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 .
Status of Claims
Applicant’s reply filed 10/3/25 is acknowledged. Claims 6, 15 and 17 were canceled. Claims 1-5, 7-14, 16, 18 and 19 are pending and are under examination.
Response to Reply
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the plurality of third light guide elements; plurality of sixth light guide elements (claims 1 and 11) must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
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.
Claim Rejections - 35 USC § 101
In response to applicant’s claim amendment and arguments regarding the rejection under 35 U.S.C. 101, the rejection is modified and maintained. See below.
In response to applicant’s argument on p. 12-13 of the reply, “in the amended independent claims 1 and 11, as described above, the arrangement of multiple pairs of the third light guide elements and the sixth light guide elements along the flow chemical reaction tube has been clarified, and this arrangement is a distinctive feature of the present subject matter that is not found in the prior art. Accordingly, it is submitted that the claims now recite additional elements that integrate the abstract idea into a particular practical application, or additional elements that amount to significantly more than the abstract idea. Further, applicant argues the specific structural features of the “plurality of pairs of the third light guide elements and the sixth light guide elements are arranged along the flow chemical reaction tube located on the downstream side, from upstream to downstream.” The Office respectfully disagrees because the “additional elements” (e.g., flow reaction tube on downstream side of the chemical reaction system) appear to be the same/similar to what was already claimed in claims 16 and 18 (e.g., third flow chemical reaction tube disposed on the downstream side of the reactor). Thus, the rejection is maintained. See below.
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-5, 7-14, 16, 18 and 19 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claimed invention, in particular claims 1 and 11, recites “an arithmetic unit including a processor connected to the detector via a data communication cable configured to calculate the optical spectrum” and “calculate an optical spectrum of the product”. The calculations are abstract ideas. The abstract idea has not been integrated into a particular practical application because once the arithmetic unit calculates the optical spectrum there is no application, much less a particular practical one. The claimed invention does not recite any elements which are significantly more than the abstract idea because the irradiator, which includes a light source and light guide elements, the detector, which includes a photodetector and light guide elements, and flow chemical reaction tubes are routine and conventional and therefore would not amount to significantly more.
Dependent claims all further refine the optical analysis system and were considered, however, the subject matter was deemed abstract, like above, and thus, it does not affect the result established above.
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 1-5, 7-14, 16, 18 and 19 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.
Claims 1 and 11 are rejected because the scope of the claim is unclear with regard to the structural relationship between the first flow path, second flow path and third flow path (of claims 16 and 18); first, second and third flow chemical reaction tube (of claims 16 and 18), and the flow chemical reaction tube in claims 1 and 11. Is the third flow path, third flow chemical reaction tube (of claims 16 and 18) and flow chemical reaction tube (of claims 1 and 11) refer to the same structural feature?
Claim 7 is rejected because “the flow path” raises an antecedent basis issue. What is the structural relationship between the flow path of claim 7 and the flow chemical reaction tube of claim 1?
Claim 9 is rejected because “the measuring light” raises an antecedent basis issue. Which measuring light in claim 1 is this referring to?
Claims 16 and 18 are rejected because “the flow-type synthesis-reaction system” raises an antecedent basis issue. Also, “flow-type synthesis-reaction system” is unclear in light of the specification.
Claims 16 and 18 are rejected because “the first flow path”, “the second flow path” and “third flow path” raise an antecedent basis issue.
Claim Interpretation of the examined claims
The Office asserts that terms and phrases like “configured to” and “wherein” constitute recitations of intended use language for purposes of examination. The Office asserts that in the examined claims reciting such “configured to” language, the claim language that follows such recitations does not necessarily denote structure. MPEP 2173.05(g). The functional limitation was evaluated and considered, for what it fairly conveys to a person of ordinary skill in the art. Similarly, a “wherein” clause may have a limiting effect on a claim if the language limits the claim to a particular structure. MPEP 2111.04. The determination of whether a “wherein” clause is a limitation in a claim depends on the specific facts of the case. While all words in each claim are considered in judging the patentability of the claim language, including functional claim limitations, not all limitations provide a patentable distinction.
