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 .
Response to Amendment
The amendments filed 11/04/2025 have been entered.
Response to Arguments
Applicant’s arguments with respect to claim 1 and it’s dependents 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.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1, 6, 22-24, 27-29, 31 are rejected under 35 U.S.C. § 103 as being unpatentable over Loza Alvarez et al. (US 2015/0022881) hereinafter Alvarez, in view of Kalkbrenner et al. (US 2020/0284715, of record).
Regarding claim 1, Alvarez discloses a three-dimensional image cytometry system for performing in situ image cytometry on three-dimensional suspensions (in at least abstract discloses: specimen; therefore considered a three-dimensional suspension), the system comprising: an illumination subsystem ([0030] discloses: 1, light sheet generator) configured to generate a thin sheet of light ([0030] discloses: 1, light sheet generator, projects the sheet of light on the specimen); a scanning subsystem ([0030] discloses: 2, specimen holder) configured to move the sheet of light across a three-dimensional suspension ([0030] discloses: 2, specimen holder, moved in the Z direction, or rotated, across the light sheet; therefore considered configured to move the sheet of light across the suspension) while in situ within a sample container ([0070] discloses: reconstruct 3D image without the need to move neither the specimen nor the collecting objective); an imaging subsystem configured to capture light reflected, refracted, scattered, and/or emitted by the objects as the sheet of light is moved across the three-dimensional suspension ([0030] discloses: 6, digital processing unit, digitally processes captured images) and generate images of the three-dimensional suspension ([0030] discloses: 6, digital processing unit, digitally processes captured images; [0016] discloses: 3D imaging) wherein, because the system performs image cytometry on the three-dimensional suspension while in situ within the sample container, the objects are not flowed and, therefore, are not disrupted when performing the cytometry ([0070] discloses: reconstruct 3D image without the need to move neither the specimen nor the collecting objective; therefore considered not flowed).
Alvarez fails to disclose a device wherein the three-dimensional suspension comprising a plurality of objects suspended within a support medium, wherein generates images of the objects at multiple discrete positions of the three dimensional suspension; and an image processing subsystem configured to analyze the images to identify one or more parameters of the objects. Alvarez and Kalkbrenner are related because both disclose optical systems.
Kalkbrenner teaches a device wherein the three-dimensional suspension comprising a plurality of objects suspended within a support medium ([0051] discloses: 1, sample, in a sample batch in a carrier liquid, for example a multiplicity of different cells from a tissue sample), wherein generates images of the objects at multiple discrete positions of the three dimensional suspension; and an image processing subsystem ([0057] discloses: 18, detection module) configured to analyze the images to identify one or more parameters of the objects ([0057] discloses: 18, detection module, registers the intensity and, where applicable, the color, and converts this into a corresponding electrical signal)
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the invention of Alvarez to incorporate the teachings of Kalkbrenner and provide a device wherein the three-dimensional suspension comprising a plurality of objects suspended within a support medium, wherein generates images of the objects at multiple discrete positions of the three dimensional suspension; and an image processing subsystem configured to analyze the images to identify one or more parameters of the objects. Doing so would allow for better functionality and performance of the thereby improving the overall quality of the optical system.
Regarding claim 6, Alvarez discloses a method for performing in situ three-dimensional image cytometry on a three-dimensional suspension (in at least abstract discloses: specimen; therefore considered a three-dimensional suspension) contained within a sample container ([0030] discloses: 3, physiological chamber), the method comprising: creating the three-dimensional suspension in the sample container ([0032] discloses: 3D image, from different parts of illuminated specimen, therefore considered a three dimensional specimen in the sample container); scanning a thin sheet of light along the three-dimensional suspension ([0030] discloses: 2, specimen holder, moved in the Z direction, or rotated, across the light sheet; therefore considered configured to move the sheet of light across the suspension) while in situ within the sample container without flowing the objects ([0070] discloses: reconstruct 3D image without the need to move neither the specimen nor the collecting objective; therefore considered in situ within the sample container without flowing the objects); capturing light reflected, refracted, scattered, and/or emitted by the objects within the three-dimensional suspension as the sheet of light is scanned along the suspension ([0030] discloses: 6, digital processing unit, digitally processes captured images; therefore considered to capture the light from the suspension); generating images of the three-dimensional suspension ([0030] discloses: 6, digital processing unit, digitally processes captured images; [0016] discloses: 3D imaging); wherein, because the image cytometry is performed on the three-dimensional suspension while in situ within the sample container without flowing the objects, the objects are not disrupted during the image cytometry ([0070] discloses: reconstruct 3D image without the need to move neither the specimen nor the collecting objective; therefore considered not flowed).
