`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`UNITED STATES DEPARTMENT OF COMMERCE
`United States Patent and Trademark Office
`Address: COMIVHSSIONER FOR PATENTS
`PO. Box 1450
`Alexandria1 Virginia 22313-1450
`www.uspto.gov
`
`
`
`
`
`12/530,555
`
`09/09/2009
`
`Hiroki Busujima
`
`090224
`
`1966
`
`23850
`7590
`03/25/2015
`KRATZ, QUINTOS & HANSON, LLP —
`1420 K Street, N.W.
`HURST’ JONATHAN M
`4th Floor
`
`WASHINGTON, DC 20005
`
`1775
`
`MAIL DATE
`
`03/25/2015
`
`PAPER NUMBER
`
`DELIVERY MODE
`
`PAPER
`
`Please find below and/or attached an Office communication concerning this application or proceeding.
`
`The time period for reply, if any, is set in the attached communication.
`
`PTOL—90A (Rev. 04/07)
`
`

`

`
`
`Applicant(s)
`Application No.
` 12/530,555 BUSUJIMA ET AL.
`
`Examiner
`Art Unit
`AIA (First Inventorto File)
`Office Action Summary
`
`1775JONATHAN HURST first“
`
`-- The MAILING DA TE of this communication appears on the cover sheet with the correspondence address --
`Period for Reply
`
`
`
`A SHORTENED STATUTORY PERIOD FOR REPLY IS SET TO EXPIRE 3 MONTH(S) OR THIRTY (30) DAYS,
`WHICHEVER IS LONGER, FROM THE MAILING DATE OF THIS COMMUNICATION.
`Extensions of time may be available under the provisions of 37 CFR 1.136(a).
`In no event however may a reply be timely filed
`after SIX () MONTHS from the mailing date of this communication.
`If NO period for reply is specified above, the maximum statutory period will apply and will expire SIX (6) MONTHS from the mailing date of this communication.
`Failure to reply within the set or extended period for reply will, by statute, cause the application to become ABANDONED (35 U.S.C. § 133).
`Any reply received by the Office later than three months after the mailing date of this communication, even if timely filed, may reduce any
`earned patent term adjustment. See 37 CFR 1.704(b).
`
`-
`-
`
`Status
`
`1)IXI Responsive to communication(s) filed on 8 December 2014.
`[I A declaration(s)/affidavit(s) under 37 CFR 1.130(b) was/were filed on
`
`2b)|:| This action is non-final.
`a)IXl This action is FINAL.
`3)I:I An election was made by the applicant in response to a restriction requirement set forth during the interview on
`
`
`; the restriction requirement and election have been incorporated into this action.
`
`4)|:I Since this application is in condition for allowance except for formal matters, prosecution as to the merits is
`closed in accordance with the practice under EX parte Quay/e, 1935 CD. 11, 453 O.G. 213.
`
`Disposition of Claims
`5)|XI Claim(s) L8is/are pending in the application.
`5a) Of the above claim(s)
`is/are withdrawn from consideration.
`6)|:l Claim(s) _ is/are allowed.
`7)IZ| Claim(s)_1-8 is/are rejected.
`8)I:I Claim(s) _ is/are objected to.
`
`9)|:l Claim((s)
`are subject to restriction and/or election requirement.
`* If any claims have been determined allowable, you may be eligible to benefit from the Patent Prosecution Highway program at a
`
`participating intellectual property office for the corresponding application. For more information, please see
`htt
`://\WIAN.usoto. ov/ atents/init events"
`
`
`
`h/index.‘s , or send an inquiry to PF"I-Ifeedback{<‘buspto.qov.
`
`Application Papers
`
`10)I:I The specification is objected to by the Examiner.
`11)IXI The drawing(s) filed on 09 Sthember 2009 is/are: a)IXI accepted or b)I:I objected to by the Examiner.
`Applicant may not request that any objection to the drawing(s) be held in abeyance. See 37 CFR 1.85(a).
`
`Replacement drawing sheet(s) including the correction is required if the drawing(s) is objected to. See 37 CFR 1.121 (d).
`
`Priority under 35 U.S.C. § 119
`12)IZI Acknowledgment is made of a claim for foreign priority under 35 U.S.C. §119(a)-(d) or (f).
`Certified copies:
`
`b)I:I Some * c)I:I None of the:
`a)le AII
`1.I:I Certified copies of the priority documents have been received.
`2.I:I Certified copies of the priority documents have been received in Application No.
`3le Copies of the certified copies of the priority documents have been received in this National Stage
`
`application from the International Bureau (PCT Rule 17.2(a)).
`* See the attached detailed Office action for a list of the certified copies not received.
`
`Interim copies:
`
`a)|:l AII
`
`b)I:I Some
`
`c)I:I None of the:
`
`Interim copies of the priority documents have been received.
`
`Attachment(s)
`
`1) E Notice of References Cited (PTO-892)
`
`3) I] Interview Summary (PTO-413)
`
`Paper NOISIIMa” Date —
`PTO/SB/08
`t
`St t
`I
`D'
`t'
`f
`2 I:l I
`)
`4) I:I Other:
`a emen (s)(
`Isc osure
`n orma Ion
`)
`Paper No(s)/Mai| Date
`US. Patent and Trademark Office
`PTOL-326 (Rev. 03-13)
`
`Part of Paper No./Mai| Date 20150320
`
`Office Action Summary
`
`

