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 .
Drawings
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description:
FIG. 3: element d
FIG. 8: element 118-2
Corrected drawing sheets in compliance with 37 CFR 1.121(d), or amendment to the specification to add the reference character(s) in the description in compliance with 37 CFR 1.121(b) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because the abstract exceeds 150 words in length. 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).
The specification is objected to as failing to provide proper antecedent basis for the claimed subject matter. See 37 CFR 1.75(d)(1) and MPEP § 608.01(o). Correction of the following is required:
Claim 8 recites “a separation unit”. The specification discloses that “the incident light beams L111-1 and L111-2 are separated into the optical path on the imaging element 121-1 side and the optical path on the imaging element 121-2 side” (page 26, paragraph 0103). However, the specification discloses that this separation occurs as a result of “this processing”, which refers to half mirrors 114-1 and 114-2 (page 26, paragraph 0103). There is no disclosure in the specification of an element referred to as “a separation unit”.
Claim Objections
Claim 10 is objected to because of the following informalities: “the first imaging element that simultaneously receives the incident light beam of the first wavelength and the incident light beam of the second wavelength having been adjusted by the phase difference adjustment unit such that a phase difference is π to output a pixel signal…” is unclear. For the purpose of compact prosecution, the Examiner has interpreted “the first imaging element that simultaneously receives the incident light beam of the first wavelength and the incident light beam of the second wavelength having been adjusted by the phase difference adjustment unit such that a phase difference is π to output a pixel signal…” to mean “the first imaging element that simultaneously receives the incident light beam of the first wavelength and the incident light beam of the second wavelength having been adjusted by the phase difference adjustment unit such that a phase difference is π is configured to output a pixel signal…”
Appropriate correction is required.
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitations are as follows:
Claim 1:
“a phase adjustment unit that matches phases of incident light…”
“a wavelength adjustment unit that matches a wavelength…”
“a phase difference adjustment unit that adjusts a phase difference…”
“a first imaging element that simultaneously receives the incident light beams…”
Claim 8:
“a separation unit that separates each of the incident light beams…”
“a second imaging element…that simultaneously receives the other parts…”
The corresponding structures in the disclosure for performing the claimed functions, respectively, are as follows:
Claim 1:
“a unit that adjusts a distance dx between the objective lens 111-2 and the collimator lens 112, and can adjust the phase of the incident light beam…by adjusting the optical path length of the incident light beam L111-2 by adjusting the distance dx” (paragraph 0096)
“a transparent medium that transmits light” (paragraph 0046)
“a transparent medium that transmits light” (paragraph 0082)
“a complementary metal oxide semiconductor (CMOS) image sensor, or a charged coupled device (CCD) image sensor” (paragraph 0089)
Claim 8:
A half mirror (paragraph 0103)
“a complementary metal oxide semiconductor (CMOS) image sensor, or a charged coupled device (CCD) image sensor” (paragraph 0089)
Because these claim limitations are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, they are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have these limitations interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitations to avoid them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitations recite sufficient structure to perform the claimed function so as to avoid them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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.
Claim 7 is 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 specification fails to describe “a half mirror that transmits a part of the incident light beam of the first wavelength through the first imaging element” (emphasis added). The specification describes “[t]he half mirror 114-3 reflects sub parts…of the incident light beams…to cause the reflected parts to enter the imaging element 121-2 via the image forming lens 120-2, and emits the other sub parts different from the sub parts to the outside” (see, e.g., paragraph 0077, page 20, lines 15-21). However, no disclosure is made of light being transmitted through an imaging element.
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 14-15 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 14 recites the limitation "the incident light beam of the first wavelength and the incident light beam of the second wavelength condensed by the first objective lens and the second objective lens" at page 46, lines 1-4. There is insufficient antecedent basis for this limitation in the claim. For the purpose of compact prosecution, the Examiner has interpreted “the incident light beam of the first wavelength and the incident light beam of the second wavelength condensed by the first objective lens and the second objective lens” to mean “the incident light beam of the first wavelength and the incident light beam of the second wavelength having passed through
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 10-13 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 10 recites “the second imaging element simultaneously receives the incident light beam of the first wavelength and the incident light beam of the second wavelength…”. This fails to include all the limitations of claim 8, upon which claim 10 depends. Claim 8 recites that the second imaging element “receives the other parts of the respective incident light beams…” (emphasis added), i.e., the second imaging element does not receive the incident light beams of the first and second wavelengths as a whole; rather, the second imaging element receives only a portion of the incident light beams.
