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 Arguments
Applicant's arguments filed April 9, 2026 have been fully considered but they are not persuasive. Applicant has amended independent claim 1 to recite a plurality of features defining a first geometric anti-reflection layer, and a first light signal including a first wavelength (lm) wherein the plurality of features are characterized by inner-feature spacing that is less than or equal to lm/2 in at least one dimension, and argued that the claim is definite and not taught by the prior art. The Examiner respectfully disagrees.
With respect to 35 U.S.C. 112(b), the Examiner maintains that the metes and bounds of the first wavelength as it relates to the spacing of the plurality of features cannot be determined as one would have to know the first wavelength prior to forming the device so that the spacing between the projections complies with the claim. Claim 1 recites the spacing of the plurality of features being dependent on the first wavelength, thus one of ordinary skill in the art would have to know the first wavelength prior to forming the device. As such, it is unclear how the spacing of the plurality of features depends on the first wavelength as the wavelength would have to be known prior to forming the claimed device. The Examiner also notes that Applicant has not addressed various rejections under 35 U.S.C. 112(b) detailed in the previous Office Action, thus those rejections are maintained below.
With respect to the prior art rejection, the Examiner notes that Applicant has not provided any specific arguments with respect to the cited prior art. As such, the Examiner maintains that the prior art cited in the previous Office Action meets the limitations of the instant claims.
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, 3, 4, and 7-14 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.
For claim 1, the Examiner is unable to determine the metes and bounds of the first wavelength as it relates to the spacing of the plurality of projections. Claim 1 states that the projections are characterized by an inter-feature spacing less than or equal to lm/2 wherein lm represents the first wavelength. It appears that claim 5 is stating that the spacing between the projections are dependent on lm/2; however, one would have to know the first wavelength prior to forming the apparatus to ensure accurate spacing of the projections. As such, it is unclear how the spacing of the plurality of features is based on the claimed first wavelength.
Claim 7 recites the limitation "the range from -40 to +40 degrees" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 9 recites the limitation "the first planar surface" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation "the second surface" in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 11 recites the limitation "the plurality of projections" in line 2. There is insufficient antecedent basis for this limitation in the claim.
For claim 13, the Examiner is unable to determine what "it" recited at line 7 references. The claim recites a detection system that detects "at least some of the plurality of wavelengths after it has passed through the test sample." The Examiner is unable to determine if the singular "it" references the plurality of wavelengths, some of the plurality of wavelengths, or a single wavelength that is detected. As such, it is unclear what is being detected by the claimed detection system.
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.
Claim(s) 1, 3, 4, 7-11, and 14 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Schulz et al., (US 2015/0309214).
For claim 1, Schulz et al., teach an optical element(sample holder, figure 3F) comprising a substrate (body, paragraph 0030, figure 1A #10) having an organic layer (first surface, paragraph 0034, figure 1C #1), and a plurality of elevations extending from the organic layer (paragraph 0036, figure 1D #11) wherein the extensions have a sidewall and a tip (figure 1D #11). The Examiner notes that the substrate, plurality of sidewalls and plurality of tips, taught by Schulz et al., are structurally identical to that of the instant claims, thus they meet the limitation of a sample-collection surface. The Examiner also notes that the claim is being read in light of the rejection under 35 U.S.C. 112(b) in which it is unclear how the spacing of the plurality of features is based on an unknown wavelength prior to forming the device. For the purposes of examination, the Examiner is reading any structure meeting the plurality of features as having inner-feature spacing less than or equal to lm/2.
For claim 3, Schulz et al., teach the optical element having a second surface (top layer of substrate 10, figure 1D) distal to the first surface wherein the second surface comprises an anti-reflection layer (paragraph 0030, figure 1D #7).
For claim 4, Schulz et al., teach the anti-reflection layer being a coating (paragraph 0030).
For claim 7, the Examiner notes that the claimed first light signal is not a structural element of the apparatus, thus the angle of incidence on the body is also not a structural limitation. As such, the device taught by Schulz et al., reads on the claim.
For claims 8 and 9, Schulz et al., teach the substrate having a second surface (bottom layer of substrate 10, figure 1D) distal to the first surface wherein the second surface is a reflector (paragraph 0030, figure 1D #10). Schulz et al., teach the substrate comprises or consists of silicone (paragraph 0030) which is a material that reflects light. The Examiner notes that the term "reflector" is not claimed as an additional structure, thus the substrate of Schulz et al., reads on the claimed reflector. Additionally, the Examiner notes that the phrase "configured to" does not impart structure to the claim, but instead represents the intended use of the device.
For claim 10, Schulz et al., teach the reflector between the first and second surfaces (figure 1D #7).
For claim 11, Schulz et al., teach an anti-reflection layer on the first surface and the plurality of extensions (paragraph 0049, figure 3F #'s 7 and 12).
For claim 14, the claim does not recite any structural elements in addition to claim 1, thus the device of Schulz et al., as detailed for claim 1 reads on the limitations of claim 14.
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.
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) 12 and 13 is/are rejected under 35 U.S.C. 103 as being unpatentable over Schulz et al., (US 2015/0309214) in view of Montagu (US 2004/0125370).
Regarding claims 12 and 13, Schulz et al., do not teach an apparatus comprising a light source, a spectral filter, and a detection system.
Montagu teaches optically active substrates wherein an optical scanning system having at least one light source, several optical detectors, and spectral filters is utilized to interrogate the optically active substrate (paragraph 0043). Montagu teaches that it is advantageous to provide a spectral filter as a means of detecting wavelength specific radiation (paragraph 0043).
Therefore, it would have been obvious to one of ordinary skill in the art at the time the invention was made to modify Schulz et al., to include an optical scanning system having at least one light source, several optical detectors, and spectral filters in order to detect wavelength specific radiation as taught by Montagu.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DWAN A GERIDO whose telephone number is (571)270-3714. The examiner can normally be reached Mon-Fri 10-6.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Lyle Alexander can be reached at (571) 272-1254. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DWAN A GERIDO/Examiner, Art Unit 1797 /LYLE ALEXANDER/Supervisory Patent Examiner, Art Unit 1797
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