DETAILED CORRESPONDENCE
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 .
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 5/19/23, 10/8/24 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Claim Status
Claims 26-45 are pending.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) is/are: “evaluation device for evaluating” in claims 34 and 35.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
The specification describes the evaluation device as #19 in [66, 68] of the instant specification. Figures 1, 2 also show #19 as a black box as part of the detection devices. However, because the term “evaluation device” is not further described, and because it is not a known term that clearly connotes structure, then it is unclear what applicants are intending to define by the “evaluation device for evaluating”. The “evaluation device” is not clearly linked or correlated to a specific structure such that one of ordinary skill in the art would be able to look to the specification and identify the specific structure being recited in the claims. Is the evaluation device just inherently part of a detection device/detector, or is the evaluation device a computer/controller that performs the claimed functions?
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 35, 38 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Claim 35 is rejected based on the following analysis:
Step 2A, Prong One: Identify the law of nature/natural phenomenon/abstract ideas.
Claim 35 recites the abstract idea of determines” which is a mental process.
Determining and comparing are abstract ideas in the form of mental processes and MPEP 2106.04(a)(2)III is clear that using a computer/controller to perform the abstract idea does not preclude the steps from being considered an abstract idea.
Step 2A Prong Two: Has the abstract idea been integrated into a particular practical application?
No. Once the determination takes place then there is no application, much less a particular practical application.
The claim also recites a device with a dispenser and a first light source, a first detector being a point detector, a second light source, and a second detector. However, this is just using the device to gather data to be used in the abstract idea, and data gathering to be used in the abstract idea does not integrate the judicial exception into a practical application because data gathering is insignificant extra-solution activity, and not a particular practical application. See MPEP 2106.05(g).
The abstract idea is performed by a computer/controller/processor, but performing the abstract idea on a general-purpose computer is not enough to integrate the exception into a practical application (MPEP 2106.05(b)I.).
Step 2B: Does the claim recite any elements which are significantly more than the abstract idea?
The claim recites the additional elements of a device with a dispenser and a first light source, a first detector being a point detector, a second light source, and a second detector. These additional elements do not amount to significantly more as they are well-understood, routine, and conventional (WURC) in the art as evidenced by Tovar et al (US 20160129443; hereinafter “Tovar”). Tovar discloses a device with a dispenser and a first light source, a first detector being a point detector, a second light source, and a second detector (Tovar teaches a first light 32 and a first detector 34 which is a photodiode/point detector; [96], Fig. 2. Tovar teaches that there is a second light and a second detector as a camera; [76], claims 3-4).
Claim 38 is rejected based on the following analysis:
Step 2A, Prong One: Identify the law of nature/natural phenomenon/abstract ideas.
Claim 38 recites the abstract idea of “determines” which is a mental process.
Determining and comparing are abstract ideas in the form of mental processes and MPEP 2106.04(a)(2)III is clear that using a computer/controller to perform the abstract idea does not preclude the steps from being considered an abstract idea.
Step 2A Prong Two: Has the abstract idea been integrated into a particular practical application?
No. Once the determination takes place then there is no application, much less a particular practical application.
The claim also recites a device with a dispenser and a first light source, a first detector being a point detector, a second light source, and a second detector. However, this is just using the device to gather data to be used in the abstract idea, and data gathering to be used in the abstract idea does not integrate the judicial exception into a practical application because data gathering is insignificant extra-solution activity, and not a particular practical application. See MPEP 2106.05(g).
The abstract idea is performed by a computer/controller/processor, but performing the abstract idea on a general-purpose computer is not enough to integrate the exception into a practical application (MPEP 2106.05(b)I.).
Step 2B: Does the claim recite any elements which are significantly more than the abstract idea?
The claim recites the additional elements of a device with a dispenser and a first light source, a first detector being a point detector, a second light source, and a second detector. These additional elements do not amount to significantly more as they are well-understood, routine, and conventional (WURC) in the art as evidenced by Tovar et al (US 20160129443; hereinafter “Tovar”). Tovar discloses a device with a dispenser and a first light source, a first detector being a point detector, a second light source, and a second detector (Tovar teaches a first light 32 and a first detector 34 which is a photodiode/point detector; [96], Fig. 2. Tovar teaches that there is a second light and a second detector as a camera; [76], claims 3-4).
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 27, 28, 34, 35, 38 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 pre-AIA the applicant regards as the invention.
