DETAILED ACTION
1. The amendment received on November 19, 2025 has been entered into the record.
Notice of Pre-AIA or AIA Status
2. 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
3. Claim 19 is objected to for the following: it appears that on lines 14-15 ‘at least 10-5’ should read -at most 10-5-. Correction is required. Claims 20-23 are objected to for their dependency from claim 19.
4. Claim 30 is objected to for the following: it appears that on line 4 ‘one or more baffle’ should read -one or more baffles-, on line 6 ‘one or more spectral filter’ should read -one or more spectral filters-, on line 7 ‘one or more lens’ should read -one or more lenses-, and on line 8 ‘one or more precision pinhole’ should read -one or more precision pinholes-. Corrections are required.
Claim Rejections - 35 USC § 102
5. 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.
(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.
6. Claims 24, 26-28 and 30 are rejected under 35 U.S.C. 102(a)(1)/102(a)(2) as being anticipated by Milner et al. (2016/0154229)-previously cited.
As for claim 24, Milner in a spectrally-encoded high-extinction polarization microscope and methods of use discloses/suggests the following: an apparatus for analyzing a sample comprising birefringent particles suspended in a fluid (abstract, paragraphs 0003, 0007,0051 with Figure 1: 100) said apparatus comprising: a light source for emitting a beam of light along a propagation axis (Figure 1: 110); a matched pair of polarizing filters comprising a first polarizing filter and a second polarizing filter (Figure 1: treating 120 and 130 as the first polarizing filter and 150 and 160 as the second polarizing filter; the following referring to them as matched: paragraphs 0031, 0035, 0061, 0064), and a detector (Figure 1: Detector); said light source, said matched pair of polarizing filters and said detector being arranged such that said beam of light emitted from said light source subsequently can pass through said first polarizing filter, can impinges on the sample to be analyzed and can pass through said second polarizing filter being detected by said detector (Figure 1: 110 to 120 to 130 to 140 to 150 to 160 to Detector); said first polarizing filter comprising a first linear polarizer and a first quarter-wave optical retarder and being configurable to polarize incident light into circularly polarized light having a first handedness viewed from the light source and said second polarizing filter comprising a second linear polarizer and a second quarter-wave optical retarder and being configurable to polarize light into circularly polarized light having a second handedness, with said first handedness and said second handedness being opposite viewed from the light source (Figure 1: 120 and 130 as first polarizing filter and 150 and 160 as second polarizing filter; noting that the retarders are may be circular retarders thereby quarter-wave optical retarders: paragraph 0035, 0040, 0062, 0080), said matched pair of polarizing filters having an extinction ratio lower than 10-5 (paragraph 0066).
As for ‘wherein said apparatus is configured for autonomous in-situ operation in an oceanic environment’, it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex Parte Masham, 2 USPQ F.2d 1647 (1987).
As for claim 26, Milner discloses/suggests everything as above (see claim 24). In addition, Milner discloses/suggests that the apparatus is a transmissometer (Figure 1: transmitted light is detected and measured: see 110 to 140 to detector and processor).
As for claim 27, Milner discloses/suggests everything as above (see claim 24). In addition, Milner discloses/suggests wherein said first linear polarizer has a first transmission axis, said first quarter-wave optical retarder has a first optical axis, said second polarizing filter has a second transmission axis and said second quarter-wave optical retarder has a second optical axis, with said first transmission axis, said second transmission axis, said first optical axis and said second optical axis each being oriented in a plane perpendicular to said propagation axis of said beam of light (paragraph 0061, 0068, 0073).
As for claim 28, Milner discloses/suggests everything as above (see claim 27). In addition, Millner discloses/suggests wherein said first transmission axis and said second transmission axis are perpendicular to each other (paragraph 0061).
As for claim 30, Milner discloses/suggests everything as above (see claim 24). In addition, Milner discloses/suggests one or more spectral filters (paragraph 0060).
Claim Rejections - 35 USC § 103
7. 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.
8. Claims 19, 20, 22, and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Milner et al. (2016/0154229)-previously cited in view of Bishop et al. (2004/0027664).
As for claim 19, Milner in a spectrally-encoded high-extinction polarization microscope and methods of use discloses/suggests the following: a method to analyze a sample comprising birefringent particles suspended in a fluid (abstract, paragraphs 0003, 0007,0051 with Figure 1: 100) and said method comprising the steps of: providing a beam of light from a light source (Figure 1: 110); providing a matched pair of polarizing filters comprising a first polarizing filter and a second polarizing filter (Figure 1: treating 120 and 130 as the first polarizing filter and 150 and 160 as the second polarizing filter; the following referring to them as matched: paragraphs 0031, 0035, 0061, 0064); said first polarizing filter comprising a first linear polarizer and a first quarter-wave optical retarder and being configurable to polarize incident light into circularly polarized light having a first handedness viewed from the light source and said second polarizing filter comprising a second linear polarizer and a second quarter-wave optical retarder and being configurable to polarize light into circularly polarized light having a second handedness, with said first handedness and said second handedness being opposite viewed from the light source (Figure 1: 120 and 130 as first polarizing filter and 150 and 160 as second polarizing filter; noting that the retarders are may be circular retarders thereby quarter-wave optical retarders: paragraph 0035, 0040, 0062, 0080, ), said matched pair of polarizing filters having an extinction ratio of at most ( or ‘least’ without the correction to the objection to claim 19 mentioned above) 10-5 (paragraph 0061:10-5 to 10-6 ); introducing a sample comprising birefringent particles suspended in a fluid between said first polarizing filter and said second polarizing filter (Figure 1: 140); passing said beam of light through said first polarizing filter, thereby creating a first beam of light (Figure 1: light from 110 through 120 and 130); contacting said sample with said first beam of light thereby creating a second beam of light (Figure 1: light from 130 through 140 to 150); passing said second beam of light through said second polarizing filter, thereby creating a third beam of light (Figure 1: light passing through 140 to 150); measuring the third beam of light by means of a detector (Figure 1: detector with processor; paragraph 0066).
