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 .
Response to Amendment
Applicant’s amendments, filed 29 December 2025, with respect to the drawings and the claims have been entered. Therefore, the objection to FIG. 21 has been withdrawn. Claims 1, 3-5, and 7-11 remain pending in the application.
Response to Arguments
Applicant's arguments filed 29 December 2025 have been fully considered but they are not persuasive.
Regarding applicant’s argument, see page 7, that it would not have been obvious to modify Shimojima in view of Mitamura to include that the spectral chart is generated in second incremental energy steps smaller than first incremental energy steps, optimizing the magnitude of incremental energy steps is well within the bounds of normal experimentation. See MPEP 2144.05 II (A). “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to dis-cover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Furthermore, “[a] particular parameter must first be recognized as a result-effective variable, i.e., a variable which achieves a recognized result, before the determination of the optimum or workable ranges of said variable might be characterized as routine experimentation.” In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977). In the case at hand, Mitamura teaches that “[t]he interpolation operation is a process of calculating a value inside the adjacent analysis data…[b]y treating the interpolation data…as analysis data, the number of analysis data in the mapping analysis can be increased without performing the actual analysis” (page 5, paragraphs 2-3), and “the number of pieces of analysis data used for the mapping analysis is increased by obtaining the interpolation data by the interpolation means 5, and the resolution is improved” (page 4, paragraph beginning “In the embodiment…”). As such, Mitamura identifies the magnitude of increments between energy data points as a variable which achieves a recognized result, i.e., saving time on data collection while increasing the data resolution. Therefore, the prior art teaches adjusting the magnitude of incremental energy steps and identifies said energy steps as a result-effective variable. Accordingly, it would have been obvious to one of ordinary skill in the art before the effective time of filing to optimize the magnitude of incremental energy steps to meet the claimed relation between first and second incremental energy steps since it is not inventive to dis-cover the optimum or workable ranges by routine experimentation.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., “the accumulating operation reduces the effects of variations in detection sensitivity”) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Furthermore, features of an apparatus may be recited either structurally or functionally (In re Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed. Cir. 1997)), but “apparatus claims cover what a device is, not what a device does” (Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990)(emphasis in original)). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim (Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)), i.e., a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. See MPEP 2114.
Further still, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Regarding applicant’s argument, see page 8, that Mitamura fails to teach that individual spectra have already been linearly interpolated prior to the accumulating operation, Mitamura discloses that “[i]nterpolated data (circles) can be obtained for analysis data…and the average of these interpolated data can be calculated” (Mitamura, page 5, third paragraph from last). Claim 1 recites that the “accumulating operation” is achieved by “accumulating or averaging said plurality of first spectra” (emphasis added). Therefore, the disclosure of Mitamura meets the claimed limitations.
Applicant’s argument, see page 8, that Kudo fails to teach measurement energies that are not coincident is moot because the rejection does not rely on Kudo to teach measurement energies that are not coincident.
Regarding applicant’s argument, see pages 8-9, that it would not have been obvious to modify Shimojima in view of Mitamura and Kudo to set a ratio between the difference in measurement energy between adjacent detection elements and the magnitude of the first incremental energy steps to a value smaller than unity, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Furthermore, Shimojima discloses the magnitude of the ratio ΔE/I = 0.8 as only an example; Shimojima discloses that “the case where the energy interval I of the spectrum data is equal to the energy interval ΔE…has been described. It may be different from the energy interval ΔE” (Shimojima, page 10, paragraph beginning “(1) First Modification”. The disclosure of Shimojima does not limit the ratio to a particular value; therefore, the disclosure of Kudo that “[t]he energy increment
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in an energy sweep must be an integral multiple of the difference of the energies…” (Kudo, column 2, lines 8-10) does not teach away from the disclosure of Shimojima.
Further still, “[w]hen more than one prior art reference is used as the basis of an obviousness rejection, it is not required that the references be analogous art to each other.” See Sanofi-Aventis Deutschland GMbH v. Mylan Pharms. Inc., 66 F.4th 1373, 1380, 2023 USPQ2d 552 (Fed. Cir. 2023) and Corephotonics, Ltd. v. Apple Inc., 84 F.4th 990, 1007, 2023 USPQ2d 1202 (Fed. Cir. 2023). The intended use or reason for setting the ratio does not result in a structural difference between Shimojima and Kudo.
