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 .
Applicant's arguments filed April 27, 2026 have been fully considered but they are not persuasive.
It is noted that applicant has amended the claims, but fails specify where each of the amendments are disclosed in the original filed specification. It is hereby requested that that applicant specify, provide for the original text of the specification that supports each and all amendments.
Applicant has not amended and/or insufficiently amended the claims to overcome all 112 issues. See rejections herein.
As to the art rejection of claim 1 applicant states:
“Makino teaches that in order to avoid bubbles in the tip during aspiration, the tip is not completely discharged. See Makino, C8:L7-12 (disclosing "[w]hen the mixed liquid 3 is thus discharged,... the second liquid pipette tip 12 may not become empty"). On the other hand, in claim 1, to have an efficient mixing and avoid clogging, the whole volume capacity of the tip is aspirated and discharged at a predetermined depth below the surface of the liquid in order to avoid bubbles. Indeed, if a remainder of liquid is kept in the tip, it increases the risk of clogging.
Makino thus does not teach or suggest, "in each cycle of the plurality of cycles, the at least one pipette aspirates a whole volume capacity of the tip of the at least one pipette of non-homogenous biological sample at the first predetermined depth, and then dispenses it back in the container, a tip end of the at least one pipette being kept under the surface of the non-homogenous biological sample at the first predetermined depth during the plurality of cycles," as recited by claim 1. Instead, Makino would have led a skilled person away from the claimed method.”
The examiner respectfully disagrees. While Makino does provide for that recited in column 8, lines 7-12, the teachings of the reference as whole must be considered. Makino discloses multiple alternatives throughout the reference. Including “also, with the liquid mixing method in accordance with the present invention, the liquid sample and the second liquid may be stirred with each other by carrying out, at least one time, the process for sucking the mixed liquid, which is contained in the vessel, through the orifice of the second liquid pipette tip, from which the second liquid was discharged into the vessel, into the region inside of the second liquid pipette tip, and thereafter discharging the sucked mixed liquid from the orifice of the second liquid pipette tip into the vessel. In such cases, better mixing performance can be obtained, and a uniform mixed liquid can be obtained.” (column 3, lines 52-62)
Therefore, it would have been obvious to and within the common sense, knowledge, and skill of one of ordinary skill in the art before the effective filing date of the invention to recognize that a volume including a whole volume capacity of the tip may be repeatedly aspirated into and dispensed from the tip to provide for efficient, optimized, and uniform mixing.
As to the device claim 13, applicant’s arguments fail to comply with 37 CFR 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references. As previously stated in the prior Office Action, although the device claim 13, is drafted to refer to the method of claim 1, the device as defined in claim 13 does not further limit the method as defined by the steps recited in claim 1. Furthermore, the method steps of claim 1 do not provide for any structural elements of the device as defined in claim 13. Process/method steps are not structural elements. The device of claim 13 is not required to be employed in the method steps of claim 1. The device of claim 13 is defined by the positively claimed, structural elements listed in the body of the claim. The claimed device as defined by the positively claimed structural elements must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. Here, applicant has not provided for any structural distinction of the claim language, positively claimed structural elements of claim 13 and the applied prior art.
Therefore, the claims are rejected as given herein.
Claim Interpretation
Content of Specification
(k) CLAIM OR CLAIMS: See 37 CFR 1.75 and MPEP § 608.01(m). The claim or claims must commence on a separate sheet or electronic page (37 CFR 1.52(b)(3)). Where a claim sets forth a plurality of elements or steps, each element or step of the claim should be separated by a line indentation. There may be plural indentations to further segregate subcombinations or related steps. See 37 CFR 1.75 and MPEP 608.01(i)-(p).
As to the device, the claimed invention is defined by the positively claimed elements, the structural elements listed on separate indented lines listed in the body of the claim after the transitional phrase, “comprising”.
