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 .
Priority
Current application, US Application No. 18/098,352 filed on 01/18/2023, claims foreign priority to JP 2022-017407, filed on 02/07/2022.
Examiner acknowledges that the certified copy of foreign priority document has been received. However, the certified English translation copy of the original foreign document, which is not written in English, has not been received. There is no requirement to submit certified English translation copy at this stage according to 37 CFR 1.55(g)(3). However, should the need of certified English translated copy arise according to the cases mentioned in 37 CFR 1.55(g)(3), submission may be requested in the future.
DETAILED ACTION
This office action is responsive to the amendment filed on 12/18/2025. Claims 1-13 are currently pending.
Response to Amendment
Applicant's amendment is entered into further examination and appreciated by the examiner.
Response to Arguments/Remarks
Regarding remarks on the objections to the specification and claims, the amendments accompanied with persuasive arguments are accepted and the previous objections are withdrawn.
Regarding remarks on the claim interpretation under 35 USC 112(f), the amendments accompanied with persuasive arguments are accepted and the previous interpretations are withdrawn.
Regarding remarks on the rejections under 35 USC 101, applicant’s arguments accompanied with amended claims are fully considered, but are partially because of the following reasons.
Applicant argues (see pg. 10 par. 2 from the bottom – pg. 12 par. 2) that the amended claim 1 shows improvement of detection accuracy of the X-ray analyzer by positively reciting the physical and tangible elements “X-ray fluorescent analyzer”, “X-ray detector”, “a first processor” and “a second processor”.
Examiner accepts the above arguments to be persuasive for claim 1-6 by treating the claims as representing the electronic physical implementation shown in Fig. 1 mainly focusing on the elements: “X-ray fluorescent analyzer”, “X-ray detector”, “a first processor” and “a second processor” in the claims. However, the claims 7-13 fail to positively reciting the above elements and focus on reciting abstract ideas, and fails to link the abstract idea with the above particular elements. Therefore, claim 1-6 are patent eligible and claims 7-13 are patent ineligible.
Regarding remarks on the rejections under 35 USC 103, applicant’s arguments have been fully considered but are moot in view of new ground of rejection necessitated by the amendment because the arguments do not apply to any of the references being used in the current rejections. See the new office action below.
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.
Claims 1-13 are rejected under 35 U.S.C. 112(a) 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 at the time the application was filed, had possession of the claimed invention. As per claims 1 and 7, the limitation ”calculating a predictive count value of a sum peak, for each of one or more elements constituting the sample, using a count value and an energy value of characteristic X-rays in the initial spectrum, the count value being the number of counts of X-ray photons” lacks the description support from the specification because the specification discloses the prediction of count value in a sum peak using the eq. 3 (see specification – [0056-0062] and excerpt snapshot below) by introducing CoefMode as shown in Eq 4, which depends on the energy of element’s X-ray characteristic, as an augmentation to equation 3 of the recited literature, Tanaka (Tanaka, Ryohei, and et al. "Artificial peaks in energy dispersive X‐ray spectra: sum peaks, escape peaks, and diffraction peaks." X‐Ray Spectrometry 46, no. 1 (2017): 5-11), hereinafter ‘Tanaka’.
Tanaka’s equation 3 includes variables obtained in the time domain, e.g. the number of pulses per second for c and r second (see Tanaka’s excerpt snapshot below – [pg. 8 par. 1 from the bottom – pg. 9 par. 3, Fig. 5]), but the current application fails to disclose how to predict the count value collected at the time domain similar to Tanaka (see Tanaka’s excerpt snapshot below – [Fig. 4]) and simply recites the alleged count values in the energy spectrum sum peaks.
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Snapshot of current application’s specification
The specification is silent regarding the relationship between the (incorrect) count values of sum peaks in the first energy spectrum (according to the current application) and the (correct) count values which are collected in the time domain (according to Tanaka) while the current application claims predicting accurate difference count values of sum peak, that need to be subtracted from the count values of the first spectrum, is possible in order to produce (correct) count values of the final spectrum according to Eq. 3 of the specification of the current application.
