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
As to the claim amendments and arguments filed on 2/10/26, the previous prior art rejection has been modified to address the claim amendments.
The examiner notes that the status identifier for clam 9 is incorrect and should read as “withdrawn”.
Claim Status
Claims 1, 8-9 are pending with claims 1 and 8 being examined and claim 9 deemed withdrawn.
Claim Rejections - 35 USC § 103
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.
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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claim 1 is rejected under 35 U.S.C. 103 as being unpatentable over Vornado (Vornado miniature vortex mixer; https://web.archive.org/web/20201125131227/https://www.benchmarkscientific.com/wp-content/uploads/2017/08/BV101-Vornado-Brochure-HR-EM.pdf ; 1 page; published online 11/25/20, hereinafter “Vornado”; already of record) in view of Davenport et al (US 20190169668; hereinafter “Davenport”; already of record) and in view of Letourneau et al (US 20200197928; hereinafter “Letourneau”; already of record) in view of Kiani et al (US 20230008992; hereinafter “Kiani”; already of record) in view of Jarvius et al (US 20180127703; hereinafter “Jarvius”; already of record).
As to claim 1, Vornado teaches a mixing device for an adenosine triphosphate (ATP) optical measuring instrument (Vornado teaches a mixing device; see page 1), comprising: a main body (Vornado; page 1); a swab kit insertion part which is formed in the main body and provides an insertion space for an ATP reaction swab kit, and wherein the swab kit insertion part has a shape and a size corresponding to the ATP reaction swab kit (Vornado teaches an insertion part with an insertion part on the top for a swab tube; page 1. The examiner notes that the ATP reaction swab kit is not positively recited in the claim body and does not further limit the mixing device, and the limitations directed towards the ATP reaction swab kit are related to intended use. Vornado teaches an insertion part that has a size and shape, and it would be capable of corresponding to an ATP reaction swab kit if the swab kit was sized for the insertion part); a mixing module which is disposed around a lower perimeter of the swab kit insertion part and mixes a reactant in the inserted swab kit (Vornado teaches a vibration vortexer below the insertion part; page 1); a coupling part disposed on one side surface of the main body (Vornado teaches a groove on the side of the device that is capable of coupling to a an ATP optical measuring instrument; page 1); the mixing device with power (Vornado; page 1); wherein the mixing module is selected from a group consisting of a vibration module, a sonicator, and a vortexing module (Vornado teaches a vortexer which would be a vibration module or vortexer; page 1).
Note: The instant Claims contain a large amount of functional language (ex: “for…”, “configured to…”). However, functional language does not add any further structure to an apparatus beyond a capability. Apparatus claims must distinguish over the prior art in terms of structure rather than function (see MPEP 2114 and 2173.05(g)). Therefore, if the prior art structure is capable of performing the function, then the prior art meets the limitation in the claims.
Vornado does not specifically teach the vortexing device used with an ATP optical measuring instrument. However, Davenport teaches a vortexing device is commonly used to help stir samples for preparation for measurement via ATP optical measuring devices (Davenport; [33, 42]). It would have been obvious to one of ordinary skill in the art to have used the vortexing device for vortexing a sample of Vornado to vortex the sample for ATP optical measuring as in Davenport because Davenport teaches that vortexing is a known way to mix samples for analysis (Davenport; [33]). The modification results in the vortexing device which mixes samples of Vornado to then mix ATP samples as in Davenport, where the resulting vortexing device would be sized and shaped corresponding to the ATP reaction swab kit. Additionally, a swab reaction kit as in Davenport is formed by an extended tube with a rounded bottom, and the size and shape of the vortexing device of Vornado is such that it corresponds and would accept and vortex the swab reaction kit of Davenport. Additionally, Davenport teaches that the components such as the measuring component are complementary shaped and sized to the ATP container (Davenport; [42]), providing reasoning to correspondingly shape and size any device which receives the ATP container to be similarly shaped and sized, and it would have been obvious to one of ordinary skill in the art to have modified the vortexing insertion part of Vornado to have been compelementary shaped and dimensioned as suggested by Davenport because Davenport teaches that it is known to correspondingly shape and dimension a device to accommodate the ATP swab (Davenport; [42]), and since it has been held that changes in shape are not patentably distinct from prior art (MPEP 2144.04 IV).