As to claim 27, limitation (b) recites that the second region completely comprises the first region where it is unclear how this is different from the limitation in line 8 of claim 26 which recites that the second region…comprises the first region. Therefore, if the second region is recited as comprising the first region in claim 26, then it is unclear what further limitation “completely comprises” is intending to describe. The examiner believes that limitation (b) of claim 27 does not further describe the regions differently from that already recited in claim 26 and will treat the claims as such for purposes of examination.
Regarding claim 28, the “the dispensing region” in limitation (b) has not been previously recited. Therefore, the limitation has insufficient antecedent basis and it is unclear what region is attempting to be referred to.
Claims 34 and 35 recite the limitation “evaluation device for evaluating” which invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The specification describes the evaluation device as #19 in [66, 68] of the instant specification. Figures 1, 2 also show #19 as a black box as part of the detection devices. However, because the term “evaluation device” is not further described, and because it is not a known term that clearly connotes structure, then it is unclear what applicants are intending to define by the “evaluation device for evaluating”. The “evaluation device” is not clearly linked or correlated to a specific structure such that one of ordinary skill in the art would be able to look to the specification and identify the specific structure being recited in the claims. Is the evaluation device just inherently part of a detection device/detector, or is the evaluation device a computer/controller that performs the claimed functions? Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
As to claim 38, it is unclear how limitations (c) and (d) can both occur (Claim language - “and”) if (c) requires during dispensing but (d) can occur which particle is not moving. If the particle is not moving and is detected in (d), then limitation (c) can not also occur and therefore the “and/or” at the claim creates some conflicting ambiguity. If the language was solely “or” then there would not be a clarity issue.
With respect to claim 38, it is unclear what a “storage location” is describing in the claim limitation (e). Specifically, no storage has been recited and it is unclear what the function of the storage location is such that the limitation can be clearly construed. A potential infringer would not understand what a storage location is describing. Is the storage location of (e) a storage location of where the sample is dispensed to, or this storing location where the sample is moved to in a laboratory, or is the storage location actually just a storage file at a particular location on a computer? The examiner notes that limitation (f) helps to better describe the storage location in a defined manner. Additionally, it is unclear what the evaluation result is. Evaluation result of what?
Appropriate correction and/or clarification is required.
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 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 26 is rejected under 35 U.S.C. 102a1/a2 as being anticipated by Tovar et al (US 20160129443; hereinafter “Tovar”).
As to claim 26, Tovar teaches a device comprising: a dispenser for receiving liquid sample (Tovar; Fig. 2, [2, 3]), which has liquid and particles; a first light source of a first type for emitting a first illumination light for illuminating a first region of the dispenser; a first detection device for detecting a first optical measurement signal which emanates from the first region of the dispenser illuminated with the first illuminating light; a second light source of a second type for emitting a second illumination light for illuminating a second region of the dispenser which comprises the first region of the dispenser; and a second detection device for detecting a second optical measurement signal which emanates from the second region of the dispenser illuminated with the second illuminating light; wherein the first detection device is a point detector (Tovar teaches a first light 32 and a first detector 34 which is a photodiode/point detector; [96], Fig. 2. Tovar teaches that there is a second light and a second detector as a camera; [76], claims 3-4).
Note: The instant Claims contain a large amount of functional language (ex: “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.
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.
Claims 26-39, 43-45 are rejected under 35 U.S.C. 103 as being unpatentable over Schondube et al (US 20210239589; hereinafter “Schondube”) in view of Wu et al (US 20200376488; hereinafter “Wu”).
As to claim 26, Schondube teaches a device (Schondube; Fig. 1-3) comprising:
a dispenser for receiving liquid sample, which has liquid and particles (Schondube teaches dispenser 2/6; [97-98], Fig. 1-2);
a first light source of a first type for emitting a first illumination light for illuminating a first region of the dispenser (Schondube teaches a first light source 18; Fig. 1-2, [30, 31, 38, 39, 41, 58, 103, 104, 109, 117, 123, 127]);
a first detection device for detecting a first optical measurement signal which emanates from the first region of the dispenser illuminated with the first illuminating light (Schondube teaches a first detection device 21/22 for fluorescence; Fig. 1-2, [30, 31, 38, 39, 41, 54, 58, 103, 104, 109, 117, 123, 127]);
a second light source of a second type for emitting a second illumination light for illuminating a second region of the dispenser which comprises the first region of the dispenser (Schondube teaches a second light source 7; Fig. 1-2, [18, 24, 25, 31, 38, 39, 41, 47, 55, 62, 75, 100, 113, 116]); and
a second detection device for detecting a second optical measurement signal which emanates from the second region of the dispenser illuminated with the second illuminating light; wherein the first detection device is a point detector (Schondube teaches a second detection device 14/16 for bright light; Fig. 1-2, [18, 24, 25, 31, 38, 39, 41, 47, 62, 75, 100, 113, 116]).
