DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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 §§ 706.02(l)(1) - 706.02(l)(3) 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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1 – 22 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 - 16 of U.S. Patent No. 11,662,279 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because they seek to encompass the claimed invention. The U.S. Patent No. 11,662,279 B2 teaches an air sampling device for sampling air comprising a housing, a retaining assembly, a plenum, a flow connection, a mass flow meter and a blower similar to the claimed invention of instant application.
Claims 1 – 22 (due to claim dependency) are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 4, 8, 10 of U.S. Patent No. U.S. Patent No. 12,209,937 B2 and claims 1 – 4, 14 of U.S. Patent No. 10,732,081 B2 in view of U.S. Patent Application Publication No. 2015/0355000 A1 to Bates et al.. Although the claims at issue are not identical, they are not patentably distinct from each other because they seek to encompass the claimed invention. The aforementioned U.S. Patents teach an air sampling device for sampling air comprising a housing, a retaining assembly, a plenum, a mass flow meter, a blower similar to the claimed invention of instant application however does not explicitly teach the flow connection coupled to the bottom end of the plenum. The deficiency is met with the flow connection of a secondary reference of U.S. No. 2015/0355000 A1 to Bates et al.. Therefore, all pending claims of the instant application are rejected in view of claims mentioned above. The combination of these claims recites a broader version of the same limitations claimed in the present application.
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.
Claim 21 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.
As to Claim 21, the instant claim recites the limitation "the flow connection" in line 2. There is insufficient antecedent basis for this limitation resulting in unclear scope of the claim.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1, 2, 4, 6 – 14, 16 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application Publication No. 2015/0355000 A1 to Bates et al. (hereinafter “Bates”).
Regarding Claim 1, Bates teaches an air sampling device (see abstract, see also system 200, Fig. 2A) for sampling air (see abstract, paragraphs [0002], [0032] describing sampling air in environments such as clean rooms), comprising:
a housing body having a top, a side, (see Fig. 2A showing top area and housing body/sides, see annotated figure below) and an opening (see opening at the top of the housing with fluid arrows entering the blower 240, see also annotated figure below) at the top (see Fig. 2A, 2B and paragraph [0050]);
a retaining assembly (impactor base 228 comprising the sampling head 220, Fig. 2A) configured to retain a sampling device (impact surface 230, Fig. 2A, see paragraph [0050]), the retaining assembly (228) located at the top of the housing body (see Fig. 2A and annotated figure below) about the opening (arrow at Fig. 2A entering the blower 240, see also annotated figure below);
a plenum (space/chamber formed inside blower 240, Fig. 2A) having a top end (top end adjacent to 228, Fig. 2A) and a bottom end (bottom end being opposite the top end and generally toward the bottom side of blower 240), and a longitudinal length defined there between (longitudinal length being the vertical length of blower 240 between the top and bottom ends as seen at Fig. 2A), the top end being coupled to the housing body about the opening such that the plenum is in flow communication with the opening (see Fig. 2A showing such an arrangement, see also annotated figure below), and the plenum being configured for receiving air flow generally from the top end to the bottom end generally along the longitudinal length (air flows inside the interior of blower 240 and hence will flow from top towards the bottom as also shown at the arrow 201, Fig. 2A, see also annotated figure below);
a flow connection (245, Fig. 2A) coupled to the plenum (see connection of flow path 245 to the plenum).
Even though Bates shows flow connection (245 coupled to the plenum, Bates does not explicitly teach the flow connections being connected to the bottom end of the plenum. However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to couple the flow connection to the bottom end of the plenum, since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70 (CCPA 1950).
Bates further teaches a mass flow meter (flow sensor 260, Fig. 2A, see paragraphs [0027], [0046]) having an input (input being top region of 260 where the flow enters the flow sensor 260, see also annotated figure below) and an output (output being bottom region of 260 where the flow exists the flow sensor 260, see annotated figure below), the input (top of 260) being coupled to the flow connection (input of the flowmeter is coupled to the flow connection through the filter assembly and is in flow communication as seen at Fig. 2A), the mass flow meter (260) being in flow communication with the plenum via the flow connection (see flow communication as shown by the arrows in Fig. 2A); and
a blower (blower 240, Fig. 2A) in association with the plenum (240) and configured to draw air past the sampling device (see air flow 201, Fig. 2A), through the opening, and through the plenum, such that a measuring portion of the air (i.e. air that flows into the plenum and being directed to the flow connection 245) in the plenum flows through the flow connection and through the mass flow meter (see paragraphs [0050] and [0051]), wherein the mass flow meter is configured to measure the flow rate of the measuring portion of the air drawn through the flow connection.