Although modified Vornado teaches the use of a vortex mixer with a main body in combination with an ATP optical measuring instrument, modified Vornado does not specifically teach detachable coupling the main body and the ATP measuring device through a coupling part, where the coupling part includes a coupling groove to be fitted onto the ATP optical measuring instrument, and where the coupling groove has a shape and a size corresponding to a part of the ATP measuring instrument. However, Letourneau the analogous art of a detector housing that is detachably attached to another usable component of the detector via a coupling where the coupling includes a coupling groove to be fitted onto the ATP optical measuring instrument (Letourneau teaches a housing 704 that includes a detector, with a C-shaped or U-shaped coupling 736, which form a groove, to allow the attachment of the housing to a component 724 that is used in conjunction with the detector, and where the component/implement could be a stirrer; Figs. 3, 7, [9, 43, 47-50, 77, 82]). It would have been obvious to one of ordinary skill in the art to have modified the vortex mixer with a main body used in combination with an ATP optical measuring instrument as in modified Vornado to have included a coupling means as in Letourneau because Letourneau teaches that the coupling enables the removeable attachment of the two components (Letourneau; [50]) and that a c-shaped or u-shaped coupling groove is known to help removably attach two components that are used together (Letourneau; [77]). The resulting combination of the modification would result in the coupling groove having a size and shape corresponding to the ATP measuring instrument because the purpose of the groove is to attach to a component, where the component on the ATP measuring instrument at which the coupling attached to would be the part of the measuring instrument that corresponds to the groove.
Modified Vornado teaches a speed of the mixing module is 2,800 rpm (Vornado; page 1), but does not specifically teach a speed of 3,000 to 5,000 rpm. However, Kiani teaches the analogous art of a vortexer for agitating the sample at a speed of 3,000 to 5,000 rpm (Kiani; [41, 42, 52]). It would have been obvious to one of ordinary skill in the art to have modified the speed of the vortexer in modified Vornado to be 3,000-5,000 rpm as in Kiani because Kiani teaches that 3,000-5,000 rpm helps to achieve adequate shearing of the samples (Kiani; [41, 42]).
Modified Vornado teaches the mixing device with power (Vornado; page 1), but does not specifically teach a battery mounted on the main body. However, Jarvius teaches the analogous art of a device with a mixing device, with a battery (Jarvius teaches a vortex device for agitating, and a battery as the power source; [17, 18, 43, 96]). It would have been obvious to one of ordinary skill in the art to have made the power source of the mixer of modified Vornado to be a battery as in Jarvius because Jarvius teaches that the battery helps provide power as a portable device (Jarvius; [43]).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Davenport et al (US 20190169668; hereinafter “Davenport”; already of record) in view of Vornado (Vornado miniature vortex mixer; https://web.archive.org/web/20201125131227/https://www.benchmarkscientific.com/wp-content/uploads/2017/08/BV101-Vornado-Brochure-HR-EM.pdf ; 1 page; published online 11/25/20, hereinafter “Vornado”; already of record) in view of Letourneau et al (US 20200197928; hereinafter “Letourneau”; already of record) in view of Kiani et al (US 20230008992; hereinafter “Kiani”; already of record) in view of Jarvius et al (US 20180127703; hereinafter “Jarvius”; already of record).
As to claim 8, Davenport teaches an adenosine triphosphate (ATP) optical measuring system comprising (Davenport; [33, 42]): an ATP optical measuring system (Davenport; [33, 42]) comprising: an ATP optical measuring instrument (Davenport; [33, 42]); a swab (Davenport; #30; [31], Fig. 2); an ATP reaction swab kit (Davenport; Fig. 4, [41-42]).
