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 .
Preliminary Amendment
Claims 1-31 and 33-40 are currently pending. Claim 32 has been canceled. Claims 1-31 and 33-40 have been amended. Entry of this amendment is accepted and made of record.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “means for controlling the temperature of the fluid” of claim 33 must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) 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 content of an abstract of the disclosure.
A patent abstract is a concise statement of the technical disclosure of the patent and should include that which is new in the art to which the invention pertains. The abstract should not refer to purported merits or speculative applications of the invention and should not compare the invention with the prior art.
If the patent is of a basic nature, the entire technical disclosure may be new in the art, and the abstract should be directed to the entire disclosure. If the patent is in the nature of an improvement in an old apparatus, process, product, or composition, the abstract should include the technical disclosure of the improvement. The abstract should also mention by way of example any preferred modifications or alternatives.
Where applicable, the abstract should include the following: (1) if a machine or apparatus, its organization and operation; (2) if an article, its method of making; (3) if a chemical compound, its identity and use; (4) if a mixture, its ingredients; (5) if a process, the steps.
Extensive mechanical and design details of an apparatus should not be included in the abstract. The abstract should be in narrative form and generally limited to a single paragraph within the range of 50 to 150 words in length.
See MPEP § 608.01(b) for guidelines for the preparation of patent abstracts.
The disclosure is objected to because of the following informalities: Statements on pages 1 and 2 refer to refer to specific claims, which are incidentally cancelled, and are inappropriate and should be removed. Reference to a general claim number could lead to confusion as the specifics of the claims may change throughout prosecution.
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. Such claims limitations are: “means for controlling the temperature of the fluid” in claim 33.
No corresponding structure can be found.
Examiner further notes the limitation “if the cost function has decreased from the most recent value, step c) is repeated with the same specific dynamic localized heating event, and, if the cost function has increased from the most recent value, step b) is carried out” recited by claim 21 is a contingent limitation of which the condition need not to be met, and therefore the broadest reasonable interpretation of the claim does not require the step to be performed if the condition is not met. See MPEP 2111.04(II).
Examiner further notes the limitation “if the target configuration is changed to a new target configuration, the particles are then associated, in each case, with at least one of a new target position and a new target orientation” recited by claim 26 is a contingent limitation of which the condition need not to be met, and therefore the broadest reasonable interpretation of the claim does not require the step to be performed if the condition is not met. See MPEP 2111.04(II).
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 33 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.
Claim 33, recites “means for controlling the temperature of the fluid”. However, the term “means for controlling the temperature of the fluid” lacks written description and it is not clear how the function of controlling the temperature of the fluid is carried out.
Appropriate correction is required.
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 33 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 limitation “means for controlling the temperature of the fluid” invokes 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The term “means for controlling the temperature of the fluid” in claim 33, lacks written description and it is not clear how the function of controlling the temperature of the fluid is carried out. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
For examination on the merits the claim will be interpreted as best understood.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-9, 12-14, 16-17, 27-28, 31, 33-36 and 39-40 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1, 3-9, 11, 22, 26-31 and 33-42 of copending Application No. 18574585 (reference application). Although the claims at issue are not identical, they are not patentably distinct from each other because the claim scope of the pending application include the are found anticipated by various combinations of claims 1, 3-9, 11, 22, 26-31 and 33-42 of the reference application, as presented below.
Claim 1 recites a method for spatially manipulating at least one particle in a fluid, the method comprising: spatially manipulating the particle or the particles in the fluid by hydrodynamic flows which are generated in the fluid by dynamic localized heating of the fluid, wherein at least one target spatial configuration of the particle(s) in the fluid is defined and wherein the following further steps are carried out: a) capturing an actual spatial configuration of the particle(s), b) determining a specific dynamic localized heating event to be applied to the fluid in dependence of at least one recent actual spatial configuration of the particle(s) and a target configuration of the particle(s), c) applying the specific dynamic localized heating event as determined in step b) at least once to the fluid and d) repeating at least one or all of steps a) to c) already claimed in claims 1 and 26 of copending Application No. 18574585.
Claim 2 recites a method according to claim 1, wherein the fluid is or contains water already claimed in claim 3 of copending Application No. 18574585.
