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 .
DETAILED ACTION
Election/Restrictions
Applicant's election with traverse of the Species of “adjustable clogging material (ACM)” thermally expansive element that is “organic salts” material and “fractures” location for injection of the elements, drawn to claims 1-7 and 10-22 in the reply filed on 8 December 2025 is acknowledged. The traversal is on the ground(s) that “no substantive search burden exists. A search for the subject matter of all the different unelected Species would be required for performing an examination of the elected Species as such subject matter is relevant to the examination of the identified Species. For instance, while the different Species identified in the Office Action may be in different classifications, all of those classifications would need to be searched when examining the elected Species. This is not unusual as the searching of multiple classifications is a common requirement for examination. In addition, each of the embodiments of the identified Species are directed to devices and methods for producing an electrochemical device. Conducting a search and examination on the claimed subject matter for each Species would not impose much, if any additional, burden on the Examiner, regardless of the different embodiments recited in the claims. For example, any search for relevant subject matter would necessarily encompass both groups of claims” (p.9-10). This is not found persuasive because:
First, it is plainly untrue that “search for the subject matter of all the different unelected Species would be required for performing an examination of the elected Species as such subject matter is relevant to the examination of the identified Species.” For example, not only are e.g. calcium carbonate proppants entirely different in composition, reactivity, and properties than e.g. organic salt ACMs, but moreover, a search conducted for calcium carbonate proppants would be wholly distinct from a search for organic salt adjustable clogging materials. Furthermore, the elected Species is the required Species for examination, and unelected Species are only considered on the basis of their necessary inclusion in a claim. Thus, search for claims reciting the elected organic salt ACMs also includes searching on the basis of Prior Art that specifically excludes non-elected calcium carbonate proppant. These simply are not coextensive fields of search, given the substantial differences between calcium carbonate proppant and the various ACMs.
Second, and perhaps more importantly, the Species Election requirement as previously set forth was based on the combination of Species presented. The search burden for searching the combination of e.g. calcium carbonate proppants injected into fractures is substantially different than searching e.g. polymeric adjustable clogging materials injected into a production well. This is particularly true because the different combinations would interact different and raise substantially different considerations. For example, it appears that calcium carbonate proppants injected into fractures requires search of fracturing methods, while polymeric ACMs injected into a production well requires search of completion methods, an entirely different field.
Accordingly, any search for relevant subject matter would not necessarily encompass both groups, and Applicant’s arguments are not persuasive.
The requirement is still deemed proper and is therefore made FINAL.
Claims 8 and 9 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected Species, there being no allowable generic or linking claim.
Allowable Subject Matter
Claims 16 and 22 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112 set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant’s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Objections
Claims 4 and 20-22 are objected to because of the following informalities:
Claim 4 should recite “wherein the first temperature zone is a low temperature zone, and” etc. (correcting the typo).
Claim 20 should recite “wherein the thermally expansive elements also include proppants, each of the proppants being comprised of a thermally sensitive coating that covers a body of the proppant” (correcting the typo; because claim 19 recites “thermally expansive elements” not just “elements”).
Claim 21 should recite “wherein the thermally expansive elements [[alco]] also include proppants, each of the proppants being comprised of a thermally sensitive material” (correcting the typos; because claim 19 recites “thermally expansive elements” not just “elements”).
Claim 22 should recite “wherein the thermally expansive elements include adjustable clogging material (ACM), the ACM having a temperature sensitive solubility such that the ACM forms at least one lining in the fractures when the surrounding temperature is at or below the first pre-selected temperature and the at least one lining dissolves when the surrounding temperature is above the second pre-selected temperature” (correcting the typo).
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.
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 1-7 and 10-16 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 written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 1-7 and 10-16 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, because the specification, while being enabling for:
“positioning elements in a geological system for adjustable hydraulic conductivity based on surrounding temperature of fractures within a subsurface of the geological system to provide a uniform or substantially uniform heat extraction via a working fluid passing through the fractures” wherein the elements are thermally sensitive proppants and/or adjustable clogging materials, wherein the thermally sensitive proppants comprise calcium carbonate, shape memory polymer, or metal(s), and wherein the adjustable clogging materials comprise inorganic salts, polymers, or organic salts,
does not reasonably provide enablement for:
“positioning elements in a geological system for adjustable hydraulic conductivity based on surrounding temperature of fractures within a subsurface of the geological system to provide a uniform or substantially uniform heat extraction via a working fluid passing through the fractures” wherein the elements are any/every possible element capable of providing “adjustable hydraulic conductivity based on surrounding temperature of fractures within a subsurface of the geological system.”
The specification does not enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention commensurate in scope with these claims.
Claims 1-7 and 10-16 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.
Independent claim 1 recites “positioning elements in a geological system for adjustable hydraulic conductivity based on surrounding temperature of fractures within a subsurface of the geological system to provide a uniform or substantially uniform heat extraction via working fluid passing through the fractures.”
