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 .
This action is in response to applicant’s “Remarks”, filed January 27, 2026. Any previous objection/ rejection not repeated herein has been withdrawn.
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 remain rejected under 35 U.S.C. 103 as obvious over Schembri et al., (US 2009/0107893; hereinafter “Schembri”).
Regarding claim 1, Schembri discloses a particle sorter 100 comprising:
a flow cell 602 configured to transport particles in a flow stream; and
a nozzle comprising:
an elongate body 601 comprising:
an opening at a proximal end engaged in a liquid-receiving relationship with the flow cell (see for example Fig. 6);
an opening at a distal end for emitting liquid droplets (see for example Fig. 6); and
a channel (interior of the chamber 601) configured to transport liquid through the elongate body from the proximal to the distal end; and
a gas inlet 63 radially positioned at the proximal end of the elongate body,
wherein the gas inlet comprises a radial airflow path (reads on plenum 31, see Fig. 3 and para [0053) configured to provide a gas to the channel (see for example Fig. 6 and para [0049] et seq.)
Note: that the “radial airflow path” has been interpreted by the examiner as a structure that creates an air path for the inlet gas along the plenum 31 at any point in time. Schembri discloses that during operation, a pressure difference is maintained between the interior of the sort chamber in contact with inside face of the deflection plate and the exterior of the sort chamber in contact with the outside face of the deflection plate, such that air flows through the porous deflection plate into the sort chamber. Although a portion of the deflection plate is porous to gas it is expected that the inlet gas will flow along the inside of the plenum (i.e., radial flow path). The limitation of the radial airflow path as currently claimed is considered very broad. The examiner recommends positively reciting the structural details of the radial airflow path to possibly overcome the prior art.
It is not clear from the Figures in Schembri that the location of the gas inlet 63 is positioned at the proximal end of the elongate body since the Schembri disclosure does not indicate the figures are to scale. The term “proximal” is a broad term and the specific distances between the gas inlet 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 inlet of Schembri positioned “proximal” to gas inlet.
However, if the gas inlet 63 of Schembri is not considered to be positioned at the “proximal” end of the end of the 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 inlet on the elongate body based on the desired interference the inlet gas has with the sample fluid stream, ease of manufacture, space considerations, 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, Schembri 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 through routine experimentation to determine the optimal height and radius of the radial airflow based on the desired interference the inlet gas has with the sample fluid stream.
Regarding claim 4 and 5, Schembri discloses the gas inlet comprises a plurality of radial airflow paths, two inlets 63 are shown in Fig. 6.
Regarding claim 6 and 7, Schembri 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 [0053] et seq.)
Regarding claim 8, Schembri 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. 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 inlet on the elongate body based on the desired interference the inlet gas has with the sample fluid stream.
Regarding claim 9, Schembri discloses comprising a gas conduit (air supply tube) configured to operably connect the source of compressed gas to the gas inlet (see para [0053]).
Regarding claim 10, Schembri discloses the particle sorter comprises a plurality of gas conduits (at least two inlets would require at least to air supply tubes), see Fig. 6.
Regarding claim 11, Schembri discloses a processor (reads on controller 118) implicitly connected to the source of compressed gas and configured to adjust the pressure of the produced gas provided to the gas inlet, see Fig. 2.
Regarding claims 12 and 13, Schembri 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, Schembri discloses the elongate body is cylindrical in shape, see Figs. 6-8.
Regarding claim 15, Schembri 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 the inlet gas has with the sample fluid stream, ease of manufacture, space considerations, etc.
Regarding claim 16, Schembri discloses an oscillation device can be attached to the flow cell (not the nozzle itself), therefore, the nozzle is not operably attached to a piezoelectric actuator. Furthermore, Schembri prefers but does not require the use of a piezoelectric element, see para [0038] et seq.
Regarding claim 17, Schembri discloses a light source 121 configured to irradiate the flow stream at an interrogation point (see para [0037] et seq.)
Regarding claim 18, Schembri discloses a detector 122 configured to collect particle-modulated light from the flow cell (see para [0037] et seq.)
