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 Arguments
Applicant's arguments filed 04/13/2026 have been fully considered but they are not persuasive.
Applicant argues Ogra describes deuterium in a collision cell, in contrast to an ion trap as required by the currently amended claims. However, the reaction/collision cell taught by Ogra is an “octopole reaction system (Ogra; Section 2.3)”, which is a type of ion trap. Therefore, because the collision cell of Ogra contains an ion trap, Ogra describes the use of deuterium in an ion trap, in a collision cell.
In response to applicant's argument that a person of ordinary skill in the art would not have had any motivation to modify selenium ion interference in a collision cell for use in inducing collisional damping in an ion trap, and that the combination of such references does not lead to the results of the present disclosure, the fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985). Claim 1 recites “an analytical instrument, the analytical instrument comprising; an ion trap, the ion trap is filled with deuterium gas.” Ogra teaches benefits of using deuterium in a collision cell/ion trap, such as more accurate results for Se detection and lower cost of flow rate per hour than that of an Ar plasma source (Ogra; Section: Conclusion). Therefore, Ogra provides motivation to one of ordinary skill in the art before the effective filing date of the claimed invention to use deuterium in a collision cell with an ion trap.
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.
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.
Claims 1-5, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Mcalister et al. (US20200051800), hereinafter referred to as Mcalister, and in further view of Yasumitsu Ogra et al, “Effects of deuterium in octupole reaction and collision cell ICP-MS on detection of selenium in extracellular fluids”, 4 December 2005, Analytica Chimica Acta, Volume 554, Issued 1-2, 123-129, hereinafter referred to as Ogra.
Regarding claim 1, Mcalister teaches an analytical instrument (mass spectrometer system 1), the analytical instrument comprising; an ion trap (The mass analyzer 40, which may comprise a quadrupole ion trap (para. [0004])),
Mcalister fails to teach wherein the ion trap is filled with deuterium gas.
However, Ogra teaches wherein the ion trap is filled with deuterium gas (Table 1 as annotated below).
Ogra teaches an octopole collision cell filled with deuterium gas, wherein an octopole is a type of ion trap. 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 device in Mcalister to include the teachings of Ogra by using deuterium gas in the ion trap of Mcalister. Ogra teaches benefits of using deuterium in a an ion trap such as more accurate results for Se detection and lower cost of flow rate per hour than that of an Ar plasma source (Ogra; Section: Conclusion).
Regarding claim 2, Mcalister teaches the analytical instrument of claim 1, wherein the analytical instrument comprises a mass spectrometer (fig. 1A as annotated below).
Regarding claim 3, Mcalister teaches the analytical instrument of claim 1, wherein the ion trap is quadrupole ion trap (fig. 1A as annotated below).
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Regarding claim 4, Mcalister teaches the analytical instrument of claim 1, wherein the ion trap is a mass analyzer (The mass analyzer 40, which may comprise a quadrupole ion trap (para. [0004])).
Regarding claim 5, Mcalister teaches the analytical instrument of claim 1, wherein the analytical instrument comprises a chromatography system in combination with a mass spectrometer (the sample inlet may be an outlet end of a chromatographic column, such as liquid or gas chromatograph (not depicted (para. [0003])).
Regarding claim 21, Mcalister fails to teach the analytical instrument of claim 1, further comprising a collision cell filled with deuterium gas.
However, Ogra teaches a collision cell filled with deuterium gas (Table 1 above).
Ogra teaches an octopole collision cell, which is an ion trap inside a collision cell, filled with deuterium gas. Therefore, Ogra teaches a collision cell filled with deuterium gas.
Claims 6-7 are rejected under 35 U.S.C. 103 as being unpatentable over Mcalister and Ogra, as applied to claim 1 above, and in further view of Hatanaka et al. (JPH0982273A), hereinafter referred to as “Hatanaka”.
Regarding claim 6, Mcalister does not explicitly teach wherein the gas is provided by a cylinder of deuterium gas.
However, Hatanaka teaches wherein the gas is provided by a cylinder of deuterium gas (gas cylinder 14).
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 device described in Mcalister such that the deuterium gas is stored in a cylindrical container in order to achieve the predictable result of safely storing the deuterium gas at high pressures.
Regarding claim 7, Mcalister does not explicitly teach wherein the gas is provided by a deuterium generator.
However, Hatanaka teaches wherein the gas is provided by a deuterium generator (Further, as a method for supplying deuterium, it is possible not only to easily control the amount of deuterium atoms generated by passing through a diffusion and permeation process in the Pd film, but also to reduce the mixing of impurity gas (para. [0020])).
It would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device described in Mcalister to include a deuterium generator, taught by Hatanaka, to provide deuterium to the ion trap and/or collision cell.
Claims 8-9 are rejected under 35 U.S.C. 103 as being unpatentable over Mcalister in view of Ogra, as applied to claim 1 above, and in further view of Christie G. Enke et al. (US 4234791 A), hereinafter referred to as Enke.
