DETAILED ACTION
National Stage Application
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 filed on 28 September 2023 does not fully comply with the requirements of 37 CFR 1.98 because: each publication listed in an information disclosure statement must be identified by publisher, author (if any), title, relevant pages of the publication, date (e.g., Cite No. C2 and Cite No. C4), and place of publication. The date of publication supplied must include at least the month and year of publication, except that the year of publication (without the month) will be accepted if the applicant points out in the information disclosure statement that the year of publication is sufficiently earlier than the effective U.S. filing date and any foreign priority date so that the particular month of publication is not in issue. Since the submission appears to be bona fide, applicant is given ONE (1) MONTH from the date of this notice to supply the above mentioned omissions or corrections in the information disclosure statement. NO EXTENSION OF THIS TIME LIMIT MAY BE GRANTED UNDER EITHER 37 CFR 1.136(a) OR (b). Failure to timely comply with this notice will result in the above mentioned information disclosure statement being placed in the application file with the noncomplying information not being considered. See 37 CFR 1.97(i).
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant's cooperation is requested in correcting any errors of which applicant may become aware in the specification.
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.
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 at the time any inventions covered therein were effectively filed 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 at the time a later invention was effectively filed 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.
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 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 of this title, 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) 16-19, 23, 24, and 27-35 is/are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Hell et al. (US 2019/0011367).
In regard to claim 16, Hell et al. disclose a method for determining a position of at least one emitter in a sample, wherein according to at least one measuring parameter, the sample is illuminated by activation light to activate at least one emitter, such that the at least one emitter emits emission light when excited by excitation light (e.g., “… Depending on the selection of the switchable luminescence markers, this active state may require or at least make it suitable that, prior to or temporarily overlapping with directing the light to the sample, switch on light is directed onto the respective one of the scan areas, which switches on the switchable luminescence markers into their active state … luminescence activation light which transfers the luminescence markers out of a dark state into a state excitable for luminescence, i.e. activates the luminescence markers … switch on light source for switch on light may be provided, which switches the switchable luminescence markers into their active state …” in paragraphs 74, 77, and 86), and in at least one localization step:
(a) the sample is illuminated by an excitation light intensity distribution of the excitation light to excite the at least one emitter, wherein the excitation light intensity distribution comprises a local minimum flanked by maxima (e.g., “… method according to the invention may make use of the method known as MINFLUX. In MINFLUX, a zero point of a light intensity distribution of excitation light is positioned at four different positions in the sample, and the intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane …” in paragraph 60);
(b) the excitation light intensity distribution is positioned at a plurality of probing positions determined based on an initial position value (e.g., “… zero point of a light intensity distribution of excitation light is positioned at four different positions in the sample …” in paragraph 60);
(c) an emission signal from the at least one emitter is detected for each of the probing positions (e.g., “… intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane …” in paragraph 60);
(d) at least one final position value is determined from the emission signals and the associated probing positions (e.g., “… intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane …” in paragraph 60); and
(e) a position of the at least one emitter is estimated based on the at least one final position value (e.g., “… intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane …” in paragraph 60),
wherein a speed parameter is adjusted by a user input wherein the at least one measuring parameter is adjusted based on the adjusted speed parameter, and wherein an average time between a start of the illumination of the sample by the activation light and the estimation of the position of the at least one emitter depends on the speed parameter (e.g., “… method according to the invention also allows for faster repetitions of scanning the scan areas with the zero point … Depending on the selection of the switchable luminescence markers, this active state may require or at least make it suitable that, prior to or temporarily overlapping with directing the light to the sample, switch on light is directed onto the respective one of the scan areas, which switches on the switchable luminescence markers into their active state …” in paragraphs 57 and 74 or alternatively it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to configure the “switch on light” to be “temporarily overlapping” “scanning the scan areas with the zero point” from an initial configuration based on user input of a “selection of the switchable luminescence markers” parameter, in order to achieve “faster repetitions of scanning the scan areas with the zero point”).
