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 .
Response to Amendment and Status of Application
This notice is in response to the amendments filed 27 May 2026. Claims 1-18, 20-23, and 41-42 are pending in the instant application where claims 1 and 20-21 have been amended. Claims 19 and 24-40 have been cancelled.
Response to Arguments
Applicant’s arguments with respect to claim(s) 19 and 20-23 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. The arguments dated 27 May 2026 are directed to reference Ohyama (claim 19, page 1, under “Independent Claim 1”) and Schreck (claims 20-23, page 4 paragraph 5 – page 7 paragraph 1) are no longer relied upon to teach the applicable limitations.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
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.
Claims 1-5, 22, and 41-42 are rejected under 35 U.S.C. 103 as being unpatentable over US 2017/0322198 A1 by David Zelmanovic et al. (herein after “Zelmanovic”) in view of US 2022/0291109 A1 by Ken Diamond et al. (herein after “Diamond”), and further in view of US 2018/0259430 A1 by Philip J. Wyatt et al. (herein after “Wyatt”).
Regarding claim 1, Zelmanovic discloses an optical detection assembly for monitoring a fluid in a vessel (Zelmanovic [0053]-[0054] discloses a variety of concentrations of substances within a sample under test in a flow cell [vessel] including mean cellular hemoglobin, total hemoglobin concentration, etc. [i.e. system monitors fluid in a vessel), comprising:
a light source configured and oriented to emit a light into a fluid in a vessel (Zelmanovic fig. 3 and [0054] discloses a system 100 including an optical source 105 [light source] emitting light perpendicularly into a flow cell [fluid in a vessel]),
a light detector configured to receive at least a portion of the light exiting the vessel (Zelmanovic [0054] and fig. 3 disclose an absorption detector 130 [light detector] shown to receive a portion of light exiting the flow path [vessel]); and
a controller (Zelmanovic [0056] discloses that the system 100 further comprises a computer processor [controller]) configured to
receive signals from the light detector array indicative of an intensity of said at least a portion of the light received by the light detector (Zelmanovic [0056]; computer processor processes information from the optical detector, and outputs information received from the detector to a computer for further processing; [0054] discloses that the absorbance detector determines a concentration of particles within the vessel via the amount of light absorbed by the particles within the flow path [via signal strength obtained by the detector, i.e. an intensity]; signal strength for this type of light interaction is shown in fig. 7A where the relative intensity between interaction types is seen)
and determine a concentration of a substance in the fluid in the vessel based at least in part on said signals (Zelmanovic [0054]-[0055] discloses obtaining concentrations of blood cell components from measured light by at least the absorption detector).
Zelmanovic is silent to a light detector array comprising a plurality of light detectors, wherein all of the light detectors are oriented substantially parallel to each other, facing in the direction of light emission, and a controller configured to receive signals from the light detector array indicative of an intensity of light received by each one of said plurality of light detectors.
However, Diamond does address this this limitation. Zelmanovic and Diamond are considered to be analogous to the present invention because they are related to particle characterization within a fluid using optical detection apparatus and methods of use.
Diamond discloses “a light detector array comprising a plurality of light detectors” (Diamond fig. 15 shows a tube 261 containing a fluid, where the fluid flows down; fig. 1 shows a settlement analyzer which appears around sampling channel 59 [sampling channel accommodating the fluid sample shown in fig. 15; [0093] settlement analyzer comprises a vertical array 53 of emitters 53 and a corresponding vertical array 55 of detectors 56 [light detector array 56 comprises a plurality of light detectors]), “wherein all of the light detectors are oriented substantially parallel to each other, facing in the direction of light emission” (Diamond [0093] and fig. 1 show the array 55 of light detectors 56 facing the array 53 of light emitters 54, are parallel with one another; [0127] discloses that the array of emitters is provided on an inner surface of the channel and the array of detectors provided on an opposing surface of the channel – opposing array of detectors with fig. 1 demonstrates the light detectors all facing the direction of light emission), “and
a controller configured to receive signals from the light detector array indicative of an intensity of light received by each one of said plurality of light detectors” (Diamond fig.1 discloses the detector array; signals are obtained by each of the plurality of detectors, and [0101] discloses an integrated controller or processor which receives and processes signals or outputs from the detectors, analogous to the assembly of Zelmanovic).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic to incorporate a light detector array comprising a plurality of light detectors, wherein all of the light detectors are oriented substantially parallel to each other, facing in the direction of light emission, and a controller configured to receive signals from the light detector array indicative of an intensity of light received by each one of said plurality of light detectors as suggested by Diamond for the advantage of reducing cross-talk between light detectors when utilizing the vertical array, enabling an abundance of signals to be obtained while using one or more light emitters to be while mitigating undesired cross-talk through predetermined emission sequencing (Diamond [0098]-[0100]).
Zelmanovic when modified by Diamond is silent to determin[ing] a concentration of a substance in the fluid in the vessel based at least in part on a maximum intensity of light received by each of two or more of said plurality of light detectors.
However, Wyatt does address this limitation. Zelmanovic, Diamond, and Wyatt are considered to be analogous to the present invention because they are related to particle characterization within a fluid using optical detection apparatus and methods of use.
Wyatt discloses “determin[ing] a concentration of a substance in the fluid in the vessel based at least in part on a maximum intensity of light received by each of two or more of said plurality of light detectors” (Wyatt fig. 1 and [0011], [0017] disclose a multi angle light scattering detection scheme with a plurality of detectors surrounding a solution of particles; [0051] discloses a phenomenon of measurement lag of concentration contours [i.e. concentration of a substance, see [0039] – contour line represents a concentration boundary for a sample] for a plurality of non-aligned detectors, where a maximum intensity was recorded for the each position in the measurement volume [concentration of a substance based at least in part on a maximum intensity of light received by each of two or more detectors]; examiner also notes that determining a physical characteristic based on a maximum signal obtained by a detector is a well-known and common practice in the art).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic in view of Diamond to incorporate determin[ing] a concentration of a substance in the fluid in the vessel based at least in part on a maximum intensity of light received by each of two or more of said plurality of light detectors as suggested by Wyatt for the advantage of enabling the identification of misaligned detectors (Wyatt [0056] and fig. 18) via a time delay observable by intensity maxima measurement (Wyatt [0051]) so that alignment may be carried out and accuracy of particle characterization increased (Wyatt [0056]).