Regarding claim 8, Mcalister does not explicitly teach the analytical instrument of claim 1, wherein the gas is provided at a pressure of at least 0.1 mTorr.
However, Enke teaches wherein the gas is provided at a pressure of at least 0.1 mTorr (A collision gas, which may be argon, is introduced into the quadrupole-type device at pressures up to 2.times.10.sup.-3 torr, or even higher (col. 6, lines 2-4)) (.002 Torr= 2 mTorr).
Optimizing the pressure of a collision gas in mass spectrometry is well within the bounds of normal experimentation. See MPEP 2144.05 II (A). “[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to dis-cover the optimum or workable ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Furthermore, “[a] particular parameter must first be recognized as a result-effective variable, i.e., a variable which achieves a recognized result, before the determination of the optimum or workable ranges of said variable might be characterized as routine experimentation.” In re Antonie, 559 F.2d 618, 195 USPQ 6 (CCPA 1977). In the case at hand, Enke teaches that “The collection efficiency in the quadrupole CID region has been found experimentally to be virtually 100%. There is no detectable loss of ions due to scattering, neutralization, or similar mechanisms at pressures up to 2.times.10.sup.-4 torr (col. 12, lines 5-9)” . As such, Enke identifies gas pressure as a variable which achieves a recognized result, i.e., [minimizing the loss of ions due to scattering, neutralization, or similar mechanisms]. Accordingly, it would have been obvious to one of ordinary skill in the art before the effective time of filing to optimize gas pressure in Mcalister, in view of Ogra, such that the gas (collision gas (Mcalister; para. [0005])), taught by Ogra to be Deuterium, is provided at atleast 0.1 mTorr, as taught by Enke, since it is not inventive to dis-cover the optimum or workable ranges by routine experimentation.
Regarding claim 9, Mcalister fails to teach the analytical instrument of claim 8, wherein the gas is provided at a pressure of about 1 mTorr to about 10 mTorr.
However, Enke teaches wherein the gas is provided at a pressure of about 1 mTorr to about 10 mTorr (A collision gas, which may be argon, is introduced into the quadrupole-type device at pressures up to 2.times.10.sup.-3 torr, or even higher(col. 6, lines 2-4)) (.002 Torr= 2 mTorr).
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 10-11, 13, 17, and 19-20, and 22-23 are rejected under 35 U.S.C. 102(a)(1) as being clearly anticipated by Ogra.
Regarding claim 10, Ogra teaches a method of using a gas in an analytical instrument, the method comprising: using a deuterium gas as a primary gas in an ion trap (In this study, the utility of deuterium (D2) in place of H2 as a reaction gas was clarified (para. [0004])) (table 1 as annotated above).
The reaction cell in Ogra is an octopole reaction cell which is a type of ion trap. Therefore, the reaction cell contains an ion trap in which deuterium is used as a primary gas.
Regarding claim 11, The method of claim 10, further comprising using the ion trap in a mass spectrometer (To this end, ICP-MS equipped with a reaction/collision cell was developed as an alternative technique to ICP with high-resolution MS, in order to overcome this problem posed by the polyatomic interferences (para. [0002])) in combination with a chromatography system (The ICP-MS was coupled to an HPLC system as the detector for the Se speciation (para. [0007])).
Regarding claim 13, Ogra teaches the method of claim 11, wherein the chromatography system is a liquid chromatography system (The ICP-MS was coupled to an HPLC system as the detector for the Se speciation (para. [0007])).
The reaction cell in Ogra contains an ion trap filled with deuterium gas. Therefore, Ogra teaches using deuterium gas in a collision cell.
Regarding claim 17, A method of mass spectrometry, the method comprising: generating first ions (the determination of Se in serum and urine samples in each reaction mode was conducted at m/z 77, 78, 80 and 82 (para. [0008])); processing the first ions an ion trap filled with a deuterium gas (Table 1 as annotated above); and analysing the first ions or second ions derived from the first ions or both (Hence, the effects of D2 not only on the determination but also on the speciation of Se in ICP-MS were evaluated (para. [0004])).
The reaction cell in Ogra is an octopole reaction cell which is a type of ion trap. Therefore, the reaction cell contains an ion trap in which deuterium is used as a primary gas.
Regarding claim 19, Ogra teaches the method of claim 17, wherein processing the first ions comprises fragmenting the first ions by colliding them with the deuterium gas to produce fragment ions, and the analysing comprises analysing the fragment ions ions (Thus, D2 was effective in dissociating polyatomic interferences and removing Br interferences during Se determination and speciation (abstract)) (In the D2 reaction mode, the interference was well dissociated at m/z 82, and the formation of 81Br2D+ was newly observed at m/z 83. 82Se1H+ and 82Se2D+ were detected at m/z 83 and 84, respectively (para. [0012])).
