DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
Claim rejection – 35 U.S.C. § 112(b):
The rejection of claims 1-6, 9-12, and 15-21 under 35 U.S.C. § 112(b) has been withdrawn.
Claim rejection – 35 U.S.C. § 102:
Applicant argues the Budd operates the motor driving the container “without checking or monitoring whether the motor is driving the container according to the selected velocity motion profile.” Applicant also argues that Budd does not determine the acceleration/deceleration by analysis of the liquid surface in the container. The Examiner does not dispute Applicant’s characterization of Budd; however, the claims do not sufficiently distinguish from Budd.
As to Applicant’s argument that Budd operates the motor “without checking or monitoring whether the motor is driving the container according to the selected velocity motion profile,” the claim does not require ascertaining whether the motor is operating as intended. The claimed “drive mechanism” is not defined to be a motor and the disclosure uses the two different terms to be different elements. The disclosure describes the motor and the drive mechanism as two separate elements. This is also consistent with claim 25. Budd describes a critical link between the shape of the meniscus to the proper operation of the components (the “drive mechanism”). See paragraphs [0046]-[0048], and thus one of ordinary skill or the operator of the system will know if the drive mechanism is working properly or not.
As to Applicant’s argument that “quantities” such as acceleration/deceleration/motor speeds are not determined by analysis of the liquid surface in the container, the Examiner agrees that Budd does not show the determination of the numerical values (“quantities”) of acceleration, deceleration, or motor speeds by analysis of the liquid surface. However, the claim does not require ascertaining quantities of these.
Applicant argues that Budd’s processor “would not have made a definitive determination that the drive mechanism is operating correctly upon detecting the smooth meniscus.” The modification, as proposed, is based on automating the process as discussed for claim 1, where the artisan/operator knows whether the apparatus is properly functioning based on the turbulence/smoothness of the imaged meniscus and then displaying information, alert, or alarm, red/green light, or sounds that the container is ready or not ready to be measured. It does not appear that the claim requires that the display must explicitly state the drive mechanism is functioning properly or improperly. The information at hand, whether the meniscus is smooth/rough is so intertwined with the proper operating status of the measuring apparatus, they are effectively providing the same information.
Election/Restrictions
Newly submitted claims 5 and 25 are directed to an invention that is independent or distinct from the invention constructively elected for the following reasons: The claims set forth different species where different sensors are used to capture measurement data. The capturing of measurement data by an optical sensor is distinct from an acoustic sensor or x-ray sensor. The species/process using an optical sensor does not require the use of an acoustic or x-ray sensor. Likewise, the species/process using an acoustic/x-ray sensor does not require the use of an optical sensor. Claim 1 is a generic/linking claim and thus when found allowable, the restriction will be withdrawn and rejoined since claims 5 and 25 will have all the limitations of allowable claim 1.
Since applicant has received an action on the merits for the originally presented invention (the species/process using an optical sensor), this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 5 and 25 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
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:
“measuring device…” in claims 15-21. Although claim 17 recites sufficient structure, the claim is written with alternatives, some of which do not appear to be sufficient to perform the claimed functions (e.g. a lighting unit is not sufficient to “capture measurement data”),
“lighting unit…” in claims 17-20,
“motion indicator…” in claim 16, and
“pixel counter…” in claim 21.
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.
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 § 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.
Claim(s) 1-4, 6, 9, 11, 12, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Budd et al. (US 2005/0248765) in view of Official notice.
Budd shoes the observation of a meniscus for monitoring proper rotation velocity of a fluid filled container.
