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 Arguments
Applicant's amendments and arguments, filed 5/26/2026, regarding the rejection of claims 1 – 7, 9 and 10 under 35 U.S.C. 102(a)(2) as being anticipated by Suhr et al. (US 2021/0239671 A1; hereinafter “Suhr”), have been fully considered but they are not persuasive. Applicant alleges that Suhr does not anticipate the claimed invention. Examiner respectfully disagrees. Regarding claim 1, in particular, Applicant alleges that the spectrometer disclosed by Suhr cannot anticipate the recited detection unit. However, Suhr explicitly teaches in paragraph 33 that the detection unit comprising the spectrometer can detect particular intensities of the out-coupled light “… at one or more particular frequencies and in particular at a plurality of frequencies varying over a range. Such spectrometers for wavelengths that may lie in the visible frequency range (VIS), in the infrared frequency range (IR or NIR) or in the ultraviolet frequency range (UV) are known[.] (emphasis added)” This disclosure by Suhr of these wavelength ranges is interpreted to cover the wavelength spectrum in the range of 1350 to 2500 nm as claimed. Suhr further clearly teaches multiple wavelength ranges can be used (paragraph 67). Suhr states that “[t]he light source used within the light in-coupling 31 is adapted to the wavelength range to be measured and may comprise, for example, an incandescent bulb or a light-emitting diode as the light source.” (paragraph 33). Therefore, the light source taught by Suhr is considered capable of emitting a continuous wavelength spectrum light in the range of 1350 nm to 2500 nm as claimed. Suhr additionally teaches in paragraph 46 that [l]ight scattered by the milk 53 in the measurement region 25 partially exits through the light out-coupling window 27 and enters the light guide 33 of the light out-coupling 32 for further evaluation in the aforementioned spectrometer. (emphasis added)” Therefore, the spectrometer implicitly further comprises a means for processing or spectrally decomposing the received light. Consequently, the spectrometer taught by Suhr is considered clearly capable of detecting, or being specifically configured to detect, the recited spectral range as claimed. Since Suhr clearly teaches that multiple frequencies varying over a range can be used during operation, the prior art spectrometer is considered capable of, or being configured to, operate to determine a multiplicity of individual spectral values within a continuous spectrum of light as claimed. Furthermore, there is no reason to suggest to a person of ordinary skill in the art that including a detection unit comprising such a spectrometer that functions in the claimed manner would not have been suitable or not predictable. The Applicant has not shown objective factual evidence that the incorporation and use of a detection unit comprising a spectrometer functioning in the manner as claimed with the apparatus for analyzing milk would have yielded an unexpected result or was beyond the skill of, or uniquely challenging to, a person of ordinary skill in the art. An argument does not replace evidence, where evidence is necessary (see MPEP § 2145). The Courts have held that the arguments of counsel cannot take the place of evidence in the record. See In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965); & In re Geisler, 116 F.3d 1465, 43 USPQ2d 1362 (Fed. Cir. 1997). Moreover, this position is merely attorney argument lacking evidentiary support. See Gemtron Corp. v. Saint-Gobain., 572 F.3d 1371, 1380 (Fed. Cir. 2009) (noting that “unsworn attorney argument … is not evidence”). These same arguments to independent claims 5 and 7 as well. Therefore, this rejection of claims 1 – 7, 9 and 10 under 35 U.S.C. 102(a)(2) as being anticipated by Suhr is maintained. Applicant provided no substantive arguments in rebuttal of the additional prior art rejections of the dependent claims, and therefore, these dependent prior art rejections are maintained as well.
Note Regarding Prior Art
Examiner cites particular sections, columns, line numbers, paragraphs and figures, in the references as applied to the claims below for the convenience of the applicant. Although the specified citations are representative of the teachings in the art and are applied to the specific limitations within the individual claim, other passages and figures may apply as well. It is respectfully requested that, in preparing responses, the applicant fully consider the references in their entirety as potentially teaching all or part of the claimed invention, as well as the context of the passage as taught by the prior art or disclosed by the examiner.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1 – 7, 9 and 10 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Suhr et al. (US 2021/0239671 A1; hereinafter “Suhr”).
