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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on June 22, 2026 has been entered. Any previous objection/ rejection not repeated herein has been withdrawn.
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.
Claims 1-20 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 1 has been amended to recite “an opening at the distal end... that emits liquid droplets into a droplet deflector”. It is unclear whether applicant is attempting to positively claim the droplet deflector as part of the particle sorter of claim 1. As currently written, the “droplet deflector” appears to be an intended use of the apparatus. Claims 19 and 20 have also been amended in a manner that attempts to limit the “droplet deflector” and or relationships of the droplet deflector. This is confusing and indefinite since it is unclear whether the droplet deflector further limits claim 1. In summary, because the “droplet deflector” is not positively recited it is unclear whether the limitations of the claims would be met and how to determine the relationship of the droplet deflector to other positively claimed elements. Please clarify which structures are required in claims 1, 19 and 20.
As applicant appreciates, any claim ambiguity should be resolved during prosecution, not in litigation, to avoid costly disputes. MPEP §2173 states that claim language must be precise and unambiguous so that the public can readily determine whether their invention infringes the patent, and that applicants must address any indefiniteness during prosecution to avoid later litigation issues.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-20 are rejected under 35 U.S.C. 103 as obvious over Durack et al., (US 2013/0224726; hereinafter “Durack”).
Regarding claim 1, Durack discloses a particle sorter 100 comprising:
a flow cell (see examiner modified Fig. 5 below) that transports particles in a flow stream (from the supply line 657, see para [0877] et seq.); and
a nozzle comprising:
an elongate body 101 comprising:
an opening at a proximal end through which the elongate body receives a liquid from the flow cell (see modified Fig. 5 below);
an opening at a distal of the elongate body that emits liquid droplets in a droplet deflector (see modified Fig. 5 below); and
a channel that transports the liquid through the elongate body from the proximal to the distal end (see modified Fig. 5 below); and
gas inlets 173, 183 that are radially positioned at the proximal end of the elongate body, wherein the gas inlets comprise a radial airflow path (reads on annular space 167 see para [0799] et seq.) and provides a gas to the channel. See modified Fig. 5 and para [0878] et seq., of Durack that discloses the supply 7 of sheath fluid 19 comprises a second vessel 661, e.g., a tank in FIG. 2, holding an appropriate volume of sheath fluid 19 connected to the radial bore 173 in the flow body 133 of the nozzle system 101 by a supply line 667 having a control valve 669 therein. In the embodiment of FIG. 1, the sheath fluid vessel 661 is pressurized by a gas pressure system 671 comprising a source 675 of pressurized gas (e.g., air or other gas, such as nitrogen) communicating with the tank 661 via an air line 679 having a regulator 681 in it for controlling the pressure supplied to the tank 661). Note: the term “fluid” is known and accepted in the art as a gas or liquid.
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Note: the “radial airflow path” has been interpreted by the examiner as a structure that creates an air path for the inlet gas along channel at any point in time. The limitation of the radial airflow path as currently claimed is considered very broad. Again, the examiner recommends positively reciting in claim 1 structural elements that create radial airflow paths in order to possibly overcome the prior art.
Note: the “droplet deflector” as currently recited in claim 1 is not considered a positive recitation. A claim is only limited by positively claimed elements. The inclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims, see MPEP 2115 (Material or Article Worked Upon by Apparatus). Thus, the “droplet deflector” in claim 1 has not received patentable weight (i.e., does distinguish over the prior art). Nevertheless, Durack teaches droplet deflector plates 629 for sorting droplets emitted from the elongate body (see para [0850] et seq.)
It is not clear from the disclosure of Durack whether the location of the gas inlets 173, 183 would be considered positioned at the proximal end of the elongate body since Durack does not indicate the figures are to scale. However, the terms “proximal” and “distal” are broad terms and the specific distances between the gas inlets relative to the upper or lower openings in the elongate body are not claimed nor are they disclosed in the specification. The examiner considers the location of the gas inlets 173, 183 of Durack positioned “proximal” end of the elongate body.
However, if the gas inlets 173, 183 of Durack are not considered to be positioned at the “proximal” end of the elongate body, then it would have been obvious to one of ordinary skill in the art at the time the claimed invention was effectively filed to determine through routine experimentation the desired location of the gas inlets on the elongate body based on the desired droplet formation created by the inlet gas and fluid stream based on considerations such as detection results, space constraints, ease of manufacture, etc.
The applicant is advised that the Supreme Court has clarified that a claim can be proved obvious merely by showing that the combination of known elements was obvious to try. In this regard, the Supreme Court explained that “[w]hen there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill in the art has a good reason to pursue the known options within his or her technical grasp.” An obviousness determination is not the result of a rigid formal disassociated from the consideration of the facts of the case. Indeed, the common sense of those skilled in the art demonstrates why some combinations would have been obvious where others would not. The combination of familiar elements is likely to be obvious when it does no more than yield predictable results. See MPEP 2143.
Regarding claims 2 and 3, Durack does not specifically disclose the radial airflow path comprises a height ranging from 150 to 250 microns or that the radial airflow path comprises a radius ranging from 200 to 300 microns. However, it would have been obvious to one of ordinary skill in the art to determine through routine experimentation the optimal height and radius of the radial airflow paths based on the desired interference the inlet gas has with the sample fluid stream.
Regarding claims 4 and 5, Durack discloses the gas inlet comprises a plurality of radial airflow paths, two inlets 173, 183.
Regarding claim 6 and 7, Durack discloses a source of compressed gas, wherein it is expected that source of compressed gas is an air compressor, as known in the art (see para [0878] et seq.)