Note: The instant Claims contain a large amount of functional language (ex: “for…”, “configured to…”, etc…). 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.
Although Schondube broadly teaches a detection devices for detecting light from cells/particles, and Schondube teaches that the first detection device detects fluorescence of the cells/particles, Schondube does not teach that the first detection device is a point detector. However, Wu teaches the analogous art of detecting fluorescence of cells/particles (Wu; [24, 25]) where the detection device is a point detector (Wu teaches that the optical detector can be a PMT; [14, 18, 140, 152]. A PMT is a point detector as evidenced by [12] of the instant specification). It would have been obvious to one of ordinary skill in the art to have modified the first detection device for detecting fluorescence of cells/particles of Schondube to be a PMT point detection device as in Wu because Wu teaches that PMTs are commonly known detectors (Wu; [14, 18, 140, 152]), and also because Wu teaches that PMTs are known variants of cameras (Wu; [14, 18, 140, 152]).
As to claim 27, modified Schondube teaches the device according to claim 26 (see above), wherein: a. the first region comprises a dispensing outlet; and/or b. the second region completely comprises the first region; and/or c. the second region is larger than the first region; and/or d. the first region comprises a dispensing region from which the liquid sample is dispensed from the dispenser during a dispensing process (Schondube teaches that the first region and second region are both regions from which the sample is dispensed; Fig. 1-2, [19, 72, 100, 101, 108, 109]).
As to claim 28, modified Schondube teaches the device according to claim 26 (see above), wherein: a. the second region comprises a dispensing outlet; and/or b. the second region comprises at least the dispensing region from which the liquid sample is dispensed from the dispenser during a dispensing process; and/or c. the device has an objective that is arranged in such a way that its optical axis is transverse or perpendicular to an ejection direction of liquid sample from the dispenser; and/or d. the device has an objective that has a numerical aperture of 0.1 to 1.5 (Schondube teaches that the first region and second region are both regions from which the sample is dispensed; Fig. 1-2, [19, 72, 100, 101, 108, 109]. Schondube also teaches an objective transverse to the dispensing direction; Fig. 1-2, [99]).
As to claim 29, modified Schondube teaches the device according to claim 26 (see above), wherein the device has a filter element for filtering a part of the measurement signal (Schondube teaches filters 9/11/27; [99, 100, 108], Fig. 1-2).
As to claim 30, modified Schondube teaches the device according to claim 29 (see above), wherein a. the filter element has a first filter region through which the first and second measurement signals penetrate; or b. the filter element has a first filter region through which the first and second measurement signals penetrate, the first filter region being a perforation (Schondube teaches filters 9/11 through which the first and second measurement signals penetrate; [99, 100, 108], Fig. 1-2).
As to claim 31, modified Schondube teaches the device according to claim 29 (see above), wherein the filter element has a second filter region which: a. the second measurement signal filters; and/or b. is designed such that the first measurement signal penetrates through the second filter region; and/or c. encloses the first filter region (Schondube teaches filters 9/11 through which the first and second measurement signals penetrate; [99, 100, 108], Fig. 1-2. Schondube teaches that filter 11 filters measurement signals such that they can either penetrate the filter or pass to the detector, and that filter 27 also filters the measurement signal).
As to claim 32, modified Schondube teaches the device according to claim 29 (see above), wherein the filter element is arranged in a beam path of the first and/or second measurement signals after an objective and before the point detector and/or the second detection device (Schondube teaches a filter 9/11/27 after objective 12 and before the detectors; Fig. 1-2).
As to claim 33, modified Schondube teaches the device according to claim 26 (see above), wherein: a. the first illumination light is excitation light and/or the first measurement signal is a fluorescence signal; and/or b. the second illumination light is bright field light and/or the second measurement signal is a bright field signal (Schondube teaches a first detection device 21/22 for fluorescence; Fig. 1-2, [30, 31, 38, 39, 41, 58, 103, 104, 109, 117, 123, 127] Schondube teaches a second detection device 14/16 for bright light; Fig. 1-2, [18, 24, 25, 31, 38, 39, 41, 47, 62, 75, 100, 113, 116]).