Even though Bates at paragraph [0050] describes flow sensor 260 of Fig. 2A as being a differential pressure sensor with a flow restriction, Bates does not teach a mass flow meter that is configured to measure the flow rate of the measuring portion of the air drawn through the flow connection in the same embodiment of Fig. 2A.
Bates however describes at different embodiments, the use of a mass flow sensor (see paragraphs [0017], [0027] and [0046] describing in one embodiment a flow rate refers to a mass flow rate) that is configured to measure the flow rate of the measuring portion of the air drawn through the flow connection (see paragraphs [0017], [0027] and [0046] describing the flow sensor as being a mass flow meter and which is used to determine flow rate of the fluid).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use mass flow sensor of Bates in the embodiment of Fig. 2A of Bates in order to determine the mass of the fluid flowing past a specified point or through a specified area as well as flow rate of the fluid. Such a modification allows for high accuracy and reliable system to provide measurements of particle concentrations in the ambient environment.
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Regarding Claim 2, Bates teaches the measuring portion of the air (i.e. air that flows into the plenum and being directed to the flow connection 245) is proportional to the air flowing through the plenum (air flowing into the blower 240 is directed towards the flow connection 245 hence being proportional to the air flowing through the plenum).
Regarding Claim 4, Bates as modified above teaches the flow connection (245) has a receiving end (connected to the blower 240) and an exit end (connected to the filter and/or flow sensor as described at paragraph [0050], see Fig. 2A), the receiving end is coupled to the bottom end of the plenum (see modification in claim 1 above) and the exit end is coupled to the input of the mass flow meter (see Fig. 2A, see paragraph [0050] describing alternatives of the placement of flow sensor 260 as one being connected to an upstream side of the filter element 255, hence when being placed at the upstream side of 255, the exit end of the flow connection 245 is coupled to the input of the flow meter 260).
Regarding Claim 6, Bates as modified in claims above teaches the claimed invention except for the receiving and exit ends are generally aligned with the bottom end of the plenum with respect to an axis transverse to the longitudinal length of the plenum. However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to incorporate the arrangement of the receiving and exit ends aligned with respect to an axis transverse to the longitudinal length of the plenum, since it has been held that rearranging parts of an invention involves only routine skill in the art. In re Japikse, 86 USPQ 70 (CCPA 1950).
Regarding Claim 7, Bates as modified in claims above teaches the exit end (exit end of 245 that feeds the filter 255 shown at the bottom of 240, at Fig. 2A) is mounted to the bottom end of the plenum (240, Fig. 2A).
Regarding Claim 8, Bates teaches a portion of the flow connection (245) extends below the bottom end of the plenum (a portion towards the bottom end and consider a line that goes through the flow connection 245 in parallel to the longitudinal length of the plenum) in a direction generally parallel to the longitudinal length of the plenum.
Regarding Claim 9, Bates teaches the mass flow meter (260) is near or adjacent to the plenum (240, see Fig. 2A).
Regarding Claim 10, Bates teaches the flow connection (245) has generally a U-shape (see bent flow connection 245 and having a u-shape when viewed horizontally).
Regarding Claim 11, Bates teaches the longitudinal length of the plenum (vertical length of the plenum 240) is generally parallel to a longitudinal axis of the air sampling device (longitudinal axis of the sampling device is also considered as the vertical length of the device and hence both axis are parallel to each other).
Regarding Claim 12, Bates teaches the blower (240) is located inside of the plenum (240).
Regarding Claim 13, Bates teaches a processing device (270, Fig. 2A) connected to (controller is in communication with both flow meter and blower, see paragraph [0051]) both the mass flow meter (260) and the blower (240), the processing device (270) being adapted to receive a detected flow rate from the mass flow meter and controlling a speed of the blower in response to the detected flow rate (see paragraph [0051] describing using the control system to determine the volumetric flow rate and based on the volumetric flow rate, a signal is provided to blower 240 to increase or decrease the flow rate generated by the blower 240).
Regarding Claim 14, Bates teaches the processing device (270) increases the speed of the blower if the detected flow rate is lower than a desired flow rate (see paragraph [0051] describing if such determined volumetric flow rate is smaller than a volumetric flow rate set point of the system, a signal is provided to blower 240 to increase the flow rate generated by blower 240), or decreases the speed of the blower if the detected flow rate is higher than a desired flow rate (see paragraph [0051] describing if such determined volumetric flow rate is larger than a volumetric flow rate set point of the system, a signal is provided to blower 240 to decrease the flow rate generated by blower 240).