Claims 11-13 are rejected because of their dependence on claim 10.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 1-2 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Zhuang (WO Patent No. 2019216213 A1), hereinafter Zhuang (English machine translation provided), in view of Ozawa (U.S. Patent Application Publication No. 2017/0184449 A1), hereinafter Ozawa.
Regarding claim 1, Zhuang discloses an imaging device (FIG. 11, element 100) comprising:
a phase adjustment unit that matches phases of incident light (paragraph spanning the end of page 11 to the beginning of claim 12) including a light beam of a first wavelength and a light beam of a second wavelength that are different (page 9, paragraph 5); and
a wavelength adjustment unit that matches a wavelength of the incident light beam of the first wavelength having been polarized by the polarizing plate with a wavelength of the incident light beam of the second wavelength (page 4, last line; the prism is the wavelength adjustment unit).
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, Zhuang teaches the structural limitations of the phase adjustment unit and the wavelength adjustment unit, i.e., a unit that adjusts a distance between the objective lens and the collimator lens (phase adjustment unit; see Claim Interpretation supra); and a transparent medium that transmits light (wavelength adjustment unit; see Claim Interpretation supra). Therefore, the limitations “a phase adjustment unit that matches phases…” and “a wavelength adjustment unit that matches a wavelength…” are met.
Zhuang fails to disclose a polarizing plate that polarizes the incident light beams of the first wavelength and the second wavelength into a same polarization direction; a phase difference adjustment unit that adjusts a phase difference to be n, the phase difference being between the incident light beam of the first wavelength and the incident light beam of the second wavelength; and a first imaging element that simultaneously receives the incident light beams of the first wavelength and the second wavelength having been adjusted by the phase difference adjustment unit such that the phase difference is π.
However, Ozawa discloses a polarizing plate (FIG. 15, element 201) that polarizes the incident light beams of the first wavelength and the second wavelength into a same polarization direction;
a phase difference adjustment unit (FIG. 3, element 72) that adjusts a phase difference to be π, the phase difference being between the incident light beam of the first wavelength and the incident light beam of the second wavelength (paragraph 0069); and
a first imaging element (paragraph 0080, CMOS image sensor) that simultaneously receives the incident light beams of the first wavelength and the second wavelength having been adjusted by the phase difference adjustment unit such that the phase difference is π (paragraph 0097).
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, Ozawa teaches the structural limitations of the polarizing plate and the phase difference adjustment unit (a transparent medium that transmits light; see Claim Interpretation supra). Therefore, the limitations “a polarizing plate that polarizes the incident light beams…into a same polarization direction” and “a phase difference adjustment unit that adjusts a phase difference to be π” are met.
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 Zhuang to include a polarizing plate that polarizes the incident light beams of the first wavelength and the second wavelength into a same polarization direction; a phase difference adjustment unit that adjusts a phase difference to be π, the phase difference being between the incident light beam of the first wavelength and the incident light beam of the second wavelength; and a first imaging element that simultaneously receives the incident light beams of the first wavelength and the second wavelength having been adjusted by the phase difference adjustment unit such that the phase difference is π, based on the teachings of Ozawa that this contributes to cost reduction and increased processing speed (Ozawa, paragraph 0110).
Regarding claim 2, Zhuang in view of Ozawa as applied to claim 1 discloses the imaging device according to claim 1.
In addition, Zhuang discloses that the wavelength adjustment unit is a transparent medium having a predetermined refractive index (page 4, last line; the prism is the wavelength adjustment unit) that transmits the incident light beam of the first wavelength (page 6, last paragraph).
Regarding claim 4, Zhuang in view of Ozawa as applied to claim 1 discloses the imaging device according to claim 1.