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Snapshot of Tanaka’s theory of sum-peak
Transforming Tanaka’s equation 3 into current application’s equation 3 by adding CoefMod is not described nor is explained such that how adding “CoefMod’ would enable predicting more correct count values in sum peaks in the spectrum if not impossible. Current application also fails to disclose the conditions of c, m and r variable shown in equation 3 of Tanaka, which makes “predicting the (correct) count values in a universal way” to be doubtful.
As per claims 2-6 and 8-13, claims are also rejected because base claims 1 and 7 are rejected.
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.
Claims 1-13 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention. As per claims 1 and 7, the limitation ”calculating a predictive count value of a sum peak, for each of one or more elements constituting the sample, using a count value and an energy value of characteristic X-rays in the initial spectrum, the count value being the number of counts of X-ray photons; subtracting the predictive count value calculated for each of the one or more elements constituting the sample from the count value of the initial spectrum to generate the final spectrum” are ambiguous because calculating a predictive count value using a count value and an energy value of characteristic X-rays in the initial spectrum conflicts with the specification as pointed out in the rejections under 35 USC 112(a) and the calculated predictive count value appears to be a correct count values according to the specification (see specification – eq 3 and 4) and it is not clear why the predictive count value is subtracted from the first spectrum to get the final (correct) spectrum while the predictive count values do not look as a difference values between the first spectrum and the final spectrum. For the sake of examination, the predictive count value is treated as being used directly to generate the final spectrum without subtracting from the initial spectrum
As per claims 2-6 and 8-13, claims are also rejected because base claims 1 and 7 are rejected.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 7-13 are rejected under 35 U.S.C. 101 because the claimed invention is directed to nonstatutory subject matter. The claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Specifically, representative claim 7 recites:
“A data processing method of obtaining a final spectrum by processing an initial spectrum of a sample acquired by processing an output of an X-ray detector, (1.A) the method comprising the steps of:
calculating a predictive count value of a sum peak, for each of one or more elements constituting the sample, using a count value and an energy value of characteristic X-rays in the initial spectrum, the count value being the number of counts of X-ray photons; (1.B)
subtracting the predictive count value calculated for each of one or more elements constituting the sample from the count value of the initial spectrum to obtain the final spectrum;(1.C)
and performing at least one of a qualitative analysis and a quantitative analysis of the one or more elements constituting the sample based on the final spectrum. (1.D)”.
The claim limitations in the abstract idea have been highlighted in bold above; the remaining limitations are “additional elements”.
Under the Step 1 of the eligibility analysis, we determine whether the claims are to a statutory category by considering whether the claimed subject matter falls within the four statutory categories of patentable subject matter identified by 35 U.S.C. 101: Process, machine, manufacture, or composition of matter. The above claim is considered to be in a statutory category (Machine).
Under the Step 2A, Prong One, we consider whether the claim recites a judicial exception (abstract idea). In the above claim, the highlighted portion constitutes an abstract idea because, under a broadest reasonable interpretation, it recites limitations that fall into/recite an abstract idea exception. Specifically, under the 2019 Revised Patent Subject Matter Eligibility Guidance, it falls into the grouping of subject matter when recited as such in a claim limitation, that covers mathematical concepts (mathematical relationships, mathematical formulas or equations, mathematical calculations), and mental processes (concepts performed in the human mind including an observation, evaluation, judgement, and/or opinion).
For example, highlighted limitations/steps (1.A) – (1.D) are treated by the Examiner as belonging to Mathematical Concept grouping or a combination of Mathematical Concept and Mental Process groupings as the limitations include Mathematical Calculations, or show Mathematical Relationship combined with optional Mental evaluations/judgements.
Next, under the Step 2A, Prong Two, we consider whether the claim that recites a judicial exception is integrated into a practical application.
In this step, we evaluate whether the claim recites additional elements that integrate the exception into a practical application of that exception.
