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 .
Election/Restrictions
Applicant’s election without traverse of the invention of Group I and the species of Figure 3 in the reply filed on 4/13/2026 is acknowledged. This corresponds to claims 1, 2, 4, 6-8, 11-13, and 25.
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 limitation is: imaging device in claims 1, 2, 4, 6-8, 11, 13, and 25. Note that claim 12 has sufficient structure that it doesn’t invoke 112f.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/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 this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/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 limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/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 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 11 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 11 recites the limitation "the collimator" in line 4. There is insufficient antecedent basis for this limitation in the claim. It’s unclear whether this is intended to reference the collimator in claim 7 (but claim 11 does not depend on claim 7) or if it refers to any collimator. This lack of clarity causes the scope of the claim to be indefinite. For the sake of examination, it is interpreted as referring to any collimator.
Claim Rejections - 35 USC § 103
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.
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.
Claims 1, 4, 6, 12, and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Vacca (US 20230266227 A1) in view of Misener (US 20190302391 A1) and Heng (US 20100238442 A1).
Regarding claim 1, Vacca teaches an apparatus, comprising:
a flow cell (940/1040) to receive a sample (paragraphs 93, 63, 85, 89, and 95);
a system, comprising:
and
a system including:
a light source assembly to form a substantially collimated beam (paragraph 89);
an optical assembly including an asymmetric beam expander group that includes one or more asymmetric elements or anamorphic elements disposed along an optical axis, the optical assembly to receive the substantially collimated beam from the light source assembly, and transform the substantially collimated beam into a shaped sampling beam having an elongated cross section (“asymmetric expansion”) in a far field at or near a focal plane of the optical assembly to optically probe the sample in the flow cell (paragraph 95 and figures 9A and 10); and
a device (980, 990) to obtain data associated with the sample in response to the optical probing of the sample with the shaped sampling beam (paragraphs 85 and 95).
Vacca doesn’t explicitly teach a flow cell receptacle to receive the flow cell; the measurement device is an imaging device and the data is image data.
Like Vacca (and like the instant application), Misener is directed to an apparatus comprising a flow cell and teaches a flow cell receptacle to receive the flow cell provides the benefit of ensuring the flow cell is maintained at the desired position in relation to the rest of the apparatus (lines 1-4 of paragraph 73).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the above combination by adding a flow cell receptacle to receive the flow cell in order to ensure the flow cell is maintained at the desired position in relation to the rest of the apparatus, and therefore limit errors due to misalignment or unintended movement.
The above combination doesn’t explicitly teach the measurement device is an imaging device and the data is image data.
Like Vacca (and like the instant application), Heng is directed to an apparatus comprising and flow cell and measuring fluorescence and teaches the measurement device is an imaging device (801; abstract; figure 8; paragraphs 29 and 46-47) and the data is image data (abstract; figure 8; paragraphs 29, 46-47). Additionally, Heng teaches this provides the benefit of performing fluorescence imaging that takes better advantage of the available illumination (abstract and paragraphs 43 and 46-47).
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It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the above combination such that the measurement device is an imaging device and the data is image data in order to performing fluorescence imaging, while taking great advantage of the available illumination.
Regarding claim 4, Vacca teaches the asymmetric beam expander group is to provide a first magnification in a first axis, and a second different magnification in a second different axis, wherein the first magnification is at least twice the second magnification (as explained in paragraph 95, the embodiment with the beam expander achieves the same purpose as the other embodiments, and therefore, it also has a magnification that is 4 times as much as the magnification in the different axis, as explained in paragraphs 93 and 95).
Regarding claim 6, in the above combination the optical assembly comprises: the asymmetric beam expander group to asymmetrically or anamorphically expand the substantially collimated beam having a first aspect ratio to form a shaped beam having a second different aspect ratio (Vacca: paragraph 95; for context, see paragraph 93 / Heng: 403 and 405 and paragraphs 29 and 56); and an objective group (Vacca: single spherical lens in paragraph 95) disposed along the optical axis to receive the shaped beam from the asymmetric beam expander group, and transform the shaped beam into the shaped sampling beam at or near the focal plane of the optical assembly (Vacca: paragraph 95 / Heng: 403 and 405 and paragraphs 29 and 56).
