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 .
Election/Restrictions
Applicant's election with traverse of Invention I, Claims 1-12, in the reply filed on 12/9/2025 is acknowledged. The traversal is on the ground(s) that a thorough search and examination of the claims in Invention I would be relevant to the examination of the claims of Invention II and Invention III, and would not be a serious burden on the Examiner. Further, Applicant has amended Claim 18 to more closely correspond to Claim 1. This is not found persuasive because at least Invention II differs from Invention I in that Invention I requires receiving identification information associated with at least one multimode consumable, determining, based at least in part, on the identification information, a plurality of assays to be performed, determining at least one resource requirement for each assay of the plurality of assays, and generating an initial resource schedule for each assay based, at least in part, on the at least one determined resource requirement, the initial resource schedule enabling each assay of the plurality of assays to be performed substantially simultaneously, none of which is required by Invention II; and Invention II requires receiving at least one resource item request associated with a first assay of a plurality of assays, the plurality of assays being performed in parallel by a single assay system; determining based, at least in part, on a resource schedule associated with the single assay system, an availability of the at least one resource item; and updating the resource schedule based, at least in part, on the determined availability of the at least one resource item, none of which is required by Invention I. Therefore, searching Inventions II and III in addition to Invention I would be a serious burden on the Examiner. Further, regarding Applicant’s amendment of Claim 18 to more closely correspond to Claim 1, Invention I can still be restricted from Invention III as Invention III requires a processor and computer, which is not required by Invention I. Inventions I and III are therefore distinct, and restriction is still proper.
The requirement is still deemed proper and is therefore made FINAL.
Claim Status
Claims 1-20 are pending, with claims 1-12 being examined, and claims 13-20 deemed withdrawn.
Information Disclosure Statement
The information disclosure statements (IDS) received on 7/5/2023 and 9/6/2023 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Claim Interpretation
The limitation “at least one resource identifier” in at least claim 2 has been interpreted as any tangible or intangible object that can be used to identify a resource, e.g. a marking, code, number, name, etc.
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.
Claims 1-12 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The subject matter eligibility test for the claims is shown below:
Subject Matter Eligibility Test, Step 1
Independent claim 1 is drawn to a method, which is a statutory category.
Subject Matter Eligibility Test, Step 2A Prong One
In Step 2A Prong One, it is determined if the claims recite an abstract idea, law of nature, or natural phenomenon. Independent claim 1 recites a method comprising determining based at least partly on identification information associated with at least one multimode consumable, a plurality of assays to be performed, determining at least one resource requirement for each assay, and generating an initial resource schedule for each assay based at least partly on the at least one resource requirement, the schedule enabling each assay to be performed substantially simultaneously. The limitations of determining a plurality of assays to be performed, determining at least one resource requirement for each assay, and generating a resource schedule for each assay based on the determined resource requirement(s) to enable each assay to be performed substantially simultaneously are each evaluation/determination-type mental processes, which are abstract ideas. These evaluations and determinations can be done mentally, and are therefore abstract ideas.
Subject Matter Eligibility Test, Step 2A Prong Two
In step 2A Prong Two, it is determined if the claims recite additional elements that integrate the judicial exception into a practical application. Independent claim 1 further recites: i) receiving identification information associated with at least one multimode consumable. The dependent claims also recite: ii) further details about what the initial resource schedule comprises (claims 2-5), iii) further details about what the multimode consumable is (claim 6), iv) receiving at least one resource item request associated with a first assay of the plurality of assays (claim 7), v) comparing the at least one resource item request with the initial resource schedule, and determining an availability of the at least one resource item based on the comparison (claim 8), vi) updating the initial resource schedule based on determining that the at least one resource item is available (claim 9), vii) comparing timing information in the at least one resource item request with timing information in the initial resource schedule based on determining that the at least one resource item is unavailable (claim 10), viii) further details on how the timing information is compared by either comparing a tolerance or a priority of the use period of the respective at least one resource item in the initial resource schedule with the use period of the respective at least one resource item in the at least one resource item request (claim 11), and ix) updating the initial resource schedule based on the comparison of the timing information in the at least one resource item request with timing information in the initial resource schedule based on determining that the at least one resource item is unavailable (claim 12). Other than limitations i) and iv), the additional limitations merely further describe the limitations already present in the independent claims, and do not recite additional features. The recited limitations do not actually apply the mental process-type abstract idea judicial exceptions into a practical application. Rather, the determination and evaluation steps are recited at a high level of generality. Further, limitation i) merely states how the identification information is obtained, in order to perform the subsequent determination and evaluation steps, and limitation iv) merely states how the at least one resource item request is obtained, in order to perform the subsequent comparison of the at least one resource item request with the initial resource item request. Accordingly, the additional elements recited do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. The claims are directed to an abstract idea.
