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 .
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.
Claim 9 is rejected under 35 U.S.C. 112(b) 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.
Regarding Claim 9, the limitation “the splitting center comprises an annular splitting pipe with a drop shape inner profile” in ll. 1 is indefinite, in context, since it cannot be discerned how the drop shape profile is inner or rather compared to what structure is the drop shape profile inner. From figure 1 of the instant disclosure, it appears as the splitting center is a solid drop shaped protrusion, wherein it is unclear as to the delineation between the annular splitting pipe and the drop shape inner profile. For Examination purposes and in accordance with the specification and drawings, “the splitting center comprises an annular splitting pipe with a drop shape inner profile” will be interpreted as – the splitting center comprises an annular splitting pipe with a drop shaped outer profile --.
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 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 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 1-4, 7, 10 and 13-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Rosales et al. (US PG Pub. 2019/0257589A1) hereinafter referred to as Rosales.
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Rosales Figure 26
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Rosales Figure 26
Regarding Claim 1, Rosales discloses a two-phase heat dissipation fin, comprising:
a heat dissipation tooth plate (shown in figure 26), having a near heat source side (shown in figure 26, being the right side) and a far heat source side (shown in annotated figure 26);
a circumferential loop channel (shown in figure 26, designated by arrows) arranged on the heat dissipation tooth plate (shown in figure 26, allowing the fluid to circulate to and from the heat source), wherein the circumferential loop channel is filled with a phase-change working medium (see abstract), and comprises
an evaporation channel (shown in annotated figure 26) arranged on the near heat source side (shown in annotated figure 26); and
a splitting channel (“the evaporation portion walls 2650 are non-orthogonal evaporation portion walls 2650. In some implementations, the one or more evaporation portion walls 2650 includes portions that are straight, angled, slanted, orthogonal, non-orthogonal, offset and/or staggered”, ¶146, shown in annotated figure 26), extending obliquely upwards from a lower portion of the evaporation channel to an upper portion of the evaporation channel (shown in annotated figure 26, being the channels between the evaporation portion walls (2650)); wherein
the splitting channel comprises a splitting center (shown in annotated figure 26) and a plurality of splitting branches in fluid communication with the splitting center (shown in annotated figure 26, wherein a right channel and a left channel are situated on either side of the annotated “Splitting Center” and extend from a space containing the annotated “Splitting Center”), and
the splitting center is a one-way flow valve structure configured to separate a gas-phase working medium and a liquid- phase working medium in the splitting branches (see intended use analysis below, wherein the structural limitations of the claims are taught by Rosales).
Regarding limitations “the splitting center is a one-way flow valve structure configured to separate a gas-phase working medium and a liquid- phase working medium in the splitting branches” recited in Claim 1, which are directed to an intended use, it is noted that neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. Further, it has been held that process limitations do not have patentable weight in an apparatus claim. See Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969) that states “Expressions relating the apparatus to contents thereof and to an intended operation are of no significance in determining patentability of the apparatus claim.” Further, 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, as is the case here. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). See MPEP 2114.
Regarding Claim 2, Rosales further discloses the evaporation channel is a vertical channel gradually widening from bottom to top (shown in annotated figure 26, wherein the “Inner Separation Wall” creates a widening affect within the annotated “Evaporation Channel”).
Regarding Claim 3, Rosales further discloses the circumferential loop channel further comprises a condensation channel arranged on the far heat source side, and a volume of the condensation channel accounts for at least half of a total volume of the circumferential loop channel (shown in annotated figure 26, “Condensation Channel”).
Regarding Claim 4, Rosales further discloses the circumferential loop channel further comprises a liquid return channel (shown in annotated figure 26) and a liquid replenishment channel (shown in annotated figure 26), the liquid return channel is arranged on the far heat source side and is located below the condensation channel (shown in annotated figure 26), and
the liquid replenishment channel is arranged at a bottom portion of the heat dissipation tooth plate (shown in annotated figure 26) and is located between the liquid return channel and the evaporation channel (shown in annotated figure 26); and
the evaporation channel, the condensation channel, the liquid return channel, and the liquid replenishment channel are connected in sequence to form the circumferential loop channel (shown in annotated figure 26).
