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 .
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.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 March 31, 2026 has been entered.
Information Disclosure Statement
The information disclosure statement(s) filed on April 15, 2026; April 7, 2026 have/has been acknowledged and considered by the examiner. Initialed copies of supplied IDS(s) forms are included in this correspondence.
Drawings
The drawings were received on March 31, 2026. These drawings are accepted.
Response to Amendment
Re: USC 112(b) rejections
Applicant’s amendments have not resolved the issues regarding the band filter having a lower wavelength value and an upper wavelength value.
The amended language regarding the transmittance being set based on the visual characteristics introduces additional indefiniteness, see below.
Re: USC 112(a) rejections
Applicant’s amendments have not resolved the USC 112(a) issues. Specifically, the claim recites a function (filtering the wavelength band) without setting forth any structural elements for achieving the function, and thus covers all possible means for achieving the function. Similarly, Applicant’s specification fails to disclose a representative number of species to support the breadth of materials and structure to achieve the filtering of the wavelength band as claimed.
Re: USC 102/103
Does claim 45 continue to cover a 420-500nm bandpass filter? Yes. Then the art remains the same. Applicant’s amendment regarding how the transmittance is set does not structurally or functionally differentiate the claimed invention from the prior art. Such language is directed to the mental design/process of choosing the transmittance. Such claims are not limited by the steps, only the structure implied by the steps (MPEP 2113), which is the 420-500nm bandpass filter (300Rod) of Figure 3A with an arbitrarily set transmittance.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 45-49, 51-52 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
As to claim 45, the claim recites “a first band filter configured to…” and then recites a desired wavelength band to be filtered - i.e. the functional result of the optical filter. Such breadth covers the genus of optical materials and structures to achieve the desired wavelength bandpass filtering. As per MPEP 2163.II.A.3.ii, Applicant must disclose a representative number of species to evidence possession of the entire genus. Applicant’s specification has not disclosed a single species of materials and structures of such filter having such bandpass properties.
MPEP 2163.II.A.3.ii - The written description requirement for a claimed genus may be satisfied through sufficient description of a representative number of species by actual reduction to practice (see i)(A) above), reduction to drawings (see i)(B) above), or by disclosure of relevant, identifying characteristics, i.e., structure or other physical and/or chemical properties, by functional characteristics coupled with a known or disclosed correlation between function and structure, or by a combination of such identifying characteristics, sufficient to show the inventor was in possession of the claimed genus (see i)(C) above). See Eli Lilly, 119 F.3d at 1568, 43 USPQ2d at 1406. See Juno Therapeutics, Inc. v. Kite Pharma, Inc., 10 F.4th 1330, 1337, 2021 USPQ2d 893 (Fed. Cir. 2021).
As to claim 45, the claim recites “wherein the transmittance of the optical filter in the first wavelength band is set based on the visual characteristics of the first wavelength band of the human subject” which appears to be prohibited new matter. Specifically, claim 45 is directed to as per the election set forth in the Office Action mailed June 23, 2025, filter 300Rod. The amended subject matter is directed to a correction filter BRod in Figure 6. The transmittance of 300Rod is not set based on the visual characteristics of the first wavelength band of the human subject.
Claims 46-49, 51-52 are rejected as dependent upon claim 45.
Claims 45-49, 51-53 are rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, because the claim purports to invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, but fails to recite a combination of elements as required by that statutory provision and thus cannot rely on the specification to provide the structure, material or acts to support the claimed function. As such, the claim recites a function that has no limits and covers every conceivable means for achieving the stated function, while the specification discloses at most only those means known to the inventor. Accordingly, the disclosure is not commensurate with the scope of the claim.
As to claims 45-49, 51-52, the claims cover all possible means for achieving the function of filtering the claimed wavelength(s) without setting forth any material or structural elements thereof.
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 45-49, 51-52 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.