Still further, optimizing a ratio between energy values is well within the bounds of normal experimentation. See MPEP 2144.05 II (A). “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to dis-cover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Furthermore, “[a] particular parameter must first be recognized as a result-effective variable, i.e., a variable which achieves a recognized result, before the determination of the optimum or workable ranges of said variable might be characterized as routine experimentation.” In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977). In the case at hand, Shimojima teaches that “even if the energy interval I of the spectrum data is different from the energy interval ΔE between adjacent channeltrons, the same effects as those of the above-described embodiment can be achieved” (page 11, paragraph beginning “According to the first modification…”). As such, Shimojima identifies the relative values of the energy intervals I and ΔE as a variable which achieves a recognized result. Therefore, the prior art teaches adjusting a ratio between energy values and identifies said ratio as a result-effective variable. Accordingly, it would have been obvious to one of ordinary skill in the art before the effective time of filing to optimize the ratio between energy values to meet the claimed ratio since it is not inventive to dis-cover the optimum or workable ranges by routine experimentation.
Claim Rejections - 35 USC § 103
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.
Claims 1 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Shimojima (JP Patent No. 2017204425 A), hereinafter Shimojima (English machine translation provided in a prior office action), in view of Mitamura et al. (JP Patent No. 2002323463 A), hereinafter Mitamura (English machine translation provided in a prior office action).
Regarding claim 1, Shimojima discloses an electron spectrometer (FIG. 1, element 100) comprising:
an electron analyzer (FIG. 1, element 34) for providing energy dispersion of electrons emitted from a sample (page 4, third paragraph from last);
a detector (FIG. 1, element 40) having a plurality of detection elements (FIG. 2, elements 42) juxtaposed and arranged in a direction of energy dispersion of the electrons which have been dispersed in energy by the analyzer (page 3, fourth paragraph from last); and
a processor (FIG. 1, element 60) configured or programmed to: (i) sweep a measurement energy in first incremental energy steps within the analyzer (page 5, paragraph beginning “The start energy Es”; the measurement energy is swept from start energy Es to end energy Ee in first incremental energy steps I), cause the electrons dispersed in energy by the analyzer to be detected by the plurality of detection elements (page 5, fourth paragraph from last, lines 1-4), and obtain a plurality of resulting first spectra (page 5, third paragraph from last); (ii) interpolate points of measurement in each of the plurality of first spectra (page 11, first paragraph); and (iii) generate a spectral chart (FIG. 11) on the basis of the plurality of first spectra for which the points of measurement have been interpolated (page 10, last paragraph to page 11, first paragraph), and wherein said processor sets the magnitude of each of said first incremental energy steps such that the measurement energies for respective ones of said plurality of first spectra are not coincident (page 7, paragraph beginning “That is, in the high-speed measurement”).
Shimojima fails to disclose that the spectral chart is generated in second incremental energy steps smaller than the first incremental energy steps, wherein said processor generates said spectral chart by accumulating or averaging said plurality of first spectra for which the points of measurement have been interpolated.
However, Mitamura discloses generating a chart in second incremental energy steps smaller than the first incremental energy steps (FIG. 2b shows first data points as crosses at first incremental energy steps, and interpolated data as circles in between the first data points, i.e., there is a smaller increment between data points when interpolated data is included than without the interpolated data), wherein said processor generates said spectral chart by accumulating or averaging said plurality of first spectra for which the points of measurement have been interpolated (page 5, third paragraph from last).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Shimojima to include that the spectral chart is generated in second incremental energy steps smaller than the first incremental energy steps, wherein said processor generates said spectral chart by accumulating or averaging said plurality of first spectra for which the points of measurement have been interpolated, based on the teachings of Mitamura that this improves the resolution of the data by increasing the number of data points for analysis (Mitamura, page 4, paragraph beginning “In the embodiment”), and averaging allows the data to be collected in multiple dimensions (Mitamura, page 5, third paragraph from last).
