NON-FINAL REJECTION
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 Arguments
Applicant’s arguments with respect to claim(s) 1-25 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claim 1-25 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-29 of copending Application No. 18/272,269 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claims of the instant invention are met as set for and/or obvious in view of the copending claims (see table below).
Instant invention claim
Copending application claim
1
1 and 29
2
1
3
1
4
1
5
3 and 4
6
5
7
7
8
1
9
12 and 13
10
9
11
10
12
11
13
12-14
14
15
15
16
16
21
17
18
18
24
19
1 and 29
20
12 and 13
21
19
22
25 and 26
23
25 and 26
24
27
25
28
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-11, 16-18, and 22-25 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Horowitz et al. U.S. Patent Application Publication 2006/0137467.
With respect to claims 1 and 22-25, Horowitz teaches a first optical grating (optical grating 221); a second optical grating (optical grating 211) overlapping the first optical grating such that the first optical grating and second optical grating form a Moiré fringe pattern (paragraphs 40-41, figure 2), wherein the second optical grating is displaceable relative to the first optical grating in response to a wall shear stress imparted on the sensor (under shear stress the floating element 110 deflects laterally, paragraph 33, 37), and wherein displacement of the second optical grating correlates with a phase shift in the Moiré fringe pattern (paragraph 46); an incident light source (incident incoherent light, figure 2) configured to (the phrase “configured to” is interpreted as “able to” where there is a lack of structural elements described) sequentially illuminate a plurality of discrete locations distributed across the Moiré fringe pattern (The respective gratings 211 and 221 superimpose to form a Moiré fringe when irradiated by incident light which amplifies the translation of the floating element 215, paragraph 40. Further, the incident incoherent light is interpreted as being able to sequentially illuminate the pattern as the light source is tied to a controlling computer which is able to control the output of the light source, figure 7.); and a photodetector (CCD camera, paragraph 36) configured to (the phrase “configured to” is interpreted as “able to” where there is a lack of structural elements described) detect light intensity reflected from each discrete location on the Moiré fringe pattern (paragraph 36, figure 7). Further, Horowitz teaches wherein the processor is configured to (the phrase “configured to” is interpreted as “able to” where there is a lack of structural elements described): receive a signal from the photodetector indicative of detected light intensity at each discrete location (paragraph 36); analyze the received data to determine a shape and position of the Moiré fringe pattern (paragraph 36); calculate, from the shape and position, a phase shift of the Moiré fringe pattern (paragraph 36); and determine, using the calculated phase shift, a displacement of the second optical grating with respect to the first optical grating and a corresponding wall shear stress imparted on the sensor (paragraphs 33-37).
With respect to claim 2, Horowitz teaches a substrate (support substrate 222) supporting the first optical grating (figure 2).
With respect to claim 3, Horowitz teaches wherein the first optical grating is fixed (figure 2).
With respect to claim 4, Horowitz teaches a floating element (floating element 215) supporting the second optical grating (figure 2).
With respect to claim 5, Horowitz teaches wherein the floating element is configured for translational movement with respect to the substrate (paragraph 30).
With respect to claim 6, Horowitz teaches at least one micro-spring configured to allow translational movement of the floating element with respect to the substrate (the floating element is in an optical path with, such as being suspended over with the first grating and flexibly connected to the substrate with compliant springs, paragraph 30).
With respect to claim 7, Horowitz teaches wherein the micro-spring is a clamped micro-spring or a serpentine micro-spring (springs are interpreted as clamped springs, paragraph 30, figure 2).
With respect to claim 8, Horowitz teaches wherein the first and second optical grating are positioned in the same optical path (figure 2).
With respect to claim 9, Horowitz teaches wherein the incident light source is configured to sequentially illuminate the plurality of discrete locations at a frequency of from 100 Hertz to 500 Megahertz (interpreted the patterns being line scanned at 1khz, paragraph 58)
With respect to claim 10, Horowitz teaches wherein the incident light source is configured to project a focused light spot onto each discrete location (the light is “able to” focus the light, figure 7).
With respect to claim 11, Horowitz teaches wherein the focused light spot is from order 1 micron to order 100 microns in diameter (the light it “able to” project a focused light of the claimed size, figure 7).
With respect to claim 16, Horowitz teaches wherein the photodetector is positioned to directly receive light reflected from the plurality of discrete locations on the Moiré fringe pattern (figure 7).