Alvarez fails to disclose a method wherein the suspension comprising a plurality of objects suspended within a support medium, wherein generates images of the objects at multiple discrete positions of the three dimensional suspension and processing the images to identify one or more parameters of the objects. Alvarez and Kalkbrenner are related because both disclose optical systems.
Kalkbrenner teaches a method wherein the three-dimensional suspension comprising a plurality of objects suspended within a support medium ([0051] discloses: 1, sample, in a sample batch in a carrier liquid, for example a multiplicity of different cells from a tissue sample), wherein generates images of the objects at multiple discrete positions of the three dimensional suspension; and an image processing subsystem ([0057] discloses: 18, detection module) configured to analyze the images to identify one or more parameters of the objects ([0057] discloses: 18, detection module, registers the intensity and, where applicable, the color, and converts this into a corresponding electrical signal)
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the invention of Alvarez to incorporate the teachings of Kalkbrenner and provide a method wherein the three-dimensional suspension comprising a plurality of objects suspended within a support medium, wherein generates images of the objects at multiple discrete positions of the three dimensional suspension; and an image processing subsystem configured to analyze the images to identify one or more parameters of the objects. Doing so would allow for better functionality and performance of the thereby improving the overall quality of the optical system.
Regarding claim 22, the modified Alvarez discloses the system of claim 1, wherein the objects are cells (Kalkbrenner: [0051] discloses: 1, sample, for example a multiplicity of different cells) and the image processing subsystem is configured to identify morphologies of the cells (Kalkbrenner: [0060] discloses: recording image data, for example morphology; Examiner notes that the same motivation to combine applied to an earlier claim, 1, also applies here, and no further analysis is required, consistent with MPEP § 2143, which permits reliance on previously articulated rationale where the combination and reasonings remain unchanged).
Regarding claim 23, the modified Alvarez discloses the system of claim 1, wherein the objects are cells (Kalkbrenner: [0051] discloses: 1, sample, for example a multiplicity of different cells) and the image processing subsystem is configured to identify signal intensities and/or subcellular distributions of markers of the cells (Kalkbrenner: [0057] discloses: detection of wavelength intensity; therefore considered signal intensity; Examiner notes that the same motivation to combine applied to an earlier claim, 1, also applies here, and no further analysis is required, consistent with MPEP § 2143, which permits reliance on previously articulated rationale where the combination and reasonings remain unchanged).
Regarding claim 24, the modified Alvarez discloses the system of claim 1, wherein the objects are cells (Kalkbrenner: [0051] discloses: 1, sample, for example a multiplicity of different cells) and the image processing subsystem is configured to identify cycle phases of the cells and/or to segment the cells (Kalkbrenner: [0039] discloses: phase retrieval algorithms to determine phase information; Examiner notes that the same motivation to combine applied to an earlier claim, 1, also applies here, and no further analysis is required, consistent with MPEP § 2143, which permits reliance on previously articulated rationale where the combination and reasonings remain unchanged).
Regarding claim 27, the modified Alvarez discloses the method of claim 6, wherein the objects are cells (Kalkbrenner: [0051] discloses: 1, sample, for example a multiplicity of different cells) and wherein processing the images comprises identifying morphologies of the cells (Kalkbrenner: [0060] discloses: recording image data, for example morphology; Examiner notes that the same motivation to combine applied to an earlier claim, 1, also applies here, and no further analysis is required, consistent with MPEP § 2143, which permits reliance on previously articulated rationale where the combination and reasonings remain unchanged).