In regard to claim 17 which is dependent on claim 16, Hell et al. also disclose that in a search step prior to the at least one localization step, the sample is illuminated by the activation light to activate the at least one emitter, the sample is illuminated by the excitation light to excite the at least one emitter, a further emission signal from the at least one emitter is detected, and the initial position value of the at least one emitter is determined based on the further emission signal (e.g., “… method according to the invention may make use of the method known as MINFLUX. In MINFLUX, a zero point of a light intensity distribution of excitation light is positioned at four different positions in the sample, and the intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane … When being switched on and/or off, switchable luminescence markers often emit luminescence light. This luminescence light may be registered and evaluated. The goal of this evaluation may, for example, be a decision … whether the respective one of the scan areas is not at all subjected to excitation light as the low intensity of the luminescence light registered while switching on and/or off indicates that there is no relevant concentration of luminescence markers …” in paragraphs 60 and 75 or alternatively it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide excitation light to excite “switchable luminescence markers” that do not “emit luminescence light” when “switched on and/or off” for an initial position value determined based automatically followed by “a zero point of a light intensity distribution of excitation light is positioned at four different positions in the sample, and the intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane”).
In regard to claim 18 which is dependent on claim 16, Hell et al. also disclose that in case the speed parameter has been adjusted to a value indicating a slow operating mode, the intensity of the activation light is adjusted, such that an average of one emitter is activated in a reference volume within the maxima of the excitation light distribution, and wherein in case the speed parameter has been adjusted to a value indicating a fast operating mode, the intensity of the activation light is adjusted in the search step, such that an average of at least two emitters are activated in the reference volume (e.g., “… When being switched on and/or off, switchable luminescence markers often emit luminescence light. This luminescence light may be registered and evaluated. The goal of this evaluation may, for example, be a decision … whether the respective one of the scan areas is not at all subjected to excitation light as the low intensity of the luminescence light registered while switching on and/or off indicates that there is no relevant concentration of luminescence markers …” in paragraph 75 or alternatively it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to configure “switch on light” intensity, in order to obtain a “relevant concentration of luminescence markers” such as an average of at least two emitters are activated in a reference volume within the maxima of the excitation light distribution so as to achieve “faster repetitions of scanning the scan areas with the zero point”).
In regard to claim 19 which is dependent on claim 17, Hell et al. also disclose that in case the speed parameter has been adjusted to a value indicating a slow operating mode, the intensity of the activation light is adjusted in the search step, such that an average of one emitter is activated in a reference volume within the maxima of the excitation light distribution, and wherein in case the speed parameter has been adjusted to a value indicating a fast operating mode, the intensity of the activation light is adjusted in the search step, such that an average of at least two emitters are activated in the reference volume (e.g., “… When being switched on and/or off, switchable luminescence markers often emit luminescence light. This luminescence light may be registered and evaluated. The goal of this evaluation may, for example, be a decision … whether the respective one of the scan areas is not at all subjected to excitation light as the low intensity of the luminescence light registered while switching on and/or off indicates that there is no relevant concentration of luminescence markers …” in paragraph 75 or alternatively it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to configure “switch on light” intensity, in order to obtain a “relevant concentration of luminescence markers” such as an average of at least two emitters are activated in a reference volume within the maxima of the excitation light distribution so as to achieve “faster repetitions of scanning the scan areas with the zero point”).
In regard to claim 23 which is dependent on claim 16, Hell et al. also disclose that in case the detected emission signal exceeds a background emission signal, the activation light is automatically switched off, and the at least one localization step is automatically initiated (e.g., “… method according to the invention may make use of the method known as MINFLUX. In MINFLUX, a zero point of a light intensity distribution of excitation light is positioned at four different positions in the sample, and the intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane … Depending on the selection of the switchable luminescence markers, this active state may require or at least make it suitable that, prior to or temporarily overlapping with directing the light to the sample, switch on light is directed onto the respective one of the scan areas, which switches on the switchable luminescence markers into their active state … When being switched on and/or off, switchable luminescence markers often emit luminescence light. This luminescence light may be registered and evaluated. The goal of this evaluation may, for example, be a decision … whether the respective one of the scan areas is not at all subjected to excitation light as the low intensity of the luminescence light registered while switching on and/or off indicates that there is no relevant concentration of luminescence markers …” in paragraphs 60, 74, and 75 or alternatively it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to configure “being switched on and/or off, switchable luminescence markers often emit luminescence light” automatically followed “prior to or temporarily overlapping” by “a zero point of a light intensity distribution of excitation light is positioned at four different positions in the sample, and the intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane”).
