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
Applicant’s amendments, filed 26 August 2026, with respect to the claims have been entered. Claims 1-4, 7-11, 13-18, and 20-22 remain pending in the application.
Response to Arguments
Applicant's arguments, filed 26 August 2026, regarding the rejection of claims 17 and 20-22 under 35 U.S.C. 103 have been fully considered but they are not persuasive.
Features of an apparatus may be recited either structurally or functionally (In re Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed. Cir. 1997)), but “apparatus claims cover what a device is, not what a device does” (Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990)(emphasis in original)). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim (Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)), i.e., a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. See MPEP 2114. In the case at hand, Schleifer in view of Hirabayashi teaches the structural limitations of the nebuliser apparatus (see Claim Rejections - 35 USC § 103 below). Therefore, the limitations of the claim are met.
Allowable Subject Matter
Claims 1-4, 7-11, and 13-16 were previously indicated as allowable. However, upon further consideration of the prior art, the indicated allowability of claims 1-4, 7-11, and 13-16 is withdrawn. See Claim Rejections - 35 USC § 103 below.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1-4, 13-15, 17-18, and 21-22 are rejected under 35 U.S.C. 101 because the claimed invention is directed to the abstract idea of a mental process without significantly more. Independent claim 1 recites “determining a position of the capillary…based on the measured flow rate” and “determining, based on the measured flow rate, whether the position of the liquid capillary relative to the outlet aperture is stable.” Similarly, independent claim 17 recites “the position of the liquid capillary relative to the outlet aperture can be determined based on the flow rate measured by the flow meter” and “the apparatus is configured to determine, based on the flow rate measured by the flow meter, whether the position of the liquid capillary relative to the outlet aperture is stable.” These are steps of performing mathematical operations, in particular, determining a numerical position value from a numerical flow rate value and comparing said numerical position value to a desired value (a stable position of the liquid capillary).
The courts consider a mental process (thinking) that "can be performed in the human mind, or by a human using a pen and paper" to be an abstract idea. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 99 USPQ2d 1690, 1695 (Fed. Cir. 2011). As the Federal Circuit explained, "methods which can be performed mentally, or which are the equivalent of human mental work, are unpatentable abstract ideas the ‘basic tools of scientific and technological work’ that are open to all.’" 654 F.3d at 1371, 99 USPQ2d at 1694 (citing Gottschalk v. Benson, 409 U.S. 63, 175 USPQ 673 (1972)). See also Mayo Collaborative Servs. v. Prometheus Labs. Inc., 566 U.S. 66, 71, 101 USPQ2d 1961, 1965 (2012) ("‘[M]ental processes[] and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work’" (quoting Benson, 409 U.S. at 67, 175 USPQ at 675)); Parker v. Flook, 437 U.S. 584, 589, 198 USPQ 193, 197 (1978) (same).
In the instant case, the functions of independent claims 1 and 17 can be performed by the human mind or by a human using pen and paper. For instance, humans are capable of comparing one numerical value to one or more other numerical values, and performing mathematical operations either mentally or with pen and paper.
This judicial exception is not integrated into a practical application because there is no claimed application of the determined values; the independent claims recite only steps of performing mathematical operations to obtain or determine a result, without reciting a use or application of said result.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because all of the remaining claim limitations are either directed to mere data gathering (e.g., measuring a flow rate), or only serve to link the abstract idea to the general field of nebulisers (e.g., a nebuliser comprising an outlet aperture and a liquid capillary; supplying a gas to the outlet aperture).
The courts have found mere data gathering to be insignificant extra-solution activity. For example, the courts found performing clinical tests on individuals to obtain input for an equation to be insignificant extra-solution activity (In re Grams, 888 F.2d 835, 839-40; 12 USPQ2d 1824, 1827-28 (Fed. Cir. 1989)). Similarly, the claimed step of measuring a flow rate of gas is insignificant extra-solution data gathering.