Regarding Claim 16, Bates teaches a method for sampling air (see abstract, see also system 200, Fig. 2A), comprising to step of:
drawing air (drawing air through the blower 240, Fig. 2A, see paragraph [0050]) across a media plate (impact surface 230, Fig. 2A) located at an outside of a housing body (see arrangement at Fig. 2A and see annotated figure above) and through a plenum (240) inside of the housing body (see Fig. 2A, see paragraph [0050]);
diverting (flow path 245, Fig. 2A diverts the air in the plenum to filter 255 and flowmeter 260, Fig. 2A) a measuring portion of the air in the plenum (240) to a mass flow meter (260) wherein the measuring portion of the air is proportional to the air in the plenum (air that is being directed into the plenum (arrow at the opening of the plenum) is proportional to the air flowing out of the plenum (i.e. arrow showing into 245) and diverted to the flow path 245, see Fig. 2A); and
measuring at the mass flow meter (flow sensor 260, a detected flow rate of the measuring portion of the air.
Even though Bates at paragraph [0050] describes flow sensor 260 of Fig. 2A as being a differential pressure sensor with a flow restriction, Bates does not teach a mass flow meter and measuring at the mass flow meter, a detected flow rate of the measuring portion of the air in the same embodiment of Fig. 2A.
Bates however describes at different embodiments, the use of a mass flow sensor (see paragraphs [0017], [0027] and [0046] describing in one embodiment a flow rate refers to a mass flow rate) and measuring at the mass flow meter, a detected flow rate of the measuring portion of the air (see paragraphs [0017], [0027] and [0046] describing the flow sensor as being a mass flow meter and which is used to determine flow rate of the fluid).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use mass flow sensor of Bates in the embodiment of Fig. 2A of Bates in order to determine the mass of the fluid flowing past a specified point or through a specified area as well as flow rate of the fluid. Such a modification allows for high accuracy and reliable system to provide measurements of particle concentrations in the ambient environment.
Regarding Claim 20, Bates teaches a flow connection (245) coupled to the plenum (240) diverts the measuring portion of the air to the mass flow meter (see arrangement at Fig. 2A where the flow is diverted from the plenum 240 to the flow sensor 260 through the flow path 245).
Claims 3 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Bates in view of U.S. Patent Application Publication No. 2018/0126650 A1 to Murphree et al. (hereinafter “Murphree”).
Regarding Claim 3, Bates teaches the claimed invention except for wherein total flow through the plenum is ratiometically related to the flow through the measuring portion based on the ratio of the cross-sectional area of the flow connection and the plenum end.
Murphree, in the field of controlling and treating gas borne debris in an atmosphere, teaches total flow through the plenum is ratiometically related to the flow through the measuring portion based on the ratio of the cross-sectional area of the flow connection and the plenum end (see paragraph [0334] describing “a ratio of an area of a cross-section of the passage (e.g., plenum) to an area of a cross-section of the outlet is at least a prescribed...”, see also Fig. 24).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to incorporate the ratiometric relation of the plenum to the outlet (i.e. flow connection) of Murphree into Bates in order to provide a flow of gas with high enough pressure and/or velocity to purge the volume.
Regarding Claim 22, Bates teaches wherein the diverting is via a flow connection (flow path 245, Fig. 2A).
Bates does not explicitly teach the measuring is based on a ratio of a cross-sectional area between an opening of the plenum and the flow connection.
Murphree teaches the measuring is based on a ratio of a cross-sectional area between an opening of the plenum and the flow connection (see paragraph [0334] describing “a ratio of an area of a cross-section of the passage (e.g., plenum) to an area of a cross-section of the outlet is at least a prescribed...”, see also Fig. 24).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to incorporate the ratiometric relation of the plenum to the outlet (i.e. flow connection) of Murphree into Bates in order to provide a flow of gas with high enough pressure and/or velocity to purge the volume.
Claims 5 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Bates in view of U.S. Patent Application Publication No. 2016/0002700 A1 to Ketcham et al. (hereinafter “Ketcham”).
Regarding Claim 5, Bates teaches the claimed invention except for said housing body including an exhaust for the air and both the receiving and exit ends of the flow connection being remote from the exhaust.
Ketcham, in the same field of endeavor, teaches housing body (Fig. 2, 4A - 4C) including an exhaust for the air (“Collector Exhaust”, Fig. 2, “Exhaust Grill.”, Fig. 4A, “Exhaust port" Fig. 4B, 4C); and both the receiving (connection of blower exhaust 248 at the blower 240 shown on top portion at Fig. 3A) and exit ends (exit end being the end that connects 248 to the filter inlet 265, Fig. 3A) of the flow connection (248, Fig. 3A) are remote from the exhaust (see exhaust at Fig. 3B, 4A - 4C, see paragraphs [0046] – [0049] describing a particle sampling device of the invention having a fluid exhaust system).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to incorporate the exhaust system of Ketcham into Bates in order to control the release of exhaust into the environment as well as eliminate or minimize disruption to the room’s air flow. The modification further allows the air being exhausted from the instrument to not be recirculated onto the customer finished product eliminating or reducing risk of contamination to the area.