`

`Application/Control Number: 12/530,555
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`Page 2
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`Art Unit: 1775
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`1.
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`The present application is being examined under the pre-AIA first to invent
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`provisions.
`
`DETAILED ACTION
`
`Claim Rejections - 35 USC § 103
`
`2.
`
`The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis
`
`for all obviousness rejections set forth in this Office action:
`
`(a) A patent may not be obtained though the invention is not identically disclosed or described
`as set forth in section 102 of this title, if the differences between the subject matter sought to
`be patented and the prior art are such that the subject matter as a whole would have been
`obvious at the time the invention was made to a person having ordinary skill in the art to which
`said subject matter pertains. Patentability shall not be negatived by the manner in which the
`invention was made.
`
`3.
`
`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 pre-AIA 35 U.S.C. 103(a) 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.
`
`4.
`
`Claims 1 and 4-5 are rejected under 35 U.S.C. 103(a) as being unpatentable
`
`over Tamaoki et al. (US 2004/0063195) as applied to claims above in view of Haddad et
`
`al. (US 4,033,825) and further in view of Leggett et al. (US 5,214,952).
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`

`

`Application/Control Number: 12/530,555
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`Page 3
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`Art Unit: 1775
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`Regarding claim 1 Tamaoki et al. discloses an incubation apparatus to incubate
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`culture targets such as cells, embryos or microorganisms in an incubation chamber, the
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`incubation apparatus including: (See Tamaoki Abstract and [0004] wherein the device is
`
`an incubation apparatus to culture cells).
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`a gas concentration sensor which detects a first gas (CO2) concentration in the
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`incubation chamber; a controller which controls the supply of a first gas into the
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`incubation chamber on the basis of an output of the gas concentration sensor; (See
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`Tamaoki Fig. 2 and [0041]—[0051] wherein a C02 gas concentration sensor 6 detects
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`CO2 concentration in an incubation chamber 81/82 and a controller is connected to the
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`sensor and controls the supply of a gas into the incubation chamber on the basis of an
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`output of the CO2 gas concentration sensor.)
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`wherein the controller is connected to at least a first valve which is connected to a first
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`pipe extending out of the incubation chamber, (See Tamaoki Fig. 4 and [0049] wherein
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`a first valve 23 is connected to the controller 25 and connected to a first pipe 4A/4B
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`extending out of the incubation chamber in order to supply actually used gas to the
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`sensoL)
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`Tamoaki also discloses an actually used gas comprising at least a first gas and a
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`second gas, i.e. the sample gas supplied to the sensor comprises the first gas CO2 and
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`at least one other gas mixed therein otherwise concentration measurement of CO2
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`