Limitations that amount to merely indicating a field of use or technological environment in which to apply a judicial exception do not amount to significantly more than the exception itself, and cannot integrate a judicial exception into a practical application. Furthermore, use of a machine that contributes only nominally or insignificantly to the execution of the claimed method (e.g., in a data gathering step or in a field-of-use limitation) would not integrate a judicial exception or provide significantly more. (MPEP 2106.05(b)(III)). See Bilski, 561 U.S. at 610, 95 USPQ2d at 1009 (citing Parker v. Flook, 437 U.S. 584, 590, 198 USPQ 193, 197 (1978)), and CyberSource v. Retail Decisions, 654 F.3d 1366, 1370, 99 USPQ2d 1690 (Fed. Cir. 2011) (citations omitted) ("[N]othing in claim 3 requires an infringer to use the Internet to obtain that data. The Internet is merely described as the source of the data. We have held that mere ‘[data-gathering] step[s] cannot make an otherwise nonstatutory claim statutory.’" 654 F.3d at 1375, 99 USPQ2d at 1694 (citation omitted)). The recited limitations “a nebuliser that comprises an outlet aperture and a liquid capillary” and “supplying a gas to the outlet aperture” merely indicate the field of use, i.e., nebulisers, in which to apply the judicial exception. Therefore, the claims do not amount to significantly more than the judicial exception.
Dependent claims 2-4, 13-15, 18, 21, and 22 fail to provide any application of the above abstract ideas. Furthermore, dependent claims 2-4, 13-15, 18, 21, and 22, taken alone or in an ordered combination, fail to recite anything that is significantly more than the abstract idea at issue. Claims 2-4 and 18 simply describe further mathematical operations involving comparing and/or calculating numerical values relating to the flow rate and the capillary position. The limitation “supplying the gas to the outlet aperture at a first pressure” recited in dependent claim 4 merely indicates the field of use, i.e., nebulisers, in which to apply the judicial exception. Similarly, dependent claims 13-15 and 21-22 only recite limitations which merely link the abstract idea to the general fields of nebulisers (claim 13), ionising nebulisers (claims 14, 21), and ion nebulisers for mass spectrometry (claims 15, 22). Therefore, dependent claims 2-4, 13-15, 18, 21, and 22 fail to amount to significantly more than the abstract idea for the same reasons as noted above.
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 1-4, 7-9, and 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over Schleifer et al. (U.S. Patent No. 9,673,032 B1), hereinafter Schleifer, in view of Takada et al. (JP Patent No. 2003203599 A), hereinafter Takada (English machine translation provided in a prior office action).
Regarding claim 1, Schleifer discloses a method of operating a nebuliser that comprises an outlet aperture (FIG. 1C, element 172) and a liquid capillary (FIG. 1C, element 108), the method comprising:
supplying a gas to the outlet aperture (column 8, lines 31-32);
measuring a property of the gas supplied to the outlet aperture (column 12, lines 21-24); and
determining a position of the liquid capillary relative to the outlet aperture based on the measured property (column 12, lines 18-21).
Schleifer fails to disclose that the measured property is a flow rate of the gas, wherein determining the position of the liquid capillary relative to the outlet aperture comprises determining, based on the measured flow rate, whether the position of the liquid capillary relative to the outlet aperture is stable.
However, Schleifer does disclose the desirability of precise positioning of the liquid capillary (column 12, lines 18-21) for maintaining optimal operating conditions over time (column 12, lines 15-17). It would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to determine the position of the capillary a plurality of times during a given time period to evaluate if the capillary is consistently at the same position (i.e., the position is stable) or if the position of the capillary changes over time (i.e., is unstable), in order to ensure that the apparatus is always operating under optimal conditions.
Schleifer fails to disclose that the measured property is a flow rate of the gas.