Claim 3 recites a method according to claim 1, wherein the particle(s) to be manipulated is/are at least one of the following: a biological particle, a cell, a virus, a tissue fragment, a metal particle, a composite material particle, a polymer particle, a nanoparticle already claimed in claim 4 of copending Application No. 18574585.
Claim 4 recites a method according to claim 1, wherein the spatial manipulation of the particle(s) comprises at least one of: moving specified particle(s) towards specified target locations in the fluid, moving specified particle(s) along specified paths in the fluid, keeping specified particle(s) in specified target locations in the fluid, keeping specified particle(s) in specified target orientations in the fluid, or moving specified particle(s) towards specified target orientation(s) in the fluid already claimed in claim 3 of copending Application No. 18574585.
Claim 5 recites a method according to claim 1, wherein the dynamic localized heating of the fluid is brought about by a laser or an infrared laser or at least one infrared light emitting diode already claimed in claim 5 of copending Application No. 18574585.
Claim 6 recites a method according to claim 5, wherein the dynamic localized heating events of the fluid are brought about by repetitive scanning of a focal volume of the laser along a path in the fluid or the sample already claimed in claim 6 of copending Application No. 18574585.
Claim 7 recites a method according to claim 5, wherein the determination of the specific dynamic localized heating events to be applied to the fluid in step b) comprises the determination of at least one of: 2-dimensional scan path in the fluid, 3-dimensional scan path in the fluid, laser intensity, laser scanning speed, scanning frequency of the laser, or number of times the scanning path is scanned already claimed in claim 7 of copending Application No. 18574585.
Claim 8 recites a method according to claim 5, wherein the paths along which the laser is scanned is chosen such that the heating radiation does not hit the particle(s) to be manipulated already claimed in claim 8 of copending Application No. 18574585.
Claim 9 recites a method according to claim 5, wherein a scan rate of the repetitive scanning is chosen such that temperature fields in the sample can relax between successive scans already claimed in claim 9 of copending Application No. 18574585.
Claim 12 recites a method according to claim 1, wherein the capturing of the actual spatial configuration of the particle(s) comprises at least one of the following: a 1-dimensional position of the particle(s), a 2-dimensional position of the particle(s), a 3-dimensional position of the particle(s), a measurement of an orientation of the particle(s) within a plane, or a measurement of a 3-dimensional orientation of the particle(s) in space already claimed in claim 11 of copending Application No. 18574585.
Claim 13 recites a method according to claim 1, wherein the target spatial configuration of the particle(s) in the fluid comprises at least one of: specified target location(s) of the particle(s) in the fluid, specified target velocity or velocities of the particle(s) in the fluid, specified target orientation(s) of the particle(s) in the fluid, or specified target rotation speed(s) of the particle(s) in the fluid already claimed in claim 27 of copending Application No. 18574585.
Claim 14 recites a method according to claim 1, wherein the target spatial configuration of the particle(s) in the fluid is a 1-dimensional localisation of the particle(s), a 2-dimensional localisation of the particle(s) or a 3-dimensional localisation of the particle(s) already claimed in claim 28 of copending Application No. 18574585.
Claim 16 recites a method according to claim 1, wherein a cost function is calculated on the basis of a recent actual spatial configuration of the particles and a target configuration of the particles already claimed in claim 29 of copending Application No. 18574585.
Claim 17 recites a method according to claim 1, wherein at least two particles are simultaneously spatially manipulated already claimed in claim 22 of copending Application No. 18574585.
Claim 27 recites a method according to claim 1, wherein the following data are stored in a database: previous actual spatial configurations of the particle(s), previous dynamic localized heating events applied to the fluid determined on the basis of at least a respective actual spatial configuration and a target configuration and changes in the actual spatial configurations of the particle(s) caused by the respective dynamic localized heating event applied to the fluid, and wherein future dynamic localized heating events to be applied to the fluid are calculated using at least parts of the data stored in the database already claimed in claim 30 of copending Application No. 18574585.
Claim 28 recites a method according to claim 1, wherein future dynamic localized heating events to be applied to the fluid are calculated using machine learning already claimed in claim 31 of copending Application No. 18574585.