Regarding claim 7, Shimojima discloses an analytical method using an electron spectrometer (FIG. 1, element 100) comprising both an electron analyzer (FIG. 1, element 34) for providing energy dispersion of electrons emitted from a sample (page 4, third paragraph from last) and a detector (FIG. 1, element 40) provided with a plurality of detection elements (FIG. 2, elements 42) that are juxtaposed and arranged in the direction of energy dispersion of the electrons dispersed in energy by the analyzer (page 3, fourth paragraph from last), said analytical method comprising:
sweeping a measurement energy in first incremental energy steps within the analyzer (page 5, paragraph beginning “The start energy Es”; the measurement energy is swept from start energy Es to end energy Ee in first incremental energy steps I) so that electrons are dispersed in energy within the analyzer (page 4, third paragraph from last), detecting the dispersed electrons with the plurality of detection elements (page 5, fourth paragraph from last, lines 1-4), and obtaining a plurality of resulting first spectra (page 5, third paragraph from last);
interpolating points of measurement in each of the plurality of first spectra (page 11, first paragraph); and
generating a spectral chart (FIG. 11) on the basis of the plurality of first spectra for which the points of measurement have been interpolated (page 10, last paragraph to page 11, first paragraph), and
setting the magnitude of each of said first incremental energy steps such that the measurement energies for respective ones of said plurality of first spectra are not coincident (page 7, paragraph beginning “That is, in the high-speed measurement”).
Shimojima fails to disclose that the spectral chart is generated in second incremental energy steps smaller than the first incremental energy steps by accumulating or averaging said plurality of first spectra for which the points of measurement have been interpolated.
However, Mitamura discloses generating a chart in second incremental energy steps smaller than the first incremental energy steps (FIG. 2b shows first data points as crosses at first incremental energy steps, and interpolated data as circles in between the first data points, i.e., there is a smaller increment between data points when interpolated data is included than without the interpolated data) by accumulating or averaging said plurality of first spectra for which the points of measurement have been interpolated (page 5, third paragraph from last).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Shimojima to include that the spectral chart is generated in second incremental energy steps smaller than the first incremental energy steps by accumulating or averaging said plurality of first spectra for which the points of measurement have been interpolated, based on the teachings of Mitamura that this improves the resolution of the data by increasing the number of data points for analysis (Mitamura, page 4, paragraph beginning “In the embodiment”), and averaging allows the data to be collected in multiple dimensions (Mitamura, page 5, third paragraph from last).
Claims 3-5 and 8-11 are rejected under 35 U.S.C. 103 as being unpatentable over Shimojima in view of Mitamura (as applied to claim 1 above, claims 3-5), and further in view of Kudo et al. (U.S. Patent No. 5,464,978 A), hereinafter Kudo.
Regarding claim 3, Shimojima in view of Mitamura as applied to claim 1 discloses the electron spectrometer as set forth in claim 1.
Shimojima in view of Mitamura fails to disclose that said processor is further configured or programmed to accept a specified energy resolution and set said first incremental energy steps on the basis of the energy resolution.
However, Kudo discloses that said processor (FIG. 1, element 9) is further configured or programmed to accept a specified energy resolution (column 2, lines 6-7: the energy resolution is the analyzer pass energy) and set said first incremental energy steps on the basis of the energy resolution (column 2, line 56 – column 3, line 2).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Shimojima in view of Mitamura to include that said processor is further configured or programmed to accept a specified energy resolution and set said first incremental energy steps on the basis of the energy resolution, based on the teachings of Kudo that this prevents issues of unequal energy increments which result in degradation of the accuracy of the data (Kudo, column 2, lines 35-63).
Regarding claim 4, Shimojima in view of Mitamura and Kudo as applied to claim 3 discloses the electron spectrometer as set forth in claim 3.
In addition, Shimojima discloses the difference in measurement energy between any adjacent two of said detection elements (page 3, last paragraph, ΔE) and the magnitude of each of said first incremental energy steps (page 6, paragraph 5, I).
In addition, Kudo discloses that said processor is further configured or programmed to set the ratio between the difference in measurement energy between any adjacent two of said detection elements and the magnitude of each of said first incremental energy steps (column 2, lines 8-10, the incremental energy steps being
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) on the basis of said energy resolution (column 2, lines 56-60) and to set the magnitude of each of the first incremental energy steps on the basis of the ratio (column 3, lines 1-2).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Shimojima in view of Mitamura and Kudo to include that said processor is further configured or programmed to set said ratio on the basis of said energy resolution and to set the magnitude of each of the first incremental energy steps on the basis of the ratio, based on the additional teachings of Kudo that this prevents issues of unequal energy increments which result in degradation of the accuracy of the data (Kudo, column 2, lines 35-63).
Regarding claim 5, Shimojima in view of Mitamura and Kudo as applied to claim 4 discloses the electron spectrometer as set forth in claim 4.
In addition, Shimojima discloses that said processor sets said ratio to a value smaller than unity (page 10, paragraph 4: ΔE/I = 0.8/1.0 = 0.8).