Upon consultation with the Specification, the Office observes that Applicant only discloses including “thermally sensitive proppants and/or adjustable clogging material (ACM)” (p.7) wherein “In some embodiments, the thermally sensitive material can comprise calcium carbonate. Other embodiment can utilize other suitable thermally sensitive material as well” (p.9); “The proppants can be comprised of shape memory polymers or metal(s) in some embodiments.” (p.12); “Embodiments of the ACM can include inorganic salts, polymers, or organic salts that may have such solubility properties for a working fluid (e.g. water), for example” (p.10); “For instance, the calcium carbonate family can have lower solubility in lower temperatures that can allow them to form a lining along cold fractures (e.g. fracture locations within the first zone, FZ) while these linings will not form along a hot stream path” (p.25); and “Temperature adaptive conductivity can also be achieved by adding materials with temperature-sensitive solubility into the circulation fluids. These materials can be referred to as adjustable clogging material (ACM). ACM can have a temperature sensitive solubility such that the ACM is in a solution state (e.g. dissolved in a liquid) when at or above a first temperature and in a solid state at or below a second temperature when included within a working fluid (e.g. water) passing through a fracture or fracture system. At high temperatures, ACM can be included solubilized in water (e.g. dissolved in water to form an aqueous mixture) or other working fluid in larger amounts and maintain high hydraulic conductivity. While at low temperatures, the ACM can precipitate out of the liquid working fluid to form solids that can impede the fluid flow though the pore spaces 35A of the fracture system. For instance, materials like calcium chloride, potassium chloride, and magnesium chloride have lower solubility in water at low temperatures” (p.26). There are no other descriptions of suitable elements capable of providing “adjustable hydraulic conductivity based on surrounding temperature of fractures within a subsurface of the geological system.”
First, while there is a presumption that an adequate Written Description of the claimed invention is present in the Specification as filed, a question as to whether a Specification provides an adequate Written Description may arise in the context of an original claim. An original claim may lack Written Description support when (1) the claim defines the invention in functional language specifying a desired result but the disclosure fails to sufficiently identify how the function is performed or the result is achieved or (2) a broad Genus claim is presented but the disclosure only describes a narrow Species with no evidence that the Genus is contemplated. See Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1349-50 (Fed. Cir. 2010) (en banc). The written description requirement is not necessarily met when the claim language appears in ipsis verbis in the specification. "Even if a claim is supported by the specification, the language of the specification, to the extent possible, must describe the claimed invention so that one skilled in the art can recognize what is claimed. The appearance of mere indistinct words in a specification or a claim, even an original claim, does not necessarily satisfy that requirement." Enzo Biochem, Inc. v. Gen-Probe, Inc., 323 F.3d 956, 968, 63 USPQ2d 1609, 1616 (Fed. Cir. 2002). See MPEP 2163.03 Typical Circumstances Where Adequate Written Description Issue Arises.
In this case, a broad Genus claim is presented (broadly encompassing all “elements” capable of providing “adjustable hydraulic conductivity based on surrounding temperature of fractures within a subsurface of the geological system”) but the disclosure only describes a narrow Species (specifically, either thermally sensitive proppants and/or adjustable clogging material (ACM), where thermally sensitive proppants may include calcium carbonate, shape memory polymers, or metals and ACMs may include inorganic salts, polymers, or organic salts) with no evidence that the Genus is contemplated. For example, it is unclear if “elements” as diverse as micro-electromechanical systems (MEMS) devices, foams, silica sand, barite, wettability-modifying surfactants, etc. would be capable of providing “adjustable hydraulic conductivity based on surrounding temperature of fractures within a subsurface of the geological system,” because Applicant has not provided sufficient detail, guidance, or direction to adequately demonstrate Applicant contemplated all such materials for this purpose. Furthermore, the mere recitation in ipsis verbis of the same claim language in the Specification does not adequately describe the claimed invention so that one skilled in the art can recognize what is claimed. Rather, Applicant has not demonstrated that Applicant actually possessed the full range of elements capable of providing “adjustable hydraulic conductivity based on surrounding temperature of fractures within a subsurface of the geological system.”
Accordingly, this claim lacks an adequate Written Description for its full scope.
Second, based on the foregoing, per In re Wands, 858 F.2d 731, 737, 8 USPQ2d 1400, 1404 (Fed. Cir. 1988), the following Undue Experimentation factors do not support a determination that the disclosure satisfies the Enablement requirement for the Full claim Scope: (A) breadth of claims; (B) nature of invention; (D) level of ordinary skill; (E) predictability of art; (F) direction provided; (G) working examples; and (H) quantity of experimentation needed. That is, seven of the Wands factors do not support Enablement, five of which relates directly to the current claim scope (A/E/F/G/H).
Therefore, there also exists a Scope of Enablement deficiency for the current claim.
Third, based on the foregoing, it is unclear what other “elements” would be capable of providing “adjustable hydraulic conductivity based on surrounding temperature of fractures within a subsurface of the geological system” or not. For example, would a MEMS device be capable of providing “adjustable hydraulic conductivity based on surrounding temperature of fractures within a subsurface of the geological system” or not? Would foams? Would silica sand? The claim scope is unclear because of the lacking guidance disclosed by Applicant about what elements are capable of providing “adjustable hydraulic conductivity based on surrounding temperature of fractures within a subsurface of the geological system.”