In regard to claim 24 which is dependent on claim 17, Hell et al. also disclose that in case the further emission signal detected in the search step exceeds a background signal, the activation light is automatically switched off, and the at least one localization step is automatically initiated (e.g., “… method according to the invention may make use of the method known as MINFLUX. In MINFLUX, a zero point of a light intensity distribution of excitation light is positioned at four different positions in the sample, and the intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane … Depending on the selection of the switchable luminescence markers, this active state may require or at least make it suitable that, prior to or temporarily overlapping with directing the light to the sample, switch on light is directed onto the respective one of the scan areas, which switches on the switchable luminescence markers into their active state … When being switched on and/or off, switchable luminescence markers often emit luminescence light. This luminescence light may be registered and evaluated. The goal of this evaluation may, for example, be a decision … whether the respective one of the scan areas is not at all subjected to excitation light as the low intensity of the luminescence light registered while switching on and/or off indicates that there is no relevant concentration of luminescence markers …” in paragraphs 60, 74, and 75 or alternatively it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to configure “being switched on and/or off, switchable luminescence markers often emit luminescence light” automatically followed “prior to or temporarily overlapping” by “a zero point of a light intensity distribution of excitation light is positioned at four different positions in the sample, and the intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane”).
In regard to claim 27 which is dependent on claim 23, Hell et al. also disclose that the activation light is switched off and the at least one localization step is initiated within a response time of 50 μs or less after detection of the emission signal (e.g., “… method according to the invention may make use of the method known as MINFLUX. In MINFLUX, a zero point of a light intensity distribution of excitation light is positioned at four different positions in the sample, and the intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane … Depending on the selection of the switchable luminescence markers, this active state may require or at least make it suitable that, prior to or temporarily overlapping with directing the light to the sample, switch on light is directed onto the respective one of the scan areas, which switches on the switchable luminescence markers into their active state … When being switched on and/or off, switchable luminescence markers often emit luminescence light. This luminescence light may be registered and evaluated. The goal of this evaluation may, for example, be a decision … whether the respective one of the scan areas is not at all subjected to excitation light as the low intensity of the luminescence light registered while switching on and/or off indicates that there is no relevant concentration of luminescence markers …” in paragraphs 60, 74, and 75 or alternatively it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to configure “being switched on and/or off, switchable luminescence markers often emit luminescence light” automatically followed “prior to or temporarily overlapping” by “a zero point of a light intensity distribution of excitation light is positioned at four different positions in the sample, and the intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane”).
In regard to claim 28 which is dependent on claim 23, Hell et al. also disclose that the activation light is switched off and the at least one localization step is initiated within a response time of 20 μs or less after detection of the emission signal (e.g., “… method according to the invention may make use of the method known as MINFLUX. In MINFLUX, a zero point of a light intensity distribution of excitation light is positioned at four different positions in the sample, and the intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane … Depending on the selection of the switchable luminescence markers, this active state may require or at least make it suitable that, prior to or temporarily overlapping with directing the light to the sample, switch on light is directed onto the respective one of the scan areas, which switches on the switchable luminescence markers into their active state … When being switched on and/or off, switchable luminescence markers often emit luminescence light. This luminescence light may be registered and evaluated. The goal of this evaluation may, for example, be a decision … whether the respective one of the scan areas is not at all subjected to excitation light as the low intensity of the luminescence light registered while switching on and/or off indicates that there is no relevant concentration of luminescence markers …” in paragraphs 60, 74, and 75 or alternatively it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to configure “being switched on and/or off, switchable luminescence markers often emit luminescence light” automatically followed “prior to or temporarily overlapping” by “a zero point of a light intensity distribution of excitation light is positioned at four different positions in the sample, and the intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane”).
In regard to claim 29 which is dependent on claim 18, Hell et al. also disclose that the intensity of the activation light is adjusted based on the detected emission signal (e.g., “… When being switched on and/or off, switchable luminescence markers often emit luminescence light. This luminescence light may be registered and evaluated. The goal of this evaluation may, for example, be a decision … whether the respective one of the scan areas is not at all subjected to excitation light as the low intensity of the luminescence light registered while switching on and/or off indicates that there is no relevant concentration of luminescence markers …” in paragraph 75 or alternatively it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to configure a “switch on light” intensity, in order to achieve a “relevant concentration of luminescence markers”).