Regarding Claim 7, Rosales further discloses the splitting branches comprise a first splitting branch (shown in annotated figure 26, being the right channel relative to the annotated “Splitting Center”) and a second splitting branch (shown in annotated figure 26, being the left channel relative to the annotated “Splitting Center”), the first splitting branch is connected to the lower portion of the evaporation channel (shown in annotated figure 26), and the second splitting branch is connected to the upper portion of the evaporation channel (shown in annotated figure 26).
Regarding Claim 10, Rosales further discloses a liquid storage structure (2570), arranged in the upper portion of the evaporation channel (shown in figure 26, wherein the ribs (2570) are capable of storing working fluid on an outer surface).
Regarding Claim 13, Rosales further discloses a top area of the heat dissipation tooth plate on the near heat source side is a solid press-fit (see product by process analysis below) structure (shown in annotated figure 26).
In product-by-process claims, as in Claim 13, “once a product appearing to be substantially identical is found and a 35 U.S.C. 103 rejection [is] made, the burden shifts to the applicant to show an unobvious difference” MPEP 2113.
This rejection under 35 U.S.C. 103 is proper because the "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted). The combination of previous references meets the structural limitations put forth in Claim 13, wherein the final product existing after fabrication is compared to prior art for the purposes of patentability. The limitations regarding “press-fit” are drawn to methods of production and not the structural aspects of the instant invention.
Regarding Claim 14, Rosales further discloses a heat sink (shown in figure 23, including the heat dissipating device, the TIM and integrated device), comprising the two-phase heat dissipation fin of claim 1 (see rejection of Claim 1).
Regarding Claim 15, Rosales further discloses a heat sink (shown in figure 23, including the heat dissipating device, the TIM and integrated device), comprising the two-phase heat dissipation fin of claim 1 (see rejection of Claim 2).
Regarding Claim 16, Rosales further discloses a heat sink (shown in figure 23, including the heat dissipating device, the TIM and integrated device), comprising the two-phase heat dissipation fin of claim 1 (see rejection of Claim 3).
Regarding Claim 17, Rosales further discloses a heat sink (shown in figure 23, including the heat dissipating device, the TIM and integrated device), comprising the two-phase heat dissipation fin of claim 1 (see rejection of Claim 4).
Regarding Claim 18, Rosales further discloses a heat sink (shown in figure 23, including the heat dissipating device, the TIM and integrated device), comprising the two-phase heat dissipation fin of claim 1 (see rejection of Claim 5).
Regarding Claim 20, Rosales further discloses a heat sink (shown in figure 23, including the heat dissipating device, the TIM and integrated device), comprising the two-phase heat dissipation fin of claim 1 (see rejection of Claim 7).
Claims 1, 7 and 20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Tong et al. (Translation of CN212458058U) hereinafter referred to as Tong.
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Tong Figure 3
Regarding Claim 1, Tong discloses a two-phase heat dissipation fin, comprising:
a heat dissipation tooth plate (1), having a near heat source side (shown in figure 1, being the left side) and a far heat source side (shown in figure 1, being the right side);
a circumferential loop channel arranged on the heat dissipation tooth plate (shown in annotated figure 3), wherein the circumferential loop channel is filled with a phase-change working medium (“The heat superconducting technology is that the heat transfer working substance 4 is filled in the sealed micro-channel, and the phase change heat transfer technology of the heat superconducting heat transfer is realized by the evaporation or condensation phase change of the heat transfer working medium”), and comprises
an evaporation channel (shown in annotated figure 3) arranged on the near heat source side (shown in annotated figure 3); and
a splitting channel (shown in annotated figure 3, being the fluid passages linking the front side fluid passage to the rear side fluid passage), extending obliquely upwards from a lower portion of the evaporation channel to a position beyond the evaporation channel (shown in figure 3, being the rear side fluid channel); wherein
the splitting channel comprises a splitting center (shown in annotated figure 3) and a plurality of splitting branches in fluid communication with the splitting center (shown in annotated figure 3, being the channels situated on the top and bottom of the annotated “Splitting Center”), and
the splitting center is a one-way flow valve structure configured to separate a gas-phase working medium and a liquid- phase working medium in the splitting branches (see intended use analysis below, wherein the structural limitations of the claims are taught by Tong).
