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 .
Priority
Should applicant desire to obtain the benefit of foreign priority under 35 U.S.C. 119(a)-(d) prior to declaration of an interference, a certified English translation of the foreign application must be submitted in reply to this action. 37 CFR 41.154(b) and 41.202(e).
Failure to provide a certified translation may result in no benefit being accorded for the non-English application.
Claim Objections
Claims 6 and 17 are objected to because of the following informalities: Claim 6 recites "[…] on the basis of the interpolated position estimated in sub-step (ii)." Sub-step (ii) does not estimate an interpolated position of the particle, sub-step (i) does that, and is assumed a typo. Claim 17 ends with a semi-colon instead of a period. Appropriate correction is required.
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.
Claims 1-2 and 10-11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Woerdemann et al. (US PG-Pub 20180293426 A1, as cited in the IDS).
Regarding claim 1, Woerdemann et al. teaches a method for observing an emission of fluorescence light or luminescence light from a moving particle in a sample, the sample comprising particles moving in different directions, the particle emitting the fluorescence or luminescence light in a spectral emission band (see Abstract, [0048], disclosing cytometric analysis of multiple cells by means of a microscope, operated, selectively and/or alternatingly, in a transmission or fluorescence mode, and wherein at least one cell sample has a fluorescence marker. The method including moving the cell sample continuously in one X-Y plane and obtaining one or more images in transmission or fluorescence mode of a sub-region of the cell sample during movement.), the method comprising: a) illuminating the sample in a spectral detection band, and forming a detection image of the sample in the spectral detection band, the spectral detection band being different from the spectral emission band (see [0062], [0064], Fig. 1, disclosing light source 12 in the arrangement 10, which transmits light at a plurality of different wavelengths onto the sample carrier 16. The digital camera 28 records multiple images of the sample sub-regions.); b) forming an emission image of the sample in the spectral emission band (see [0068]-[0069], Fig. 1, disclosing that during the fluorescence mode, the digital camera 28 can take multiple sub-region pictures based on the fluorescent light radiated by the cell sample); the detection image and the emission image being obtained on the basis of an acquisition of an image of the sample by an image sensor, in the spectral detection band and in the spectral emission band (see [0062], [0068]-[0069], Fig. 1, disclosing recording transmission and fluorescence mode imaging via a digital camera 28.), wherein: steps a) and b) are reiterated (see above); the method also comprises the following steps: - c) on the basis of each detection image resulting from step a) of each iteration of steps a) and b), detecting the particle (see [0018], [0069], Fig. 1, disclosing the pictures taken by the digital camera 28 is based on the fluorescent light radiated by the cell sample, where the positions and/or contours of cells or cell components of the cell samples are detected in the images of the first fluorescence mode.); executing a tracking algorithm to detect the particle on each detection image (see [0036], [0078], disclosing that in the transmission mode or in the fluorescence mode, or the complete images of each image type, including in the transmission mode or in the fluorescence mode, be analyzed in some embodiments by automated means using recognition algorithms, where images or respectively pictures from a suitable recording mode, such as by a transmission mode, are examined for the presence of, for instance, individual cells or cell components using methods from digital image processing and analysis, and the position and/or contours of the detected objects.); determining a region of interest around the particle on each detection image (see [0017], subcellular regions of the sample recorded as sub-regions in imaging, where one or more cell samples with fluorescence marker molecules are moved relative to an optical system of a microscope, wherein pictures, or respectively images, of sub-regions of the cell samples are alternatingly recorded.); d) on the basis of the region of interest resulting from each step c), extracting a region of interest from each emission image of the sample, the region of interest extracted from each emission image corresponding to the particle (see [0073], disclosing two different images of sub-regions a, b, c or d, etc., are accordingly recorded as fluorescence images for various wavelengths.); e) summing the regions of interest extracted in each step d) so as to form an integrated emission image of the particle, representative of the fluorescence or luminescence of the particle (see [0034]-[0035], disclosing that by recording multiple images of multiple adjacent sub-regions of the cell samples, it is possible that a larger region of the cell samples can be examined. Images of the cell samples in the fluorescence mode for multiple sub-regions of the cell samples can be all combined into one complete image in the fluorescence mode.).