Regarding claim 2, Zelmanovic when modified by Diamond and Wyatt discloses the optical detection assembly of claim 1, and Zelmanovic further teaches the assembly further comprising a second light detector (Zelmanovic fig. 3 and [0055] discloses side scatter optical detector 135 [second light detector], configured to receive light exiting a portion of the vessel), wherein
one of said light detectors comprises a transmission sensor positioned and configured to receive at least a portion of transmitted light exiting the vessel (Zelmanovic fig. 3 and [0054] discloses the absorption detector 130, which is configured to receive light exiting the flow cell 110 shown in fig. 3; the optical detector 130 “detects light emitted by the optical source and absorbed by the sample mixture” [i.e. receives a portion of transmitted light exiting the vessel]; examiner wishes to note that the measurement of transmission and absorption signals are linked – an absorption signal from the transmission of light through a medium relies on detecting the light that makes it through the sample [i.e. is transmitted through the sample]; for example, a high absorption measurement is the same as a low amount of transmitted light making it through the sample to a detector; this is quantified in Zelmanovic at [0042] in terms of the absorption signal being a direct drop of transmission),
the other one of said light detector arrays comprises a side-scatter sensor positioned and configured to receive at least a portion of scattered light exiting the vessel (Zelmanovic fig. 3 discloses the side scatter detector 135 which [0055] “detects light emitted by the optical source and side scattered by the sample mixture” [i.e. receives a portion of scattered light exiting the vessel]), and
the controller is configured to determine the concentration of said substance in the fluid in the vessel based at least in part on signals from at least one of the light detectors (Zelmanovic [0054]-[0056] discloses obtaining concentrations of blood cell components from measured light by the absorption detector and side-scatter detector, where the computer processor determines/outputs said concentrations).
Zelmanovic is silent to the optical detection assembly of claim 1, further comprising a second light detector array, wherein one of said light detector arrays comprises a transmission sensor, and the other one of the light detector arrays comprises a side-scatter sensor.
However, Diamond does address this limitation.
Diamond discloses the optical detection assembly of claim 1, “further comprising a second light detector array, wherein one of said light detector arrays comprises a transmission sensor, and the other one of the light detector arrays comprises a side-scatter sensor” (Diamond fig. 2 and [0102] discloses a second array 157 of detectors 158 [second light detector array] positioned perpendicular to the first arrays of emitters/detectors (154 and 156, corresponding to fig. 1); as with Zelmanovic, the first and second arrays of detectors are associated with transmission sensing (i.e. the array 156 opposite the emitters 154) and side scatter sensing (second array 157, perpendicular to the first array).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic to incorporate a second light detector array, wherein one of said light detector arrays comprises a transmission sensor, and the other one of the light detector arrays comprises a side-scatter sensor as suggested by Diamond for the advantage of reducing cross-talk between light detectors when utilizing the vertical array, enabling an abundance of signals to be obtained while using one or more light emitters to be while mitigating undesired cross-talk through predetermined emission sequencing (Diamond [0098]-[0100]).
Regarding claim 3, Zelmanovic when modified by Diamond and Wyatt discloses the optical detection assembly of claim 2, and Zelmanovic further teaches the assembly wherein the controller is configured to determine the concentration of said substance in the fluid in the vessel based at least in part on signals from both the light detector arrays (Zelmanovic [0035] discloses obtaining an overall hemoglobin concentration within blood samples using light absorption and right-angle scatter [i.e. using signals obtained from both detector arrays of claim 2]).
Regarding claim 4, Zelmanovic when modified by Diamond and Wyatt discloses the optical detection assembly of claim 2, and Zelmanovic further teaches the assembly wherein the transmission sensor is positioned in-line with an axis of the light emitted by the light source (Zelmanovic [0045] and fig. 3 discloses that the absorption detector receives light in a cone from 0° to 17° degrees, where the 0° angle corresponds to the detector being positioned in-line with the axis of the light emitted by the light source, also seen in fig. 1, where the detector 130 is in line with the emitter 105), and the side-scatter sensor is positioned and oriented at an angle with respect to the axis of the light emitted by the light source (Zelmanovic [0047] and fig. 3 discloses the side-scatter detector being at an angle between 75° and 105° to the emission axis of the incident light).
Regarding claim 5, Zelmanovic when modified by Diamond and Wyatt discloses the optical detection assembly of claim 4, and Zelmanovic further teaches the assembly wherein the side-scatter sensor is positioned and oriented substantially orthogonal with respect to the axis of the light emitted by the light source (Zelmanovic fig. 3 and [0047] discloses that the side-scatter detector obtains light from an angle between 75° and 105°, where those angles are centered around 90°, i.e. the detector receives light at 90° of the incident beam).
Regarding claim 22, Zelmanovic when modified by Diamond and Wyatt discloses the optical detection assembly of claim 1, and Zelmanovic further teaches the assembly wherein the controller is configured to omit signals from selected light detectors when determining the concentration of the substance in the fluid in the vessel (Zelmanovic [0056] discloses that the computer processor of the system 100 is configured to process information received from the optical detector and may output information received from the optical detector to a computer for further processing [controller omits signals obtained from selected (undefined in the claim) light detectors for determining concentration]).
Regarding claim 41, Zelmanovic when modified by Diamond and Wyatt discloses the optical detection assembly of claim 1, and Zelmanovic further teaches the assembly wherein the light source is configured to emit a single light beam into the fluid in the vessel (Zelmanovic fig. 3 shows the laser diode 105 emitting a single light beam into the fluid within the flow cell; even assuming arguendo that Zelmanovic is shown to not emit a single beam into the fluid in the vessel, Diamond discloses that the plurality of light emitters emit light into the flow cell sequentially [i.e. one at a time in certain embodiments], and would also read on a single light beam being emitted into the fluid in the vessel).
