s) 4, 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chorpening (US 7927095 B1) in view of Leonard (US 4882573 A).
Regarding claim 4, Chorpening discloses the burner according to claim 1, except wherein the identified flame characteristic is a presence or absence of the flame as determined by a comparison of the magnitude of the electrical permittivity with a threshold electrical permittivity.
However, Leonard teaches wherein the identified flame characteristic is a presence or absence of the flame as determined by a comparison of the magnitude of the electrical signal with a threshold electrical signal (col. 2, lines 5-21).
Furthermore, although Chorpening discloses measuring a capacitance and not electrical permittivity, the choice between the two is a matter of obvious design choice. The relationship between capacitance and permittivity is given by the equation ε = C(d/A), where ε is electrical permittivity, C is capacitance, d is distance between two plates/electrodes, and A is the area of the electrode. d and A are constants. Therefore, ε and C only differ by a factor of d/A and choosing one over the other would not affect the real-time measurement of the flame.
It would have been obvious to a person skilled in the art at the time of effective filing of the application to modify Chorpening wherein the identified flame characteristic is a presence or absence of the flame as determined by a comparison of the magnitude of the electrical permittivity with a threshold electrical permittivity. The motivation to combine to alert the controller and user of a flame out condition.
Regarding claim 11, Chorpening fails to disclose wherein the control circuit is further configured to compare the detection signal to a threshold detection signal, and to produce a binary result signal indicating presence or absence of the flame.
However, Leonard teaches wherein the control circuit is further configured to compare the detection signal to a threshold detection signal, and to produce a binary result signal indicating presence or absence of the flame (col. 2, lines 5-21).
It would have been obvious to a person skilled in the art at the time of effective filing of the application to modify Chorpening wherein the control circuit is further configured to compare the detection signal to a threshold detection signal, and to produce a binary result signal indicating presence or absence of the flame. The motivation to combine to alert the controller and user of a flame out condition.
Claim(s) 5, 9, 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chorpening (US 7927095 B1) in view of Kitabayashi (US 20190107287 A1).
Regarding claim 5, Chorpening discloses the burner according to claim 1, except wherein the control circuit drives the ignition source when the flame is indicated to be absent.
However, Kitabayashi teaches wherein the control circuit drives the ignition source when the flame is indicated to be absent (para. 64). It would have been obvious to a person skilled in the art at the time of effective filing of the application to modify Chorpening wherein the control circuit drives the ignition source when the flame is indicated to be absent. The motivation to combine is to prevent premature flameout.
Regarding claim 9, Chorpening discloses the burner according to claim 1, except wherein the control circuit is further configured to drive the ignition source responsive to the identified flame characteristic.
However, Kitabayashi teaches wherein the control circuit drives the ignition source responsive to the identified flame characteristic, i.e., when the flame is indicated to be absent (para. 64). It would have been obvious to a person skilled in the art at the time of effective filing of the application to modify Chorpening wherein the control circuit is further configured to drive the ignition source responsive to the identified flame characteristic. The motivation to combine is to prevent premature flameout.
Regarding claim 10, modified Chorpening discloses the burner according to claim 9, wherein the identified flame characteristic is a presence or absence of the flame as determined by comparison of the magnitude of the electrical capacitance (and not the claimed permittivity) with a threshold electrical capacitance, and the control circuit drives the ignition source when the flame is indicated to be absent.
Although Chorpening discloses measuring a capacitance and not electrical permittivity, the choice between the two is a matter of obvious design choice. The relationship between capacitance and permittivity is given by the equation ε = C(d/A), where ε is electrical permittivity, C is capacitance, d is distance between two plates/electrodes, and A is the area of the electrode. d and A are constants. Therefore, ε and C only differ by a factor of d/A and choosing one over the other would not affect the real-time measurement of the flame.
Claim(s) 14, 15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chorpening (US 7927095 B1) in view of Olde (EP 1741979 A1).
Regarding claim 14, Chorpening discloses the controller respectively coupled to the first and the second sensor electrodes via first and second electrical leads (Fig. 4), wherein the first and the second sensor electrodes and the sensor controller are configured to cooperate to measure the presence or absence of a flame supported by a mixture of the fuel stream and the oxidant, EXCEPT the sensor controller including: a first electrical filter configured to protect circuitry in the sensor controller from electrostatic discharge.
However, Olde teaches a flame monitoring system comprising a sensor controller including: a first electrical filter (Fig. 2; 26) configured to protect circuitry in the sensor controller from electrostatic discharge (the bandpass filter 26 inhibits high frequency signals from an electrostatic discharge).
It would have been obvious to a person skilled in the art at the time of effective filing of the application to modify Chorpening wherein the sensor controller including: a first electrical filter configured to protect circuitry in the sensor controller from electrostatic discharge. The motivation to include a bandpass filter is so that a clean signal is delivered across the flame and to the second electrode. The result is reduced errors in interpreting the position of the flame or whether it is present or absent.