Regarding limitations “the splitting center is a one-way flow valve structure configured to separate a gas-phase working medium and a liquid- phase working medium in the splitting branches” recited in Claim 1, which are directed to an intended use, it is noted that neither the manner of operating a disclosed device nor material or article worked upon further limit an apparatus claim. Said limitations do not differentiate apparatus claims from prior art. See MPEP § 2114 and 2115. Further, it has been held that process limitations do not have patentable weight in an apparatus claim. See Ex parte Thibault, 164 USPQ 666, 667 (Bd. App. 1969) that states “Expressions relating the apparatus to contents thereof and to an intended operation are of no significance in determining patentability of the apparatus claim.” Further, 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, as is the case here. Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987). See MPEP 2114.
Regarding Claim 7, Tong further discloses the splitting branches comprise a first splitting branch (shown in annotated figure 3, being the bottom channel relative to the annotated “Splitting Center”) and a second splitting branch (shown in annotated figure 3, being the top channel relative to the annotated “Splitting Center”), the first splitting branch is connected to the lower portion of the evaporation channel (shown in figure 3, wherein the bottom channel is fluidly connected to a lower portion of the evaporation channel), and the second splitting branch is connected to the position beyond the evaporation channel (shown in figure 3, wherein the top channel is fluidly connected to the rear side fluid channel).
Regarding Claim 20, Tong further discloses a heat sink (shown in figure 6), comprising the two-phase heat dissipation fin of claim 1 (see rejection of Claim 7).
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 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 of this title, 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 5 is rejected under 35 U.S.C. 103 as being unpatentable over Rosales et al. (US PG Pub. 2019/0257589A1) as applied in Claims 1-4, 7, 10 and 13-20 above and in further view of Lin et al. (US PG Pub. 2021/0215437A1), hereinafter referred to as Lin.
Regarding Claim 5, Rosales fails to disclose a liquid absorbing wick, vertically arranged on a side wall of the evaporation channel.
Lin, also drawn to a heat sink with a circulation loop for a working fluid, teaches a liquid absorbing wick, vertically arranged on a side wall of the evaporation channel (“axial or circumferential wick structures, having triangular, rectangular, trapezoidal, reentrant, etc. cross-sectional geometries, may be formed on inner surfaces of one or more of the condensation channel, the connecting channel, the evaporation channel, and the network of channels. The wick structure may be used to facilitate the flow of condensed fluid by capillary force back to the evaporation surface, keeping the evaporation surface wet for large heat fluxes”, ¶84).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide Rosales with a liquid absorbing wick, vertically arranged on a side wall of the evaporation channel, as taught by Lin, the motivation being that the “wick structure is used to facilitate the flow of condensed fluid by capillary force back to the evaporation surface, keeping the evaporation surface wet for large heat fluxes”, ¶114).
Claims 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over Rosales et al. (US PG Pub. 2019/0257589A1) as applied in Claims 1-4, 7, 10 and 13-20 above and in further view of ABB (Translation of DE202009004630U1), hereinafter referred to as ABB.
Regarding Claim 10, in addition to Rosales, ABB also drawn to a heat sink having a fluid circulation loop, teaches a liquid storage structure (5), arranged in the upper portion of the evaporation channel (2, shown in figure 1).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide Rosales with a liquid storage structure, arranged in the upper portion of the evaporation channel, as taught by ABB, the motivation being that the “Cavities 5 or slots are formed in the wall 3, which open onto the evaporation chamber 2 and form vapor pockets that enhance cooling”, ¶15).