As to claim 34, modified Schondube teaches the device according to claim 26 (see above), wherein the device has at least one evaluation device for evaluating the first measurement signal and/or the second measurement signal (As best understood, Schondube teaches the detectors each having a readout evaluation device 30/31 as part of the detector which evaluate the signals; [48, 51, 69, 76, 84, 101, 104, 109, 123, 131, 132], Fig. 1-2. Schondube also teaches control device 28 and analysis device 17; [102, 106, 115, 122, 123, 127, 130, 131], Fig. 1-2).
As to claim 35, modified Schondube teaches the device according to claim 34 (see above), wherein: a. the evaluation device determines based on the first measurement signal whether at least one particle is arranged in the first region; and/or b. the evaluation device determines that at least one particle is arranged in the first region when the detected first measurement signal satisfies a predetermined condition; and/or c. the evaluation device based on the second measurement signal determines whether in the second region a predetermined number of particles are arranged; and/or d. the evaluation device determines a physical particle property based on the second measurement signal (Schondube; [48, 51, 69, 76, 84, 101, 102, 104, 106, 109, 115, 122, 123, 127, 130, 131, 132], Fig. 1-2).
As to claim 36, modified Schondube teaches the device according to claim 26 (see above), wherein the device comprises an actuator configured to actuate the dispenser for dispensing liquid sample (Schondube teaches dispenser 2/6 actuated by an actuator; [97-98], Fig. 1-2).
As to claim 37, modified Schondube teaches the device according to claim 26 (see above), wherein the device has a control device (Schondube teaches control device 28 and analysis device 17; [102, 106, 115, 122, 123, 127, 130, 131], Fig. 1-2).
As to claim 38, modified Schondube teaches the device according to claim 37 (see above), wherein: a. the control device causes the first light source to be switched on before the second light source; and/or b. the control device causes an exposure time by the first illumination light to be longer than an exposure time by the second illumination light; and/or c. the control device causes the first light source to be switched on during a dispensing process; and/or d. the control device causes the first light source to be switched on, regardless of whether the particle is moving in the first region; and/or e. the control device determines a storage location depending on an evaluation result; or f. the control device determines a storage location depending on the evaluation result and causes the dispenser to dispense liquid sample into the specific storage location (Schondube determines storage location; [68, 69, 72, 83, 84, 120, 124, 131, 132]. Schondube also teaches that the first light source takes longer than the second light source; [42, 43]).
As to claim 39, modified Schondube teaches the device according to claim 26 (see above), wherein: a. the first illumination light and the first measurement signal at least partially have a common beam path; and/or b. the second illuminating light and the second measurement signal at least partially have a common beam path; and/or c. the first and the second illuminating lights at least partially have a common beam path; and/or d. the first measurement signal and the second measurement signal at least partially have a common beam path (Schondube teaches that the first and second illuminating lights and measurement lights have partial common paths, with the common illuminating path from 9/12 and to dispenser 2 region 6 and the common measurement signal path from dispenser 2 region 6 to 9/12 to 11; Fig. 1-2).
As to claim 43, modified Schondube teaches the device according to claim 26 (see above), wherein the device has a lens which is arranged in a beam path of the first optical measurement signal (Schondube teaches a lens 12 in the beam path; [86, 99, 100, 108], Fig 1-2).
As to claim 44, modified Schondube teaches the device according to claim 43 (see above), wherein: a. the lens collimates the first optical measurement signal or the lens collimates the first optical measurement signal and the lens and the first detection device are arranged in such a way that the first detection device is supplied with the collimated first optical measurement signal; and/or b. the first detection device is arranged in such a way that a distance between the first detection device and the lens corresponds to a distance of the focal length of the lens (Schondube teaches a lens 12 in the beam path which would collimate the signal; [32, 55, 86, 99, 100, 108], Fig 1-2).
