DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after 16 March 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
The amendment to the claims filed 15 January 2026 has been entered. Claim(s) 43 is/are currently amended. Claim(s) 1-33 has/have been canceled. Claim(s) 34-76 is/are pending, with claim(s) 34-42 and 45-76 withdrawn from consideration for being drawn to a non-elected invention and/or species.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
Determining the scope and contents of the prior art.
Ascertaining the differences between the prior art and the claims at issue.
Resolving the level of ordinary skill in the pertinent art.
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.
Claim(s) 43-44 is/are rejected under 35 U.S.C. 103 as obvious over US 2016/0151009 A1 (previously cited, Rudmann) in view of US 2009/0268204 A1 (previously cited, Tkachuk).
Regarding claims 43-44, Rudmann discloses and/or suggests a sensor for detection of transcutaneous gas, the sensor comprising:
at least one radiation source for emitting radiation (radiation source 3);
at least one detector for detection of radiation emitted by the source (detector 5);
at least one mirror for reflecting the radiation (reflective layer 32, reflective surface 36 and/or reflecting element 20);
at least one measurement chamber for receiving the gas to be measured (measurement volume 4), the radiation source, the detector, the mirror, and the measurement chamber being arranged such that at least a part of the radiation propagates along a path involving a reflection at the mirror and passing through the measurement chamber (e.g., Figs. 1, 3, etc. path 6);
a contact face which is directable towards a measuring site (contact face 2); and
a casing (casing 33 including plate-like elements 40),
wherein at least one of the total length of the shortest complete optical path followed by measurement radiation from the radiation source via the measurement chamber to a detection surface does not exceed 10 mm (¶ [0219]), and the sensor has a size and shape fitting into a virtual volume of 5 cm3 (¶ [0216]).
wherein the mirror is arranged at a distance from the contact face (see, e.g., Figs. 1-6, 9-11, 14-17, etc., where reflective layer 32 and/or reflective surface 36 are separated from, i.e., not on the same plane as, contact face 2; Figs. 9-10, etc., where reflecting element 20 is separated from contact face 2; etc.).
Rudmann does not expressly disclose the mirror is arranged at a distance, and is thermally decoupled, from the casing, wherein a thermally insulating layer is arranged between the mirror and the casing, the thermally insulating layer comprising a material having a thermal conductivity less than 10 W/m/K. However, Rudmann does disclose the mirror (e.g., reflective layer 32, reflective surface 36 and/or reflecting element 20) may be mounted on and/or a part of the casing (e.g., Figs. 1-6, 9-11, 14-17, etc.).
Tkachuk discloses a sensor comprising, inter alia, at least one mirror for reflecting emitted radiation (mirror(s) 4, 5); a casing (chamber 6); a thermally insulating layer arranged between the mirror and the casing, such that the mirror is arranged at a distance from the casing and is thermally decoupled from the casing (¶ [0068] mirror elements 4, 5 may comprise mirrors affixed to chamber walls; ¶¶ [0082]-[0089] sensors are preferably provided with a condensation preventor by forming a substrate 12b upon which the mirror surface 12a is supported from a material with a low thermal capacity and low thermal conductivity), the thermally insulating layer including a material having a thermal conductivity less than 10 W/m/K (e.g., ¶ [0087] substrate 12b may be plastic with a thermal conductivity of approx. 0.033 W/m per degree Celsius).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the sensor of Rudmann to further comprise a thermally insulating layer arranged between the mirror and the casing, the thermally insulating layer having a thermal conductivity less than 10 W/m/K, such that the mirror is arranged at a distance from, and thermally decoupled from, the casing as disclosed and/or suggested by Tkachuk in order to prevent the condensation of water on optical surfaces forming part of the path (Tkachuk, ¶ [0045]).
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive.
With respect to Tkachuk, Applicant contends, "a person skilled in the art would therefore not take into account a device as shown in Tkachuk '204 when he wants to improve a sensor for detection of transcutaneous gas" (Remarks, pg. 11).
The examiner respectfully disagrees. Rudmann, which discloses/suggests a small-volume sensor for detection of transcutaneous gas (e.g., ¶ [0157], ¶¶ [0216]-[0219], etc.), discloses condensation in the measurement volume and diffusion paths should be prevented (e.g., ¶ [0125]). Accordingly, one of ordinary skill in the art would have sufficient motivation to look to comparable optical gas analyzers, such as those disclosed by Tkachuk, particularly the means for preventing condensation of said analyzers. Tkachuk discloses providing a thermally insulating layer (thermal isolator) between a casing within a measuring environment and optical components of the sensor (reflective surface, mirror, etc.) is one passive form to prevent such condensation, and therefore would have been an obvious modification to Rudmann for at least the reasons noted in the rejection of record above (e.g., preventing/further preventing condensation that reduces signal quality).
Applicant further contends the problem to be solved by Tkachuk and the present application is "completely different." Specifically, Applicant contends Tkachuk is worn in various environments with most significant problems occurring when the monitor moves from a cold environment into a warm environment, thereby causing water to condense on optical parts of the chamber. Applicant contends the present application, in contrast, is used in a specific, unchanging environment, preferably actively heated, etc. (Remarks, pgs. 11-12).
The examiner respectfully disagrees. Tkachuk is analogous art as it is both within the same field as Applicant's endeavor (pg. 1, lines 3-5, gas sensors, in particular sensors for detection of CO2) (see, Tkachuk, e.g., ¶ [0003]), and reasonably pertinent to the problem faced by the inventor, i.e., reducing risk of water condensation on mirror surfaces (pg. 13, lines 16-19). Further, as noted above, Rudmann expressly discloses condensation within the measurement chamber should be avoided, and Tkachuk discloses the claimed means for preventing said condensation, which may be utilized in combination with other, active prevention means (e.g., heating) (¶ [0089]), thereby providing sufficient motivation for one of the ordinary skill in the art to combine said teachings.
Lastly, Applicant contends Tkachuk fails to disclose the newly added limitations of claim 43 (Remarks, pg. 12).
As noted in the rejection of record above, the primary reference to Rudmann discloses both of the newly added limitations, tough only one is required to meet the limitations of claim 43 due to the "at least one of" language. The proposed combination is not to enlarge the measurement chamber/path of Rudmann to the size of the chamber/path disclosed by Tkachuk, but to incorporate features disclosed by Tkachuk for preventing condensation within the measurement chamber, e.g., on the optical/mirror surfaces thereof, into the small volume sensor disclosed by Rudmann, so condensation within the measurement chamber is prevented (Rudmann, ¶ [0125]; Tkachuk, ¶ [0045]; etc.).
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 extension fee 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 date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Meredith Weare whose telephone number is 571-270-3957. The examiner can normally be reached Monday - Friday, 9 AM - 5 PM.
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/Meredith Weare/Primary Examiner, Art Unit 3791