Subject Matter Eligibility Test, Step 2B
In step 2B, it is determined if the claim recites additional elements that amount to significantly more than the judicial exception. In this case, the claims recite a multimode test card. This generically recited element is nothing more than a well-understood, routine, and conventional component that is well-known in the art, particularly as all claims have been rejected over the prior art. Further, the application of these mental processes into a laboratory environment for performing assays is nothing more than generally linking the mental process judicial exception to a particular technological environment or field of use. See MPEP 2106.05(d) and 2106.05(e).
Further, with regards to the generically recited multimode test card being nothing more than well-understood, routine, and conventional components that are well-known in the art, the following prior art is relied upon to show that the above elements are well-understood, routine, and conventional:
Kleinemolen et al. (US Pub. No. 2022/0088583; hereinafter Kleinemolen; already of record on the IDS received 9/6/2023) teaches a multimode test card ([0046], [0117], see Fig. 2 at assay device 150, which is in the shape of a card, and is capable of performing multiple assays simultaneously).
Claims 2-12 are rejected as depending on a claim rejected under 35 U.S.C. 101 without including additional elements sufficient to make the claims subject matter eligible.
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.
Claims 1-5 and 7-12 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bowers et al. (US Pub. No. 2020/0303066; hereinafter Bowers; already of record on the IDS received 7/5/2023).
Regarding claim 1, Bowers discloses a method (see Fig. 10). The method comprises:
receiving identification information associated with at least one multimode consumable ([0102]-[0103], see Fig. 10, particularly at step 1016, which states that samples can have multiple assays run thereon, i.e. the samples are multimode consumables. Further, under broadest reasonable interpretation, the rack of samples could also be considered a multimode consumable).
Determining, based at least in part, on the identification information, a plurality of assays to be performed ([0102]-[0103], see Fig. 10 at step 1016).
Determining at least one resource requirement for each assay of the plurality of assays (see Fig. 10 at step 1032).
Generating an initial resource schedule for each assay based, at least in part, on the at least one determined resource requirement, the initial resource schedule enabling each assay of the plurality of assays to be performed substantially simultaneously ([0109]-[0110], see Fig. 10 at steps 1036, 1044, see also Fig. 11).
Regarding claim 2, Bowers discloses the method of claim 1, wherein the initial resource schedule comprises:
at least one resource identifier associated with at least one resource item ([0112], [0131], see Figs. 11, 13, and Table 5 below [0116]).
Timing information associated with the at least one resource item ([0112], [0131], see Figs. 11, 13, and Table 5 below [0116]).
Regarding claim 3, Bowers discloses the method of claim 2, wherein the timing information comprises one or more of:
a use period of the at least one resource item ([0112], [0131], see Figs. 11, 13, and Table 5 below [0116]).
A tolerance associated with the use period (optionally not included).
A priority associated with the use period of the at least one resource item ([0105], [0108]).
Regarding claim 4, Bowers discloses the method of claim 3, wherein the use period comprises one or more of:
a start time; an end time; and a resource item use duration ([0112], [0131], see Figs. 11, 13, and Table 5 below [0116], particularly at Fig. 11, which shows a start time, an end time, and a resource item use duration).
Regarding claim 5, Bowers discloses the method of claim 2, wherein the at least one resource item is a hardware resource of an assay system ([0112]).
Regarding claim 7, Bowers discloses the method of claim 1, further comprising receiving at least one resource item request associated with a first assay of the plurality of assays, the at least one resource item request comprising:
at least one resource identifier associated with at least one resource item ([0114]-[0118], see also Table 5 below [0116], and Fig. 12).