Regarding claim 42, Zelmanovic when modified by Diamond discloses the optical detection assembly of claim 1, and Zelmanovic further teaches the assembly wherein the light detector array is positioned and configured to receive at least a portion of scattered light exiting the vessel (Zelmanovic [0045] discloses that a single absorption detector 130 [the light detector array] accepts light in the forward direction within a cone from 0ׄ°-26°, and this includes scattered light [stating that the cone within 0°-21° includes more than 97% of light scattered by the cell types – absorption detector also receives at least a portion of scattered light exiting the vessel]), and
the controller is configured to determine the concentration of said substance in the fluid in the vessel based at least in part on an intensity of the scattered light received by the light detector array (Zelmanovic [0045]-[0046] discloses the calculation of concentration of cellular hemoglobin and total hemoglobin using the single detector [the absorption detector 130, claimed light detector array], where the concentrations are based [at least in part] on the signal received by said absorption detector, which has captured scattered light).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Zelmanovic in view of Diamond, in view of Wyatt, and further in view of US 2018/0188154 A1 by Marshall Donnie Graham et al. (herein after “Graham”).
Regarding claim 6, Zelmanovic when modified by Diamond and Wyatt discloses the optical detection assembly of claim 2, and Zelmanovic further teaches the assembly comprising a channel configured to receive at least a portion of the vessel (Zelmanovic fig. 1 shows an area within the system 100 where a flow cell 110 is placed [the portion of the system 100 where the flow cell fits is considered the channel, which “receives a portion of the vessel”]) and defining a first aperture associated with the light source and configured to accommodate at least a portion of the light emitted by the light source (Zelmanovic fig. 1 and [0053] discloses a lens housing 115, which directs light from the light source into the flow cell 110 [also seen in fig. 2]; either of the lenses may be considered the first aperture).
Zelmanovic when modified by Diamond and Wyatt is silent to the optical detection assembly of claim 2, further comprising a second aperture associated with the transmission sensor and configured to accommodate transmitted light exiting the vessel and a third aperture associated with the side-scatter sensor and configured to accommodate scattered light exiting the vessel.
However, Graham does address this limitation. Zelmanovic, Diamond, Wyatt, and Graham are considered to be analogous to the present invention because they are in the same field of fluid sample analysis through particle interactions of light.
Graham discloses the optical detection assembly of claim 2, “further comprising a second aperture associated with the transmission sensor and configured to accommodate transmitted light exiting the vessel” (Graham fig. 3 and [0086] discloses a particle detection apparatus with a flow cell 30 and a plurality of detectors arranged around the flow cell to detect scattered light; fig. 10 and [0089] discloses a window W2 [second aperture] which directs light to a detector OS1 at angle LS1 [transmission sensor, configured to accommodate transmitted light exiting the vessel]), and a third aperture associated with the side-scatter sensor and configured to accommodate scattered light exiting the vessel” (Graham fig. 3 and [0086] discloses the particle detection apparatus; fig. 10 and [0089] discloses window W4 through which side scattered light at angle LS2 is directed to photoactive region PIN diode OS5 [side-scatter sensor, detecting side-scattered light having exited the vessel]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic in view of Diamond and Wyatt to incorporate a second aperture associated with the transmission sensor and configured to accommodate transmitted light exiting the vessel and a third aperture associated with the side-scatter sensor and configured to accommodate scattered light exiting the vessel as suggested by Graham for the advantage of increasing the amount of light detectable by the side scatter sensor by focusing the scattered light via the third aperture.
Claims 7-11 and 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Zelmanovic in view of Diamond, in view of Wyatt, and further in view of US 2023/0255522 A1 by Mattias Holmer et al. (herein after “Holmer”).
Regarding claim 7, Zelmanovic when modified by Diamond and Wyatt discloses the optical detection assembly of claim 1. Zelmanovic when modified by Diamond and Wyatt is silent to the optical detection assembly of claim 1, further comprising a vessel attachment including substantially parallel first and second faces, wherein the first face of the vessel attachment is positioned facing the light source and oriented in a plane substantially orthogonal to a central axis of light emitted by the light source, the second face of the vessel attachment is positioned facing the light detector array, and the vessel attachment defines a cavity positioned between the first and second faces and configured to receive at least a portion of the vessel, with an outer surface of said at least a portion of the vessel in contact with an adjacent surface of the cavity at locations in which the light emitted by the light source is configured to enter the vessel and exit the vessel.
However, Holmer does address this limitation. Zelmanovic, Diamond, Wyatt, and Holmer are considered to be analogous to the present invention because they are in the same field of fluid sample analysis through particle interactions of light
Holmer discloses the optical detection assembly of claim 2, further comprising “a vessel attachment including substantially parallel first and second faces” (Holmer fig. 2 label 30 and [0043] describe a holder 30 which comprises parallel first and second faces, defined by walls 32 and 33), “wherein the first face of the vessel attachment is positioned facing the light source and oriented in a plane substantially orthogonal to a central axis of light emitted by the light source” (Holmer fig. 2 and [0043] disclose first wall 32, who’s outer side is facing the light emitting device 34 [light source], and light is emitted orthogonal to the plane of the wall 32), “the second face of the vessel attachment is positioned facing the light detector array” (Holmer fig. 2 and [0043] disclose second wall 33, who’s outer side is facing the light detecting system 35 [light detector array]), “and the vessel attachment defines a cavity positioned between the first and second faces and configured to receive at least a portion of the vessel, with an outer surface of said at least a portion of the vessel in contact with an adjacent surface of the cavity at locations in which the light emitted by the light source is configured to enter the vessel and exit the vessel” (Holmer fig. 2 and [0043] discloses and shows that the holder 30 defines a cavity within which a portion of the tubing 16 [vessel] is placed [i.e. cavity receives a portion of the vessel]; the cavity is defined between outer side of the walls 32 and 33; the outer surfaces of the cavity are considered the inner surfaces of the walls 32 and 33 that defines the cavity; the tubing 16 [vessel] is in contact with the inner surfaces of the walls 32, 33, at windows 32a and 33a, to facilitate light entering and exiting the vessel).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic in view of Diamond and Wyatt to incorporate a vessel attachment including substantially parallel first and second faces, wherein the first face of the vessel attachment is positioned facing the light source and oriented in a plane substantially orthogonal to a central axis of light emitted by the light source, the second face of the vessel attachment is positioned facing the light detector array, and the vessel attachment defines a cavity positioned between the first and second faces and configured to receive at least a portion of the vessel, with an outer surface of said at least a portion of the vessel in contact with an adjacent surface of the cavity at locations in which the light emitted by the light source is configured to enter the vessel and exit the vessel as suggested by Holmer for the advantage of eliminating the need for calibration of the optical detection apparatus utilizing the geometry of the holder (Holmer [0043]).