Regarding claim 2, Woerdemann et al. teaches the method of Claim 1, wherein: the particle emits a fluorescence light in the spectral emission band when it is illuminated in a spectral excitation band (see [0068], Fig. 1, disclosing a light source 34 with a excitation filter to illuminate the cell samples in the subsequent fluorescence mode. The short-wave exciting light strikes the cell sample, which was provided with a fluorescence marker or the like so that lover-wave fluorescent light is emitted after the absorption of the excitation light.); step b) comprises illuminating the sample in the spectral excitation band; the spectral detection band is remote from the spectral excitation band (see [0068], Fig. 1, disclosing a light source 34 separate from light source 12 used in transmission mode, for exciting the fluorescent markers in the cell sample.); the image sensor is coupled to a filter so as to block the spectral excitation band (see [0042], disclosing that images are recorded by means of an RGB camera or using chromatic filters in the optical path between the cell samples and the at least one camera.).
Regarding claim 10, Woerdemann et al. teaches the method of Claim 1, wherein step e) is executed in each iteration of steps a) and b) (see [0017]-[0018], [0034]-[0035], [0076], Fig. 3, disclosing that after detecting the subcellular regions of each sample, the total sub-regions can be combined into a complete image in either transmission or fluorescence mode. Such a step can be performed during post processing of the image before analysis, and is repeated for every channel (i.e., iteration) of capturing images.).
Regarding claim 11, Woerdemann et al. teaches the method of Claim 1, wherein: the stop criterion is a predetermined number of steps (see [0071]-[0072], [0078], Fig. 2-3, disclosing recording up to four image channels when imaging the continuous movement of the cell sample, where channel 4 contains the last image and respective sub-regions of the image 4a, 4b, 4c, and 4d. Fig. 3 shows that each of the channels following image capture, position determination, and image processing, all channels undergo cytometric data analysis as the last step before ending. As there are four channels (or iterations), the method stops after the fourth.); or, step e) being executed in each iteration of steps a) and b), the stop criterion is the obtaining of an integrated emission image in which the signal-to-noise ratio exceeds a predetermined threshold, or, step e) being executed in each iteration of steps a) and b), the method comprises a display of the integrated emission image, the iterations being stopped by a user.
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.
Claims 3-5 are rejected under 35 U.S.C. 103 as being unpatentable over Woerdemann et al. as applied to claim 1 above, and further in view of Li et al. (WO 2017214023 A1, as cited in the IDS).
Regarding claim 3, Woerdemann et al. teaches in Fig. 3 that the images of subregions of cell samples are recorded in different channels in parallel, alternatingly recorded in transmission mode and in fluorescence mode, and in iterative form via n-amount of channels (see [0078], Fig. 3).
Woerdemann et al. does not full teach that steps a) and b) are executed simultaneously.
However, in the analogous art of a method to describe brightfield and fluorescent channels for cell image segmentation, Li et al. teaches simultaneously acquired images of different imaging modes, such as brightfield, side-scatter, and fluorescent images, of a subject cell (see Li et al. [0008]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the imaging steps of Woerdemann et al. to incorporate performing it simultaneously (as taught by Li et al.), for the benefit of having the images be spatially well aligned with each other to enable mapping of corresponding image locations within about 1-2 pixels accuracy (see Li et al., [0032]).
Regarding claim 4, the combination of Woerdemann et al. and Li et al. teaches the exact limitations of claim 4. Specifically, Woerdemann et al. teaches the method of Claim 3, wherein steps c), d) and e) are executed in each iteration of steps a) and b) or following the iterations of steps a) and b) (see Woerdemann et al., [0017]-[0018], [0034]-[0035], [0076], Fig. 3, disclosing that following imaging in each iteration, the position of the sample is subsequencally determined, where the during image analysis, subcellular regions and/or cell structures are detected. The multiple sub-region image can be combined into one complete image in either transmission or fluorescence mode, which can be performed during image post processing. Each channel in Fig. 3 repeats the process (i.e., iterations) following the same steps after imaging).
Regarding claim 5, Woerdemann et al. teaches in Fig. 3 that the images of subregions of cell samples are recorded in different channels in parallel, alternatingly recorded in transmission mode and in fluorescence mode, and in iterative form via n-amount of channels (see [0078], Fig. 3).
Woerdemann et al. fails to teach that steps a) and b) are executed simultaneously.