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`Application/Control Number: 12/530,555
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`Page 4
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`Art Unit: 1775
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`would be unneeded (002 concentration within a larger sample comprising other gas or
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`gasses, and does not specifically disclose the utilizing a standard gas supply to the gas
`
`sensor in order to calibrate the sensor the standard gas adjusted to an actually used
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`gas concentration or close thereto.
`
`Haddad et al. discloses an incubation apparatus to incubate culture targets such
`
`as cells, embryos or microorganisms in an incubation chamber, the incubation
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`apparatus including: (See Haddad Abstract)a standard gas supply device which can
`
`supply a gas concentration sensor with a standard gas (See Haddad Fig. 1 and Col. 6
`
`Lines 17-35 wherein a standard gas supply device 46 supplies the sensor with a
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`standard gas)
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`a passage control device comprising a second valve which is connected to a second
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`pipe connecting the standard gas supply device to the second valve, and connected to
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`a gas concentration sensor which can connect the incubation chamber or the standard
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`gas supply device to the gas concentration sensor selectively, (See Haddad Fig. 1 and
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`Col. 6 Lines 17-35 wherein a passage control device, i.e. comprising valve 48 ,the
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`second valve and second pipe connected thereto, connects selectively the culture
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`chamber or standard gas supply device 46 to the CO2 sensor 42.)
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`wherein the device is controlled to maintain the concentration of the standard gas,
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`supply the standard gas to the gas concentration sensor by the standard gas supply
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`device, and on the basis of an output of the gas concentration sensor and the
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`

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`Application/Control Number: 12/530,555
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`Page 5
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`Art Unit: 1775
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`concentration of the standard gas at the moment, calibrate the actually used gas
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`concentration of the gas concentration sensor by controlling the passage control device.
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`(See Haddad Fig. 1, Fig. 13, and Col. 6 Lines 17-35 wherein the concentration of
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`standard gas, supply of standard gas to the sensor, calibration of the sensor, and usage
`
`of passage control device comprising valve 48 are maintained/performed and controlled
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`in some manner. In order for the supply of standard gas, calibration of the sensor, and
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`operation of valve to be performed some form of control must be executed by some
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`form of controlling device utilized to perform said actions.)
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`It would have been obvious to one of ordinary skill in the art at the time of
`
`invention to provide and connect a standard gas supply, a passage control device
`
`comprising a second valve and connecting pipe, and a sensor calibration device as
`
`described by Haddad et al. to the sensor in the device of Tamaoki et al. because such
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`standard gas supplies, passage control devices (valves and associated pipes), and
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`calibrators are known in the art to be utilized in incubation devices such as those
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`described by Tamaoki et al. and such devices allow carbon dioxide sensors to be
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`calibrated and assure the accurate operation thereof and control of the environment
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`within and incubation chamber such that cells may be effectively and efficiently cultured
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`as is required by Tamaoki et al.
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`Also in regards to the controller controlling the second valve and passage control
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`device it is noted that Tamaoki et al. discloses that valves are known in the art to be
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`controlled utilizing controllers and it would have been obvious to one of ordinary skill in
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`

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`Application/Control Number: 12/530,555
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`Page 6
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`Art Unit: 1775
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`the art at the time of invention to provide a controller to control all valves in the device of
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`modified Tamaoki because such valves are known in the art to be controlled by
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`controllers and such controllers reduce operator intervention, error, and associated
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`costs as would have been desirable in the device of modified Tamaoki.
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`Also it is noted that modified Tamaoki discloses the device being utilized to carry
`
`out all the claimed functions as is described above. Assuming arguendo with respect to
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`the desired functions not being carried out by a programmed controller it is noted that
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`programmed controllers are very well known in the art to be utilized to automatically
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`control functions within devices and such a modification, i.e. providing a controller
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`programmed to automatically carry out described functions, would have been obvious to
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`one of ordinary skill in the art at the time of invention because since it has been held
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`that broadly providing a mechanical or automatic means to replace manual activity
`
`which has accomplished the same result involves only routine skill in the art.
`
`In re
`
`Venner, 120 USPQ 192 (CCPA 1958); In re Rundell, 9 USPQ 220 (CCPA 1931).
`
`modified Tamaoki does not specifically disclose the standard gas being adjusted
`
`to an actually used gas concentration or gas concentration close thereto.
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`Leggett et al. discloses a method and device for calibrating a gas analyzer to
`
`ensure that highly accurate results are formed wherein a standard gas, i.e. reference
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`and high concentration gas, is provided, and may be a mixture of gasses, such that it
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`closely simulates a sample gas, i.e. it is adjusted to an actually used sample gas
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`