Regarding claim 8, Durack does not specifically disclose the source of compressed gas is configured to produce a gas having a pressure ranging from 2 kPa to 10 kPa (see psi ranges of Durack at para [0878]). However, it would have been obvious to one of ordinary skill in the art to determine through routine experimentation the desired pressure of the gas delivered to the elongate body based on the desired interference the inlet gas has with the sample fluid stream.
Regarding claim 9, Durack discloses comprising a gas conduit 667 that operably connects the source of compressed gas to the gas inlet (see figure 5 above).
Regarding claim 10, Durack discloses the particle sorter comprises a plurality of gas conduits (at least two inlets 173, 183 would require at least to air supply tubes 667), see Fig. 5.
Regarding claim 11, Durack discloses a processor (131) implicitly connected to the source of compressed gas that adjusts the pressure of the produced gas provided to the gas inlet, see para [0877] et seq.
Regarding claims 12 and 13, Durack does not explicitly disclose the channel comprises a diameter ranging from 150 to 250 microns. However, it would have been obvious to one of ordinary skill in the art to determine through routine experimentation the desired diameter formed by the elongate body based on the desired interference the inlet gas has with the sample fluid stream, ease of manufacture, space considerations, etc., (this includes a constant diameter throughout the length of the elongate body).
Regarding claim 14, Durack discloses the elongate body is cylindrical in shape, see Figs. 2-5.
Regarding claim 15, Durack does not explicitly disclose the length of the elongate body ranges from 4 mm to 4.5 mm. However, it would have been obvious to one of ordinary skill in the art at the time the claimed invention was effectively filed to determine through routine experimentation the desired length of the elongate body based on the desired interference of gas has with the sample fluid stream, ease of manufacture, space considerations, etc.
Regarding claim 16, Durack discloses the particle sorter can include, but does not require, the use of a piezoelectric element to create droplets, see para [1223] et seq.
Regarding claim 17, Durack discloses a light source 393 configured to irradiate the flow stream at an interrogation point (see para [0828] et seq.)
Regarding claim 18, Durack discloses a detector 395 that collects particle-modulated light from the flow cell (see para [0828] et seq.)
Regarding claim 19, Durack discloses a plurality of receptacles 2207 that receive the droplets emitted by the opening at the distal end of the elongate structure and diverted by the droplet (see para [0854] et seq.)
Regarding claim 20, Durack discloses deflection plates 629 that deflect the droplets into a given receptacle in the plurality of receptacles (see para [0854] et seq.)
Citations to art
In the above citations to documents in the art, an effort has been made to specifically cite representative passages, however rejections are in reference to the entirety of each document relied upon. Other passages, not specifically cited, may apply as well.
Response to Arguments
Applicant’s arguments with respect to claims 1-20 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.
Citations to art
In the above citations to documents in the art, an effort has been made to specifically cite representative passages, however rejections are in reference to the entirety of each document relied upon. Other passages, not specifically cited, may apply as well.
Conclusion
No claims are allowed.
While the following prior art listed below is not specifically discussed in the instant office action, the examiner considers these prior art references relevant to the overall prosecution and may be relied upon in subsequent office action(s) based on applicant’s future response(s).
Howell et al., (US 2022/0326138) which disclose a closed-system sorting flow cytometer adapters for converting a sorting flow cytometer having a sort block into a closed-system sorting flow cytometer are provided. Adapters of interest include a sort block coupler for operably connecting to the sort block, an external chamber, and a connector for gaseously coupling the sort block to the external chamber, optionally via a sort bucket that is in cellular-receiving relationship with the sort block coupler.
Norton et al., (US 2019/0331585) which disclose flow cytometers having an enclosed particle sorting modules. Aspects of the flow cytometers include, in addition to the enclosed particle sorting modules, a sample input module fluidically coupled to an inlet of the enclosed particle sorting module, a waste reservoir fluidically coupled to first outlet of the enclosed particle sorting module and a first sorted particle collection system fluidically coupled to a second outlet of the enclosed particle sorting module. Flow cytometers as described herein are configured to control aerosol content in the enclosed particle sorting modules, including the sort chambers of such modules.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to P. Kathryn Wright whose telephone number is (571)272-2374. The examiner can normally be reached between 9:30am-7pm EST.
The examiner encourages interviews with applicant via telephone and video conferencing (using a USPTO supplied web-based collaboration tool). To schedule an interview, applicant is encouraged to call the examiner directly before using the USPTO Automated Interview Request (AIR), which is available at http://www.uspto.gov/interviewpractice.
E-mail communication Authorization
Per updated USPTO Internet usage policies, Applicant and/or applicant’s representative must first authorize the USPTO examiner to discuss any subject matter concerning the above application via Internet e-mail communications. See MPEP 502.03. To approve such communications, Applicant must provide written authorization for e-mail communication by submitting the following statement via EFS Web (using PTO/SB/439) or Central Fax (571-273-8300):
Recognizing that Internet communications are not secure, I hereby authorize the USPTO to communicate with the undersigned and practitioners in accordance with 37 CFR 1.33 and 37 CFR 1.34 concerning any subject matter of this application by video conferencing, instant messaging, or electronic mail. I understand that a copy of these communications will be made of record in the application file.
Written authorizations submitted to the Examiner via e-mail are NOT proper. Written authorizations must be submitted via EFS-Web (using PTO/SB/439) or Central Fax (571-273-8300). A paper copy of e-mail correspondence will be placed in the patent application when appropriate. E-mails from the USPTO are for the sole use of the intended recipient, and may contain information subject to the confidentiality requirement set forth in 35 USC § 122. See also MPEP 502.03.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles Capozzi can be reached on 571-270-3638. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/P. Kathryn Wright/Primary Examiner, Art Unit 1798
Prosecution Insights