DETAILED ACTION
In application filed on 06/08/2023, Claims 1-19 are pending. The claim set submitted on 06/08/2023 is considered because this is the most recent claim set with some preliminary amendments. Claims 1-9 are considered in the current 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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 06/10/2024, 11/25/2025 and 06/04/2026 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Election/Restrictions
Applicant’s election of Group I in the reply filed on 06/04/2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 10-19 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Groups, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 06/04/2026.
Group I, Claims 1-9 are considered on the merits below.
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:
The claim set uses a substitute for “means”: “system”
The claim set generic placeholder is modified by functional language: “for determining”
In the claim set, the generic placeholder is not modified by sufficient structure: “system” is not modified by sufficient structure.
Claim 1 recites “one or more light adsorption measurement systems for determining NO2 levels”.
Based on the instant specification:
“one or more light adsorption measurement system” has been interpreted in light of the Specification to comprise a light source (See Para 0042, Specification); ; Suitable light sources 20 include LEDs and laser diodes (See Para 0010, Specification).
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.
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 Objections
Claim 8 is objected to because of the following informalities:
Claim 8 recites “a first light adsorption measurement system” and “a second light adsorption measurement system” . It appears that these limitations refer to the “one or more light adsorption measurement system” recited in Claim 1 and Examiner views the “a first light adsorption measurement system” and “a second light adsorption measurement system” as such.
Examiner interprets “a first light adsorption measurement system” as “a first light adsorption measurement system of the one or more light adsorption measurement systems”; and “a second light adsorption measurement system” as a second light adsorption measurement system of the one or more light adsorption measurement systems”.
Applicant should provide clarification.
Claim Rejections - 35 USC § 112
Claims 1-9 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation "the nitric oxide analyzer" in line4. There is insufficient antecedent basis for this limitation in the claim.
For the purpose of expedited prosecution, the limitation "the nitric oxide analyzer" is interpreted by the Examiner as "a nitric oxide analyzer" or "the sensor".
Applicant should provide clarification.
Moreover, Claims 2-9 are rejected by virtue of dependency on Claim 1.
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.
Claims 1-7 are rejected under 35 U.S.C. 102 (a) (1) as being anticipated by Birks et al. (US20190226987A1, submitted in IDS on 06/04/2026).
Regarding Claim 1, Birks teaches a sensor for measuring nitric oxide concentration in a sample (See Abstract… use of a modular Folded Tubular Photometer to measure the concentrations of gas-phase species and/or particles, including especially air pollutants such as ozone (O3), nitrogen dioxide (NO2), sulfur dioxide (SO2) and black carbon particulate matter, by means of absorbance of ultraviolet (UV), visible or infrared (IR) light. The optical bench makes use of modular components (tubes and mirror assemblies) that allow construction of path lengths of up to 2 meters or more while maintaining low detection cell volumes), the sensor (See Abstract… use of a modular Folded Tubular Photometer to measure the concentrations of gas-phase species and/or particles, including especially air pollutants such as ozone (O3), nitrogen dioxide (NO2), sulfur dioxide (SO2) and black carbon particulate matter, by means of absorbance of ultraviolet (UV), visible or infrared (IR) light. The optical bench makes use of modular components (tubes and mirror assemblies) that allow construction of path lengths of up to 2 meters or more while maintaining low detection cell volumes) comprising:
an ozone source (referred to as zone generator [Para 0053]) for oxidizing nitric oxide within a sample to form NO2 (See Para 0055…where NO reacts with ozone to form NO2.); and
one or more light adsorption measurement systems (See Para 0019… an inexpensive, non-collimated light source with low noise such as a light emitting diode (LED) for the absorbance measurement; Also See Para 0021… The light source may be a LED) for determining NO2 levels in the sample (See Para 0026… method for measuring the concentration of NO2 in a sample gas using a folded tubular photometer) in the nitric oxide analyzer (referred to as modular Folded Tubular Photometer [Abstract; Para 0015;; See Para 0030… Folded Tubular Photometer for measuring the concentrations of analytes in a sample gas) before and after oxidizing (See Para 0032… FIG. 3 is a schematic diagram showing the three-way valve states for measuring (a) Io for NO2; (b) I for NO2 and Io for NO; and (c) I for NO. As described in more detail below, the corresponding values of Io and I may be used to quantify NO2 (without ozone added) and NO (with ozone added); See Para 0025…NO in the sample gas may be converted to NO2 by reaction with ozone prior to entering the optical path of the detection cell).