With respect to claim 1, Budd shows:
1. A method for monitoring a drive mechanism of an automated inspection system for inducing a specified motion to a container partially filled with a liquid, the specified motion indicating at least one of rotating, vibrating, or swaying side-to-side, the method comprising the steps of:
- capturing measurement data of a surface of the liquid (image data of meniscus is captured) in the container (para. [0048]:”The smooth meniscus is illustrated by item 13 and represents a parabolic shaped interface between the fluid and the air in the container.”);
- extracting form data regarding a form of the surface of the liquid from the measurement data (observing “shape characteristics”; para. [0048]: smoothness/shape of meniscus; ”smooth meniscus” is observed);
- detecting whether the container is in the specified motion based on the form data (paras. [0047]-[0050]: “The smooth meniscus is illustrated by item 13 and represents a parabolic shaped interface between the fluid and the air in the container.”; ”any turbulent meniscus movement has decayed”);
- in response to detecting that the container is in the specified motion, determining that the drive mechanism (system of Fig 1; para. [0042]: “a combination of mechanical, electronic, and software components”; “all the components”) is operating correctly as intended (This is implicit. When there is a smooth meniscus, the operator knows the components are operating correctly. para. [0046]: “The function of all the components listed above is to generate a method to rotate a container using a predetermined velocity motion profile so that the particles will migrate to a location in the container so that the system can detect and accurately measure the size of particle.”);
- in response to detecting that the container is not in the specified motion, determining that the drive mechanism is not operating correctly as intended (This is implicit. When the meniscus turbulent, the operator knows the components are not operating correctly. paras. [0047]-[0050]: “FIG. 3 illustrates the typical result of a turbulent velocity motion profile”; ”any turbulent meniscus movement has decayed”);
; and
-
wherein the step of extracting form data comprises at least one of the following:
- determining a form of the surface (para. [0048]; ”smooth meniscus”; para. [0050]: ”smooth laminar shape”);
- determining a structure of the surface;
- determining a contour of the surface (para. [0048]; ”smooth meniscus”; para. [0050]: ”smooth laminar shape”);
- determining a curvature or slope of the surface (para. [0048]; ”smooth meniscus”);
- determining a height difference between a height of the surface at a wall of the container and a height of the surface within a central region of the container (para. [0056]: “without allowing the meniscus to creep up the walls to the vial neck”), and
- determining a presence of a vortex or turbulence within the liquid (para. [0050]: “The second limitation is the avoidance of turbulent flow in the meniscus as shown in FIG. 3.”), and
wherein the step of detecting whether the container is in the specified motion based on the form data comprises at least one of the following:
- determining whether the form of the surface matches a predefined template within a predefined tolerance (para. [0048]; ”smooth meniscus”; para. [0050]: ”smooth laminar shape”);
- determining whether a curvature radius exceeds a predefined value; and
- determining whether the height difference exceeds a predefined value.
Budd does not explicitly show outputting a signal representing a correctly or in-correctly operating drive mechanism for display by a motion indicator.
Official notice is taken that displays were well known for providing alerts and status of an operating system. Budd teaches obtaining images of the meniscus and also teaches there is a criticality in the proper operation of the components (para. [0047]: “The velocity motion profile is mentioned here because the combination of physical attributes describe a non-linear velocity system and their control is critical to the successful implementation of the present invention”).
See also paragraph [0050]:
FIG. 3 illustrates the typical result of a turbulent velocity motion profile. There are two important limitations to the transfer of motion to any contaminating particle. The first is the creation of cavitation. Cavitation is created when the acceleration or deceleration rates used to transfer movement to the visible particle contaminants that are to be detected exceed the cavitation onset threshold. The bubbles that are created when cavitation occurs cannot be efficiently separated from particle images and are therefore an interference to the accuracy of an inspection. The second limitation is the avoidance of turbulent flow in the meniscus as shown in FIG. 3. The cavelets in the meniscus, visible as item 17 in FIG. 3, act as mirror lenses and project focused reflections of the light source on the walls of the container. These light spots are interpreted as false contaminating particles that result in false container rejection and must be avoided in a successful inspection method. In present art this is accomplished by either a) delaying the start of the inspection until any turbulent meniscus movement has decayed to the smooth laminar shape shown in FIG. 2 or b) masking the image of the meniscus from inspection. An undesired effect of the inspection period delay, a), is that the duration of the effective inspection period in which the contaminating particle is in motion has also been shortened. The effect of selecting b) is a reduction in the maximum probability of particle detection to the proportion of volume scanned thus reducing the effectiveness of the inspection. The maximum particle detection probability cannot exceed the proportion of the container volume that is inspected.
Before the effective filing date of the claimed invention, it would have been obvious to display the status of the apparatus such as: the proper operation of the apparatus, the presence of turbulent meniscus movement, send the status and display to a different person, and display the operator’s choice of whether the inspection is delayed or whether the image of the meniscus is masked.
2. The method of claim 1, wherein capturing measurement data is performed by an optical sensor (sensor module 2).
3. The method of claim 2, further comprising applying bottom lighting, top lighting, back lighting, side lighting, front lighting, of the container (para. [0043]: “The illumination module provides diffuse illumination from multiple directions using special surface mount LED panels…”).