Regarding claim 12, in the above combination the imaging device includes a time domain integration (TDI) image sensor having an aspect ratio corresponding to an aspect ratio of the sampling beam (Heng, paragraphs 46-47 and 50).
Regarding claim 25, Vacca teaches an apparatus, comprising:
a system, comprising:
a flow cell (940/1040) that receives a sample (paragraphs 93, 63, 85, 89, and 95); and
an system including:
a light source assembly to form a substantially collimated beam (paragraph 89);
an optical assembly including an asymmetric beam expander group that includes one or more asymmetric elements or anamorphic elements disposed along an optical axis, the optical assembly to receive the substantially collimated beam from the light source assembly, and transform the substantially collimated beam into a shaped sampling beam having an elongated cross section (“asymmetric expansion”) in a far field at or near a focal plane of the optical assembly to optically probe the sample in the flow cell (paragraph 95 and figures 9A and 10); and
a device (980, 990) to obtain data associated with the sample in response to the optical probing of the sample with the sampling beam (paragraphs 85 and 95).
Vacca doesn’t explicitly teach a flow cell receptacle to receive the flow cell; the measurement device is an imaging device and the data is image data.
Like Vacca (and like the instant application), Misener is directed to an apparatus comprising a flow cell and teaches a flow cell receptacle to receive the flow cell provides the benefit of ensuring the flow cell is maintained at the desired position in relation to the rest of the apparatus (lines 1-4 of paragraph 73).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the above combination by adding a flow cell receptacle to receive the flow cell in order to ensure the flow cell is maintained at the desired position in relation to the rest of the apparatus, and therefore limit errors due to misalignment or unintended movement.
The above combination doesn’t explicitly teach the measurement device is an imaging device and the data is image data.
Like Vacca (and like the instant application), Heng is directed to an apparatus comprising and flow cell and measuring fluorescence and teaches the measurement device is an imaging device (801; abstract; figure 8; paragraphs 29 and 46-47) and the data is image data (abstract; figure 8; paragraphs 29, 46-47). Additionally, Heng teaches this provides the benefit of performing fluorescence imaging that takes better advantage of the available illumination (abstract and paragraphs 43 and 46-47).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the above combination such that the measurement device is an imaging device and the data is image data in order to performing fluorescence imaging, while taking great advantage of the available illumination.
Claim 2 is rejected under 35 U.S.C. 103 as being unpatentable over Vaca, MIsener, and Heng as applied to claim 1 above, and further in view of Chiu (US 20160146823 A1).
Regarding claim 2, Vacca teaches the substantially collimated beam has a first aspect ratio and the shaped sampling beam has a second aspect ratio, wherein the first aspect ratio of the substantially collimated beam is at most 4:1 (paragraph 95, since the alternative embodiment, not relied upon for this rejection, is described as having a greater aspect ratio of 4:1, this implies that in the embodiment relied upon by the examiner, the collimated light beam that is emitted by the laser is less than 4:1), and the second aspect ratio of the shaped sampling beam is at least 8:1.
Vacca doesn’t explicitly teach the second aspect ratio is at least 8:1.
Like Vacca (and like the instant application), Chiu is also directed to an apparatus comprising flow cells and fluorescence measurements and teaches a second aspect ratio is at least 8:1 (paragraph 167).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the above combination such that the second aspect ratio is at least 8:1 in order to optimize the aspect ratio for the particular sample and detectors.
Claims 7-8 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Vaca, MIsener, and Heng as applied to claim 1 above, and further in view of Fei (US 20210349027 A1).
Regarding claim 7, Vacca teaches the light source assembly includes: a beam source (910 and lasers in text) to provide input radiation, and a to substantially collimate the input radiation to form the substantially collimated beam having a first aspect ratio (paragraphs 88-89).
Vacca doesn’t explicitly teach a collimator is used to form the collimated beam.
