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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on July 10, 2023 is being considered by the examiner.
Priority
Applicant’s claim for the benefit of a prior-filed application under 35 U.S.C. 119(e) or under 35 U.S.C. 120, 121, 365(c), or 386(c) is acknowledged. Applicant has not complied with one or more conditions for receiving the benefit of an earlier filing date under 35 U.S.C. 120 as follows:
The later-filed application must be an application for a patent for an invention which is also disclosed in the prior application (the parent or original nonprovisional application or provisional application). The disclosure of the invention in the parent application and in the later-filed application must be sufficient to comply with the requirements of 35 U.S.C. 112(a), except for the best mode requirement. See Transco Products, Inc. v. Performance Contracting, Inc., 38 F.3d 551, 32 USPQ2d 1077 (Fed. Cir. 1994).
The disclosure of the prior-filed application 16/882,156 fails to provide adequate support or enablement in the manner provided by 35 U.S.C. 112(a) for all of the claims of this application. The claims of the instant application all require measuring magnetic reluctance. However, the disclosure of 16/882,156 is silent regarding such method step.
Specification
Applicant is reminded of the proper content of an abstract of the disclosure.
A patent abstract is a concise statement of the technical disclosure of the patent and should include that which is new in the art to which the invention pertains. The abstract should not refer to purported merits or speculative applications of the invention and should not compare the invention with the prior art.
If the patent is of a basic nature, the entire technical disclosure may be new in the art, and the abstract should be directed to the entire disclosure. If the patent is in the nature of an improvement in an old apparatus, process, product, or composition, the abstract should include the technical disclosure of the improvement. The abstract should also mention by way of example any preferred modifications or alternatives.
Where applicable, the abstract should include the following: (1) if a machine or apparatus, its organization and operation; (2) if an article, its method of making; (3) if a chemical compound, its identity and use; (4) if a mixture, its ingredients; (5) if a process, the steps.
Extensive mechanical and design details of an apparatus should not be included in the abstract. The abstract should be in narrative form and generally limited to a single paragraph within the range of 50 to 150 words in length. See MPEP § 608.01(b) for guidelines for the preparation of patent abstracts.
The abstract of the disclosure is objected to because it does not reflect the subject matter of the claims.
A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Claim Objections
Claims 1-6 are objected to because of the following informalities:
The preamble of claim 1 is grammatically incorrect. It should include a comma before the recitation “comprising of”. Otherwise, it conveys that the biological comprises the claimed elements, which is clearly not the intent of the claim.
Similarly, the preamble of claims 2-6 is grammatically incorrect. It is evident that the preamble intends to refer to the method of claim 1, but grammatically, it is referring to the sample of claim 1.
Claims 3-5 recite “radio waves frequency”, which should be changed to “radio wave frequency”.
Appropriate corrections are required.
Claim Rejections - 35 USC § 112
In the event the determination of the status of the application as subject to AIA (or as subject to pre-AIA ) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the rationale supporting the rejection would be the same under either status.
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.
Claims 1-6 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
The preamble of claim 1 recites “the frequency”. There is no antecedent basis for the limitation.
Step g of claim 1 recites “the phase”. There is no antecedent basis for the limitation. In addition, it is unclear to what it refers. A sample does not inherently comprise a “phase”. Based on the specification, “phase” refers to phase of the signal that crosses the sample. Contrary to the claim language, it does not refer to a property of the sample itself. Further clarification regarding the nature of the claimed “phase” is requested.
The end of claim recites “the fundamental frequency”. There is no antecedent basis for the limitation.
Claim 1 recites a generic step of “using” various data (frequency, phase, reluctance) without specifying how they’re used. Consequently, the scope of the “using” step is indefinite. See MPEP § 2173.05(q).
Claim 3 recites the limitation “said radio waves (sic) frequency”. Claim 1 recites two separate radio waves, each having a frequency, and the claim does not specify that the waves have identical frequency. Consequently, it is unclear to which frequency the limitation refers. Likewise claim 5 is indefinite.
In addition, claim 3 recites a range, not species. It is improper to recite a range using Markush group language.
Claim 4 recites “preferably”. Such recitation renders the claim indefinite because it is unclear whether the recitation intends to further limit the claimed invention. See MPEP § 2173.05(d).
Claim 5 recites “the structure”. There is no antecedent basis for the limitation.