However, Li et al. teaches simultaneously acquired images of different imaging modes, such as brightfield, side-scatter, and fluorescent images, of a subject cell (see Li et al. [0008]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the iterative imaging steps of Woerdemann et al. to incorporate performing it simultaneously (as taught by Li et al.), for the benefit of having the images be spatially well aligned with each other to enable mapping of corresponding image locations within about 1-2 pixels accuracy (see Li et al., [0032]).
Claims 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over Woredemann et al. as applied to claim 1 above, and further in view of Rogacs et al. (US PG-Pub 20160169801 A1, as cited in the IDS).
Regarding claim 7, Woerdemann et al. teaches that the images are recorded by means of an RGB camera (i.e., color sensor) or using chromatic filters in the optical path between the cell samples and the at least one camera (see Woerdemann et al., [0042]). During transmission mode in the microscope arrangement 10, the digital camera 28 obtains a transmission image from cell samples being transilluminated on the sample carrier 16 by means of a light source 12. After recording the sub-regions of the cell samples from the transmission mode, the cell sample is illuminated by fluorescent light to excite the fluorescence markers provided onto the cell, where the emitted long-wave fluorescent light emitted by the cell sample is recorded onto the camera 28 (see Woerdemann et al., [0062], [0068], Fig. 1).
Woerdemann et al. fails to teach that the same image acquired by the image sensor may be used to form the detection image and the emission image of the sample.
However, Rogacs et al. teaches one or more image detectors 116, arranged so that they are capable of capturing light split from a beam splitter 112 and lenses 110, which are then filtered by filters 114 to pass only light in a particular spectra band. This allows the one or more detectors to perform multispectral imaging, in the spectral band, either spontaneously or upon stimulation with a known stimulus, such as heat or light of the same wavelength or band (for reflectance) or different wavelength or band (for fluorescence). The system can be configured as either a quadruple view of a sample or a dual view using one image sensor and one beam splitter for two different spectral band detection (see Rogacs et al., [0010], [0044], Fig. 1A).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the image sensor of Woerdemann et al. to incorporate using beam splitters to obtain a detection and a emission image from one image (as taught by Rogacs et al.), for the benefit of simultaneous spectral band imaging for more than two images in the case of using a quadruple view or more than one detector (see Rogacs et al, [0044], Fig. 1A).
Regarding claim 8, Woerdemann et al. fails to teach wherein: the image sensor comprises a first elementary image sensor and a second elementary image sensor, together with a beam splitter, the beam splitter being configured to send light, in the spectral detection band, towards the first elementary image sensor; and in the spectral emission band, towards the second elementary image sensor; In each step a), the detection image, in the spectral detection band, is acquired by the first elementary image sensor; in each step b), the emission image, in the spectral emission band, is acquired by the second elementary image sensor.
However, Rogacs et al. teaches one or more image detectors 116, arranged so that they are capable of capturing light split from a beam splitter 112 and lenses 110, which are then filtered by filters 114 to pass only light in a particular spectra band. This allows the one or more detectors to perform multispectral imaging, in the spectral band, either spontaneously or upon stimulation with a known stimulus, such as heat or light of the same wavelength or band (for reflectance) or different wavelength or band (for fluorescence). The system can be configured as either a quadruple view of a sample or a dual view using one image sensor and one beam splitter for two different spectral band detection (see Rogacs et al., [0010], [0044], Fig. 1A).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the image sensor of Woerdemann et al. to incorporate using beam splitters to send separated light through spectral band filters and then into the camera for imaging of both, or two detectors in the case of a separated elementary image sensor (as taught by Rogacs et al.), for the benefit of simultaneous spectral band imaging for more than two images in the case of using a quadruple view or more than one detector (see Rogacs et al, [0044], Fig. 1A).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Woerdemann et al. as applied to claim 1 above, and further in view of Ikuyama (US PG-Pub 20170276598 A1).
Regarding claim 9, Woerdemann et al. fails to teach wherein step e) comprises calculating an average of the regions of interest, extracted from each emission image of the sample, corresponding to the particle.
However, in the analogous art of image processing device, image processing method, and program, Ikuyama teaches extracting several regions of interest in an image of a biological sample, where a section A, section B, and section C, as consecutive samples. The two regions of interest obtained based on sections B and C are then averaged as a region of interest of section A, where it is preferable to average the regions of interest obtained using, as consecutive samples, two sections between which section A to be observed is located (see Ikuyama, Abstract, [0138], [0149]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the acquiring of subcellular regions of Woerdemann et al. to incorporate averaging the obtained regions of interest (as taught by Ikuyama), for the benefit of obtaining a more accurate region of interest as a result of averaging (see Ikuyama, [0149]).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over Woredemann et al. as applied to claim 1 above, and further in view of Schumann et al. (WO 2022028694 A1).