Although Davenport teaches mixing via a vortexing device to prepare samples for measurement (Davenport; [33, 42]), Davenport does not specifically teach the mixing device of claim 1. However, Vornado teaches a mixing device for an adenosine triphosphate (ATP) optical measuring instrument (Vornado teaches a mixing device; see page 1), comprising: a main body (Vornado; page 1); a swab kit insertion part which is formed in the main body and provides an insertion space for an ATP reaction swab kit (Vornado teaches an insertion part with an insertion part on the top for a swab tube; page 1.); a mixing module which is disposed around a lower perimeter of the swab kit insertion part and mixes a reactant in the inserted swab kit (Vornado teaches a vibration vortexer below the insertion part; page 1); a coupling part disposed on one side surface of the main body (Vornado teaches a groove on the side of the device that is capable of coupling to a an ATP optical measuring instrument; page 1); the mixing device with power (Vornado; page 1); wherein the mixing module is selected from a group consisting of a vibration module, a sonicator, and a vortexing module (Vornado teaches a vortexer which would be a vibration module or vortexer; page 1). It would have been obvious to one of ordinary skill in the art to have modified the vortexing device that vortexes an ATP reaction swab kit of Davenport to be the vortexing device that includes an insertion part having an insertion space as in Vornado because Vornado shows that vortexers commonly include cavities with insertion spaces for the samples that need to be mixed (Vornado; page 1). The modification results in the vortexing device which mixes samples of Vornado to then mix ATP samples as in Davenport, where the resulting vortexing device would be sized and shaped corresponding to the ATP reaction swab kit. Additionally, a swab reaction kit as in Davenport is formed by an extended tube with a rounded bottom, and the size and shape of the vortexing device of Vornado is such that it corresponds and would accept and vortex the swab reaction kit of Davenport. Additionally, Davenport teaches that the components such as the measuring component are complementary shaped and sized to the ATP container (Davenport; [42]), providing reasoning to correspondingly shape and size any device which receives the ATP container to be similarly shaped and sized, and it would have been obvious to one of ordinary skill in the art to have modified the vortexing insertion part of Vornado to have been compelementary shaped and dimensioned as suggested by Davenport because Davenport teaches that it is known to correspondingly shape and dimension a device to accommodate the ATP swab (Davenport; [42]), and since it has been held that changes in shape are not patentably distinct from prior art (MPEP 2144.04 IV).
Although modified Davenport teaches the use of a vortex mixer with a main body in combination with an ATP optical measuring instrument, modified Davenport does not specifically teach detachable coupling the main body and the ATP measuring device through a coupling part, where the coupling part includes a coupling groove to be fitted onto the ATP optical measuring instrument, and where the coupling groove has a shape and a size corresponding to a part of the ATP measuring instrument. However, Letourneau the analogous art of a detector housing that is detachably attached to another usable component of the detector via a coupling where the coupling includes a coupling groove to be fitted onto the ATP optical measuring instrument (Letourneau teaches a housing 704 that includes a detector, with a C-shaped or U-shaped coupling 736, which form a groove, to allow the attachment of the housing to a component 724 that is used in conjunction with the detector, and where the component/implement could be a stirrer; Figs. 3, 7, [9, 43, 47-50, 77, 82]). It would have been obvious to one of ordinary skill in the art to have modified the vortex mixer with a main body used in combination with an ATP optical measuring instrument as in modified Davenport to have included a coupling means as in Letourneau because Letourneau teaches that the coupling enables the removeable attachment of the two components (Letourneau; [50]) and that a c-shaped or u-shaped coupling groove is known to help removably attach two components that are used together (Letourneau; [77]). The resulting combination of the modification would result in the coupling groove having a size and shape corresponding to the ATP measuring instrument because the purpose of the groove is to attach to a component, where the component on the ATP measuring instrument at which the coupling attached to would be the part of the measuring instrument that corresponds to the groove.
