DETAILED ACTION
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.
Claims 3, 4 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Schroeder 2005/0017093.
In regards to Independent Claim 3, Schroeder teaches a dual liquid spray nozzle assembly (1 as best shown in figure 5) comprising a nozzle body (body of 1) that comprises at least two nozzles (5 and 6) oriented in a substantially horizontal plane that is substantially perpendicular to gravity during spraying use (orientation as shown in figure 5 results in axes of 5 and 6 being in the horizontal plane), including a first nozzle (5) for dispersing a first liquid (5 is capable of passing a liquid through the nozzle) and a second nozzle (6) for dispersing a second liquid (6 is capable of dispersing a liquid through the nozzle, where it is not claimed that the liquids are different or where the liquids divide between the nozzles), each first nozzle and second nozzle having a nozzle centerline axis (7 and 8 respectively) for dispersing a spray pattern of a liquid along the nozzle centerline axis (spray exiting outlets 5a and 6a), wherein the nozzle centerline axis of the first nozzle diverges in the horizontal plane at a diverging angle from, and is not parallel to, the nozzle centerline axis of the second nozzle (angle alpha between 7 and 8 as shown in figure 2).
Regarding Dependent Claim 4, Schroeder teaches the diverging angle is from about 3 degrees to about 20 degrees (alpha is 20 degrees, paragraph [0013]).
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.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Schroeder as applied to claim 3 above.
Regarding Dependent Claim 9, Schroeder teaches the invention as claimed and discussed above. However, Schroeder does not teach that the distance between the nozzle outlets is about 2 to about 10 cm. It has been held in In re Rinehart, 531 F.2d 1048, 189 USPQ 143 (CCPA 1976) ("mere scaling up of a prior art process capable of being scaled up, if such were the case, would not establish patentability in a claim to an old process so scaled." 531 F.2d at 1053, 189 USPQ at 148.), and in Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984), the Federal Circuit held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. In the instant case, it would have been obvious to one of ordinary skill in the art prior to the filing date of the invention to scale up the size of the nozzle assembly of Schroeder resulting in a distance between the nozzle outlets of between about 2 to about 10 cm, because changing the scale of the nozzle assembly of Schroeder does not change the function of the nozzle assembly.
Allowable Subject Matter
Claims 1, 2, 8 and 10-12 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: prior art fails to teach, in combination with the other limitations of dependent claim 8, that each nozzle comprises a venturi tube between a liquid supply port and inner air swirl channel, and an outer air swirl channel.
Response to Arguments
Applicant’s arguments with respect to the claims have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEVEN M SUTHERLAND whose telephone number is (571)270-1902. The examiner can normally be reached M-F 8-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Arthur Hall can be reached at (571) 270 - 1814. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/STEVEN M SUTHERLAND/Primary Examiner, Art Unit 3752
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