DETAILED ACTION
Claim Rejections - 35 USC § 112
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 28 and 29 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. With regard to claim 28, indicating the “second sensor” comprises “a temperature sensor or a humidity sensor” is inconsistent with the requirements of base claim 24 that the second signal accessed from the second sensor provides “data relating to a concentration of the biomarker gas” as neither a temperature nor a humidity value is understood to include this data. Further, referring to this association with the second sensor is inconsistent with the technical details of the disclosure, which sets forth a third/environmental sensor (paragraph [0024], [0068], etc) for providing the information. Examiner notes the relationship between two gas concentration sensors and a third sensor for environmental aspects is found in claims 1 – 3 and suggests parallel updates in claims 28 (to refer to accessing a third signal from the third sensor…) and 29 (to refer to use of the third type of data for accounting for environmental influence on the first detected data) to align the claims with the details of the disclosure.
Allowable Subject Matter
The following is a statement of reasons for the indication of allowable subject matter: Applicant’s Remarks submitted July 20, 2026 are noted. With regard to the 103 rejection of the independent claims over Peroulis et al. and Sawasaka et al., Applicant argues: 1) the rejection is improperly based on an inconsistency in claim interpretation and 2) the combination is not properly supported by evidence or rationale.
With regard to Applicant’s first argument, as discussed in the rejection in the Non-final Office Action, Peroulis et al. recognizes that the measurement includes a reference sensor for accounting for changes in the measurement sensor (but as noted in the rejection, the arrangement relies on a structurally similar but non-responsive reference sensor). Sawasaka et al. was cited and relied upon to show that in a gas sensing arrangement, the measurement and reference sensor may alternately be the same type of sensor with use of a filter to eliminate the response to the gas of interest in the reference component. Examiner proposed that with this understanding of an alternate manner to create a reference sensor, one could update Peroulis et al. to use a reference sensor with a filter matched to the measured component of interest. Thus, the interpretation of the claims regarding the analytes that constituted the measured substance was intended to remain consistent, such that one of ordinary skill in the art would recognize that a detector and a matched filter would provide a usable form of a reference detector (parallel to the configuration of Sawasaka et al., but with use of a filter matched for a biomarker of interest of Peroulis et al.) as an alternative embodiment to the reference sensor comprising a non-sensing configuration of the base reference. As such, the statement of the rejection did not indicate or imply that use of an ethanol filter of Sawasaka et al. would provide the necessary reference data for the arrangement of Peroulis et al.
Regarding Applicant’s second allegation, Examiner has reviewed the underlying teachings as well as MPEP 2144.06 (regarding Art Recognized Equivalence). Each of Peroulis et al. and Sawasaka et al. rely on different modes of operation for collecting the gas measurement data and the manner of using the information from the respective reference sensor. Accordingly, there is no particular teaching or suggestion in either reference to indicate one would look to Sawasaka et al. to modify the reference sensor of Peroulis et al. nor does Sawasaka et al. provide teaching or evidence that one of ordinary skill in the art would consider their disclosed reference sensor to be an alternate equivalent expedient to that of Peroulis et al. Thus, Applicant’s second argument has bearing on the merits of the combination and is found persuasive. The rejection is hereby withdrawn.
The additional comments regarding certain dependent claims are moot in light of the withdrawn rejection of the independent claims.
Claims 1 – 10, 21 – 27, and 30 – 33 are allowed.
Claims 28 and 29 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any comments considered necessary by applicant must be submitted no later than the payment of the issue fee and, to avoid processing delays, should preferably accompany the issue fee. Such submissions should be clearly labeled “Comments on Statement of Reasons for Allowance.”
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERIC FRANK WINAKUR whose telephone number is (571)272-4736. The examiner can normally be reached Mon-Fri 9 am - 6 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Chuck Marmor, II can be reached at 571-272-4730. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/ERIC F WINAKUR/Primary Examiner, Art Unit 3791