Regarding claim 19, Schembri discloses a plurality of receptacles 142, 144, 146 configured to receive the droplets emitted by the opening at the distal end of the elongate structure (see para [0046] et seq.)
Regarding claim 20, Schembri discloses deflection plates 138, 140 configured to deflect the droplets into a given receptacle in the plurality of receptacles (see para [0046] 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 filed January 27, 2026 have been fully considered but they are not persuasive. In response to the rejection of claims 1-20 under 35 U.S.C. 103 as obvious over Schembri, applicant argues that no where in Fig. 6 or its associated text does Schembri disclose the word “nozzle”. Applicant asserts that element 602 in Schembri is flow cell “which is distinct from nozzle”. The examiner respectfully disagrees. Applicant’s nozzle is defined in the claim 1 as an elongate body comprising an opening at a proximal end, an opening at the distal end, a channel configured to transport liquid from the proximal end to the distal end and gas inlet radially position at the proximal end of the elongated body. As pointed out above Schembri teaches all of the structural components that claim 1 has defined, thus is a nozzle. That is, Schembri teaches a nozzle comprising: an elongate body 601 comprising: an opening at a proximal end engaged in a liquid-receiving relationship with the flow cell (see for example Fig. 6); an opening at a distal end for emitting liquid droplets (see for example Fig. 6); and a channel (interior of the chamber 601) configured to transport liquid through the elongate body from the proximal to the distal end; and a gas inlet 63 radially positioned at the proximal end of the elongate body. This is also shown in Fig. 5 of Schembri. The fact that Schembri does not use the word “nozzle” is not germane to the argument since the Schembri shows the same structures as the claimed nozzle. Thus, it is a nozzle. Not all nozzles in the prior art include a gas inlet as defined in the claim. So the claimed nozzle including a gas inlet might not necessarily be consider a nozzle to a person of ordinary skill in the art. Thus, it so much the claim is considered a nozzle, then the embodiments shown in Figs 5 and 6 are also a “nozzle”. According to applicant’s logic, an identical particle sorter would not infringe applicant’s patented device should the corresponding portion be referred to as a “spout”, “head”, “atomizer”, etc.
Applicant also argues that the air inlet of Schembri is not located at the “proximal end” of the body. The terms “proximal” and “distal” are broad terms. Looking to applicant’s specification, there is no specific distances between the gas inlet relative to the upper or lower openings in the elongate body. The examiner considers the location of the gas inlet of Schembri positioned “proximal” to gas inlet since this an broad term. However, as discussed above, if the gas inlet 63 of Schembri is not considered to be positioned at the “proximal” end of the end of the 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 inlet on the elongate body based on the desired interference the inlet gas has with the sample fluid stream, ease of manufacture, space considerations, etc.
Applicant also argues the gas inlet of Schembri “does not play any role in droplet formation”. The examiner respectfully points out that the gas inlet in the claims merely provide a radial airflow path. There is nothing applicant’s claims to indicate that the air plays any role in droplet formation. Even if the claims did recite the air provided influences droplet formation, this would be considered functional/process/ intended use recitation, which does not add any further structure to the particle sorter beyond a capability. Apparatus claims must distinguish over the prior art in terms of structure rather than function. Therefore, if the prior art structure is capable of performing the function or intended use, then the prior art meets the limitation in the claims. The manner of operating an apparatus does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim (see MPEP § 2114 & § 2173.05(g)).
Thus, for the reasons delineated above, the claims remain rejected over the prior art.
Conclusion
No claims are allowed.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure include:
a. 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.
b. 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.
THIS ACTION IS MADE FINAL. 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 P. Kathryn Wright whose telephone number is (571)272-2374. The examiner can normally be reached on 9:30am-7:30 pm EST.
Examiner interviews are available via telephone 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.
E-mail communication Authorization
Per updated USPTO Internet usage policies, Applicant and/or applicant’s representative is encouraged to 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.
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.
/P. Kathryn Wright/Primary Examiner, Art Unit 1798
Prosecution Insights