DETAILED ACTION
Comments
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA . In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
Claims 1-20 are pending and examined in the instant Office action.
Information Disclosure Statement
The IDS of 12 December 2024 has been considered.
Claim Objection
Claim 7 is objected to because of the following informalities:
Lines 2-3 of claim 7 recite “identifying in the preprocessed spectral measurements least one type of molecules containing protein”, which should read “identifying in the preprocessed spectral measurements at least one type of molecules containing protein
Appropriate correction is required.
Claim Rejections - 35 USC § 112(b) - Indefiniteness
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.
Claim 10 is 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 10 requires the pigment to be phycobiliprotein, chlorophyll/cartenoid-binding complexes (LHCs) a and b, and xanthophylls. In this limitation, it is unclear as to whether the pigment is that of all of the aforementioned compounds, or the pigment of any one of the compounds. If the interpretation is all of the compounds, it is unclear as to the metes and bounds of the pigment unless the pigments of all of the aforementioned compounds are identical. If the interpretation is any one of the aforementioned compounds, the following prior art rejections apply.
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.
Claim(s) 1-20 is/are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea/law of nature/natural phenomenon without significantly more. Claims 1-15 are drawn to methods, and claims 16-20 are drawn to systems comprising spectrometers.
In accordance with MPEP § 2106, claims found to recite statutory subject matter (Step 1 : YES) are then analyzed to determine if the claims recite any concepts that equate to an abstract idea, law of nature or natural phenomenon (Step 2A, Prong 1). In the instant application, the claims recite the following limitations that equate to an abstract idea:
Claims 1 and 16 recite the mental step of receiving spectral measurements of a sample containing the algae at a range of wavelengths associated with one or more pigments.
Claims 1 and 16 recite the mental step of preprocessing the spectral measurements.
Claims 1 and 16 recite the mental step of determining the concentrations of the molecules containing protein in the algae, based on the preprocessed spectral measurements.
Claims 1 and 16 recite the mental step of constraining the molecules to comprise a protein and/or a protein bound to a non-protein.
Claims 2 and 19 recite the mental step of requiring ranges of wavelengths to correspond to pigments.
Claims 3 and 20 recite the mental step of determining the concentration of the molecule containing protein based on chemical measurements of the of the amount of molecule containing protein associated with spectral measurements.
Claim 4 recites the mental step of requiring the chemical measurements to be nitrogen concentration in algae.
Claims 5-6 recite the mental steps of using machine learning along with annotated modifications of training data sets.
Claim 7 recites the mental step of identifying in the preprocessed spectral measurements at least one type of molecules containing protein.
Claims 8-9 recite the mental steps of analyzing FTIR spectral data and conducting additional machine learning.
Claims 10-11 recite the mental steps of constraining the pigmentation.
Claims 12-13 and 18 recite the mental steps of constraining the range of the wavelengths.
Claim 14 recites the mental step and mathematical limitation of determining the ratio between a reflectance coefficient and the scattering coefficient from the spectral measurements.
Claim 15 recites the mental step of determining growth parameters for growing algae.
These recitations are similar to the concepts of collecting information, analyzing it and displaying certain results of the collection and analysis in Electric Power Group, LLC, v. Alstom (830 F.3d 1350, 119 USPQ2d 1739 (Fed. Cir. 2016)), organizing and manipulating information through mathematical correlations in Digitech Image Techs., LLC v Electronics for Imaging, Inc. (758 F.3d 1344, 111 U.S.P.Q.2d 1717 (Fed. Cir. 2014)) and comparing information regarding a sample or test to a control or target data in Univ. of Utah Research Found. v. Ambry Genetics Corp. (774 F.3d 755, 113 U.S.P.Q.2d 1241 (Fed. Cir. 2014)) and Association for Molecular Pathology v. USPTO (689 F.3d 1303, 103 U.S.P.Q.2d 1681 (Fed. Cir. 2012)) that the courts have identified as concepts that can be practically performed in the human mind or mathematical relationships. Therefore, these limitations fall under the “Mental process” and “Mathematical concepts” groupings of abstract ideas. Merely reciting that a mental process is being performed in a generic computer environment does not preclude the steps from being performed practically in the human mind or with pen and paper as claimed. If a claim limitation, under its broadest reasonable interpretation, covers performance of the limitation in the mind but for the recitation of generic computer components, then if falls within the “Mental processes” grouping of abstract ideas. As such, claim(s) 1-20 recite(s) an abstract idea/law of nature/natural phenomenon (Step 2A, Prong 1 : YES).