Timing information associated with the at least one resource item ([0114]-[0118], see also Table 5 below [0116], and Fig. 12).
Regarding claim 8, Bowers discloses the method of claim 7, further comprising:
comparing the at least one resource item request with the initial resource schedule; and
determining, based at least in part on the comparing, an availability of the at least one resource item ([0114]-[0118], see also Table 5 below [0116], and Fig. 12. See also [0119], which states that the application determines an order or performance of assays or assay steps based on the samples received, assays ordered, availability of resources, and operation states of electronic instruments).
Regarding claim 9, Bowers discloses the method of claim 8, further comprising updating the initial resource schedule based, at least in part, on the determination that the at least one resource item is available ([0114]-[0118], see also Table 5 below [0116], and Fig. 12. See also [0119], which states that the application determines an order or performance of assays or assay steps based on the samples received, assays ordered, availability of resources, and operation states of electronic instruments).
Regarding claim 10, Bowers discloses the method of claim 8, further comprising comparing timing information in the at least one resource item request with timing information in the initial resource schedule based, at least in part, on a determination that the at least one resource item is not available ([0114]-[0118], see also Table 5 below [0116], and Fig. 12. See also [0119], which states that the application determines an order or performance of assays or assay steps based on the samples received, assays ordered, availability of resources, and operation states of electronic instruments).
Regarding claim 11, Bowers discloses the method of claim 10, wherein comparing timing information in the at least one resource item request with timing information in the initial resource schedule comprises one or more of:
comparing a tolerance associated with a use period of the at least one resource item in the initial resource schedule with a tolerance associated with a use period of the at least one resource item in the at least one resource item request (optionally not included).
Comparing a priority associated with the use period of the at least one resource item in the initial request resource schedule with a priority associated with the use period of the at least one resource item in the at least one resource item request ([0114]-[0118], see also Table 5 below [0116], and Fig. 12. See also [0119], which states that the application determines an order or performance of assays or assay steps based on the samples received, assays ordered, availability of resources, and operation states of electronic instruments. See also [0105], which states that the assay instruction for a sample may include a priority of the assays to be performed).
Regarding claim 12, Bowers discloses the method of claim 10, further comprising updating the initial resource schedule based, at least in part, on the comparing the timing information in the at least one resource item request with the timing information in the initial resource schedule ([0114]-[0118], see also Table 5 below [0116], and Fig. 12. See also [0119], which states that the application determines an order or performance of assays or assay steps based on the samples received, assays ordered, availability of resources, and operation states of electronic instruments).
Claim Rejections - 35 USC § 103
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 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.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Bowers, as applied to claims 1-5 and 7-12 above, in view of Kleinemolen.
Regarding claim 6, Bowers discloses the method of claim 1.
Bowers fails to explicitly disclose that the at least one multimode consumable is a multimode test card.
Kleinemolen is in the analogous field of assay devices and methods of using the devices (Kleinemolen [0004]-[0006]). Kleinemolen teaches a multimode test card (Kleinemolen; [0046], [0117], see Fig. 2 at assay device 150, which is in the shape of a card, and is capable of performing multiple assays simultaneously). It would have been obvious to one having ordinary skill in the art before the effective filing date of the invention to modify the method of Bowers with the teachings of Kleinemolen so that the at least one multimode consumable is a multimode test card, as Kleinemolen teaches that a multimode test card can perform multiple assays simultaneously (Kleinemolen; [0046], [0117], see Fig. 2), and would therefore benefit from the teachings of Bowers, which is directed towards determining an order of performance of assays in a system to maximize a performance metric and/or prioritize special orders (see Bowers at Fig. 10).
Other References Cited
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Jost et al. (US Pub. No. 2018/0080949; hereinafter Jost; already of record on the IDS received 7/5/2023) teaches a method ([0004]) comprising generating an initial resource schedule for a plurality of assays to be performed based, at least in part, on at least one determined resource requirement, the initial resource schedule enabling each assay of the plurality of assays to be performed substantially simultaneously ([0004], see Figs. 1-2, 6A-6C).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to John McGuirk whose telephone number is (571)272-1949. The examiner can normally be reached M-F 8am-530pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles Capozzi can be reached at (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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/JOHN MCGUIRK/
Examiner, Art Unit 1798