Accordingly, the claim scope is also rendered Indefinite.
Claims 2-7 and 10-16 are rejected by dependency, also failing to limit the claim scope to the described and enabled scope in a definite manner. Although claims 3-6 and 10-14 refer to “thermally sensitive proppants,” the scope of this term is similarly deficient because the disclosure does not provide adequate detail, guidance, or direction of what material(s) are capable of performing the claimed function or not. Although claims 3, 15, and 16 refer to “adjustable clogging material (ACM),” the scope of this term is similarly deficient because the disclosure does not provide adequate detail, guidance, or direction of what material(s) are capable of performing the claimed function or not.
For examination purposes, claim 1 will be read as though additionally requiring the described and enabled materials:
“1. (Currently Amended) A method of fracture conductivity tuning comprising:
positioning elements in a geological system for adjustable hydraulic conductivity based on surrounding temperature of fractures within a subsurface of the geological system to provide a uniform or substantially uniform heat extraction via working fluid passing through the fractures, wherein the elements comprise thermally sensitive proppants and/or adjustable clogging materials, wherein the thermally sensitive proppants comprise calcium carbonate, one or more shape memory polymer, and/or at least one metal, and wherein the adjustable clogging materials comprise one or more inorganic salts, one or more polymers, and/or one or more organic salts.”
Furthermore, the above language will be interpreted as though providing the specifically claimed material (e.g., organic salts) also necessarily provides the functions of “adjustable hydraulic conductivity based on surrounding temperature of fractures within a subsurface of the geological system to provide a uniform or substantially uniform heat extraction via working fluid passing through the fractures.” If there are any additional claim features required to provide these functions (e.g., particular compositions, concentrations, structures, etc.), then Applicant must insert those features into the claims, or else the claims would be considered deficient under 112(b) for omitting essential elements. See MPEP 2172.01.
Claim 14 is 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 14 recites “injecting additional proppants to position the thermally sensitive proppants in the fractures between the at least one injection well and the at least one production well so the thermally sensitive proppants are positioned in the fractures at a location that is remote from the at least one injection well and also positioned at a location that is remote from the at least one production well.”
Upon consultation with the Specification, the Office observes that Applicant does not appear to actually define what distance is required for a location to be “remote” vs. not “remote.
Accordingly, the term “location that is remote” is a relative term which renders the claim indefinite. The term “remote” is not defined by the claim, the Specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. For example, it is unclear what distance would be required for a location to be considered “remote” vs. not “remote.” Would the location have to be 1 meter away? 10 meters? 100 meters? The claim scope is rendered Indefinite.
For examination purposes, claim 14 will be read as though instead reciting “positioning additional proppants to position the thermally sensitive proppants in the fractures between the at least one injection well and the at least one production well so the thermally sensitive proppants are positioned in the fractures ” (removing the “remote” language; because positioning in the fractures appears to also provide the same location without any unclarity).
Claims 17-22 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 written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claims 17-22 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, because the specification, while being enabling for:
“thermally expansive elements configured to solidify to a solid or enlarge from a first size to a second size to have a greater volume when at a temperature that is below a first pre-selected temperature and the thermally expansive elements are configured to liquify or be at their first size when at a temperature that is above a second pre-selected temperature, the second pre-selected temperature being greater than the first pre-selected temperature” wherein the thermally expansive elements are thermally sensitive proppants and/or adjustable clogging materials, wherein the thermally sensitive proppants comprise calcium carbonate, shape memory polymer, or metal(s), and wherein the adjustable clogging materials comprise inorganic salts, polymers, or organic salts,
does not reasonably provide enablement for:
“thermally expansive elements configured to solidify to a solid or enlarge from a first size to a second size to have a greater volume when at a temperature that is below a first pre-selected temperature and the thermally expansive elements are configured to liquify or be at their first size when at a temperature that is above a second pre-selected temperature, the second pre-selected temperature being greater than the first pre-selected temperature” wherein the thermally expansive elements are any/every possible device/material “configured to solidify to a solid or enlarge from a first size to a second size to have a greater volume when at a temperature that is below a first pre-selected temperature and the thermally expansive elements are configured to liquify or be at their first size when at a temperature that is above a second pre-selected temperature, the second pre-selected temperature being greater than the first pre-selected temperature.”
The specification does not enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention commensurate in scope with these claims.
Claims 17-22 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.
Independent claim 17 recites “thermally expansive elements configured to solidify to a solid or enlarge from a first size to a second size to have a greater volume when at a temperature that is below a first pre-selected temperature and the thermally expansive elements are configured to liquify or be at their first size when at a temperature that is above a second pre-selected temperature, the second pre-selected temperature being greater than the first pre-selected temperature.”
As in claim 1, upon consultation with the Specification, the Office observes that Applicant only discloses “calcium carbonate” (p.9); “shape memory polymers or metal(s)” (p.12); “inorganic salts, polymers, or organic salts” (p.10); and “calcium chloride, potassium chloride, and magnesium chloride” (p.26). There are no other descriptions of suitable thermally expansive elements “configured to solidify to a solid or enlarge from a first size to a second size to have a greater volume when at a temperature that is below a first pre-selected temperature and the thermally expansive elements are configured to liquify or be at their first size when at a temperature that is above a second pre-selected temperature, the second pre-selected temperature being greater than the first pre-selected temperature.”
