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 Rejections - 35 USC § 103
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 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.
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) 1-8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Jamison et al. (US 2015/0330215, hereafter Jamison) in view of ‘t Hooft (US 2017/0205386)
With respect to claim 1, Jamison teaches an apparatus for solids analysis of a wellbore fluid, comprising: a pipe (flow path 204, par. 34) formed from radiolucent material (sampling window 216, par. 36), the pipe having a bore for conveying the wellbore fluid; an excitation source (electromagnetic radiation source 208, par. 35) for generating source x-rays; a collimator (lens 212, par. 30) for directing the source x-rays to the wellbore fluid within the bore of the pipe; a detector (ICE 220, par. 37) for receiving x-rays emitted by a first element of the wellbore fluid within the bore of the pipe; and a processor (device 200, par. 35) for determining a concentration of a first solid in the wellbore fluid based on detecting x-rays having energy levels corresponding to the first element. (par. 34-37, Fig. 2)
Jamison does not explicitly teach wherein the electromagnetic radiation that is used and detected is x-ray fluorescence.
‘t Hooft teaches an apparatus for solids analysis of a fluid comprising: a pipe (flow cell 201, par. 42) formed from radiolucent material (x-ray transparent window 208, par. 42), the pipe having a bore (cavity 205, par. 42) for conveying the fluid; an excitation source (x-ray source 401, par. 45) for generating source x-rays; a detector (x-ray detector 402, par. 45) for receiving fluorescent (par. 45) x-rays emitted by a first element of the fluid within the bore of the pipe; and a processor for determining a concentration of a first solid in the fluid based on counting fluorescent x-rays having energy levels corresponding to the first element. (par. 42-45, Figs. 1-4)
It would have been obvious to one having ordinary skill in the art at the time the invention was filed to modify the structure of Jamison to evaluate x-ray fluorescence, as taught by ‘t Hooft, in order to effectively analyze the wellbore fluid in a well-known manner.
With respect to claim 2, Jamison, as modified by ‘t Hooft, teaches an x-ray fluorescence (XRF) analyzer including each of the excitation source, the collimator, the detector, and the processor. Although the references do not explicitly teach wherein the XRF analyzer is handheld, this would have been an obvious modification in order to provide portability which allows for flexibility in the analysis process.
With respect to claim 3, although Jamison, as modified by ‘t Hooft, does not explicitly teach the XRF analyzer comprises a housing having a window, wherein the source x-rays exit the housing through the window, and wherein the fluorescent x-rays enter the housing through the window, and wherein a gap between the window and an outer wall the pipe is about 1 inch or less, both references teach a window in the pipe and therefore it would have been obvious to provide a window in a device housing as well to perform the same function, of allowing the x-rays to reach the fluid and return to the detector. The optimum distance between the window and an outer wall of the pipe would be dependent upon a variety of factors, such as the size of the pipes or the size of the windows and therefore would be best determined through routine experimentation.
With respect to claim 4, Jamison, as modified by ‘t Hooft, teaches the pipe is formed from at least one of a polymer material or a non-metal material. (Jamison, par. 36; ‘t Hooft par. 14, 29)
With respect to claim 5, Jamison, as modified by ‘t Hooft, teaches the bore of the pipe is in fluid communication with a mud pit. (Jamison, par. 34). Although they do not explicitly teach the pipe has an inner diameter of from about 0.5 inches to about 2 inches, the optimum pipe size would be dependent upon a variety of factors related to dimensions of the entire system and therefore would be best determined through routine experimentation.
With respect to claim 6, although Jamison, as modified by ‘t Hooft, does not explicitly teach the pipe has an x-ray mass attenuation coefficient of from about 0.1 cm2/g to about 7 cm2/g, when exposed to x-rays of from about 10 keV to about 50 keV, the analysis of x-ray fluorescence is a known technique and the optimum system parameters would be dependent upon a variety of factors such as the general makeup of the fluid and the type of components being analyzed and therefore would best be determined through routine experimentation based upon knowledge of these techniques.
With respect to claim 7, Jamison, as modified by ‘t Hooft, teaches the wellbore fluid comprises at least one of low-gravity solids, high-gravity solids, a drilling fluid, a completion fluid, or a combination thereof. (Jamison, par. 12-14)
With respect to claim 8, Jamison, as modified by ‘t Hooft, teaches the first element is selected from the group consisting of: barium, iron, aluminum, silicon, and chlorine. (Jamison, par. 19)
Response to Arguments
Applicant's arguments filed September 4, 2025 have been fully considered but they are not persuasive.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant argues that ‘t Hooft teaches away from using fluorescent x-rays with a typical sampling window, however ‘t Hooft is only relied upon for the teaching that it is known to use fluorescent x-rays with a sampling window and not for teaching the structure of the window itself. Jamison teaches the use of a ‘typical’ sampling window and ‘t Hooft does not teach any particular reason that fluorescent x-rays would operate differently than the other x-rays used by Jamison. Accordingly, the statement of ‘t Hooft is not considered sufficient to overcome the combination of Jamison and ‘t Hooft.
In response to applicant's argument that 't Hooft does not teach or suggest using a pipe formed from radiolucent material, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981).
In this case, Jamison teaches that a radiolucent sampling window is located on the pipe, satisfying the claim that the pipe is formed from radiolucent material. As discussed above, the teachings of ‘t Hooft are only relied upon for the use of fluorescent x-rays and not for the structure of the flow cell.
In response to applicant’s argument that the modification would result in the entire optical computing device of Jamison being replaced by the system of ‘t Hooft, destroying the essence of Jamison’s invention, as discussed above the combination does not incorporate the structure of ‘t Hooft but merely the teaching that a measurement system can include the use of fluorescent x-rays.
In response to applicant’s argument that the references do not teach or suggest the particular x-ray mass attenuation coefficient, as discussed in the above rejection, the optimum values for such a coefficient would be highly dependent upon the design factors of the system and therefore can best be determined through routine experimentation.
Conclusion
THIS ACTION IS MADE FINAL. 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 Jill E Culler whose telephone number is (571)272-2159. The examiner can normally be reached M-F 8:30-5:00.
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/JILL E CULLER/ Primary Examiner, Art Unit 2853