In regard to claim 30 which is dependent on claim 23, Hell et al. also disclose that the intensity of the activation light is adjusted based on the detected emission signal (e.g., “… When being switched on and/or off, switchable luminescence markers often emit luminescence light. This luminescence light may be registered and evaluated. The goal of this evaluation may, for example, be a decision … whether the respective one of the scan areas is not at all subjected to excitation light as the low intensity of the luminescence light registered while switching on and/or off indicates that there is no relevant concentration of luminescence markers …” in paragraph 75 or alternatively it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to configure a “switch on light” intensity, in order to achieve a “relevant concentration of luminescence markers”).
In regard to claim 31, the cited prior art is applied as in claim 16 above. Hell et al. disclose a device for determining a position of at least one emitter in a sample by the method, comprising:
(a) an activation light source configured to illuminate a sample with activation light to activate at least one emitter, such that the at least one emitter emits emission light when excited by excitation light (e.g., “… Depending on the selection of the switchable luminescence markers, this active state may require or at least make it suitable that, prior to or temporarily overlapping with directing the light to the sample, switch on light is directed onto the respective one of the scan areas, which switches on the switchable luminescence markers into their active state … luminescence activation light which transfers the luminescence markers out of a dark state into a state excitable for luminescence, i.e. activates the luminescence markers … switch on light source for switch on light may be provided, which switches the switchable luminescence markers into their active state …” in paragraphs 74, 77, and 86);
(b) an excitation light source configured to illuminate the sample with the excitation light to excite the at least one emitter (e.g., “… zero point of a light intensity distribution of excitation light …” in paragraph 60);
(c) a light modulation device configured to generate an excitation light intensity distribution of the excitation light comprising a local minimum flanked by maxima (e.g., “… zero point of a light intensity distribution of excitation light … light shaper which directs the light onto the sample with an intensity distribution having a zero point and intensity maxima neighboring the zero point …” in paragraphs 60 and 81);
(d) an optical setup configured to illuminate the sample with the excitation light intensity distribution (e.g., “… zero point of a light intensity distribution of excitation light … scanning luminescence light microscope …” in paragraphs 60 and 81);
(e) at least one positioning device configured to position the excitation light distribution at a plurality of probing positions (e.g., “… zero point of a light intensity distribution of excitation light is positioned at four different positions in the sample … scanner to scan the partial area of the sample to be scanned with the zero point …” in paragraphs 60 and 81);
(f) a detector configured to detect an emission signal from the at least one emitter for each of the probing positions (e.g., “… intensity of the luminescence light from an individual luminescence marker is registered for these four positions … detector registering the luminescence light emitted out of the area of the zero point …” in paragraphs 60 and 81); and
(g) a computation device configured to determine the probing positions based on an initial position value, determine at least one final position value from the detected emission signals and the associated probing positions and estimate the position of the at least one emitter based on the at least one final position value (e.g., “… method according to the invention may make use of the method known as MINFLUX. In MINFLUX, a zero point of a light intensity distribution of excitation light is positioned at four different positions in the sample, and the intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane … When being switched on and/or off, switchable luminescence markers often emit luminescence light. This luminescence light may be registered and evaluated. The goal of this evaluation may, for example, be a decision whether a respective one of the scan areas delimited by a respective one of the respective neighboring areas is scanned with the zero point at all … controller for carrying out the method according to the invention …” in paragraphs 60, 75, and 81 or alternatively it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide a computation device in the “controller” in order to carry out “the method known as MINFLUX”),
wherein the device comprises a user interface configured to obtain a user input comprising an adjustment of a speed parameter, and a control device configured to adjust at least one measuring parameter based on the adjusted speed parameter, wherein an average time between a start of the illumination of the sample by the activation light and estimation of the position of the at least one emitter depends on the speed parameter (e.g., “… method according to the invention also allows for faster repetitions of scanning the scan areas with the zero point … Depending on the selection of the switchable luminescence markers, this active state may require or at least make it suitable that, prior to or temporarily overlapping with directing the light to the sample, switch on light is directed onto the respective one of the scan areas, which switches on the switchable luminescence markers into their active state …” in paragraphs 57 and 74 or alternatively it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide a control device in the “controller” so as to configure the “switch on light” to be “temporarily overlapping” “scanning the scan areas with the zero point” from an initial configuration based on user input of a “selection of the switchable luminescence markers” parameter to a user interface, in order to achieve “faster repetitions of scanning the scan areas with the zero point”).
