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 Objections
Claim 1 is objected to because of the following informalities: The beginning of line 3 is capitalized which does not conform to current U.S. practice. Appropriate correction is required.
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 10 and 12-18 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.
Claim 10 recites the limitation "the array of emitters” and “the 128 columns" in lines 1 and 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 12 recites the limitation "the detection system" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claims 13-18 are rejected under 35 U.S.C. 112b as being indefinite since the claims depend upon and incorporate all the limitations of claim 12.
Appropriate corrective action 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 6 are rejected under 35 U.S.C. 102a1 as being anticipated by Boege et al. (WO 2005/068976 A2 – hereafter ‘976).
‘976 discloses an optical device for fluorometry ([006]) that includes the following limitations for claim 1:
“A device for calibration of a self-aware particle manipulation system”: ‘976 discloses an optical device ([006]) that is being interpreted as the device of the instant application. It should be noted that preamble statements reciting the purpose or intended use of the invention rather than any distinct definition of any of the claimed invention's limitations is not considered to structurally define the claimed invention over the prior art. See also MPEP 2111.02 II and 2114.
“An array of discrete light producing devices which emit radiation over a range of wavelengths”: ‘976 discloses using an LED array ([0019]) that are fully capable of emitting radiation over a range of wavelengths.
“a neutral density filter that attenuates the radiation to varying degrees”: ‘976 discloses using a neutral density filter (filter 429; [0054]; Fig. 4) that would inherently attenuate the radiation to varying degrees.
“at least one lens which collects the radiation and delivers it to a pixelated detector”: ‘976 discloses a lens (lens 424; Fig. 4; [050]) that collects radiation from the sample wells (wells 421) and sends it to a detector such as a CCD (detector 425; Fig. 4; [019]) which is being interpreted as a pixelated detector as a CCD has pixels for detecting light.
For claim 2, the LED array is fully capable of being programmable or controllable.
For claim 6, ‘976 discloses using auto-collimators ([0034]) that are being interpreted as the focusing lens.
Therefore, ‘976 meets the limitations of Claims 1, 2 and 6.
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.
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 4 is rejected under 35 U.S.C. 103 as being unpatentable over Boege et al. (WO 2005/068976 A2 – hereafter ‘976) in view of Ryuuisu Ineiru (JP 2016520847 A – hereafter ‘847 and reference will be made to the enclosed machine translation).
‘976 differs from the instant claim regarding a linear filter.
‘847 discloses a sample characterization system (page 2, fifth paragraph) that for claim 4 includes using a linear variable filter (paragraph spanning the bottom of page 2 to the top of page 3).
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the earliest effective filing date to employ the linear variable filter of ‘847 within ‘976 in order to remove noise form the wavelength. The suggestion for doing so at the time would have been in order to concentrate one or more wavelengths (paragraph spanning the bottom of page 2 to the top of page 3).
Claims 5 is rejected under 35 U.S.C. 103 as being unpatentable over Boege et al. (WO 2005/068976 A2 – hereafter ‘976) in view of Deran (US 2020/0096434 A1 – hereafter ‘434).
‘976 discloses using a computer, but differs from the instant claim regarding using a computer network such as a neural network algorithm, a deep learning algorithm, a machine learning algorithm or an artificial intelligence algorithm that is trained to identify a particle.
‘434 disclsoes a fluid suspended particle classifier system (Abstract) that for claim 5 includes a neural network ([0113]) that is trained to operate as a particle classifier.
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the earliest effective filing date to employ the A.I. of ‘434 within ‘976 in order to classify the particles. The suggestion for doing so at the time would have been in order to have the system in order to determine the classification of bacteria ([0118]).
Claims 7 is rejected under 35 U.S.C. 103 as being unpatentable over Boege et al. (WO 2005/068976 A2 – hereafter ‘976) in view of Wei et al. (US 2002/0018180 A1 – hereafter ‘180).
‘976 differs from the instant claim regarding using an optical fiber to send the light to a detector.
‘180 discloses a visual field tester (Abstract) that for claim 7 includes using an optical fiber (Fig. 1; fiber 101; [0019]) that guides light.
Therefore, it would have been obvious to one of ordinary skill in the art at the time of the earliest effective filing date to include the optical fiber of ‘180 within ‘976 in order to guide light from a lens. The suggestion for doing so at the time would have been in order to allow light to travel through the fiber and to impinge a target location ([0023]).
Allowable Subject Matter
Claims 3, 8, 9 and 11 are 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: For claim 3, the prior art fails to teach or fairly suggest where the array comprises a 64 x 128 pixel array of light emitting diodes.
For claim 8, the prior art fails to teach or fairly suggest where the neutral density filter comprises 4 regions having an attenuation of 0, 1, 2 and 3 decades respectively.
For claim 9, the prior art fails to teach or fairly suggest a controller that is programmed to adjust a gain setting of the detector based on the calibration.
For claim 11, the prior art fails to teach or fairly suggest where the array of light producing devices emit radiation in a range of 490 nm, 518 nm, 560 nm and 655 nm.
The closest prior art is Boege et al. (WO 2005/068976 A) discloses an optical device that includes an array of light emitting devices, a neutral density filter and a lens, but does not teach or suggest the limitations of claims 3, 8, 9 and 11.
Claim 10 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include 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: For claim 10, the prior art fails to teach or fairly suggest an array of emitters with a variable spectral characteristic across 128 columns where each column covers about a 3.5 nm spectral band.
The closest prior art is Boege et al. (WO 2005/068976 A) discloses an optical device that includes an array of light emitting devices, a neutral density filter and a lens, but does not teach or suggest the limitations of claim 10.
Claim 12 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
The following is a statement of reasons for the indication of allowable subject matter: For claim 12, the prior art fails to teach or fairly suggest a method for calibrating a self-aware particle sorting system that includes the steps of providing a calibrated source of variable wavelength which is detected by the detection system of the self-aware particle sorting system; performing a calibration of the detection system based on the calibrated source; and adjusting at least one at least one gain control function based on the results of the calibration.
Claims 13-18 would be allowable for the same reasons as claim 12.
The closest prior art is Boege et al. (WO 2005/068976 A) discloses an optical device that includes an array of light emitting devices, a neutral density filter and a lens, but does not teach or suggest the limitations of claims 12-18.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Cho et al. (US 2015/0268244 A) discloses a particle sorting system.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL L HOBBS whose telephone number is (571)270-3724. The examiner can normally be reached Variable, but generally 8AM-5PM M-F.
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, Michael Marcheschi can be reached at 571-272-1374. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/MICHAEL L HOBBS/Primary Examiner, Art Unit 1799
Prosecution Insights