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 .
Drawings
The drawings are objected to because the drawings include photographs, which are both not the only practicable medium for illustration of the invention, but are also of insufficient clarity to actually illustrate the invention. For example, it is unclear what Figures 2-3 illustrate.
Corrected drawing sheets in compliance with 37 CFR 1.121 (d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121 (d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
The applicant is directed to consult the Manual of Patent Examining Procedure, section 608.02, and more specifically, 37 CFR 1.84, Standards for Drawings, section (b) (1), as quoted below:
(b) Photographs
(1) Black and white, Photographs, including photocopies of photographs, are not ordinarily permitted in utility and design patent applications. The Office will accept photographs in utility and design patent applications, however, if photographs are the only practicable medium for illustrating the claimed invention. For example, photographs or photomicrographs of: electrophoresis gels, blots (e.g., immunological, western, Southern, and northern), auto-radiographs, cell cultures (stained and unstained), histological tissue cross sections (stained and unstained), animals, plants, in vivo imaging, thin layer chromatography plates, crystalline structures, and, in a design patent application, ornamental effects, are acceptable. If the subject matter of the application admits of illustration by a drawing, the examiner may require a drawing in place of the photograph. The photographs must be of sufficient quality so that all details in the photographs are reproducible in the printed patent.
In this case, the examiner is requiring illustration by drawings in lieu of photographs or photograph/drawing combinations.
Claim Objections
Claim 8 is objected to because of the following informalities:
Regarding claim 8, the claim is incorrectly recited as a dependent of claim 14. For examination purposes, claim 8 will be interpreted as being a dependent of claim 7.
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are:
“mechanical refrigeration system” in claim 1.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
A review of the specification shows that the following appears to be the corresponding structure described in the specification for the 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph limitation: a “mechanical refrigeration system” corresponds to a system “that works to compress the refrigerant gas, then cool the gas and allow it to condense into a liquid refrigerant, then allow the liquid refrigerant to expand as it enters the plates, thereby converting back to a gas refrigerant and absorbing heat in the process” as described in paragraph [0008] of the application.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 1-15 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 claim 1, the claim recites “a system for freezing a cold pack comprising: … a mechanical refrigeration system, wherein the system is configured to” which renders the claim indefinite. As recited, the claim is confusing because it is not entirely clear if the disclosed “the system” is referencing the previously disclosed “system for freezing a cold pack” or the previously disclosed “mechanical refrigeration system”. More clarity is requested.
Claim 1 recites the limitation “a cold pack” in lines 3-4. There is insufficient antecedent basis for this limitation in the claim.
For examination purposes, the phrase “placing a cold pack between two or more plates” will be interpreted as -- placing the cold pack between two or more plates --
Claim 4 contains the trademark/trade name “Freon”. Where a trademark or trade name is used in a claim as a limitation to identify or describe a particular material or product, the claim does not comply with the requirements of 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. See Ex parte Simpson, 218 USPQ 1020 (Bd. App. 1982). The claim scope is uncertain since the trademark or trade name cannot be used properly to identify any particular material or product. A trademark or trade name is used to identify a source of goods, and not the goods themselves. Thus, a trademark or trade name does not identify or describe the goods associated with the trademark or trade name. In the present case, the trademark/trade name is used to identify/describe the type of refrigerant used and, accordingly, the identification/description is indefinite.
Claims 4-6 and 8 recite the limitation “the group” in line 2. There is insufficient antecedent basis for this limitation in the claims.
For examination purposes, the phrase “the group” will be interpreted as -- a group --
Claim 12 recites the limitation “a cold pack” in line 2. There is insufficient antecedent basis for this limitation in the claim.
For examination purposes, the phrase “placing a cold pack between two or more plates” will be interpreted as -- placing the cold pack between two or more plates --
Claims 2-3, 7, 9-11, and 13-15 are also rejected due to dependency.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (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 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 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 1-3, 5-6, 9, and 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over Brobeck (US 20170071784 A1) in view of Heschel et al. (US 6393860 B1, herein after referred to as Heschel).
