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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 01 June 2026 has been entered.
Response to Arguments
The examiner recognizes the amended claim’s invocation of 112(f) in the newly amended claims. Appropriate patentable weight has been given to the claim preamble, per MPEP 2111.02(II). The examiner believes that the prior art of Durack et al still teaches an illumination assembly upstream of “a cell sorting means,” as the illumination unit of Durack et al occurs before the stream of cells is split (see Figure 2).
Applicant’s arguments, see Remarks page 9, filed 28 April 2026, with respect to the rejection under 112(a) have been fully considered and are persuasive in light of the cancellation of the claims. The 112(a) rejection of claim 31 has been withdrawn.
Applicant’s arguments, see Remarks page 9, filed 28 April 2026, with respect to the rejections under 112(b) have been fully considered and are persuasive in light of the cancellation of the claims. The 112(b) rejection of claims 22 – 37 has been withdrawn.
Status of Claims
Applicant's amendments to the claims filed 28 April 2026 have been entered. Applicant's remarks filed 28 April 2026 are acknowledged.
Claims 59 – 73 are in status “New.” Claims 1 – 58 are canceled.
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.
The following limitations are being interpreted under 112(f);
“A cell sorting flow cytometry means” and “a cell sorting means” as described in specification [0003];
“Means for conveying” as described in specification [0040];
“A controllable illumination means” as described in specification [0013];
“A heat exchange means” as described in specification [0024].
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 59, 60, 63 – 65, 68, and 70 – 72 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Durack et al (US 20050112541 A1, cited on the PTO-892 form filed 07 August 2025).
With regards to claim 59, Durack et al teaches;
The claimed limitations relating to “optically activatable cells suspended in the liquid sample” describe the material worked upon by the device. These limitations have been taken into consideration as regards the inherent features of a device capable of handling optically activatable cells suspended in a liquid sample, and have been given the appropriate patentable weight.
The claimed “an assembly connected upstream to a cell sorting flow cytometer means or to a cell sorting means” and “the optically activatable biological cells which have been treated by the controllable illumination means flow into the cell sorting flow cytometer means or the cell sorting means for treatment” has been read on the taught (Abstract, "The apparatus comprises a plurality of flow cytometry units, each of which is operable to classify particles in a mixture of particles by interrogating a stream of fluid containing the particles with a beam of electromagnetic radiation.");
The claimed “the assembly providing the light treatment” has been read on the taught ([0203], “The system 1 also includes an optics system, generally designated 109, for focusing a beam of electromagnetic radiation 25 (e.g., 350-700 nm UV or visible laser light) on the fluid stream 21…”);
The claimed “a reservoir” has been read on the taught ([0200], " In general, the system 1 comprises a supply 3 of carrier fluid 17 containing particles to be sorted…"; Supply 3 reads on a reservoir. Particles to be sorted read on an optically activatable biological sample.);
The claimed “means for conveying individual optically activatable biological cells suspended in the liquid sample at a controlled flow rate from the reservoir through a hollow channel” has been read on the taught ([0304], “The pump 645 is connected by a flow line 647 to the supply 3 of carrier fluid 17, which may be a suitable vessel 649 containing a volume of material to be analyzed and sorted… By way of example, the pump 645 may be driven by a stepper motor which operates at selectively variable rates to pump carrier fluid 17 to the needle 159 at rates necessary to obtain the desired throughput.”).
The claimed “in which the optically activatable cells are optically treated individually with a controllable illumination means, disposed along the hollow channel” ([0200], "…a fluid delivery system 15 for delivering the carrier 17 and sheath fluids 19 from respective supplies 3, 7 under pressure to the flow cytometry apparatus 9.”; [0661], “…a capillary tube 1337 (of quartz or fused silica, for example) is connected to the nozzle 137 so that fluid exiting the nozzle orifice 103 is directed into and through the tube."; A fluid delivery system 15 reads on a conveying unit. The capillary tube 1337 reads on a hollow channel.);
The claimed “the controllable illumination means illuminating the individual cells within the hollow channel at a controlled light for a controlled time as the cells move through the channel” has been read on the taught ([0203], “In any event, the cells are adapted to pass through the beam of light 25 at the interrogation location 107, resulting in excitation of a chemical stain (or other reporting medium) in the cells to cause fluorescence emissions 31 having a wavelength different from that of the beam 25….”).