4. The method of claim 2, further comprising the step of applying optical filtering (para. [0042]).
6. The method of claim 1, wherein the step of capturing comprises:
- determining a region of interest (ROI) comprising a section of the container within which at least part of the surface of the liquid is located (image of the meniscus is captured; Fig. 2).
9. The method of claim 1, wherein at least one of the step of capturing and the step of extracting comprises applying automated edge detection and/or feature recognition (para. [0046]).
11. The method of claim 1, wherein the step of determining comprises:
- determining a strength of motion of the container based on the form data and determining whether the strength meets the preset speed of the specified motion intended to be induced by the drive mechanism (para. [0050]).
12. The method of claim 1, wherein the steps of capturing and extracting are repeated multiple times, and the step of determining comprises:
- determining a change in motion of the container based on the form data determined at different times.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Budd as applied to claim 6 above and further in view of Budd et al (US 2005/0248765; “Budd 765” hereafter).
Regarding claim 10, Budd shows all the steps as recited for claim 6 but does not show the pixel counting as recited in claim 10. Budd states that the image processing is taught in patent application Ser. No. 10/981,801 which is published as US 2005/0248765. Budd 765 shows in Fig. 11 the correlation between pixel count and particle size. Before the effective filing date of the claimed invention, it would have been obvious to count the number of relevant pixels in order to determine particle size.
Claim(s) 15-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Budd as applied to claim 1 or 10 above and further in view of Admitted Prior Art).
Regarding claim 15, Budd shows all the steps as recited in claim 15 as shown in the discussion of claim 1 above and shows an image of a smooth meniscus (Fig. 2) and an image of a turbulent meniscus (Fig. 3), but Budd does not show that the processor distinguishes between the turbulent meniscus from a smooth meniscus. It is taken to be admitted prior art that image processors that can analyze images to distinguish between the two images were well known (for smoothness, shape or curvature). Furthermore, it is taken to be conventional to make that which was performed manually to be automated. Before the effective filing date of the claimed invention, it would have been obvious to adapt the image processor of Budd to automatically analyze the image of the meniscus in order to reduce manual work.
16. The apparatus of claim 15, further comprising a motion indicator operationally connected to the processor, wherein the motion indicator is adapted to indicate information regarding whether the container is in the specified motion based on the form data. (The specification indicates the motion indicator is a monitor. Official notice is taken that monitors were well known. Before the effective filing date of the claimed invention, it would have been obvious to include a monitor in the apparatus of Budd in order to operate the apparatus and display operating conditions.)
17. The apparatus of claim 15, wherein the measuring device comprises at least one of the following:
- an optical sensor;
- a lighting unit adapted to provide bottom lighting and/or top lighting and/or back lighting and/or side lighting and/or front lighting of the container;
- an acoustic source;
- an acoustic sensor;
- an x-ray source;
- an x-ray detector. (see discussion of claim 2 above)
18. The apparatus of claim 17, further comprising one of the following:
- a lens;
- an electromagnetic lens, adapted to direct or focus radiation emitted by the x- ray source (this claim is dependent on claim 17 which recites the acoustic source and signal in the alternative. Since Budd shows a different alternative, the limitation of claim 18 is not required to be shown by Budd).
19. The apparatus of claim 17, further comprising an optical filter (see discussion of claim 4 above).
20. The apparatus of claim 17, wherein the acoustic source is adapted to generate an acoustic signal in a frequency range from 10 Hz to 20 kHz and/or an ultrasound signal in a frequency range from 20 kHz up to 1 MHz in air or up to 25 MHz in the liquid (the same applies as claim 18).
21. The apparatus of claim 15, further comprising a pixel counter, adapted to determine a number of pixels within a region of interest having an intensity within a predefined intensity interval or above a predefined intensity value (see discussion of claim 10 above).
24. The method of claim 1, wherein:
the drive mechanism includes a plate and a motor that propels the plate so that the container on the plate is caused to rotate about a longitudinal axis of the plate, and
the determination is made solely based on image analysis of the form data without monitoring any physical or control input part of the drive mechanism.
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 Hwa Andrew S Lee whose telephone number is (571)272-2419. The examiner can normally be reached Mon-Fri 9am-5:30pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Uzma Alam can be reached at 571-272-3995. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Hwa Andrew Lee/Primary Examiner, Art Unit 2877