Like Vacca (and like the instant application), Fei is an optical measuring apparatus for measuring fluid samples and fluorescence measurements and teaches a collimator (13) is used to form the collimated beam (paragraph 66).
It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the above combination such that the light source assembly includes a collimator that is used to form the collimated beam in order to allow further flexibility with respect to the positioning of the light source through the use of an optical fiber, while still emitting collimated light.
Regarding claim 8, in the above combination the collimator includes a waveguide having the first aspect ratio, wherein the waveguide comprises at least one of a rectangular optical fiber, or a light pipe (the optical fiber, 12, of Fei is a light pipe) having the first aspect ratio, and wherein the collimator disposed to collimate an output of the optical fiber.
The above combination suggests but doesn’t explicitly teach includes at least one of a spherical lens or an aspherical lens (suggested because the text describes it as a collimator in paragraph 34 of Fei, and figure 2 of Fei illustrates the light beam going through the collimator, which suggests the collimator is a lens as opposed to a mirror; furthermore, a collimating lens would suggest to one of ordinary skill that it is either spherical or aspherical). Additionally, Official Notice is taken that it is well known in the art of optical measuring and testing for a collimator to include at least one of a spherical lens or an aspherical lens. It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have the collimator of the above combination include at least one of a spherical lens or an aspherical lens in order to provide the collimation in a compact device using a lens that fits well to the end of the optical fiber.
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Regarding claim 11¸in the above combination the optical assembly comprises: a beam shaping group (“mirrors and irises and optionally passes through a porthole, an openable shutter, and lens tubes” in Vacca, paragraph 92) having one or more optical elements disposed along the optical axis to receive the substantially collimated beam from the collimator (Fei, 13), and transform the substantially collimated beam into a first shaped beam having a first aspect ratio;
the asymmetric beam expander group (Vacca, paragraph 95) is to asymmetrically or anamorphically expand the first shaped beam having the first aspect ratio to form a second shaped beam having a second different aspect ratio (Vacca: paragraph 95; for context, see paragraph 93 / Heng: 403 and 405 and paragraphs 29 and 56); and
an objective group (Vacca: single spherical lens in paragraph 95) disposed along the optical axis to receive the second shaped beam from the asymmetric beam expander group, and transform the second shaped beam into the shaped sampling beam at or near the focal plane of the optical assembly (Vacca: paragraph 95 / Heng: 403 and 405 and paragraphs 29 and 56).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Vacca, MIsener, and Heng as applied to claim 1 above, and further in view of Chen (US 20220113241 A1).
Regarding claim 13, Vacca teaches the asymmetric beam expander group includes one or more optical elements disposed along the optical axis with different powers and oriented on different axes (paragraph 95).
The above combination doesn’t explicitly teach the optical elements are crossed cylindrical lenses includes two cylindrical lenses.
However, Vacca teaches combining an asymmetric beam expander group with a spherical lens to form an asymmetrically focused beam (paragraph 95). Like Vacca (and like the instant application), Chen is directed to an apparatus comprising a flow cell and teaches that when combining an asymmetric beam expander group with a spherical lens to form an asymmetrically focused beam it is common for the optical element to be a cylindrical lens pair (paragraph 321; this would suggest to one of ordinary skill in the art crossed cylindrical lenses including two cylindrical lenses, especially in light of the prior art teaching that crossed cylindrical lenses provide independent control over the degree of elongation about two different axes, as explained in Vacca’s discussion of elements 1030a and 1030b and paragraph 93, as well as the additional prior art below).
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It would be obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the above combination such that the optical elements are crossed cylindrical lenses includes two cylindrical lenses because this is common in the art and in order to ensure independent control over the magnification along each axis.
