DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 11 December 2025 has been entered.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “particle detector” and “particle collector”.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
A review of the specification shows that the following appears to be the corresponding structure: According to page 12 of Applicant’s specification the particle detector may be any particle counter (see the following description " The particle detection unit may be, for example, a particle counter such as a Grimm 1.108 optical particle counter (Grimm Aerosol Technik, Ainring, Germany), capable of counting, and sizing particles in 15 size intervals from 0.3 to 20 micrometre. But other optical particle counters such as a Grimm 1.107 and 1.109 may be used. Other manufacturers such as TSI have particle sizers but also time of flight equipment that may be used as particle detection units 10. Other options may be, Non-optical, electrostatically, conductance, condensation particle counters, Quartz Crystal Microbalance (QCM), Surface Plasmon Resonance (SPR) or surface acoustic-wave (SAW) etc. "); according to page 4 of Applicant’s specification, the particle collector corresponds to an impactor.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 2, 4-9, 11, and 13-21 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Regarding claims 1, 9, and 13, the originally filed disclosure fails to provide support for “wherein real time is once every 1 to 4 seconds”. While paragraph [0059] of the published specification mentions a sample time “such as 1 second” or “2 seconds, such as 4 seconds, such as 10 seconds”, these time references are related to a sample time to detect a sufficient number of particles before updating an interface of a particle detection unit; sampling data every 1-4 seconds is not the same as performing an analysis every 1-4 seconds, nor is it the same as providing a display or warning once every 1-4 seconds. Paragraph [0090] states that a size distribution is produced “every six seconds”; which provides support for performing an analysis once every 6 seconds. If a size distribution which is analyzed to determine a lung condition is produced every six seconds, it is unclear how a real time analysis would occur every 1 to 4 seconds.
Regarding claim 9, the originally filed disclosure fails to provide support for a programmable data processing apparatus configured to analyze information for chemical, biological DNA, virological and bacteriological analysis in real time. Paragraph [0059] of the published specification is the only paragraph mentioning the phrase “real time”, and it is directed towards a sampling time to detect a sufficient number of particles. When discussing a particle collector configured to obtain information for chemical, biological DNA, virological and bacteriological analysis of collected particles, the specification makes clear that the particles are collected for “later analysis” (paragraph [0090]); “later analysis” is not performed in real time.
Claims not explicitly rejected above are rejected due to their dependence on a rejected base claim.
Response to Arguments
Applicant’s arguments, filed 11 December 2025, have been fully considered.
Regarding the rejections of the claims under 35 U.S.C. 112, first paragraph, Applicant’s arguments are not persuasive. Applicant’s only argument is “However, with all due respect, paragraph [0059] refers to the sample time for the particle detection unit, the interface and the control unit. Paragraph [0090] refers to the collection unit when it is an impactor. These sample times refer to vastly different parts of the system.”. “These sample times refer to vastly different parts of the system” is not a persuasive argument to the assertion that the originally filed specification does not provide support for performing an analysis once every 1 to 4 seconds or for providing a warning once every 1 to 4 seconds. First, as noted in paragraph 6 above, a “sample time” is not the same as an “analysis time” or a “providing a warning time”. Second, Applicant does not point to anywhere in the originally filed specification that provides support for performing an analysis once every 1 to 4 seconds or providing a warning once every 1 to 4 seconds.
Regarding the rejection of the claims in view of the previously cited prior art, the rejections have been withdrawn due to the “wherein real time is once every 1 to 4 seconds” language amended into the claims. None of the prior art discloses or suggests, either alone or in combination, performing the analyzing and providing functions/steps recited in the claims once every 1 to 4 seconds, in combination with the other claimed functions or steps.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Mitton et al.’521 (US Pub No. 2008/0202521 – previously cited) in view of Olin et al.’635 (US Pub No. 2010/0297635 – previously cited) further in view of Liao et al.’007 (US Pub No. 2008/0243007 – previously cited), as discussed in paragraph 7 of the Final Rejection mailed out 11 July 2025, is the closest prior art. The combination of references teaches all of the elements of claims 1 and 13, with the exception of “wherein real time is once every 1 to 4 seconds”.
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/ETSUB D BERHANU/Primary Examiner, Art Unit 3791