With regards to claim 60, the assembly of claim 59 is anticipated by Durack et al.
Durack et al additionally teaches;
The claimed “wherein the hollow channel is a capillary, is transparent to the illumination” has been read on the taught ([0661], “FIG. 135 illustrates an alternative nozzle system, generally designated 1335, similar to that described above except that a capillary tube 1337 (of quartz or fused silica, for example) is connected to the nozzle 137 so that fluid exiting the nozzle orifice 103 is directed into and through the tube. The optics system 109 of the flow cytometer is optically coupled to the side of the tube in a suitable manner, as by a chamber 1341 filled with a light-transmitting medium such as oil or gel having a known index of refraction.”);
The claimed hollow channel having an “internal capillary diameter no larger than a sum of the diameters of two cells contained in the optically activable biological sample” has been read on the taught ([0218], "It is desirable that the size of the orifice 103 be such that the cells exiting the nozzle 101 are substantially in single file formation within the core 189 of the stream 21…"; The orifice being sized such that the cells are single file reads on the capillary diameter being no larger than a sum of the diameters of two cells. See also [0209]).
With regards to claim 63, the assembly of claim 59 is anticipated by Durack et al.
Durack et al additionally teaches;
The claimed “wherein the controllable illumination means comprises at least one of light sources which are lights, a mixture of LEDs, laser diodes, halogen lamps, gas discharge lamps, LCDs, LEDs, an OLED display unit, a projector or quantum dot lights” has been read on the taught ([0252], “… the optical elements include a reflecting filter 431 which reflects a collimated beam 25 of light from a laser or arc lamp 435…”; A laser reads on a laser diode).
With regards to claim 64, the assembly of claim 59 is anticipated by Durack et al.
Durack et al additionally teaches;
The claimed “the controllable illumination means includes at least one light guide disposed along the hollow channel, and at least one light exit zone directed onto the hollow channel laterally with respect to a longitudinal extension of the at least one light guide, and the light guide is optically coupled into the at least one guide” has been read on the taught ([0284], “The fiber optic cable 4205 extends from the light source to a location downstream of the interrogation location 115. For example, in the exemplary embodiment the fiber optic cable 4205 leads to a location adjacent the trajectory of one of the droplet streams as it moves through the electric field between the deflector plates 629.”).
With regards to claim 65, the assembly of claim 59 is anticipated by Durack et al.
Durack et al additionally teaches;
The claimed “the hollow channel is thermally coupled to a heat exchanger” has been read on the taught ([0576], “Conventional temperature control apparatus and methods (e.g., water baths, incubators, coolers, and freezers) may be used to heat or cool the sample to attain or maintain the specified temperatures in the foregoing embodiments of the invention.”).
With regards to claim 68, the assembly of claim 59 is anticipated by Durack et al.
Durack et al additionally teaches;
The claimed “the controllable illumination means controls illumination of the optically activatable biological cells with a specifiable illumination period, which irradiates the cells passing one at a time through the hollow channel at a constant specifiable light intensity and wavelength or at a specifiable spectrum of wavelengths” has been read on the taught ([0022], “Preferably, the plurality of the light sources can be divided into at least two groups, wherein the at least two groups of light sources differ from each other in one of the following properties: beam intensity, emitted wavelength or wavelength spectrum. In this way, the sample can be individually optically stimulated or activated in a controlled manner, both in terms of irradiation time, irradiation intensity and also irradiation spectrum.”; Irradiation time reads on a specifiable illumination period. [0218] describes that the cells should be in “substantially single file formation.”).
With regards to claim 70, the assembly of claim 59 is anticipated by Durack et al.
Durack et al additionally teaches;
The claimed wherein “the cell sorting means comprises a fluorescence light activated cell sorter” has been read on the taught ([0282], “…an automated continuous calibration system 4201 of the present invention for a fluorescence activated droplet sorting cytometry system comprises one or more epi-illumination sensors 4203 positioned to sense the contents of droplets 33 to verify the delay setting for droplet charging.”).