Modified Davenport teaches a speed of the mixing module is 2,800 rpm (The modification of the vortexer of Davenport to use a vortex as taught in Vornado has already been discussed above. Vornado teaches mixing speeds; page 1), but does not specifically teach a speed of 3,000 to 5,000 rpm. However, Kiani teaches the analogous art of a vortexer for agitating the sample at a speed of 3,000 to 5,000 rpm (Kiani; [41, 42, 52]). It would have been obvious to one of ordinary skill in the art to have modified the speed of the vortexer in modified Davenport to be 3,000-5,000 rpm as in Kiani because Kiani teaches that 3,000-5,000 rpm helps to achieve adequate shearing of the samples (Kiani; [41, 42]).
Modified Davenport teaches the mixing device with power (The modification of the vortexer of Davenport to use a vortex as taught in Vornado has already been discussed above. Vornado teaches power to the device; page 1), but does not specifically teach a battery mounted on the main body. However, Jarvius teaches the analogous art of a device with a mixing device, with a battery (Jarvius teaches a vortex device for agitating, and a battery as the power source; [17, 18, 43, 96]). It would have been obvious to one of ordinary skill in the art to have made the power source of the mixer of modified Davenport to be a battery as in Jarvius because Jarvius teaches that the battery helps provide power as a portable device (Jarvius; [43]).
Response to Arguments
Applicant’s arguments filed on 2/10/26 have been considered, but are moot because the arguments are towards the amended claims and not the current grounds of rejection. However, because the examiner is using the same prior art as previously applied, then Applicant's arguments have been fully considered but they are not persuasive.
Applicants argue on page 5 of their remarks that Vornado is a general-purpose mixer for laboratory tubes, but not for ATP reaction swab kits. The examiner respectfully disagrees. The vortexing device taught in Vornado mixes laboratory samples, and is capable of mixing and coupling with any laboratory sample including an ATP reaction swab kit. The specifics of the insertion part have not been constrained. Additionally, the rejection states that it would have been obvious to one of ordinary skill in the art to have used the vortexing device for vortexing a sample of Vornado to vortex the sample for ATP optical measuring as in Davenport because Davenport teaches that vortexing is a known way to mix samples for analysis (Davenport; [33]). This modification results in the vortexing device which mixes samples of Vornado to then mix ATP samples as in Davenport, where the resulting vortexing device would be sized and shaped corresponding to the ATP reaction swab kit. Additionally, a swab reaction kit as in Davenport is formed by an extended tube with a rounded bottom, and the size and shape of the vortexing device of Vornado is such that it corresponds and would accept and vortex the swab reaction kit of Davenport. Additionally, Davenport teaches that the components such as the measuring component are complementary shaped and sized to the ATP container (Davenport; [42]), providing reasoning to correspondingly shape and size any device which receives the ATP container to be similarly shaped and sized, and it would have been obvious to one of ordinary skill in the art to have modified the vortexing insertion part of Vornado to have been compelementary shaped and dimensioned as suggested by Davenport because Davenport teaches that it is known to correspondingly shape and dimension a device to accommodate the ATP swab (Davenport; [42]), and since it has been held that changes in shape are not patentably distinct from prior art (MPEP 2144.04 IV). Further, the examiner would like to point out that how the insertion part is shaped and sized is a matter of function because in claim 1 the ATP reaction swab kit is not positively recited in the claim body and does not further limit the mixing device, and the limitations directed towards the ATP reaction swab kit are related to intended use. Applicants further argue that specific diameters and heights are required by the insertion part and then cite to the specification. However, it is noted that the features upon which applicant relies (i.e., size and shape of the insertion part) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Applicants argue on page 6 that Vornado does not teach a mixing module disposed around a lower perimeter of the swab insertion part. However, the examiner respectfully disagrees. As stated in the prior art rejection, Vornado teaches a vibration vortexer below the insertion part such that it is formed in the lower perimeter of the insertion part (Vornado; page 1). In other words, the mixing module of Vornado is the region of space that encompassed the body surrounding the insertion part such that the mixing module includes the region of space around the perimeter and surrounding the insertion part cavity.