It is noted that although the device claim 13, is drafted to refer to method claim 1, the device as defined in claim 13 does not further limit the method as defined by the steps recited in claim 1. Furthermore, the method of claim 1 does not provide for any structural limitations of the device as defined in claim 13. The device of claim 13 is not required to be employed in the method steps of claim 1.
It is noted that non-homogenous biological sample is not specified in the claims as being any specific biological sample (substance, material, etc.)
It is noted that the phrase “the following steps” is unnecessary.
It is noted that the phrase “at least one” only requires one, but allows for more than one.
It is noted that the phrase “configured to cooperate with the at least pipetting unit and control the at least one pipetting unit” does not require nor provide for any further structural element of the at least one pipetting unit and control unit” nor any structural connectivity of such. The phrase is directed to what the control unit can do. However, it is noted that control unit and at least one pipetting unit are not claimed as comprising and mechanical structures (motors, gears, mechanical linkage, etc.) that can provide for any movement, etc. of the at least one pipetting unit.
It is noted that the term “plurality” and terms directed to more than one (a plurality; such as “cycles”) only requires two.
It is presumed that the phrase “equipped with” is intended mean comprises as in at least one pipette pipetting unit comprising at least one pipette. If so, it is suggested that the claims be amended to clearly recite such.
It is noted that the method claims do not specify who and/or what performs each of the recited steps. For example, there is no indication as to how the control unit is employed in each of the steps. For example, the control unit is not required to control anything to perform the loading (in claim 1) and further steps recited throughout the claims such as monitoring (claim 3). Such can be perform manually and mentally (visually) respectively.
It is noted that the term “and/or” minimally means only requires scope “or” to be met.
It is noted that the term “predetermine” is subjective. There is no step that requires anyone nor anything to determine anything prior nor before any further time or event. Anything can be subjectively labeled as predetermined relative to any future time period.
As to claims 5 and 7-8, it is noted that “at least one distinctive pressure indicator”; “a characteristic sampling defect”; “failure” of the automatic homogenizing step or the sampling step are not defined in the claim. Any pressure value can be subjectively considered as “distinct” and considered represent anything one subjectively desires including “a characteristic sampling defect” and/or “failure” of the automatic homogenizing step or the sampling step.
It is noted that claims 9 and 11-12 are directed to “conditions” as indicated by the term “if”. Conditions are not requirements. None of the recited conditions are required to occur, therefore, there is no requirement for anything to occur, be further done. What could possibly happen are not definitive steps of the method.
As to claim 13, it is noted the first workstation and second workstation are not defined by, as comprising any specific structure(s).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-6 and 7-15 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 1, it is unclear how the method is considered as being “automatic” because each of the steps recited in the claims are not required to be performed using a control unit (not specifically defined in the claims by and structure) connected to further structures capable of providing for movement, etc. For example, the loading in claim 1 and monitoring of claim of claim 3 are not required to be automated.
As to claim 1, in the second paragraph, it is unclear what is structurally considered “in” the device” (where the container is required to be loaded) because the device has previously been only structurally defined as comprising at least one pipetting unit equipped with at least one pipette comprising a tip, and a control unit. However, the container can not, is not loaded into any of the above structures of the device. The claim recites that the homogenizing occurs via a plurality (only requires 2) of cycles of aspirating (“from the container”…should be inserted) and dispensing the non-homogenous biological sample into the container. The container has not been claimed as an element of the device. The homogenizing does not simply occur “in the device” as claimed.
It is unclear what the term “it” refers to in the phrase “then dispensing it back into the container”. It is presumed that “it” refers an amount of non-homogenous biological sample, the whole volume capacity of the tip of the at least one pipette of non-homogenous biological sample that has been homogenized in the automated homogenizing step. (if so the claim should clearly recite such.).