Claims found to recite a judicial exception under Step 2A, Prong 1 are then further analyzed to determine if the claims as a whole integrate the recited judicial exception into a practical application or not (Step 2A, Prong 2). This judicial exception is not integrated into a practical application because the claims do not recite an additional element that reflects an improvement to technology or applies or uses the recited judicial exception to affect a particular treatment for a condition. Rather, the instant claims recite additional elements that amount to mere instructions to implement the abstract idea in a generic computing environment or mere instructions to apply the recited judicial exception via a generic treatment.
As such, these limitations equate to mere instructions to implement the abstract idea on a generic computer that the courts have stated does not render an abstract idea eligible in Alice Corp., 573 U.S. at 223, 110 USPQ2d at 1983. See also 573 U.S. at 224, 110 USPQ2d at 1984. As such, claims 1-20 is/are directed to an abstract idea/law of nature/natural phenomenon (Step 2A, Prong 2 : NO).
Claims found to be directed to a judicial exception are then further evaluated to determine if the claims recite an inventive concept that provides significantly more than the judicial exception itself (Step 2B). The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the claims recite additional elements that equate to mere instructions to apply the recited exception in a generic way or in a generic computing environment.
As discussed above, there are no additional limitations to indicate that the claimed analysis engine requires anything other than generic computer components in order to carry out the recited abstract idea in the claims. Claims that amount to nothing more than an instruction to apply the abstract idea using a generic computer do not render an abstract idea eligible. Alice Corp., 573 U.S. at 223, 110 USPQ2d at 1983. See also 573 U.S. at 224, 110 USPQ2d at 1984. MPEP 2106.05(f) discloses that mere instructions to apply the judicial exception cannot provide an inventive concept to the claims.
The document of Krishnamurthy [US PGPUB 2016/0115520 A1; on IDS] teaches that FTIR, ATR FTIR, and portable spectrometers with wide ranges were routine and conventional in the prior art at the time of the effective filing date of the instant application.
The additional elements do not comprise an inventive concept when considered individually or as an ordered combination that transforms the claimed judicial exception into a patent-eligible application of the judicial exception. Therefore, the claims do not amount to significantly more than the judicial exception itself (Step 2B : No). As such, claims 1-20 is/are not patent eligible.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1-3, 7, 10-13, 16, and 19-20 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Chekalyuk [US PGPUB 2012/0324986 A1; on IDS].
Claim 1 is drawn to a method of assessing the concentration of molecules containing protein in algae. The method comprises receiving spectral measurements of a sample containing the algae at a range of wavelengths associated with one or more pigments. The method comprises preprocessing the spectral measurements. The method comprises determining the concentration of the molecules containing protein in the algae, based on the preprocessed spectral measurements. The method requires that the molecules containing protein consist of protein and/or protein bounded to one or more nonprotein molecules.
The document of Chekalyuk studies spectral and temporal laser fluorescence analysis for natural aquatic environments [title]. Figure 2 of Chekalyuk teaches the spectrometer limitations of the claims. The abstract of Chekalyuk studies a method of assessing the concentration of molecules containing protein in algae. Paragraph 36 of Chekalyuk teaches receiving spectral measurements of a sample containing the algae. Paragraph 108 of Chekalyuk teaches a range of wavelengths associated with pigments. Paragraph 47 of Chekalyuk teaches preprocessing spectral measurements. Paragraph 53 of Chekalyuk teaches determining the concentration of molecules containing protein in the algae, based on the preprocessed spectral measurements. Paragraphs 35 and 97 of Chekalyuk teach that the molecules containing protein consist of a protein and/or a protein bound to a nonprotein molecule.
With regard to claims 2 and 19, paragraph 108 of Chekalyuk teaches wavelengths associated with proteins with pigments.
With regard to claims 3 and 20, paragraph 95 of Chekalyuk teaches that the concentration of a protein (e.g. for a protein database) is deduced based on spectral measurements.
With regard to claim 7, paragraph 86 of Chekalyuk teaches the analysis of preprocessed spectral data for the presence of proteins.
With regard to claim 10, paragraph 35 of Chekalyuk teaches that the pigment is phycobiliprotein.