Claim 6 recites “said energy absorption of said reference biological sample”. There is no antecedent basis for the limitation.
Claim 6 also recites “said container” It is unclear to which container the limitation refers.
Claims not explicitly rejected are rejected due to dependency.
Allowable Subject Matter
No claims are allowed and no claims are indicated as having allowable subject matter due to the various issues identified above. However, no prior art is applied against the claims because prior art does not disclose or render obvious one or more claim limitations recited in claim 1.
Keller, III et al. (“Keller”) (US 2021/0333222 A1) is the closest prior art and it discloses a method of analyzing a suspected biological sample to determine the presence of a virus in said sample (see abstract), the method comprising:
collecting a reference biological sample that does not have the virus and placing it in a first container (see [0009] disclosing “sample…is illuminated…in the sample holder…spectral measurements are collected…without the target to be characterized”);
collecting said suspected biological sample and placing said suspected biological sample in a second container (see [0009] disclosing “sample…is illuminated with RF…in the sample holder…spectral measurements are collected…with…the target to be characterized”; see also [0005] disclosing use of swappable sample holder, meaning the suspected sample and the reference sample are collected in different holders);
exposing said reference biological sample in said first container to radio waves (see [0009]),
said radio waves having a radio wave frequency (frequency is an inherent property of a wave);
exposing said suspected biological sample in said second container to radio wave frequency (see [0009]);
measuring the energy absorption of the radio wave frequency of the suspected biological sample in said second container (see [0009] disclosing measuring change in electromagnetic signal; and see [0039] disclosing that the change is due to energy absorbed by the sample);
measuring a phase change of said reference biological sample in said first container as a result of the sample absorbing radio waves (see [0009]);
using the measurements from the suspected biological sample and the reference biological sample (see [0009]); and
determining the presence of the virus in the suspected biological sample based on spectral differences between the suspected biological sample and the reference biological sample (see [0009]) (i.e. matching the differences to a spectral signature of the virus, which is based the fundamental frequency of the virus).
However, Keller does not disclose a step of measuring the magnetic reluctance of the reference biological sample, and “using” it to determine a “fundamental frequency”, as recited in claim 1*.
*As discussed above, claim 1 is indefinite because, inter alia, the claim does not specify how the magnetic reluctance is “used” and to what “fundamental frequency” refers. Consequently, the extent/degree to which the claimed method is patentably distinct from the disclosure of Keller cannot be ascertained. In addition, changes made to the claims to overcome the 35 U.S.C. 112(b) issues identified above may subject the claims to a rejection under 35 U.S.C. 101. Claim 1 recites a step of “determining the fundamental frequency”, which is an abstract idea in the form of a mental process. This abstract idea is not integrated into a practical application because the claim terminates with the determining step (i.e. nothing is done with the determined fundamental frequency). In addition, the steps preceding the determining step fail to integrate the determining step into a practical application.
The claim does include an additional element (step h) that amounts to significantly more than the abstract idea so as to obviate a rejection under 35 U.S.C. 101. However, changes made to claim 1 to overcome the 35 U.S.C. 112(b) issues identified above may change the scope of the claims such that the claims may be rejected under 35 U.S.C. 101.
Conclusion
The following prior art is made of record because it is considered pertinent to applicant's disclosure:
1) Al Ahmad (US 2015/0104783 A1) discloses a method of analyzing a suspected biological sample to determine the presence of a virus (see abstract), the method comprising:
-collecting said suspected biological sample and placing said suspected biological sample in a second container (resonator) (see [0071]-[0072]);
-exposing said suspected biological sample in said second container to radio waves having a radio wave frequency (RF) (see [0072]);
-measuring the energy absorption of said radio waves by said suspected biological sample (i.e. phase shift in RF after interacting with the sample) (see [0072]-[0073]); and
-comparing said energy absorption of said suspected biological sample in said second container to a database to determine the identity, and thus the presence, of the virus (see [0073] and [0076]).
2) Socransky (US 2021/0339032 A1) discloses a method of using radio frequency to destroy viruses (see abstract).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PAUL S HYUN whose telephone number is (571)272-8559. The examiner can normally be reached M-F 8:30-5:00.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Luan Van can be reached at 571-272-8521. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PAUL S HYUN/ Primary Examiner, Art Unit 1796
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