As to claim 45, the claim recites “to attenuate an intensity of the transmitted light in a first wavelength band between a lower wavelength value and an upper wavelength value…the first wavelength band includes a wavelength band from PS…to Xs-rod” which is unclear in light of Applicant’s disclosure and the filter shown in Fig. 3A.
Specifically, the filter of Figure 3A is shown to have transmittance of 100% from the band Ps to Xs-rod, thus it is unclear how a transmittance of 100% “attenuates an intensity” of light passing therethrough. With 100% transmittance, those of ordinary skill in the art would understand all the light passes through and thus no attenuation of intensity. Applicant appears to be using the term inconsistent with the customary meaning (MPEP 2173.05(a)).
For purposes of compact prosecution, Examiner will understand the claim as being directed to changing the transmittance outside the passband of Ps to Xs-rod.
As to claim 45, the claim recites “wherein the transmittance of the optical filter in the first wavelength band is set based on the visual characteristics of the first wavelength band of the human subject” which is a relative/subjective term (MPEP 2173.05(b)). Specifically, the transmittance appears to be dependent upon the variable object/subjective opinion of the visual characteristic/needs of the human. Infringement is unclear since the identical filter (e.g. Figure 3A 300Rod) for one human may provide the needed filtering while for another human may not. Thus filter 300Rod would simultaneously infringe and not infringe itself based on which human uses the device.
As to claim 45, the claim recites “band filter…a lower wavelength value…an upper wavelength value” which is unclear in light of Applicant’s specification and what those of ordinary skill in the art understand about filter terminology. Generally, such features of optical filters are with reference to a full width half maximum (FWHM)1. Applicant’s specification does not specify whether this standard is used to denote the lower/upper values of the band. As best as Examiner understands, Applicant appears to have drawn an idealized filter (Fig. 3A) having perfect flattop and vertical upper and lower cut-on/off limits, however such filter is only idealized, not an actual real world device. The metes and bounds are unclear since what constitutes an “lower wavelength value”, “upper wavelength value” appears without context to what those of ordinary skill in the art understand (MPEP 2173.05(h)). For purposes of compact prosecution, Examiner will understand the art such that so long as the cut-off edge includes the claimed wavelength(s), such features will be considered met.
Claims 46-49, 51-52 are rejected as dependent upon claim 45.
Claim Rejections - 35 USC § 102
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 45-49, 51-52 are rejected under 35 U.S.C. 102(a1) as being anticipated by Semrock 2018 Master Catalog (herein Semrock; of record) with evidence by Idex FF02-460/80-25 Filter data (herein Idex; of record).
As to claim 45 (as understood), Semrock teaches an optical filter configured to change visual characteristics of a human subject wearing the optical filter comprising a first band filter configured to define a spectrum of light transmitted through the optical filter in a wavelength band (Semrock page 49 - bandpass filter FF02-460/80-25; Idex - filter spectrum), the first band filter being further configured to attenuate an intensity of the transmitted light in a first wavelength band, the first wavelength band being a band within a visible light band that is not shorter than a lower wavelength value and not longer than an upper wavelength value (Semrock page 49 - bandpass filter FF02-460/80-25; Idex - filter spectrum having passband of 420nm to 500nm),
the first wavelength band is a wavelength band to which rod cells of a human are sensitive (Semrock - FF02-460/80-25; Idex - filter spectrum being bandpass for 420-500nm),
wherein the first wavelength band includes a wavelength band from a wavelength Ps at which S cone cells of the human have a highest sensitivity and to a wavelength Xs-rod at which an absorption spectrum of S cone cells of the human and an absorption spectrum of the rod cells intersect each other (Semrock - FF02-460/80-25; Idex - filter spectrum being bandpass for 420-500 which includes Ps ≈ 420nm and Xs-rod ≈ 453nm), and
wherein the lower wavelength value of the first wavelength band is set to the wavelength Ps (Semrock - FF02-460/80-25; Idex - filter spectrum being set to 420nm);
wherein transmittance of the optical filter in the first wavelength band is set based on the visual characteristics of the first wavelength band of the human subject (Semrock - FF02-460/80-25; such feature directed to PxP design which does not structurally/functionally distinguish the claimed filter from Semrock (MPEP 2113)).