With regards to claim 71, the assembly of claim 70 is anticipated by Durack et al.
Durack et al additionally teaches;
The claimed “the cell sorting flow cytometer means has at least one pressure source driving the means for conveying” has been read on the taught ([0304], "In one embodiment, the fluid delivery system includes a syringe pump 645…"; the syringe pump reads on a pressure source).
With regards to claim 72, the assembly of claim 59 is anticipated by Durack et al.
Durack et al additionally teaches;
The claimed “the means for conveying comprises a membrane pump or a syringe pump” has been read on the taught ([0304], "In one embodiment, the fluid delivery system includes a syringe pump 645…").
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. 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.
Claims 61, 62, 66, 67, and 69 are rejected under 35 U.S.C. 103 as being unpatentable over Durack et al (US 20050112541 A1, cited on the PTO-892 form filed 07 August 2025) in view of Brenker et al (US 20190025187 A1, effectively filed 03 September 2015, cited on the PTO-892 form filed 07 August 2025).
With regards to claim 61, the assembly of claim 59 is anticipated by Durack et al.
However, Durack et al does not explicitly disclose wherein the controllable illumination means includes light sources, disposed outside the hollow channel at least in sections along the hollow channel in an axial array relative to the hollow channel, and the light sources are controlled individually or in groups by the controllable illumination means.
In the analogous art of optical preconditioning devices, Brenker et al teaches;
The claimed “a hollow channel” has been read on the taught ([0032], “…a device 1 for the optical stimulation of an optically activatable biological sample 3 located in a sample container 2.”; Sample container 2 reads on a hollow channel. [0036] clarifies that the sample container may be part of a flow cytometer, reciting “the supply line or measuring capillary 17 of which protrudes into the sample container 2 from above to provide a suction of the sample into the flow cytometer 16.”);
The claimed “wherein the controllable illumination means includes light sources, disposed outside the hollow channel at least in sections along the hollow channel in an axial array relative to the hollow channel” has been read on the taught ([0021], “Preferably, a plurality of light sources is arranged in a distribution which is oriented both in the axial direction and in the circumferential direction of the hollow channel section…”; [0022], “Preferably, the plurality of the light sources can be divided into at least two groups…”; The plurality of light sources, divided into at least two groups, and oriented in an axial direction reads on first light sources disposed outside the hollow channel in at least sections along the hollow channel in an axial array relative to the hollow channel.);
The claimed first light sources “which are controllable individually or in groups” has been read on the taught ([0022], “Preferably, the plurality of the light sources can be divided into at least two groups, wherein the at least two groups of light sources differ from each other in one of the following properties: beam intensity, emitted wavelength or wavelength spectrum. In this way, the sample can be individually optically stimulated or activated in a controlled manner, both in terms of irradiation time, irradiation intensity and also irradiation spectrum.”; The sample being activated in a controlled manner by light sources divided into groups, wherein the groups differ from one another, reads on the light sources being controllable individually or in groups. See also [0023], which outlines a control and/or regulating device for the at least one light source.).
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 assembly including a hollow channel and a laser illumination unit disposed along the hollow channel as taught by Durack et al with the axial arrangement of controllable light sources as taught by Brenker et al, for the benefit of providing even irradiation in the circumferential direction, as taught by Brenker et al ([0021], “Preferably, a plurality of light sources is arranged in a distribution which is oriented both in the axial direction and in the circumferential direction of the hollow channel section, so that the biological sample is also irradiated with light as evenly as possible in the circumferential direction.”).
With regards to claim 62, the assembly of claim 61 is obvious over Durack et al in view of Brenker et al.
Durack et al does not explicitly disclose wherein the controllable illumination means comprises additional light sources, disposed outside the hollow channel which are offset with respect to at least the first light sources in a circumferential direction around the hollow channel and in sections disposed along the hollow channel in an axial array, with the light sources being controlled individually or in groups by the controllable illumination means.
