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 .
Detailed Action
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 June 12, 2026 has been entered.
Response to Arguments
Applicant's arguments filed 6-12-2026 have been fully considered but they are not persuasive.
The applicant argues that newly added amendments,
“accepting, with the optical fiber, wanted forward scattered laser light that is within an acceptance angle relative to the optical axis;
rejecting unwanted scattered laser light that is outside the acceptance angle relative to the optical axis,”
are not taught by Berezhnyy because basically no discussion of the subject matter appears in the specification. However, what these limitations are discussing is the concept in optics of the Numerical Aperture (NA) (see wiki citation from May 21st, 2021). In particular, all fibers have a NA and all light that is not at the angle of acceptance will be rejected (See wiki citation, the section labeled Fiber optics). Thus, the disclosure of using a fiber to collect the light meets this limitation. Further, if the applicant has a particular NA of their fiber that they feel is not disclosed they should claim it. However, upon a quick review of the specification the examiner notes they appear only to discuss the concept of the NA of their fiber without disclosing a particular NA number. Thus, the examiner is not persuaded that broadly claiming a physical concept shared by all optics is allowable or that it overcomes the art. The examiner will be maintaining the rejection with modifications based upon the amendments.
Claim Rejections - 35 USC § 102
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.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-3, 5, & 10 is/are rejected under 35 U.S.C. 102(A)(2) as being anticipated by Berezhnyy (PGPub 2022/0155210) (Berezhnyy).
Regarding Claim 1, Berezhnyy discloses a method comprising:
flowing a cell/particle in a flow cell (925) through an optical axis of an incident laser light (Paragraphs 71 & 72);
striking portions of the cell/particle with the incident laser light to generate forward scattered laser light (Paragraph 73);
focusing the forward scattered laser light into a first end of an optical fiber (903) (Paragraph 73);
accepting, with the optical fiber, wanted forward scattered laser light that is within an acceptance angle relative to the optical axis (Wiki citation, Fiber Optics section);
rejecting unwanted scattered laser light that is outside the acceptance angle relative to the optical axis (Wiki citation, Fiber Optics section);
As the examiner explained in the arguments the above two limitations are merely the concept of Numerical Aperture which as the citation explains applies to fiber optics too. Thus, Berezhnyy teaches this limitation by implication since they teach collecting the forward scattered light with a fiber;
directing the forward scattered laser light towards a second end of the optical fiber (Paragraph 73); and
launching the forward scattered laser light out of the second end of the optical fiber into a sensor subsystem (930) to detect the forward scattered laser light (Paragraph 73).
Regarding Claim 2, Berezhnyy discloses the aforementioned. Further, by its very nature an optical fiber will filter out unwanted scattered laser light from certain spatial and angular perspectives since optical fibers only have a limited range of acceptance angles for incoming light.
Regarding Claim 3, Berezhnyy discloses the aforementioned. Further, Berezhnyy discloses filtering the forward scattered laser light into a pass band of wavelengths of forward scattered laser light; and detecting an intensity of the pass band of wavelengths of forward scattered laser light (Paragraph 56).
Regarding Claim 5, Berezhnyy discloses the aforementioned. Further, Berezhnyy discloses receiving the forward scattered laser light out from the second end of the optical fiber (Paragraph 73); focally reimaging the forward scattered laser light into a photodiode detector (Paragraph 76); filtering the focused forward scattered laser light into a pass band of wavelengths of forward scattered laser light into the photodiode detector (Paragraph 56); and detecting an intensity of the pass band of wavelengths of forward scattered laser light (Paragraph 76).
Regarding Claim 10, Berezhnyy discloses the aforementioned. Further, Berezhnyy discloses wherein the photodiode detector is an avalanche photodiode (Paragraph 53).
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) 4, & 6-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Berezhnyy.
Regarding Claim 4, Berezhnyy discloses the aforementioned. Further, Berezhnyy discloses among the wavelengths of the excitation lasers one is 488nm (Paragraph 71). Berezhnyy fails to explicitly disclose wherein the pass band of wavelengths of forward scattered laser light is in a range inclusively between 492 nanometers and 484 nanometers around 488 nanometers;
However, the examiner takes official notice that this would be obvious to one of ordinary skill in the art;
Therefore, it would be obvious to one of ordinary skill at the time the invention was filed to modify Berezhnyy with wherein the pass band of wavelengths of forward scattered laser light is in a range inclusively between 492 nanometers and 484 nanometers around 488 nanometers because forward scattered light would not significantly change wavelength from the excitation laser and one would want to filter out wavelengths that were not from the forward scattered light to reduce noise on the detector.
Regarding Claim 6, Berezhnyy discloses the aforementioned but fails to explicitly disclose adjusting a signal gain of the photodiode detector to detect the intensity of the pass band of wavelengths of the forward scattered laser light;
However, the examiner takes official notice that this would be obvious to one of ordinary skill in the art;
Therefore, it would be obvious to one of ordinary skill at the time the invention was filed to modify Berezhnyy with adjusting a signal gain of the photodiode detector to detect the intensity of the pass band of wavelengths of the forward scattered laser light because this is often done to balance the detection sensitivity of the detector with the noise produced by increasing the gain to receive an optimal signal for detection.
Regarding Claims 7 & 8, Berezhnyy discloses the aforementioned but fails to explicitly disclose prior to the focusing, blocking the incident laser light; and wherein while the cell/particle is outside the optical axis of the incident laser light, blocking the incident laser light from reaching the detector;
However, the examiner takes official notice that this would be obvious to one of ordinary skill in the art;
Therefore, it would be obvious to one of ordinary skill at the time the invention was filed to modify Berezhnyy with prior to the focusing, blocking the incident laser light; and wherein while the cell/particle is outside the optical axis of the incident laser light, blocking the incident laser light from reaching the detector because this would prevent false detections of cells when they are not present.
Claim(s) 9 is/are rejected under 35 U.S.C. 103 as being unpatentable over Berezhnyy in view of Kaiser et al (PGPub 2022/0003660) (Kaiser).
Regarding Claim 9, Berezhnyy discloses the aforementioned but fails to explicitly disclose after the striking, blocking the incident laser light, wherein the incident laser light is blocked while the cell/particle is outside the optical axis of the incident laser light;
However, Kaiser teaches after the striking, blocking the incident laser light, wherein the incident laser light is blocked while the cell/particle is outside the optical axis of the incident laser light (Fig. 1(a), Paragraph 209);
Therefore, it would be obvious to one of ordinary skill at the time the invention was filed to modify Berezhnyy with after the striking, blocking the incident laser light, wherein the incident laser light is blocked while the cell/particle is outside the optical axis of the incident laser light because that prevents the non-forwarded scattered light from washing out the signal of the forward scattered light at the detector and improves the signal-to-noise ratio of the detection.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JONATHON COOK whose telephone number is (571)270-1323. The examiner can normally be reached 11am-7pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kara Geisel can be reached at 571-272-2416. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JONATHON COOK/Examiner, Art Unit 2877 June 24, 2026
/Kara E. Geisel/Supervisory Patent Examiner, Art Unit 2877
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