The above claims comprise the following additional elements: (Side Note: duplicated elements are not repeated)
In Claim 7: “A data processing method”, “a X-ray detector”;
As per claim 7, the additional element in the preamble “A data processing method” is not a meaningful limitation because the preamble generally links the method with an abstract idea. Although X-ray detector is recited, it is used only as describing where the output comes from and is not positively recited. Besides, the X-ray detector is a standard element in the art and is not particular.
In conclusion, the above additional elements, considered individually and in combination with the other claim elements as a whole do not reflect an improvement to the computer technology or other technology or technical field, and, therefore, do not integrate the judicial exception into a practical application. No particular machine or real-world transformation are claimed. Therefore, the claims are directed to a judicial exception and require further analysis under the Step 2B.
Under Step 2B analysis, the above claims fail to include additional elements that are sufficient to amount to significantly more than the judicial exception as shown in the prior art of record.
The limitations/elements listed as additional elements above are well understood, routine and conventional steps/elements in the art according to the prior art of record. (See Murata, Ziegler, Hong and others in the list of prior art cited below)
Claims 7-13, therefore, are not patent eligible.
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.
Claims 1, 7 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Murata (US 20250130184 A1), hereinafter ‘Murata.
As per claim 1, Murata discloses
An X-ray fluorescence analyzer (apparatus 10, a fluorescence X-ray spectrometer [0064, Fig. 1]) comprising:
an X-ray detector configured to detect X-rays of a sample; Murata (radiation such as X-rays, a radiation detector [0002, 0064, Fig. 1], showing detector 1 and sample 6)
a processor configured to generate an initial spectrum of the sample by processing an output of the X-ray detector; (a first spectrum generation unit that generates a first spectrum [0031], generate a first spectrum [0110, Fig. 12], a processor, generate first spectrum [claim 26]))
and a processor configured to generate a final spectrum by performing removal processing for removing one or more sum peaks from the initial spectrum, (adequately remove sum peaks from the spectrum of radiation [0006], a first spectrum, a second spectrum … occurrence of sum peaks … are reduced [0032], a second spectrum generation unit [0113, Fig. 12], a processor, generate second spectrum [claim 26])
Although Murata discloses using the same processor for generating the first and final spectrum, Murata also discloses using multiprocessors (analysis device, multi-core CPU [0066, Fig. 2], the analysis device 3 may be configured with multiple computers [0068]), implying it is possible to possible to use different processors for different data processing.
Therefore, it would have been obvious to one of ordinary skill in the art at the time when invention is filed before the effective filing date of the current application to modify the teachings of Murata to use separate processors for generating the first spectrum and generating the final spectrum for efficient utilization of computing resources.
Murata further discloses
wherein the removal processing includes:
calculating a predictive count value of a sum peak, for each of one or more elements constituting the sample, using a count value and an energy value of characteristic X-rays in the initial spectrum, the count value being the number of counts of X-ray photons; (number of counts … in the first range, first spectrum, sum peaks, the second spectrum has less peaks than the first spectrum, which shows that sum peaks are removed [0115. Fig. 13], in the second embodiment, one energy range, another energy range [0116])
and subtracting the predictive count value calculated for each of the one or more elements constituting the sample from the count value of the initial spectrum to generate the final spectrum, (corrected count number is calculated so that a value estimated … subtracted from the number of counts [0111], the second spectrum has less peaks than the first spectrum, which shows that sum peaks are removed [0115. Fig. 13]) and
wherein the processor is configured to perform at least one of a qualitative analysis and a quantitative analysis of the one or more elements constituting the sample based on the final spectrum. (analysis device 3 performs qualitative analysis or quantitative analysis on the elements in the sample based on the spectrum of the fluorescence X-ray [0092]).
As per claim 7, Murata discloses
A data processing method of obtaining a final spectrum by processing an initial spectrum of a sample acquired by processing an output of an X-ray detector, Murata (signal processing method [abs, 0009, 0011], the second spectrum has less peaks than the first spectrum, which shows that sum peaks are removed [0115. Fig. 13])
Murata discloses the remaining limitations in the claim as shown in claim 1 above.
As per claim 13, Murata disclose claim 7 set forth above.
Murata further discloses use of recording medium (recording medium [0066, 0068, claim 28]).