Regarding claim 12, Woerdemann et al. fails to teach wherein, in each step a), the intensity of illumination of the sample, in the spectral detection band, is adjusted so that the signal-to-noise ratio of the detection image is less than a predetermined value.
However, in the analogous art of method for adjusting the illumination in a fluorescence microscope, and corresponding fluorescence microscope, Schumann et al. teaches adjusting the illumination of at least two light sources such that a specified target value of a signal-to-noise ratio is achieved per fluorophore (see Schumann et al., Abstract).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the light source illumination of Woerdemann et al. to incorporate the adjustment of the illumination brightness to achieve a specified signal-to-noise ratio (as taught by Schumann et al.), for the benefit of automatic adjustment of illumination for achieving the most optical signal-to-noise ratio in imaging samples (see Schumann et al., Abstract).
Claims 13-17 are rejected under 35 U.S.C. 103 as being unpatentable over Woerdemann et al. as applied to claim 1 above, and further in view of Li et al. and Rogacs et al.
Regarding claim 13, Woerdemann et al. teaches cytometric analysis of multiple cells by means of a microscope, operated, selectively and/or alternatingly, in a transmission or fluorescence mode, and wherein at least one cell sample has a fluorescence marker, by moving the cell sample continuously in one X-Y plane relative to the microscope's optical system and obtaining one or more images in transmission or fluorescence mode of a sub-region of the cell sample during movement (see Woerdemann et al., Abstract, [0048]). An arrangement 10 for examining cell samples under a microscope includes a light source 12 which can be a light-emitting diodes, which can produce light at different wavelengths, whereas light source 34 specifically produces short-wave light. The digital camera 28 is capable of imaging the sample under both light source 12 during transmission mode and light source 34 during fluorescence mode. A sample carrier 16 arranged on a mobile table 18 has light transmitted onto it, where Fig. 1 shows digital camera 28 pointed towards the sample carrier containing the sample, through the objective 24 and optical elements 30 (see Woerdemann et al., [0061]-[0064], [0068], Fig. 1). Images are recorded by means of an RGB camera or using chromatic filters in the optical path between the cell samples and the at least one camera (see Woerdemann et al., [0042]).
Woerdemann et al. fails to teach where the emission filter is configured to transmit light in the spectral detection band and in the spectral emission band, and a processing unit configured to form, on the basis of the image acquired by the image sensor: a detection image of the sample in the spectral detection band; an emission image of the sample, in the spectral emission band; wherein the processing unit is programmed to execute steps a) to e) of the method according to Claim 1.
However, Li et al. teaches a classifier engine for multispectral segmentation of thousands of cellular images acquired by a multispectral imaging flow cytometer, implemented within a computer. The computer is capable of simultaneously acquiring a variety of images in different imaging modes such as brightfield, side scatter and fluorescent images, of a subject cell (see Li et al., Abstract, [0008]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the cytometric analysis of multiple cells of Woerdemann et al. to incorporate the computer processor capable of acquiring simultaneous multispectral images (as taught by Li et al.), for the benefit of automating ranking and selection of discriminative shape-based features for classifying cell types (see Li et al., Abstract).
The combination of Woerdemann et al. and Li et al. fails to teach where the emission filter is configured to transmit light in the spectral detection band and in the spectral emission band.
However, Rogacs et al. teaches a system capable of obtaining four images simultaneously via the use of beam splitters 112 and lenses 110 to divide the light 104 emitted or scattered from a sample 102 into four images 106 captured by one or more image detectors 116. Filters 114 are employed to pass only light in a particular spectral band, allowing for multispectral analysis (such as a detection and emission band). In Fig. 1A, a four-way split of emitted light is performed by the splitter 112 and lenses 110 array, where two image detectors 116 each obtain two of the four split, following a wavelength filter 114 pass (see Rogacs et al., [0044], Fig. 1A).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the cytometric multispectral image analysis of the combination of Woerdemann et al. and Li et al. to further incorporate using beam splitters, lenses, and different wavelength filters to obtain an detection and emission images from one camera (as taught by Rogacs et al.), for the benefit of obtaining multiple spectral band images of the same frame to allow for comparison and analysis of the sample at that point.
