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 .
Remarks
This communication is in response to the 10/14/2025 reply.
Claims 1-20 are currently pending with claim 9 withdrawn leaving claims 1-8 and 10-20 examined below.
Applicant’s arguments with regard to the use of ‘about’ and substantially’ are not persuasive.
Applicant correctly identifies the appropriate MPEP section relating to relative terminology. Applicant fails to tie that guidance to the application as filed. For example, Applicant first points to Seattle Box citing “[a]cceptability of the claim language depends on whether one of ordinary skill in the art would understand what is claimed, in light of the specification”. Applicant fails to identify where in the specification any such support exists that would permit one of ordinary skill to understand what applicant is attempting to claim. Applicant alleges that paragraphs [0050], [0054], [0068], [0074], [0075], [0077], and [0078] of Applicant's specification provide said support, i.e. “Thus, Applicant's specification provides clear description and context to the term "about" as recited.”
However, a review of these paragraphs finds no such support and any occurrence of ‘about” cannot be characterized as providing “…clear description and context to the term "about"….”
For example, [0050] merely repeats the language of claim 4. See the annotated figure below.
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Para. [0054] merely repeats the limitation from e.g. claim 1 and does not provide “…clear description and context to the term "about"…” as applicant alleges. Para. [0068] merely repeats the limitation from e.g. claim 4 and does not provide “…clear description and context to the term "about"…” as applicant alleges. Para. [0074] merely repeats the limitation from e.g. claim 5 and does not provide “…clear description and context to the term "about"…” as applicant alleges. Para. [0077] merely repeats the limitation from e.g. claim 7 and does not provide “…clear description and context to the term "about"…” as applicant alleges. Para. [0078] merely repeats the limitation from e.g. claim 8 and does not provide “…clear description and context to the term "about"…” as applicant alleges. While it is true that each cited paragraph includes the term “about”, the mere presence of the word does not rise to the level of “…clear description and context to the term "about"….”
For at least these reasons the assertion that “[a]pplicant’s specification provides clear description and context to the term “about” as recited in Applicant’s claims 1, 4-8 and 11-20” is not persuasive. Applicant provided emphasis to the portion of MPEP 2173.05(b)(III)(A), repeated here for the benefit of the reader, “in determining the range encompassed by the term "about", one must consider the context of the term as it is used in the specification and claims of the application”. Applicant’s specification and claims provide no context, nor has Applicant identified any context in the specification or claims. The argument is not persuasive.
Next, applicant appears to rely on a PTAB decision, Ex parte Stig, but fails to apply the facts of the decision to the instant application. The nature of the subject matter of Stig was a polygon-shaped cross section of a micro-needle. The instant application relates to an acoustic wave device. In e.g. claim 1 the term “about” is applied to a duty ratio which is a dimensionless term. Thus it is unclear how the facts of Stig relate to the instant application.
Further, applicant defines the duty ratio “…from about 0.62 to about 0.73…” in e.g. claim 4 and the specification at page 19 using a formula requiring terms having FOURTEEN SIGNIFICANT DIGITS. Per MPEP 2173.05(b) the use of ‘about’ and ‘substantially’ is not necessarily indefinite but the use is predicated on the specification providing examples or teachings that can be used to measure the degree. A review of the specification does not provide any indication as to what range of specific activity is covered by the terms "about" or “substantially” in the context of the claims of the instant application which requires precision to fourteen significant digits. The argument that “one having ordinary skill would readily understand the context of the term “about” as recited in the claims is not persuasive as applicant has not articulated how one of ordinary skill would make such a decision. This is merely conclusory and not persuasive.
Turning to the use of ‘substantially’, applicant argues MPEP §2173.05(b)(III)(D) provides ‘substantial’ is definite and points to Andrew Corp. This is not persuasive as Andrew was directed to illumination patterns and the instant application is directed to an acoustic wave structure. It is noted that MPEP §2173.05(b)(III)(D) indicates that in In re Nehrenberg, ‘substantially’ was definite in view of the general guidelines contained in the specification. Applicant does not discuss where in the specification any such support is found. As to the remaining arguments, applicant recites various PTAB decisions but fails to apply the facts of the decisions to the instant application and as such are merely conclusory. For example, Ex parte Ogura relates to a spring suspension system while the instant application is directed to an acoustic wave structure. It is unclear how the facts relate nor has applicant provided any persuasive explanation. Thus the remarks are merely conclusory and not persuasive.
Turning to the 35 U.S.C. 102 rejection, applicant’s remarks are persuasive and the rejection is withdrawn.
Claim Objections
Claims 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 are objected to because of the following informalities: the ellipses require removal . Appropriate correction is required.
Drawings
The drawings filed 03/28/2022 are acceptable.
Claim Interpretation Under 35 USC § 112
No claim elements in this application are presumed to invoke 35 U.S.C. 112(f).
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, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 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 pre-AIA the applicant regards as the invention.
As to claims 1, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, the claims use the term ‘about’ and/or ‘substantially’ which is indefinite. Per MPEP 2173.05(b) the use of ‘about’ and ‘substantially’ is not necessarily indefinite but that is predicated on the specification providing examples or teachings that can be used to measure a degree. A review of the specification does not provide any indication as to what range of specific activity is covered by the terms "about" or “substantially”.
Any remaining claims are rejected via dependency.
NOTE: any prior art rejection provided below is made as best understood in view of the 35 U.S.C. 112(b) issues above.
Allowable Subject Matter
Claims 1-8, 10-20 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Conclusion
THIS ACTION IS MADE FINAL. 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.
Inquiry
Any inquiry concerning this communication or earlier communications from the examiner should be directed to J. T. Newton, Esq. whose telephone number is (313)446-4899. The examiner can normally be reached 0700-1500 M-F.
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/J. T. Newton/Primary Examiner, Art Unit 3673 1/16/2026