Regarding claim 1, Brobeck teaches a system (the system illustrated in Fig. 1) for freezing a cold pack (gel pack 108 Fig. 1) comprising: two plates (conducting plate 105 and tray 107 Fig. 1), a low-temperature refrigerant (corresponds to the refrigerant that would flow in refrigerant line 103a Fig. 1 and paragraph [0021]); and a mechanical refrigeration system (the refrigerant system disclosed in paragraph [0021] and illustrated in Fig. 1), wherein the system is configured to receive the cold pack between two of the plates and freeze the cold pack (Fig. 1 and paragraph [0028]).
Brobeck teaches the invention as described above but fails to explicitly teach “the two plates containing the low-temperature refrigerant; wherein the system is configured to simultaneously freeze the cold pack on two faces of the cold pack”.
However, Heschel teaches two plates (plates 13 and 14 Figs. 4-5 correspond to the two plates of Brobeck) containing a low-temperature refrigerant (Fig. 4 where the disclosed “liquid nitrogen” in Col. 5 lines 45-50 corresponds to the low-temperature refrigerant of Brobeck); wherein a system (device 11 Figs. 4-5 corresponds to the system of Brobeck) is configured to simultaneously freeze a cold pack (cooling bag 12 Figs. 4-5 corresponds to the cold pack of Brobeck) on two faces of the cold pack (Fig. 4).
Therefore, it would have been obvious to a person skilled in the art before the effectively filed date to modify the apparatus of Brobeck to include “the two plates containing the low-temperature refrigerant; wherein the system is configured to simultaneously freeze the cold pack on two faces of the cold pack” in view of the teachings of Heschel to increase the amount of heat transfer by providing the refrigerant to both plates.
Regarding claim 2, the combined teachings teach the invention as described above but fails to explicitly teach “wherein the simultaneous freezing of the cold pack produces at least two major flat surfaces and an ice grain boundary along a bisecting horizontal plane”.
However, Applicant discloses in paragraph “[0033]” of the specification that “Freeze gradients from top plate 30 and bottom plate 30 may meet towards a middle of cold pack 10 along a horizontal plane and may create two distinct layers (210, 220) in cold pack 10 when cold pack 10 is fully frozen. The two layers may be separated by an ice grain boundary 230 which may be along a bisecting horizontal line and may be visible when examining a cross section of frozen cold pack 10”. Therefore, given the freezing method disclosed in Heschel which consist of simultaneously freezing a cold pack on two opposite faces of the cold pack while compressed between two plates is substantially similar to that in instant claim 2, it is the Examiner's position that the method taught by Heschel would inherently have the instantly claimed function of “wherein the simultaneous freezing of the cold pack produces at least two major flat surfaces and an ice grain boundary along a bisecting horizontal plane”. Since PTO cannot conduct experiments the proof of burden is shifted to the Applicants to establish a nonobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977).
Regarding claim 3, the combined teachings teach further comprising a system (sealing actuator 111 Fig. 1 of Brobeck) to press the plates together (Figs. 1-2 of Brobeck).
Regarding claim 5, the combined teachings teach wherein the plates are made from a material (paragraphs [0004] and [0021] of Brobeck) selected from a group (paragraphs [0004] and [0021] of Brobeck) consisting of aluminum (paragraphs [0004] and [0021] of Brobeck), stainless steel (paragraph [0004] of Brobeck), or copper (paragraphs [0004] and [0021] of Brobeck).
Regarding claim 6, the combined teachings teach wherein the system to press the plates together is selected from a group (Col. 2 lines 57-64 of Heschel) consisting of a hydraulic system (Col. 2 lines 57-64 of Heschel), and a pneumatic system (Col. 2 lines 57-64 of Heschel).