In addition, Ozawa discloses that the phase difference adjustment unit includes:
a first medium (FIG. 4, thicker portions of element 72b) that is transparent and has a predetermined refractive index to transmit the incident light beam of the first wavelength (paragraph 0064), and has a first thickness in a transmission direction (paragraph 0069, thickness D); and
a second medium (FIG. 4, thinner portions of element 72b) that transmits the incident light beam of the second wavelength, has a same characteristic as that of the first medium (paragraph 0064; element 72b as a whole has a predetermined refractive index, i.e., the second medium has a same refractive index as that of the first medium), and has a second thickness in the transmission direction (paragraph 0069, thickness D).
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, Ozawa teaches the structural limitations of the first medium and the second medium. Therefore, the limitations “a first medium…to transmit the incident light beam of the first wavelength” and “a second medium that transmits the incident light beam of the second wavelength” are met.
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 Zhuang in view of Ozawa to include that the phase difference adjustment unit includes: a first medium that is transparent and has a predetermined refractive index to transmit the incident light beam of the first wavelength, and has a first thickness in a transmission direction; and a second medium that transmits the incident light beam of the second wavelength, has a same characteristic as that of the first medium, and has a second thickness in the transmission direction, based on the additional teachings of Ozawa that this advantageously enables analysis of interference images which are configurable to highlight or emphasize particular wavelengths (Ozawa, paragraph 0069).
Claim 3 is rejected under Zhuang in view of Ozawa as applied to claim 2, as evidenced by “Index of Refraction” (Merriam-Webster’s Medical Dictionary, 2016), hereinafter Merriam-Webster’s Medical Dictionary, and “Wave, in physics” (The Columbia Encyclopedia, 2018), hereinafter The Columbia Encyclopedia.
Regarding claim 3, Zhuang in view of Ozawa as applied to claim 2 discloses the imaging device according to claim 2.
Zhuang in view of Ozawa fails to disclose that the predetermined refractive index is
n
1
=
λ
1
/
λ
2
, wherein
n
1
is a refractive index of the medium,
λ
1
is the wavelength of the incident light beam of the first wavelength, and
λ
2
is the wavelength of the incident light beam of the second wavelength. However, Merriam-Webster’s Medical Dictionary defines the index of refraction as “the ratio of the speed of radiation (as light) in one medium…to that in another medium”, i.e.,
n
=
v
1
v
2
, where
n
is the index of refraction, and
v
1
and
v
2
are the speed of the radiation in a first and a second medium, respectively. The Columbia Encyclopedia defines the speed of a wave as the product of its wavelength and its frequency, i.e.,
v
1
=
λ
1
f
, where
λ
1
is the wavelength and
f
is the frequency. Therefore,
n
=
v
1
v
2
=
λ
1
f
λ
2
f
=
λ
1
λ
2
due to the inherent properties of waves, including the reasonable assumption that the incident light beams of the first and second wavelengths are of the same frequency because they are in phase (see The Columbia Encyclopedia).
Claims 8-13 are rejected under 35 U.S.C. 103 as being unpatentable over Zhuang in view of Ozawa as applied to claim 1 above, and further in view of Nakamura et al. (U.S. Patent Application Publication No. 2018/0017493 A1), hereinafter Nakamura.
Regarding claim 8, Zhuang in view of Ozawa as applied to claim 1 discloses the imaging device according to claim 1.
Zhuang in view of Ozawa fails to disclose a separation unit that separates each of the incident light beams of the first wavelength and the second wavelength having phases having been matched by the phase adjustment unit, into a part to be incident on the polarizing plate, and another part different from the part; and a second imaging element that is different from the first imaging element and that simultaneously receives the other parts of the respective incident light beams of the first wavelength and the second wavelength.
However, Nakamura discloses a separation unit (FIG. 10, element 431) that separates each of the incident light beams of the first wavelength and the second wavelength having phases having been matched by the phase adjustment unit (paragraph 0120), into a part to be incident on the polarizing plate (FIG. 10, element 132), and another part different from the part (FIG. 10, part directed towards element 434); and
a second imaging element (FIG. 10, element 434) that is different from the first imaging element (FIG. 10, element 134) and that simultaneously receives the other parts of the respective incident light beams of the first wavelength and the second wavelength (paragraph 0120).
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 Zhuang in view of Ozawa to include a separation unit that separates each of the incident light beams of the first wavelength and the second wavelength having phases having been matched by the phase adjustment unit, into a part to be incident on the polarizing plate, and another part different from the part; and a second imaging element that is different from the first imaging element and that simultaneously receives the other parts of the respective incident light beams of the first wavelength and the second wavelength, based on the teachings of Nakamura that this achieves improved sensitivity and efficiency (Nakamura, paragraphs 0095, 0120).