It is unclear how the method as defined by the steps of claim 1 is performed because it is unclear if “the whole capacity of the tip of the at least one pipette of [the] non-homogenous biological sample” that is aspirated and dispensed during the plurality (2) cycles is the same as the entire amount or a portion of the entire amount of non-homogenous sample contained in the container because the claim does not specify such (the claim as drafted does not preclude such from being the same). However, regardless of such it is unclear how the further “sampling a predetermined volume of [the] non-homogenous biological” (remaining or otherwise in the container”) once the plurality of cycles (of homogenizing) is over is performed because if the prior aspirated and dispensed same whole volume capacity of the pipette tip is now homogenized, then dispensed back into the container at the same first predetermined depth (not defined by any numerical depth/distance value relative to any bottom of the container) from which it was aspirated ,then it would appear that the tip end would be located in the homogenized biological sample that is dispensed back into the container and not the non-homogenized biological sample. Furthermore, it is noted that the claim does not provide for any delay, time period in which the steps are required to performed relative to each other. Therefore, unless the homogenized whole volume of capacity is allowed to sit/settle for a period of time such that it becomes non-homogenized, it is unclear how sampling a predetermined volume of [the] non-homogenous biological sample [from the container] occurs (is the sampling step directed to the same or different whole volume capacity of the tip previously recited in the homogenizing step?). This, the claim as drafted, does not appear to be consistent with the specification. Therefore, it is unclear what is the point, significance, criticality of homogenizing the (or a portion of) the non-homogenous sample contained in the container to subsequently only aspirate the non-homogenous sample contained in the container and dispense such in a well. Clarification is requested.
Dependent claims 2-5 and 7-15 are rejected via dependency upon rejected claim 1.
As to claim 3, it is unclear what is the nexus of the detecting step (and steps of claim 3) to the steps of claim 1. For example, it is noted that the non-homogenous biological sample is not always required to be present in the container during the method. Therefore, it is unclear where/when the detecting occurs relative to the steps of claim 1.
Claim 3 recites the limitation "the predetermined volume of non-homogenous biological sample to be aspirated/dispensed” in the paragraph beginning with “performing”. There is insufficient antecedent basis for this limitation in the claim. No such volume to be aspirated/dispensed has been previously mentioned. Only a predetermined volume that is actually required to be aspirated and dispensed is recited in the sampling step of claim 1.
As to claim 3, in the second paragraph, it is unclear what is required by “determining theoretically” because the claim does not provide for such. There is no indication as what “theory” is being referenced and how any “theory” is used in the step. It is unclear what is meant, required for such determining to be “based on” each of that recited in the claim. Furthermore, it is how, who, what performs “monitoring movements of the tip end during the automatic homogenizing step….” because there are no such steps in claim 1 that requires any movements of tip end. According to claim 1 the tip end remains at the first predetermined depth throughout all of the dispensing and aspirating steps of claim 1.
As to claim 3, it is unclear what is the nexus of "a liquid height variation inside the container" (liquid height variation of what?) to the previously “a liquid height of the non-homogenous biological sample inside paragraph . There is insufficient antecedent basis for this limitation in the claim. It is unclear what liquid height variation of what liquid is being referenced because the claim does not clearly indicate. Furthermore, there is no prior mention of any liquid being present inside the container and any such liquid height varying during any of method steps. Therefore, it is unclear what is required by the “following…” clause, what is required to be done by who/what. It is noted that such monitoring can be done mentally, ,visually with one’s eyes.
As to claim 4, it appears as if there is grammatical error and last phrase should read as: “during the first phase of the sampling step”.
As to claims 5 and 7-8, it is unclear what is “at least one distinctive pressure indicator”; “a characteristic sampling defect”; “failure” of the automatic homogenizing step or the sampling step are not defined in the claim. Any pressure value can be subjectively considered as “distinctive” and considered to be “representative” of anything one subjectively desires including “a characteristic sampling defect” and/or “failure” of the automatic homogenizing step or the sampling step.