Regarding claim 9, the combined teachings teach wherein an evaporator temperature setting (corresponds to the temperature of the plates as described in Col. 4 lines 27-33 of Heschel) for the refrigeration system is less than 0°C (disclosed “solidification temperature of the goods” in Col. 4 lines 27-33 of Heschel where a person skilled in the art would recognize that the freezing temperature of blood is below 0°C).
Regarding claim 12, Brobeck teaches a method (the method described in paragraph [0028]) for freezing a cold pack (gel pack 108 Fig. 1), the method comprising: placing the cold pack between two plates (conducting plate 105 and tray 107 Fig. 1), a low-temperature refrigerant (corresponds to the refrigerant that would flow in refrigerant line 103a Fig. 1 and paragraph [0021]); and freezing the cold pack (paragraph [0028]).
Brobeck teaches the invention as described above but fails to explicitly teach “wherein the plates contain the low-temperature refrigerant; and simultaneously freezing the cold pack on two faces by the two plates”.
However, Heschel teaches wherein plates (plates 13 and 14 Figs. 4-5 correspond to the two plates of Brobeck) contain a low-temperature refrigerant (Fig. 4 where the disclosed “liquid nitrogen” in Col. 5 lines 45-50 corresponds to the low-temperature refrigerant of Brobeck); and simultaneously freezing a cold pack (cooling bag 12 Figs. 4-5 corresponds to the cold pack of Brobeck) on two faces (Fig. 4) by the two plates (Fig. 4).
Therefore, it would have been obvious to a person skilled in the art before the effectively filed date to modify the method of Brobeck to include “wherein the plates contain the low-temperature refrigerant; and simultaneously freezing the cold pack on two faces by the two plates” in view of the teachings of Heschel to increase the amount of heat transfer by providing the refrigerant to both plates.
Regarding claim 13, the combined teachings teach the invention as described above but fails to explicitly teach “wherein the simultaneous freezing of the cold pack produces at least two major flat surfaces and an ice grain boundary along a bisecting horizontal plane”.
However, Applicant discloses in paragraph “[0033]” of the specification that “Freeze gradients from top plate 30 and bottom plate 30 may meet towards a middle of cold pack 10 along a horizontal plane and may create two distinct layers (210, 220) in cold pack 10 when cold pack 10 is fully frozen. The two layers may be separated by an ice grain boundary 230 which may be along a bisecting horizontal line and may be visible when examining a cross section of frozen cold pack 10”. Therefore, given the freezing method disclosed in Heschel which consist of simultaneously freezing a cold pack on two opposite faces of the cold pack while compressed between two plates is substantially similar to that in instant claim 13, it is the Examiner's position that the method taught by Heschel would inherently have the instantly claimed function of “wherein the simultaneous freezing of the cold pack produces at least two major flat surfaces and an ice grain boundary along a bisecting horizontal plane”. Since PTO cannot conduct experiments the proof of burden is shifted to the Applicants to establish a nonobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977).
Regarding claim 14, the combined teachings teach further comprising pressing the two plates together around the cold pack (paragraph [0028] and Fig. 1 of Brobeck).
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Brobeck and Heschel as applied to claim 1 above, and further in view of Bae et al. (US 20060070399 A1, herein after referred to as Bae).
Regarding claim 4, the combined teachings teach the invention as described above but fail to explicitly teach “wherein the low temperature refrigerant is selected from a group consisting of ammonia, carbon dioxide, freon, chlorofluorocarbons, and combinations thereof”.
However, Bae teaches wherein a low temperature refrigerant (the disclosed “refrigerants” in paragraph [0045] correspond to the low temperature refrigerant of Brobeck) is selected from a group (the disclosed “list” in paragraph [0045]) consisting of ammonia (paragraph [0058]), carbon dioxide (paragraph [0057]), and chlorofluorocarbons (paragraph [0050]) to provide a refrigerant with both a liquid state and a vapor state (paragraph [0044]).
Therefore, it would have been obvious to a person skilled in the art before the effectively filed date to modify the apparatus of the combined teachings to include “wherein the low temperature refrigerant is selected from a group consisting of ammonia, carbon dioxide, freon, chlorofluorocarbons, and combinations thereof” in view of the teachings of Bae to provide a refrigerant with both a liquid state and a vapor state.