With respect to claim 17, Horowitz teaches wherein an output from the photodetector is indicative of detected light intensity (paragraph 36).
With respect to claim 18, Horowitz teaches wherein the wall shear stress sensor is a micro-electro-mechanical-system wall shear stress sensor (paragraph 14).
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.
Claim(s) 12-15 and 19-21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Horowitz et al. U.S. Patent Application Publication 2006/0137467 in view of Johansen et al. 2017/0016931.
With respect to claims 12-15 and 19-21, Horowitz teaches a first optical grating (optical grating 211); a second optical grating (optical grating 221) overlapping the first optical grating such that the first optical grating and second optical grating form a first Moiré fringe pattern (paragraphs 40-41, figure 2), wherein the second optical grating is displaceable relative to the first optical grating in response to a wall shear stress imparted on the sensor (under shear stress the floating element 110 deflects laterally, paragraph 33, 37), and wherein displacement of the second optical grating correlates with a phase shift in the first Moiré fringe pattern (paragraph 46); an incident light source (incident incoherent light, figure 2) configured to (the phrase “configured to” is interpreted as “able to” where there is a lack of structural elements described) sequentially illuminate a plurality of discrete locations distributed across the first Moiré fringe pattern (The respective gratings 211 and 221 superimpose to form a Moiré fringe when irradiated by incident light which amplifies the translation of the floating element 215, paragraph 40. Further, the incident incoherent light is interpreted as being able to sequentially illuminate the pattern as the light source is tied to a controlling computer which is able to control the output of the light source, figure 7.); and a first photodetector (CCD camera, paragraph 36) configured to (the phrase “configured to” is interpreted as “able to” where there is a lack of structural elements described) detect light intensity reflected from each discrete location on the first Moiré fringe pattern (paragraph 36, figure 7).
Horowitz fails to teach a third optical grating, and a fourth optical grating overlapping the third optical grating such that the third optical grating and fourth optical grating form a second Moiré fringe pattern; wherein the third optical grating is displaceable relative to the fourth optical grating in a second direction, and wherein displacement of the fourth optical grating correlates with a phase shift in the second Moiré fringe pattern; an incident light source configured to sequentially illuminate a plurality of discrete locations distributed across each of the second Moiré fringe patterns; and a second photodetector configured to detect light intensity reflected from each discrete location on the second Moiré fringe pattern, wherein the incident light source comprises a plurality of light sources, each light source configured to illuminate one of the plurality of discrete locations distributed across the Moiré fringe pattern, wherein the incident light source further comprises a fibre optic cable extending from each light source to direct light towards a corresponding discrete location on the Moiré fringe pattern, and wherein the incident light source further comprises at least one optical lens positioned between the plurality of light sources and the Moiré fringe pattern and configured to focus light from the plurality of light sources onto the plurality of discrete locations.
Johansen teaches a displacement sensor device where one photodetector adapted to measure the light intensity diffracted in one or several diffraction orders giving a measurement of the position of a surface relative to the other in a direction in-plane with the two surfaces, where the light to from a lightsource and photodectors may be transmitted through at least one optical fibers, and at least two light sources may be used to illuminate each diffraction patter pair in order to cancel fluctuation in illumination intensity (paragraph 128), and one or several optical fibers for collection of the optical signals, and the system can be designed so that the diffractive patterns send signals with different wavelengths to a common optical fiber, which then allows separation of these optical signals (the optical fiber being used for the light source and detectors, paragraph 46 and 115). Further, Johansen ’31 teaches a point light source (such as VCSEL) and a photodetector placed so that light diffracted in the −1st order is focused onto, making possible a high throughput without the use of additional components such as lenses (interpreted as focuses light, paragraph 38).
Accordingly, it would have been obvious to one having ordinary skill in the art at the time the invention was made to modify sensor device of Horowitz and provide several diffraction order patterns that are illuminated and detected with an additional light sources having lens and photodetectors as taught by Johansen because the court held that mere duplication of parts has no patentable significance unless a new and unexpected result is produced In re Harza, 274 F.2d 669, 124 USPQ 378 (CCPA 1960) (MPEP 2144.04) and to provide a more accurate shear stress sensing system.
Conclusion
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FREDDIE KIRKLAND III
Primary Examiner
Art Unit 2855
/Freddie Kirkland III/Primary Examiner, Art Unit 2855 5/26/2026
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