Brenker et al additionally discloses;
The claimed “the controllable illumination means comprises additional light sources, disposed outside the hollow channel which are offset with respect to at least the first light sources in a circumferential direction around the hollow channel and in sections disposed along the hollow channel in an axial array, with the light sources being controlled individually or in groups by the controllable illumination means” has been read on the taught ([0021], “Preferably, a plurality of light sources is arranged in a distribution which is oriented both in the axial direction and in the circumferential direction of the hollow channel section, so that the biological sample is also irradiated with light as evenly as possible in the circumferential direction.”; The distribution of the plurality of light sources also being in a circumferential direction reads on the additional light sources being offset with respect to at least the first light sources. See rejection of claim 24 for details regarding the plurality of light sources being controllable individually or in groups.).
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 assembly including a hollow channel and a laser illumination unit disposed along the hollow channel as taught by Durack et al with the axial arrangement of controllable light sources as taught by Brenker et al, for the benefit of providing even irradiation in the circumferential direction, as taught by Brenker et al ([0021], “Preferably, a plurality of light sources is arranged in a distribution which is oriented both in the axial direction and in the circumferential direction of the hollow channel section, so that the biological sample is also irradiated with light as evenly as possible in the circumferential direction.”).
With regards to claim 66, the assembly of claim 65 is anticipated by Durack et al.
Durack et al does not explicitly disclose wherein the heat exchange means is a hollow cylinder radially surrounding the hollow channel which encloses an annular channel having a hollow channel wall, through which a temperature-controlled liquid flows that is thermally coupled to the hollow channel wall to control temperature of the optical activatable biological cells inside the hollow channel.
In the analogous art of optical preconditioning devices, Brenker et al teaches;
The claimed “the heat exchange means is a hollow cylinder radially surrounding the hollow channel which encloses an annular channel having a hollow channel wall, through which a temperature-controlled liquid flows that is thermally coupled to the hollow channel wall to control temperature of the optical activatable biological cells inside the hollow channel” has been read on the taught ([0032], “…The device has a container 4, implemented in the form of a straight hollow cylinder, whose inner peripheral surface 5, outer peripheral surface 6 and annular base plate 7 bound a flow volume 8 open at the top. The flow volume 8 therefore represents an annular, cup-like volume, into which via a supply pipe 9 a fluid 10, preferably water, is introduced, which preferably completely fills the flow volume 8. The fluid 10 is fed via an outlet line 11 of a temperature control unit 12, which by operation of the pump sets the fluid into a constant fluid circulation, so that the fluid located in the flow volume 8 always has a homogeneous temperature that can be specified using the temperature control unit 12.” Container 4, holding a volume of fluid with a homogenous temperature, reads on the heat exchanger. See also [0033]).
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 assembly of claim 28 including a heat exchanger as taught by Durack et al with the heat exchanger comprising a hollow cylinder radially surrounding a hollow channel as taught by Brenker et al, for the benefit of designing an assembly which allows for highly reliable and reproducible temperature control, as taught by Brenker et al ([0013], “…the device according to the solution creates, by the thermal coupling of both the at least one light source and the optically activatable sample to a temperature-controlled fluid circuit through which fluid flows, physically defined measurement conditions, which are a prerequisite for scientifically reliable, i.e. reproducible measurement signals, which are obtained by means of a flow cytometer.”).
With regards to claim 67, the assembly of claim 66 is obvious over Durack et al in view of Brenker et al.
Durack et al does not explicitly disclose wherein at least a portion of the controllable illumination means is disposed inside the annular channel and is thermally coupled to the temperature-controlled liquid.
Brenker et al additionally teaches;
The claimed “at least a portion of the illumination means is disposed inside the annular channel and is thermally coupled to the temperature-controlled liquid” has been read on the taught ([0010], “The at least one light source is thermally coupled to a hollow channel section…”; [0015], “…the at least one light source is designed and arranged such that at least part of the at least one light source is arranged inside the fluid channel section.”).
