DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 30 January 2026 has been entered.
Claim Objections
Claims 16 and 31 are objected to because of the following informalities: “a dimensioning” should be --the dimensions--. Dimensioning is the processing of measuring the volume that an object occupies. The response time is defined by the dimensions of the sensor unit not the act of measuring the dimenisons. Appropriate correction is required.
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 31 and 34-45 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
With respect to Claim 31, lines 58-59 recite “using the IR emitter to emit light into the predefined inlet area” whereas the limitation previously emitted light into the lumen of said chamber. Applicant’s figure 1 clearly shows emitter 6 not emitting into the inlet area 4. Applicant’s specification, page 3, lines 18-21 states “The inlet area 4 constitutes one or several openings…a particle filter 11 is included in the inlet area 4”. The light is not emitted near the opening or filter 11. For purposes of examination the limitation will be interpreted as --using the IR emitter to emit light into the interior flow path of the sensor unit--.
Claims 34-45 are rejected due to dependency.
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.
Claims 16, 18, 21, 22, 26, 27, 30, 31, 33, 36, 37, 41, 42 and 45 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Sultan et al. (U.S. Publication No. 2006/0153740, hereinafter Sultan) in view of Lambert et al. (U.S. Publication No. 2010/0188232, hereinafter Lambert) with CN120703176, hereinafter CN and Baum et al. (U.S. 6,599,253, hereinafter Baum) provided as evidentiary references.
With respect to Claim 16, Sultan discloses a breath test system [see fig 1 unless otherwise noted] for determining the concentration of a volatile substance [ethanol; para 3] present in a breath [para 3] of air, said breath test system comprising:
a sensor unit [100] configured to sense the concentration of a volatile substance [ethanol; para 3] present in a breath of air flowing through a predefined inlet area [108];
an apparatus configured to:
(i) register the presence of a person at a position in the vicinity of said predefined inlet area; [see fig 2 and para 47, the insertion of the key registers the presence of a person and starts passive sensor 110, para 12]
(ii) call for and direct the immediate attention of the person in the vicinity of the predefined inlet area [step 214; fig 2 para 47]; and
(iii) provide instructions [via logic box 210, para 47] to a person in the vicinity of the predefined inlet area to direct a breath of air into the predefined inlet area; and
an IR emitter [118] configured to emit a beam of broadband infrared radiation [para 37] at a modulated frequency [para 64];
a detector [126] for providing a first signal corresponding to the concentration of the volatile substance within the breath of air [para 37] and for providing a second signal corresponding to the concentration of a tracer substance [CO2; para 34] within the breath of air [para 57];
a pump [130] for generating air flow;
an analyzer [140; para 37; signal analyzed para 40] for analyzing the signals generated by the detector so as to determine the concentration of the volatile substance present the breath of air, wherein a response time of the sensor unit to air concentration variations occurring at the predefined inlet area is defined by the dimensions of the sensor unit, the modulation speed of the modulated frequency and the air flow provided by the pump.
The response time of a gas sensor always depends on the dimensions of the sensor unit, the modulation speed of the modulated frequency and the air flow provided by the pump. The applicant argues that this is a unique feature and cites page 5, lines 6-13 for support. This cited section actually says that achieving the fast response time, less than a second, partly depends on small distance between the inlet and the sensor, the small inner volume and the fast modulation frequency. A response time of a gas breath sensor is the time it takes for the sensor to measure the gas that the user breaths into the inlet. It is inherent that the gas has to move from the inlet to the sensor for this measurement to occur. A faster flow speed and a shorter distance necessarily reduces the response time. The polling rate of the actual detector also determines the response time. The examiner provides two references to support this statement of fact. CN shows, see page 9, that “the response time is obviously shortened along with the increase of the flow rate”. Baum shows that a larger volume slows sensor response time [column 13, lines 19-25], that a high modulating frequency leads to a rapid response time [claim 15], and that sub second response time results therefrom [column 3, lines 32-33 states that .2 seconds is a slow response].
Sultan does not disclose using a second sensor to measure the tracer substance, nor that the optical path between the IR emitter and the detector is folded via reflections.
Lambert discloses a similar breath sensor that measures ethanol and CO2 as a tracer that uses two separate sensors [26 and 32; para 19 and 21 shows detecting CO2 tracer and ethanol] and folds an optical path with reflections [para 35].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Sultan by using multiple reflections for the benefit of reducing the size of the device and to use two separate sensors for CO2 and ethanol for increased accuracy.
With respect to Claim 18, Sultan discloses that said volatile substance is ethanol [para 3].
With respect to Claim 21, Sultan discloses that said detector is based on substance-specific infrared absorption in predetermined wavelength bands, and further wherein said predetermined wavelength band for said first electromagnetic detector is 9.1 - 9.9 microns [para 30] corresponding to ethyl alcohol.