Regarding Claim 11, a modified Rosales further teaches the liquid storage structure (5, as previously taught by ABB in the rejection of Claim 10) is a stepped platform inclined toward a direction of gravity (shown in figure 1, wherein the slits (5) are angled from the right to the left) from the far heat source side to the near heat source side (shown in figure 1).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Rosales et al. (US PG Pub. 2019/0257589A1) as applied in Claims 1-4, 7, 10 and 13-20 above and in further view of Hoffman et al. (US PG Pub. 2009/0040726A1), hereinafter referred to as Hoffman.
Regarding Claim 12, Rosales fails to disclose a liquid absorbing wick, arranged on the liquid storage structure.
Hoffman, also drawn to a vapor chamber for evaporating and condensing a working fluids, teaches a liquid absorbing wick, arranged on the liquid storage structure (“these ribs 17 may be of any geometric format and have attributes of any of the other structural strengthening bodies previously described (e.g. having a wick structure external or internal to the ribs 17, the ribs 17 being themselves made of a porous material, or having a secondary material incorporated in the rib 17 such as by cladding to impart additional strength)”, ¶102).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide Rosales with a liquid absorbing wick arranged on the liquid storage structure, as taught by Hoffman, the motivation being that wicks are well known to increase the capillary pumping capability within a heat pipe while also preventing dry out or hot spots.
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Rosales et al. (US PG Pub. 2019/0257589A1) as applied in Claims 1-4, 7, 10 and 13-20 above in view of ABB (Translation of DE202009004630U1) as applied in Claims 10-11 above and in further view of Hoffman et al. (US PG Pub. 2009/0040726A1), hereinafter referred to as Hoffman.
Regarding Claim 12, Rosales fails to disclose a liquid absorbing wick, arranged on the liquid storage structure.
Hoffman, also drawn to a vapor chamber for evaporating and condensing a working fluids, teaches a liquid absorbing wick, arranged on the liquid storage structure (“these ribs 17 may be of any geometric format and have attributes of any of the other structural strengthening bodies previously described (e.g. having a wick structure external or internal to the ribs 17, the ribs 17 being themselves made of a porous material, or having a secondary material incorporated in the rib 17 such as by cladding to impart additional strength)”, ¶102).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide Rosales with a liquid absorbing wick arranged on the liquid storage structure, as taught by Hoffman, the motivation being that wicks are well known to increase the capillary pumping capability within a heat pipe while also preventing dry out or hot spots.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Tong et al. (Translation of CN212458058U) as applied in Claims 1, 7 and 20 above and in further view of Sun et al. (Translation of CN112930091A), hereinafter referred to as Sun.
Regarding Claim 9, Tong fails to disclose the splitting center comprises an annular splitting pipe with a drop shape inner profile.
Sun, also drawn to a heat pipe, teaches a splitting center (101) comprises an annular splitting pipe with a drop shape inner profile (shown in figure 7, Sun further states, “to reduce the gas-liquid fluid flowing around the welding area 101 of the turbulent flow resistance, improving the range of the cooling liquid diffusion and the efficiency of the circulation… the outer contour line of the welding area 101 is a curve, the welding area 101 can be set as the shape of the curve of the outer contour line is smooth, for example: round, oval, water drop shape…ensuring the circulation flow passage 100 in the gas liquid fluid circulation flow uniformity” ).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to provide the splitting center of Tong being an annular splitting pipe with a drop shape inner profile, as taught by Sun, the motivation being that a drop shape is known to reduce flow resistance and ensuring uniform circulation.
Response to Arguments
Applicant's arguments filed 06/09/2026 have been fully considered but they are not persuasive.