Claim 31 recites an apparatus for spatially manipulating at least one particle in a fluid by means of hydrodynamic flows, the apparatus comprising: a receptacle for receiving the fluid and the particle(s) to be manipulated, a heating device for generating hydrodynamic flows within the fluid by dynamic localized heating of the fluid, the dynamic localized heating being designed to bring about a spatial manipulation of the particles within the receptacle by hydrodynamic flows, an imaging device for imaging at least parts of the receptacle, a control unit for controlling the heating device and the imaging device and for evaluating image data from the imaging device, wherein the control unit is designed for: A) activating the imaging device to capture an actual spatial configuration of the particle(s) within the receptacle, B) determining control signals for the heating device suitable for a specific dynamic localized heating event to be applied to the fluid in dependence of at least one recent spatial configuration of the particle(s) and a previously defined target configuration of the particle(s), C) activating the heating device to apply the specific dynamic localized heating event as determined in step B) at least once to the fluid and D) repeating at least one or all of the steps A) to C) already claimed in claims 33-34 and 40 of copending Application No. 18574585.
Claim 33 recites an apparatus according to claim 31, wherein the receptacle has means for controlling the temperature of the fluid already claimed in claim 36 of copending Application No. 18574585.
Claim 34 recites an apparatus according to claim 31, wherein the heating device has a laser for providing the energy for the dynamic localized heating and optical means including a scanner for relaying heating laser radiation to variable locations in the fluid already claimed in claim 37 of copending Application No. 18574585.
Claim 35 recites an apparatus according to claim 31, wherein the imaging device is a microscope already claimed in claim 38 of copending Application No. 18574585.
Claim 36 recites apparatus according to claim 35, wherein the microscope is designed for carrying out at least one of the following techniques: Fluorescence Microscopy, Multi-Photon-Fluorescence Microscopy, Widefield Microscopy, Scanning Microscopy, Darkfield Microscopy, Confocal Microscopy, Lightsheet Microscopy, Localisation Microscopy, Structured Illumination Microscopy, Photoactivated Localization Microscopy (FPALM), Stochastic Optical Reconstruction Microscopy (STORM), Stimulated Emission Depletion Microscopy (STED), Ground State Depletion Microscopy (GSD), Saturated Pattern Excitation Microscopy, Saturated Structured Illumination Microscopy (SSIM), Light Field Microscopy (LFM), Fourier Light Field Microscopy (FLFM), or Oblique Plan Microscopy (OPM) already claimed in claim 39 of copending Application No. 18574585.
Claim 39 recites a computer program product comprising instructions stored on a non-transitory computer-readable medium which, when the program is executed by the control unit, causes the control unit to carry out a method with the steps of A) activating the imaging device to capture an actual spatial configuration of the particles within the receptacle, B) determining control signals for the heating device suitable for a specific dynamic localized heating event to be applied to the fluid in dependence of at least one recent spatial configuration of the particle(s) and a previously defined target(s) configuration of the particle(s), C) activating the heating device to apply the specific dynamic localized heating event as determined in step B) at least once to the fluid and D) repeating at least one or all of the steps A) to C) already claimed in claim 41 of copending Application No. 18574585.
Claim 40 recites a non-transitory computer-readable storage medium comprising instructions which, when executed by the control unit, cause the control unit to carry out a method with the steps of A) activating the imaging device to capture an actual spatial configuration of the particles within the receptacle, B) determining control signals for the heating device suitable for a specific dynamic localized heating event to be applied to the fluid in dependence of at least one recent spatial configuration of the particles and a previously defined target configuration of the particles, C) activating the heating device to apply the specific dynamic localized heating event as determined in step B) at least once to the fluid and D) repeating at least one or all of the steps A) to C) already claimed in claim 42 of copending Application No. 18574585.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
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.
Claims 1-5,10-14,17-18, 24-25, 29-31 and 37-38 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Tokonami et al. (US 2020/0182770) (hereinafter Tokonami).