Regarding claim 8, Shimojima discloses an electron spectrometer (FIG. 1, element 100) comprising:
(FIG. 1, element 34) for providing energy dispersion of electrons emitted from a sample (page 4, third paragraph from last);
a detector (FIG. 1, element 40) having a plurality of detection elements (FIG. 2, elements 42) juxtaposed and arranged in a direction of energy dispersion of the electrons which have been dispersed in energy by the analyzer (page 3, fourth paragraph from last); and
a processor (FIG. 1, element 60) configured or programmed to: (i) sweep a measurement energy in first incremental energy steps within the analyzer (page 5, paragraph beginning “The start energy Es”; the measurement energy is swept from start energy Es to end energy Ee in first incremental energy steps I), cause the electrons dispersed in energy by the analyzer to be detected by the plurality of detection elements (page 5, fourth paragraph from last, lines 1-4), and obtain a plurality of resulting first spectra (page 5, third paragraph from last); (ii) interpolate points of measurement in each of the plurality of first spectra (page 11, first paragraph); and (iii) generate a spectral chart (FIG. 11) on the basis of the plurality of first spectra for which the points of measurement have been interpolated (page 10, last paragraph to page 11, first paragraph); and a ratio of a difference in measurement energy between any adjacent two of said detection elements (page 3, last paragraph, ΔE) and the magnitude of each of said first incremental energy steps (page 6, paragraph 5, I), and wherein said processor sets said ratio to a value smaller than unity (page 10, paragraph 4: ΔE/I = 0.8/1.0 = 0.8).
Shimojima fails to disclose that the spectral chart is generated in second incremental energy steps smaller than the first incremental energy steps, wherein said processor is further configured or programmed to accept a specified energy resolution and set said first incremental energy steps on the basis of the energy resolution, wherein said processor is further configured or programmed to set the ratio between the difference in measurement energy between any adjacent two of said detection elements and the magnitude of each of said first incremental energy steps on the basis of said energy resolution and to set the magnitude of each of the first incremental energy steps on the basis of the ratio.
However, Mitamura discloses generating a chart in second incremental energy steps smaller than the first incremental energy steps (FIG. 2b shows first data points as crosses at first incremental energy steps, and interpolated data as circles in between the first data points, i.e., there is a smaller increment between data points when interpolated data is included than without the interpolated data).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Shimojima to include that the spectral chart is generated in second incremental energy steps smaller than the first incremental energy steps, based on the teachings of Mitamura that this improves the resolution of the data by increasing the number of data points for analysis (Mitamura, page 4, paragraph beginning “In the embodiment”).
Shimojima in view of Mitamura fails to disclose that said processor is further configured or programmed to accept a specified energy resolution and set said first incremental energy steps on the basis of the energy resolution, wherein said processor is further configured or programmed to set the ratio between the difference in measurement energy between any adjacent two of said detection elements and the magnitude of each of said first incremental energy steps on the basis of said energy resolution and to set the magnitude of each of the first incremental energy steps on the basis of the ratio.
However, Kudo discloses that said processor (FIG. 1, element 9) is further configured or programmed to accept a specified energy resolution (column 2, lines 6-7: the energy resolution is the analyzer pass energy) and set said first incremental energy steps on the basis of the energy resolution (column 2, line 56 – column 3, line 2), wherein said processor is further configured or programmed to set the ratio between the difference in measurement energy between any adjacent two of said detection elements and the magnitude of each of said first incremental energy steps (column 2, lines 8-10, the incremental energy steps being
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) on the basis of said energy resolution (column 2, lines 56-60) and to set the magnitude of each of the first incremental energy steps on the basis of the ratio (column 3, lines 1-2).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Shimojima in view of Mitamura to include that said processor is further configured or programmed to accept a specified energy resolution and set said first incremental energy steps on the basis of the energy resolution, wherein said processor is further configured or programmed to set the ratio between the difference in measurement energy between any adjacent two of said detection elements and the magnitude of each of said first incremental energy steps on the basis of said energy resolution and to set the magnitude of each of the first incremental energy steps on the basis of the ratio, based on the teachings of Kudo that this prevents issues of unequal energy increments which result in degradation of the accuracy of the data (Kudo, column 2, lines 35-63).
Regarding claim 9, Shimojima in view of Mitamura and Kudo as applied to claim 8 discloses the electron spectrometer as set forth in claim 8.