On Page 10 of the Arguments the Applicant states, “First, there are structural differences between the present invention and D1 (Rosales). In D1, the channels formed by the evaporation portion walls 2650 are the main vapor flow paths within the ‘evaporation portion 450,’ and their purpose is to channel vapor from the evaporator 410 toward the condenser 2620 (as expressly stated in D1 [0146]: ‘provide lower fluid pressure drops through the evaporation portion 450, which improves fluid flow’). These channels constitute the main flow paths making up the evaporation portion 450, rather than a ‘splitting’ structure that branches off from a main evaporation channel.” The Examiner respectfully disagrees. The splitting branches as put forth in independent Claim 1 are not defined as branching off from a main evaporator channel, the splitting branches are only defined as being in fluid communication with the splitting center. In Rosales the annotated evaporation portion wall splits a flow of working fluid into two separate flows that travel into separate channels formed by other evaporation portion walls, thereby the annotated evaporation portion wall is in fluid communication with multiple splitting branches.
On Page 10 of the Arguments the Applicant states, “Second, the two differ in location. The ‘splitting channel’ of the present application is expressly defined as ‘extending obliquely upward from a lower part of the evaporation channel,’ that is, its starting point is located at the lower part of the main evaporation channel. By contrast, in D1 the channels between the evaporation portion walls 2650 start above the evaporator 410 (see the direction of extension from upper right to upper left in D1 Fig. 26), and do not begin at the "lower part of the evaporation channel’.” The Examiner respectfully disagrees. “The splitting channel, extending obliquely upwards from a lower portion of the evaporation channel”, as claimed in independent Claim 1, only requires the channel emanating from a portion of the evaporation channel that is lower than another part of the evaporation channel.
On Page 10 of the Arguments the Applicant states, “The splitting channel of the present application exists in parallel with the main evaporation channel, for the purpose of providing an additional gas-phase discharge path and liquid-phase return path outside of the main evaporation channel (see the specification: ‘to increase the discharge path of the gas-phase working medium 180 and reduce the discharge resistance of the gas-phase working medium 180’). In D1, the channels between the evaporation portion walls 2650 constitute a single main vapor channel, and there is no main evaporation channel arranged in parallel therewith.” The Examiner respectfully disagrees. No main evaporation channel is claimed in independent Claim 1, only an evaporation channel, further a main evaporation channel being arranged in parallel with a splitting channel is not claimed. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., a main evaporation channel being arranged in parallel with a splitting channel) are not recited in the rejected claim(s). 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).
On Page 11 of the Arguments the Applicant states, “The Examiner has artificially annotated a certain location in D1 Fig. 26 as a so-called ‘splitting center.’ However, upon careful review of the actual structure of D1 Fig. 26, it is apparent that the structures formed between the evaporation portion walls 2650 are a plurality of angled channels arranged in parallel, extending from near the evaporator 410 to near the condenser 2620, none of which has the function of a splitting center. Amended Claim 1 expressly defines that ‘the splitting center is a one-way flow valve structure.’ This is a specific fluid-control mechanical/fluidic structure (such as a check valve, a one-way reed valve, or a directional flow-blocking plate), the essence of which is to permit fluid to flow in only a single direction while actively preventing reverse flow. The open, static flow- guiding grooves of D1 structurally possess no physical entity of a ‘valve’ whatsoever. Under MPEP § 2131, D1 is missing this critical mechanical/fluidic structural feature.” The Examiner respectfully disagrees. The claimed splitting center of Claim 1 represents an obstruction to the flow of working fluid in the form on a rib or pin fin. A valve related function is derived from the internal pressure of the working fluid, heat being transferred to the working fluid or other parameters that influence the viscosity, phase, etc. of the working fluid. The structure of Rosales meets the claimed limitations as the annotated splitting valve represents a fin or rib that interacts with the flow of working medium within the heat sink. A check valve is structurally divergent from the claimed splitting center as a check valve may contain additional components (plunger, seal, etc..) to regulate fluid flow. A reed valve is structurally divergent from the claimed splitting center as a reed valve contains self-actuating thin strips that open under a predetermined pressure value to regulate fluid flow. A directional flow-blocking plate is structurally divergent from the claimed splitting center as a directional flow-blocking plate is not a pin fin or rib. The splitting center of the instant invention is also an obstruction found within a fluid flow channel and does not contain a plunger, reed or plates.
