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 .
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: “an excitation optical system configured to guide the excitation light toward the subject to be measured disposed in the integrating sphere”, “ a first detection optical system configured to guide the light to be measured from the integrating sphere toward the light detector, wherein the first detection optical system has an opening portion that limits a detection range of the light to be measured in the light detector,”; “a separation optical element that separates an optical axis of the excitation light directed toward the subject to be measured in the integrating sphere and an optical axis of the light to be measured that is output from the integrating sphere and directed toward the light detector from each other,”; “a first converging element that forms an irradiation spot of the excitation light on the subject to be measured,”; “a second converging element that converges the light to be measured in the opening portion,”; “a second detection optical system configured to guide the light to be measured diffusely reflected in the integrating sphere from the integrating sphere toward the light detector;”; “a switching unit configured to optically connect one of the first detection optical system and the second detection optical system to the light detector.”; and “an attenuation element disposed to move back and forth on the optical axis of the light to be measured.”
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 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.
Claim(s) 1-7 is/are rejected under 35 U.S.C. 103 as being unpatentable over US 2013/0240754 (Iguchi) in view of US 2013/0303403 (Ozaki et al.).
Regarding claim 1, Iguchi discloses a measuring device comprising:
an excitation light source configured to output excitation light (element 6);
an integrating sphere with a subject to be measured disposed therein (element 14);
an excitation optical system configured to guide the excitation light toward the subject to be measured disposed in the integrating sphere (element 7);
a light detector configured to detect light to be measured generated at the subject to be measured in the integrating sphere through irradiation with the excitation light (element 9); and
a first detection optical system configured to guide the light to be measured from the integrating sphere toward the light detector, wherein the first detection optical system has an opening portion that limits a detection range of the light to be measured in the light detector (element 76),
wherein the optical axis of the excitation light incident on the subject to be measured in the integrating sphere in the excitation optical system and the optical axis of the light to be measured that is emitted from the integrating sphere in the first detection optical system obliquely intersect (fig. 10-11 have oblique intersection)
a first converging element that forms an irradiation spot of the excitation light on the subject to be measured (element 7), and
a second converging element that converges the light to be measured in the opening portion (element 11),
and wherein an irradiation spot of the excitation light on the subject to be measured and the opening portion are in an optically conjugate relationship by means of the first converging element and the second converging element (fig. 11, as a whole).
Iguchi does not disclose a separation optical element that separates an optical axis of the excitation light directed toward the subject to be measured in the integrating sphere and an optical axis of the light to be measured that is output from the integrating sphere and directed toward the light detector from each other, wherein the oblique intersection is by means of the separation optical element and the first converging element.
Ozaki et al. discloses a measuring device comprising a separation optical element that separates an optical axis of the excitation light directed toward the subject to be measured and an optical axis of the light to be measured that is output and directed toward the light detector from each other, wherein the optical axis of the excitation light incident on the subject to be measured and the optical axis of the light to be measured intersect with each other by means of the separation optical element and a first converging element (fig. 6, element 503). The intersection is not shown to be oblique in Ozaki et al. but the intersection could be made oblique by adding a tilt to one of the beam paths.
It would have been obvious to a person having ordinary skill in the art at the time the application was filed to modify the measuring device of Iguchi by substituting the separation element of Ozaki et al. between the first converging element and the sample as in Ozaki et al. for the switching element 77 because the separation element does not require moving parts, and therefore is less prone to wear and tear.
Regarding claim 2, Iguchi in view of Ozaki et al. disclose the measuring device according to claim 1, wherein the separation optical element is constituted by a perforated mirror having an opening portion through which the excitation light passes and a reflecting surface that reflects the light to be measured (Ozaki et al., fig. 6, element 503).
Regarding claims 3 & 4, Iguchi in view of Ozaki et al. disclose the claimed invention, except for one of the optical axes being inclined with respect to a surface of the subject and the other perpendicular. In the configuration of Ozaki et al., both paths are perpendicular. However, tilting one of the two beam paths is required to achieve the necessary oblique intersection. It would have been obvious to tilt the axis of the inclination light (claim 3) or the axis of the detection light (claim 4) because both are functionally equivalent and there are only two possibilities (obvious to try).
Regarding claim 5, Iguchi in view of Ozaki et al. disclose the measuring device according to claim 4, wherein the first converging element is disposed such that the surface of the subject to be measured is positioned within a depth of focus of the first converging element (Iguchi, fig. 10-11 show focus at sample).
Regarding claim 6, Iguchi in view of Ozaki et al. disclose the measuring device according to claim 1, further comprising: a second detection optical system configured to guide the light to be measured diffusely reflected in the integrating sphere from the integrating sphere toward the light detector (fig. 10, L2 path); and a switching unit configured to optically connect one of the first detection optical system and the second detection optical system to the light detector (fig. 10-11, element 79).
Regarding claim 7, Iguchi in view of Ozaki et al. disclose the claimed invention except for an attenuation element disposed to move back and forth on the optical axis of the light to be measured. Attenuation filters are well known in the art, and it would have been obvious to a person having ordinary skill in the art at the time the application was filed to modify the switching element of Iguchi to include one so that the amount of light reaching the detector could be varied as needed.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZA W OSENBAUGH-STEWART whose telephone number is (571)270-5782. The examiner can normally be reached 10am - 6pm Pacific Time M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Robert Kim can be reached at 571-272-2293. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ELIZA W OSENBAUGH-STEWART/Primary Examiner, Art Unit 2881