It is unclear what is an “indicator” and required of any indicator to be considered “characteristic of” anything because the claim does not clearly define such. What any indicator (pressure value) is “considered characteristic of” is subjective/relative. The term “considered characteristic of” is a relative term which renders the claim indefinite. The term “considered characteristic of” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
In claim 8, it is unclear what is considered as “some distinctive pressure indicators”; “other distinctive pressure indicators” (other than what) ; and “further distinctive pressure indicators” (further distinctive than what). See also prior remarks above directed to “distinctive”. There is no indication in the claim as what is required by the term distinctive. Therefore, it is unclear what is required by “other distinctive” and “further distinctive”.
Furthermore, it is unclear what, which aspiration and dispensing are being referenced by the phrase “the aspiration”; “the dispensing”, “the aspiration step” and “the dispensing step” because it is unclear if such phrases are intended to be the same (the aspiration and the aspiration step) and because aspirating and dispensing are both required to be performed in both of the automatically homogenizing step and sampling step of claim 1. See also claim 12.
As to claim 9, it is unclear it is unclear what is the difference between detecting a pressure value and measuring a pressure value because the claims do not provide for such if such detecting and measuring are the same (sensing/detecting by the at least one sensor), then consistent terminology should be employed.
As to claim 10, it is presumed that “the step of monitoring” is intended to refer to “the at least one step of monitoring” recited in claim 5. Therefore, the claim should clearly recite such.
As to claim 11, it is unclear what is required of a step of the method that is considered as being “failed” because the claim does not provide for any basis, definition of what is required to be considered as “failed”.
As to claim 12, see applicable rejections above. It is unclear what/which aspirating step is being referenced by “the aspiration step” because aspirating and dispensing are both required to be performed in both of the automatically homogenizing step and sampling step of claim 1.
It is noted that that claim 13, employs the same or similar language as claim 1. Therefore, applicant should see applicable rejections of claim 1.
As to claim 13, it is unclear what is the nexus of “a non-homogenous biological sample” to “the non-homogenous biological sample” of claim 1. If such are the same, then the claim should clearly indicate such. Therefore, it is unclear which/what non-homogenous biological sample” is being referenced by the phrase “the non-homogenous biological sample” further recited in claim 13.
As to claim 13, it is unclear if the container and the at least one well are intended to be positively claimed as elements of the invention because of the language and formatting of the claim (each are not listed on separate indented line) and the phrase “wherein clause is directed to what is done” do not clearly indicate that such are elements of the device. If applicant intends for the device to comprise a container containing the non-homogenous biological sample, wherein the container is in the first workstation, and a least one well in the second work station, wherein the at least one well is configured to receive the predetermined volume of the non-homogenous biological sample, then the claim should clearly recite such.
As to claim 13, it is unclear what is the nexus of a device recited in claim 13 to the “a device” (defined by the structures recited in claim 1; and further recitations beginning “a”), if such are the same or different because the claim does not clearly indicate such. Therefore, in claim 13, it is unclear what/which device is being referenced by the respective phrase the device because claim 1 also recites “a device”.
As to claim 13, it is unclear what/which well by “the well” because claim 13 and claim 1 previously recite “at least one well”.
Claim 13 recites the limitation " the at least two workstations" in the next-to-last paragraph. There is insufficient antecedent basis for this limitation in the claim. It is unclear what is the nexus of such to the previously recited a first workstation and second workstation because the claim does not clearly recite such.
It is unclear what is considered as “in the device” because the claim does not provide for any structure, structural boundaries that provides for, defines an inside of the device, such as housing, chamber, etc. in which all of the positively claimed structural elements are located.
It is unclear what is further required by claims 14-15 because the claims do not provide for any additional step nor further limit any prior step of claim 1. There are no detecting and quantifying steps positively claimed. Instead, the claims recite further overall possible, intended uses of the method of claim 1. Possible uses of the method do not further define method. There is no difference in scope of claims 14-15 to claim 1. If applicant intends for the claims to provide for additional steps (detecting by the at least one sensor….quantifying by…., etc.), then the claims should clearly recite such.
01Claim 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:
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.
Claim(s) 1 and 13-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Makino et al., US 5,555,767.