Regarding claim 8, Zelmanovic when modified by Diamond, Wyatt, and Holmer discloses the optical detection assembly of claim 7. Zelmanovic when modified by Diamond and Wyatt is silent to the optical detection assembly of claim 7, wherein the vessel attachment is formed of a material having a refractive index substantially the same as a refractive index of a material forming the vessel.
However, Holmer does address this limitation.
Holmer discloses the optical detection assembly of claim 7, “wherein the vessel attachment is formed of a material having a refractive index substantially the same as a refractive index of a material forming the vessel” (Holmer [0043] discloses that the openings 32a and 33a within the walls 32 and 33 which define the cavity of claim 7 are transparent/translucent windows; [0041] discloses that the tubing 16 arranged between the cavity is also transparent/translucent, such that the vessel attachment and vessel are both constructed by transparent/translucent materials; in the case of transparent tubing and transparent windows in the vessel attachment, one of ordinary skill in the art would consider obvious the refractive index of said materials as being substantially the same, as substantial differences in refractive indices may result in undesired changes in the detection of signals (as described in Holmer [0005]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic in view of Diamond and Wyatt to incorporate wherein the vessel attachment is formed of a material having a refractive index substantially the same as a refractive index of a material forming the vessel as suggested by Holmer for the advantage of minimizing disturbances due to the refractive effects of light as it passes through the vessel attachment and vessel before being detected (Holmes [0042]).
Regarding claim 9, Zelmanovic when modified by Diamond, Wyatt, and Holmer discloses the optical detection assembly of claim 7. Zelmanovic when modified by Diamond and Wyatt is silent to the optical detection assembly of claim 7, wherein the vessel attachment is fixedly secured to the vessel.
However, Holmer does address this limitation.
Holmer discloses the optical detection assembly of claim 7, “wherein the vessel attachment is fixedly secured to the vessel” (Holmer fig. 4 and [0067] discloses the walls 32 and 33 [holder 30, i.e. vessel attachment] being used to compress the tubing 16 [vessel] through a biasing mechanism 40, which squeezes the tubing until the tubing walls are planar; the compression of the vessel to the vessel attachment is equivalent to the attachment being fixedly secured to the vessel, as indicated by [0043], stating that the tubing is “squeezed, frictionally held, or otherwise fixed in the holder”).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic in view of Diamond and Wyatt to incorporate the vessel attachment is fixedly secured to the vessel as suggested by Holmer for the advantage of stabilizing the vessel within the walls of the vessel attachment, and to prevent the slippage of the vessel out of the holder (Holmer [0068]-[0069]).
Regarding claim 10, Zelmanovic when modified by Diamond, Wyatt, and Holmer discloses the optical detection assembly of claim 7. Zelmanovic when modified by Diamond and Wyatt is silent to the optical detection assembly of claim 7, wherein the vessel attachment is bonded to the vessel.
However, Holmer does address this limitation.
Holmer discloses the optical detection assembly of claim 7, “wherein the vessel attachment is bonded to the vessel” (Holmer fig. 4 and [0067] discloses the walls 32 and 33 [holder 30, i.e. vessel attachment] being used to compress the tubing 16 [vessel] through a biasing mechanism 40, which squeezes the tubing until the tubing walls are planar; the compression of the vessel to the vessel attachment is equivalent to the attachment being bonded to the vessel, as indicated by [0043], stating that the tubing is fixed in the holder; here, the vessel attachment being bonded to the vessel is not patentably different than being fixed to the vessel, as there is no formal definition in the specification provided for “bonded”).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic in view of Diamond and Wyatt to incorporate the vessel attachment is bonded to the vessel as suggested by Holmer for the advantage of stabilizing the vessel within the walls of the vessel attachment, and to prevent the slippage of the vessel out of the holder (Holmer [0068]-[0069]).
Regarding claim 11, Zelmanovic when modified by Diamond, Wyatt, and Holmer discloses the optical detection assembly of claim 7. Zelmanovic when modified by Diamond and Wyatt is silent to the optical detection assembly of claim 7, wherein the vessel attachment comprises first and second pieces each defining a portion of the cavity, and the first piece of the vessel attachment is at least partially movable with respect to the second piece of the vessel attachment.
However, Holmer does address these limitations.
Holmer discloses the optical detection assembly of claim 7, “wherein the vessel attachment comprises first and second pieces each defining a portion of the cavity, and the first piece of the vessel attachment is at least partially movable with respect to the second piece of the vessel attachment” (Holmer [0043] and fig. 3 show the holder 30 [vessel attachment], where walls 32, 33 [second and first pieces, respectively] define the cavity within which the vessel is received; each wall defines a portion of the cavity; [0067] and fig. 4 show a biasing force applied by biasing mechanism 40 onto wall 33, where wall 32 remains fixed [first piece is movable with respect to the second piece]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic in view of Diamond and Wyatt to incorporate wherein the vessel attachment comprises first and second pieces each defining a portion of the cavity, and the first piece of the vessel attachment is at least partially movable with respect to the second piece of the vessel attachment as suggested by Holmer for the advantage of stabilizing the vessel within the walls of the vessel attachment, and to prevent the slippage of the vessel out of the holder (Holmer [0068]-[0069]).
Regarding claim 17, Zelmanovic when modified by Diamond and Wyatt discloses the optical detection assembly of claim 1. Zelmanovic when modified by Diamond and Wyatt is silent to the optical detection assembly of claim 1, wherein the light source is configured to emit collimated light.
However, Holmer does address this limitation.
Holmer discloses the optical detection assembly of claim 1, “wherein the light source is configured to emit collimated light” (Holmer [0055] discloses that the light source 34a emits light in a collimated beam).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic in view of Diamond and Wyatt to incorporate wherein the light source is configured to emit collimated light as suggested by Holmer for the advantage of achieving a sufficient signal response for a small target volume within a vessel, where uncollimated light may not be sufficient to produce an output signal (Holmer [0055]).