However, Takada discloses measuring a flow rate of the gas (page 4, paragraph 2); and
determining a position of the liquid capillary based on the measured flow rate (page 4, paragraph 2: controlling the position of the capillary inherently involves determining the capillary’s position, because the initial position of the capillary affects the direction and magnitude of movement to achieve a desired position).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Schleifer to include measuring a flow rate of the gas; and determining a position of the liquid capillary based on the measured flow rate, based on the teachings of Takada that this enables the apparatus to operate at high flow rates (Takada, page 4, paragraph 1).
Regarding claim 2, Schleifer in view of Takada as applied to claim 1 discloses the method of claim 1, including determining the position of the liquid capillary relative to the outlet aperture based on the measured flow rate.
In addition, Schleifer discloses that determining the position of the liquid capillary relative to the outlet aperture comprises:
determining a distance between an outlet of the liquid capillary and the outlet aperture (column 12, lines 18-21) in an axial direction that extends along a length of the nebuliser and/or along a length of the liquid capillary (FIG. 1C, axial direction 186; column 11, lines 17-19).
Regarding claim 3, Schleifer in view of Takada as applied to claim 1 discloses the method of claim 1, including determining the position of the liquid capillary relative to the outlet aperture based on the measured flow rate.
In addition, Schleifer discloses that determining the position of the liquid capillary relative to the outlet aperture comprises:
determining either that (i) the liquid capillary is in a first position relative to the outlet aperture; or that (ii) the liquid capillary is other than in the first position relative to the outlet aperture (column 11, lines 28-31; the first position being the “desired axial position”).
Regarding claim 4, Schleifer in view of Takada as applied to claim 1 discloses the method of claim 1, including determining the position of the liquid capillary relative to the outlet aperture based on the measured flow rate.
In addition, Schleifer discloses supplying the gas to the outlet aperture at a first pressure (column 8, lines 31-32);
comparing the measured property to a first measured property, wherein the first property is a property that is indicative of the liquid capillary being in a first position relative to the outlet aperture when gas is supplied to the outlet aperture at the first pressure (column 11, lines 50-57); and
determining that the liquid capillary is in the first position when the measured property is approximately equal to the first measured property; and/or
determining that the liquid capillary is other than in the first position when the measured property is unequal to the first measured property (column 12, lines 18-21).
Regarding claim 7, Schleifer in view of Takada as applied to claim 3 discloses the method of claim 3, including determining the position of the liquid capillary relative to the outlet aperture based on the measured flow rate.
In addition, Schleifer discloses, when it is determined that the liquid capillary is other than in the first position, altering the position of the liquid capillary relative to the outlet aperture (column 11, lines 5-31).
Regarding claim 8, Schleifer in view of Takada as applied to claim 1 discloses the method of claim 1.
In addition, Schleifer discloses altering the position of the liquid capillary relative to the outlet aperture based on the measured property (column 12, lines 18-21).
Regarding claim 9, Schleifer in view of Takada as applied to claim 8 discloses the method of claim 8.
In addition, Schleifer discloses that altering the position of the liquid capillary relative to the outlet aperture comprises:
altering a distance between an outlet of the liquid capillary and the outlet aperture in an axial direction that extends along a length of the nebuliser and/or along a length of the liquid capillary (FIG. 1C, axial direction 186; column 11, lines 17-19).
Regarding claim 13, Schleifer in view of Takada as applied to claim 1 discloses the method of claim 1.
In addition, Schleifer discloses that the nebuliser is configured such that an outlet of the liquid capillary is withdrawn within the nebuliser and/or other than protrudes beyond the outlet aperture (FIG. 1C: the outlet at the rightmost end of the capillary is internal to sprayer tip 116 of the nebuliser).
Regarding claim 14, Schleifer in view of Takada as applied to claim 1 discloses the method of claim 1.
In addition, Schleifer discloses supplying a liquid to the liquid capillary (column 6, lines 26-30) and nebulising the liquid using the nebuliser (column 3, lines 56-60); and
ionising the liquid (column 2, lines 52-55).