In addition, Claim 1 recites a sensor, an ozone source, one or more light adsorption measurement systems and nitric oxide analyzer and then recites how they function. Claim 1 is an apparatus claim and MPEP 2114 recites that "[A]pparatus 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).
Regarding Claim 2, Birks teaches wherein the light adsorption measurement system (See Para 0019… an inexpensive, non-collimated light source with low noise such as a light emitting diode (LED) for the absorbance measurement; Also See Para 0021… The light source may be a LED) comprises a light source (See Para 0019… an inexpensive, non-collimated light source with low noise such as a light emitting diode (LED) for the absorbance measurement; Also See Para 0021… The light source may be a LED) positioned to pass light (See Para 0019…a narrow range of wavelengths of ultraviolet (UV), visible, or infrared (IR) light that are selectively absorbed by that analyte.) through the sample (See Abstract… measure the concentrations of gas-phase species and/or particles, including especially air pollutants such as ozone (O3), nitrogen dioxide (NO2), sulfur dioxide (SO2) …) within the sensor (See Abstract… use of a modular Folded Tubular Photometer).
In addition, Claim 2 recites a sensor, one or more light adsorption measurement system and light source and then recites how these structures function. Claim 2 is an apparatus claim and MPEP 2114 recites that "[A]pparatus 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).
Regarding Claim 3, Birks teaches that a light sensor (referred to as the detector may be a photodiode [Para 0021]) positioned to receive light (See Abstract… measure the concentrations of gas-phase species and/or particles, including especially air pollutants such as ozone (O3), nitrogen dioxide (NO2), sulfur dioxide (SO2) …) from the light source (See Para 0019… an inexpensive, non-collimated light source with low noise such as a light emitting diode (LED) for the absorbance measurement; Also See Para 0021… The light source may be a LED) passed through the sample (See Abstract… measure the concentrations of gas-phase species and/or particles, including especially air pollutants such as ozone (O3), nitrogen dioxide (NO2), sulfur dioxide (SO2) …) within the sensor (See Abstract… use of a modular Folded Tubular Photometer).
In addition, Claim 3 recites a light sensor, light source and a sensor and then recites how these structures function. Claim 3 is an apparatus claim and MPEP 2114 recites that "[A]pparatus 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).
Regarding Claim 4, Birks teaches that the light source (See Para 0019… an inexpensive, non-collimated light source with low noise such as a light emitting diode (LED) for the absorbance measurement; Also See Para 0021… The light source may be a LED) emits light (See Para 0026…a light source which emits light at wavelengths that are absorbed by NO2 and a light detector which measures light intensity) having a wavelength of about 350 nm to about 400 nm (See Para 0048… LEDs are readily available with emissions ranging from about 250 nm in the ultraviolet to about 950 nm in the infrared; See Para 0026… the light source may have a maximum emission wavelength near 405 nm).
Regarding Claim 5, Birks teaches that the light source (See Para 0019… an inexpensive, non-collimated light source with low noise such as a light emitting diode (LED) for the absorbance measurement; Also See Para 0021… The light source may be a LED) comprises one or more LEDs (See Para 0019… an inexpensive, non-collimated light source with low noise such as a light emitting diode (LED) for the absorbance measurement; Also See Para 0021… The light source may be a LED).
Regarding Claim 6, Birks teaches a processor (referred to as a Teledyne API CAPS Model T500U (lower data line) [Para 0035, 0070-0071]; it is known that Teledyne API CAPS Model T500U has software as evidenced by Teledyne Brochure; which will implicitly require a processor to function) configured to receive adsorption data (See Para 0035…a Teledyne API CAPS Model T500U (lower data line) and a Folded Tubular Photometer (upper data line). Data for the Folded Tubular Photometer are offset for clarity by adding 50 ppb to the measurements) from the one or more light adsorption measurement systems (See Para 0019… an inexpensive, non-collimated light source with low noise such as a light emitting diode (LED) for the absorbance measurement; Also See Para 0021… The light source may be a LED) and determine an NO2 level therefrom (See Para 0035… ambient NO2 concentration measured outdoors).