In regard to claim 32 which is dependent on claim 31, Hell et al. also disclose that the control device is configured to adjust an intensity of the activation light, such that an average of at least two emitters are activated in a reference volume within the maxima of the excitation light distribution (e.g., “… When being switched on and/or off, switchable luminescence markers often emit luminescence light. This luminescence light may be registered and evaluated. The goal of this evaluation may, for example, be a decision … whether the respective one of the scan areas is not at all subjected to excitation light as the low intensity of the luminescence light registered while switching on and/or off indicates that there is no relevant concentration of luminescence markers …” in paragraph 75 or alternatively it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to configure the control device in the “controller” for a “switch on light” intensity, in order to achieve a “relevant concentration of luminescence markers” such as an average of at least two emitters are activated in a reference volume within the maxima of the excitation light distribution).
In regard to claim 33 which is dependent on claim 31, Hell et al. also disclose that the computation device is configured to determine the initial position value of the at least one emitter based on a further emission signal detected in a search step, wherein the control device is configured to receive an input signal from the detector upon detection of the further emission signal by the detector, wherein the control device is configured to automatically switch off the activation light and automatically initiate the localization step based on the input signal after detection of the emission signal by the detector (e.g., “… method according to the invention may make use of the method known as MINFLUX. In MINFLUX, a zero point of a light intensity distribution of excitation light is positioned at four different positions in the sample, and the intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane … When being switched on and/or off, switchable luminescence markers often emit luminescence light. This luminescence light may be registered and evaluated. The goal of this evaluation may, for example, be a decision … whether the respective one of the scan areas is not at all subjected to excitation light as the low intensity of the luminescence light registered while switching on and/or off indicates that there is no relevant concentration of luminescence markers …” in paragraphs 60 and 75 or alternatively it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to configure the “controller” for “the method known as MINFLUX” with an initial position value determined based “being switched on and/or off, switchable luminescence markers often emit luminescence light” automatically followed by “a zero point of a light intensity distribution of excitation light is positioned at four different positions in the sample, and the intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane”).
In regard to claim 34 which is dependent on claim 31, Hell et al. also disclose that the computation device is configured to determine the initial position value of the at least one emitter based on a further emission signal detected in a search step, wherein the control device is configured to receive an input signal from the detector upon detection of the further emission signal by the detector, wherein the control device is configured to automatically switch off the activation light and automatically initiate the localization step based on the input signal within a response time of 50 μs or less after detection of the emission signal by the detector (e.g., “… method according to the invention may make use of the method known as MINFLUX. In MINFLUX, a zero point of a light intensity distribution of excitation light is positioned at four different positions in the sample, and the intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane … Depending on the selection of the switchable luminescence markers, this active state may require or at least make it suitable that, prior to or temporarily overlapping with directing the light to the sample, switch on light is directed onto the respective one of the scan areas, which switches on the switchable luminescence markers into their active state … When being switched on and/or off, switchable luminescence markers often emit luminescence light. This luminescence light may be registered and evaluated. The goal of this evaluation may, for example, be a decision … whether the respective one of the scan areas is not at all subjected to excitation light as the low intensity of the luminescence light registered while switching on and/or off indicates that there is no relevant concentration of luminescence markers …” in paragraphs 60, 74, and 75 or alternatively it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to configure the “controller” for “the method known as MINFLUX” with an initial position value determined based “being switched on and/or off, switchable luminescence markers often emit luminescence light” automatically followed “prior to or temporarily overlapping” by “a zero point of a light intensity distribution of excitation light is positioned at four different positions in the sample, and the intensity of the luminescence light from an individual luminescence marker is registered for these four positions to determine the location of the individual luminescence marker in a sample plane”).
In regard to claim 35, the cited prior art is applied as in claim 16 above. Hell et al. disclose a non-transitory computer-readable medium for storing computer instructions for determining a position of at least one emitter in a sample that, when executed by one or more processors associated with a device for determining a position of at least one emitter in a sample causes the one or more processors to perform the method (e.g., “… method according to the invention may make use of the method known as MINFLUX … controller for carrying out the method according to the invention …” in paragraphs 60 and 81 or alternatively it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide processor in the “controller” in order to execute instructions stored on a non-transitory computer-readable medium for “carrying out the method according to the invention”).
Claim(s) 20-22, 25, and 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hell et al. (US 2019/0011367) in view of Balzarotti et al. (Nanometer resolution imaging and tracking of fluorescent molecules with minimal photon fluxes, Science Vol. 355 (February 2017), pp. 606-612 and Supplementary Materials, pp. 1-72).