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As to claim 46, Semrock teaches all the limitations of the instant invention as detailed above with respect to claim 45, and Semrock further teaches an upper wavelength value of the first wavelength band is set between the wavelength Xs-Rod and a wavelength Xrod-M at which an absorption spectrum of the rod cells and an absorption spectrum of M cone cells of the human intersect each other (Semrock - FF02-460/80-25; Idex - filter spectrum being having upper limit ~500nm which is between Xs-rod (≈ 453nm) and Xrod-M (≈ 515nm)).
As to claim 47, Semrock teaches all the limitations of the instant invention as detailed above with respect to claim 45, and Semrock further teaches when Δ represents a difference between the wavelength Xs-rod and a wavelength PRod at which the rod cells have a highest sensitivity and an upper wavelength value of the first wavelength band is set to a value within a wavelength range Prod ± Δ (Semrock - FF02-460/80-25; Idex - filter spectrum having upper limit at 500nm which is within 498nm ± 17nm (PRod ≈ 498nm; Xrod-M ≈ 515nm) and Δ = (515nm - 498nm = 17nm)).
As to claim 48, Semrock teaches all the limitations of the instant invention as detailed above with respect to claim 46, and Semrock further teaches the upper wavelength value of the first wavelength band is set to the wavelength Prod at which the rod cells have a highest sensitivity (Semrock - FF02-460/80-25; Idex - filter spectrum being having upper limit at ~500nm).
As to claim 49, Semrock teaches all the limitations of the instant invention as detailed above with respect to claim 46, and Semrock further teaches the upper wavelength of the first wavelength band is set to 498nm (Semrock - FF02-460/80-25; Idex - filter spectrum designed with FWHM being 86.1nm where 498nm is included the upper band 460nm + (86.1/2) = 503nm).
As to claim 51, Semrock teaches all the limitations of the instant invention as detailed above with respect to claim 46, and Semrock further teaches the upper wavelength of the first wavelength band is set to 420nm (Semrock - FF02-460/80-25; Idex - filter spectrum designed with lower wavelength being 420nm).
As to claim 52, Semrock teaches all the limitations of the instant invention as detailed above with respect to claim 46, and Semrock further teaches the absorption spectrum of the S cone cells is an absorption spectrum of the S cone cells of the human normalized by a maximum value of the absorption spectrum of the S cone cells of the human, wherein an absorption spectrum of the rod cells is an absorption spectrum of the rod cells of the human normalized by a maximum value of the absorption spectrum of the rod cells of the human, and wherein the absorption spectrum of M cone cells is an absorption spectrum of the M cone cells of the human normalized by a maximum value of the absorption spectrum of the M cone cells of the human (Semrock - FF02-460/80-25; Idex - filter spectrum being bandpass for 420-500nm).
Claims 45-47, 51-53 are rejected under 35 U.S.C. 102(a2) as being anticipated by Owaki (US 2022/0337319; of record).
As to claim 45 (as understood), Owaki teaches an optical filter configured to change a visual characteristic of a human subject wearing the optical filter comprising a first band filter configured to define a spectrum of light transmitted through the optical filter in a wavelength band (Owaki Fig. 5 - 71a), the first band filter being further configured to attenuate an intensity of the transmitted light in a first wavelength band, the first wavelength band being a band within a visible light band that is not shorter than a lower wavelength value and not longer than an upper wavelength value (Owaki Fig. 5 - 71a; para. [0058]),
the first wavelength band is a wavelength band to which rod cells of a human are sensitive (Owaki Fig. 5 - 71a; para. [0058]),
wherein the first wavelength band includes a wavelength band from a wavelength Ps at which S cone cells of the human have a highest sensitivity and to a wavelength Xs-rod at which an absorption spectrum of S cone cells of the human and an absorption spectrum of the rod cells intersect each other (Owaki Fig. 5 - 71a; para. [0058]), and
wherein the lower wavelength value of the first wavelength band is set to the wavelength Ps (Owaki Fig. 5 - 71a; para. [0058] - lower limit set to 420nm);
wherein transmittance of the optical filter in the first wavelength band is set based on the visual characteristics of the first wavelength band of the human subject (Owaki Fig. 5; para. [0058], [0059]; such feature directed to PxP design which does not structurally/functionally distinguish the claimed filter from Owaki (MPEP 2113)).