Regarding claim 9, Zhuang in view of Ozawa and Nakamura as applied to claim 8 discloses the imaging device according to claim 8.
In addition, Nakamura discloses a half mirror (FIG. 10, element 431) that reflects a sub part of each of the other parts of the respective incident light beams of the first wavelength and the second wavelength (paragraph 0120) toward the second imaging element (FIG. 10, element 434) to cause the second imaging element to receive the reflected light beams (paragraph 0120).
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 Zhuang in view of Ozawa and Nakamura to include a half mirror that reflects a sub part of each of the other parts of the respective incident light beams of the first wavelength and the second wavelength toward the second imaging element to cause the second imaging element to receive the reflected light beams, based on the additional teachings of Nakamura that this achieves improved sensitivity and efficiency (Nakamura, paragraphs 0095, 0120).
Regarding claim 10, Zhuang in view of Ozawa and Nakamura as applied to claim 8 discloses the imaging device according to claim 8, including the first (Ozawa, paragraph 0097; see claim 1 supra) and second imaging elements which simultaneously receive incident light (Nakamura, paragraph 0120; see claim 8 supra).
In addition, Zhuang discloses that an imaging element (FIG. 14, element 106) receives the incident light beam of the first wavelength and the incident light beam of the second wavelength having been adjusted by the phase difference adjustment unit such that a phase difference is π to output a pixel signal that has been optically subjected to subtraction processing of power of the incident light beam of the first wavelength and the incident light beam of the second wavelength (page 15, paragraph beginning “As shown in FIG. 16…”),
an imaging element (FIG. 14, element 106) receives the incident light beam of the first wavelength and the incident light beam of the second wavelength having the phases having been matched to output a pixel signal that has been optically subjected to addition processing of power of the incident light beam of the first wavelength and the incident light beam of the second wavelength (page 15, paragraph beginning “As shown in FIG. 16…”), and
the imaging device further comprises a signal processing unit that performs signal processing based on the pixel signal having been subjected to the subtraction processing and the pixel signal having been subjected to the addition processing (page 15, paragraph beginning “As shown in FIG. 16…”, arithmetic processing unit 153).
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, Zhuang in view of Ozawa and Nakamura teaches the structural limitations of the first and second imaging elements, and the signal processing unit. Therefore, the limitations of claim 10 are met.
Regarding claim 11, Zhuang in view of Ozawa and Nakamura as applied to claim 10 discloses the imaging device according to claim 10.
The limitation “in a case where the incident light beam of the first wavelength and the incident light beam of the second wavelength are red light and near infrared light, respectively, the signal processing unit calculates a normalized difference vegetation index (NVDI), which is a vegetation index, by dividing the pixel signal having been subjected to the subtraction processing by the pixel signal having been subjected to the addition processing” is an alternative limitation which is not required to be taught by the broadest reasonable interpretation of the claim. The claimed calculation of a normalized difference vegetation index (NVDI) is only required by the claim when i) the incident light beam of the first wavelength is red light, and ii) the incident light beam of the second wavelength is near infrared light. In this case, Zhuang discloses infrared light as an example of electromagnetic waves (page 3, ‘Overview of spectroscopic measurement equipment’, paragraph 1); Ozawa discloses “light of a red wavelength to near-infrared light” (paragraph 0054); and Nakamura discloses light “having a certain wavelength”. However, none of Zhuang, Ozawa, or Nakamura discloses a first light beam of a first wavelength being red light and a second light beam of a second wavelength being near infrared light. Therefore, the claimed calculation has no patentable weight, due to the use of alternative conditions.
Regarding claim 12, Zhuang in view of Ozawa and Nakamura as applied to claim 10 discloses the imaging device according to claim 10.