Regarding claim 28, the modified Alvarez discloses the method of claim 6, wherein the objects are cells (Kalkbrenner: [0051] discloses: 1, sample, for example a multiplicity of different cells) and wherein processing the images comprises identifying signal intensities and/or subcellular distributions of markers of the cells (Kalkbrenner: [0057] discloses: detection of wavelength intensity; therefore considered signal intensity; Examiner notes that the same motivation to combine applied to an earlier claim, 1, also applies here, and no further analysis is required, consistent with MPEP § 2143, which permits reliance on previously articulated rationale where the combination and reasonings remain unchanged).
Regarding claim 29, the modified Alvarez discloses the method of claim 6, wherein the objects are cells (Kalkbrenner: [0051] discloses: 1, sample, for example a multiplicity of different cells) and wherein processing the images comprises identifying cycle phases of the cells and/or segmenting the cells (Kalkbrenner: [0039] discloses: phase retrieval algorithms to determine phase information; Examiner notes that the same motivation to combine applied to an earlier claim, 1, also applies here, and no further analysis is required, consistent with MPEP § 2143, which permits reliance on previously articulated rationale where the combination and reasonings remain unchanged).
Regarding claim 31, the modified Alvarez discloses system of claim 1, wherein the system further comprises the sample container ([0030] discloses: 2, specimen holder, considered a sample container).
Claims 5 is rejected under 35 U.S.C. 103 as being unpatentable over Loza Alvarez et al. (US 2015/0022881) in view of Kalkbrenner et al. (US 2020/0284715, of record), as applied to claim 1 above, in view of Fahrbach (2022/0373778, of record).
Regarding claim 5, the modified Alvarez discloses the system of claim 1.
Alvarez fails to disclose wherein the system is configured as a selective plane illumination microscopy (SPIM) system. Alvarez and Fahrbach are related because both disclose illumination systems.
Fahrbach discloses wherein the system is configured as a selective plane illumination microscopy (SPIM) system (Claim 13 discloses, selective plane illumination microscopy microscope).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the invention of Alvarez to incorporate the teachings of Fahrbach and provide wherein the system is configured as a selective plane illumination microscopy (SPIM) system. Doing so would allow for better resolution, more efficient data collection, and better compatibility with live images, thereby improving the overall functionality and quality of the optical system.
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Loza Alvarez et al. (US 2015/0022881) in view of Kalkbrenner et al. (US 2020/0284715, of record), as applied to claim 6 above, in view of Chen (US 2017/0307507, of record).
Regarding claim 9, Alvarez discloses the method of claim 6.
Alvarez fails to disclose wherein the sample container comprises a planar imaging window. Alvarez and Chen are related because both disclose optical cytometers.
Chen teaches wherein the sample container comprises a planar imaging window ([0058] teaches: flat surface of cuvette; Examiner notes that this is considered a planar imaging window).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the invention of Alvarez to incorporate the teachings of Chen and provide a cytometer wherein the sample container comprises a planar imaging window. Doing so would allow for better and more accurate laser transmission and imaging, thereby improving the overall functionality of the optical system.
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Loza Alvarez et al. (US 2015/0022881) in view of Kalkbrenner et al. (US 2020/0284715, of record), as applied to claim 6 above, in view of Chiu et al. (US 2020/005760) in view of Tsukada (US 6,831,735, of record).
Regarding claim 10, the modified Alvarez discloses the method of claim 6.
Alvarez fails to disclose a method wherein the sample container is a sample tube comprising a circular cross section and further comprising centrifuging the three-dimensional suspension while within the sample tube prior to scanning. Alvarez and Chiu are related because both disclose optical systems.
Chiu teaches wherein the sample container is a sample tube comprising a circular cross-section ([0139] teaches: cross section of vessel, for imaging, can be a circular cross section; therefore considered a sample tube).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the invention of Alvarez to incorporate the teachings of Chue and provide wherein the sample container is a sample tube comprising a circular cross-section. Doing so would allow for better and more accurate laser transmission and imaging, thereby improving the overall functionality of the optical system. Alvarez and Tsukada are related because both disclose cytometry analysis.
Tsukada discloses further comprising centrifuging the sample while within the sample tube prior to scanning (Claim 1 discloses, centrifuging the sample, and carrying out an optical measurement; therefore centrifuging prior to scanning).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the invention of Alvarez to incorporate the teachings of Tsukada and provide further comprising centrifuging the sample while within the tube prior to scanning. Doing so would allow for separation of components, consistent sample preparation, thereby improving the overall functionality of the optical system.