On Page 12 of the Arguments the Applicant states, “In addition, with respect to the Examiner's position that the inclined pipes (11) connecting the heat-receiving side and the condensing side in D2 (Tong) Fig. 3, together with the intersection nodes of the pipes, disclose the ‘splitting center’ and the ‘splitting branches’: D2 discloses a thermal superconducting heat dissipation plate whose internal pipes (11) form an interconnected network created by machining or welding. What the Examiner refers to as the ‘splitting center’ is merely an ordinary pipe intersection/junction point. The interior of these nodes is entirely hollow and without any restriction. Equating an ‘ordinary pipe intersection’ with a ‘one-way flow valve structure’ constitutes a classic overly broad interpretation that lacks any factual or structural basis.” The Examiner respectfully disagrees. The annotated splitting center of Tong refers to the portion of the heat sink that splits the working medium into separate branched flows, similar to the instant invention. As shown in figure 3, the working fluid travels through the heat sink along a portion of the evaporation channel and is split into separate branched flows that combine prior to the right-side portion of the annotated loop channel. Applicants have not shown how Tong fails to disclose the claimed structural components of the instant invention, wherein Tong discloses a splitting component that creates separate branched flows of working fluid. Regarding product and apparatus claims, when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. The Courts have held that it is well settled that where there is a reason to believe that a functional characteristic would be inherent in the prior art, the burden of proof then shifts to the applicant to provide objective evidence to the contrary. See In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1478, 44 USPQ2d at 1432 (Fed. Cir. 1997) (see MPEP § 2112.01, I.). 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) [MPEP 2114]. Since the structure of the prior art teaches all structural limitations of the claim, the same is considered capable of meeting the intended use limitations.
On Page 12 of the Arguments the Applicant states, “As set forth above, because D1 (static, open-type flow-guiding walls) and D2 (ordinary hollow pipe intersections) entirely lack any physical component for one-way flow blocking, they absolutely do not possess, in terms of fluid dynamics, the structural capability to actively and directionally separate the two phases while preventing backflow. Accordingly, Applicant respectfully submits that the Examiner cannot apply MPEP § 2114 to deprive this functional clause of the present application of patentable weight.” The Examiner respectfully disagrees. The splitting center of the instant invention is drawn to a rib or fin that interacts with a contained working medium, as taught by Rosales and Tong. No specific physical component for one-way flow blocking is proffered within the Claims nor is a structure claimed as being responsible for in terms of fluid dynamics, the structural capability to actively and directionally separate the two phases while preventing backflow. The claims only require a splitting center or rather a component that splits the working fluid. Regarding product and apparatus claims, when the structure recited in the reference is substantially identical to that of the claims, claimed properties or functions are presumed to be inherent. The Courts have held that it is well settled that where there is a reason to believe that a functional characteristic would be inherent in the prior art, the burden of proof then shifts to the applicant to provide objective evidence to the contrary. See In re Schreiber, 128 F.3d at 1478, 44 USPQ2d at 1478, 44 USPQ2d at 1432 (Fed. Cir. 1997) (see MPEP § 2112.01, I.). 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) [MPEP 2114]. Since the structure of the prior art teaches all structural limitations of the claim, the same is considered capable of meeting the intended use limitations.
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 PAUL ALVARE whose telephone number is (571)272-8611. The examiner can normally be reached Monday-Friday 0930-1800.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Len Tran can be reached at (571) 272-1184. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PAUL ALVARE/Primary Examiner, Art Unit 3763
Prosecution Insights