First, as in claim 1, in this case, a broad Genus claim is presented (broadly encompassing all “thermally expansive elements configured to solidify to a solid or enlarge from a first size to a second size to have a greater volume when at a temperature that is below a first pre-selected temperature and the thermally expansive elements are configured to liquify or be at their first size when at a temperature that is above a second pre-selected temperature, the second pre-selected temperature being greater than the first pre-selected temperature”) but the disclosure only describes a narrow Species (specifically, either thermally sensitive proppants and/or adjustable clogging material (ACM), where thermally sensitive proppants may include calcium carbonate, shape memory polymers, or metals and ACMs may include inorganic salts, polymers, or organic salts) with no evidence that the Genus is contemplated. For example, it is unclear if “thermally expansive elements” as diverse as micro-electromechanical systems (MEMS) devices, foams, silica sand, barite, wettability-modifying surfactants, etc. would be “configured to solidify to a solid or enlarge from a first size to a second size to have a greater volume when at a temperature that is below a first pre-selected temperature and the thermally expansive elements are configured to liquify or be at their first size when at a temperature that is above a second pre-selected temperature, the second pre-selected temperature being greater than the first pre-selected temperature” because Applicant has not provided sufficient detail, guidance, or direction to adequately demonstrate Applicant contemplated all such materials for this purpose. Applicant has not demonstrated that Applicant actually possessed the full range of “thermally expansive elements configured to solidify to a solid or enlarge from a first size to a second size to have a greater volume when at a temperature that is below a first pre-selected temperature and the thermally expansive elements are configured to liquify or be at their first size when at a temperature that is above a second pre-selected temperature, the second pre-selected temperature being greater than the first pre-selected temperature”
Accordingly, this claim lacks an adequate Written Description for its full scope.
Second, as in claim 1, the following Undue Experimentation factors do not support a determination that the disclosure satisfies the Enablement requirement for the Full claim Scope: (A) breadth of claims; (B) nature of invention; (D) level of ordinary skill; (E) predictability of art; (F) direction provided; (G) working examples; and (H) quantity of experimentation needed. That is, seven of the Wands factors do not support Enablement, five of which relates directly to the current claim scope (A/E/F/G/H).
Therefore, there also exists a Scope of Enablement deficiency for the current claim.
Third, as in claim 1, it is unclear what other “thermally expansive elements” would be “thermally expansive elements configured to solidify to a solid or enlarge from a first size to a second size to have a greater volume when at a temperature that is below a first pre-selected temperature and the thermally expansive elements are configured to liquify or be at their first size when at a temperature that is above a second pre-selected temperature, the second pre-selected temperature being greater than the first pre-selected temperature” or not. For example, would a MEMS device be “configured to solidify to a solid or enlarge from a first size to a second size to have a greater volume when at a temperature that is below a first pre-selected temperature and the thermally expansive elements are configured to liquify or be at their first size when at a temperature that is above a second pre-selected temperature, the second pre-selected temperature being greater than the first pre-selected temperature” or not? Would foams? Would silica sand? Would barite? The claim scope is unclear because of the lacking guidance disclosed by Applicant about what “thermally expansive elements” are “configured to solidify to a solid or enlarge from a first size to a second size to have a greater volume when at a temperature that is below a first pre-selected temperature and the thermally expansive elements are configured to liquify or be at their first size when at a temperature that is above a second pre-selected temperature, the second pre-selected temperature being greater than the first pre-selected temperature” or not.
Accordingly, the claim scope is also rendered Indefinite.
Claims 17-22 are rejected by dependency, also failing to limit the claim scope to the described and enabled scope in a definite manner.
For examination purposes, claim 17 will be read as though additionally requiring the described and enabled materials:
“17. (Currently Amended) An apparatus for fracture conductivity tuning comprising:
at least one injection well;
fractures communicatively connected to the at least one injection well such that a working fluid injectable via the at least one injection well passes through the fractures to at least one production well; and
thermally expansive elements being positioned in the at least one injection well, the fractures and/or the at least one production well to adjust fracture conductivity of heat to the working fluid, the thermally expansive elements configured to solidify to a solid or enlarge from a first size to a second size to have a greater volume when at a temperature that is below a first pre-selected temperature and the thermally expansive elements are configured to liquify or be at their first size when at a temperature that is above a second pre-selected temperature, the second pre-selected temperature being greater than the first pre-selected temperature, wherein the elements comprise thermally sensitive proppants and/or adjustable clogging materials, wherein the thermally sensitive proppants comprise calcium carbonate, one or more shape memory polymer, and/or at least one metal, and wherein the adjustable clogging materials comprise one or more inorganic salts, one or more polymers, and/or one or more organic salts.”