Regarding claim 15, Schleifer in view of Takada as applied to claim 14 discloses the method of claim 14.
In addition, Schleifer discloses a method of mass and/or ion mobility spectrometry (column 16, lines 13-15), the method comprising producing ions by ionizing a liquid sample (column 2, lines 52-55), and analysing the ions (column 2, lines 56-59).
Claims 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over Schleifer in view of Takada as applied to claim 9 above, and further in view of Hasegawa et al. (U.S. Patent Application Publication No. 2023/0141083 A1), hereinafter Hasegawa.
Regarding claim 10, Schleifer in view of Takada as applied to claim 9 discloses the method of claim 9, including determining the position of the liquid capillary relative to the outlet aperture based on the measured flow rate.
Schleifer in view of Takada fails to disclose determining that the distance between the outlet of the liquid capillary and the outlet aperture is greater than a first distance when the measured flow rate is greater than a first flow rate; and/or determining that the distance between the outlet of the liquid capillary and the outlet aperture is less than the first distance when the measured flow rate is less than the first flow rate; and/or determining that the distance between the outlet of the liquid capillary and the outlet aperture is equal to the first distance when the measured flow rate equal to the first flow rate.
However, Hasegawa discloses determining that the distance between the outlet of the liquid capillary and the outlet aperture is greater than a first distance when a measured property of the gas is greater than a first value; and/or
determining that the distance between the outlet of the liquid capillary and the outlet aperture is less than the first distance when a measured property of the gas is less than a first value; and/or
determining that the distance between the outlet of the liquid capillary and the outlet aperture is equal to the first distance when a measured property of the gas equal to the first value (paragraph 0058: the measured property, i.e., current, determines whether the capillary is at a "normal" position, i.e., L, with respect to the outlet aperture; FIG. 7 shows that as the current increases, the position L also increases; therefore, a higher current corresponds to a greater distance and vice versa).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Schleifer in view of Takada to include determining that the distance between the outlet of the liquid capillary and the outlet aperture is greater than a first distance when the measured flow rate is greater than a first flow rate; and/or determining that the distance between the outlet of the liquid capillary and the outlet aperture is less than the first distance when the measured flow rate is less than the first flow rate; and/or determining that the distance between the outlet of the liquid capillary and the outlet aperture is equal to the first distance when the measured flow rate equal to the first flow rate, based on the teachings of Hasegawa that this determination prevents analysis from being performed in a state in which the apparatus is contaminated due to improper positioning of the capillary (Hasegawa, paragraph 0048).
Regarding claim 11, Schleifer in view of Takada and Hasegawa as applied to claim 10 discloses the method of claim 10, including determining the position of the liquid capillary relative to the outlet aperture based on the measured flow rate.
In addition, Hasegawa discloses when it is determined, based on the measured property, that the distance between the outlet of the liquid capillary and the outlet aperture is greater than the first distance, reducing the distance between the outlet of the liquid capillary and the outlet aperture; and/or
when it is determined, based on the measured property, that the distance between the outlet of the liquid capillary and the outlet aperture is less than the first distance, increasing the distance between the outlet of the liquid capillary and the outlet aperture (paragraph 0066).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Schleifer in view of Takada and Hasegawa to include when it is determined, based on the measured flow rate, that the distance between the outlet of the liquid capillary and the outlet aperture is greater than the first distance, reducing the distance between the outlet of the liquid capillary and the outlet aperture; and/or when it is determined, based on the measured flow rate, that the distance between the outlet of the liquid capillary and the outlet aperture is less than the first distance, increasing the distance between the outlet of the liquid capillary and the outlet aperture, based on the additional teachings of Hasegawa that this adjustment prevents analysis from being performed in a state in which the apparatus is contaminated due to improper positioning of the capillary (Hasegawa, paragraph 0048).
