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 Objections
Claims 2-4 and 6-8 are objected to because the claims should include a comma in the preamble after the claim number of the claim it depends from (i.e. “the flow regulation device of claim 1,”). Appropriate correction is required.
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 1-8 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 independent claim 1, the claim recites in the preamble “A flow regulation device for sampling at least semi-volatile material onto adsorbent material contained in a tube” and then later recites “said inlet being for establishing a connection with an adsorbent material-containing tube”, however it is unclear if the “adsorbent material contained in a tube” introduced in the preamble is the same respective tube containing adsorbent material recited later in the claim or a new respective tube containing adsorbent material being introduced. Therefore, the claim has been rendered indefinite.
Regarding claims 4 and 8, the claims recites “a computer in communication with one or more of the flow meter and the at least one real-time gas sensor.”, however it is unclear if the claim is trying to recite that the computer can be connected to the flow meter or the at least one real-time gas sensor or a combination of both. Therefore, the claim has been rendered indefinite. Examiner suggest adding the term “and/or” after “the flow meter” and before “the at least one real-time gas sensor”.
Regarding independent claim 5, the preamble of the claim recites “A system for sampling at least semi-volatile material onto adsorbent material contained in a tube”, the claim goes on to recite “a gas inlet extending into a first opening in said housing for admitting gas into said housing, said inlet being for establishing a connection with an adsorbent material-containing tube;”, and then later further recites “b) a tube containing adsorbent material,”, however it is unclear if the “adsorbent material contained in a tube” introduced in the preamble is the same respective tube containing adsorbent material recited later in the claims or are new respective tubes containing adsorbent material being introduced. Therefore, the claim has been rendered indefinite.
Claim 5 recites “said outlet being in fluid communication with one of said gas inlet or with a secondary inlet,” and then later recites “a third branch for drawing air through a secondary inlet from the ambient surroundings” and then later recites “actuate the three-way valve to put the vacuum source in-line with the secondary inlet;”, however it is unclear if the claim is referring to the first introduced “secondary inlet” or a introducing new respective “secondary inlet”. Furthermore, it is unclear as to which “secondary inlet” the three-way valve is being actuated to put in line with vacuum source. Therefore, the claim has been rendered indefinite.
Claim 5 also recites “a three-way valve comprising three branches comprising: a first branch in fluid communication with said inlet;”, however it is unclear which inlet is being referred to as a “gas inlet” and a “secondary inlet” have both been introduced in the claim. Therefore, the claim has been rendered indefinite.
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 1-3 and 5-7 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 12 of U.S. Patent No. 12,152,968 to Harshman et al (hereinafter “Harshman”) in view of Atsalakis US20190120821.
Although the claims at issue are not identical, they are not patentably distinct from each other because in claims 1-3 and 5-7 of the instant application, applicants claims, a flow regulation device for sampling at least semi-volatile material onto adsorbent material contained in a tube, said flow regulation device comprising:
a housing having a plurality of openings therein;
a gas inlet extending into a first opening in said housing for admitting gas into said housing, said inlet being for establishing a connection with an adsorbent material-containing tube;
an outlet for releasing gas outside said housing through a second opening in said housing, said outlet being in fluid communication with one of said gas inlet or with a secondary inlet, and being usable for establishing fluid communication with a vacuum source;
a three-way valve comprising three branches comprising:
a first branch in fluid communication with said gas inlet;
a second branch in fluid communication with said outlet; and
a third branch for drawing air through said secondary inlet from the ambient surroundings;
a real-time flow meter located in said housing, said flow meter being in fluid communication with the three-way valve; and
a controller in electronic communication with said flow meter, wherein when a vacuum source is connected to the outlet, the controller is configured to: (1) actuate the three-way valve to put the vacuum source in-line with the gas inlet, forming a primary pathway; (2) continuously monitor the flow of gas through the inlet and calculate the time necessary to sample a pre-set volume of gas; and (3) after the pre-set volume of gas passes through the gas inlet, actuate the three-way valve to put the vacuum source in-line with the secondary inlet, forming a secondary pathway.
Harshman discloses a flow regulation device for sampling at least semi-volatile material onto adsorbent material contained in a tube, said flow regulation device comprising: a housing having a plurality of openings therein; a gas inlet extending into a first opening in said housing for admitting gas into said housing, said inlet being for establishing a connection with an adsorbent material-containing tube; an outlet for releasing gas outside said housing through a second opening in said housing, said outlet being in fluid communication with one of said gas inlet or with a secondary inlet, and being usable for establishing fluid communication with a vacuum source; a three-way valve comprising three branches comprising: a first branch in fluid communication with said gas inlet; a second branch in fluid communication with said outlet; and a third branch for drawing air through said secondary inlet from the ambient surroundings; a real time flow meter located in said housing, said flow meter being in fluid communication with the three-way valve; and a controller in electronic communication with said flow meter, wherein when a vacuum source is connected to the outlet, the controller is configured to: (1) actuate the three-way valve to put the vacuum source in-line with the gas inlet, forming a primary pathway; (2) continuously monitor the flow of gas through the inlet and calculate the time necessary to sample a pre-set volume of gas; and (3) after the pre-set volume of gas passes through the gas inlet, actuate the three-way valve to put the vacuum source in-line with the secondary inlet, forming a secondary pathway.
However, Harshman fails to disclose the use of a at least one real-time gas sensor. Atsalakis discloses at least one real-time gas sensor (Sensors 7, 8). (Paragraph 0137).