Regarding claim 18, Zelmanovic when modified by Diamond and Wyatt discloses the optical detection assembly of claim 1. Zelmanovic when modified by Diamond and Wyatt is silent to the optical detection assembly of claim 1, wherein the light source is configured to emit diffuse light.
However, Holmer does address this limitation.
Holmer discloses the optical detection assembly of claim 1, “wherein the light source is configured to emit diffuse light” (Holmer [0044] discloses that the light source 34a may be a light-emitting diode (LED) which is a non-coherent light source (i.e. emits diffuse light)).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic in view of Diamond and Wyatt to incorporate wherein the light source is configured to emit diffuse light as suggested by Holmer for the advantage of using an easily accessible light source like an LED which reduces the cost of the detection assembly.
Claims 12 and 14-16 are rejected under 35 U.S.C. 103 as being unpatentable over Zelmanovic in view of Diamond, in view of Wyatt, in view of Holmer, and further in view of US 2016/0069803 A1 by Yoshihiko Sano et al. (herein after “Sano”). Examiner notes the reference Sano was cited in the IDS filed 26 January 2023 as EP 2988113 A1.
Regarding claim 12, Zelmanovic when modified by Diamond, Wyatt, and Holmer discloses the optical detection assembly of claim 11. Zelmanovic when modified by Diamond, Wyatt, and Holmer is silent to the optical detection assembly of claim 11, further comprising a first sensor housing associated with the light source and the first piece of the vessel attachment, and a second sensor housing movably associated with the light detector array and the second piece of the vessel attachment, wherein at least a portion of one of the sensor housings is movable with respect to at least a portion of the other one of the sensor housings.
However, Sano does address these limitations. Zelmanovic, Diamond, Wyatt, Holmer, and Sano are considered to be analogous to the present invention because they are in the same field of fluid sample analysis through particle interactions of light.
Sano discloses the optical detection assembly of claim 11, further comprising “a first sensor housing associated with the light source and the first piece of the vessel attachment” (Sano [0031] and fig. 1(a) shows a bottom portion of case 1 to hold a resin tube [first sensor housing], with a groove 1a set within, where multiple light emitting units 2 are shown, i.e. first sensor housing associated with the light source; since there is no definition for what counts as “associated with the first piece of the vessel attachment”, examiner notes that because the first piece of the vessel attachment is associated with the light source of Holmer by facilitating light into a vessel, the first sensor housing of Sano is therefore associated with the first piece of the vessel attachment as well) and a second sensor housing movable associated with the light detector array and the second piece of the vessel attachment, wherein at least a portion of one of the sensor housings is movable with respect to at least a portion of the other one of the sensor housings (Sano [0072] and fig. 7 shows the whole case 1, with a lid attached to the bottom portion of case 1 from fig. 1(a) [first sensor housing]; here, the lid serves as the second sensor housing, since it is movable with respect to both the light detector array 3 and the bottom portion of the case [first sensor housing]; with similar reasoning to the preceding limitation, the second piece of the vessel attachment in line with the light detector array of Holmer facilitates light into the light detecting system, and would be movably associated with the second piece of the vessel attachment of Holmer as well).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic in view of Diamond, Wyatt, and Holmer to incorporate a first sensor housing associated with the light source and the first piece of the vessel attachment, and a second sensor housing movably associated with the light detector array and the second piece of the vessel attachment, wherein at least a portion of one of the sensor housings is movable with respect to at least a portion of the other one of the sensor housings as suggested by Sano for the advantage of inspecting a specimen within a cavity where the cavity can be closed off from the external environment via shutting the lid of the case, therefore minimizing the effect of external and/or undesirable light being sensed by the light receiving units.
Regarding claim 14, Zelmanovic when modified by Diamond, Wyatt, and Holmer discloses the optical detection apparatus of claim 7. Zelmanovic when modified by Diamond and Wyatt is silent to the optical detection apparatus of claim 7, wherein the cavity is defined by substantially parallel first and second cavity walls.
However, Holmer does address this limitation.
Holmer discloses the optical detection assembly of claim 7, “wherein the cavity is defined by substantially parallel first and second cavity walls” (Holmer fig. 2 label 30 and [0043] describe a holder 30 which comprises parallel first and second cavity walls, defined by walls 32 and 33).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic in view of Diamond and Wyatt to incorporate wherein the cavity is defined by substantially parallel first and second cavity walls as suggested by Holmer for the advantage of eliminating the need for calibration of the optical detection apparatus utilizing the geometry of the holder (Holmer [0043]).
Zelmanovic when modified by Diamond, Wyatt, and Holmer is silent to the optical detection assembly of claim 7, wherein at least a portion of the first and second cavity walls are separated by a distance less than an outer dimension of said at least a portion of the vessel received by the cavity.
However, Sano does address this limitation.
Sano discloses the optical detection assembly of claim 7, “wherein at least a portion of the first and second cavity walls are separated by a distance less than an outer dimension of said at least a portion of the vessel received by the cavity” (Sano [0031] and fig. 1(a) shows a cavity (groove 1a) which comprises vertical walls on the light emitting side [emitters 2] and light receiving side [receivers 3], where the cavity accepts a resin tube TB, and has a separation less than that of the remainder of the cavity; seen in fig. 2 the cavity is bowed in at the receivers 3 and emitters 2, and compresses the resin tube TB; therefore, the cavity walls at the emitter/receiver is separated by a distance less than that of the vessel TD outside of the emitter/receiver cavity location).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic in view of Diamond, Wyatt, and Holmer to incorporate wherein at least a portion of the first and second cavity walls are separated by a distance less than an outer dimension of said at least a portion of the vessel received by the cavity as suggested by Sano for the advantage of setting the light path distances for the emitting and receiving pairs within the cavity, enabling fluid concentration calculations taking into account the path differences (Sano [0012]), in part eliminating the effect of vessel thickness (Sano [0006]).