The limitation “in a case where the incident light beam of the first wavelength and the incident light beam of the second wavelength are a first near infrared light beam and a second near infrared light beam, respectively, with which a driver's face is irradiated, the signal processing unit acquires the pixel signal having been subjected to the subtraction processing as a pixel signal that is a difference between a bright pupil image and a dark pupil image of the driver, causes a feature of the pupil to appear on a basis of the acquired pixel signal, which is a difference between the bright pupil image and the dark pupil image, to detect a position of the pupil and identify a line-of-sight direction of the driver” is an alternative limitation which is not required to be taught by the broadest reasonable interpretation of the claim. The claimed pupil image processing is only required by the claim when i) the incident light beam of the first wavelength is a first beam of near infrared light, ii) the incident light beam of the second wavelength is a second beam of near infrared light, and iii) the light beams of the first and second wavelengths irradiate a driver’s face. In this case, Zhuang discloses infrared light as an example of electromagnetic waves (page 3, ‘Overview of spectroscopic measurement equipment’, paragraph 1); Ozawa discloses “light of a red wavelength to near-infrared light” (paragraph 0054); and Nakamura discloses light “having a certain wavelength”. However, none of Zhuang, Ozawa, or Nakamura discloses a first light beam of a first wavelength being a first near infrared light beam and a second light beam of a second wavelength being a second near infrared light beam; nor do any of the above-cited references disclose irradiating a driver’s face. Therefore, the claimed pupil image processing has no patentable weight, due to the use of alternative conditions.
Regarding claim 13, Zhuang in view of Ozawa and Nakamura as applied to claim 10 discloses the imaging device according to claim 10.
The limitation “in a case where the incident light beam of the first wavelength and the incident light beam of the second wavelength are an excitation light beam of the first wavelength and an excitation light beam of the second wavelength with which a specific substance is irradiated after a fluorescent agent is bound to the specific substance in a nerve cell, the signal processing unit acquires the pixel signal having been subjected to the subtraction processing as a pixel signal in a difference image when the specific substance is irradiated with the excitation light beam of the first wavelength and the excitation light beam of the second wavelength, and identifies an electrical activation state of the nerve cell on a basis of the acquired pixel signal of the difference image” is an alternative limitation which is not required to be taught by the broadest reasonable interpretation of the claim. The claimed pixel signal processing and analysis is only required when i) the incident light beams of the first and second wavelengths are excitation light beams of the first and second wavelengths, respectively, and ii) the excitation light beams of the first and second wavelength irradiate a specific substance after a fluorescent agent is bound to the specific substance in a nerve cell. In this case, neither Zhuang nor Ozawa discloses excitation light beams irradiating a specific substance which is bound to a fluorescent agent. Nakamura does disclose excitation light irradiating a fluorescent agent; however, Nakamura does not disclose that the fluorescent agent is bound to a specific substance in a nerve cell. Therefore, the claimed pixel signal processing and analysis has no patentable weight, due to the use of alternative conditions.
Claims 14-15 are rejected under 35 U.S.C. 103 as being unpatentable over Zhuang in view of Ozawa as applied to claim 1 above, and further in view of Hess (U.S. Patent No. 7,916,304 B2), hereinafter Hess.
Regarding claim 14, Zhuang in view of Ozawa as applied to claim 1 discloses the imaging device according to claim 1, including the incident light beam of the first wavelength and the incident light beam of the second wavelength (Zhuang, page 9, paragraph 5).
In addition, Zhuang discloses that the phase adjustment unit (paragraph spanning the end of page 11 to the beginning of page 12) includes:
an objective lens (FIG. 14, element 101); and
a collimator lens (FIG. 14, element 103) that converts the incident light beam of the first wavelength and the incident light beam of the second wavelength condensed by the objective lens into parallel light beams (page 9, paragraph 5),
the phase adjustment unit adjusts a distance (FIG. 14, distance
d
1
) between the objective lens (FIG. 14, element 101) and the collimator lens (FIG. 14, element 103) to match the phases of the incident light beam of the first wavelength and the incident light beam of the second wavelength that are different (page 9, paragraph 5).
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, Zhuang teaches the structural limitations of the phase adjustment unit, i.e., a unit that adjusts a distance between the objective lens and the collimator lens (see Claim Interpretation supra). Therefore, the limitation “the phase adjustment unit adjusts a distance…to match the phases” is met.
Zhuang fails to disclose that the phase adjustment unit includes: a first objective lens and a second objective lens on which the incident light beam of the first wavelength and the incident light beam of the second wavelength are incident, respectively; and a first collimator lens and a second collimator lens that convert the incident light beam of the first wavelength and the incident light beam of the second wavelength, respectively, into parallel light beams.
