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 .
Information Disclosure Statement
The information disclosure statement submitted on 8/16/2024 has been considered by the examiner.
Claim Objections
Claims 1 and 9 are objected to because of the following informalities:
Claim 1 has a typographical error in line 4. The examiner respectfully suggests replacing “the total static pressure tube” with -- the total
Claim 9 recites the limitation "the plurality of static pressure ports" in line 1. There is insufficient antecedent basis for this limitation in the claim.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 4, 7 and 8 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention.
Claim 4 recites that one of the at least two transducers is a thermal flow-thru transducer. The specification discloses that the at least two transducers are differential pressure transducers and that the differential pressures measured by the transducers can be used to determine a fluid flow velocity. The claim further requires at least one of the transducers to be a “thermal flow-thru transducer”. However, neither the claim nor the specification defines or describes or provides an example of what a “thermal flow-thru transducer” is. The prior art, which demonstrates the skill of one having ordinary skill in the art, offers numerous examples in which a differential pressure sensor uses a diaphragm to measure a differential pressure (for example, see U.S. Patent 8,024,982 issued to Pettit et al. (“Pettit”); col. 3, lines 15-34). Furthermore, the prior art describes thermal flow sensors as being distinct from differential pressure sensors (for example, see U.S. Patent 9,561,002 issued to Lau (“Lau”); col. 13, line 58 - col. 14, line 6). Since neither the prior art nor the instant application disclose a “thermal flow-thru” transducer that measures a differential pressure, the examiner has concluded that the specification, at the time the application was filed, would not have taught one skilled in the art how to make and/or use the full scope of the claimed invention without undue experimentation.
Claims 7 and 8 depend on claim 4 and are rejected for inheriting the same problem.
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 2-4, 7, 8 and 11 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 2 recites “a transmitter” in line 1. It is unclear whether or not this transmitter is the same transmitter recited in parent claim 1. The examiner has interpreted the claim to mean that it is the same transmitter in claim 1.
Claims 3, 4, 7 and 8 depend on claim 2 and are rejected for inheriting the same problem.
Claim 11 recites “the at least two transducers have a differential pressure sensing range from each other” in lines 1-2. It is unclear what “a differential pressure sensing range from each other” means. The examiner has interpreted the claim to mean that the at least two transducers have ranges that at least partially differ from each other.
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.
Claims 1 and 2 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 6 (including parent claim 1) of U.S. Patent No. 10,908,004 in view of U.S. Patent 4,559,835 issued to DeBaun (“DeBaun”).
As for claim 1, U.S. Patent 10,908,004 claims a device for sensing an airflow in a duct, the device comprising:
a housing mounted to a mounting plate, the mounting plate being mounted to the duct (claim 1);
a total pressure tube (claim 1); and
a static pressure tube (claim 1); and
at least two transducers within the housing, adapted to generate signals based on relatively lower and higher pressure differentials, respectively (claim 6), wherein the signals are adapted to be in communication with a transmitter and/or a controller for communicating pressure readings (claim 1).
U.S. Patent 10,908,004 does not claim a total pressure tube, a transverse probe inside of a duct and a static pressure tube as recited.
However, DeBaun discloses a total pressure tube (21) extending through a mounting plate and fluidically connected to a transverse probe (3) inside of a duct, wherein the total static pressure tube and the transverse probe define a flow path to sense a total pressure of the airflow incident on the transverse probe (see Fig. 1); and
a static pressure tube (20) extending through the mounting plate and fluidically connected to the transverse probe (3), wherein the static pressure tube and the transverse probe define a flow path to sense a static pressure of the airflow incident on the transverse probe (see Fig. 1).
It would have been obvious for one having ordinary skill in the art before the effective filing date of the present application to modify the device of U.S. Patent 10,908,004 to include the a total pressure tube, a transverse probe inside of a duct and a static pressure tube as disclosed by DeBaun in order to provide a simple transverse probe that can be easily installed in or removed from existing ductwork while accurately sensing static a total pressures necessary for determination of flow velocity (DeBaun: col. 2, lines 5-16).
U.S. Patent 10,908,004 as modified by DeBaun discloses that each of the at least two transducers is fluidically connected to the total pressure tube and the static pressure tube (DeBaun: see Fig. 1).
As for claim 2, U.S. Patent 10,908,004 as modified by DeBaun claims that the device is in communication with a transmitter and/or the controller for communicating pressure readings (claim 1).
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.
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 1-3, 5, 6, and 9-15 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent 4,559,835 issued to DeBaun (“DeBaun”) in view of and U.S. Patent 3,713,337 issued to Stroman (“Stroman”).