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`Application/Control Number: 12/530,555
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`Page 7
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`Art Unit: 1775
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`concentrations, in order to allow accurate calibration of the analyzer and analysis of
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`samples. (See Leggett Abstract and Col. 3 Lines 20-35 wherein a standard gas mixture
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`is provided to simulate a sample/ actually used gas, i.e. it contains the same gas or
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`mixture thereof as that to be sampled.)
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`It would have been obvious to one of ordinary skill in the art at the time of
`
`invention to provide a standard gas for calibration of a sensor which closely simulates
`
`an actually used sample gas, i.e. it has the same concentration of gasses, as described
`
`by Leggett et al. in the device of modified Tamaoki because such standard gases are
`
`known in the art to be utilized to calibrate gas analysis devices such as those described
`
`by modified Tamaoki and such standard gases allow for calibration of a sensor such
`
`that materials to be analyzed can be detected to a greater degree of precision.
`
`Furthermore it is noted that an actually used gas and standard gas are
`
`considered materials worked on by the device and the concentration and makeup
`
`thereof is an intended use of the claimed device. As such any standard gas is fully
`
`capable of being "adjusted to an actually used gas concentration" because these gases
`
`are materials worked on which may be supplied in any concentration or mixture of
`
`gasses. These intended uses and materials worked on by the device do not serve to
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`define structural elements which differentiate the claimed invention from the prior art.
`
`Neither the manner of operating a disclosed device nor material or article worked upon
`
`further limit an apparatus claim. Said limitations do not differentiate apparatus claims
`
`from prior art. See MPEP § 2114 and 2115. Further, it has been held that process
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`

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`Application/Control Number: 12/530,555
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`Page 8
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`Art Unit: 1775
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`limitations do not have patentable weight in an apparatus claim. See Ex parte Thibault,
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`164 USPQ 666, 667 (Bd. App. 1969) that states “Expressions relating the apparatus to
`
`contents thereof and to an intended operation are of no significance in determining
`
`patentability of the apparatus claim.”
`
`Regarding claim 4 modified Tamaoki discloses all the claim limitations as set
`
`forth above as well as the device further including a connection opening to connect a
`
`pipe which supplies the standard gas to the gas concentration sensor. (See Haddad
`
`Fig. 1 and Col. 6 Lines 17-35 wherein there is a connection between the sensor and
`
`standard gas supply and some form of pipe with an opening between the two must be
`
`provided.)
`
`Regarding claim 5 modified Tamaoki discloses all the claim limitations as set
`
`forth above as well as the device further wherein the controller is configured to calibrate
`
`the actually used gas concentration at preset time intervals. (See Haddad Col. 6 Lines
`
`17-35 wherein calibration is performed periodically (periodically implies that the
`
`calibration is performed at some time intervals.))
`
`It is noted that the rejection of claims 4 and 5 below is provided assuming
`dependency from claim 2.
`
`5.
`
`Claims 2 and 4-5 are rejected under 35 U.S.C. 103(a) as being unpatentable
`
`over Tamaoki et al. (US 2004/0063195) in view of Haddad et al. (US 4,033,825) in view
`
`

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`Application/Control Number: 12/530,555
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`Page 9
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`Art Unit: 1775
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`of Leggett et al. (US 5,214,952) as applied to claims above and further in view of
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`Loscher (GB 2,138,949).
`
`Regarding claim 2 Tamaoki discloses all the claim limitations as set forth above as well
`
`as the device wherein outside gasses are provided to the incubation unit but does not
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`specifically disclose having an outside air supply and performing zero-point calibration
`
`and the outside air supply being comprised of a third valve and a third pipe connecting
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`air to the third valve with the controller connected thereto to operate said third valve.
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`Loscher discloses an incubation chamber wherein outside air is provided from an
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`outside air supply device comprised of a valve, i.e. third valve, and third pipe connecting
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`air to the valve to a CO2 sensor and a controller connected to the third valve controls
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`the said supply of outside air to the sensor by the third valve and on the basis of an
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`output of the gas concentration sensor at the moment, is configured to perform zero-
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`point calibration of the gas concentration sensor. (See Loscher Abstract and Page 2
`
`Lines 1-65 wherein outside air is supplied to a CO2 sensor by an outside air source
`
`through a valve and pipe, i.e. third valve and third pipe, controlled by a controller and
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`zero point calibration of the sensor is performed by a configured controller.
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`It is noted
`
`that Loscher discloses that all operations are controlled by a microprocessor, Le. a
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`programmed controller, and as such all actions described are performed under direction
`
`of said controller.)
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`