Regarding claim 15, Zelmanovic when modified by Diamond, Wyatt, Holmer, and Sano discloses the optical detection assembly of claim 14. Zelmanovic when modified by Diamond, Wyatt, and Holmer is silent to the optical detection assembly of claim 14, wherein a first portion of the first and second cavity walls are separated by a first distance, a second portion of the first and second cavity walls are separated by a second distance, the first distance is different from the second distance, and each of the first and second distances is less than the outer dimension of said at least a portion of the vessel received by the cavity.
However, Sano does address this limitation.
Sano discloses the optical detection assembly of claim 14, “wherein a first portion of the first and second cavity walls are separated by a first distance, a second portion of the first and second cavity walls are separated by a second distance, the first distance is different from the second distance, and each of the first and second distances is less than the outer dimension of said at least a portion of the vessel received by the cavity” (Sano [0031] and fig. 1(a) discloses a pair of short-distanced pair of receiving/emitting units 4S, and a pair of long-distanced pair of receiving/emitting units 4L; a cross-section schematic is shown in fig. 3 for the long path length L and the short path length S, where the inner diameter of the blood tube ALL and ALS are longer and shorter respectively; thus, the long-distanced pair 4L [first cavity portion separated by a first distance] and the short-distanced pair 4S [second cavity portion separated by a second distance] will have dimensions shorter than the uncompressed vessel, and will be different from one another).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic in view of Diamond, Wyatt, and Holmer to incorporate wherein a first portion of the first and second cavity walls are separated by a first distance, a second portion of the first and second cavity walls are separated by a second distance, the first distance is different from the second distance, and each of the first and second distances is less than the outer dimension of said at least a portion of the vessel received by the cavity as suggested by Sano for the advantage of setting the light path distances for the emitting and receiving pairs within the cavity, enabling fluid concentration calculations taking into account the path differences (Sano [0012]), in part eliminating the effect of vessel thickness (Sano [0006]).
Regarding claim 16, Zelmanovic when modified by Diamond, Wyatt, Holmer, and Sano discloses the optical detection assembly of claim 15. Zelmanovic when modified by Diamond, Wyatt, and Holmer is silent to the optical detection assembly of claim 15, wherein a third portion of the first and second cavity walls are separated by a third distance, the third distance is different from the first and second distances, and the third distance is less than the outer dimension of said at least a portion of the vessel received by the cavity.
However, Sano does address this limitation.
Sano discloses the optical detection assembly of claim 15, “wherein a third portion of the first and second cavity walls are separated by a third distance, the third distance is different from the first and second distances, and the third distance is less than the outer dimension of said at least a portion of the vessel received by the cavity” (Sano discloses the short-distanced pair of receiving/emitting units 4S and long-distanced pair of receiving/emitting elements 4L and the associated geometry above in claim 15; Sano discloses in [0082] that while the embodiments disclose two types of light path distances, three or more types of light path distances may be set, and light intensities are obtained from each light receiving part, such that a third pair of receiving/emitting units are disclosed by Sano; because at least one distanced pair 4M is adjustable, it would be obvious to one of ordinary skill to conclude that a third pair of receiver/emitting units would be separated by a distance different from S or L, and would therefore fulfill the claim; even if the newly added third adjustable pair was being adjusted from S to L, in the interim there would be at least an instant where a third distance would be different from the first two, and less than the vessel diameter).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic in view of Diamond, Wyatt, and Holmer to incorporate wherein a third portion of the first and second cavity walls are separated by a third distance, the third distance is different from the first and second distances, and the third distance is less than the outer dimension of said at least a portion of the vessel received by the cavity as suggested by Sano for the advantage of setting the light path distances for the emitting and receiving pairs within the cavity, enabling fluid concentration calculations taking into account the path differences (Sano [0012]), in part eliminating the effect of vessel thickness (Sano [0006]).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Zelmanovic in view of Diamond, in view of Wyatt, in view of Holmer, and further in view of US 6,144,444 A by William S. Haworth et al. (herein after “Haworth”).
Regarding claim 13, Zelmanovic when modified by Diamond, Wyatt, and Holmer discloses the optical detection assembly of claim 7. Zelmanovic when modified by Diamond, Wyatt, and Holmer is silent to the optical detection assembly of claim 7, wherein the cavity is substantially cylindrical.
However, Haworth does address this limitation. Zelmanovic, Diamond, Wyatt, Holmer, and Haworth are considered to be analogous to the present invention because they are in the same field of fluid sample analysis through particle interactions of light.
Haworth discloses the optical detection assembly of claim 7, “wherein the cavity is substantially cylindrical” (Haworth col 6 ll. 33-47 and fig. 2A disclose an apparatus for monitoring blood parameters, where a cavity 38 is defined; it is seen in figs. 2A-2C that the cavity is cylindrically shaped).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic in view of Diamond, Wyatt, and Holmer to incorporate wherein the cavity is substantially cylindrical as suggested by Haworth for the advantage of easily enabling blood containing cylindrical conduits to be mounted within the cavity, while also providing for smaller diameter or other conduit to be secured and tested, improving the versatility of the device (Haworth col 6 ll. 48-51).
Claims 20-21 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Zelmanovic in view of Diamond, and further in view of US 6,388,752 A by Werner Ziegler et al. (herein after “Ziegler”).
Regarding claim 20, Zelmanovic discloses an optical detection assembly for monitoring a fluid in a vessel (Zelmanovic [0053]-[0054] discloses a variety of concentrations of substances within a sample under test in a flow cell [vessel] including mean cellular hemoglobin, total hemoglobin concentration, etc. [i.e. system monitors fluid in a vessel), comprising:
a light source configured and oriented to emit a light into a fluid in a vessel (Zelmanovic fig. 3 and [0054] discloses a system 100 including an optical source 105 [light source] emitting light perpendicularly into a flow cell [fluid in a vessel]);
a light detector configured to receive at least a portion of the light exiting the vessel (Zelmanovic [0054] and fig. 3 disclose an absorption detector 130 [light detector] shown to receive a portion of light exiting the flow path [vessel]); and
a controller (Zelmanovic [0056] discloses that the system 100 further comprises a computer processor [controller]) configured to
receive signals from the light detector array indicative of an intensity of said at least a portion of the light received by the light detector (Zelmanovic [0056]; computer processor processes information from the optical detector, and outputs information received from the detector to a computer for further processing; [0054] discloses that the absorbance detector determines a concentration of particles within the vessel via the amount of light absorbed by the particles within the flow path [via signal strength obtained by the detector, i.e. an intensity]; signal strength for this type of light interaction is shown in fig. 7A where the relative intensity between interaction types is seen), and
determine a concentration of a substance in the fluid in the vessel based at least in part on said signals (Zelmanovic [0054]-[0055] discloses obtaining concentrations of blood cell components from measured light by at least the absorption detector).