Although the scope of claims 1-3 and 5-7 of the instant application and claims 1 and 12 of the Harshman Patent are very similar, the difference between the present claimed invention and the Harshman Patent is that the instant application utilizes at least one real-time gas sensor”.
It would have been obvious to one of ordinary skill in the art at the time of the effective filing date to use the teaching of Harshman as a general teaching to arrive at the instant application because the same elements are used to arrive at the same invention and it would have been obvious to use the oxygen and carbon dioxide sensors of Atsalakis at the time of the effective filing date to increase detection accuracy. The modification would allow for an increase in determining what components make up the material and if it is being accurately captured.
Claimed limitations fond in claim 2 of the instant application are taught by the Atsalakis reference.
Claimed limitations fond in claim 3 of the instant application are taught by the Atsalakis reference.
Claimed limitations fond in claim 5 of the instant application are taught by claim 12 of Harshman in view of Atsalakis
Claimed limitations fond in claim 6 of the instant application are taught by the Atsalakis reference.
Claimed limitations fond in claim 7 of the instant application are taught by the Atsalakis reference.
Allowable Subject Matter
Claims 1-3 and 5-7 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, and the timely filing of a terminal disclaimer set forth in this office action.
Claims 4 and 8 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this office action and to include 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:
Atsalakis US20190120821 discloses a portable breath analysis device for analysing breath of a subject to identify levels of gases such as oxygen and carbon dioxide. The device finds use in, for example, monitoring the health of subjects. Also provided herein are methods of analysing breath of a subject using the device. (Fig 1-6, Paragraphs 0132-0142)
Longbottom et al US20080038154 (hereinafter “Longbottom”) discloses using phase sensitive measurement of absorption of IR laser radiation, very small concentrations of the diagnostic species can be measured. Apparatus for collecting breath samples from different stages of the breathing cycle is also disclosed. (Fig 1-13, Paragraph 0071-0114)
Independent claim 1 is allowable as prior art made available do not teach or fairly suggest,
an outlet for releasing gas outside said housing through a second opening in said housing, said outlet being in fluid communication with one of said gas inlet or with a secondary inlet, and being usable for establishing fluid communication with a vacuum source;
a three-way valve comprising three branches comprising:
a first branch in fluid communication with said gas inlet;
a second branch in fluid communication with said outlet; and
a third branch for drawing air through said secondary inlet from the ambient surroundings;
a real-time flow meter located in said housing, said flow meter being in fluid communication with the three-way valve;
at least one real-time gas sensor joined between the inlet and the three-way valve; and
a controller in electronic communication with said flow meter, wherein when a vacuum source is connected to the outlet, the controller is configured to: (1) actuate the three-way valve to put the vacuum source in-line with the gas inlet, forming a primary pathway; (2) continuously monitor the flow of gas through the inlet and calculate the time necessary to sample a pre-set volume of gas; and (3) after the preset volume of gas passes through the gas inlet, actuate the three-way valve to put the vacuum source in-line with the secondary inlet, forming a secondary pathway.
Independent claim 5 is allowable as prior art made available do not teach or fairly suggest,
an outlet for releasing gas outside said housing through a second opening in said housing, said outlet being in fluid communication with one of said gas inlet or with a secondary inlet, and being usable for establishing fluid communication with a vacuum source;
a three-way valve comprising three branches comprising:
a first branch in fluid communication with said inlet;
a second branch in fluid communication with said outlet; and
a third branch for drawing air through a secondary inlet from the ambient surroundings;
a real-time flow meter located in said housing, said flow meter being in fluid communication with the three-way valve;
at least one real-time gas sensor joined between the inlet and the three-way valve; and
a controller in electronic communication with said flow meter, wherein when a vacuum source is connected to the outlet, the controller is configured to: (1) actuate the three-way valve to put the vacuum source in-line with the gas inlet; (2) continuously monitor the flow of gas through the inlet and calculate the time necessary to sample a pre-set volume of gas; and (3) after the pre-set volume of gas passes through the gas inlet, actuate the three-way valve to put the vacuum source in-line with the secondary inlet.
The instant application provides an advantage over prior art such as Atsalakis and Longbottom as the instant application allows for a real-time flow rate sensor with a divert valve to provide accurate sampling of specific volumes without user input, thus eliminating the sources of sampling error, allows accurate volumes to be sampled without any physical change in connections, personnel timing, or assumptions of uniformity of an adsorbent material, eliminates the requirement to calibrate the pump, time connections, and improves the accuracy of the volatile material transfer.
Conclusion
The prior art as cited on the PTO-892 is made of record and not relied upon but considered pertinent to applicant's disclosure.
O’Brien US20100116021 discloses providing a gas sample, increasing pressure applied to the gas sample to compress the sample to a smaller volume and provide a pneumatically focused gas sample, and analyzing the pneumatically focused gas sample using any of a variety of analytical techniques. Also disclosed are systems for gas analysis, including systems for analysis of pneumatically focused, and thereby concentrated, gas samples and for analysis of particulate matter in gas samples. Analytical systems constructed within personal computer cases also are disclosed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to NIGEL H PLUMB whose telephone number is (571)272-8886. The examiner can normally be reached Monday-Friday 7am-5pm.
Examiner interviews are available via telephone, in-person, and 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) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, John Breene can be reached at 571-272-4107. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (USA or CANADA) or 571-272-1000.
/NIGEL H PLUMB/Examiner, Art Unit 2855
/Eric S. McCall/Primary Examiner, Art Unit 2855
Prosecution Insights