Furthermore, as in claim 1, the above language will be interpreted as though providing the specifically claimed material (e.g., organic salts) also necessarily provides the functions of “configured to solidify to a solid or enlarge from a first size to a second size to have a greater volume when at a temperature that is below a first pre-selected temperature and the thermally expansive elements are configured to liquify or be at their first size when at a temperature that is above a second pre-selected temperature, the second pre-selected temperature being greater than the first pre-selected temperature.” If there are any additional claim features required to provide these functions (e.g., particular compositions, concentrations, structures, etc.), then Applicant must insert those features into the claims, or else the claims would be considered deficient under 112(b) for omitting essential elements. See MPEP 2172.01.
Claim Rejections - 35 USC § 102/103
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 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.
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.
Claims 1-7, 10, 13, 15, and 17-21 are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Sherman (2016/0137912) (cited by Applicant and in parent).
Applicant is reminded that, as in Claim Rejections - 35 USC § 112, the claims are being interpreted as though providing the specifically claimed material (e.g., calcium carbonate, polymers) also necessarily provides the claimed functions of the elements. If there are any additional claim features required to provide these functions (e.g., particular compositions, concentrations, structures, etc.), then Applicant must insert those features into the claims, or else the claims would be considered deficient under 112(b) for omitting essential elements. See MPEP 2172.01.
Regarding independent claim 1, Sherman discloses A method of fracture conductivity tuning (abstract “A composite particle that incorporates a material and is designed to undergo a reaction and/or mechanical or chemical change with the environment to increase in volume. The composite particle can be combined with a constraining matrix to create an expandable particle upon reaction. These particles can be used in stimulating wells, including oil and gas reservoirs” and [0070] “The capability to have a pumpable material that can be triggered or reacted to provide the controlled application of high forces while remaining highly permeable is an enabling technology for the extraction of the lithosphere's (earth crust) mineral, geothermal, and energy resources”; see also [0003]-[0005] “enhanced geothermal energy (EGS)”) comprising:
positioning elements in a geological system ([0057] “engineered, pumpable particles that can be used … 2) to expand and widen the fracture network over time”), wherein the elements comprise thermally sensitive proppants (e.g., [0060] “The core particles can be designed to react under controlled stimulus, at which point the core will expand, thereby expanding the fracture in a subterranean formation to enhance oil and gas recovery. One non-limiting feature of the invention is the controlling of the timing/trigger, and/or amount and/or speed of the expanding reaction. Control/trigger coatings can also be used (e.g., temperature activated coatings” = thermally sensitive) and/or adjustable clogging materials (e.g. [0017] “the expandable composite material can include one or more polymer materials”), wherein the thermally sensitive proppants comprise calcium carbonate ([0057] “calcium carbonate”), one or more shape memory polymer, and/or at least one metal ([0022] “the expandable material can optionally include a shape memory alloy”), and wherein the adjustable clogging materials comprise one or more inorganic salts (i.e., calcium carbonate), one or more polymers (e.g. [0017] “the expandable composite material can include one or more polymer materials”), and/or one or more organic salts.
The Office recognizes that Applicant discloses “For instance, the calcium carbonate family can have lower solubility in lower temperatures that can allow them to form a lining along cold fractures (e.g. fracture locations within the first zone, FZ) while these linings will not form along a hot stream path” (p.25); i.e., calcium carbonate can act either as a “thermally sensitive proppant” or an “ACM” within the scope of the claims.
Regarding the “adjustable hydraulic conductivity” etc., as above, Sherman discloses including engineered, pumpable particles wherein “In another and/or alternative non-limiting aspect of the invention, the base expansion reaction of the high force reactive expandables is an oxidation/hydration/carbonation to an incompressible solid with a higher volume as compared to the starting material. One non-limiting example is the reaction of slaked lime, such as where CaO forms calcium hydroxide before converting to calcium carbonate (in carbonated water), which produces a change in volume” ([0057]) and “The expandable proppants of the present invention may also be suitable for use in natural gas/water mixtures, particularly since the syntactic SMA (as well as the calcium and aluminum materials) are very low density as compared to conventional frac sands and bauxite proppants, and finer sizes can be used to achieve equivalent permeability with smaller initial fracture widths” ([0070]) i.e. Sherman discloses including expandable proppants of CaO which have a temperature-activated coating that will cause the proppant to convert and expand into calcium carbonate proppants downhole in the fractures used in a geothermal system.
Although Sherman does not specify that the expanded calcium carbonate proppants are capable of providing “adjustable hydraulic conductivity” etc., Applicant is reminded that as in Claim Rejections - 35 USC § 112, the claims are being interpreted as though providing the specifically claimed material (e.g., calcium carbonate) also necessarily provides the claimed functions of the elements.
Accordingly, by providing calcium carbonate proppants downhole in the fractures used in a geothermal system, Sherman also provides:
“positioning elements in a geological system for adjustable hydraulic conductivity based on surrounding temperature of fractures within a subsurface of the geological system to provide a uniform or substantially uniform heat extraction via working fluid passing through the fractures, wherein the elements comprise thermally sensitive proppants and/or adjustable clogging materials, wherein the thermally sensitive proppants comprise calcium carbonate, one or more shape memory polymer, and/or at least one metal, and wherein the adjustable clogging materials comprise one or more inorganic salts, one or more polymers, and/or one or more organic salts.”