Claims 2 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Murata in view of Ziegler (US 3146347 A), hereinafter ‘Ziegler’.
As per claims 2 and 8, Murata discloses claims 1 and 7 set forth above.
The set froth combined prior art is silent regarding the predictive value decreases as the value of the energy of the characteristic X-rays to be used increases.
Ziegler discloses the count value decreases as the value of energy of the X-ray spectrum increases (the intensity of the generated X-ray spectrum from deceleration of electrons tends to increase with increasing bombarding energy, the response in the signal channel tends to decrease with an increasing setting on the lower threshold, and the overall response is one of a decreasing output count rate as a function of increasing energy [col 5 line 26-32]).
Therefore, it would have been obvious to one of ordinary skill in the art at the time when invention is filed before the effective filing date of the current application to modify the teachings of Murata in view of Ziegler to consider the condition that the predictive value decreases as the value of the energy of the characteristic X-rays to be used increases in reducing the occurrence of sum peaks.
Claims 5, 6, 11 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Murata in view of Hong (CN 209296943 U).
As per claims 5 and 11, Murata discloses claims 1 and 7 set forth above.
Murata is silent regarding identifying an offset value for energy using the initial spectrum and simulation data corresponding to the initial spectrum and use the initial spectrum shifted by the offset value to calculate the predictive count value.
Hong discloses regarding identifying an offset value for energy using the initial spectrum and calculating spectral position corresponding to the peak in the initial spectrum (spectrum offset, the standard energy spectrum written is the initial stage, computed by convolution of the spectral position of a peak value, namely the peak position offset d [pg. 9 line 4-14]) and make the initial spectrum to be shifted by the offset value (correcting the offset to calculate, so that the finally obtained spectrum is the most accurate [pg. 9 line 17-18]).
Therefore, it would have been obvious to one of ordinary skill in the art at the time when invention is filed before the effective filing date of the current application to modify the teachings of the combined prior art in view of Hong to configure the processor to identify an offset value for energy using the initial spectrum and simulation data corresponding to the initial spectrum and use the initial spectrum shifted by the offset value to calculate the predictive value to automatically reduce the occurrence of sum peaks.
As per claims 6 and 12, Murata and Hong disclose claims 5 and 11 set forth above.
Hong further discloses the offset value is calculated based on a difference between the initial spectrum and the calculated data corresponding to the initial spectrum (accumulate value, corresponding to the second energy spectrum, corresponding to the maximum of the maximum peak position with the standard spectrum difference between a maximum peak position, namely the energy spectrum offset [pg. 8 line 29-32]).
Allowable Subject Matter
Claims 3-4 and 9-10 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.
The following is a statement of reasons for the indication of allowable subject matter: As per claims 3 and 9, the closest prior art of record, Murata, Ziegler and Hong, either singularly or in combination, fail to anticipate or render obvious limitations “the second coefficient includes a term acquired by subtracting the value of the energy of the characteristic X-rays from a given constant “ in combination with other limitations.
Tanaka (Tanaka, Ryohei, and et al. "Artificial peaks in energy dispersive X‐ray spectra: sum peaks, escape peaks, and diffraction peaks." X‐Ray Spectrometry 46, no. 1 (2017): 5-11) discloses calculating the predictive value includes calculating a product of the count value in the initial spectrum, a first coefficient, and a second coefficient ([pg. 9 eq. 3]), but is silent regarding the above allowable limitation.
As per claims 4 and 10, claims are also allowable because base claims 1 and 9 are allowable.
Notes with regard to Prior Art
The prior arts made of record and not relied upon are considered pertinent to applicant's disclosure.
Bolk (US 5357551 A) discloses (at increasing count rates a seemingly decreasing energy of incident x-ray photons is measured [col 1 line 53-54]).
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.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DOUGLAS KAY whose telephone number is (408)918-7569. The examiner can normally be reached on M, Th & F 8-5, T 2-7, and W 8-1.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Arleen M Vazquez can be reached on 571-272-2619. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DOUGLAS KAY/Primary Examiner, Art Unit 2857
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