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`Application/Control Number: 12/530,555
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`Page 10
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`Art Unit: 1775
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`It would have been obvious to one of ordinary skill in the art at the time of
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`invention to provide an outside air source and controller with associated programming
`
`as described by Loscher in the device of modified Haddad because such gas sources
`
`and control mechanisms are known in the art to be used in incubation systems such as
`
`those described by Haddad et al. and such systems allow for the appropriate supply of
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`gases to an incubator such that incubation may be effectively performed and allows for
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`the accurate functioning of device sensors to ensure a desired operation as is required
`
`by modified Haddad.
`
`Regarding claim 4 modified Haddad discloses all the claim limitations as set forth
`
`above as well as the device further including a connection opening to connect a pipe
`
`which supplies the standard gas to the gas concentration sensor. (See Haddad Fig. 1
`
`and Col. 6 Lines 17-35 wherein there is a connection between the sensor and standard
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`gas supply and some form of pipe with an opening between the two must be provided.)
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`Regarding claim 5 modified Haddad discloses all the claim limitations as set forth
`
`above as well as the device further wherein the controller is configured to calibrate the
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`actually used gas concentration at preset time intervals. (See Haddad Col. 6 Lines 17-
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`35 wherein calibration is performed periodically (periodically implies that the calibration
`
`is performed at some time intervals.))
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`

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`Application/Control Number: 12/530,555
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`Page 11
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`Art Unit: 1775
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`6.
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`Claims 3 and 6-8 are rejected under 35 U.S.C. 103(a) as being unpatentable
`
`over Tamaoki et al. (US 2004/0063195) in view of Haddad et al. (US 4,033,825) in view
`
`of Leggett et al. (US 5,214,952) as applied to claims above, and further in view of Silley
`
`(us 6,265,210).
`
`Regarding claim 3 modified Tamaoki disclose all the claim limitations as set forth
`
`above but does not specifically disclose the source of standard gas being a detachable
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`cylinder.
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`Silley et al. discloses a controlled atmosphere enclosure for growing/maintaining
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`microorganisms including a gas source, including CO2, comprising compressed
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`cylinders of said gas. (See Figs. and Col. 1 Lines 7-15 wherein compressed gas
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`cylinders are used to supply gases including CO2 to a chamber.)
`
`It would have been obvious to one of ordinary skill in the art at the time of
`
`invention to utilize a compressed cylinder as described by Silley et al. in the device of
`
`modified Tamaoki because such sources of gas are known in the art to supply
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`chambers with a regulated amount of gas as is required by modified Tamaoki and such
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`cylinders represent a specific, effective, and known form of gas source for supplying a
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`chamber as is required by modified Tamaoki
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`

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`Application/Control Number: 12/530,555
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`Page 12
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`Art Unit: 1775
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`Regarding claim 6-8 modified Tamaoki discloses all the claim limitations as set
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`forth above but does not specifically disclose wherein the gas concentration sensor is
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`capable of detecting the first gas concentration and a third gas concentration in the
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`incubation chamber.
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`Silley et al. discloses a controlled atmosphere enclosure for growing/maintaining
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`microorganisms including an actually used gas comprising a first gas, i.e. CO2, and
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`second, third, and fourth gases, i.e. H2, 02, and N2, wherein a gas concentration
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`sensor is capable of detecting the first gas concentration and a third gas concentration
`
`in the incubation chamber and wherein a controller which controls the supply of the first
`
`or third gas into the incubation chamber on the basis of an output of the gas
`
`concentration sensor wherein the gas concentration sensor including, a first gas
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`concentration sensor which detects the first gas concentration in the incubation
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`chamber, and a third gas concentration sensor which detects the third gas
`
`concentration in the incubation chamber and wherein the first gas concentration sensor
`
`and the third gas concentration sensor are connected in series. (See Silley Fig. 4 and
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`Col. 4 Lines 5-60 wherein actually used gas comprises first through fourth gases 212a-
`
`212d and a sensor comprising a first gas sensor and a third gas sensor measures
`
`concentrations of such gases and a controller controls supply of such gases based
`
`upon the basis of output of sensors. These sensors are provided in series, i.e. they are
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`adjacent one another and may be operated in series and or gas may flow past them in
`
`series.)
`
`

