DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
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, 24 and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Van Den Engh (U.S. PGPub No. 2021/0123854 A1) in view of Sharpe et al. (U.S. PGPub No. 2011/0143389 A1).
As to claims 1 and 24, Van Den Engh discloses and shows in figures 3 and 4, a flow cytometer, comprising:
a flow cell (210) defining a flow channel (216) for flowing a liquid containing a particle (220) through the flow cell, a flow direction of the particles through the channel being on a YZ plane and a XY plane perpendicular to the YZ plane (the planes as claimed can be explicitly drawn through the figures 3/4) ([0024], ll. 1-10);
a light source (212) arranged to emit light to a single particle at a time (explicitly shown via beam diameter in figure 3) flowing through the channel, the light being incident to the particle at an incidence angle inclined to a normal direction (explicitly shown in figures 3/4, θ) with respect to a flow direction of the particle through the channel (i.e. along axis A2) at the interrogation point, the light being on the YZ plane and the normal direction being on a XZ plane perpendicular to the YZ plane and the XY plane, wherein the interrogation point intersects the XZ plane (again the planes as define by applicant are taught by the figures) ([0024], ll. 1-11; [0025], ll. 1-5); and
a plurality of light detectors (322a and 322b) arranged around the flow cell and arranged for receiving light diverging from the particle (i.e. scatter detection) ([0028]).
wherein each of the plurality of light detectors is arranged without a lens between each light detector and the flow cell, and no element with optical power is arranged between the flow cell and each of the plurality of light detectors ([0028]; as disclosed the only optical element present is aperture 326a/b which are not disclosed as having any optical power).
wherein the plurality of light detectors comprises a first light detector, a second light detector and a third light detector ([0028]; as disclosed up to 6 detectors can be placed around the intercept point).
Van Den Engh does not explicitly disclose where the first and second light detectors intersect the XZ plane, wherein the third light detector does not intersect the XZ plane.
However, Sharpe does disclose and show in figures 2 and 6 and in ([0050]) using a plurality of detectors 21-24. Two of the detectors (21 and 22) intersect the XZ plane (50). Further detectors 23 and 24 as explicitly shown are displaced from the XZ plane (i.e. they do not intersect it).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify where the first and second light detectors intersect the XZ plane, wherein the third light detector does not intersect the XZ plane in order to provide the advantage of increased accuracy as explicitly noted in Sharpe having multiple detectors in the noted orientation allows for detection of various information to be measured on the sample/cell under test (e.g. cell orientation and intrinsic cell characteristic) ([0045]).
The subject matter of claims 1 and 24 relate in that the technical features of apparatus claim 1 are in each case suitable for implementing the method of claim 24, therefore the method is inherent, in view of the above apparatus rejection.
As to claim 26, Van Den Engh as modified by Sharpe discloses a flow cytometer wherein the first light detector, the second light detector, and the third light detector measure three distinct optical phenomena ([0028], firstly the examiner notes that the limitation in merely intended use as applicant has failed to in any manner structurally define what would be distinct about each of the three light detectors that would provide a unique difference resulting in the ability to measure the “three distinct optical phenomena” as such the prior art is being interpreted as capable of the noted function for disclosing the same three light detector structures as claimed, please see MPEP 2114(II); further even if the limitation were positively limiting each detector of the prior art explicitly images a distinct set of photons which could be interpreted as “distinct optical phenomena” as applicant has not defined “phenomena” in any manner).
Response to Arguments
Applicant’s arguments with respect to claim(s) 1, 24 and 26 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
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 MICHAEL P LAPAGE whose telephone number is (571)270-3833. The examiner can normally be reached Monday-Friday 8-5:30.
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, Tarifur Chowdhury can be reached on 571-272-2287. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Michael P LaPage/Primary Examiner, Art Unit 2877
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