In addition, Mitamura discloses that said processor generates said spectral chart by accumulating or averaging said plurality of first spectra for which the points of measurement have been interpolated (page 5, third paragraph from last).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Shimojima in view of Mitamura and Kudo to include that said processor generates said spectral chart by accumulating or averaging said plurality of first spectra for which the points of measurement have been interpolated, based on the additional teachings of Mitamura that this allows the data to be collected in multiple dimensions (Mitamura, page 5, third paragraph from last).
Regarding claim 10, Shimojima in view of Mitamura and Kudo as applied to claim 8 discloses the electron spectrometer as set forth in claim 8.
In addition, Shimojima discloses that said processor sets the magnitude of each of said first incremental energy steps such that the measurement energies for respective ones of said plurality of first spectra are not coincident (page 7, paragraph beginning “That is, in the high-speed measurement”).
Regarding claim 11, Shimojima discloses an analytical method using an electron spectrometer (FIG. 1, element 100) comprising both an electron analyzer (FIG. 1, element 34) for providing energy dispersion of electrons emitted from a sample (page 4, third paragraph from last) and a detector (FIG. 1, element 40) provided with a plurality of detection elements (FIG. 2, elements 42) that are juxtaposed and arranged in the direction of energy dispersion of the electrons dispersed in energy by the analyzer (page 3, fourth paragraph from last), said analytical method comprising:
sweeping a measurement energy in first incremental energy steps within the analyzer (page 5, paragraph beginning “The start energy Es”; the measurement energy is swept from start energy Es to end energy Ee in first incremental energy steps I) so that electrons are dispersed in energy within the analyzer (page 4, third paragraph from last), detecting the dispersed electrons with the plurality of detection elements (page 5, fourth paragraph from last, lines 1-4), and obtaining a plurality of resulting first spectra (page 5, third paragraph from last);
interpolating points of measurement in each of the plurality of first spectra (page 11, first paragraph); and
generating a spectral chart (FIG. 11) on the basis of the plurality of first spectra for which the points of measurement have been interpolated (page 10, last paragraph to page 11, first paragraph), and a ratio between the difference in measurement energy between any adjacent two of said detection elements (page 3, last paragraph, ΔE) and the magnitude of each of said first incremental energy steps (page 6, paragraph 5, I), and
setting said ratio to a value smaller than unity (page 10, paragraph 4: ΔE/I = 0.8/1.0 = 0.8).
Shimojima fails to disclose that the spectral chart is generated in second incremental energy steps smaller than the first incremental energy steps by accepting a specified energy resolution and setting said first incremental energy steps on the basis of the energy resolution, setting the ratio on the basis of said energy resolution and setting the magnitude of each of the first incremental energy steps on the basis of the ratio.
However, Mitamura discloses generating a chart in second incremental energy steps smaller than the first incremental energy steps (FIG. 2b shows first data points as crosses at first incremental energy steps, and interpolated data as circles in between the first data points, i.e., there is a smaller increment between data points when interpolated data is included than without the interpolated data).
It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Shimojima to include that the spectral chart is generated in second incremental energy steps smaller than the first incremental energy steps, based on the teachings of Mitamura that this improves the resolution of the data by increasing the number of data points for analysis (Mitamura, page 4, paragraph beginning “In the embodiment”).
Shimojima in view of Mitamura fails to disclose accepting a specified energy resolution and setting said first incremental energy steps on the basis of the energy resolution, setting the ratio on the basis of said energy resolution and setting the magnitude of each of the first incremental energy steps on the basis of the ratio.
However, Kudo discloses accepting a specified energy resolution (column 2, lines 6-7: the energy resolution is the analyzer pass energy) and setting said first incremental energy steps on the basis of the energy resolution (column 2, line 56 – column 3, line 2), setting the ratio on the basis of said energy resolution (column 2, lines 56-60) and setting the magnitude of each of the first incremental energy steps on the basis of the ratio (column 3, lines 1-2).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Shimojima in view of Mitamura to include accepting a specified energy resolution and setting said first incremental energy steps on the basis of the energy resolution, setting the ratio on the basis of said energy resolution and setting the magnitude of each of the first incremental energy steps on the basis of the ratio, based on the teachings of Kudo that this prevents issues of unequal energy increments which result in degradation of the accuracy of the data (Kudo, column 2, lines 35-63).
Conclusion
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 ALINA R KALISZEWSKI whose telephone number is (703)756-5581. The examiner can normally be reached Monday - Friday 8:00am - 5:00pm EST.
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/A.K./Examiner, Art Unit 2881
/ROBERT H KIM/Supervisory Patent Examiner, Art Unit 2881