Regarding claim 1, Suhr throughout the publication teaches an apparatus (a measuring arrangement comprising a main channel 10 having an inlet 11 for connection to a milk line and through which milk enters the measuring arrangement; paragraphs 27 – 33; figure 1) for analyzing milk, comprising:
a line portion (measurement channel 20) for the milk;
a light source unit (measuring device 30 comprises a light in-coupling 31 by means of which light can be radiated into the interior of the measurement channel 20 through a window; paragraph 32), which emits light into the line portion (20), wherein the continuous wavelength spectrum covers wavelengths in the range of 1350 to 2500 nm (paragraphs 33 and 67);
a detection unit (a spectrometer connected to light guide 33 and light out-coupling 32 which is connected to the measurement channel 20; paragraphs 32 and 33) for the spectrally resolved capture of light emerging from the line portion (20), wherein the detection unit comprises means for spectrally decomposing the light (implicit in paragraph 46) and covers the entire spectral range from 1350 to 2500 nm to determine a multiplicity of individual spectral values within the continuous wavelength spectrum of the light source unit in the spectral range from 1350 to 2500 nm (paragraphs 33 and 67); and
an evaluation unit (it is implicit that an evaluation unit is included that provides information about the properties of the measured milk; paragraphs 46 – 48) configured to analyze the milk with regard to constituents on the basis of signals from the detection unit.
The express, implicit, and inherent disclosures of a prior art reference may be relied upon in the rejection of claims under 35 U.S.C. 102 or 103. “The inherent teaching of a prior art reference, a question of fact, arises both in the context of anticipation and obvious-ness.” In re Napier, 55 F.3d 610, 613, 34 USPQ2d 1782, 1784 (Fed. Cir. 1995) (affirmed a 35 U.S.C. 103 rejection based in part on inherent disclosure in one of the references). See also In re Grasselli, 713 F.2d 731, 739, 218 USPQ 769, 775 (Fed. Cir. 1983) (see MPEP § 2112). “A claim is anticipated only if each and every ele-ment as set forth in the claim is found, either expressly or inherently described, in a single prior art reference.” Verdegaal Bros. v. Union Oil Co. of Cali-fornia, 814 F.2d 628, 631, 2 USPQ2d 1051, 1053 (Fed. Cir. 1987) (see MPEP § 2131).
Regarding claim 2, Suhr teaches the apparatus as claimed in claim 1, furthermore having a main line (main milk stream 51 in first portion 12), wherein the line portion (measurement channel 20) branches off from the main line (at inlet region 21) and leads into the main line (at run-offs 24a and 24b) (paragraphs 27 – 43; figures 1 and 2).
Regarding claim 3, Suhr teaches the apparatus as claimed in claim 2, wherein the line portion leads into the main line (main milk stream 51 in first portion 12 and second portion 13) via a first opening (lower run-off 24a) and a second opening (upper run-off 24b), and wherein the first opening and the second opening are arranged at a distance from one another in a height direction (paragraph 37; figure 2).
Regarding claim 4, Suhr teaches the apparatus as claimed in claim 1, wherein the light source unit comprises a thermionic emission source (light source 311 (an incandescent bulb); paragraphs 33, 45 and 67; figure 3).
Regarding claim 5, Suhr teaches an arrangement comprising:
a milking device (it is implicit that the disclosed arrangement is connected to a milking device; Abstract; paragraphs 2 and 7);
an apparatus for analyzing milk (a measuring arrangement comprising a main channel 10 having an inlet 11 for connection to a milk line and through which milk enters the measuring arrangement; paragraphs 27 – 33; figure 1), the apparatus including:
a line portion (measurement channel 20) for the milk;
a light source unit (measuring device 30 comprises a light in-coupling 31 by means of which light can be radiated into the interior of the measurement channel 20 through a window; paragraph 32), which emits light into the line portion (20), wherein the continuous wavelength spectrum covers wavelengths in the range of 1350 to 2500 nm (paragraphs 33 and 67);
a detection unit (a spectrometer connected to light guide 33 and light out-coupling 32 which is connected to the measurement channel 20; paragraphs 32 and 33) for the spectrally resolved capture of light emerging from the line portion (20), wherein the detection unit comprises means for spectrally decomposing the light (implicit in paragraph 46) and covers the entire spectral range from 1350 to 2500 nm to determine a multiplicity of individual spectral values within the continuous wavelength spectrum of the light source unit in the spectral range from 1350 to 2500 nm (paragraphs 33 and 67); and
an evaluation unit (it is implicit that an evaluation unit is included that provides information about the properties of the measured milk; paragraphs 46 – 48) configured to analyze the milk with regard to constituents on the basis of signals from the detection unit, wherein the milking device is connected to the line portion of the apparatus.