However, Hess discloses that the phase adjustment unit includes:
a first objective lens (FIG. 1, element 160) and a second objective lens (FIG. 1, element 170) on which a first incident light beam (FIG. 1, element 152) and a second incident light beam (FIG. 1, element 154) are incident, respectively; and
a first collimator lens (FIG. 1, element 130) and a second collimator lens (FIG. 1, element 140) that convert the first incident light beam (FIG. 1, element 132) and the second incident light beam (FIG. 1, element 142), respectively, into parallel light beams (column 5, lines 23-25).
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 Zhuang in view of Ozawa to include that the phase adjustment unit includes: a first objective lens and a second objective lens on which the incident light beam of the first wavelength and the incident light beam of the second wavelength are incident, respectively; and a first collimator lens and a second collimator lens that convert the incident light beam of the first wavelength and the incident light beam of the second wavelength, respectively, into parallel light beams, based on the teachings of Hess that this enables improved focusing of the beams at the detectors (Hess, column 6, lines 53-63).
Regarding claim 15, Zhuang in view of Ozawa and Hess as applied to claim 14 discloses the imaging device according to claim 14, including the first and second objective lenses and the first and second collimator lenses (Hess, FIG. 1; see claim 14 supra); and the first imaging element (Ozawa, paragraph 0097; see claim 1 supra).
In addition, Zhuang discloses that on the phase adjustment unit, light is incident as incident light including a light beam of the first wavelength and a light beam of the second wavelength, and the phase adjustment unit (paragraph spanning the end of page 11 to the beginning of page 12) adjusts a distance (FIG. 14, distance
d
1
) between the objective lens (FIG. 14, element 101) and the collimator lens (FIG. 14, element 103) such that a light amount received by the imaging element is minimized to match the phases of the incident light beam of the first wavelength and the incident light beam of the second wavelength (page 9, paragraph 5).
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, Zhuang teaches the structural limitations of the phase adjustment unit, i.e., a unit that adjusts a distance between the objective lens and the collimator lens (see Claim Interpretation supra). Therefore, the limitation “the phase adjustment unit adjusts a distance…such that a light amount received by the imaging element is minimized to match the phases” is met.
In addition, Hess discloses that on the phase adjustment unit, laser light is incident as incident light (column 5, lines 39-45).
The disclosure of Hess demonstrates that the function of lasers is known in the art of imaging devices. Hess also shows that substituting a laser for another optical source in an imaging device yields the predictable result of achieving activation and/or excitation of a sample (Hess, column 5, lines 30-54). “[W]hen a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result.” United States v. Adams, 383 U.S. 39 (1966). 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 Zhuang in view of Ozawa and Hess to include that on the phase adjustment unit, laser light is incident as incident light because it is not inventive to substitute one known element for another which yields predictable results to one of ordinary skill in the art. See MPEP 2143 I (B).
Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Betzig et al. (U.S. Patent Application Publication No. 2016/0305883 A1), hereinafter Betzig, in view of Ni et al. (U.S. Patent Application Publication No. 2024/0085717 A1), hereinafter Ni, and Oda et al. (U.S. Patent Application Publication No. 2022/0381973 A1), hereinafter Oda.
Regarding claim 16, Betzig discloses a method of operating an imaging device including:
a phase adjustment unit (paragraph 0173);
a phase difference adjustment unit (paragraph 0174); and
an imaging element (paragraph 0173), the method comprising
matching, by the phase adjustment unit, phases of incident light (paragraph 0173) including a light beam of a first wavelength and a light beam of a second wavelength that are different (paragraph 0016);
adjusting, by the phase difference adjustment unit, a phase difference to be π, the phase difference being between the incident light beam of the first wavelength and the incident light beam of the second wavelength (paragraph 0174); and
simultaneously receiving, by the imaging element, the incident light beam of the first wavelength and the second wavelength having been adjusted by the phase difference adjustment unit such that the phase difference is π (paragraph 0129).