Furthermore, mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. "The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious." See MPEP 2145; II. ARGUING ADDITIONAL ADVANTAGES OR LATENT PROPERTIES; Prima Facie Obviousness Is Not Rebutted by Merely Recognizing Additional Advantages or Latent Properties Present But Not Recognized in the Prior Art.
Also, "the discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer." Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). See MPEP 2112.
In this case, it appears that Applicant has merely recognized another advantage which would flow naturally from following the suggestion of the prior art to Sherman, and Applicant merely discovers a previously unappreciated property of a prior art composition. Accordingly, this cannot be the basis for patentability when the differences would otherwise be obvious. For example, although Sherman focuses on the initial expansion of the CaO proppant into calcium carbonate proppant to expand the fractures, Applicant’s claims appear to merely refer to the calcium carbonate proppant thereafter naturally expanding in the fractures under lower temperatures and naturally shrinking in the fractures under higher temperatures.
Alternatively, if there is any difference between the composition and that of the instant claims, the difference would have been minor and obvious insofar as it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Sherman to include the calcium carbonate proppants in the geothermal fractures, with a reasonable expectation of success, in order to provide an embodiment within Sherman’s general conditions, and thus provide all of the same properties as claimed, because it has been held "Products of identical chemical composition cannot have mutually exclusive properties." See MPEP 2112.01(I), In re Best, 562 F2d at 1255, 195 USPQ at 433, Titanium Metals Corp v Banner, 778 F2d 775,227 USPQ 773 (Fed Cir 1985), In re Ludtke, 441 F2d 660, 169 USPQ 563 (CCPA 1971) and Northam Warren Corp v D F Newfield Co, 7 F Supp 773, 22 USPQ 313 (EDNY 1934).
Where applicant claims a composition in terms of a function, property or characteristic and the composition of the prior art is the same as that of the claim but the function is not explicitly disclosed by the reference, the examiner may make a rejection under both 35 USC § 102 and § 103. “There is nothing inconsistent in concurrent rejections for obviousness under 35 USC 103 and for anticipation under 35 USC 102." See MPEP 2112 (III) and In re Best, 562 F2d at 1255, 195 USPQ at 433.
Regarding claim 2, Sherman discloses wherein the positioning of the elements in the geological system comprises injecting the elements into the fractures, at least one injection well in fluid communication with the fractures, and/or at least one production well in fluid communication with the fractures ([0060] “In discrete form, the high force reactive expandables can be pumpable, such that they can be positioned into the fracture network during well completion, and then subsequently reacted to expand the fracture without further use of high pressure hydraulic pumping”; this must also include injecting in either an injection well or a production well).
Regarding claims 3-6 and 15, as in claim 1, Sherman discloses including expandable proppants of shape memory alloy and of CaO which have a temperature-activated coating that will cause the proppant to expand downhole in the fractures used in a geothermal system.
Although Sherman does not specify that the expanded calcium carbonate proppants are capable of providing “adjustable hydraulic conductivity” etc., Applicant is reminded that as in Claim Rejections - 35 USC § 112, the claims are being interpreted as though providing the specifically claimed material (e.g., calcium carbonate) also necessarily provides the claimed functions of the elements.
Accordingly, by providing shape memory alloy and calcium carbonate downhole in the fractures used in a geothermal system, Sherman also provides:
(claim 3) wherein the elements include adjustable clogging material (ACM) and thermally sensitive proppants that are configured so that the thermally sensitive proppants deform to expand when the surrounding temperature is below a first pre-selected maximum temperature for a first temperature zone and are configured to be smaller when at a second pre-selected temperature that is above a second pre-selected minimum temperature for a second temperature zone; and further
(claim 4) wherein the first temperature zone is a low temperature zone, and the second temperature zone is a high temperature zone that has a temperature that is higher than the low temperature zone; and further
(claim 5) wherein the thermally sensitive proppants remain at a first size when the surrounding temperature is at the second pre-selected temperature and are enlarged to have a second size that has a greater volume than the first size when the surrounding temperature is below the first pre-selected maximum temperature for the first temperature zone; and/or
(claim 6) wherein deformation of the thermally sensitive proppants is configured to occlude the fractures and diminish or reduce hydraulic conductivity when the surrounding temperature is in the first temperature zone; and/or
(claim 15) wherein the elements include adjustable clogging material (ACM) having a temperature sensitive solubility such that the ACM is in a solution state when at or above a first temperature and in a solid state at or below a second temperature; and wherein the positioning of the elements in the geological system comprises injecting the ACM into the fractures, at least one injection well in fluid communication with the fractures, and/or at least one production well in fluid communication with the fractures.
Alternatively, if there is any difference between the composition and that of the instant claims, the difference would have been minor and obvious insofar as it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Sherman to include the calcium carbonate proppants in the geothermal fractures, with a reasonable expectation of success, in order to provide an embodiment within Sherman’s general conditions, and thus provide all of the same properties as claimed, because it has been held "Products of identical chemical composition cannot have mutually exclusive properties." See MPEP 2112.
