DETAILED ACTION
The amendment filed on 03/10/2026 has been entered and fully considered. Claims 11-21 are pending, of which claim 11 is amended.
Response to Amendment
In response to amendment, the examiner maintains rejection over the prior art established in the previous Office 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 .
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim(s) 11-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Tokhtuev et al. (US 2006/0121614, IDS) (Tokhtuev) in view of Klimant et al. (DE 10101576, IDS) (Klimant).
Regarding claim 11, Tokhtuev discloses an optochemical sensor for measuring luminescing analytes in a measurement medium (abstract), the optoelectronic sensor comprising:
a sensor housing (watertight housing 101), wherein the sensor housing includes a window (2) adapted to contact the measurement medium (e.g. water) (Fig. 1, par [0027]);
a functional element, wherein the functional element includes a reference dye comprising an inorganic material (ruby 35) and suitable for emitting a first luminescence signal upon stimulation with light (Fig. 7 & 8a, par [0039] [0040]);
a light source (5, 6), wherein the light source is configured to emit a stimulation signal such that the stimulation signal is at least partially emitted onto the functional element and simultaneously the stimulation signal is at least partially emitted through the window into the measurement medium as to stimulate a first analyte present in the measurement medium, wherein the functional element emits the first luminescence signal upon stimulation with the first stimulation signal (Fig. 2, par [0028]);
a photodetector (3, 4), wherein the photodetector is configured to detect the first luminescence signal and to detect a second luminescence signal emitted by the first analyte present in the measurement medium (Fig. 2, par [0028]); and
a control unit (7), wherein the control unit is connected to the light source and the
photodetector and is configured to control the light source and evaluate the first and second luminescence signals detected by the photodetector (Fig. 1, par [0027] [0028]).
Tokhtuev discloses a fluorescence sensor in which excitation light from a light source is directed toward the sensing region and the surrounding measurement medium (e.g., water). As shown in FIG. 8a and described in par [0040], excitation light inherently propagates along an optical path and interacts with all optically accessible elements along that path, including both any reference/calibration element and the analyte-containing medium. Thus, the excitation light necessarily reaches multiple regions contemporaneously, i.e., in a manner that satisfies the claimed “simultaneously” requirement.
Tokhtuev does not specifically disclose that the second luminescence signal is superimposed with the first luminescence signal and a control architecture specifically configured to evaluate the combined luminescence signals based on internal referencing principles.
However, Klimant discloses that the second luminescence signal is superimposed with the first luminescence signal (par [0002]), and a control architecture specifically configured to evaluate the combined luminescence signals based on internal referencing principles (par [0020] [0021]).
Klimant teaches that “Because the one determined by phase modulation techniques, Phase shift between the luminescence responses of indicator and reference material only from the ratio of the intensity components of the two Depends on the materials, it directly reflects the intensity of the materials Luminescence response of the indicator material is reflected, You get one internal referencing of the signal intensity of the phosphors, so that one in principle with a single excitation light source and a single one Photodetector needs.” (par [0002]). Here, Klimant teaches that the method of using the internal reference improves measurement accuracy.
It would have been obvious to one of ordinary skill in the art to modify Tokhtuev and use a single detector receiving superimposed analyte and reference luminescence, and use a control unit to evaluate the combined luminescence signals for internal referencing, because Klimant expressly teaches that such detection improves the measurement accuracy. Implementing Klimant’s technique in Tokhtuev would be a straightforward substitution of one known luminescent referencing scheme for another to achieve predictable benefits.
Regarding claim 12, Tokhtuev discloses that wherein the control unit comprises a memory, including a table or a mathematical function stored therein, and wherein the control unit is configured to determine an analyte content of the first analyte present in the measurement medium and/or to identify the first analyte based on the first luminescence signal, the second luminescence signal, the table or the mathematical function, and stored coefficients (par [0055] [0056]).
Klimant also discloses that that wherein the control unit comprises a memory, including a table or a mathematical function stored therein, and wherein the control unit is configured to determine an analyte content of the first analyte present in the measurement medium and/or to identify the first analyte based on the first luminescence signal, the second luminescence signal, the table or the mathematical function, and stored coefficients (par [0026]-[0029]).
Regarding claim 13, Tokhtuev discloses that wherein the functional element is transparent, and the reference dye is disposed in the functional element (see Fig. 2 & 8a showing excitation from a light source directed both toward the ruby calibrator and outward to the surrounding water medium). The ruby reference is shown as being optically transmissive, allowing excitation light to reach analytes beyond it. Thus, Tokhtuev teaches a transparent or at least partially transmissive functional element with the reference dye disposed therein such that excitation light passes through the reference element toward the medium.
Tokhtuev therefore reasonably suggests the configuration where a portion (e.g., >10%) of the excitation signal passes through the luminescent reference material, because the design is expressly disclosed for in-situ fluorescence measurement of the external analyte medium.