As for claim 1, DeBaun discloses a device (Fig. 1) for sensing an airflow in a duct, the device comprising:
a housing (22) mounted to a mounting plate (on side of 2 in Fig. 1), the mounting plate being mounted to the duct;
a total pressure tube (Fig. 1) extending through the mounting plate and fluidically connected to a transverse probe (3) inside of the duct, wherein the total static pressure tube and the transverse probe define a flow path to sense a total pressure (via 5) of the airflow incident on the transverse probe; and
a static pressure tube (Fig. 1) extending through the mounting plate and fluidically connected to the transverse probe (3), wherein the static pressure tube and the transverse probe define a flow path to sense a static pressure (via 7) of the airflow incident on the transverse probe; and
a transducer (col. 3, lines 44-53) within the housing (22), adapted to generate signals based on a pressure differential, wherein the transducer is fluidically connected to the total pressure tube and the static pressure tube (see Fig. 1), wherein the signals are adapted to be in communication with a transmitter and/or a controller for communicating pressure readings (col. 3, lines 44-53).
DeBaun does not disclose at least two transducers adapted to generate signals based on relatively lower and higher pressure differentials, respectively.
However, Stroman discloses at least two transducers adapted to generate signals based on relatively lower and higher pressure differentials, respectively (col. 1, lines 25-40).
It would have been obvious for one having ordinary skill in the art before the effective filing date of the present application to modify the device of DeBaun to include at least two transducers as disclosed by Stroman in order to extend the range of differential pressure measurement and flow measurement (Stroman: col. 1, lines 6-20).
As for claim 2, DeBaun as modified by Stroman discloses that the device is in communication with a transmitter and/or the controller for communicating pressure readings (DeBaun: col. 3, lines 44-53).
As for claim 3, DeBaun as modified by Stroman discloses that the at least two transducers provide a turndown of 100 to 1 (Stroman: col. 1, lines 25-40).
As for claim 5, DeBaun as modified by Stroman discloses that the device is in electrical and/or wireless communication with the transmitter and/or controller (DeBaun: col. 3,lines 44-53).
As for claim 6, DeBaun as modified by Stroman discloses that the transverse probe (DeBaun: 3) comprises a total pressure conduit (DeBaun: 4) and a plurality of total pressure ports (DeBaun: 5) manifolded with the total pressure conduit.
As for claim 9, DeBaun as modified by Stroman discloses that the plurality of static pressure ports (DeBaun: 7) are offset from the direction of flow of the airflow (DeBaun: see Fig. 3).
As for claim 10, DeBaun as modified by Stroman discloses that the transverse probe (DeBaun: 3) comprises an interior wall (DeBaun: 8) separating the total pressure conduit from the static pressure conduit.
As for claim 11, DeBaun as modified by Stroman discloses that the at least two transducers have a differential pressure sensing range from each other (Stroman: col. 1, lines 25-40).
As for claim 12, DeBaun as modified by Stroman discloses the device of claim 10 (see the rejection of claim 10 above).
DeBaun as modified by Stroman does not disclose that a first of the at least two transducers has a differential pressure sensing range from two Pascals to 25 Pascals and a second of the at least two transducers has a differential pressure sensing range from 25 Pascals to 2500 Pascals.
Instead, Stroman explicitly discloses a different range, but Stroman suggests that this range is merely an example and that other ranges may be used (Stroman: col. 1, lines 28-30). Furthermore, it has been held that "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." See MPEP 2144.05 and In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Furthermore, it has been held that "It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions.". See MPEP 2144305 and In re Williams, 36 F.2d 436, 438, 4 USPQ 237 (CCPA 1929).
Therefore, it would have been obvious for one having ordinary skill in the art before the effective filing date of the present application to optimize the differential pressure ranges of DeBaun and Stroman to be the claimed ranges in order to achieve the predictable result of measuring a desired differential pressure with the desired accuracy.
As for claim 13, DeBaun as modified by Stroman discloses that the transverse probe extends substantially across an entirety of the duct in a direction transverse to the airflow (DeBaun: see Fig. 1).
As for claim 14, DeBaun as modified by Stroman discloses that the transverse probe comprises a cylindrical tube (DeBaun: see Fig. 2).
As for claim 15, DeBaun as modified by Stroman discloses that the plurality of static pressure ports includes a first (Stroman: 7) and second (Stroman: 7’) sets of static pressure ports, each being angularly offset from the total pressure ports (Stroman: see Figs. 2 and 3).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
U.S. Patent 5,817,950 issued to Wiklund et al. (“Wiklund”) is cited for all that it discloses including a device for sensing an airflow comprising a total pressure tube and a static pressure tube.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JUSTIN N OLAMIT whose telephone number is (571)270-1969. The examiner can normally be reached M-F, 8 am - 5 pm (Pacific).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Stephen Meier can be reached at (571) 272-2149. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JUSTIN N OLAMIT/ Primary Examiner, Art Unit 2853
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