With regard to claim 11, paragraph 86 of Chekalyuk teaches that the phycobiliproteins are selected from: pink/purple-colored phycoerythrin (PE), blue colored phycocyanin (PC), and bluish-green colored allophycocyanin (APC).
With regard to claims 12-13, paragraph 45 of Chekalyuk et al. teaches receiving spectral measurements at a wavelength range of 400 to 2500 nm or 500 to 800 nm.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
35 U.S.C. 103 Rejection #1:
Claim(s) 1-3, 7, 10-14, 16, and 19-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chekalyuk.
Claim 14 is further limiting comprising calculating the pigment concentration based on calculating a ratio between a reflectance coefficient and the scattering coefficient from the spectral measurements.
While Chekalyuk teaches determining protein and pigment concentrations from spectral measurements, Chekalyuk does not teach the exact mathematical equation recited in the claims.
Paragraph 81 of Chekalyuk teaches analogous spectral ratios to the recited spectral ratio.
It would have been obvious to someone of ordinary skill in the art to modify the protein and pigment analysis of Chekalyuk by use of the spectral ratio wherein the motivation would have been that Chekalyuk gives additional mathematical tools to facilitate the analysis of spectral data [paragraph 81 of Chekalyuk].
35 U.S.C. 103 Rejection #2:
Claim(s) 4-6, 8-9, 15, and 17-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Chekalyuk as applied to claims 1-3, 7, 10-14, 16, and 19-20 above, in further view of Tadmor-Shalev [University of Haifa, October 2020; on IDS].
Claims 4-6, 8-9, 15, and 17-18 recite spectrometer hardware, machine learning, and concentration and growth limitations.
Chekalyuk makes obvious determining protein and pigment concentrations from spectral measurements, as discussed above.
Chekalyuk does not teach the spectrometer hardware, machine learning, and concentration and growth limitations of the instantly rejected claims.
Tadmor-Shalev studies sustainable production of edible seaweed biomass with improved protein content and spectrometric assessments for decision management [title]. The paragraph bridging pages 5-6 of Tadmor-Shalev teaches ATR FTIR spectrometers. Page 10 of Tadmor-Shalev teaches portable wide range spectrometry in the range of 400 nm to 2500 nm. Page 10 of Tadmor-Shalev also teaches calculating nitrogen concentration/percentage. Figure 3 on page 14 and Table 1 on page 15 of Tadmor-Shalev teach algae growth rates and related parameters. Page 11 of Tadmor-Shalev teaches a plurality of machine learning approaches to understand and make decisions around algae production.
It would have been obvious to someone of ordinary skill in the art to modify the protein and pigment analysis of Chekalyuk by use of the spectrometer hardware, machine learning, and concentration and growth limitations of Tadmor-Shalev wherein the motivation would have been that the hardware and computational tools of Tadmor-Shalev facilitate the analysis of protein and pigment analysis of Chekalyuk [pages 10-11 of Tadmor-Shalev].
E-mail Communications Authorization
Per updated USPTO Internet usage policies, Applicant and/or applicant’s representative is encouraged to authorize the USPTO examiner to discuss any subject matter concerning the above application via Internet e-mail communications. See MPEP 502.03. To approve such communications, Applicant must provide written authorization for e-mail communication by submitting the following statement via EFS-Web (using PTO/SB/439) or Central Fax (571-273-8300):
Recognizing that Internet communications are not secure, I hereby authorize the USPTO to communicate with the undersigned and practitioners in accordance with 37 CFR 1.33 and 37 CFR 1.34 concerning any subject matter of this application by video conferencing, instant messaging, or electronic mail. I understand that a copy of these communications will be made of record in the application file.
Written authorizations submitted to the Examiner via e-mail are NOT proper. Written authorizations must be submitted via EFS-Web (using PTO/SB/439) or Central Fax (571-273-8300). A paper copy of e-mail correspondence will be placed in the patent application when appropriate. E-mails from the USPTO are for the sole use of the intended recipient, and may contain information subject to the confidentiality requirement set forth in 35 USC § 122. See also MPEP 502.03.
Conclusion
No claim is allowed.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Russell Negin, whose telephone number is (571) 272-1083. This Examiner can normally be reached from Monday through Thursday from 8 am to 3 pm and variable hours on Fridays.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s Supervisor, Larry Riggs, Supervisory Patent Examiner, can be reached at (571) 270-3062.
/RUSSELL S NEGIN/Primary Examiner, Art Unit 1686 18 September 2026
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