Regarding Claim 21, Bates teaches the claimed invention except for exhausting the air through an exhaust in the housing body remote from the flow connection.
Ketcham teaches exhausting the air through an exhaust (“Collector Exhaust”, Fig. 2, “Exhaust Grill.”, Fig. 4A, “Exhaust port" Fig. 4B, 4C) in the housing body (Fig. 2, 4A - 4C) remote from the flow connection (248, Fig. 3A, see exhaust at Fig. 3B, 4A - 4C, see paragraphs [0046] – [0049] describing a particle sampling device of the invention having a fluid exhaust system at the bottom end which is also remote from the flow connection 248).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to incorporate the exhaust system of Ketcham into Bates in order to control the release of exhaust into the environment as well as eliminate or minimize disruption to the room’s air flow. The modification further allows the air being exhausted from the instrument to not be recirculated onto the customer finished product eliminating or reducing risk of contamination to the area.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Bates in view of U.S. Patent Application Publication No. 2011/0252897 A1 to Swenson et al. (hereinafter “Swenson”).
Regarding Claim 15, Bates teaches the claimed invention except for the processing device (270) being in communication with a remote network.
Swenson, in the field of impact air sampling devices, teaches the processing device (1, Fig. 1 – 10 of Swenson) in communication with a remote network (see paragraph [0014] describing the device allowing communications such as wireless and radio frequency remote control hence meeting the claimed invention).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to incorporate the processing device with a remote network communication capability of Swenson into Bates in order to enhance the functionality and capabilities of the sampling devices and increase their desirability in the industry, and additionally lend itself to the operation of other types of remote sampling devices due to its capabilities.
Claims 17 – 19 are rejected under 35 U.S.C. 103 as being unpatentable over Bates in view of U.S. Patent Application Publication No. 2013/0105566 A1 to Calio et al. (hereinafter “Calio”).
Regarding Claim 17, Bates teaches the claimed invention except for the step of comparing the detected flow rate of the measuring portion of the air to a desired flow rate.
Calio, in the field of air sample tracking system and method, teaches comparing the detected flow rate of the measuring portion of the air to a desired flow rate (see paragraph [0067] describing air flow switch which measures the air flow rate through the vacuum air line and compares it to the set flow rate (i.e. desired flow rate)).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to incorporate the step of comparing the measured flow rate to a set flow rate of Calio into Bates in order to monitor the flow rate that is measured in the air sampling device and provide alert when the measured flow rate is out of the specification range hence improving accuracy, efficiency and reliability of the system.
Regarding Claim 18, Bates in view of Calio as modified above teaches controlling the speed of the flow of the air through the plenum (“vacuum air-line 215a of Calio can be considered as the plenum and/or 240 of Bates as modified in claim 17 above) based on the comparison between the detected flow rate and the desired flow rate (see paragraph [0067] of Calio and modification of claim 17 above).
Regarding Claim 19, Bates teaches increasing the speed of the flow of the air of the detected flow rate if lower than the desired flow rate (see paragraph [0051] describing if such determined volumetric flow rate is smaller than a volumetric flow rate set point of the system, a signal is provided to blower 240 to increase the flow rate generated by blower 240) or decreasing the speed of the flow of air of the detected flow rate if higher than the desired flow rate (see paragraph [0051] describing if such determined volumetric flow rate is larger than a volumetric flow rate set point of the system, a signal is provided to blower 240 to decrease the flow rate generated by blower 240).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892 form accompanying this office action which includes the following relevant prior arts:
Spurrell (U.S. 2003/0005761 A1) teaches an air sampler device and method for collecting airborne pathogens and psychrometric data for room or remote air samples wherein the sample volume is electronically controlled. Particulates in the air are caused to impact the surface of the growth/inhibitor media contained in the pathogen dish thereby depositing pathogenic microorganisms in the media.
Davis (U.S. 4,560,395) teaches compact blower and filter assemblies for use in clean air environments.
Van Netten (U.S. 6,945,127 B2) teaches personal and environmental air sampling apparatus including a body with a filter therein and an air moving device such as a fan mounted therein for moving air through the filter.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARRIT EYASSU whose telephone number is (571)270-1403. The examiner can normally be reached M - F: 9:00AM - 6:00PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Laura E. Martin can be reached at (571) 272-2160. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/MARRIT EYASSU/Primary Examiner, Art Unit 2855
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