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 .
Claim Objections
Claim 24 is objected to because of the following informalities: “store” (line 4) should read “stored” for grammatical purposes. 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 14, 26, 27, 29, 32, 33, 38 - 40, 42, 44, and 51 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.
With regard to claims 14 and 39, the claims are unclear in view of the amendments to their corresponding base claim which now recites details (“near-infrared spectrometer”) that are inconsistent with requirements set forth in the dependent claims “mid-infrared spectroscopy” and “nuclear magnetic resonance spectroscopy” are technologically different and cannot be measured by the base claim and broadly referring to “infrared spectroscopy” is inconsistent with the scope of the base claim. Additionally, the base claim already indicates “near-infrared spectroscopy”, such that it is redundant. These factors, taken together, indicate that claims 14 and 39 should be cancelled.
With regard to claim 26, the rejection is hereby maintained. Consistent with the details set forth in the Non-final rejection: although the preamble refers to a “switch assembly” none of the positively claimed elements (spectra sensor, force sensors) particularly provide a ‘switch’ type result. As such, it is unclear how a switch assembly has been set forth. Further, neither the spectra sensor nor the force sensors would generally be considered to be configured to provide the result set forth in the final four lines of the claim, and thus it is unclear what structure is intended to implement the limitations.
With regard to claim 27, “the computer-readable instructions” lacks antecedent basis. It is unclear how the final two functions “determine” “take” are to be interpreted relative to the identical functions set forth in the base claim, as the dependent claim implies they are both repeated/redundant.
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.
Claim(s) 26, 38 – 40, and 42 is/are rejected under 35 U.S.C. 103 as being unpatentable over Thomas et al. (USPN 5,857,462) in view of Thaveeprungsriporn et al. (USPN 8,761,853) for the reasons of record. As indicated in the Non-final rejection, Thomas et al. teach a spectroscopic analyte detection system and assembly (Figures 9 – 12, 14), including light source and detector elements to collect spectral information and a processing element for performing analysis thereof, particularly mentioning that the measurement of blood alcohol may be used to reduce the number of drunk driving fatalities (column 22, lines 35 – 44). Thomas et al. indicate that their spectroscopic analysis may cover a range of wavelengths (Figures 4, 6, 7 and the corresponding descriptions) that is consistent with the claimed measurement ranges. Further, Thomas et al. describe technical details of their analysis (column 20, line 51 – column 21, line 25; column 22, line 45 – column 23, line 65) and one would recognize that at least some of these techniques are within the broadest reasonable interpretation of “chemometric analysis” as that claim phrase is understood in view of Applicant’s disclosure. Thomas et al. particularly recognize that the analysis can include additional information, including consideration of finger pressure (column 12, line 61 – column 13, line 5). Although this force/pressure data would be required to be measured to be utilized by their algorithm, Thomas et al. do not specifically show details of the pressure/force measurement. Thaveeprungsriporn et al. teach an alternate optical physiological measurement invention, in which both optical and force/pressure information is collected (Figures 9 – 12, 16, 17 and the descriptions thereof). Additionally, Thaveeprungsriporn et al. recognize that the force information can be analyzed to determine when optimal measurement conditions are present (Figures 20, 21; as discussed in column 13), as well as to provide feedback to the user to assist them in creating and maintaining the proper pressure, wherein the feedback can be tactile in the form of vibrations (column 6, lines 55 – 67). As such, it would have been within the skill level of the art before the effective filing date of the claimed invention to have modified Thomas et al. to use a force sensor in conjunction with the optical sensing elements, as taught by Thaveeprungsriporn et al., to provide the necessary finger pressure information. Additionally, as noted, Thaveeprungsriporn et al. teach that the force data may be used to assess and guide the user through feedback for optimizing measurement results, and therefore in addition to use of the force data in the analysis algorithm, as suggested by Thomas et al., it would further have been within the skill level to use the force information in the manner disclosed by Thaveeprungsriporn et al. to assure improved measurement results.
Response to Arguments
Applicant's arguments filed April 10, 2026 have been fully considered but they are not persuasive. With regard to the rejections under 35 USC 112(b) that are maintained, Applicant generally alleges that the amendments provided in the response serve to clarify the claims. Although this is correct for most claims, the changes to claim 26 were not effective to address the merits of the rejection and the rejection is maintained. Likewise, because of the issues raised in the rejection under 35 USC 112(b) regarding the lack of structures to perform certain recited functions, the amended details to claim 26 do not appear to affect any of the positively claimed structures of the “switch assembly” and therefore the allegation that those details serve to define over the art are not persuasive.
Applicant’s arguments, see Remarks, filed April 10, 2026, with respect to the prior art rejections of claims 1, 4, 7, 8, 13, 17, 19, 49, and 50, and any rejections under 35 USC 112(b) that were applied to them, have been fully considered and are persuasive. The rejections of the claims has been withdrawn.
Allowable Subject Matter
Claims 1, 4, 7, 8, 13, 17, 19, 49, and 50 are allowed.
Claims 24, 27, 29, 32, 33, 44, and 51 would be allowable if rewritten or amended to overcome the objection(s) and/or rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
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 ERIC FRANK WINAKUR whose telephone number is (571)272-4736. The examiner can normally be reached Mon-Fri 9 am - 6 pm.
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/ERIC F WINAKUR/Primary Examiner, Art Unit 3791
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