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 assembly including a light source and fluid channel as taught by Durack et al in view of Brenker et al, with the light sources disposed inside the fluid channel as taught by Brenker et al, for the benefit of controlling the temperature of the light sources and maintaining highly reliable and reproducible temperatures, as taught by Brenker et al ([0015], “…for the purposes of thermal coupling to the temperature-controlled fluid circuit which is permeated by fluid, the at least one light source is designed and arranged such that at least part of the at least one light source is arranged inside the fluid channel section”; [0013], “…the device according to the solution creates, by the thermal coupling of both the at least one light source and the optically activatable sample to a temperature-controlled fluid circuit through which fluid flows, physically defined measurement conditions, which are a prerequisite for scientifically reliable, i.e. reproducible measurement signals, which are obtained by means of a flow cytometer.”).
With regards to claim 69, the assembly of claim 65 is anticipated by Durack et al.
Durack et al teaches that any known method of heat exchange may be used (see [0576]). However, Durack et al does not explicitly disclose wherein the heat exchange means controls temperature of the cells in the liquid sample while passing through the hollow channel.
In the analogous art of optical preconditioning devices, Brenker et al teaches;
The claimed “the heat exchange means controls temperature of the cells in the liquid sample while passing through the hollow channel” has been read on the taught ([0032], “…The device has a container 4, implemented in the form of a straight hollow cylinder, whose inner peripheral surface 5, outer peripheral surface 6 and annular base plate 7 bound a flow volume 8 open at the top. The flow volume 8 therefore represents an annular, cup-like volume, into which via a supply pipe 9 a fluid 10, preferably water, is introduced, which preferably completely fills the flow volume 8. The fluid 10 is fed via an outlet line 11 of a temperature control unit 12, which by operation of the pump sets the fluid into a constant fluid circulation, so that the fluid located in the flow volume 8 always has a homogeneous temperature that can be specified using the temperature control unit 12.” Container 4, holding a volume of fluid with a homogenous temperature, reads on the heat exchanger. See also [0033]).
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 assembly of claim 28 including a heat exchanger as taught by Durack et al with the heat exchanger comprising a hollow cylinder radially surrounding a hollow channel as taught by Brenker et al, for the benefit of designing an assembly which allows for highly reliable and reproducible temperature control, as taught by Brenker et al ([0013], “…the device according to the solution creates, by the thermal coupling of both the at least one light source and the optically activatable sample to a temperature-controlled fluid circuit through which fluid flows, physically defined measurement conditions, which are a prerequisite for scientifically reliable, i.e. reproducible measurement signals, which are obtained by means of a flow cytometer.”).
Claim 73 is rejected under 35 U.S.C. 103 as being unpatentable over Durack et al (US 20050112541 A1).
With regards to claim 73, the assembly of claim 59 is anticipated by Durack et al.
Durack et al additionally teaches;
The claimed “the cell sorting means includes sample containers each for receiving parts of the optical activatable biological cells of the liquid sample” has been read on the taught ([0277], “While sorting produces two groups or populations of droplets 123, 125 in FIG. 2, the particles may be separated into any number of populations from 1 to N sorted by placing different charges on the droplets 33 in respective groups, any by supplying the appropriate number of collection vessels, each being positioned to collect a different population of droplets.”).
However, Durack et al does not explicitly disclose wherein the controllable illumination means illumianets the cells collected in the containers.
According to MPEP 2144.04(VI)(B), “mere duplication of parts has no patentable significance unless a new and unexpected result is produced.”—see In reHarza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960). Likewise, according to MPEP 2144.04(VI)(C) teaches that rearrangement of parts may be prima facie obvious—see In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950). In the case of the instant application, no unexpected result is obtained from the controllable illumination means being capable of illuminating the cells collected in the containers. Accordingly, 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 assembly as taught by Durack et al with the illumination means capable of illuminating cells collected in the containers, for the predictable result of irradiating an already sorted group of cells.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALISON CLAIRE GERHARD whose telephone number is (571)270-0945. The examiner can normally be reached M-F, 9:00 - 5:30pm EST.
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/ALISON CLAIRE GERHARD/Examiner, Art Unit 1797 /LYLE ALEXANDER/Supervisory Patent Examiner, Art Unit 1797
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