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/Amendments
Applicant’s amendments filed 3/30/2026 overcome the previous 102 and 103 prior art rejections. Therefore, the previous 102 and 103 rejections have been withdrawn.
Applicant’s amendments filed 3/30/2026 overcome the previous 101 rejections. Therefore, the previous 101 rejections have been withdrawn.
However, Applicant’s amendments filed 3/30/2026 raise the issue of new matter (see the 112 rejection below).
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1, 3-7, 17-18, 21, 24, 42-44, and 48-25 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The amended claims require “determining a change in measurement variance comprising a change in baseline sampling variance and detector signal intensity variance.” For support, Applicant’s remarks point to page 18, lines 9-30; page 20, line 26 – page 21, line 11; page 30, lines 7-25. The examiner reviewed the specification, including these pages, but the examiner did not find support for the amendments, for the following reasons:
1) The examiner found no mention of determining a change in the measurement variance. Instead, the examiner found an equation to calculate the measurement variance (page 18, lines 5-10), but the examiner found no description or mention of calculating or determining a change in the measurement variance.
2) The examiner did see a mention of adjusting the baseline sampling variance, which implies that the baseline sampling variance is changed/adjusted (page 18, lines 10-15). And the measurement variance is a function of multiple parameters including the baseline sampling variance. However, the examiner found no mention that the measurement variance is re-calculated to determine a change in the measurement variance, or that a change in the measurement variance is determined in any other way.
3) The examiner found no description in the originally filed specification of “determining a change in measurement variance comprising a change in … detector signal intensity variance.” The specification describes determining a measurement variance based on a “photodetector signal intensity” (page 19, line 10); however, the examiner did not find a description of determining a change in the measurement variance based on a detector signal intensity variance.
4) Regarding “a weighting component that is calculated from the change in baseline sampling and the detector signal intensity variance,” page 30, lines 5-10 describes computing a new weight matrix using a change to each wi, but the examiner did not see a description of calculating it from the change in baseline sampling and the detector signal intensity variance.
Allowable Subject Matter
Claims 1, 3-7, 17-18, 21, 24, 42-44, 48-52 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(a), set forth in this Office action. The following is a statement of reasons for the indication of allowable subject matter: The prior art of record (taken alone or in combination) fails to anticipate or render obvious, “determining a change in measurement variance comprising a change in baseline sampling variance and detector signal intensity variance in the detected light for each particle for each photodetector; spectrally resolving light from each fluorophore in the sample with a weighted least squares algorithm that uses a weighting component that is calculated from the change in baseline sampling variance and the detector signal intensity variance determined for each particle,” in combination with the other claimed limitations.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 RUFUS L PHILLIPS whose telephone number is (571)270-7021. The examiner can normally be reached M-Th, 2 -10 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michelle Iacoletti can be reached at (571) 270-5789. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RUFUS L PHILLIPS/ Examiner, Art Unit 2877
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