Regarding claim 15, modified Chorpening discloses the burner system of claim 14, wherein the wherein the sensor controller further comprises: a waveform generator configured to output a time-varying signal (see Fig. 6 of Chorpening showing a function generator or see Fig. 2 of Olde showing a signal generator 22), the first electrical filter (Olde; 26) being operably coupled to the waveform generator, and to the first sensor electrode (Chorpening “G” or Olde 8) via the first electrical lead, the first sensor electrode being configured to broadcast the time-varying signal to the second sensor electrode (Chorpening “E” or Olde 3) through a gap spanning the flame region, as a broadcast signal, and the second sensor electrode being configured to receive the broadcast signal.
Claim(s) 16, 17, 20, 22 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chorpening (US 7927095 B1) in view of Olde (EP 1741979 A1), as applied to claim 14, and further in view of Leonard (US 4882573 A).
Regarding claim 16, modified Chorpening discloses the burner system of claim 15, EXCEPT wherein the sensor controller further comprises: a second electrical filter operably coupled to the second sensor electrode via the second electrical lead and configured to protect circuitry from electrostatic discharge; a receiver circuit operatively coupled to the second electrical filter and configured to receive and digitize the broadcast signal received by the second sensor electrode; and the controller operatively coupled to the receiver circuit, the controller being configured to analyze digital data produced by the receiver circuit, determine whether a flame is present in or absent from the flame region, and report at least a change of state of a flame in the flame region via a digital interface.
However, Olde teaches wherein the sensor controller further comprises:
a second electrical filter (28) operably coupled to the second sensor electrode (3) via the second electrical lead and configured to protect circuitry from electrostatic discharge;
a receiver circuit (27, 29-32) operatively coupled to the second electrical filter and configured to receive and digitize the broadcast signal received by the second sensor electrode (para. 48); and
the controller operatively coupled to the receiver circuit, the controller being configured to analyze digital data produced by the receiver circuit, determine whether a flame is present in or absent from the flame region (abstract),
It would have been obvious to a person skilled in the art at the time of effective filing of the application to modify Chorpening wherein the sensor controller further comprises: a second electrical filter operably coupled to the second sensor electrode via the second electrical lead and configured to protect circuitry from electrostatic discharge; a receiver circuit operatively coupled to the second electrical filter and configured to receive and digitize the broadcast signal received by the second sensor electrode; and the controller operatively coupled to the receiver circuit, the controller being configured to analyze digital data produced by the receiver circuit, determine whether a flame is present in or absent from the flame region. The motivation to combine is to incorporate the flame monitoring system of Olde into the system of Chorpening.
Leonard teaches flame sensing reporting at least a change of state of a flame in the flame region via a digital interface (72). It would have been obvious to a person skilled in the art at the time of effective filing of the application to modify Chorpening reporting at least a change of state of a flame in the flame region via a digital interface. The motivation to combine is to inform the user of the state of the flame.
Regarding claim 17, modified Chorpening discloses the burner system of claim 16, except wherein the sensor controller further comprises: a first amplifier operatively coupled to the waveform generator and the first electrical filter, configured to amplify the time-varying signal from the waveform generator; and a second amplifier operatively coupled to the second electrical filter and the receiver circuit, configured to amplify the received broadcast signal.
However, Olde teaches wherein the sensor controller further comprises: a first amplifier (24) operatively coupled to the waveform generator (22) and the first electrical filter (26), configured to amplify the time-varying signal from the waveform generator; and
a second amplifier (29) operatively coupled to the second electrical filter (28) and the receiver circuit (27, 30-32), configured to amplify the received broadcast signal.
It would have been obvious to a person skilled in the art at the time of effective filing of the application to modify Chorpening wherein the sensor controller further comprises: a first amplifier operatively coupled to the waveform generator and the first electrical filter, configured to amplify the time-varying signal from the waveform generator; and a second amplifier operatively coupled to the second electrical filter and the receiver circuit, configured to amplify the received broadcast signal. The motivation to combine is to incorporate the flame monitoring system of Olde into the system of Chorpening.
Regarding claim 20, modified Chorpening discloses the burner system of claim 16, wherein the first and the second sensor electrodes are capacitively coupled through the flame region (Chorpening; abstract) and wherein the controller is programmed to recognize the presence or absence of a flame in the flame region by a comparison (Olde; 34) of the received broadcast signal with a threshold.
Regarding claim 22, modified Chorpening discloses the burner system of claim 16, wherein the controller is configured to compare (Olde; 34) an average level (DC component) of the received broadcast signal with a threshold, and to output flame state data corresponding to the presence or absence of a flame in the flame region on the basis of the comparison (Olde; para. 45) .
Allowable Subject Matter
Claim 8 is 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
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/JASON LAU/Primary Examiner, Art Unit 3762