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Schleifer in view of Takada as applied to claim 1 above, and further in view of Hirabayashi et al. (JP Patent No. 2001291487 A), hereinafter Hirabayashi (English machine translation provided in a prior office action).
Regarding claim 16, Schleifer in view of Takada as applied to claim 1 discloses the method of claim 1.
Schleifer in view of Takada fails to disclose providing a gas flow controller having a gas flow meter, wherein said step of measuring the flow rate of the gas supplied to the outlet aperture comprises measuring the flow rate of the gas using the gas flow meter, and wherein the gas flow controller adjusts the flow rate of gas to the outlet aperture based on a gas flow rate measured by the gas flow meter.
However, Hirabayashi discloses providing a gas flow controller (FIG. 1, element 4) having a gas flow meter (page 6, paragraph 0025), wherein said step of measuring the flow rate of the gas supplied to the outlet aperture comprises measuring the flow rate of the gas using the gas flow meter (page 6, paragraph 0025), and wherein the gas flow controller adjusts the flow rate of gas to the outlet aperture based on a gas flow rate measured by the gas flow meter (page 5, paragraph beginning “FIG. 1 is a block diagram…” through paragraph ending “200 m / s or more”).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Schleifer in view of Takada to include providing a gas flow controller having a gas flow meter, wherein said step of measuring the flow rate of the gas supplied to the outlet aperture comprises measuring the flow rate of the gas using the gas flow meter, and wherein the gas flow controller adjusts the flow rate of gas to the outlet aperture based on a gas flow rate measured by the gas flow meter, based on the teachings of Hirabayashi that maintaining a particular flow rate is important to avoid fragmentation of the sample at the capillary tip (Hirabayashi, page 4, paragraph beginning “when the characteristic value F / S…”).
Claims 17 and 20-22 are rejected under 35 U.S.C. 103 as being unpatentable over Schleifer in view of Hirabayashi.
Regarding claim 17, Schleifer discloses a nebuliser apparatus comprising:
a nebuliser comprising an outlet aperture (FIG. 1C, element 172) and a liquid capillary (FIG. 1C, element 108), wherein the nebuliser is configured such that an outlet of the liquid capillary is withdrawn within the nebuliser (FIG. 1C: the outlet at the rightmost end of the capillary is internal to sprayer tip 116 of the nebuliser), and wherein the apparatus is configured such that the position of the liquid capillary relative to the outlet aperture can be altered (FIG. 1C, axial direction 186; column 11, lines 17-19);
a gas supply configured to supply gas to the outlet aperture (column 8, lines 31-32); and
a sensor configured to measure a property of the gas supplied to the outlet aperture (column 12, lines 18-26);
wherein the apparatus is configured such that the position of the liquid capillary relative to the outlet aperture can be determined based on the property measured by the sensor (column 12, lines 18-21).
Schleifer fails to disclose that the sensor is a flow meter; and that the measured property is a flow rate of the gas.
However, Hirabayashi discloses a flow meter configured to measure a flow rate of the gas supplied to the outlet aperture (page 6, paragraph 0025).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Schleifer to include a flow meter configured to measure a flow rate of the gas supplied to the outlet aperture, based on the teachings of Hirabayashi that maintaining a particular flow rate is important to avoid fragmentation of the sample at the capillary tip (Hirabayashi, page 4, paragraph beginning “when the characteristic value F / S…”).
The limitation “wherein the apparatus is configured to determine, based on the flow rate measured by the flow meter, whether the position of the liquid capillary relative to the outlet aperture is stable” is a functional limitation. Features of an apparatus may be recited either structurally or functionally (In re Schreiber, 128 F.3d 1473, 1478, 44 USPQ2d 1429, 1432 (Fed. Cir. 1997)), but “apparatus claims cover what a device is, not what a device does” (Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990)(emphasis in original)). A claim containing a "recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus" if the prior art apparatus teaches all the structural limitations of the claim (Ex parte Masham, 2 USPQ2d 1647 (Bd. Pat. App. & Inter. 1987)), i.e., a recitation of the intended use of the claimed invention must result in a structural difference between the claimed invention and the prior art in order to patentably distinguish the claimed invention from the prior art. If the prior art structure is capable of performing the intended use, then it meets the claim. See MPEP 2114. In the case at hand, the combined teachings of Schleifer in view of Hirabayashi disclose a nebuliser apparatus which meets the structural limitations of the claim and is capable of determining the position of the liquid capillary relative to the outlet aperture. Therefore, the claim limitations are met.
