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 .
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 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,279,401. Although the claims at issue are not identical, they are not patentably distinct from each other because each of the limitations of the present claims is anticipated by the claims of the issued patent.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-5, 7-8, 10-13, and 15-20 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kopko (US 2015/0285539).
As to claim 1, Kopko discloses a system capable of use as a datacenter cooling system, comprising:
one or more flow controllers 70/76/172/178 capable of distributing equal ratios of a liquid phase of refrigerant to a vapor phase of refrigerant to cold plates along a plurality of parallel refrigerant paths (paragraphs 83-84).
As to claim 2, Kopko discloses a controller 32 having at least one processor to distribute the equal ratios (paragraph 34).
As to claims 3-5, Kopko discloses a controller 32 with a processor that determines cooling requirement using a sensed temperature (paragraph 32), and thus is capable of determining cooling requirement based on a temperature associated with computing devices as claimed.
As to claim 7, Kopko discloses determining a cooling load using temperature sensors connected to a controller processor (paragraphs 32 and 34) and thus is capable of performing in the recited manner.
As to claim 8, Kopko provides an equal percentage of liquid to vapor (paragraph 84).
As to claim 10, Kopko discloses an accumulator 160 to store liquid refrigerant and provide a steady output to the refrigerant flow paths.
As to claims 11-13 and 15, as discussed in the rejections above Kopko discloses a processor configured in the manner as claimed.
As to claims 16-20, if a prior art device, in its normal and usual operation, would nec-essarily perform the method claimed then the method claimed will be considered to be anticipated by the prior art device. When the prior art device is the same as a device described in the specification for carrying out the claimed method it can be assumed the device will inherently perform the claimed process. Thus the method as claimed would necessarily result from the normal operation of the apparatus of Kopko.
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.
Claims 6 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Kopko as applied above.
As to claims 6 and 14, Kopko does not explicitly teach one or more neural networks as claimed. However, Official Notice is taken that general use of neural networks for performing refrigeration calculations is a common and typical control feature that would have been obvious to use in conjunction with the system of Kopko for the purpose of closely identifying an overall cooling requirement.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Kopko as applied in the rejections above, and further in view of Justak (US 7,905,099)
As to claim 9, Kopko does not explicitly teach use of an optical sensor as claimed. However, Justak teaches that it is known to use an optical sensor to detect vapor/liquid boundaries (col. 3, line 50 – col. 4, line 5). As such it would have been obvious to a person having ordinary skill in the art, at the time of the invention, to use an optical sensor as claimed and taught by Justak to determine the equal liquid amount in order to ensure the proper level of refrigeration can be achieved.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHAN BRADFORD whose telephone number is (571)270-5199. The examiner can normally be reached Monday-Friday 8:00 - 4:00 ET.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Jerry-Daryl Fletcher can be reached at (571)270-5054. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JONATHAN BRADFORD/ Primary Examiner, Art Unit 3763
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