As for said birefringent particles have a size ranging between 1 μm and 5 mm and/or wherein said method is capable of detecting concentrations lower than 0.1 micromol/L, Milner does not explicitly state this. Milner does suggest that the particles observed, diatoms, are around 4 microns in size (paragraph 0093). Nevertheless, Bishop in a method and apparatus for measuring birefringent particles teaches determining particulate inorganic carbon concentrations in seawater based on birefringence specifically calcium carbonate particles that has extreme birefringence that makes it appear to light when viewed through crossed polarizers (paragraph 0012); wherein suspensions with particle size distributions ranging from .74 micron to 9.1 microns and to 9.8 microns wherein coccolith sizes are typically 1 and 2 microns in diameter were investigated (paragraph 0044) and noted that concentrations less than .01 micromol/L existed in deep ocean waters (paragraph 0006).
Therefore, it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have said birefringent particles have a size ranging between 1 μm and 5 mm and/or wherein said method is capable of detecting concentrations lower than 0.1 micromol/L in order to detect concentrations of calcium carbonate such as in coccoliths which range from 1 to 2 microns in diameter in deep ocean waters with a concentration of less than .01 micromol/L to determine particulate inorganic concentrations in seawater based on birefringence for calcium carbonate particles have extreme birefringence that make them appear to light when viewed through crossed polarizers.
As for claim 20, Milner in view of Bishop discloses/suggests everything as above (see claim 19). In addition, Milner in view of Bishop discloses/suggests determining a concentration of said birefringent particles suspended in said fluid (see claim 19 above: ‘it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have said birefringent particles have a size ranging between 1 μm and 5 mm and/or wherein said method is capable of detecting concentrations lower than 0.1 micromol/L in order to detect concentrations of calcium carbonate such as in coccoliths which range from 1 to 2 microns in diameter in deep ocean waters with a concentration of less than .01 micromol/L to determine particulate inorganic concentrations in seawater based on birefringence for calcium carbonate particles have extreme birefringence that make them appear to light when viewed through crossed polarizers’: calcium carbonate particles/coccoliths suspended in the fluid, seawater).
As for claim 22, Milner in view of Bishop discloses/suggests everything as above (see claim 19). In addition, Milner in view of Bishop discloses/suggests wherein said birefringent particles comprise calcium carbonate (see claim 19 above: ‘it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have said birefringent particles have a size ranging between 1 μm and 5 mm and/or wherein said method is capable of detecting concentrations lower than 0.1 micromol/L in order to detect concentrations of calcium carbonate such as in coccoliths which range from 1 to 2 microns in diameter in deep ocean waters with a concentration of less than .01 micromol/L to determine particulate inorganic concentrations in seawater based on birefringence for calcium carbonate particles have extreme birefringence that make them appear to light when viewed through crossed polarizers’).
As for claim 23, Milner in view of Bishop discloses/suggests everything as above (see claim 19). In addition, Milner in view of Bishop discloses/suggests wherein said fluid comprises water or seawater (see claim 19 above: ‘it would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have said birefringent particles have a size ranging between 1 μm and 5 mm and/or wherein said method is capable of detecting concentrations lower than 0.1 micromol/L in order to detect concentrations of calcium carbonate such as in coccoliths which range from 1 to 2 microns in diameter in deep ocean waters with a concentration of less than .01 micromol/L to determine particulate inorganic concentrations in seawater based on birefringence for calcium carbonate particles have extreme birefringence that make them appear to light when viewed through crossed polarizers’).
Allowable Subject Matter
9. Claims 16-18 are allowed.
Claims 21, 25, and 29 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments
10. Applicant’s arguments, see Remarks page 12, filed November 19, 2025, with respect to the previous rejections under 35 USC 112 have been fully considered and are persuasive. The previous rejections under 35 USC 112 have been withdrawn.
Applicant’s arguments with respect to claims 19 and 23 being rejected under 35 USC 102 (see page 13 of Remarks filed on November 19, 2025) have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant's arguments filed on November 19, 2025 with regards to claims 24, 26-28 and 30 being rejected under 35 USC 102 (see page 14 of Remarks) have been fully considered but they are not persuasive. Regarding Milner not being configured for in-situ operation in an oceanic environment and provides no teaching of an instrument adapted for autonomous oceanic use from ‘and/or wherein said apparatus is configured for autonomous in-situ operation in an oceanic environment’, the examiner refers to the following (see rejection of claim 24 above): it has been held that a recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus satisfying the claimed structural limitations. Ex Parte Masham, 2 USPQ F.2d 1647 (1987).
The examiner notes that Bishop et al. (2004/0027664) cited in the rejections under 35 USC 103 above discloses the following: an apparatus for performing analysis of birefringent particles suspended in seawater (FIGURE 3 and paragraph 0035) comprising: a sample holder defining a fluid path having a path length of at least 5 cm positioned between a first and second polarizer (FIGURE 3: flow cell; paragraph 0035: ‘with a path length of greater than zero cm up to 100 cm’) and one or more pressure windows (FIGURE 3: Polarizer #1 and Polarizer #2 cover windows of flow cell of pressure housing).
Conclusion
11. The prior art made of record and not relied upon is considered pertinent to applicant's disclosure: please refer to the attached PTO-892.
12. 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.
Fax/Telephone Numbers
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Gordon J. Stock, Jr. whose telephone number is (571) 272-2431.
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/GORDON J STOCK JR/
Primary Examiner, Art Unit 2877