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`Application/Control Number: 12/530,555
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`Page 13
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`Art Unit: 1775
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`It would have been obvious to one of ordinary skill in the art at the time of
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`invention to utilize a plurality of gases and sensors controlled by a controller as
`
`described by Silley et al. in the device of modified Tamaoki because such diversified
`
`gases and control thereof are known in the art to be utilized in incubation chamber such
`
`as those described by modified Tamaoki and such gases allow for greater control over
`
`the specific atmosphere within a chamber such that a desirable and specific
`
`environment may be provided and a large number of culture conditions may be provided
`
`so that cells are efficiently cultured and maintained as is required by modified Tamaoki.
`
`It is noted that since modified Tamaoki including Leggett et al. as described
`
`above discloses that the standard gas simulates a sample gas when the sample gas
`
`has first through fourth gases in various concentrations such as that described by
`
`modified Tamaoki in view of the above combination the standard gas will also have first
`
`through fourth gases in the varied concentrations otherwise it will not closely simulate
`
`the sample gas as is required.
`
`Furthermore assuming arguendo in regards to the sensors being connected in
`
`series it is noted that there are only two ways to connect sensors, i.e. in parallel or in
`
`series, and the selection of one known way of connecting sensors from a limited
`
`number of possible combinations would have been obvious to one of ordinary skill in the
`
`art at the time of invention because a person of ordinary skill has good reason to pursue
`
`the known options within his or her technical grasp.
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`If this leads to the anticipated
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`success, it is likely the product not of innovation but of ordinary skill and common sense.
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`

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`Application/Control Number: 12/530,555
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`Page 14
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`Art Unit: 1775
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`Additionally such a modification would have required a mere rearrangement of parts
`
`which would have been obvious to one of ordinary skill in the art because rearranging
`
`parts of an invention involves only routine skill in the art while the device having the
`
`claimed dimensions would not perform differently than the prior art device, In re Japikse,
`
`86 USPQ 70 and since it has been held that a mere reversal of the essential working
`
`parts of a device involves only routine skill in the art, In re Einstein, 8 USPQ 167.
`
`The following rejection of claim 3 is provided assuming arguendo dependence
`upon claim 2
`
`7.
`
`Claim 3 is rejected under 35 U.S.C. 103(a) as being unpatentable over Tamaoki
`
`et al. (US 2004/0063195) in view of Haddad et al. (US 4,033,825) in view of Leggett et
`
`al. (US 5,214,952) further in view of Loscher (GB 2,138,949) as applied to claims
`
`above, and further in view of Silley (US 6,265,210).
`
`Regarding claim 3 modified Tamaoki disclose all the claim limitations as set forth
`
`above but does not specifically disclose the source of standard gas being a detachable
`
`cylinder.
`
`Silley et al. discloses a controlled atmosphere enclosure for growing/maintaining
`
`microorganisms including a gas source, including CO2, comprising compressed
`
`cylinders of said gas. (See Figs. and Col. 1 Lines 7-15 wherein compressed gas
`
`cylinders are used to supply gases including CO2 to a chamber.)
`
`

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`Application/Control Number: 12/530,555
`
`Page 15
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`Art Unit: 1775
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`It would have been obvious to one of ordinary skill in the art at the time of
`
`invention to utilize a compressed cylinder as described by Silley et al. in the device of
`
`modified Tamaoki because such sources of gas are known in the art to supply
`
`chambers with a regulated amount of gas as is required by modified Tamaoki and such
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`cylinders represent a specific, effective, and known form of gas source for supplying a
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`chamber as is required by modified Tamaoki.
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`Response to Arguments
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`8.
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`Applicant’s arguments with respect to the claims have been considered but are
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`moot because the arguments do not apply to any of the combination of references being
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`used in the current rejection.
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`Applicant argues that “Tamaoki and Haddad, alone or in combination, fail to
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`describe, teach, or suggest the combination of features as set forth in claim 1, as
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`amended, including at least the following features: "a gas concentration sensor which
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`detects a first gas concentration in the incubation chamber; a controller which controls
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`the supply of a first gas into the incubation chamber on the basis of an outpost of the
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`gas concentration sensor; a standard gas supply device which, can supply the gas
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`concentration sensor with a standard gas which has been previously adjusted to an
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`actually used gas concentration or a gas concentration close thereto, wherein the
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`standard gas and the actually used gas include the first gas and a second gas.”
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`