Claim 7-8 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Brobeck and Heschel as applied to claims 1 and 12 above, and further in view of Han et al. (CN104251597A, herein after referred to as Han).
Regarding claim 7, the combined teachings teach the invention as described above but fail to explicitly teach “wherein a thermally conductive tray is used to convey the cold pack onto and off the plates”.
However, Han teaches wherein a thermally conductive tray (paragraph [20]) is used to convey a cold pack (plasma bag 7 Fig. 4 corresponds to the cold pack of Brobeck) onto and off plates (paragraph [20] and Fig. 4 where upper cold plate 3 and lower cold plate 4 correspond to the plates of Brobeck) to facilitate the placement of the cold pack (paragraph [20]).
Therefore, it would have been obvious to a person skilled in the art before the effectively filed date to modify the apparatus of the combined teachings to include “wherein a thermally conductive tray is used to convey the cold pack onto and off the plates” in view of the teachings of Han to facilitate the placement of the cold pack.
Regarding claim 8, the combined teachings teach wherein the thermally conductive tray is made from a material (paragraph [20] of Han) selected from a group (paragraph [20] of Han) consisting of aluminum (paragraph [20] of Han).
Regarding claim 15, the combined teachings teach the invention as described above but fail to explicitly teach “further comprising placing the cold pack within a tray prior to placing the cold pack between the two or more plates”.
However, Han teaches further comprising placing a cold pack (paragraph [20] and Fig. 4 where plasma bag 7 corresponds to the cold pack of Brobeck) within a tray (paragraph [20]) prior to placing the cold pack between two plates (paragraph [20] and Fig. 4 where upper cold plate 3 and lower cold plate 4 correspond to the plates of Brobeck) to facilitate the placement of the cold pack (paragraph [20]).
Therefore, it would have been obvious to a person skilled in the art before the effectively filed date to modify the method of the combined teachings to include “further comprising placing the cold pack within a tray prior to placing the cold pack between the two or more plates” in view of the teachings of Han to facilitate the placement of the cold pack.
Claims 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over Brobeck and Heschel as applied to claim 1 above, and further in view of Yonghong (CN101398245A).
Regarding claim 10, the combined teachings teach the invention as described above but fail to explicitly teach “wherein the cold pack is a water-based cold pack, comprising > 50% water”.
However, Yonghong teaches wherein a cold pack (the disclosed “shapeable ice core” in paragraph [05] corresponds to the cold pack of Brobeck) is a water-based cold pack (paragraph [05]), comprising > 50% water (paragraph [05]) to extend the use of the ice core (paragraph [2]).
Therefore, it would have been obvious to a person skilled in the art before the effectively filed date to modify the apparatus of the combined teachings to include “wherein the cold pack is a water-based cold pack, comprising > 50% water” in view of the teachings of Yonghong to extend the use of the ice core.
Regarding claim 11, the combined teachings teach the invention as described above but fail to explicitly teach “wherein the cold pack is encapsulated in a flexible plastic material or flexible paper material”.
However, Yonghong teaches wherein a cold pack (the disclosed “shapeable ice core” in paragraph [05] corresponds to the cold pack of Brobeck) is encapsulated in a flexible plastic material (paragraph [05]) to extend the use of the ice core (paragraph [2]).
Therefore, it would have been obvious to a person skilled in the art before the effectively filed date to modify the apparatus of the combined teachings to include “wherein the cold pack is encapsulated in a flexible plastic material or flexible paper material” in view of the teachings of Yonghong to extend the use of the ice core.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SAMBA NMN GAYE whose telephone number is (571)272-8809. The examiner can normally be reached Monday-Thursday 4:30AM to 2:30PM.
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/SAMBA NMN GAYE/Examiner, Art Unit 3763
/ELIZABETH J MARTIN/Primary Examiner, Art Unit 3763
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