Regarding claim 14, the combination of Woerdemann et al., Li et al., and Rogacs et al. teaches the exact limitations of claim 14. Specifically, Woerdemann et al. teaches the device of Claim 13, comprising an excitation light source configured to illuminate the sample in a spectral excitation band, remote from the spectral emission band and the spectral detection band (see Woerdemann et al. [0062]-[0064], [0068], Fig. 1, disclosing a light source 34 with which fluorescent light is generated onto the table 18 with the sample, by passing through an excitation filter so that short-wave exciting light strikes the cell samples in the cell carrier 16. The cell containing a fluorescence marker will emit longer-wave fluorescent light afterwards, separate from the short-wave excitation light. The light source 12 for illuminating the sample, separate from light source 34, uses light emitting diodes can produce light at different wavelengths.).
Regarding claim 15, the combination of Woerdemann et al., Li et al., and Rogacs et al. teaches the exact limitations of claim 15. Specifically, Woerdemann et al. teaches the device of Claim 14, wherein the detection light source and the excitation light source are configured to be activated simultaneously or sequentially, with a time shift of less than 100 ms or 10 ms (see [0064], [0068], Fig. 1, disclosing the light emitting diode as the light source. It is capable of generating flashes of light lasting e.g. less than 50 μs. The light-emitting diodes can be activated simultaneously or successively. The light source 34 is likely also using an LED, with an excitation filter for generating fluorescent light.).
Regarding claim 16, the combination of Woerdemann et al., Li et al., and Rogacs et al. teaches the exact limitations of claim 16. Specifically, Woerdemann et al. teaches the device of Claim 13, wherein the image sensor is a color image sensor (see Woerdemann et al., [0042], disclosing that images are recorded by means of an RGB camera (i.e., color sensor) or using chromatic filters in the optical path between the cell samples and the at least one camera.).
Regarding claim 17, the combination of Woerdemann et al. and Li et al. fails to teach wherein the image sensor comprises a first elementary image sensor and a second elementary image sensor, together with a beam splitter, the beam splitter being configured to send light, in the spectral detection band, towards the first elementary image sensor; and in the spectral emission band, towards the second elementary image sensor.
However, Rogacs et al. teaches one or more image detectors 116, arranged so that they are capable of capturing light split from a beam splitter 112 and lenses 110, which are then filtered by filters 114 to pass only light in a particular spectra band. This allows the one or more detectors to perform multispectral imaging, in the spectral band, either spontaneously or upon stimulation with a known stimulus, such as heat or light of the same wavelength or band (for reflectance) or different wavelength or band (for fluorescence). The system can be configured as either a quadruple view of a sample or a dual view using one image sensor and one beam splitter for two different spectral band detection (see Rogacs et al., [0010], [0044], Fig. 1A).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the spectral detection and emission band imaging of the combination of Woerdemann et al. and Li et al. to incorporate using beam splitters to send separated light through spectral band filters and then into the camera for imaging of both, or two detectors in the case of a separated elementary image sensor (as taught by Rogacs et al.), for the benefit of simultaneous spectral band imaging for more than two images in the case of using a quadruple view or more than one detector (see Rogacs et al, [0044], Fig. 1A).
Allowable Subject Matter
Claim 6 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter: The closest prior art, Woredemann et al., discloses in Fig. 3 n-channels, where n is the iterations of the image recording step of either transmission or fluorescence mode of a moving cell sample. It is such that channel n is always a positive number (e.g., channel 1, channel 2, channel n, etc.) (see Woredemann et al., Fig. 3).
However, Wordemann et al. does not disclose nor suggest that following the iterative steps of rank n and n+1, that an esimate of an interpolated particle position is made in steb b) of the interation of rank n, and extracting the region of interest from the emission image formed in the itration of rank n on the basis of the estimated interpolated position (as requried in claim 6).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Tracy C Colena whose telephone number is (571)272-1625. The examiner can normally be reached Mon-Thus 8:00am-5:00pm.
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/TRACY CHING-TIAN COLENA/ Examiner, Art Unit 1797
/JENNIFER WECKER/ Primary Examiner, Art Unit 1797
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