In regard to claims 20-22 which are dependent on claim 18, Hell et al. also disclose that the emitters are capable of entering an inactive state in which the emitters are unable to emit emission light or unable to be excited by the excitation light (e.g., “… luminescence activation light which transfers the luminescence markers out of a dark state into a state excitable for luminescence, i.e. activates the luminescence markers …” in paragraph 77). The method of Hell et al. lacks an explicit description of details of the “… method known as MINFLUX …” such as simultaneously estimated emitters’ positions from a spatial distribution based on final position values generated from emitters activated in the reference volume and information on inactivation (from the emission signal’s decrease in time) and activation (from the emission signal’s increase in time). However, “… method known as MINFLUX …” details are known to one of ordinary skill in the art (e.g., see “… As fluorophores, we used Alexa Fluor 647 which, in conjunction with a suitable chemical environment (29), λ = 405 nm illumination for on-switching, and λ = 642 nm excitation light, provided the on-off switching rates needed for keeping pre-dominantly all but one molecule nonfluorescent. Imaging was performed by identifying the position of each emitting molecule as it emerged stochastically within the field of view. We used L = 70 nm and L =50 nm for the 11-nm and the 6-nm origami, respectively. By applying a hidden Markov model (HMM) (see Materials and Methods) to the fluorescence emission trace, we discriminated the recurrent single-molecule emissions from multiple molecule events and from the background. Recording n0, n1, n2,and n3 for each burst and applying MINFLUX on those with N = ∑ni ≥500 and ≥1000 for the 11-nm and the 6-nm origami, respectively, allowed us to assemble a map of localizations yielding nanoscale resolution images (Fig. 4) … discerning emission spectra, polarization, or lifetime …” in Fig. 2, pg. 3, and pg. 7 of Balzarotti et al.). It should be noted that “when a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable results”. KSR International Co. v. Teleflex Inc., 550 U.S. 398 at 416, 82 USPQ2d 1385 (2007) at 1395 (citing United States v. Adams, 383 U.S. 39, 40 [148 USPQ 479] (1966)). See MPEP § 2143. In this case, one of ordinary skill in the art could have substituted a known conventional MINFLUX method (e.g., comprising details such as “on-off switching rates” for recording “n0, n1, n2,and n3 for each burst” and “identifying the position of each emitting molecule as it emerged stochastically within the field of view”, in order to “assemble a map of localizations yielding nanoscale resolution images” and also “discerning emission spectra, polarization, or lifetime”) for the unspecified MINFLUX method of Hell et al. and the results of the substitution would have been predictable. Therefore it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide a known conventional MINFLUX method (e.g., comprising details such as a plurality of final position values is generated, wherein in case at least two emitters have been activated in the reference volume, the positions of the at least two emitters are simultaneously estimated from the final position values, wherein a spatial distribution is generated from the final position values, wherein the positions of the at least two emitters are simultaneously estimated based on the spatial distribution, wherein a time trace of the emission signals is obtained, wherein a decrease of the emission signal in said time trace indicates one of the emitters entering the inactive state and an increase of the emission signal in said time trace indicates one of the emitters leaving the inactive state, and wherein information from the time trace about the emitters entering or leaving the inactive state is used to simultaneously estimate the positions of the at least two emitters) as the unspecified MINFLUX method of Hell et al.