Claims 11 , 15 and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Loza Alvarez et al. (US 2015/0022881) in view of Kalkbrenner et al. (US 2020/0284715, of record), as applied to claim 6 above, in view of Chiu et al. (US 2020/005760) in view of Chen (US 2017/0307507, of record).
Regarding claim 11, the modified Alvarez discloses the method of claim 6.
Alvarez fails to disclose the method wherein the sample container is a sample tube comprising a circular cross-section and further comprising placing the sample tube within an imaging chamber prior to scanning, the imaging chamber comprising a planar imaging window and containing an index-matching medium that surrounds the tube. Alvarez and Chen are related because both disclose optical cytometers. Alvarez and Chiu are related because both disclose optical systems.
Chiu teaches wherein the sample container is a sample tube comprising a circular cross-section ([0139] teaches: cross section of vessel, for imaging, can be a circular cross section).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the invention of Alvarez to incorporate the teachings of Chue and provide wherein the sample container is a sample tube comprising a circular cross-section. Doing so would allow for better and more accurate laser transmission and imaging, thereby improving the overall functionality of the optical system.
Alvarez fails to teaches prior to scanning, the imaging chamber comprising a planar imaging window and containing an index-matching medium that surrounds the tube. Alvarez and Chen are related because both disclose optical systems. Alvarez and Chen are related because both disclose optical cytometers.
Chen teaches wherein the sample container comprises a planar imaging window ([0058] teaches: flat surface of cuvette; Examiner notes that this is considered a planar imaging window) and teaches comprising placing the tube within an imaging chamber that contains an index-matching medium ([0359] teaches: using a thin layer of index matching fluid, to the flat surface of the back mirror).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the invention of Alvarez to incorporate the teachings of Chen and provide a cytometer wherein the sample container comprises a planar imaging window. Doing so would allow for better and more accurate laser transmission and imaging, thereby improving the overall functionality of the optical system.
The modified Alvarez fails to disclose an index-matching medium that surrounds the tube. However, choosing to surround the entire tube with index-matching material is a design choice and well within the bounds of normal experimentation. See MPEP 2144.04, In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960), In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975), and In re Gazda, 219 F.2d 449, 104 USPQ 400 (CCPA 1955). Accordingly, it would have been obvious to design choice to surround the entire tube with index-matching material since it is constituting routine design optimization to achieve expected performance benefits using known means. As discussed supra, Chen does not teach explicitly surrounding the tube with index matching material, it does address the same optical concerns relevant to suspended sample imaging, and since applicant has not disclosed that surrounding the entire tube with index-matching material described in the instant application solves any stated problem or is for any particular purpose. Moreover, it appears that the invention would perform equally well with only the part where the light is incident to have an index matching material. Therefore, the claimed use of an index-matching medium that surrounds the tube represents a routine design variation within the skill of the art.
Regarding claim 15, the modified Alvarez discloses the method of claim 6.
Alvarez fails to disclose a method wherein the sample container is a sample tube comprising a rectangular cross-section and a planar imaging window. Alvarez and Chiu are related because both disclose optical systems.
Chiu teaches wherein disclose a method wherein the sample container is a sample tube comprising a rectangular cross-section ([0139] teaches: cross section of vessel, for imaging, can be a rectangular cross section; therefore considered a sample tube).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the invention of Alvarez to incorporate the teachings of Chiu and provide a method wherein the sample container is a sample tube comprising a rectangular cross-section. Doing so would allow for better and more accurate laser transmission and imaging, thereby improving the overall functionality of the optical system.
Chen teaches wherein the sample container has a planar imaging window ([0058] teaches: flat surface of cuvette, therefore considered a sample tube; Examiner notes that this is considered an integrated planar imaging window).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the invention of Alvarez to incorporate the teachings of Chen and provide wherein the sample container has a planar imaging window. Doing so would allow for better and more accurate laser transmission and imaging, thereby improving the overall functionality of the optical system.
Regarding claim 30, the modified Alvarez discloses the method of claim 6.
Alvarez fails to disclose a method wherein the sample container is a sample tube that comprises an integrated planar imaging window. Alvarez and Chen are related because both disclose optical cytometers.