Regarding Claim 7, Birks teaches that the sensor (See Abstract… use of a modular Folded Tubular Photometer) comprises one or more mirrors for reflecting light (See Para 0024…For example, the one or more reflective elements may be formed by one or more mirror modules containing one or more mirrors which redirect light emitted from the one or more light sources to the light detector) to pass through the sample (See Para 0026… method for measuring the concentration of NO2 in a sample gas using a folded tubular photometer) one or more times before entering the light sensor (referred to as the detector may be a photodiode [Para 0021]), thereby increasing the beam length for measurement of low concentrations of NO2. (See Para 0046…The mirrors fold the optical path so as increase the sensitivity of the measurement by increasing the path length).
In addition, Claim 7 recites a sensor, one or more mirrors and the light sensor. Claim 7 is an apparatus claim and MPEP 2114 recites that "[A]pparatus 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).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over by Birks et al. (US20190226987A1, submitted in IDS on 06/04/2026).
Regarding Claim 8, Birks teaches that a first light adsorption measurement system (See Para 0019… an inexpensive, non-collimated light source with low noise such as a light emitting diode (LED) for the absorbance measurement; Also See Para 0021… The light source may be a LED) is positioned near of the ozone source (referred to as zone generator [Para 0053]) and a second light adsorption measurement system (See Para 0048…For this purpose, multiple LEDs may be combined using either dichroic mirrors or fiber optics, and the LEDs switched on and off to measure multiple species (e.g., SO2 at 290 nm and NO2 at 405 nm in the same air sample) or to characterize the light-absorbing components of an aerosol as black carbon (e.g., extinction near 880 nm) or brown carbon (e.g., extinction near 370 nm).) is positioned near of the ozone source (referred to as zone generator [Para 0053]).
Birks does not teach the arrangement of being “positioned upstream” and “positioned downstream”.
However, one having ordinary skill in the art at the time the invention was made would recognize this structural arrangement limitation as nothing more than a rearrangement of parts to effect the determination of the optimal structural configuration towards the optical path and light coupling efficiency inside the gas photometer, directly influencing the system's detection limit, baseline drift, and signal-to-noise ratio, as this structural rearrangement has been held to be an obvious matter of design choice. Please see In re Japikse, 181 F.2d 1019, 86 USPQ 70 (CCPA 1950), In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975) and MPEP 2144.04(VI) (C) for further details.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to channels being perpendicular to the direction of the path ,facilitating benefits such as device compactness, to provide desired optimal performance.
Regarding Claim 9, the sensor of claim 8 is obvious over Birks.
Birks further teaches wherein the processor (referred to as a Teledyne API CAPS Model T500U (lower data line) [Para 0035, 0070-0071]; it is known that Teledyne API CAPS Model T500U has software as evidenced by Teledyne Brochure; which will implicitly require a processor to function) is in communication with the ozone source (referred to as zone generator [Para 0053]) and is configured to control ozone introduction (See Para 0053…an on/off valve 122, to bypass the ozone generator 123 and mix with the sample air stream) to the sample (referred to as NO2 [Para 0032]) through a valve or pump ( See Para 0053…valve 122;See Para 0032…the three-way valve …) and to determine NO2 levels before and after introducing ozone to the sample (“NO’) (See Para 0032…the three-way valve states for measuring (a) Io for NO2; (b) I for NO2 and Io for NO; and (c) I for NO. As described in more detail below, the corresponding values of Io and I may be used to quantify NO2 (without ozone added) and NO2 (with ozone added)).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to OYELEYE ALEXANDER ALABI whose telephone number is (571)272-1678. The examiner can normally be reached on M-F 7:30am-5:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Lyle Alexander can be reached on (571) 272-1254. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/OYELEYE ALEXANDER ALABI/ Examiner, Art Unit 1797
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