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 .
The preliminary amendments filed on 05/15/2023 are acknowledged.
Claims 1-8, 30-43, 63-65, 67, and 69 are pending for examination. Claims 9-29, 44-62, 66 and 68 are cancelled.
Applicant’s election without traverse of Invention I, claims 1-4, 8 and 30-40, in the reply filed on 10/31/2025 is acknowledged.
Claims 5-7, 41-43, 63-65, and 69 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected inventions, there being no allowable generic or linking claim.
Claim Objections
Claim 2 is objected to because of the following informalities: In regard to claim 2, “25%off” should be set forth “25% of”. 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 32 and 37-40 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. Claims that depend directly or indirectly from claim 37 is/are also rejected due to said dependency.
In regard to claim 32, the claim recites “an interferometric device allowing for assessing said change in phase of the detection beam and generating a response signal indicative of said change in phase”. The world “allowing” is not considered as a positive claim language and therefore it is unclear whether the functions recited after “allowing” are performed or not. Clarification is requested by amendments. It is suggested that “configured to” or similar language should be set forth in order to more positively recite the functions.
In regard to claim 37, last line, “the analyzing step” lacks of sufficient antecedent basis. It is also noted that claim 37 is an apparatus claim which does not recite and method step(s).
In regard to claim 40, “said step of adapting the analysis carried out in the analyzing step” lack of sufficient antecedent bases. It is also noted that claim 37 is an apparatus claim which does not recite and method step(s).
Claim Rejections - 35 USC § 102
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 1, 8, 30-32, and 34-37 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bauer et al. (USPGPUB 2018/0328835). In regard to claims 1 and 37, Bauer discloses an apparatus and a method of analyzing a material comprising at least one analyte (Figs. 1-24 and associated descriptions; glucose, [0062]; [0019]), said method comprising an analyte measurement procedure (Figs. 1-12, 16-18 and 20-23 and associated descriptions), in which the material (elements 101/126/154, Figs. 1, 3, 8, 16, and 20-23 and associated descriptions) is brought in thermal contact or pressure transmitting contact with a measurement body (element 108, Figs. 1, 3-4, 6-8, and 20-23 and associated descriptions), said thermal or pressure transmitting contact permitting heat or pressure waves generated by absorption of excitation radiation in the material to be transferred to said measurement body (Figs. 1, 3-4, 6-8, and 20-23 and associated descriptions; [0119-0126]), excitation radiation (SA and/or element 112, Fig. 1 and associated descriptions) is irradiated into the material (Fig. 1 and associated descriptions) to be absorbed therein, wherein the intensity of said excitation radiation is time-modulated ([0046-0047]; [0129]; [0169]), and wherein said excitation radiation comprises radiation of different analyte-characteristic-wavelengths that are irradiated one or both of simultaneously and sequentially ([0017]; [0025]; [0038]; [0042]; [0064]; [0092-0093]; [0191]), and a physical response of the measurement body or of a component included therein, to heat or pressure waves received from said material upon absorption of said excitation radiation is detected using a detection device which generates a response signal based on said detected physical response (element 106, Figs. 1, 3-4, 6-8, and 20-23 and associated descriptions), said response signal being indicative of a degree of absorption of excitation radiation (element 106 and SR, Figs. 1, 3-4, 6-8, and 20-23 and associated descriptions), wherein the method further comprises an analyzing step, in which said analyzing is carried out based, at least in part, on said response signal (element 107, Figs. 1, 3, 8, and 20-23 and associated descriptions; [0058]; [0060]), and wherein at least some of said analyte-wavelength-specific measurements are interspersed with reference measurements (before and/or during and/or after a measurement… moisture content of the sample or the humidity of the upper layers or the surface of the sample is determined, [0091]), in which excitation radiation with a reference wavelength is irradiated and a corresponding response signal is obtained (water-specific bands and associated detections, [0245]), wherein said reference wavelength is a wavelength different from any of said analyte-characteristic-wavelengths (glucose associated wavelengths, [0131] and [0138]; water, [0245)], and wherein said response signals obtained for the reference measurements are used for one or more of recognizing a variation in the measurement conditions by comparing results of individual reference measurements (before and/or during and/or after a measurement… moisture content of the sample or the humidity of the upper layers or the surface of the sample is determined, [0091]; absorption value, [0245]), adapting the analyte measurement procedure with respect to one or more of the entire duration thereof, the absolute or relative duration of analyte-wavelength-specific measurements for a given analyte-characteristic-wavelength, or terminating and/or restarting the analyte measurement procedure (before and/or during and/or after a measurement… moisture content of the sample or the humidity of the upper layers or the surface of the sample is determined, [0091]; An error message and an instruction to dry the surface can then be output, [0245]; turn on or off the excitation device according to the moisture level, [0102], [0179] and [0258]), and adapting the analysis carried out in the analyzing step (…This enables effects of the moisture in the sample or in the measuring device to be eliminated from the measurement results or to be taken into account during the analysis, [0091]).