Chen teaches a method wherein the sample container is a sample tube that comprises an integrated planar imaging window ([0058] teaches: flat surface of cuvette, therefore considered a sample tube; Examiner notes that the flat surface of the cuvette is considered an integrated planar imaging window).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the invention of Alvarez to incorporate the teachings of Chen and provide disclose a method wherein the sample container is a sample tube that comprises an integrated planar imaging window. Doing so would allow for better and more accurate laser transmission and imaging, thereby improving the overall functionality of the optical system.
Claims 21 and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Loza Alvarez et al. (US 2015/0022881) in view of Kalkbrenner et al. (US 2020/0284715, of record), as applied to claim 1 and 6 above, in view of Houston et al. (US 2006/0050376, of record).
Regarding claim 21, the modified Alvarez discloses the system of claim 1.
Alvarez fails to disclose a system wherein the image processing subsystem is configured identify a count of the objects within the images. Alvarez and Houston are related because both disclose image processing apparatuses.
Houston teaches a system wherein the image processing subsystem is configured identify a count of the objects within the images.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the invention of Alvarez to incorporate the teachings of Houston and provide a system wherein the image processing subsystem is configured identify a count of the objects within the images. Doing so would allow for automated qualification of target cells or particles, thereby improving the efficiency and functionality of the optical system.
Regarding claim 26, the modified Alvarez discloses the method of claim 6.
Alvarez fails to disclose a system wherein processing the images comprises identifying a count of the objects within the images. Alvarez and Houston are related because both disclose image processing apparatuses.
Houston teaches a system wherein processing the images comprises identifying a count of the objects within the images.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the invention of Alvarez to incorporate the teachings of Houston and provide a system wherein processing the images comprises identifying a count of the objects within the images. Doing so would allow for automated qualification of target cells or particles, thereby improving the efficiency and functionality of the optical system.
Claim 25 is rejected under 35 U.S.C. 103 as being unpatentable over Loza Alvarez et al. (US 2015/0022881) in view of Kalkbrenner et al. (US 2020/0284715, of record), as applied to claim 1, in view of Schenk et al. (US 2018/0129030, of record) in view of Conway (US 5,467,148, of record).
Regarding claim 25, the modified Alvarez discloses the system of claim 1, wherein the illumination subsystem includes an illumination objective ([0056] discloses: 14, illumination objective).
Alvarez fails to disclose the imaging subsystem includes an imaging objective, and the system further comprises a coupling prism positioned between the illumination objective and the imaging objective, the coupling prism containing a liquid and being configured to create liquid-glass-air interfaces perpendicular to optical axes of the illumination objective and the imaging objective. Alvarez and Schenek are related because both disclose optical systems.
Schenek teaches the imaging subsystem includes an imaging objective (Fig. 1 depicts: 14, lens unit, considered the imaging objective), and the system further comprises a coupling prism (Fig. 1 depicts: 9, deflection element liquid) positioned between the illumination objective (Fig. 1 depicts: 4, condenser, considered the illumination objective) and the imaging objective (Fig. 1 depicts: 9, deflection element liquid, positioned between 4, condenser and 14, lens unit), the coupling prism containing a liquid ([0058] teaches: 9, deflection element liquid) and being configured to create liquid-glass-air interfaces perpendicular to optical axes of the illumination objective and the imaging objective (Figure 1 depicts: 9, deflection element liquid, perpendicular to the optical axis of 4, condenser and 14, lens unit).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the invention of Alvarez to incorporate the teachings of Schenek and provide the imaging subsystem includes an imaging objective, and the system further comprises a coupling prism positioned between the illumination objective and the imaging objective, the coupling prism containing a liquid and being configured to create an interfaces perpendicular to optical axes of the illumination objective and the imaging objective. Doing so would allow for improved beam deflection and optimized refractive properties at the interface, thereby improving the overall control and efficiency of the optical system.