During patent examination, the examined claims must be given their broadest reasonable interpretation consistent with the specification, unless a term has been given a special definition in the specification (“BRI”). See MPEP 2111.
Prior Art Rejection
In light of applicant’s claim amendments, the prior art rejection is modified.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-5, 7-14, 16, 18 and 19 are rejected under 35 U.S.C. 103 as obvious over Olesberg et al. (“Olesberg,” US Pub. No. 2015/0247210, previously cited and cited in IDS) in view of Koerperick et al. (“Koerperick,” US Pub. No. 2015/0247791, previously cited).
As to claims 1 and 11, Olesberg discloses an optical analysis system comprising: an irradiator, in a chemical reaction system for (see claim interpretation above) obtaining a product by synthesizing a first raw material and a second raw material, including a light source (e.g., optical instrument 110, [0045] et seq.; fig. 9), a first light guide element (optical fiber 510, fig. 9), a second light guide element (optical fiber 510), and a plurality of third light guide elements (optical fiber 510, [0055] discloses one or more optical fibers 510 connect the optical instrument), the light source irradiating, via the first light guide element, a first irradiation light to the first raw material prior to initiation of synthesis, irradiating, via the second light guide element, a second irradiation light to the second raw material prior to initiation of the synthesis, and irradiating, via the plurality of third light guide elements, third irradiation lights to a mixture after initiation of the synthesis that includes the first raw material, the second raw material, and the product (see e.g., [0045] et seq., which discloses a semiconductor optical emitter; [0016] et seq., which discloses use of a polymer optical element as a wavelength reference provides the ability to verify the wavelength axis over a plurality of wavelengths; the “irradiating” steps are considered functional claim language because the claim is directed to a system, i.e., a structure; see also MPEP 2114);
a detector including a photodetector (e.g., optical probe 500, [0055] et seq.), a fourth light guide element, a fifth light guide element, and a plurality of sixth light guide elements ([0055] discloses two optical fibers, or one or more optical fibers 510 may be provided for each optical probe 500, which amounts to a plurality of light guide elements), the photodetector detecting, via the fourth light guide element a first measuring light that is based on the first irradiation light radiated by the irradiator and includes information regarding an optical spectrum of each of the first raw material, detecting, via the fifth light guide element, a second measuring light that is based on the second irradiation light radiated by the irradiator and includes information regarding an optical spectrum of the second raw material, and detecting, via the plurality of sixth light guide elements, third measuring lights that are based on the third irradiation lights radiated by the irradiator and include information regarding an optical spectrum of the mixture (see e.g., [0009], which discloses a photodetector; e.g., [0055], which discloses the sensor detecting and analyzing the light received; the “detecting” step is considered functional claim language because the claim is directed to a system, i.e., a structure; see also MPEP 2114); and
an arithmetic unit including a processor (e.g., controller or computer or microprocessor is the equivalent of the claimed arithmetic unit, [0050] et seq.) connected to the detector via a data communication cable (see fig. 2 and [0049], a sensor 230 connected to a controller 270 via an analog-to-digital converter 280) and configured to calculate the optical spectrum of each of the first raw material, the second raw material, and the mixture based on measurement data on the first measuring light, the second measuring light, and the third measuring lights detected by the detector and, based on the optical spectrum of the first raw material, the second raw material, and the mixture, calculate an optical spectrum of the product (see e.g., [0050] et seq. which discloses the controller accepts input from the sensor and performs spectroscopic calculations to quantify amounts of substances in the fluid samples).