In regard to claim 25 which is dependent on claim 16, the method of Hell et al. lacks an explicit description of details of the “… method known as MINFLUX …” such as an emission lifetime of the at least one emitter is determined from the detected emission signal, wherein in case the determined emission lifetime is within a pre-determined range, the activation light is automatically switched off, and the at least one localization step is automatically initiated. However, “… method known as MINFLUX …” details are known to one of ordinary skill in the art (e.g., see “… As fluorophores, we used Alexa Fluor 647 which, in conjunction with a suitable chemical environment (29), λ = 405 nm illumination for on-switching, and λ = 642 nm excitation light, provided the on-off switching rates needed for keeping pre-dominantly all but one molecule nonfluorescent. Imaging was performed by identifying the position of each emitting molecule as it emerged stochastically within the field of view. We used L = 70 nm and L =50 nm for the 11-nm and the 6-nm origami, respectively. By applying a hidden Markov model (HMM) (see Materials and Methods) to the fluorescence emission trace, we discriminated the recurrent single-molecule emissions from multiple molecule events and from the background. Recording n0, n1, n2,and n3 for each burst and applying MINFLUX on those with N = ∑ni ≥500 and ≥1000 for the 11-nm and the 6-nm origami, respectively, allowed us to assemble a map of localizations yielding nanoscale resolution images (Fig. 4) … discerning emission spectra, polarization, or lifetime …” in Fig. 2, pg. 3, and pg. 7 of Balzarotti et al.). It should be noted that “when a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable results”. KSR International Co. v. Teleflex Inc., 550 U.S. 398 at 416, 82 USPQ2d 1385 (2007) at 1395 (citing United States v. Adams, 383 U.S. 39, 40 [148 USPQ 479] (1966)). See MPEP § 2143. In this case, one of ordinary skill in the art could have substituted a known conventional MINFLUX method (e.g., comprising details such as “on-off switching rates” for recording “n0, n1, n2,and n3 for each burst” and “identifying the position of each emitting molecule as it emerged stochastically within the field of view”, in order to “assemble a map of localizations yielding nanoscale resolution images” and also “discerning emission spectra, polarization, or lifetime”) for the unspecified MINFLUX method of Hell et al. and the results of the substitution would have been predictable. Therefore it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide a known conventional MINFLUX method (e.g., comprising details such as an emission lifetime of the at least one emitter is determined from the detected emission signal, wherein in case the determined emission lifetime is within a pre-determined range, the activation light is automatically switched off, and the at least one localization step is automatically initiated) as the unspecified MINFLUX method of Hell et al.
In regard to claim 26 which is dependent on claim 16, the method of Hell et al. lacks an explicit description of details of the “… method known as MINFLUX …” such as a spectral analysis of the detected emission signal is performed, wherein in case the spectral analysis indicates that the emission signal is in a pre-determined spectral range, the activation light is automatically switched off, and the at least one localization step is automatically initiated. However, “… method known as MINFLUX …” details are known to one of ordinary skill in the art (e.g., see “… As fluorophores, we used Alexa Fluor 647 which, in conjunction with a suitable chemical environment (29), λ = 405 nm illumination for on-switching, and λ = 642 nm excitation light, provided the on-off switching rates needed for keeping pre-dominantly all but one molecule nonfluorescent. Imaging was performed by identifying the position of each emitting molecule as it emerged stochastically within the field of view. We used L = 70 nm and L =50 nm for the 11-nm and the 6-nm origami, respectively. By applying a hidden Markov model (HMM) (see Materials and Methods) to the fluorescence emission trace, we discriminated the recurrent single-molecule emissions from multiple molecule events and from the background. Recording n0, n1, n2,and n3 for each burst and applying MINFLUX on those with N = ∑ni ≥500 and ≥1000 for the 11-nm and the 6-nm origami, respectively, allowed us to assemble a map of localizations yielding nanoscale resolution images (Fig. 4) … discerning emission spectra, polarization, or lifetime …” in Fig. 2, pg. 3, and pg. 7 of Balzarotti et al.). It should be noted that “when a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable results”. KSR International Co. v. Teleflex Inc., 550 U.S. 398 at 416, 82 USPQ2d 1385 (2007) at 1395 (citing United States v. Adams, 383 U.S. 39, 40 [148 USPQ 479] (1966)). See MPEP § 2143. In this case, one of ordinary skill in the art could have substituted a known conventional MINFLUX method (e.g., comprising details such as “on-off switching rates” for recording “n0, n1, n2,and n3 for each burst” and “identifying the position of each emitting molecule as it emerged stochastically within the field of view”, in order to “assemble a map of localizations yielding nanoscale resolution images” and also “discerning emission spectra, polarization, or lifetime”) for the unspecified MINFLUX method of Hell et al. and the results of the substitution would have been predictable. Therefore it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to provide a known conventional MINFLUX method (e.g., comprising details such as a spectral analysis of the detected emission signal is performed, wherein in case the spectral analysis indicates that the emission signal is in a pre-determined spectral range, the activation light is automatically switched off, and the at least one localization step is automatically initiated) as the unspecified MINFLUX method of Hell et al.
Conclusion
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/SL/
Examiner, Art Unit 2884
/DAVID P PORTA/Supervisory Patent Examiner, Art Unit 2884