Regarding claim 1, Tokonami teaches a method for spatially manipulating at least one particle in a fluid, the method comprising:
spatially manipulating the particle or the particles in the fluid by hydrodynamic flows which are generated in the fluid dynamic localized heating of the fluid wherein at least one target spatial configuration of the particle(s) in the fluid is defined (see Abstract), and wherein the following further steps are carried out:
a) capturing an actual spatial configuration of the particle(s) (see paragraphs 0074-0075) ,
b) determining a specific dynamic localized heating event to be applied to the fluid in dependence of at least one recent actual spatial configuration of the particle(s) and a target configuration of the particle(s) (see paragraphs 0076-0079),
c) applying the specific dynamic localized heating event as determined in step b) at least once to the fluid (see paragraphs 0076-0079) and
d) repeating at least step a) (see Figures 12(a)-12(f) and paragraphs 0089-0093).
Regarding claim 2, Tokonami teaches all the limitations of claim 1, and further teaches wherein the fluid is or contains water (see paragraph 0070).
Regarding claim 3, Tokonami teaches all the limitations of claim 1, and further teaches wherein the particle(s) to be manipulated are: a biological particle, a cell, a metal particle, and a nanoparticle (see paragraphs 0033-0035).
Regarding claim 4, Tokonami teaches all the limitations of claim 1, and further teaches wherein the spatial manipulation of the particle(s) comprises: moving specified particle(s) towards specified target locations in the fluid (see paragraphs 0076 and 0086).
Regarding claim 5, Tokonami teaches all the limitations of claim 1, wherein the dynamic localized heating of the fluid is brought about by a laser (see paragraph 0076).
Regarding claim 10, Tokonami teaches all the limitations of claim 1, and further teaches Method according claim 1 wherein the specific dynamic localized heating events to be applied to the fluid are determined also in dependence of a mobility of particle(s) in the fluid (see paragraphs 0076 and 0086).
Regarding claim 11, Tokonami teaches all the limitations of claim 1, wherein the imaging device is a microscope (see paragraphs 0045-0048 and 0053).
Regarding claim 12, Tokonami teaches all the limitations of claim 1, and Furter teaches wherein the capturing of the actual spatial configuration of the particle(s): a 2-dimensional position of the particle(s) (see Figure 12 and paragraph 0089).
Regarding claim 13, Tokonami teaches all the limitations of claim 1, and further teaches wherein the target spatial configuration of the particle(s) in the fluid comprises: specified target location(s) of the particle(s) in the fluid (pores of honeycomb) (see paragraphs 0076 and 0086).
Regarding claim 14, Tokonami teaches all the limitations of claim 1, and further teaches wherein the target spatial configuration of the particle(s) in the fluid is a 3-dimensional localisation of the particle(s) (see Figure 11 and paragraphs 0085-0087).
Regarding claim 17, Tokonami teaches all the limitations of claim 1, and further teaches wherein at least two particles are simultaneously spatially manipulated (see Figure 11 and paragraphs 0086-0087).
Regarding claim 18, Tokonami teaches all the limitations of claim 17, and further teaches wherein the plurality of particles to be spatially manipulated comprises at least one subset of equivalent or identical particles (bacteria B (P. aeruginosa B1 and S. aureus B2)) (see paragraph 0066).
Regarding claim 24, Tokonami teaches all the limitations of claim 1, and further teaches wherein between steps a) and b) the following further step is carried out: the particle(s) to be manipulated is or are associated with a target position (“toward the laser spot”) and a target orientation (see paragraph 0086).
Regarding claim 25, Tokonami teaches all the limitations of claim 1, and further teaches wherein a tracking of the particle(s) is carried out by identifying particles present in a captured new actual configuration with particles in the most recent actual configuration (see Figures 12(a) -12(f) and paragraphs 0089-0093).
Regarding claim 29, Tokonami teaches all the limitations of claim 1, and further teaches wherein the integrity of at least one particle is changed during spatial manipulation (dead bacteria with damaged cell membranes) (see paragraph 0095).
Regarding claim 30, Tokonami teaches all the limitations of claim 29, and further teaches wherein the change of the integrity comprises at least one of: cutting off of a fragment from a biological particle (dead bacteria with damaged cell membranes) (see paragraph 0095).
