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 .
Election/Restrictions
Applicant’s election of Group I directed to Claims 1-13, drawn to a method for a subassembly of a flow cytometer or a cell sorter, in the reply filed on 12/01/2025 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Applicant's election with traverse of species A3 and B2 in the reply filed on 12/01/2025 is acknowledged. The traversal is not found persuasive because claim 2 is dependent on claim 1 (which is genus to species A), and the arguments for species B are moot as they are directed to the invention withdrawn by election of Group I.
The requirement is still deemed proper and is therefore made FINAL.
Claims 1-4 and 7-13 are being examined.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the empty nozzle assembly 450E inserted into a mount 452B of the carriage assembly 442B under a cuvette 406, the empty nozzle assembly 450E having a nozzle body without a nozzle and an o-ring; the mount 452B engaged a top surface portion of the nozzle body of the empty nozzle assembly 450E with a bottom surface portion of the cuvette 406 (claim 1) must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-4 and 7-13 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1-4 and 7-13 are not clear with respect to what applicant is claiming. The claims do not clearly set forth the metes and bounds of the patent protection desired. Claim 1 is unclear as to whether the applicant intends to claim a method of making (e.g., assembling), a method of using, or a product by process. Dependent claims are similarly unclear. Neither the preamble nor the body of the claims is clear as to what is being claimed, rendering the scope of the claims unascertainable. In addition, claim 1 is unclear reciting “bolts/screws” because it is unclear if the applicant is trying to claim bolts and screws, or bolts or screws. Claim 1 further unclear reciting “inserting an empty nozzle assembly 450E into a mount 452B of the carriage assembly 442B under a cuvette 406, the empty nozzle assembly 450E having a nozzle body without a nozzle and an o-ring” because it is unclear whether the cuvette, the nozzle and the o-ring are part of the claimed invention. For the reasons given above, dependent claims are similarly unclear.
The term “loosely” in claim 1 is a relative term which renders the claim indefinite. The term “loosely” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention.
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 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, 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) 1-4 and 7-13 is/are rejected under 35 U.S.C. 102(a1/a2) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Durack et al. (US 2019/0040356).
Regarding claims 1-4 and 7-13, Durack et al. teach:
A method comprising:
installing a carriage assembly (i.e., assembly including a mount 331, a frame 349, and a mounting plate 1093) to a flow cell (see annotated Fig. 5 for example), including installing a carriage plate (e.g., 359) to a linear stage (e.g., 361) by inserting a plurality of bolts/screws through a plurality of holes (see Figs. 5 & 22 and Examiner’s explanation below);
inserting an empty nozzle assembly (e.g., flow body 133) into a mount (see i.e., the mount 331 including a first stage 333, second stage 337, and a third stage 343, ¶ 0824 & Fig. 22) of the carriage assembly (see Fig. 5 showing the flow body 133 is inserted into the third stage 343 of the mount 331), the empty nozzle assembly having a nozzle body without a nozzle and an o-ring (see Fig. 5 for example);
inserting a first test nozzle assembly (e.g., nozzle system 101’) into the mount (see Figs. 5, 22, 109, 114 & ¶ 1146 for example),
an orifice (e.g., 103 Nozzle Orifice), a light source (e.g., 393), a flow channel (e.g., Abstract+),
inserting a second test nozzle assembly (e.g., nozzle system 101’) into the mount (see Figs. 5, 22, 109, 114 & ¶ 1146 for example),
inserting a third test nozzle assembly (e.g., nozzle system 101’) into the mount (see Figs. 5, 22, 109, 114 & ¶ 1146 for example),
inserting a fourth test nozzle assembly (e.g., nozzle system 101’) into the mount (see Figs. 5, 22, 109, 114 & ¶ 1146 for example), and
a microscope (¶ 1064).
Durack et al. teach releasably assembling a flow cytometer system including inserting a plurality of bolts/screws (e.g., releasable fasteners, adjustable fasteners, threaded bolts) through a plurality of holes, and tightening the plurality of bolts/screws. See for example Figs. 3-5, 22, 26-27, 29-35, 83-84, 106, 109-114, 119-120; and ¶ 0835, 0837-0842, 0852-0854, 0875, 1040, 1145, 1166, 1174. Durack et al. further teach: The flow cytometry units 1003 are mounted side-by-side as modules on an appropriate framework 1087 in the housing 1009. Specifically, the nozzle mounts 331′ for positioning the nozzles 101′ are releasably attached to a cross bar 1089 (FIG. 106) affixed to the side walls 1071 of the housing, and the bases 429′ of the epi-illumination instruments 417′ are releasably fastened to an angled mounting plate 1093 extending between the side walls 1071 of the housing toward the rear of the housing 1085 (FIG. 109), the arrangement being such that a particular unit can be installed or removed as a module. This modularity facilitates installation, removal for maintenance and/or replacement, and enables any number of flow cytometry units 1003 to be readily added as needed or desired to increase the throughput capacity of the system (¶ 1146). In the event that the claimed invention is not shown with sufficient specificity, then it would have been obvious to one having ordinary skill in the art to install and adjust the flow cytometer system as necessary, as disclosed by Durack et al. (¶ 0824-0825, 0832-0841, 0852-0854, 1146+).
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Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEAN KWAK whose telephone number is (571)270-7072. The examiner can normally be reached M-TH, 4:30 am - 2:30 pm EST.
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, CHARLES CAPOZZI can be reached at (571)270-3638. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DEAN KWAK/Primary Examiner, Art Unit 1798
DEAN KWAK
Primary Examiner
Art Unit 1798