With regard to claims 1 and 11, while Olesberg discloses an irradiator, a detector, and the claimed equivalent of the arithmetic unit, Olesberg does not specifically disclose the claimed function of irradiating a third irradiation of light to a mixture after initiation of synthesis. However, Olesberg discloses in e.g., [0015], the aforementioned steps need not be performed in the specified order, and may be performed with a plurality of component configurations. Olesberg further discloses in e.g., [0065], measurement of quantities of substances in or materials suspended in a fluid sample, such as chemical constituents or cell density, may be used to adjust one or more parameters or quantities in the fluid process from which the fluid sample originates. As an example of parameter adjustment and control, a measured quantity such as cell density in a process may be used to adjust a parameter such as agitation rate or dissolved oxygen level. For instance, upon reaching a specified cell density, agitation rate or dissolved oxygen level may be increased to support the oxygen demands of the growing cell population. Olesberg also discloses in e.g., [0066], control of quantities or concentrations of substances such as chemical constituents in fluid processes may be provided by determining one or more quantities of substances and using said one or more determined quantities to adjust one or more quantities or concentrations. Such feedback control strategies are highly valuable in many applications to maintain desired quantities or concentration profiles of substances during fluid processes and to reduce the labor involved with providing such functionality manually. These cited paragraphs of Olesberg demonstrates that Olesberg’s analyzes the chemical constituents in sample(s) initially or sometime before the chemical constituents “synthesize” (e.g., reach a specified cell density) by initially determining the e.g., agitation rate. Olesberg also demonstrates additional analyses may be provided to the sample(s) that reached a specified cell density to control a quantity or concentration profile, which encompasses irradiating the sample (“product”) that reached a specified cell density (“after initiation of the synthesis”) with light. Thus, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to include the claimed function of irradiating a third irradiation of light to a mixture after initiation of synthesis because Olesberg recognizes feedback control strategies are highly valuable in many applications to maintain desired quantities or concentration profiles of substances during fluid processes and to reduce the labor involved with providing such functionality manually (e.g., [0066] of Olesberg).
With regard to the claim language in claims 1 and 11, “the light source radiates, via the plurality of third light guide elements, the third irradiation lights at a plurality of positions, respectively, in a flow chemical reaction tube on downstream side of the chemical reaction system, the plurality of positions being sequentially remote from upstream side of the chemical reaction system, and the plurality of sixth light guide elements guide the third measuring lights transmitted through an inside of the flow chemical reaction tube to the photodetector respectively,” while Olesberg discloses the light source radiates via the plurality of third light guide elements, the third irradiation lights, and the plurality of sixth light guide elements guide the third measuring lights transmitted through an inside of the flow chemical reaction tube to the photodetector respectively in e.g., [0055] et seq., Olesberg does not specifically disclose “the light source radiates the third irradiation lights at a plurality of positions, respectively, in a flow chemical reaction tube on downstream side of the chemical reaction system, the plurality of positions being sequentially remote from upstream side of the chemical reaction system” with regard to fig. 9. Koerperick discloses in e.g., [0044] et seq, and in FIG. 9, a multiple measurement tubing assembly 141 embodiment where multiple fluid conduits 109 are generally connected to the same fluid delivery tubing 111 and fluid exit tubing 113 with tubing connectors is shown in FIG. 9. In this figure, a second fluid conduit 143 and a third fluid conduit 145 are shown; each may be used for a separate measurement. Such an embodiment provides for performing one or more additional measurements, being optical in nature or otherwise, within one analytical instrument 115. See also MPEP 2114. It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to have the light source radiate the third irradiation lights at a plurality of positions, respectively, in a flow chemical reaction tube on downstream side of the chemical reaction system, and the plurality of positions being sequentially remote from upstream side of the chemical reaction system, because it would be beneficial to perform one or more additional measurements, being optical in nature or otherwise, within one analytical instrument ([0044] of Koerperick). Furthermore, as to claim 11, see MPEP 2112.02.
As to claims 2 and 12, the “product” is considered intended use and/or functional claim language because it is not positively claimed in claim 1 (e.g., product is recited in “for,” intended use or functional claim language). But see e.g., [0019] of Olesberg, and see MPEP 2112.02.
As to claims 3 and 13, see optical emitter 170, [0045] et seq.; and controller or computer or microprocessor, [0050] et seq. of Olesberg. Also see MPEP 2112.02.
As to claims 4 and 14, the “product” is considered intended use and/or functional claim language because it is not positively claimed in claim 1 (e.g., product is recited in “for,” intended use or functional claim language). But see e.g., [0019] of Olesberg, and see MPEP 2112.02.