Zelmanovic is silent to a light detector array comprising a plurality of light detectors, wherein all of the light detectors are oriented substantially parallel to each other, facing in the direction of light emission, and a controller configured to receive signals from the light detector array indicative of an intensity of light received by each one of said plurality of light detectors.
However, Diamond does address this this limitation. Zelmanovic and Diamond are considered to be analogous to the present invention because they are related to particle characterization within a fluid using optical detection apparatus and methods of use.
Diamond discloses “a light detector array comprising a plurality of light detectors” (Diamond fig. 15 shows a tube 261 containing a fluid, where the fluid flows down; fig. 1 shows a settlement analyzer which appears around sampling channel 59 [sampling channel accommodating the fluid sample shown in fig. 15; [0093] settlement analyzer comprises a vertical array 53 of emitters 53 and a corresponding vertical array 55 of detectors 56 [light detector array 56 comprises a plurality of light detectors]), “wherein all of the light detectors are oriented substantially parallel to each other, facing in the direction of light emission” (Diamond [0093] and fig. 1 show the array 55 of light detectors 56 facing the array 53 of light emitters 54, are parallel with one another; [0127] discloses that the array of emitters is provided on an inner surface of the channel and the array of detectors provided on an opposing surface of the channel – opposing array of detectors with fig. 1 demonstrates the light detectors all facing the direction of light emission), “and
a controller configured to receive signals from the light detector array indicative of an intensity of light received by each one of said plurality of light detectors” (Diamond fig.1 discloses the detector array; signals are obtained by each of the plurality of detectors, and [0101] discloses an integrated controller or processor which receives and processes signals or outputs from the detectors, analogous to the assembly of Zelmanovic).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic to incorporate a light detector array comprising a plurality of light detectors, wherein all of the light detectors are oriented substantially parallel to each other, facing in the direction of light emission, and a controller configured to receive signals from the light detector array indicative of an intensity of light received by each one of said plurality of light detectors as suggested by Diamond for the advantage of reducing cross-talk between light detectors when utilizing the vertical array, enabling an abundance of signals to be obtained while using one or more light emitters to be while mitigating undesired cross-talk through predetermined emission sequencing (Diamond [0098]-[0100]).
Zelmanovic when modified by Diamond is silent to determin[ing] a concentration of a substance based at least in part on a summation of the intensity of light received by at least two of the said plurality of detectors.
However, Ziegler does address this limitation. Zelmanovic, Diamond, and Ziegler are considered to be analogous to the present invention because they are related to particle characterization within a fluid using optical detection apparatus and methods of use.
Ziegler discloses “determin[ing] a concentration of a substance based at least in part on a summation of the intensity of light received by at least two of the said plurality of detectors” (Ziegler fig. 2 and col 4 ll. 29-37 discloses a plot of intensity vs concentration of scattering medium in a sample, where transmission intensity T, scattering intensity S, and a weighed summation of T and S appears, where T is obtained via transmission detector 4 and S is obtained via scattering detector 5, see fig. 1 [based at least in part on a summation of the intensity of light received by at least two of the said plurality of detectors]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic in view of Diamond to incorporate determin[ing] a concentration of a substance based at least in part on a summation of the intensity of light received by at least two of the said plurality of detectors as suggested by Ziegler for the advantage of obtaining drift free measurements for the detectors 4 and 5 at a plurality of different wavelengths, thereby avoiding any errors in measurement related to detector drift (Ziegler col. 4 ll. 48-53 and col. 5 ll. 5-10).
Regarding claim 21, Zelmanovic discloses an optical detection assembly for monitoring a fluid in a vessel (Zelmanovic [0053]-[0054] discloses a variety of concentrations of substances within a sample under test in a flow cell [vessel] including mean cellular hemoglobin, total hemoglobin concentration, etc. [i.e. system monitors fluid in a vessel), comprising:
a light source configured and oriented to emit a light into a fluid in a vessel (Zelmanovic fig. 3 and [0054] discloses a system 100 including an optical source 105 [light source] emitting light perpendicularly into a flow cell [fluid in a vessel]);
a light detector configured to receive at least a portion of the light exiting the vessel (Zelmanovic [0054] and fig. 3 disclose an absorption detector 130 [light detector] shown to receive a portion of light exiting the flow path [vessel]); and
a controller (Zelmanovic [0056] discloses that the system 100 further comprises a computer processor [controller]) configured to
receive signals from the light detector array indicative of an intensity of said at least a portion of the light received by the light detector (Zelmanovic [0056]; computer processor processes information from the optical detector, and outputs information received from the detector to a computer for further processing; [0054] discloses that the absorbance detector determines a concentration of particles within the vessel via the amount of light absorbed by the particles within the flow path [via signal strength obtained by the detector, i.e. an intensity]; signal strength for this type of light interaction is shown in fig. 7A where the relative intensity between interaction types is seen), and
determine a concentration of a substance in the fluid in the vessel based at least in part on said signals (Zelmanovic [0054]-[0055] discloses obtaining concentrations of blood cell components from measured light by at least the absorption detector).
Zelmanovic is silent to a light detector array comprising a plurality of light detectors, wherein all of the light detectors are oriented substantially parallel to each other, facing in the direction of light emission, and a controller configured to receive signals from the light detector array indicative of an intensity of light received by each one of said plurality of light detectors.
However, Diamond does address this this limitation. Zelmanovic and Diamond are considered to be analogous to the present invention because they are related to particle characterization within a fluid using optical detection apparatus and methods of use.
