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 .
Response to Amendments
Applicant’s arguments filed 5 January 2026, have been fully considered. Claims 1-5 remain pending. Claims 1-4 have been amended.
Applicant’s efforts to amend the claim language to address claim objections are persuasive, therefore all claim objections are withdrawn.
Applicant’s efforts to amend the claim language to address rejections under 35 U.S.C. 112(b) are persuasive, therefore all 112(b) rejections are withdrawn.
Applicant’s arguments that claims 1-5 should be allowable under 35 U.S.C. 101 have been considered. While it is true that the mathematical operations are integrated into a chromatographic data analysis workflow, it is also true at least for claims 1 and 2 that the limitations can be performed by a general-purpose computer which accesses data from a liquid chromatograph then performs a set of operations resulting in displaying a simulated chromatogram. These claims do not positively recite possession of a liquid chromatograph, rather only a computer is necessary. See 101 rejections below.
Applicant’s arguments that claims 1-5 should be allowable under 35 U.S.C. 103 have been considered. The applicant agrees that Novaes-Card does not create simulated data for a nonexistent or hypothetical sample, but disagrees that none of the references render this obvious. For example, Cui simulates a chromatogram (See Fig. 5 and paragraph under “Simulations and discussion” on pg. 6: "As illustrated in Figure 5, five compounds' chromatogram peaks…are constructed in the simulation dataset.").
New grounds of rejection are given in light of the amendments. See 103 rejections below.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 5 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 5 refers only to the “data processing system” in claim 3, so it fails to include all the limitations of the claim upon which it depends (namely the system including the liquid chromatograph).
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-2 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
At Step 1 of the 101 analysis, all claims are directed to one of the statutory categories of invention.
Claim 1 is rejected in response to the following analysis:
At Step 2A, Prong 1, the judicial exceptions are bolded in the copy of claim 1 below:
A data processing method for creating a simulation data of a three-dimensional chromatogram for a sample containing a first component and a second component, the data processing method comprising:
a data obtaining step of obtaining, from a liquid chromatograph, a first analytical data of the first component and a second analytical data of the second component, or a third analytical data of a sample including the first and second components;
a data extracting step of extracting a first chromatogram data and a first spectrum data of the first component and a second chromatogram data and a second spectrum data of the second component from the first and second analytical data or from the third analytical data;
a parameter determining step of determining, based on a user input, concentration values of the first and second components and separation degree of a first peak of the first component and a second peak of the second component;
a data adjusting step of adjusting peak areas of the first peak in the first chromatogram and the second peak in the second chromatogram based on the first and second concentration values to obtain adjusted peak areas of the first and second peaks, and peak positions of the first peak in the first chromatogram and the second peak in the second chromatogram based on the separation degree to obtain adjusted peak positions of the first and second peaks;
a creating step of creating the simulation data of the three-dimensional chromatogram for the sample using the first and second spectrum data, the adjusted peak areas of the first and second peaks, and the adjusted peak positions of the first and second peaks; and
a displaying step of displaying the created simulation data on a display.
The “data extracting step,” “data adjusting step,” and “creating step” all recite either mental or mathematical processes, depending on the complexity of the operations required to perform each step (see MPEP 2106.04(a)).
At Step 2A, Prong 2, the additional elements, none of which integrate the judicial exceptions into a practical application, include:
A “data obtaining step” of obtaining analytical data from a liquid chromatograph. This describes necessary data gathering prior to performing the judicial exceptions.
The parameters are determined “based on user input.” This also recites necessary data gathering.
A “displaying step” of displaying the simulation data. This is insignificant extra-solution activity.
A “display,” which is part of a general-purpose computer.
At Step 2B, when considering the claim as a whole, the claim recites obtaining analytical data from a chromatograph and user input, then performing a set of mental or mathematical operations to simulate and display 3D chromatogram data. Other than a general-purpose computer, no other physical elements are required for claim infringement. Claim 1 does not therefore amount to significantly more than the judicial exceptions.
Claim 2 recites adding noise to the chromatogram and/or spectrum data, however this does not address the issues outlined in the rejection of claim 1, therefore claim 2 is also rejected.