The modified Alvarez fails to disclose wherein the illumination imaging prism combo is configured to create liquid-glass-air interfaces. However, choosing glass or plastic for a lens system is a design choice and well within the bounds of routine experimentation. See MPEP 2144.04, In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960), In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975), and In re Gazda, 219 F.2d 449, 104 USPQ 400 (CCPA 1955). Accordingly, it would have been obvious to design choice to substitute the plastic lenses for glass since it is not inventive to dis-cover the optimum or workable designs by routine experimentation. Conway discusses in Col. 3, lines 28-30 that glass and plastic lenses are interchangeable. The lenses can be made from any suitable lens material. Since applicant has not disclosed that designing the lenses of glass described in the instant application solves any stated problem or is for any particular purpose. Moreover, it appears that the invention would perform equally well with optical quality plastic lenses, and success in doing so would have been predictable. Accordingly the substitution of glass for plastic lenses would have been an obvious design modification yielding predictable results.
Claim 32 is are rejected under 35 U.S.C. 103 as being unpatentable over Loza Alvarez et al. (US 2015/0022881) in view of Kalkbrenner et al. (US 2020/0284715, of record), as applied to claim 31 above, in view of Chen (US 2017/0307507, of record).
Regarding claim 32, The system of claim 31.
Alvarez fails to disclose wherein the sample container includes a planar imaging window.
Chen teaches wherein the sample container includes a planar imaging window ([0058] teaches: flat surface of cuvette, therefore considered a sample tube; Examiner notes that the flat surface of the cuvette is considered an integrated planar imaging window).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the invention of Alvarez to incorporate the teachings of Chen and provide disclose a wherein the sample container includes a planar imaging window. Doing so would allow for better and more accurate laser transmission and imaging, thereby improving the overall functionality of the optical system.
Claim 33 is are rejected under 35 U.S.C. 103 as being unpatentable over Loza Alvarez et al. (US 2015/0022881) in view of Kalkbrenner et al. (US 2020/0284715, of record) in view of Chen (US 2017/0307507, of record), as applied to claim 32 above in view of in view of Chiu et al. (US 2020/005760).
Regarding claim 33, the modified Alvarez disclose the system of claim 31, wherein the system further comprises a separate imaging chamber configured to receive the sample tube ([0030] discloses: 3, physiological chamber; therefore considered a separate imaging chamber) the imaging chamber comprising a planar imaging window (Chen: [0058] teaches: flat surface of cuvette, therefore considered a sample tube; Examiner notes that the flat surface of the cuvette is considered an integrated planar imaging window; Examiner notes that the same motivation to combine applied to an earlier claim, 31, also applies here, and no further analysis is required, consistent with MPEP § 2143, which permits reliance on previously articulated rationale where the combination and reasonings remain unchanged).
Alvarez fails to disclose wherein the sample container is a sample tube comprising a circular cross-section and wherein the system further comprises surrounding the tube with an index-matching medium.
Chiu teaches wherein the sample container is a sample tube comprising a circular cross-section ([0139] teaches: cross section of vessel, for imaging, can be a circular cross section; therefore considered a sample tube).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to have modified the invention of Alvarez to incorporate the teachings of Chie and provide wherein the sample container is a sample tube comprising a circular cross-section. Doing so would allow for better and more accurate laser transmission and imaging, thereby improving the overall functionality of the optical system.
Alvarez fails to disclose wherein the system surrounds the tube with an index-matching medium.
The modified Alvarez fails to disclose an index-matching medium that surrounds the tube. However, choosing to surround the entire tube with index-matching material is a design choice and well within the bounds of normal experimentation. See MPEP 2144.04, In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960), In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975), and In re Gazda, 219 F.2d 449, 104 USPQ 400 (CCPA 1955). Accordingly, it would have been obvious to design choice to surround the entire tube with index-matching material since it is constituting routine design optimization to achieve expected performance benefits using known means. As discussed supra, Chen does not teach explicitly surrounding the tube with index matching material, it does address the same optical concerns relevant to suspended sample imaging, and since applicant has not disclosed that surrounding the entire tube with index-matching material described in the instant application solves any stated problem or is for any particular purpose. Moreover, it appears that the invention would perform equally well with only the part where the light is incident to have an index matching material. Therefore, the claimed use of an index-matching medium that surrounds the tube represents a routine design variation within the skill of the art.
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.
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/J.C.S./Examiner, Art Unit 2872
/BUMSUK WON/Supervisory Patent Examiner, Art Unit 2872