Makino discloses beginning at column 7, line 29 and further following description and Figs. 2A-2I all features of claim 1,:
automatic sampling method for non-homogenous biological sample ( beginning at col. 1, line 7) contained in a container, said automatic sampling method comprising:
providing a device comprising at least one pipetting unit equipped with at least one pipette with a tip, a control unit cooperating and controlling the pipetting unit (implicit from Fig. 2A-2G),
loading a container containing the non-homogenous biological sample inside the device (at a first workstation)( Fig. 2A-2D),
starting automatic homogenization inside the device, of said non-homogenous biological sample, said homogenization comprising the following substeps:
the tip of the pipette dives into the container at a first predetermined depth under the surface of the non-homogenous biological sample (Fig. 2E),
the pipette operates a plurality of cycles of aspirating and dispensing said nonhomogenous biological sample into the container, wherein in each cycle the pipette aspirates the non-homogenous biological sample at the first predetermined depth, and then dispenses it back inside the container, the tip end of the pipette is being kept under the surface of the non-homogenous biological sample at the first predetermined depth during the plurality of cycles (col. 7, line 57- col 8, line 13), “also, with the liquid mixing method in accordance with the present invention, the liquid sample and the second liquid may be stirred with each other by carrying out, at least one time (provides for a plurality of cycles), the process for sucking the mixed liquid, which is contained in the vessel, through the orifice of the second liquid pipette tip, from which the second liquid was discharged into the vessel, into the region inside of the second liquid pipette tip, and thereafter discharging the sucked mixed liquid from the orifice of the second liquid pipette tip into the vessel. In such cases, better mixing performance can be obtained, and a uniform mixed liquid can be obtained.” (column 3, lines 52-62). Therefore, it would have been obvious to and within the common sense, knowledge, and skill of one of ordinary skill in the art before the effective filing date of the invention to recognize that a volume including a whole volume capacity of the tip may be repeatedly aspirated into and dispensed from the tip to provide for efficient, optimized, and uniform mixing.
sampling a predetermined volume of non-homogenous biological sample once the plurality of cycles is over, by:
a first phase of aspirating the predetermined volume of non-homogenous biological sample from the container, wherein the tip is immerged at the first predetermined depth (Fig. 2H) and
a second phase of dispensing the predetermined volume previously aspirated, in a well (at a second workstation) distinct from the container containing the non-homogenous biological sample (Fig. 2I).
Makino does not specify the method is automatic and disclose a control unit.
The Applicant is advised that the Supreme Court recently clarified that a claim can be proved obvious merely by showing that the combination of known elements was obvious to try. In this regard, the Supreme Court explained that, “[w]hen there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill in the art has a good reason to pursue the known options within his or her technical grasp.” An obviousness determination is not the result of a rigid formula disassociated from the consideration of the facts of the case. Indeed, the common sense of those skilled in the art demonstrates why some combinations would have been obvious where others would not. The combination of familiar elements is likely to be obvious when it does no more than yield predictable results. Furthermore, the simple substitution of one known element for another is likely to be obvious when predictable results are achieved. See KSR Int’l v. Teleflex Inc., 127 Sup. Ct. 1727, 1742, 82 USPQ2d 1385, 1397 (2007) (see MPEP § 2143).
Common sense, predictability, knowledge, and skill of one of ordinary skill in the art may suffice to establish obviousness.
It would have been obvious to and within the common sense, knowledge, and skill of one of ordinary skill in the art before the effective filing date of the invention to provide for automation of the method via means such as computer conventionally known in the art or other conventionally known automated means as such would provide for results predictable results and since it has been held that broadly providing a mechanical or automatic means to replace manual activity which has accomplished the same result involves only routine skill in the art.
Claim(s) 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Makino et al. as applied above, and further in view of Bogren et al., US 2006/040403.
Makino does not specify the different aspirating and dispensing speeds.