As to claim 46, Owaki teaches all the limitations of the instant invention as detailed above with respect to claim 45, and Owaki further teaches an upper wavelength value of the first wavelength band is set between the wavelength Xs-Rod, and a wavelength Xrod-M at which an absorption spectrum of the rod cells and an absorption spectrum of M cone cells of the human intersect each other (Owaki Fig. 5 - 7a; para. [0058] - upper limit ~490nm which is between Xs-rod (453nm) and Xrod-m (515nm)).
As to claim 47, Owaki teaches all the limitations of the instant invention as detailed above with respect to claim 45, and Owaki further teaches when Δ represents a difference between the wavelength Xs-rod and a wavelength PRod at which the rod cells have a highest sensitivity, and an upper wavelength value of the first wavelength band is set within a wavelength range Prod ± Δ (Owaki Fig. 5 - 7a; para. [0058] - upper limit ~490nm which is between 498nm ± 17nm (PRod ≈ 498nm; Xrod-m ≈ 515nm) and Δ = (515nm - 498nm = 17nm)).
As to claim 51, Owaki teaches all the limitations of the instant invention as detailed above with respect to claim 45, and Owaki further teaches a lower wavelength value of the first wavelength band is set to 420nm (Owaki Fig. 5; para. [0058]).
As to claim 52, Owaki teaches all the limitations of the instant invention as detailed above with respect to claim 46, and Owaki further teaches the absorption spectrum of the S cone cells is an absorption spectrum of the S cone cells of the human normalized by a maximum value of the absorption spectrum of the S cone cells of the human, wherein an absorption spectrum of the rod cells is an absorption spectrum of the rod cells of the human normalized by a maximum value of the absorption spectrum of the rod cells of the human, and wherein the absorption spectrum of M cone cells is an absorption spectrum of the M cone cells of the human normalized by a maximum value of the absorption spectrum of the M cone cells of the human (Owaki Fig. 5 - 71a; para. [0058]).
As to claim 53, Owaki teaches all the limitations of the instant invention as detailed above with respect to claim 45, and Owaki further teaches the optical filter is configured to define the intensity of light of the first wavelength band based on the visual characteristics of the first wavelength band of the human subject (Owaki Fig. 5 - 71a; para. [0058]).
Claims 45-49, 51-53 are rejected under 35 U.S.C. 102(a1) as being anticipated by Flinders (US 2016/0026005; of record).
As to claim 45, Flinders teaches an optical filter configured to change visual characteristics of a human subject wearing the optical filter (Flinders Figs. 1-2B; para. [0003]) comprising a first band filter configured to define a spectrum of light transmitted through the optical filter in a wavelength band (Flinders Figs. 2A, B), the first band filter being further configured to attenuate an intensity of the transmitted light in a first wavelength band, the first wavelength band being a band within a visible light band that is not shorter than a lower wavelength value and not longer than an upper wavelength value (Flinders Figs. 2A, B; para. [0044]),
the first wavelength band is a wavelength band to which rod cells of a human are sensitive (Flinders Figs. 2A, B; para. [0044]),
wherein the first wavelength band includes a wavelength band from a wavelength Ps at which S cone cells of the human have a highest sensitivity and to a wavelength Xs-rod at which an absorption spectrum of S cone cells of the human and an absorption spectrum of the rod cells intersect each other (Flinders Figs. 2A, B; para. [0044] - teaching the pass band including 400-520nm which includes Ps (~420nm) and Xs-rod (~498nm)), and
wherein the lower wavelength value of the first wavelength band is set to the wavelength Ps (Flinders Figs. 2A, B; para. [0044] - cut-on wavelength set to 420nm);
wherein transmittance of the optical filter in the first wavelength band is set based on the visual characteristics of the first wavelength band of the human subject (Flinders Figs. 2A, 2B; para. [0045]).