Claim 5 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
Claim 5 does not fall within at least one of the four categories of patent eligible subject matter because it claims a “computer program” itself, rather than a “computer program product” comprising a non-transitory medium.
Examiner’s Note Regarding Eligibility Under 35 USC § 101
Claims 3-4 are eligible.
Claim 3 recites a system including a liquid chromatograph and data processing system, which together implement the method of claim 1. The additional element of a liquid chromatograph integrates the judicial exceptions into a practical application of measuring one or more samples with a liquid chromatograph then accessing and modifying chromatographic and spectral data of the one or more samples to simulate a 3D chromatogram.
Claim 4 depends from claim 3 and is therefore also eligible.
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.
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.
Claims 1-5 are rejected under 35 U.S.C. 103 as being unpatentable over Reijenga (“GCSIM: a gas-liquid chromatography simulator for educational purposes”) in view of Cui (“An improved independent component analysis model for 3D chromatogram separation and its solution by multi-areas genetic algorithm”), Zal (US 2015/0190343 A1), and Nyholm (US 20170322190 A1).
Regarding claim 1, Reijenga discloses a data processing method for creating a simulation data of a chromatogram (Abstract: "A gas-liquid chromatography simulation program was written for personal computers. A graphic display of a chromatogram is shown"), the data processing method comprising:
a data obtaining step of obtaining analytical data of components (Abstract: "The sample composition can be changed to include…up to six components from a library of 75.");
a data extracting step of extracting chromatogram data of the components (since a chromatogram is being simulated using selected components, the chromatogram data of the components would be extracted for the simulation);
a parameter determining step of determining, based on a user input, concentration values of components (Abstract: "The sample composition can be changed to include…up to six components…at different concentrations." Second column, bottom of page 219: "Recalculation and display of a new chromatogram is immediately executed, following a change in any of the…sample parameters…Sample information [includes] concentration." Fig. 1 shows that concentration is a sample parameter.);
a creating step of creating the simulation data of the chromatogram (Fig. 1, a simulated chromatogram is shown, implying that the simulation data was created); and
a displaying step of displaying the created simulation data on a display (Fig. 1 displays the simulated chromatogram).
Reijenga does not explicitly disclose that the simulation data is created for a sample containing a first component and a second component. However, it would have been obvious to one of ordinary skill in the art practicing the invention of Reijenga to do so in order to compare the simulation with a real sample, and it would have been obvious to try comparing with a two-component sample.
For the reasons above, then, it would have been obvious to obtain a first analytical data of the first component and a second analytical data of the second component, or a third analytical data of a sample including the first and second components (that is, components selected for simulation would come from library samples, and when obtaining analytical data of two components the data may be sourced from either one or two samples),
extract first chromatogram data of the first component and second chromatogram data of the second component from the first and second analytical data or from the third analytical data; and
determine concentration values of the first and second components.
Noting the above, Reijenga does not explicitly disclose obtaining the analytical data from a liquid chromatograph. However, Reijenga does disclose that the simulation is for gas-liquid chromatography (Abstract), therefore it would have been obvious for the component library to be produced by a liquid chromatograph. In such a case, the analytical data would be obtained from a liquid chromatograph.
Reijenga does not explicitly disclose simulating a three-dimensional chromatogram for a sample.
Cui teaches simulating a 3D chromatogram (Fig. 5 takes chromatographic and spectral data for compounds and simulates a 3D chromatogram. See also the paragraph under "Simulations and discussion" on page 6: "As illustrated in Figure 5, five compounds' chromatogram peaks…are constructed in the simulation dataset."). Cui teaches that a 3D chromatogram provides more information by displaying chromatographic intensity over multiple wavelengths (Background, page 1: 2D chromatography "is chosen from only one specific wavelength which misses much information from other wavelength[s]").
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to incorporate the teachings of Cui with the invention of Reijenga by simulating a three-dimensional chromatogram for a sample. In order to do so, it would have been obvious to cause the library to include spectral data for each component, and then to, in the data extracting step, extract first spectrum data and second spectrum data of the first and second components, respectively, from the first and second analytical data or from the third analytical data; and to create the simulation data of the three-dimensional chromatogram for the sample using the first and second spectrum data. Doing so would enable one to display chromatographic intensity over multiple wavelengths.