Regarding claim 7, Sherman discloses “wherein the geological system is an enhanced geothermal system (EGS) or a geothermal system” ([0070] “geothermal”; see also [0003]-[0005] “enhanced geothermal energy (EGS)”).
Regarding claim 10, Sherman discloses “wherein the thermally sensitive proppants are injected into the fractures” ([0060] “In discrete form, the high force reactive expandables can be pumpable, such that they can be positioned into the fracture network during well completion, and then subsequently reacted to expand the fracture without further use of high pressure hydraulic pumping”).
Regarding claim 13, Sherman discloses “wherein the thermally sensitive proppants are thermally sensitive coated proppants” ([0060] “temperature activated coatings” = thermally sensitive).
Regarding independent claim 17, Sherman discloses An apparatus for fracture conductivity tuning (abstract “A composite particle that incorporates a material and is designed to undergo a reaction and/or mechanical or chemical change with the environment to increase in volume. The composite particle can be combined with a constraining matrix to create an expandable particle upon reaction. These particles can be used in stimulating wells, including oil and gas reservoirs” and [0070] “The capability to have a pumpable material that can be triggered or reacted to provide the controlled application of high forces while remaining highly permeable is an enabling technology for the extraction of the lithosphere's (earth crust) mineral, geothermal, and energy resources”; see also [0003]-[0005] “enhanced geothermal energy (EGS)”) comprising:
at least one injection well (e.g., abstract “stimulating wells”; these must be injection wells to be stimulated);
fractures communicatively connected to the at least one injection well such that a working fluid injectable via the at least one injection well passes through the fractures to at least one production well (e.g., as an “enhanced geothermal energy (EGS)” system); and
thermally expansive elements being positioned in the at least one injection well, the fractures and/or the at least one production well ([0057] “engineered, pumpable particles that can be used … 2) to expand and widen the fracture network over time” and e.g., [0060] “The core particles can be designed to react under controlled stimulus, at which point the core will expand, thereby expanding the fracture in a subterranean formation to enhance oil and gas recovery. One non-limiting feature of the invention is the controlling of the timing/trigger, and/or amount and/or speed of the expanding reaction. Control/trigger coatings can also be used (e.g., temperature activated coatings” = thermally sensitive) … wherein the elements comprise thermally sensitive proppants (e.g., [0060] “The core particles can be designed to react under controlled stimulus, at which point the core will expand, thereby expanding the fracture in a subterranean formation to enhance oil and gas recovery. One non-limiting feature of the invention is the controlling of the timing/trigger, and/or amount and/or speed of the expanding reaction. Control/trigger coatings can also be used (e.g., temperature activated coatings” = thermally sensitive) and/or adjustable clogging materials (e.g. [0017] “the expandable composite material can include one or more polymer materials”), wherein the thermally sensitive proppants comprise calcium carbonate ([0057] “calcium carbonate”), one or more shape memory polymer, and/or at least one metal ([0022] “the expandable material can optionally include a shape memory alloy”), and wherein the adjustable clogging materials comprise one or more inorganic salts (i.e., calcium carbonate), one or more polymers (e.g. [0017] “the expandable composite material can include one or more polymer materials”), and/or one or more organic salts.
Regarding the “to adjust fracture conductivity” etc., as in claim 1, Sherman discloses including expandable proppants of CaO which have a temperature-activated coating that will cause the proppant to convert and expand into calcium carbonate proppants downhole in the fractures used in a geothermal system.
As in claim 1, although Sherman does not specify that the expanded calcium carbonate proppants are capable of providing “adjustable hydraulic conductivity” etc., Applicant is reminded that as in Claim Rejections - 35 USC § 112, the claims are being interpreted as though providing the specifically claimed material (e.g., calcium carbonate) also necessarily provides the claimed functions of the elements.
Accordingly, by providing calcium carbonate proppants downhole in the fractures used in a geothermal system, Sherman also provides:
“thermally expansive elements being positioned in the at least one injection well, the fractures and/or the at least one production well to adjust fracture conductivity of heat to the working fluid, the thermally expansive elements configured to solidify to a solid or enlarge from a first size to a second size to have a greater volume when at a temperature that is below a first pre-selected temperature and the thermally expansive elements are configured to liquify or be at their first size when at a temperature that is above a second pre-selected temperature, the second pre-selected temperature being greater than the first pre-selected temperature, wherein the elements comprise thermally sensitive proppants and/or adjustable clogging materials, wherein the thermally sensitive proppants comprise calcium carbonate, one or more shape memory polymer, and/or at least one metal, and wherein the adjustable clogging materials comprise one or more inorganic salts, one or more polymers, and/or one or more organic salts.”
As in claim 1, in this case, it appears that Applicant has merely recognized another advantage which would flow naturally from following the suggestion of the prior art to Sherman, and Applicant merely discovers a previously unappreciated property of a prior art composition. Accordingly, this cannot be the basis for patentability when the differences would otherwise be obvious. For example, although Sherman focuses on the initial expansion of the CaO proppant into calcium carbonate proppant to expand the fractures, Applicant’s claims appear to merely refer to the calcium carbonate proppant thereafter naturally expanding in the fractures under lower temperatures and naturally shrinking in the fractures under higher temperatures.