Lambert discloses that said predetermined wavelength band for said second electromagnetic detector is 4.4 microns corresponding to C02. While this is outside the claimed range of 4.2-4.3 microns
a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). See MPEP 2144.05.
Recall that the combination replaced Sultan’s single sensor for both ethanol and CO2 with separate sensors, and that absorption spectra are well known facts of nature. Every element has an absorption spectrum that is well known in the art.
With respect to Claim 22, Sultan discloses that the air flow provided by the pump [130] transports the breath of air from the predefined inlet area to the detector.
With respect to Claim 26, Sultan discloses that said determination of the concentration of the volatile substance present in the breath of air accounts for quality criteria, wherein said quality criteria includes at least one of a concentration of tracer gas exceeding a predefined threshold and background variations of said signal being below a predefined upper limit. Para 34 shows having tracer gas CO2 thresholds compared against ambient and allows for variations based on differences in respiration rates.
With respect to Claim 27, Sultan discloses that said system is integrated into the interior of the vehicle compartment. See fig 7a.
With respect to Claim 30, Sultan discloses that said breath test system is confined in a box [110; fig 7a] adapted to be wall-mounted in such a way that means for registering a presence of a person and said inlet are located on one side of the box and thereby accessible through a hole in the wall to which said breath test system is mounted.
With respect to Claim 31, Sultan discloses a method for determining the concentration of a volatile substance present in a breath of air, said method comprising: providing a breath test system comprising:
a sensor unit [100] configured to sense the concentration of a volatile substance [ethanol; para 3] present in a breath of air flowing through a predefined inlet area [108];
an apparatus configured to:
(i) register the presence of a person at a position in the vicinity of said predefined inlet area; [see fig 2 and para 47, the insertion of the key registers the presence of a person and starts passive sensor 110, para 12]
(ii) call for and direct the immediate attention of the person in the vicinity of the predefined inlet area [step 214; fig 2 para 47]; and
(iii) provide instructions [via logic box 210, para 47] to a person in the vicinity of the predefined inlet area to direct a breath of air into the predefined inlet area; and
an IR emitter [118] configured to emit a beam of broadband infrared radiation [para 37] at a modulated frequency [para 64];
a detector [126] for providing a first signal corresponding to the concentration of the volatile substance within the breath of air [para 37] and for providing a second signal corresponding to the concentration of a tracer substance [CO2; para 34] within the breath of air [para 57];
a pump [130] for generating air flow;
an analyzer [140; para 37; signal analyzed para 40] for analyzing the signals generated by the detector so as to determine the concentration of the volatile substance present the breath of air, wherein a response time of the sensor unit to air concentration variations occurring at the predefined inlet area is defined by the dimensions of the sensor unit, the modulation speed of the modulated frequency and the air flow provided by the pump [130];
using the IR emitter [118] to emit light into the flow path of sensor unit [100] such that said light passes through said breath of air from the predefined inlet area, such that said light is directed by the detector so as to generate a first and second signal and analyzing the first and second signals to as to determine the concentration of the volatile substance present in the breath of air [para 57 shows tracer and ethanol both sensed by 126].
Sultan does not disclose using a second sensor to measure the tracer substance, nor that the optical path between the IR emitter and the detector is folded via reflections.
Lambert discloses a similar breath sensor that measures ethanol and CO2 as a tracer that uses two separate sensors [26 and 32; para 19 and 21 shows detecting CO2 tracer and ethanol] and folds an optical path with reflections [para 35].
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to modify Sultan by using multiple reflections for the benefit of reducing the size of the device and to use two separate sensors for CO2 and ethanol for increased accuracy.
With respect to Claim 33, Sultan discloses that said volatile substance is ethanol [para 3].
With respect to Claim 36, Sultan discloses that said detector is based on substance-specific infrared absorption in predetermined wavelength bands, and further wherein said predetermined wavelength band for said first electromagnetic detector is 9.1 - 9.9 microns [para 30] corresponding to ethyl alcohol.
Lambert discloses that said predetermined wavelength band for said second electromagnetic detector is 4.4 microns corresponding to C02. While this is outside the claimed range of 4.2-4.3 microns
a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985). See MPEP 2144.05.
Recall that the combination replaced Sultan’s single sensor for both ethanol and CO2 with separate sensors, and that absorption spectra are well known facts of nature. Every element has an absorption spectrum that is well known in the art.
With respect to Claim 37, Sultan discloses that the air flow provided by the pump [130] transports the breath of air from the predefined inlet area to the detector.