However, Bogren discloses a method in which a fluid is aspirated and dispensed at different speeds. There are a number of variables that can be adjusted in fluid pulsing, for example the amount of fluid drawn back into the sample probe may be varied, the cycle time between fluid pulses may be varied, the rate at which the fluid is sucked up or squirted out of the sample probe may be changed, and the number of time the fluid is drawn into and then released from the sample probe may be changed. (paragraph 0021, claims 11 and 27).
It would have been obvious to and within the common sense, knowledge, and skill of one of ordinary skill in the art before the effective filing date of the invention to provide different aspirating and dispensing speeds as taught by Bogren as such would provide for results predictable results, such as uniform mixing (homogenizing) of the fluid.
Claim(s) 3-4 is/are rejected under 35 U.S.C. 103 as being unpatentable over Makino et al. as applied above, and further in view of Ueno et al., EP 0527059.
Makino does not detecting a liquid height of the sample in the container by a sensor and monitoring the movement of the tip in the container.
Ueno discloses a method in which a sample is agitated (homogenized) via sucking and discharging the sample into a container. (Abstract). Known means may be used for detecting the liquid surface. The method of determining the moving distance of the pipette from the position information of liquid surface obtained by the liquid surface detecting means is practically described below while referring to fig. 6. (page 5, lines 14-33).
It would have been obvious to and within the common sense, knowledge, and skill of one of ordinary skill in the art before the effective filing date of the invention to provide detecting liquid level/height in the container and monitoring movement of the tip to ensure the tip is immersed in the liquid during the aspirating and dispensing as taught by Ueno as such would provide for results predictable results.
Claim(s) 5, 7-8, and 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Makino et al. as applied above, and further in view of Pionke et al., US 2016/045911
Makino does not disclose detecting pressure during the method.
Pionke discloses method of employing a pipette tip for aspirating and dispensing. The method includes performing pressure sensing (comparing detected values to threshold values) for detecting bubbles or clogs in a pipette tips as a failure of the sampling or dispensing paragraphs [0085 and 136].
It would have been obvious to and within the common sense, knowledge, and skill of one of ordinary skill in the art before the effective filing date of the invention to modify the method of Makino to provide pressure sensing in the pipette tip during the method to detect bubbles or clogs as taught by Pionke as such would provide for results predictable results.
53. Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Makino et al. in view of Pionke et al., US 2016/045911 as applied above, and further in view of Gherson et al., EP 0981048.
The modified teachings of Makino does not disclose triggering an alarm.
Gherson et al. discloses a method of aspirating and dispensing in which pressure is measured and monitored during cycles of aspirating and dispensing to determine the presence of clotting (obstruction). (Abstract). If an obstruction is detected during the method, an alarm is triggered. (paragraphs 0047-48).
It would have been obvious to and within the common sense, knowledge, and skill of one of ordinary skill in the art before the effective filing date of the invention to modify the method of Makino to provide pressure sensing in the pipette tip during the method to detect obstructions and trigger an alarm if such is detected to provide for a fault alert in operation of the device as taught by Gherson as such would provide for results predictable results.
Claim(s) 11-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Makino et al. in view of Pionke et al., US 2016/045911 as applied above, and further in view of Shimoda et al., EP 2006689.
The modified teachings of Makino do not provide for a control unit configured to command a retry.
Shimoda discloses a dispensing and aspirating method performed by a device including a cpu (control unit, providing for automated operation of the device). (Abstract). During the method pressure is detected and monitored to detect clogging. If a clog is detected, the controller provides for resucking (a retry). (paragraph 0003).
It would have been obvious to and within the common sense, knowledge, and skill of one of ordinary skill in the art before the effective filing date of the invention to modify the method of Makino to provide for detecting and monitoring of pressure of the device to detect for a fault in operation and issue a command for resucking (retry) as taught by Shimoda as such would provide for results predictable results.
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 nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIAN R GORDON whose telephone number is (571)272-1258. The examiner can normally be reached M-F, 8-5:30pm; off every other Friday..
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/BRIAN R GORDON/Primary Examiner, Art Unit 1798
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