Regarding claim 20, Schleifer in view of Hirabayashi as applied to claim 17 discloses the apparatus of claim 17.
In addition, Hirabayashi discloses a gas flow controller (FIG. 1, element 4) that comprises the flow meter (page 6, paragraph 0025), wherein the gas flow controller is configured for adjusting the flow rate of gas to the outlet aperture based on a gas flow rate measured by the flow meter (page 5, paragraph beginning “FIG. 1 is a block diagram…” through paragraph ending “200 m / s or more”).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Schleifer in view of Hirabayashi to include a gas flow controller that comprises the flow meter, wherein the gas flow controller is configured for adjusting the flow rate of gas to the outlet aperture based on a gas flow rate measured by the flow meter, based on the additional teachings of Hirabayashi that maintaining a particular flow rate is important to avoid fragmentation of the sample at the capillary tip (Hirabayashi, page 4, paragraph beginning “when the characteristic value F / S…”).
Regarding claim 21, Schleifer in view of Hirabayashi as applied to claim 17 discloses the nebuliser apparatus of claim 17.
In addition, Schleifer discloses an ion source comprising the nebulizer apparatus (column 2, lines 25-31).
Regarding claim 22, Schleifer in view of Hirabayashi as applied to claim 21 discloses the ion source of claim 21.
In addition, Schleifer discloses an analytical instrument comprising the ion source (column 2, lines 32-37), wherein the analytical instrument comprises a mass and/or ion mobility spectrometer (column 16, lines 13-15).
Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Schleifer in view of Hirabayashi as applied to claim 17 above, and further in view of Hasegawa et al. (U.S. Patent Application Publication No. 2023/0141083 A1), hereinafter Hasegawa.
Regarding claim 18, Schleifer in view of Hirabayashi as applied to claim 17 discloses the apparatus of claim 17, including determining the position of the liquid capillary relative to the outlet aperture based on the measured flow rate.
Schleifer in view of Hirabayashi fails to disclose information indicative of a first flow rate, wherein the first flow rate is a flow rate that is indicative of the liquid capillary being in a first position relative to the outlet aperture; wherein the apparatus is configured such that the position of the liquid capillary relative to the outlet aperture can be determined by comparing the measured flow rate to the first flow rate.
However, Hasegawa discloses information indicative of a first measured property, wherein the first measured property is a measured property that is indicative of the liquid capillary being in a first position relative to the outlet aperture (paragraph 0066, the first measured property being the value of the current when the capillary is at the “normal position”);
wherein the apparatus is configured such that the position of the liquid capillary relative to the outlet aperture can be determined by comparing the measured property to the first measured property (paragraph 0066).
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the claimed invention, to have modified Schleifer in view of Hirabayashi to include information indicative of a first flow rate, wherein the first flow rate is a flow rate that is indicative of the liquid capillary being in a first position relative to the outlet aperture; wherein the apparatus is configured such that the position of the liquid capillary relative to the outlet aperture can be determined by comparing the measured flow rate to the first flow rate, based on the teachings of Hasegawa that this determination prevents analysis from being performed in a state in which the apparatus is contaminated due to improper positioning of the capillary (Hasegawa, paragraph 0048).
Conclusion
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/A.K./Examiner, Art Unit 2881 /MICHAEL J LOGIE/ Primary Examiner, Art Unit 2881
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