In regard to claim 8, Bauer discloses said material is human tissue (elements 101/126/154, Figs. 1, 3, 8, 16, and 20-23 and associated descriptions), and said analyte is glucose present in an interstitial fluid thereof ([0019]; [0072]; [0171]).
In regard to claim 30, Bauer discloses said detection device comprises a light source (element 105, Figs. 1, 3-4, 6-8, and 20-23 and associated descriptions) for generating a detection light beam (element 112, Figs. 1, 3-4, 6-8, and 20-23 and associated descriptions) travelling through at least a portion of said measurement body or a component included in said measurement body (Figs. 1, 3-4, 6-8, and 20-23 and associated descriptions), said physical response of the measurement body to heat or a pressure wave received from said material upon absorption of said excitation radiation is a local change in the refractive index of said measurement body or said component (Figs. 1, 3-4, 6-8, and 20-23 and associated descriptions; refractive index, [0033]; [0077]; [0132]), and said detection device is configured for detecting one of a change in the light path or a change in the phase of detection beam due to said change in refractive index change in light path or phase of the detection beam (Figs. 1-8 and associated descriptions; path/ phase, [0060]; [0079]; [0088]; [0132-133]; [0207]; [0212]).
In regard to claim 31, Bauer discloses said measurement body is transparent for said detection light beam (Figs. 1, 3-4, 6-8, and 20-23 and associated descriptions; [0119]), said detection light beam is directed to be totally or partially reflected at a surface (Figs. 1, 3-4, 6-8, and 20-23 and associated descriptions) of said measurement body that is in thermal or pressure transmitting contact with said material (Figs. 1, 3-4, 6-8, and 20-23 and associated descriptions), and wherein said detection device comprises a photodetector capable of detecting a degree of deflection of said detection light beam due to said local change in refractive index (intended uses recited after “capable of” have insufficient patentable weights. Figs. 1, 3-4, 6-8, and 20-23 and associated descriptions; [0032];[0067]; [0148-0149]; [0279]).
In regard to claim 32, Bauer discloses said detection device comprises an interferometric device ([0190]; [0211]; [0233]) allowing for assessing said change in phase of the detection beam and generating a response signal indicative of said change in phase (referring to the 35 USC 112(b) rejection above).
In regard to claim 34, Bauer discloses said excitation radiation source comprises an array of quantum cascade lasers, each having a dedicated wavelength ([0040]; [0120]).
In regard to claim 35, Bauer discloses said excitation radiation is generated using at least one tunable quantum cascade laser ([0120]).
In regard to claim 36, Bauer discloses some or all of said excitation wavelengths are in a range of 6 μm to 13 μm ([0131]; [0138]).
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 2-3 and 38-39 are rejected under 35 U.S.C. 103 as being unpatentable over Bauer. In regard to claims 2-3 and 8-9, Bauer discloses “before and/or during and/or after a measurement… moisture content of the sample or the humidity of the upper layers or the surface of the sample is determined. This enables effects of the moisture in the sample or in the measuring device to be eliminated from the measurement results or to be taken into account during the analysis”, [0091] and “…If the absorption should exceed a certain value, the measurement site/material surface/skin surface is too wet for a reliable measurement... An error message and an instruction to dry the surface can then be output, [0245]; turn on or off the excitation device according to the moisture level, [0102], [0179] and [0258], but does not specifically discloses between at least 25% of each pairs of successive analyte-wavelength-specific measurements, a reference measurement is carried out and said reference measurements are carried out at an average rate of at least once every 5 seconds. However, Bauer discloses the moisture determination can be performed during and/or after a measurement ([0091]) and turn on or off the excitation device according to the moisture level, [0102], [0179] and [0258]). It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to try to check the moisture level regularly during the measurements, including at least once every 5 seconds and/or check the moisture level after successive measurements before restarting the measurements, including between at least 25% of each pairs of successive measurements through experiments/ investigations in order to find the optimal timing(s) for performing the moisture measurements according to different sweat rates of users. The rationale would have been “obvious to try”, see KSR International Co. v. Teleflex Inc., 550 USPQ2d 398, 421(2007)
Allowable Subject Matter
Claims 4, 33 and 40 are objected to as being dependent upon a rejected base claim, but would be allowable if overcome the 35 USC 112(b) rejection (claim 40) and rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: In regard to claims 4, 33 and 40, the prior art of record does not teach or suggest “normalizing results of at least some of the analyte-wavelength- specific measurements based at least in part on the results of one or both of a preceding or succeeding reference measurement” and “said measurement body or a component in said measurement body has electrical properties that change in response to a local change in temperature or a change in pressure associated therewith, and wherein said detection device comprises electrodes for capturing electrical signals representing said electrical properties”, in combination with the other claimed elements/ steps.
Conclusion
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/CHU CHUAN LIU/Primary Examiner, Art Unit 3791