As to claim 45, Schondube teaches a method for examining a liquid (Schondube; Fig. 1-2, [109-132]) sample, comprising:
providing a device (Schondube; Fig. 1-3) comprising:
a dispenser for receiving liquid sample, which has liquid and particles (Schondube teaches dispenser 2/6; [97-98], Fig. 1-2);
a first light source of a first type for emitting a first illumination light for illuminating a first region of the dispenser (Schondube teaches a first light source 18; Fig. 1-2, [30, 31, 38, 39, 41, 58, 103, 104, 109, 117, 123, 127]);
a first detection device for detecting a first optical measurement signal which emanates from the first region of the dispenser illuminated with the first illuminating light (Schondube teaches a first detection device 21/22 for fluorescent light; Fig. 1-2, [30, 31, 38, 39, 41, 54, 58, 103, 104, 109, 117, 123, 127]);
a second light source of a second type for emitting a second illumination light for illuminating a second region of the dispenser which comprises the first region of the dispenser (Schondube teaches a second light source 7; Fig. 1-2, [18, 24, 25, 31, 38, 39, 41, 47, 55, 62, 75, 100, 113, 116]); and
a second detection device for detecting a second optical measurement signal which emanates from the second region of the dispenser illuminated with the second illuminating light (Schondube teaches a second detection device 14/16 for bright light; Fig. 1-2, [18, 24, 25, 31, 38, 39, 41, 47, 62, 75, 100, 113, 116]).; and
using the device to examine a liquid sample (Schondube; Fig. 1-2, [109-132]).
Although Schondube broadly teaches a detection devices for detecting light from cells/particles, and Schondube teaches that the first detection device detects fluorescence of the cells/particles, Schondube does not teach that the first detection device is a point detector. However, Wu teaches the analogous art of detecting fluorescence of cells/particles (Wu; [24, 25]) where the detection device is a point detector (Wu teaches that the optical detector can be a PMT; [14, 18, 140, 152]. A PMT is a point detector as evidenced by [12] of the instant specification). It would have been obvious to one of ordinary skill in the art to have modified the first detection device for detecting fluorescence of cells/particles of Schondube to be a PMT point detection device as in Wu because Wu teaches that PMTs are commonly known detectors (Wu; [14, 18, 140, 152]), and also because Wu teaches that PMTs are known variants of cameras (Wu; [14, 18, 140, 152]).
Claims 40-42 are rejected under 35 U.S.C. 103 as being unpatentable over Schondube et al (US 20210239589; hereinafter “Schondube”) in view of Wu et al (US 20200376488; hereinafter “Wu”) in view of Tovar et al (US 20160129443; hereinafter “Tovar”).
As to claim 40, modified Schondube teaches the device according to claim 26 (see above).
Modified Schondube does not specifically teach wherein the device has a light guide. However, Tovar teaches the analogous art of detecting at a dispenser, where the signal is sent to the detector by a light guide (Tovar teaches waveguide 30b which sends measurement light to the detector 16/34; [110, 116], Fig. 1, 2, 4. See also [44, 46, 47]). It would have been obvious to one of ordinary skill in the art to have modified the transmission of the signal to the detectors of modified Schondube to have used a waveguide to transmit the light as in Tovar because Tovar teaches that waveguides are well-known and preferred for use between the detection channel and photodetector (Tovar; [46, 110]) and that waveguides help provide good light transmission performance (Tovar; [47]).
As to claim 41, modified Schondube teaches the device according to claim 40 (see above), wherein: a. the light guide is arranged in a beam path of the first optical measurement signal; and/or b. the first optical measurement signal emerging from the light guide is fed to the first detection device; and/or c. the first region is imaged at an entrance of the light guide; and/or d. the light guide is designed in such a way that the first optical measurement signal exiting the light guide has a more uniform intensity distribution profile than the first optical measurement signal entering the light guide (The modification of the detection signals of Schondube to be transmitted via waveguide(s) as in Tovar has already been discussed above in claim 40. Tovar; [44, 46, 47, 110, 116]).
As to claim 42, modified Schondube teaches the device according to claim 40 (see above), wherein the light guide is a glass fiber and/or a liquid-filled light guide (The modification of the detection signals of Schondube to be transmitted via waveguide(s) as in Tovar has already been discussed above in claim 40. Tovar teaches glass fibers; [46, 109, 110]).
Other References Cited
The prior art of made of record and not relied upon is considered pertinent to applicant's disclosure include;
Lin, J (US 20170297023; hereinafter “Lin”) teaches a camera and PMT to evaluate a dispenser; Fig. 1.
Conclusion
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/Benjamin R Whatley/Primary Examiner, Art Unit 1798