Applicants argue on page 7 of their remarks that Davenport teaches a different use of vortexing and teaches eluting, and therefore teaches away from the claimed invention. The examiner respectfully disagrees. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). First, it would have been obvious to one of ordinary skill in the art to have used the vortexing device for vortexing a sample of Vornado to vortex the sample for ATP optical measuring as in Davenport because Davenport teaches that vortexing is a known way to mix samples for analysis (Davenport; [33]). Alternatively, it would have been obvious to one of ordinary skill in the art to have modified the vortexing device that vortexes an ATP reaction swab kit of Davenport to be the vortexing device that includes an insertion part having an insertion space as in Vornado because Vornado shows that vortexers commonly include cavities with insertion spaces for the samples that need to be mixed (Vornado; page 1). Vornado mixes samples with a vortexer (Vornado; page 1), and Davenport also teaches the analogous art of eluting samples using a vortexer (Davenport; [33]). The examiner maintains that eluting a sample from the swab via mixing is still mixing as recited in the claims. If there is something unique about particular reactants or reagents in the swab kit, then those components have not yet been required or recited in the claims.
Applicants argue on pages 7-8 of their remarks that Letourneau does not teach a coupling groove having a shape and size corresponding to part of the ATP measuring instrument. The examiner disagrees. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Although modified Vornado teaches the use of a vortex mixer with a main body in combination with an ATP optical measuring instrument, modified Vornado does not specifically teach detachable coupling the main body and the ATP measuring device through a coupling part, where the coupling part includes a coupling groove to be fitted onto the ATP optical measuring instrument, and where the coupling groove has a shape and a size corresponding to a part of the ATP measuring instrument. However, Letourneau the analogous art of a detector housing that is detachably attached to another usable component of the detector via a coupling where the coupling includes a coupling groove to be fitted onto the ATP optical measuring instrument (Letourneau teaches a housing 704 that includes a detector, with a C-shaped or U-shaped coupling 736, which form a groove, to allow the attachment of the housing to a component 724 that is used in conjunction with the detector, and where the component/implement could be a stirrer; Figs. 3, 7, [9, 43, 47-50, 77, 82]). It would have been obvious to one of ordinary skill in the art to have modified the vortex mixer with a main body used in combination with an ATP optical measuring instrument as in modified Vornado to have included a coupling means as in Letourneau because Letourneau teaches that the coupling enables the removeable attachment of the two components (Letourneau; [50]) and that a c-shaped or u-shaped coupling groove is known to help removably attach two components that are used together (Letourneau; [77]). The resulting combination of the modification would result in the coupling groove having a size and shape corresponding to the ATP measuring instrument because the purpose of the groove is to attach to a component, where the component on the ATP measuring instrument at which the coupling attached to would be the part of the measuring instrument that corresponds to the groove.
Other References Cited
The prior art of made of record and not relied upon is considered pertinent to applicant's disclosure include;
Burrell et al (US 20090168592; hereinafter “Burrell”; already of record) teaches a battery, and an agitator 160 that can be separate from other components and may also be used with a detector; [14, 71, 92, 112], Fig. 17.
Wolter et al (US 20180073986; hereinafter “Wolter” ; already of record) teaches a battery with a detector and vibrator to agitate; [47, 76].
Rosenbluth et al (US 5312430; hereinafter “Rosenbluth” ; already of record) teaches a c- or u-shaped clip that helps to removably attach a component; col. 5 lines 1-19.
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 Benjamin R Whatley whose telephone number is (571)272-9892. The examiner can normally be reached on Mon- Fri 8am-5pm.
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/Benjamin R Whatley/Primary Examiner, Art Unit 1798