Betzig fails to disclose a polarizing plate; a wavelength adjustment unit; polarizing, by the polarizing plate, the incident light beams of the first wavelength and the second wavelength into a same polarization direction; and matching, by the wavelength adjustment unit, a wavelength of the incident light beam of the first wavelength having been polarized by the polarizing plate with a wavelength of the incident light beam of the second wavelength.
However, Ni discloses a polarizing plate (paragraph 0101, polarizer 111a); and
polarizing, by the polarizing plate, the incident light beams of the first wavelength and the second wavelength into a same polarization direction (paragraph 0101).
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 Betzig to include a polarizing plate; and polarizing, by the polarizing plate, the incident light beams of the first wavelength and the second wavelength into a same polarization direction, based on the teachings of Ni that this enables improved contrast of the light at the imaging element (Ni, paragraph 0062).
Betzig in view of Ni fails to disclose a wavelength adjustment unit; and matching, by the wavelength adjustment unit, a wavelength of the incident light beam of the first wavelength having been polarized by the polarizing plate with a wavelength of the incident light beam of the second wavelength.
However, Oda discloses a wavelength adjustment unit (paragraph 0067); and
matching, by the wavelength adjustment unit, a wavelength of the incident light beam of the first wavelength having been polarized by the polarizing plate with a wavelength of the incident light beam of the second wavelength (paragraph 0067).
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 Betzig in view of Ni to include a wavelength adjustment unit; and matching, by the wavelength adjustment unit, a wavelength of the incident light beam of the first wavelength having been polarized by the polarizing plate with a wavelength of the incident light beam of the second wavelength, based on the teachings of Oda that this improves the intensity of the desired wavelength of light (Oda, paragraph 0133).
Allowable Subject Matter
Claims 5-7 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:
Claim 5 contains allowable subject matter because the prior art of record fails to teach “the second thickness is defined by
d
2
=
(
1
-
n
2
d
1
-
π
)
/
(
1
-
n
2
)
, where
d
1
is the first thickness,
d
2
is the second thickness, and
n
2
is a refractive index of the first medium and the second medium” in combination with the additional limitations of claim 4/1, upon which claim 5 depends.
The closest prior art of record, Ozawa, teaches a first medium (FIG. 4, thicker portions of element 72b) that is transparent and has a predetermined refractive index to transmit the incident light beam of the first wavelength (paragraph 0064), and has a first thickness in a transmission direction (paragraph 0069, thickness D); and
a second medium (FIG. 4, thinner portions of element 72b) that transmits the incident light beam of the second wavelength, has a same characteristic as that of the first medium (paragraph 0064; element 72b as a whole has a predetermined refractive index, i.e., the second medium has a same refractive index as that of the first medium), and has a second thickness in the transmission direction (paragraph 0069, thickness D).
However, Ozawa fails to teach a relationship between the respective thicknesses of the first medium and the second medium. Therefore, the prior art of record fails to teach “the second thickness is defined by
d
2
=
(
1
-
n
2
d
1
-
π
)
/
(
1
-
n
2
)
, where
d
1
is the first thickness,
d
2
is the second thickness, and
n
2
is a refractive index of the first medium and the second medium” as currently claimed.
Claims 6 and 7 contain allowable subject matter because of their dependence on claim 5.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Yasuda et al. (U.S. Patent Application Publication No. 2015/0132766 A1), hereinafter Yasuda, teaches a mirror that reflects an optical path of the incident light beam of the second wavelength to an optical path of the incident light beam of the first wavelength, on the second optical path; and a half mirror that transmits a part of the incident light beam of the first wavelength through the first imaging element and reflects a part of the incident light beam of the second wavelength reflected by the mirror toward the first imaging element, on the first optical path.
Norton et al. (U.S. Patent Application Publication No. 2010/0202055 A1), hereinafter Norton, teaches a phase adjustment unit that matches phases of incident light.
Sharp et al. (WO Patent No. 2018/191593 A1), hereinafter Sharp, teaches a phase difference adjustment unit that adjusts a phase difference to be π.
Eda (U.S. Patent No. 5,608,577 A), hereinafter Eda, teaches laser light incident as incident light on a phase adjustment unit that matches phases of incident light including a light beam of a first wavelength and a light beam of a second wavelength that are different.
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/A.K./Examiner, Art Unit 2881
/ROBERT H KIM/Supervisory Patent Examiner, Art Unit 2881