Klimant teaches internal-referencing optical sensor structures wherein the indicator/reference materials are co-immobilized in a layer that allows excitation light to reach both luminophores, while still allowing interaction with the measurement environment (e.g., Fig. 1 element 1; par [0007]). Such a structure necessarily implies optical transparency sufficient for excitation light transmission through the functional element.
Regarding claim 14, As established in the rejection of claim 13, Tokhtuev teaches a luminescent reference element (ruby) located in the path of an excitation light beam such that the excitation light passes through the reference element and into the measurement medium (see Fig. 2 showing excitation directed toward both the ruby calibrator and the surrounding water medium).
Tokhtuev therefore suggests that the reference material is at least partially transmissive so that the analyte in the medium can be stimulated by the same light beam.
Klimant teaches sensor constructions in which reference and indicator luminophores are co-disposed in a transparent or semi-transparent functional layer that allows excitation light to pass through to the measurement medium (e.g., Fig. 1 element 1; par [0007], [0020]–[0021]). Thus, Klimant reasonably suggests optimizing light transmission well beyond the minimal threshold to ensure reliable stimulation of the analyte.
Regarding claim 15, Tokhtuev discloses an optoelectronic fluorosensor configured for measuring analytes in a surrounding medium such as water. In Tokhtuev, the sensing components are arranged such that they contact the measurement medium and directly detect analyte-induced luminescence (Fig. 2 & 8a; par [0040]). This teaches the functional element being arranged in an optical window of the device and adapted to contact the measurement medium.
Tokhtuev further teaches luminescent indicator dyes for detecting analytes such as chlorophyll and other fluorescent biological compounds in the environment. These indicator species are organic fluorescent materials whose emitted signal depends on the analyte present, i.e., a third luminescence signal dependent on a different analyte (chlorophyll content). (par [0009])
However, Tokhtuev does not explicitly disclose co-locating such an analyte-sensitive indicator dye within the same functional element that also includes the reference dye.
Klimant teaches co-immobilization of both indicator and reference dyes in the same optochemical sensing layer (Fig. 1 element 1; par [0007], [0020]–[0021]). The indicator dye is influenced by analyte concentration and emits a luminescence signal that is modulated during exposure to the analyte, while the reference dye is analyte-insensitive.
A person of ordinary skill in the art would have recognized that incorporating the indicator dye directly within the same optical interface as the reference element, as taught by Klimant, into the device of Tokhtuev would improve measurement reliability through internal referencing and reduce device complexity.
Regarding claim 16, Tokhtuev discloses the core optoelectronic fluorescence sensor of claim 11. The device includes optical components arranged such that excitation light is directed into a luminescent functional element and into the measurement medium (e.g., Fig. 2). This configuration inherently suggests reducing light loss to enhance signal detection.
Klimant teaches optimizing light routing and enhancing luminescent signal efficiency. Specifically, Klimant describes an optochemical sensing structure in which the luminescent indicator/reference system is arranged relative to optical components to maximize interaction between excitation radiation and the sensing layer (e.g., transmission/reflection interplay shown in Fig. 1, light paths 9 and 11).
Klimant explains that improving photon return into the sensing layer enhances measurement capability and stability (par [0020]–[0021]).
Reflective backing layers are a well-known and routinely employed structural enhancement for improving optical signal yield in luminescent sensors, consistent with the motivations described by Klimant. For example, many flashing lights have reflection layers for enhancing light intensity. It would have been obvious to one of ordinary skill in the art to coat the functional element with reflection layer, in order to enhance the optical signal yield.
Regarding claim 17, Tokhtuev discloses the optoelectronic/fluorosensor system of claim 11, including a sensor housing designed for submersed operation in a measurement medium (water), and a window that directly interfaces with the measurement medium (See Fig. 2: watertight housing with external exposure to water; par [0028]).
This arrangement inherently places the measurement medium between the optical window and the external environment, matching the structural requirement that “the measurement medium is disposed between the window and the reflection layer” once a reflection layer is added externally.
Klimant teaches optical enhancement techniques for luminescent sensors, including structural arrangements that seek to increase excitation light return and maximize luminescent interaction with the sensor element (e.g., transmission and reflection behavior in Fig. 1; par [0020]–[0021]).
Reflective coatings on housings in contact with a fluid medium are well-known in optochemical sensor design to:
improve signal strength,
reduce optical losses, and
enhance referencing accuracy.
For example, many flashing lights have reflection layers for enhancing light yield. It would have been obvious to one of ordinary skill in the art to coat the sensor housing with reflection layer, in order to improve signal strength, and reduce optical losses.