Regarding claim 6, Suhr teaches the arrangement as claimed in claim 5, wherein the apparatus furthermore has a main line (main milk stream 51 in first portion 12), wherein the line portion (measurement channel 20) branches off from the main line (at inlet region 21) and leads into the main line (at run-offs 24a and 24b) (paragraphs 27 – 43; figures 1 and 2).
Regarding claim 7, Suhr teaches a method for analyzing milk in a line portion (measurement channel 20) (paragraphs 27 – 46; figures 1 and 2), comprising:
a) guiding light (measuring device 30 comprises a light in-coupling 31 by means of which light can be radiated into the interior of the measurement channel 20 through a window; paragraph 32) with a continuous wavelength spectrum into the line portion (measurement channel 20), wherein the continuous wavelength spectrum covers wavelengths in the range of 1350 to 2500 nm (paragraphs 33 and 67),
b) spectrally resolved detection of light (via a spectrometer connected to light guide 33 and light out-coupling 32 which is connected to the measurement channel 20; paragraphs 32 and 33) emerging from the line portion (measurement channel 20), wherein the light is spectrally decomposed to determine a multiplicity of individual spectral values (implicit in paragraph 46) within the continuous wavelength spectrum in the spectral range from 1350 to 2500 nm (paragraphs 33 and 67),
c) analyzing the milk with regard to constituents on the basis of the light detected in accordance with step b) (it is implicit that an evaluation unit is included that further analyzes the milk and provides information about the properties of the measured milk; paragraphs 46 – 48).
Regarding claim 9, Suhr teaches the method as claimed in claim 7, wherein the milk proceeding from a milking device (it is implicit that the disclosed arrangement is connected to a milking device; Abstract; paragraphs 2 and 7) is guided through the line portion (milk is guided into measurement channel 20 via inlet region 21; paragraph 37; figure 2).
Regarding claim 10, Suhr teaches the method as claimed in claim 7, wherein the following steps are carried out cyclically (the measurement process can be performed cyclically; paragraphs 15 and 64):
A) collecting milk in the line portion (milk is guided into measurement channel 20 via inlet region 21; paragraph 37; figure 2),
B) analyzing the milk situated in the line portion in accordance with steps a) to c) (it is implicit that an evaluation unit is included that further analyzes the milk and provides information about the properties of the measured milk; paragraphs 46 – 48); and
C) discharging the milk analyzed in step B) from the line portion (milk is discharged from the measurement channel 20 at upper run-off 24b and lower run-off 24a; figure 2; paragraph 37).
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.
Claim(s) 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Suhr et al. (US 2021/0239671 A1; hereinafter “Suhr”) in view of Desphande et al. (US 2020/0363333 A1; hereinafter “Desphande”).
Regarding claim 8, Suhr does not specifically teach the method as claimed in claim 7, wherein an evaluation algorithm is created by machine learning before step c), and wherein the milk is analyzed using the evaluation algorithm in step c).
However, Desphande teaches related methods and systems for analyzing milk utilizing a neural network or other machine-learning tool to process scattering measurement data and to perform determinations about the characteristics of milk (Abstract; paragraphs 116 – 119; claims 6 – 8). The use of an evaluation algorithm created by a machine learning tool would have been considered to be suitable and predictable to a person of ordinary skill in the art for milk sample analysis as indicated by Desphande. The combination of familiar elements is likely to be obvious when it does no more than yield predictable results (see MPEP § 2143, A.). Therefore, it would have been obvious to a person of ordinary skill in the art before the effective filing date of the claimed invention to provide wherein an evaluation algorithm is created by machine learning before step c), and wherein the milk is analyzed using the evaluation algorithm in step c).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 BRIAN J. SINES whose telephone number is (571)272-1263. The examiner can normally be reached 9 AM-5 PM EST M-F.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Lyle Alexander can be reached at (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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BRIAN J. SINES
Primary Patent Examiner
Art Unit 1796
/BRIAN J. SINES/Primary Examiner, Art Unit 1796
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