As to claim 46, Flinders teaches all the limitations of the instant invention as detailed above with respect to claim 45, and Flinders further teaches an upper wavelength value of the first wavelength band is set between the wavelength Xs-Rod, and a wavelength Xrod-M at which an absorption spectrum of the rod cells and an absorption spectrum of M cone cells of the human intersect each other (Flinders Figs. 2A,B; para. [0044], [0048] - cutoff wavelength includes 470nm, 500nm which are between Xs-rod (~453nm) and Xrod-m (~515nm)).
As to claim 47, Flinders teaches all the limitations of the instant invention as detailed above with respect to claim 45, and Flinders further teaches when Δ represents a difference between the wavelength Xs-rod and a wavelength PRod at which the rod cells have a highest sensitivity, and an upper wavelength value of the first wavelength band is set within a wavelength range Prod ± Δ (Flinders Figs. 2A,B; para. [0044], [0048] - upper wavelength ~500nm which is between 498nm ± 17nm (PRod ≈ 498nm; Xrod-m ≈ 515nm) and Δ = (515nm - 498nm = 17nm)).
As to claim 48, Flinders teaches all the limitations of the instant invention as detailed above with respect to claim 46, and Flinders further teaches the upper wavelength value of the first wavelength band is set to the wavelength Prod at which the rod cells have a highest sensitivity (Flinders Figs. 2A,B; para. [0044], [0048] - upper wavelength includes 500nm which is Prod (~498nm)).
As to claim 49, Flinders teaches all the limitations of the instant invention as detailed above with respect to claim 46, and Flinders further teaches the upper wavelength value of the first wavelength band is set to 498nm Figs. 2A,B; para. [0044], [0048] - upper wavelength between 470nm and 500nm which includes 498nm).
As to claim 51, Flinders teaches all the limitations of the instant invention as detailed above with respect to claim 45, and Flinders further teaches a lower wavelength value of the first wavelength band is set to 420nm (Flinders Figs. 2A,B; para. [0044], [0048] - lower wavelength limit at 420nm).
As to claim 52, Flinders teaches all the limitations of the instant invention as detailed above with respect to claim 46, and Flinders further teaches the absorption spectrum of the S cone cells is an absorption spectrum of the S cone cells of the human normalized by a maximum value of the absorption spectrum of the S cone cells of the human, wherein an absorption spectrum of the rod cells is an absorption spectrum of the rod cells of the human normalized by a maximum value of the absorption spectrum of the rod cells of the human, and wherein the absorption spectrum of M cone cells is an absorption spectrum of the M cone cells of the human normalized by a maximum value of the absorption spectrum of the M cone cells of the human (Flinders Figs. 2A,B; para. [0044], [0048]).
As to claim 53, Flinders teaches all the limitations of the instant invention as detailed above with respect to claim 45, and Flinders further teaches the optical filter is configured to define the intensity of light of the first wavelength band based on the visual characteristics of the first wavelength band of the human subject (Flinders Figs. 2A,B; para. [0044], [0048]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ZACHARY W WILKES whose telephone number is (571)270-7540. The examiner can normally be reached M-F 8-4 (Pacific).
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Ricky Mack can be reached at 571-272-2333. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ZACHARY W WILKES/Primary Examiner, Art Unit 2872 April 16, 2026
1 https://alluxa.com/optical-filter-specs/spectral-features/
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