Regarding claim 18, Tokhtuev teaches a method for measuring luminescing analytes in a measurement medium using an optochemical sensor (abstract), the method comprising:
providing the optochemical sensor according to claim 11 (see claim 11 rejection);
contacting a measurement medium with at least the window of the optochemical sensor, wherein at least one analyte is present in the measurement medium (Fig. 2, par [0027]);
controlling the light source using the control unit such that a stimulation signal is emitted onto the functional element and into the measurement medium as to stimulate the reference dye and the at least one analyte present in the measurement medium (Fig. 2, par [0028]); and
detecting the first luminescence signal emitted by the reference dye and the second luminescence signal emitted by the at least one analyte using the photodetector (Fig. 1, par [0027] [0028]).
Thus, Tokhtuev teaches all steps of claim 18 except detecting superimposed luminescent signals from both the reference dye and the analyte using a single detector.
However, Klimant teaches
Simultaneous excitation of indicator and reference luminophores (Fig. 1, arrow 9; par [0020]–[0021]);
Detection of the combined (superimposed) luminescence with a single photodetector (par [0002])
Evaluation of both components together (par [0026]–[0029])
Thus, Klimant supplies the missing teaching.
Klimant teaches that “Because the one determined by phase modulation techniques, Phase shift between the luminescence responses of indicator and reference material only from the ratio of the intensity components of the two Depends on the materials, it directly reflects the intensity of the materials Luminescence response of the indicator material is reflected, You get one internal referencing of the signal intensity of the phosphors, so that one in principle with a single excitation light source and a single one Photodetector needs.” (par [0002]). Here, Klimant teaches that the method of using the internal reference improves measurement accuracy.
It would have been obvious to one of ordinary skill in the art to modify Tokhtuev and use a single detector receiving superimposed analyte and reference luminescence, and use a control unit to evaluate the combined luminescence signals for internal referencing, because Klimant expressly teaches that such detection improves the measurement accuracy. Implementing Klimant’s technique in Tokhtuev would be a straightforward substitution of one known luminescent referencing scheme for another to achieve predictable benefits.
Regarding claim 19, Tokhtuev teaches that wherein the control unit comprises a memory, including a table or a mathematical function stored therein (par [0055] [0056]),
wherein the method further comprises evaluating the first luminescence signal and the second luminescence signal via the table or mathematical function stored in the memory of the control unit as to determine a first analyte content of the at least one analyte present in the measurement medium and/or to identify the at least one analyte (par [0056]).
Klimant also teaches that wherein the control unit comprises a memory, including a table or a mathematical function stored therein,
wherein the method further comprises evaluating the first luminescence signal and the second luminescence signal via the table or mathematical function stored in the memory of the control unit as to determine a first analyte content of the at least one analyte present in the measurement medium and/or to identify the at least one analyte (par [0026]-[0029]).
Regarding claim 20, Tokhtuev teaches the method of claim 18 including contacting the sensor with the analyte-containing medium and detecting analyte luminescence (e.g., chlorophyll). Tokhtuev also teaches that the functional sensor elements are arranged in the optical path that contacts the measurement medium for in-situ detection (Fig. 2; par [0028]), analyte-responsive dyes/materials are excited by the same light source used to stimulate the reference (LED emitter; par [0024]), luminescent signals from analytes are detected by the photodetector/pick-up device (FIG. 3; par [0024]). Thus, Tokhtuev teaches:
functional element in optical contact with medium,
indicator that responds to analyte,
excitation of the indicator dye from the same stimulation signal, and
photodetection of analyte luminescence.
Tokhtuev does not explicitly disclose co-locating the indicator dye in the same transparent functional element containing a reference dye as in claim 11.
Klimant teaches exactly this:
Co-immobilization of an analyte-dependent indicator dye (organic) and analyte-independent reference dye in the same sensing matrix in contact with the medium (Fig. 1, item 1; par [0007], [0020]–[0021])
Both dyes are excited by the same stimulation signal and emit multiple luminescence signals detected by a single photodetector (par [0002], [0020])
A PHOSITA would have been motivated to incorporate Klimant’s co-immobilized indicator/reference structure into Tokhtuev’s device because it reduces optical alignment complexity, and provides internal referencing for improved accuracy.
Regarding claim 21, Tokhtuev teaches that wherein the method further comprises evaluating the third luminescence signal via the table or mathematical function stored in the memory of the control unit as to determine a second analyte content of the second analyte present in the measurement medium and/or to identify the second analyte (par [0009] [0055] [0056]).
Klimant also teaches that wherein the method further comprises evaluating the third luminescence signal via the table or mathematical function stored in the memory of the control unit as to determine a second analyte content of the second analyte present in the measurement medium and/or to identify the second analyte (par [0026]-[0029]).
Response to Arguments
Applicant's arguments filed 03/10/2026 have been fully considered but they are not persuasive.
