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 .
Response to Amendment
The preliminary amendment filed on December 6, 2023 is acknowledged. The application will be examined accordingly.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on December 14, 2023 is being considered by the examiner.
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 is objected to because its disclosure does not properly reflect the subject matter of the claimed invention. 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 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 32-36 and 38-43 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.
Claim 32 recites “the images”. There is no antecedent basis for the limitation. The claim previously recites “one or more images”. For examination purposes, the limitation and subsequent references to said limitation will be interested as “the one or more images”.
The scope of claim 32 is ambiguous. It is unclear whether the recitation “to implement the following steps” intends to convey intended use of the instructions, or whether the recitation intends to convey that the steps are part of the instructions. If the claim intends to convey the latter, then the claim should be amended to recite, for example, “the processor being configured for executing the instructions, wherein the instructions comprise the following steps:”
Likewise, claims 38, 41 and 42 are ambiguous, and hence indefinite.
Claim 33 is grammatically ambiguous. Grammatically, the claim conveys that the focal planes represent the z-stack of images. However, it appears that the claim intends to convey that the images represent the z-stack of images. Clarification and appropriate correction is required.
In claim 39, the source of the z-stack of images is unclear. According to claim 33, the claimed images merely “represent” the z-stack of images. In other words, the z-stack of images is not positively recited. It is recited solely to define the claimed images, and hence the z-stack of images does not physically exist according to the claim. Consequently, it is unclear where the z-stack of images in claim 39 is obtained to perform the comparison.
Likewise, claim 40 is indefinite. Claim 40 recites a step of cropping the z-stack of images even though the z-stack of images does not exist.
Claims 36 and 43 recite “scored phenotypes”. The limitation lacks proper context. The source of the scored phenotypes being saved is unclear. Claim 32 recites “at least one phenotype” and the claim already recites a step of saving the at least one phenotype. It is unclear whether claims 36 and 43 are referring back to this step.
Claims not explicitly rejected are rejected due to dependency.
Claim Interpretation
The claimed invention is directed to an analyzer, not a method. Consequently, recitation of method steps not intrinsically tied to the analyzer merely conveys intended use of the analyzer, and hence such recitation will be interpreted accordingly (i.e. the recitation is anticipated if the prior art analyzer is simply capable of performing the intended use, regardless of whether the analyzer actually performs the intended use). For example, claim 39 recites a step of comparing a z-stack of images without specifying that the processor is configured to perform it. The broadest reasonable interpretation of the claim conveys a step that is performed manually.
Claim Rejections - 35 USC § 102
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 32-36 and 38-43 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kachurin et al. (“Kachurin”) (US 2011/0097705 A1).
With respect to claim 32, Kachurin discloses an automated image analyzer for analyzing images of content of a microfluidic device (microplate) having a plurality of trapping devices (wells) (see Fig. 2B), the image analyzer comprising a processor and instructions (see [0073] disclosing image processing), the processor being configured to execute the instructions to implement the following steps:
identifying desired content (erythrocytes in the wells) in one or more images of at least one of a plurality of trapping devices (see [0075]);
cropping the one or more images to remove portions of the one or more images that do not include the desired content (see [0077]);
displaying the one or more images including the desired content on a graphical user interface (see [0077] and Fig. 3B); and
receiving and saving features of interest (hemagglutination) about the desired content (erythrocytes) and at least one phenotype (HAP value) of the features of interest (see [0078] and [0079]). Also, in order for the analyzer to perform the steps disclosed in [0075]-[0079], the hemagglutination and the corresponding HAP value must be saved locally on said computer.
With respect to claim 33, as discussed above (see 35 U.S.C. 112 rejection of claim 32), the limitation “the images” lacks proper antecedent basis, and hence it is being interpreted as “one or more images”. That said, the claim requires a single image that is from a focal plane, which encompasses all images. Moreover, the image is the result of mapping several images on top of one another (see [0077]), and hence it “represents” a z-stack of images.
With respect to claim 34, as discussed above (see “claim interpretation”), recitation of method steps not intrinsically tied to the analyzer merely conveys intended use. In this instance, the analyzer taught by Kachurin enables display settings to be adjusted in real time (see [0077] disclosing converting image to negative grayscale).
With respect to claim 35, as discussed above (see “claim interpretation”), recitation of method steps not intrinsically tied to the analyzer merely conveys intended use. In this instance, the analyzer taught by Kachurin enables use of a particle size filter display settings to be adjusted (see [0077] disclosing use of intensity thresholding that removes pixels of non-interest).
With respect to claim 36, as discussed above (see “claim interpretation”), recitation of method steps not intrinsically tied to the analyzer merely conveys intended use. In this instance, the analyzer taught by Kachurin uses a computer to obtain the at least one phenotype (HAP value) (see [0073]-[0079]). Naturally, scored phenotypes (HAP values) are capable of being saved into a multi-dimensional array for graphical representation and statistical analysis.
With respect to claim 38, the processor taught by Kachurin is configured to display scored phenotypes on a graphical user interface (see [0078] disclosing displaying HAP value).
With respect to claim 39, the claim recites a method step not intrinsically tied to the analyzer. Consequently, Kachurin need not teach the method step to anticipate the claim. Moreover, the claim does not specify what is performing the comparison, meaning the claim does not even convey intended use of the claimed analyzer. Because the subject matter of claim 39 is unrelated to the claimed analyzer, the claim is not deemed to further limit the claimed analyzer. Consequently, the claim is rejected by Kachurin.
With respect to claim 40, identifying the desired content includes identifying trapping channels (wells) and cropping the image to represent portions of the trapping channels (see [0077]).
With respect to claim 41, the processor taught by Kachurin is configured to analyze features of interest (erythrocytes) in one or more focal planes (see [0077]) and categorize at least one phenotype (HAP value) of the features of interest (see [0078]).
With respect to claim 42, the processor taught by Kachurin is configured to display scored phenotypes on a graphical user interface (see [0078] disclosing display of HAP values).
With respect to claim 43, as discussed above (see “claim interpretation”), recitation of method steps not intrinsically tied to the analyzer merely conveys intended use. In this instance, the analyzer taught by Kachurin uses a computer to obtain the at least one phenotype (HAP value) (see [0073]-[0079]). Naturally, scored phenotypes (HAP values) are capable of being saved into a multi-dimensional array for graphical representation and statistical analysis.
Conclusion
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.
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, 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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