Alternatively, if there is any difference between the composition and that of the instant claims, the difference would have been minor and obvious insofar as it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Sherman to include the calcium carbonate proppants in the geothermal fractures, with a reasonable expectation of success, in order to provide an embodiment within Sherman’s general conditions, and thus provide all of the same properties as claimed, because it has been held "Products of identical chemical composition cannot have mutually exclusive properties." See MPEP 2112.01(I), In re Best, 562 F2d at 1255, 195 USPQ at 433, Titanium Metals Corp v Banner, 778 F2d 775,227 USPQ 773 (Fed Cir 1985), In re Ludtke, 441 F2d 660, 169 USPQ 563 (CCPA 1971) and Northam Warren Corp v D F Newfield Co, 7 F Supp 773, 22 USPQ 313 (EDNY 1934).
Regarding claim 18, as in claim 17, although Sherman does not specify that the expanded calcium carbonate proppants are capable of providing “adjustable hydraulic conductivity” etc., Applicant is reminded that as in Claim Rejections - 35 USC § 112, the claims are being interpreted as though providing the specifically claimed material (e.g., calcium carbonate) also necessarily provides the claimed functions of the elements.
Accordingly, by providing calcium carbonate proppants downhole in the fractures used in a geothermal system, Sherman also provides “wherein the first pre-selected temperature is a defined maximum temperature for a first zone of conductivity and the second pre-selected temperature is a defined minimum temperature for a second zone of conductivity, conductivity of the second zone being greater than conductivity of the first zone.”
Regarding claims 19-21, Sherman discloses the proppants comprising “calcium carbonate” ([0057]) and a “temperature-activated coating” ([0060]). Accordingly, Sherman provides:
(claim 19) wherein the thermally expansive elements are adjustable clogging material (ACM) having a temperature sensitive solubility; and/or
(claim 20) wherein the elements also include proppants, each of the proppants being comprised of a thermally sensitive coating that covers a body of the proppant; and/or
(claim 21) wherein the elements also include proppants, each of the proppants being comprised of a thermally sensitive material.
Claim Rejections - 35 USC § 103
Claim 14 is rejected under 35 U.S.C. 103 as obvious over Sherman as in claim 1.
Regarding claim 14, Sherman discloses “Referring now to the following description and drawings, the invention relates to engineered, pumpable particles that can be used 1) to deliver mechanical forces in a controlled and engineered manner inside of a fracture network, 2) to expand and widen the fracture network over time” ([0057]). Accordingly, Sherman discloses:
“… to position the thermally sensitive proppants in the fractures between the at least one injection well and the at least one production well so the thermally sensitive proppants are positioned in the fractures.”
However, Sherman fails to specify injecting additional proppants to do this.
Nevertheless, Sherman teaches “The expandable proppants of the present invention may also be suitable for use in natural gas/water mixtures, particularly since the syntactic SMA (as well as the calcium and aluminum materials) are very low density as compared to conventional frac sands and bauxite proppants” ([0070]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Sherman to include injecting additional proppants e.g. the conventional proppants, with a reasonable expectation of success, in order to provide higher-density particles as well as needed to increase the fluid density and thus the pressure on the fracture (thereby including: “wherein the thermally sensitive proppants are thermally sensitive proppants that are injected and the method also comprises:
positioning additional proppants to position the thermally sensitive proppants in the fractures between the at least one injection well and the at least one production well so the thermally sensitive proppants are positioned in the fractures”).
Claims 11 and 12 are rejected under 35 U.S.C. 103 as obvious over Sherman as in claim 2, and further in view of Nguyen (2021/0207467) (cited by Applicant and in parent).
Regarding claims 11 and 12, Sherman discloses “In discrete form, the high force reactive expandables can be pumpable, such that they can be positioned into the fracture network during well completion, and then subsequently reacted to expand the fracture without further use of high pressure hydraulic pumping” ([0060]). Thus Sherman provides wherein the thermally sensitive proppants are injected into the fractures.
However, Sherman fails to specify if the proppants are injected into the injection well or the production well specifically.
Nevertheless, it is ordinary and conventional to inject proppants for fracturing into either injection wells or production wells. For example, Nguyen teaches a method of fracturing (abstract) using “calcium carbonate” proppants ([0016]) wherein “Embodiments may be applicable to injection wells, monitoring wells, and production wells, including hydrocarbon or geothermal wells” ([0010]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified Sherman to include specifically injecting the proppants into the injection wells and/or the production wells, with a reasonable expectation of success, in order to place the proppants in the fracture network (thereby including:
(claim 11) wherein the thermally sensitive proppants are injected into the fractures and the at least one injection well; and/or
(claim 12) wherein the thermally sensitive proppants are injected into the fractures and the at least one production well).
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 1-7 and 10-22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-22 of U.S. Patent No. 12,168,922 (also parent Application 18/363,003).
Regarding claims 1-7 and 10-22, these correspond with 12,168,922 claims 1-22.
Conclusion
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/ANDREW SUE-AKO/Primary Examiner, Art Unit 3674