Regarding claim 20, Ogra teaches the method of claim 17, wherein processing the first ions comprises reacting the first ions with the deuterium gas (In this study, deuterium (D2) was evaluated for possible use as a reaction gas) to produce secondary ions, and the analysing comprises analysing the secondary ions ((Thus, D2 was effective in dissociating polyatomic interferences and removing Br interferences during Se determination and speciation (abstract)) (In the D2 reaction mode, the interference was well dissociated at m/z 82, and the formation of 81Br2D+ was newly observed at m/z 83. 82Se1H+ and 82Se2D+ were detected at m/z 83 and 84, respectively (para. [0012])).
Regarding claim 22, Ogra teaches the method of claim 10, further comprising using a deuterium gas in a collision cell (Table 1 above).
Regarding claim 23, Ogra teaches the method of claim 17, wherein processing the first ions is performed using an analytical instrument comprising a collision cell filled with deuterium gas (Table 1 above).
Claims 12 is rejected under 35 U.S.C. 103 as being unpatentable over Ogra, as applied to claim 11 above, in view of Mcalister.
Regarding claim 12, Ogra fails to teach the method of claim 11, wherein the chromatography system is a gas chromatography system
However, Mcalister teaches the method of claim 11, wherein the chromatography system is a gas chromatography system (such as liquid or gas chromatograph (not depicted), from which an eluate is supplied to the ion source (para. [0003])).
Both Mcalister and Ogra teach chromatograph systems in combination with mass spectrometer. Ogra teaches a liquid chromatograph in combination with a mass spectrometer. Mcalister teaches both a liquid or gas chromatograph in combination with a mass spectrometer. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date to modify the method described in Ogra to include the teachings of Mcalister such that the chromatograph is a gas chromatograph. Doing so is a simple substitution of one known element for another to obtain predictable results because gas chromatography and liquid chromatography are both well-known ways to supply a sample to a mass spectrometer.
Claims 14 is rejected under 35 U.S.C. 103 as being unpatentable over Ogra in view of Mcalister, as applied to claim 12 above, and in further view of Hatanaka.
Regarding claim 14, Ogra fails to teach the method of claim 12, further comprising providing the deuterium gas via a deuterium gas generator system or via a compressed cylinder of deuterium gas.
However, Hatanaka teaches further comprising providing the deuterium gas via a deuterium gas generator system or via a compressed cylinder of deuterium gas (deuterium gas cylinder 14).
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 device described in Ogra such that the deuterium gas is stored in a cylindrical container in order to achieve the predictable result of safely storing the deuterium gas at high pressures.
Claims 15 is rejected under 35 U.S.C. 103 as being unpatentable over Ogra, as applied to claim 13 above, and in further view of Hatanaka.
Regarding claim 15, Ogra fails to teach the method of claim 13, further comprising providing the deuterium gas via a deuterium gas generator system or via a compressed cylinder of deuterium gas.
However, Hatanaka teaches, further comprising providing the deuterium gas via a deuterium gas generator system or via a compressed cylinder of deuterium gas (deuterium gas cylinder 14).
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 device described in Ogra such that the deuterium gas is stored in a cylindrical container in order to achieve the predictable result of safely storing the deuterium gas at high pressures.
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Ogra, as applied to claim 10 above, and in further view of Noriyuki Yamada (US 11443933), hereinafter referred to as Yamada.
Regarding claim 16, Ogra fails to teach the method of claim 10, wherein the ion trap is a quadrupole ion trap.
However, Yamada teaches wherein the ion trap is a quadrupole ion trap (That is, the ICP-MS system 200 includes three linear quadrupole devices arranged in series along the main ion optical axis: a first (or pre-LIT) linear quadrupole ion guide (Q1) 256, followed by a linear quadrupole ion trap (LIT) 212 (col. 14, lines 41-44)).
Ogra teaches the use of ICP-MS. Yamada teaches a quadrupole ion trap used in an ICP-MS system. Therefore, 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 device described in Ogra, to incorporate the teachings of Yamada, by including a quadrupole ion trap. The incorporation of a quadrupole ion trap in an ICP-MS is applying a known technique to a known device to yield predictable results.
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Ogra, as applied to claim 17 above, and in further view of Melvin A. Park (US 20030042412), hereinafter referred to as Park.
Regarding claim 18, Ogra fails to teach the method of claim 17, wherein processing the first ions comprises collisionally cooling the first ions.
However, Park teaches wherein processing the first ions comprises collisionally cooling the first ions (More specifically, a first multipole (preferably a quadrupole) is used to select precursor ions, the ions are allowed to collide with a collision surface, and the fragment ions thereby produced are collisionally cooled in a second multipole and then mass analyzed in a mass analyzer (preferably a TOF mass analyzer (para. [0039])).
Both Ogra and Park teach collision cells. 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 device described in Ogra to include the teachings of Park such that the first ions (serum), in Ogra, are collisionally cooled. Doing so produces the predictable result to one of ordinary skill in the art of obtaining “a higher resolution mass spectrum (Park; para. [0010])”
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICA J. EINHORN whose telephone number is (571)272-4641. The examiner can normally be reached Mon-Fri. 7:30am-5pm.
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/MICA JILLIAN EINHORN/Examiner, Art Unit 2881
/ROBERT H KIM/Supervisory Patent Examiner, Art Unit 2881
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