As to claim 5, see controller or computer or microprocessor, [0050] et seq. of Olesberg.
As to claim 7, see optical emitter 170, [0045] et seq. of Olesberg.
As to claim 8, see e.g., [0063] of Olesberg.
As to claim 9, see e.g., [0041] et seq. of Olesberg.
As to claim 10, see e.g., [0045] et seq. of Olesberg.
As to claims 16 and 18, see Olesberg and Koerperick above. Olesberg does not specifically disclose the flow-type synthesis-reaction system further includes a third flow chemical reaction tube disposed on the downstream side of the reactor, the mixture flows in the third flow path . . . the third light guide element and the sixth light guide element are provided at a location of the third flow chemical reaction tube, the third light guide element guides the third irradiation light into the third flow chemical reaction tube, the sixth light guide element guides the third measuring light transmitted through the inside of the third flow chemical reaction tube to the photodetector. Koerperick discloses in e.g., [0044], in FIG. 9 and FIG. 10, the fluid conduits for optical sampling 109, 143, and 145 for example need not be comprised of the same material. Construction of the tubing assemblies 141 and 147 using fluid conduits 109, 143, and 145 having different materials provides the ability to perform optical measurement within different wavelength bands. . . Embodiments of the cartridge 105 and optical interface 103 may be provided to accommodate multiple measurement tubing assemblies such as 141 and 147 shown in FIG. 9 and FIG. 10, respectively. See also MPEP 2114 and 2115. It would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to include multiple reaction tubes because Olesberg recognizes having pipes in e.g., [0044], and because the Olesberg’s vessel 100 from which fluid is sampled may comprise a plurality of containers such as chemical reactors, bioreactors, filtration systems, pipes, flasks, and flexible polymer containers depending on the application. Also, it would have been obvious to one having ordinary skill in the art, before the effective filing date of the claimed invention, to have the particular configurations of the light guide elements and the chemical reaction tubes because control of parameters in the fluid process or concentrations of chemical constituents may be performed with the present invention in a plurality of configurations (e.g., [0057] of Olesberg). See also MPEP 2112.02 for claim 18.
As to claim 19, see [0050] et seq. of Olesberg.
Response to Arguments
Applicant's arguments filed 10/3/25 have been fully considered but they are not persuasive.
In response to applicant’s argument on p. 10-11 of the reply that “Olesberg does not explicitly disclose multiple reaction tubes with respect to Figure 9,” the Office respectfully does not find applicant’s argument to be persuasive. The use of patents as references is not limited to what the patentees describe as their own inventions or to the problems with which they are concerned. They are part of the literature of the art, relevant for all they contain. A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments. See MPEP 2123(I) and (II). In this case, the combination of Olesberg and Koerperick is proper because Olesberg recognizes having multiple reaction tubes in alternative embodiments. Olesberg recognizes having pipes in e.g., [0044], and Olesberg’s vessel 100 from which fluid is sampled may comprise a plurality of containers such as chemical reactors, bioreactors, filtration systems, pipes, flasks, and flexible polymer containers depending on the application. Thus, the combination of Olesberg in view of Koerperick is proper.
In response to applicant’s argument on p. 11 of the reply that “although Olesberg arguably discloses optical probes ( 500) and optical fibers ( 510) for irradiation and detection, it only contemplates a single measurement point ( or independent measurements for multiple samples). The configuration of the present subject matter, in which multiple measurement points are sequentially arranged along the reaction flow direction with respect to the mixture, is neither disclosed nor suggested in Olesberg.” The Office respectfully disagrees. The examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, the combination of Olesberg and Koerperick is proper because Koerperick discloses in fig. 9 a flow chemical reaction tube configuration that allows for a plurality of positions to be irradiated sequentially and towards the upstream side of the chemical reaction system. See modified rejection above. Thus, the combination of Olesberg in view of Koerperick is proper.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LORE RAMILLANO JARRETT whose telephone number is (571)272-7420. The examiner can normally be reached Monday to Friday.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Lyle Alexander can be reached on 571-272-1254.
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/LORE R JARRETT/Primary Examiner, Art Unit 1797
1/9/2026