Diamond discloses “a light detector array comprising a plurality of light detectors” (Diamond fig. 15 shows a tube 261 containing a fluid, where the fluid flows down; fig. 1 shows a settlement analyzer which appears around sampling channel 59 [sampling channel accommodating the fluid sample shown in fig. 15; [0093] settlement analyzer comprises a vertical array 53 of emitters 53 and a corresponding vertical array 55 of detectors 56 [light detector array 56 comprises a plurality of light detectors]), “wherein all of the light detectors are oriented substantially parallel to each other, facing in the direction of light emission” (Diamond [0093] and fig. 1 show the array 55 of light detectors 56 facing the array 53 of light emitters 54, are parallel with one another; [0127] discloses that the array of emitters is provided on an inner surface of the channel and the array of detectors provided on an opposing surface of the channel – opposing array of detectors with fig. 1 demonstrates the light detectors all facing the direction of light emission), “and
a controller configured to receive signals from the light detector array indicative of an intensity of light received by each one of said plurality of light detectors” (Diamond fig.1 discloses the detector array; signals are obtained by each of the plurality of detectors, and [0101] discloses an integrated controller or processor which receives and processes signals or outputs from the detectors, analogous to the assembly of Zelmanovic).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic to incorporate a light detector array comprising a plurality of light detectors, wherein all of the light detectors are oriented substantially parallel to each other, facing in the direction of light emission, and a controller configured to receive signals from the light detector array indicative of an intensity of light received by each one of said plurality of light detectors as suggested by Diamond for the advantage of reducing cross-talk between light detectors when utilizing the vertical array, enabling an abundance of signals to be obtained while using one or more light emitters to be while mitigating undesired cross-talk through predetermined emission sequencing (Diamond [0098]-[0100]).
Zelmanovic when modified by Diamond is silent to determin[ing] a concentration of a substance based at least in part on the number of light detectors receiving light having an intensity of at least a minimum percentage of a maximum intensity of light received by one of said plurality of light detectors.
However, Ziegler does address this limitation. Zelmanovic, Diamond, and Ziegler are considered to be analogous to the present invention because they are related to particle characterization within a fluid using optical detection apparatus and methods of use.
Ziegler discloses “determin[ing] a concentration of a substance based at least in part on the number of light detectors receiving light having an intensity of at least a minimum percentage of a maximum intensity of light received by one of said plurality of light detectors” (Ziegler fig. 2 and col 4 ll. 29-37 discloses a plot of intensity vs concentration of scattering medium in a sample, where transmission intensity T, scattering intensity S, and a weighed summation of T and S appears, where T is obtained via transmission detector 4 and S is obtained via scattering detector 5, see fig. 1; col 6 ll. 16-29 and 36-48 discloses that the weighted summation technique is able to adapt to specific requirements, such that the intensity maximum may be chosen based on an expected minimal concentration of samples to be measured; the resolution of the optical system [i.e. a range of detection intensity] may be optimally utilized based on the maximal intensity attained at a minimum concentration; the recitation of “the controller configured to determine a concentration of a substance based at least in part on the number of light detectors receiving light having an intensity of at least a minimum percentage of a maximum intensity of light received by one of said plurality of light detectors” is a recitation of what the device does rather than what the device is – under MPEP §2114 II., this limitation does not differentiate the apparatus from the prior art; since Zelmanovic in view of Diamond and Ziegler has disclosed the determination of concentration based on intensity signals from the detectors, and Ziegler’s disclosure of intensity characteristics obtained by the plurality of detectors based on the traces of fig. 2, it is reasonable to conclude the device of Zelmanovic in view of Diamond and Ziegler can be operated in a manner to satisfy this limitation – see MPEP §2114 II. and Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990)).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic in view of Diamond to incorporate determin[ing] a concentration of a substance based at least in part on the number of light detectors receiving light having an intensity of at least a minimum percentage of a maximum intensity of light received by one of said plurality of light detectors as suggested by Ziegler for the advantage of obtaining drift free measurements for the detectors 4 and 5 at a plurality of different wavelengths, thereby avoiding any errors in measurement related to detector drift (Ziegler col. 4 ll. 48-53 and col. 5 ll. 5-10).
Regarding claim 23, Zelmanovic when modified by Diamond discloses the optical detection assembly of claim 1. Zelmanovic when modified by Diamond is silent to the optical detection assembly of claim 1, wherein the controller is configured to calculate an average of a plurality of signals from the at least one of said light detectors when determining the concentration of the substance in the fluid in the vessel.
However, Ziegler does address this limitation. Zelmanovic, Diamond, and Ziegler are considered to be analogous to the present invention because they are related to particle characterization within a fluid using optical detection apparatus and methods of use.
Ziegler discloses the optical detection assembly of claim 1, “wherein the controller is configured to calculate an average of a plurality of signals from the at least one of said light detectors when determining the concentration of the substance in the fluid in the vessel” (Ziegler has disclosed the capture of intensity signals from detectors 4 and 5, see claims 20-21; col. 6 ll. 26-30 discloses that the optimization of a mean slope or slope function may occur; the recitation of “wherein the controller is configured to calculate an average of a plurality of signals from the at least one of said light detectors when determining the concentration of the substance in the fluid in the vessel” is a recitation of what the device does rather than what the device is – under MPEP §2114 II., this limitation does not differentiate the apparatus from the prior art; since Zelmanovic in view of Diamond and Ziegler has disclosed the determination of concentration based on intensity signals from the detectors, and Ziegler’s disclosure of optimization of mean slope or slope function of the intensity traces of fig. 2, it is reasonable to conclude the device of Zelmanovic in view of Diamond and Ziegler can be operated in a manner to satisfy this limitation – see MPEP §2114 II. and Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990)).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Zelmanovic in view of Diamond to incorporate wherein the controller is configured to calculate an average of a plurality of signals from the at least one of said light detectors when determining the concentration of the substance in the fluid in the vessel as suggested by Ziegler for the advantage of obtaining drift free measurements for the detectors 4 and 5 at a plurality of different wavelengths, thereby avoiding any errors in measurement related to detector drift (Ziegler col. 4 ll. 48-53 and col. 5 ll. 5-10).
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 JOSHUA M CARLSON whose telephone number is (571)270-0065. The examiner can normally be reached Mon-Fri. 8:00AM - 5:00PM.
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/JOSHUA M CARLSON/Examiner, Art Unit 2877
/TARIFUR R CHOWDHURY/Supervisory Patent Examiner, Art Unit 2877
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