With respect to Claim 41, Sultan discloses that said determination of the concentration of the volatile substance present in the breath of air accounts for quality criteria, wherein said quality criteria includes at least one of a concentration of tracer gas exceeding a predefined threshold and background variations of said signal being below a predefined upper limit. Para 34 shows having tracer gas CO2 thresholds compared against ambient and allows for variations based on differences in respiration rates.
With respect to Claim 42, Sultan discloses that said system is integrated into the interior of the vehicle compartment. See fig 7a.
With respect to Claim 45, Sultan discloses that said breath test system is confined in a box [110; fig 7a] adapted to be wall-mounted in such a way that means for registering a presence of a person and said predefined inlet area are located on one side of the box and thereby accessible through a hole in the wall to which said breath test system is mounted.
Claims 19 and 34 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Sultan and Lambert in further view of Heim (U.S. Patent No. 4,090,078, hereinafter Heim).
With respect to Claim 19, Sultan does not disclose a response time of said breath test.
Heim discloses a similar test with a response time of .3 seconds. Column 3, lines 18-24.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to use detectors, in the combination of Sulan and Fuller, with a short response time, including less than one second, for the benefit of accurate real time results.
With respect to Claim 34, Sultan does not disclose a response time of said breath test.
Heim discloses a similar test with a response time of .3 seconds. Column 3, lines 18-24.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to use detectors, in the combination of Sulan and Fuller, with a short response time, including less than one second, for the benefit of accurate real time results.
Claims 20 and 35 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Sultan and Lambert in further view of EP2127599, hereinafter EP and Der Ghazarian et al. (U.S. Publication No. 2002/0084130, hereinafter Der).
With respect to Claim 20, Sultan discloses that said system comprises registration means [110] for registering the presence of a person in the vicinity of said inlet [figs 7a-c and para 37].
Sultan does not disclose that the registration means comprises a microphone and a means for identification of the person using voice recognition and further comprise a camera and means for identification of the person using image analysis.
EP discloses a similar breathalyzer that includes a camera and identification means by image analysis that registers the presence of a user. See page 3, para 4.
Der discloses a registration means which includes a microphone [81; fig 1a] and means [para 20] for identification by voice recognition
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify further modify the combination of Sultan and Lambert to have redundant ways to detect the presence of the user to ensure the driver is actually taking the breathalyzer test.
With respect to Claim 35, Sultan discloses that said system comprises registration means [110] for registering the presence of a person in the vicinity of said inlet [figs 7a-c and para 37].
Sultan does not disclose that the registration means comprises a microphone and a means for identification of the person using voice recognition and further comprise a camera and means for identification of the person using image analysis.
EP discloses a similar breathalyzer that includes a camera and identification means by image analysis that registers the presence of a user. See page 3, para 4.
Der discloses a registration means which includes a microphone [81; fig 1a] and means [para 20] for identification by voice recognition
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify further modify the combination of Sultan and Lambert to have redundant ways to detect the presence of the user to ensure the driver is actually taking the breathalyzer test.
Claims 23-25 and 38-40 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Sultan and Lambert in further view of Stewart et al. (U.S. Publication No. 2005/0241871, hereinafter Stewart).
With respect to Claim 23, Sultan discloses calling attention to a person when a test is failed [see para 47-48], but isn’t specific as to how the attention is called.
Stewart shows a similar breathalyzer attention of a person is called for by coordinated flashing of a light [para 58], and a distinctive sound [horn; para 58] combined with a specific symbol or icon representing said breath test [“blow now” para 58].
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to have Sultan call attention via a coordinated flashing of a light, and a distinctive sound combined with a specific symbol or icon representing said breath test for the benefit of being more likely to get the attention of the driver.
With respect to Claim 24, Sultan discloses a logic box [110] communicating with the driver, see figs 7a-7c and para 47.
Sultan does not disclose that said system is configured to provide instructions to a person in the vicinity of said inlet to direct a breath of air into said inlet such that the breath of air enters said lumen of said chamber, wherein said instructions are provided to the person verbally or as text message, step by step and with the level of detail provided to the person increasing with time.
Stewart discloses that said system is configured to provide instructions to a person in the vicinity of said inlet to direct a breath of air into said inlet such that the breath of air enters said lumen of said chamber, wherein said instructions are provided to the person verbally or as text message, step by step and with the level of detail provided to the person increasing with time. See para 58
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify Sultan’s logic box to be configured to provide instructions to a person in the vicinity of said inlet to direct a breath of air into said inlet such that the breath of air enters said lumen of said chamber, wherein said instructions are provided to the person verbally or as text message, step by step and with the level of detail provided to the person increasing with time for the benefit of communicating efficiently with the driver.
With respect to Claim 25, Sultan discloses a logic box [110] communicating with the driver, see figs 7a-7c and para 47.
Sultan does not disclose that said breath test system further comprises a display for communicating messages of text, symbols, icons or images, or a loudspeaker for communicating recorded spoken messages, or symbolic sound tracks.