Reijenga in view of Cui does not explicitly teach adjusting peak areas of the first peak in the first chromatogram and the second peak in the second chromatogram based on the first and second concentration values to obtain adjusted peak areas of the first and second peaks, and creating the simulation data of the three-dimensional chromatogram for the sample using the adjusted peak areas of the first and second peaks.
Zal teaches that the area under a component’s intensity curve is proportional to the concentration of that component (¶87).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to incorporate the teachings of Zal with the invention of Reijenga in view of Cui by adjusting peak areas of the first peak in the first chromatogram and the second peak in the second chromatogram based on the first and second concentration values to obtain adjusted peak areas of the first and second peaks, and creating the simulation data of the three-dimensional chromatogram for the sample using the adjusted peak areas of the first and second peaks. Doing so would enable the simulated chromatogram to reflect the user-entered desired concentrations.
Reijenga in view of Cui and Zal does not explicitly teach determining, based on a user input, separation degree of a first peak of the first component and a second peak of the second component; adjusting peak positions of the first peak in the first chromatogram and the second peak in the second chromatogram based on the separation degree to obtain adjusted peak positions of the first and second peaks; and creating the simulation data of the three-dimensional chromatogram for the sample using the adjusted peak positions of the first and second peaks.
Nyholm teaches that the resolution of two peaks is a function of the distance between adjacent peaks (¶39), and is a measure of the quality of a chromatographic separation (¶40).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to incorporate the teachings of Nyholm with the invention of Reijenga in view of Cui and Zal by determining, based on a user input, separation degree of a first peak of the first component and a second peak of the second component; adjusting peak positions of the first peak in the first chromatogram and the second peak in the second chromatogram based on the separation degree to obtain adjusted peak positions of the first and second peaks; and creating the simulation data of the three-dimensional chromatogram for the sample using the adjusted peak positions of the first and second peaks. Doing so would enable a user to adjust peak separation degree in order to simulate chromatographic separations of varying quality.
Regarding claim 2, Reijenga in view of Cui and Zal and Nyholm teaches the limitations of claim 1, and Reijenga further discloses imparting predetermined noise to the chromatogram simulation (Pg. 219, first column, last paragraph: "A baseline with random white noise is generated." Pg. 221, first column, Fig. 2: noise is a parameter which is used to demonstrate detection limits.). Therefore, it would have been obvious to one of ordinary skill in the art practicing the invention of Reijenga in view of Cui and Zal and Nyholm to, in the data adjusting step, impart predetermined noise to the first and second chromatogram data and/or the first and second spectrum data. Doing so would enable one to simulate a more realistic 3D chromatogram.
Regarding claim 3, claim 3 recites a system including a liquid chromatograph and a data processing system encompassed by a general-purpose computer, which together implements the method of claim 1. The method of claim 1 is rejected for the reasons outlined in the rejection of claim 1, while the additional limitations of claim 3 would have been obvious in light of Reijenga, which uses a computer to simulate a chromatogram for a gas-liquid chromatography system (see Abstract of Reijenga, and note that a liquid chromatograph may be used to generate the library of component data).
Regarding claim 4, the limitations of claim 4 are rejected for the reasons given in the rejection of claim 2.
Regarding claim 5, Reijenga in view of Cui and Zal and Nyholm teaches the limitations of claim 3, and Reijenga further teaches a computer program (Abstract: “A gas-liquid chromatography simulation program was written for personal computers.”). Furthermore, it would have been obvious to one of ordinary skill in the art practicing the invention of Reijenga in view of Cui and Zal and Nyholm to store the computer program on a non-transitory computer readable medium and to configure it to be introduced into a computer to cause the computer to function as the data processing system according to claim 3. Doing so would enable a computer to perform the method outlined in claim 3.
Conclusion
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ETHAN WESLEY EDWARDS
Examiner
Art Unit 2857
/E.W.E./ Examiner, Art Unit 2857
/ANDREW SCHECHTER/ Supervisory Patent Examiner, Art Unit 2857