Applicant argues that amended claim 11 requires:
“the stimulation signal is at least partially emitted onto the functional element and simultaneously … through the window into the measurement medium”
and asserts that neither Tokhtuev nor Klimant discloses or suggests such simultaneous operation.
This argument is not persuasive.
Tokhtuev discloses a fluorescence sensor in which excitation light from a light source is directed toward the sensing region and the surrounding measurement medium (e.g., water). As shown in FIG. 8a and described in par [0040], excitation light inherently propagates along an optical path and interacts with all optically accessible elements along that path, including both any reference/calibration element and the analyte-containing medium. Thus, the excitation light necessarily reaches multiple regions contemporaneously, i.e., in a manner that satisfies the claimed “simultaneously” requirement.
Applicant’s argument improperly construes Tokhtuev as requiring strict temporal separation between calibration and measurement. While Tokhtuev discloses periodic calibration using a solid-state calibrator (par [0039]), this does not limit the optical behavior of excitation light during normal operation nor exclude configurations in which excitation light reaches multiple elements concurrently. The claim does not require a specific calibration mode, but only requires that the stimulation signal be emitted toward both the functional element and the medium, which Tokhtuev’s optical arrangement inherently allows.
Moreover, Klimant explicitly teaches excitation of multiple luminescent components using a single excitation source, wherein excitation radiation is applied to both indicator and reference materials (par [0020]–[0021]). Combining Klimant’s teaching with Tokhtuev renders it obvious that excitation light can be distributed to multiple regions simultaneously.
Accordingly, the claimed “simultaneous” feature is either inherently present in Tokhtuev or explicitly suggested by Klimant.
Applicant argues that Tokhtuev’s calibrator is used only for periodic calibration and therefore cannot be simultaneously excited with the analyte.
This argument is not persuasive.
The rejection does not rely on Tokhtuev’s calibrator being used exclusively in a calibration mode. Rather, Tokhtuev is relied upon for teaching:
a luminescent reference element (e.g., ruby), and
an optical configuration in which excitation light is directed toward both internal components and the external measurement medium.
Whether Tokhtuev describes periodic calibration does not negate the fact that the physical optical structure is capable of simultaneous excitation. A prior art reference is available for all that it reasonably teaches or suggests to a person of ordinary skill in the art (MPEP §2143.01).
Furthermore, Klimant teaches simultaneous excitation of multiple luminescent components in a sensing configuration. It would have been obvious to apply Klimant’s known internal-referencing technique to Tokhtuev’s system to improve accuracy and stability.
Applicant asserts that Klimant measures only indicator/reference luminescence and does not stimulate analytes in the medium.
This argument is not persuasive.
The rejection relies on:
Tokhtuev for teaching stimulation and detection of analyte luminescence in a measurement medium, and
Klimant for teaching simultaneous excitation and combined detection of multiple luminescent components and associated signal processing.
A proper obviousness analysis does not require that each reference teach all claim limitations individually. Rather, the references may be combined to show that the claimed invention as a whole would have been obvious (MPEP §2143; KSR v. Teleflex).
Klimant is not relied upon to teach analyte excitation in the medium, but rather to teach:
simultaneous excitation of multiple luminescent components, and
evaluation of combined luminescence signals.
Thus, Applicant’s argument attacks the references individually and does not address the teachings of the combination.
Applicant contends that Klimant teaches away because it discloses preventing excitation light from reaching the sample.
This argument is not persuasive.
A reference teaches away only when it criticizes, discredits, or otherwise discourages the claimed solution. Klimant’s disclosure of an opaque carrier in one embodiment (par [0008]) merely describes a specific configuration and does not rise to the level of teaching away from all configurations in which excitation light reaches a sample.
Moreover:
Klimant broadly teaches optical sensor configurations with indicator/reference systems and shared excitation.
Tokhtuev explicitly teaches excitation of analytes in a measurement medium.
A person of ordinary skill would have recognized that Klimant’s internal referencing technique could be implemented in Tokhtuev’s system while maintaining Tokhtuev’s analyte excitation capability.
Therefore, Klimant does not teach away from the claimed combination.
Applicant argues that the Office has not provided sufficient reasoning for combining Tokhtuev and Klimant.
This argument is not persuasive.
As set forth in the rejection, Klimant teaches that combining reference and analyte luminescence improves:
measurement accuracy,
signal stability, and
compensation for drift.
A person of ordinary skill in the art would have been motivated to incorporate these known advantages into Tokhtuev’s sensor system to improve performance. This constitutes a recognized design incentive and provides the required rational underpinning (KSR v. Teleflex).
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 XIAOYUN R XU, Ph. D. whose telephone number is (571)270-5560. The examiner can normally be reached M-F 8am-5pm.
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/XIAOYUN R XU, Ph.D./ Primary Examiner, Art Unit 1797
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