Additional Prior Art
US 20190187044 A1 reads, “[0221] In one embodiment, the beam shaping optics 181 include two perpendicular cylindrical lenses to alter the beam shape 148 into an ellipse perpendicular to the direction of sample fluid 120 flow, and along the direction of sample fluid 120 flow, when focused at the center thereof. This elliptical beam 148 spot serves to excite the objects 160 passing through the channel 164 of the microfluidic chip 100, and provides maximum uniform illumination at a center area of the beam 148 spot, to compensate for minor fluctuations in the flow of objects 160 through the channel 164. Further, in one embodiment, the ellipse of the beam shape having a wider dimension perpendicular to the sample fluid 120 flow, helps to reduce variation in the fluorescence signal coming from the objects 160 (i.e., sperm cells) that are not perfectly centered within the sample fluid 120 flow stream. The narrow dimension keeps the beam 148 at a high enough intensity to adequately excite the fluorescent dye for interrogation of the objects 160 (i.e., sperm cells). While an elliptical beam 148 spot is preferred, in other embodiments of the present invention, a different shaped beam may be utilized.
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JP 6856635 B2 reads, “The beam shaping system 300 has two aspherical cylindrical lenses 302, 304 arranged so as to be orthogonal to each other. The first aspherical cylindrical lens 302 is a lens for shaping the incident beam A along the X axis, and the second aspherical cylindrical lens 304 is a lens for shaping the incident beam A along the Y axis. is there. The two intersecting aspheric cylindrical lenses are configured to provide a rectangular laser beam B with a flat top profile along the X axis.”
US 20160084814 A1 reads, [0145] In one embodiment, flow cytometric measurements are derived from a red diode laser (SPMT, 635 nm, 12 mW, Power Technologies, Inc.) focused to a horizontally elongated elliptical beam spot by cylindrical lenses (horizontal=approximately 80 mm focal length, located approximately 100 mm from the flow cell; vertical=approximately 40 mm focal length, at approximately 40 mm). Each sample particle passing through the laser beam scatters the laser light, and chlorophyll-containing cells emit red (680 nm) fluorescence. One of these signals, usually chlorophyll fluorescence, is chosen to trigger a xenon flash lamp (Hamamatsu L4633) when the signal exceeds a preset threshold. The resulting approximately 1 μs flashes of light are used to provide Kohler illumination of the flow cell. The green component of the light, isolated by an approximately 530 nm bandpass filter, is focused into a randomized fiber optic bundle (approximately 50 μm fibers, approximately 6.35 mm diameter; Stocker-Yale, Inc.). At the fiber optic bundle exit, the light is collected by a lens, passed through a field iris, and focused onto a condenser iris, which is located approximately at the back focal plane of a 10×objective lens (Zeiss CP-Achromat, numerical aperture [N.A.] 0.25), which is in turn focused on the flow cell. A second 10× objective (Zeiss Epiplan, N.A. 0.2) collects the light from both the flash lamp illumination (green) and the laser (red, 635 nm scattered light and 680 nm chlorophyll fluorescence). The green and red wavelengths are separated by a dichroic mirror (630 nm short pass). The green light continues to a monochrome CCD camera (UniqVision UP-1800DS-CL, 1380×1034 pixels). The red light is reflected to a second dichroic mirror (635 LP), which direct the scattered laser light and fluorescence to separate photomultiplier (PMT) modules (Hamamatsu HC120-05 modified for current-to-voltage conversion with time constant=800 kHz; the PMT for laser scattering also incorporates DC restoration circuitry).
The aluminum plate is used to support the flow cell assembly. (paragraph 142)
[0231] The optical system of the IFCB-Sorter uses an additional optical system involved in sorting. The optical system involved in sorting is a copy of that in the IFCB. A 635 nm diode laser (SPMT, 635 nm, 12 mW, Power Technologies, Inc.) is focused on the capillary tube of the sorting system by crossed cylindrical lenses.
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Besides what’s noted above, Fei (US 20210349027 A1) also discloses a sample cell (311, 312) and a sample cell receptacle (313)
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Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RUFUS L PHILLIPS whose telephone number is (571)270-7021. The examiner can normally be reached M-Th, 2 -10 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michelle Iacoletti can be reached at (571) 270-5789. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/RUFUS L PHILLIPS/ Examiner, Art Unit 2877
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