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`Application/Control Number: 12/530,555
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`Page 16
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`Art Unit: 1775
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`It is noted that Haddad does modified Tamaoki does in fact disclose the actually
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`used gas comprising at least a first and second gas otherwise measurement of the first
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`gas concentration would be irrelevant as it would always be 100% and Tamaoki
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`additionally describes that the CO2 source is only 95% pure and thus includes at least
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`5% other gas or gasses therein.
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`Also it is noted that the actually used gas and standard gas are materials worked
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`on by the devices and how the concentrations of such gases are adjusted, i.e. the
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`standard gas being “adjusted to an actually used gas concentrations or gas
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`concentration close therero, is an intended use of the claimed device. Such limitations
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`do not define structural elements which differentiate the claimed invention from the prior
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`art. Neither the manner of operating a disclosed device nor material or article worked
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`upon further limit an apparatus claim. Said limitations do not differentiate apparatus
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`claims from prior art. See MPEP § 2114 and 2115. Further, it has been held that
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`process limitations do not have patentable weight in an apparatus claim. See Ex parte
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`Thibault, 164 USPQ 666, 667 (Bd. App. 1969) that states “Expressions relating the
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`apparatus to contents thereof and to an intended operation are of no significance in
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`determining patentability of the apparatus claim.”
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`Furthermore in regards to any other argued deficiencies, i.e. the standard gas
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`being the same as the actually used gas which is the sample gas sent to the sensor, an
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`additional reference and rational, i.e. Leggett et al, have been provided to make up for
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`

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`Application/Control Number: 12/530,555
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`Page 17
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`Art Unit: 1775
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`any such deficiencies and as such applicant’s arguments with respect to such a feature
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`are moot.
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`Additionally applicant is invited to review of Peng et al. reference cited below
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`which also teaches that a standard gas is known to be a mixture of used gases in order
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`to more accurately calibrate a gas sensor.
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`Conclusion
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`9.
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`The prior art made of record and not relied upon is considered pertinent to
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`applicant's disclosure.
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`Peng et al. (US 6,997,347) discloses a standard gas which is a mixture of various
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`gasses which may be sampled by a gas analyzer being utilized as a standard gas in
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`order to provide for calibration of the sensor such that accurate gas analysis may be
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`performed.
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`10.
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`Applicant's amendment necessitated the new ground(s) of rejection presented in
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`this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP
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`§ 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37
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`CFR1.136(a).
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`A shortened statutory period for reply to this final action is set to expire THREE
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`MONTHS from the mailing date of this action.
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`In the event a first reply is filed within
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`TWO MONTHS of the mailing date of this final action and the advisory action is not
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`

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`Application/Control Number: 12/530,555
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`Page 18
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`Art Unit: 1775
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`mailed until after the end of the THREE-MONTH shortened statutory period, then the
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`shortened statutory period will expire on the date the advisory action is mailed, and any
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`extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of
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`the advisory action.
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`In no event, however, will the statutory period for reply expire later
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`than SIX MONTHS from the date of this final action.
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`11.
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`Any inquiry concerning this communication or earlier communications from the
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`examiner should be directed to JONATHAN HURST whose telephone number is
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`(571)270-7065. The examiner can normally be reached on Mon.- Fri. 7:30-4:00.
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`If attempts to reach the examiner by telephone are unsuccessful, the examiner’s
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`supervisor, Michael Marcheschi can be reached on (571)272-1374. The fax phone
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`number for the organization where this application or proceeding is assigned is 571 -
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`273-8300.
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`Information regarding the status of an application may be obtained from the
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`Patent Application Information Retrieval (PAIR) system. Status information for
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`published applications may be obtained from either Private PAIR or Public PAIR.
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`Status information for unpublished applications is available through Private PAIR only.
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`For more information about the PAIR system, see http://pair-direct.uspto.gov. Should
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`you have questions on access to the Private PAIR system, contact the Electronic
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`Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a
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`USPTO Customer Service Representative or access to the automated information
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`system, call 800-786-9199 (IN USA OR CANADA) or 571-272—1000.
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`

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`Application/Control Number: 12/530,555
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`Page 19
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`Art Unit: 1775
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`/JONATHAN M H URST/
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`Examiner, Art Unit 1775
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`