DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-13 and 16-17 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claims 1 and 16-17, the claims recite “to achieve greater accuracy of measurements performed by the gas analysis device”. It is unclear as to what accuracy of measurements performed is being compared to. Are these limitations comparing the accuracy to the accuracy of measurements performed by a gas analysis device without a pneumatic module, to the accuracy of measurements performed by a gas analysis device having a pneumatic module that doesn’t have a flow module connected at a first end thereof to a support sleeve, or something else entirely?
Regarding claims 2-13, they are dependent on claim 1.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim 17 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because the claim is directed towards a computer program per se without any structural recitations.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim 16 is rejected under 35 U.S.C. 102(a)(1) and 35 U.S.C. 102(a)(2) as being anticipated by Lucero et al. (US 5,010,776) (hereinafter Lucero).
As best understood regarding claim 16, Lucero teaches a gas analysis device [analyzer device 22] (see Abstract, Fig. 12) comprising:
a conduction block having a plurality of channels [interface module 18, 118 having pneumatic connections] (see Figs. 10-11);
wherein at least two channels are connected together via an exchangeable pneumatic module having a first portion which is accommodated in the conduction block [membrane module 16, 116 with lines 24, 26, 76 which are accommodated in the interface module 18, 118] (see Abstract, Figs. 11-12),
wherein the pneumatic module comprises a support sleeve [support tube 42, membrane tube 44, protector tube 46] (see Fig. 12); and a flow module which is contained in the support sleeve [supply tube 24 and calibration gas line 76 contained within tubes 42, 44, 46] (see Fig. 12); and
wherein the flow module is connected at a first end thereof to the support sleeve to achieve greater accuracy of measurements performed by the gas analysis device [end of calibration gas line 76 (first end) connected to outer tubes 42, 44, 46 through bottom cap 50; capable of improving accuracy of analyzing device 22 through flow control] (Col 7, lines 1-16, see Fig. 12).
Allowable Subject Matter
Claims 1-13 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 1, the primary reason for the indication of allowable subject matter is the inclusion of the limitations regarding the support sleeve comprising a first section, a thread being formed in an exterior surface of the support sleeve, and the thread being configured to allow assembly of the pneumatic module into a conduction block in the gas analysis device, in combination with the rest of the limitations found in the claim.
Regarding claims 2-12, they are dependent on claim 1.
Response to Arguments
Regarding the rejection of claims 1-13 and 16-17 under 35 U.S.C. 112(b), Applicant argues that the amendment clarifying to achieve greater accuracy of measurements performed by the gas analysis device overcomes the rejections. The Examiner respectfully disagrees. The same issue still exists where claims 1 and 16-17 include the limitation “to achieve greater accuracy of measurements performed by the gas analysis device”. It is unclear as to the metes and bounds of this limitation, as it is unclear as to what the baseline comparison for achieving “greater accuracy” is. Which part of the claimed limitations is achieving this increase in accuracy and what is it being compared with? As such, the rejections under 35 U.S.C. 112(b) are maintained.
Regarding the rejection of claim 17 under 35 U.S.C. 101, Applicant argues that the amendment to include “stored in memory” overcomes the rejection. The Examiner respectfully disagrees. Applicant states that it is well settled that memory constitutes a physical component; however, the specification fails to specify what type of memory is being referred to. The specification is absent of any description which describes the computer program as being stored in memory that is non-transitory media (hard drives, optical disks, flash memory, etc.). As such, the broadest reasonable interpretation of memory encompasses transient media which means claim 17 is still considered as software per se and the rejection under 35 U.S.C. 101 is maintained.
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 DAVID Z HUANG whose telephone number is (571)270-5360. The examiner can normally be reached Monday - Friday, 9:00 AM - 5:00 PM EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kristina Deherrera can be reached at 303-297-4237. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/DAVID Z HUANG/Primary Examiner, Art Unit 2855