Stewart discloses that said breath test system further comprises a display for communicating messages of text, symbols, icons or images. See para 58, “blow now”
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to add to Sultan’s logic box a display for communicating messages of text, symbols, icons or images.
With respect to Claim 38, Sultan discloses calling attention to a person when a test is failed [see para 47-48], but isn’t specific as to how the attention is called.
Stewart shows a similar breathalyzer attention of a person is called for by coordinated flashing of a light [para 58], and a distinctive sound [horn; para 58] combined with a specific symbol or icon representing said breath test [“blow now” para 58].
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to having Sultan call attention via a coordinated flashing of a light, and a distinctive sound combined with a specific symbol or icon representing said breath test for the benefit of being more likely to get the attention of the driver.
With respect to Claim 39, Sultan discloses a logic box [110] communicating with the driver, see figs 7a-7c and para 47.
Sultan does not disclose that said system is configured to provide instructions to a person in the vicinity of said inlet to direct a breath of air into said inlet such that the breath of air enters said lumen of said chamber, wherein said instructions are provided to the person verbally or as text message, step by step and with the level of detail provided to the person increasing with time.
Stewart discloses that said system is configured to provide instructions to a person in the vicinity of said inlet to direct a breath of air into said inlet such that the breath of air enters said lumen of said chamber, wherein said instructions are provided to the person verbally or as text message, step by step and with the level of detail provided to the person increasing with time. See para 58
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify Sultan’s logic box to be configured to provide instructions to a person in the vicinity of said inlet to direct a breath of air into said inlet such that the breath of air enters said lumen of said chamber, wherein said instructions are provided to the person verbally or as text message, step by step and with the level of detail provided to the person increasing with time for the benefit of communicating efficiently with the driver.
With respect to Claim 40, Sultan discloses a logic box [110] communicating with the driver, see figs 7a-7c and para 47.
Sultan does not disclose that said breath test system further comprises a display for communicating messages of text, symbols, icons or images, or a loudspeaker for communicating recorded spoken messages, or symbolic sound tracks.
Stewart discloses that said breath test system further comprises a display for communicating messages of text, symbols, icons or images. See para 58, “blow now”
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to add to Sultan’s logic box a display for communicating messages of text, symbols, icons or images.
Claims 28 and 43 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Sultan and Lambert in view of Elfman et al. (U.S. Patent No. 4,678,057, hereinafter Elfman).
With respect to Claim 28, Sultan does not disclose a total test time for the breath test system.
Elfman discloses a similar breathalyzer system wherein the total test time of said breath test system does not exceed five seconds. See column 9, lines 39-51.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to ensure that Sultan’s total test time not exceed 5 seconds for the benefit of saving time.
Claims 29 and 44 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Sultan and Lambert in view of Ireland (U.S. Patent No. 3,792,351, hereinafter Ireland) and Henry (U.S. Patent No. 3,897,659, hereinafter Henry).
With respect to Claim 29, Sultan does not disclose further comprising capacitive and inductive electronic elements for protective purposes, and wherein said at least one electromagnetic detector and associated analog input stages is equipped with differential preamplifiers in order to suppress the influence of common mode interference.
Ireland discloses using capacitive and inductive electronic elements for protective purposes. See column 1, lines 36-55.
Henry discloses using a differential preampfiler [53; column 4, lines 48-64] in order to suppress the influence of common mode interference.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to add to Sultan capacitive and inductive electronic elements for protective purposes and a differential preamplifier in order to suppress the influence of common mode interference for the benefit of more accuracy and durability.
With respect to Claim 44, Sultan does not disclose further comprising capacitive and inductive electronic elements for protective purposes, and wherein said at least one electromagnetic detector and associated analog input stages is equipped with differential preamplifiers in order to suppress the influence of common mode interference.
Ireland discloses using capacitive and inductive electronic elements for protective purposes. See column 1, lines 36-55.
Henry discloses using a differential preampfiler [53; column 4, lines 48-64] in order to suppress the influence of common mode interference.
It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to add to Sultan capacitive and inductive electronic elements for protective purposes and a differential preamplifier in order to suppress the influence of common mode interference for the benefit of more accuracy and durability.
Response to Arguments
Applicant's arguments filed 30 January 2026 have been fully considered but they are not persuasive.
The applicant argues that the prior art doesn’t teach the newly added limitations. The examiner disagrees, as seen in the body of the rejection above.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEX T DEVITO whose telephone number is (571)270-7551. The examiner can normally be reached 12pm- 8 pm EST M-S.
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/ALEX T DEVITO/Examiner, Art Unit 2855
/JOHN E BREENE/Supervisory Patent Examiner, Art Unit 2855