Regarding claim 31, Tokonami teaches an apparatus for spatially manipulating at least one particle in a fluid by means of hydrodynamic flows, the apparatus comprising:
a receptacle (10) for receiving the fluid and the particle(s) to be manipulated (see Figure 1 and paragraphs 0042-0043),
a heating device (50) for generating hydrodynamic flows within the fluid by dynamic localized heating of the fluid, the dynamic localized heating being designed to bring about a spatial manipulation of the particles within the receptacle (10) by hydrodynamic flows (see Figure 1 and paragraphs 0042 and 0075-0077) ,
an imaging device (90) for imaging at least parts of the receptacle (10) (,see Figure 1 and paragraph 0074),
a control unit (100) for controlling the heating device (50) and the imaging device (90) and for evaluating image data from the imaging device (90) (see paragraphs 0071-0077), wherein the control unit (100) is designed for:
A) activating the imaging device (90) to capture an actual spatial configuration of the particle(s) within the receptacle (10) (see paragraph 0075),
B) determining control signals for the heating device (50) suitable for a specific dynamic localized heating event to be applied to the fluid in dependence of at least one recent spatial configuration of the particle(s) and a previously defined target configuration of the particle(s) (see paragraphs 0075-0076),
C) activating the heating device (50) to apply the specific dynamic localized heating event as determined in step B) at least once to the fluid (see paragraph 0076) and
D) repeating the steps A) (see Figures 12(a)-12(f) and paragraphs 0089-0093).
Regarding claim 37, Tokonami teaches wherein least one device for changing the integrity the particle(s) is present (dead bacteria with damaged cell membranes) (see paragraph 0095).
Regarding claim 38, Tokonami teaches wherein the device for changing the integrity of the particle(s) comprises at least one laser (see paragraph 0076).
Claims 1, 4-7, 9, 31 and 33-36 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Moritz et al. (EP 3489732) (hereinafter Moritz).
Regarding claim 1, Moritz teaches a method for spatially manipulating at least one particle in a fluid, the method comprising:
spatially manipulating the particle or the particles in the fluid by hydrodynamic flows which are generated in the fluid by dynamic localized heating of the fluid (see Abstract and paragraphs 0001, 0008, 0014 and 0019), wherein at least one target spatial configuration (pattern) of the particle(s) in the fluid is defined (see paragraphs 0019 and 0026) and wherein the following further steps are carried out:
a) capturing (imaging) an actual spatial configuration of the particle(s) (see paragraphs 0008, 0012, 0038, 0049, 0076, 0091 and 0098-0100),
b) determining a specific dynamic localized heating event to be applied to the fluid in dependence of at least one recent actual spatial configuration of the particle(s) and a target configuration of the particle(s) (see paragraphs 0052-0054, 0098-0100 and 0103),
c) applying the specific dynamic localized heating event as determined in step b) at least once to the fluid (see 0008, 0026, 0052-0054, 0098-0100 and 0103) and
d) repeating step c) (see paragraphs 0056, 0073 and 0084).
Regarding claim 4, Moritz further teaches wherein the spatial manipulation of the particle(s) comprises: moving specified particle(s) towards specified target locations in the fluid and moving specified particle(s) along specified paths in the fluid (see paragraph 0073).
Regarding claim 5, Moritz further teaches wherein the dynamic localized heating of the fluid is brought about by a laser (see paragraphs 0008, 0028 and 0029)
Regarding claim 6, Moritz teaches wherein the dynamic localized heating events of the fluid are brought about by repetitive scanning of a focal volume of the laser along a path in the fluid or the sample (see paragraphs 0008, 0028-0029 and 0070).
Regarding claim 7, Moritz further teaches wherein the determination of the specific dynamic localized heating events to be applied to the fluid in step b) comprises the determination of at least one of: 2-dimensional scan path in the fluid (xy-scanning) (see paragraph 0070) and laser intensity (see paragraph 0076).
Regarding claim 9, Moritz further teaches a scan rate of the repetitive scanning is chosen such that temperature fields in the sample can relax between successive scans (see paragraph 0061).
Regarding claim 31, Moritz teaches an apparatus for spatially manipulating at least one particle in a fluid by means of hydrodynamic flows, the apparatus comprising:
a receptacle (17) for receiving the fluid and the particle(s) to be manipulated (see paragraph 0095),
a heating device (1) for generating hydrodynamic flows within the fluid by dynamic localized heating of the fluid, the dynamic localized heating being designed to bring about a spatial manipulation of the particles within the receptacle by hydrodynamic flows (see Abstract and paragraphs 0001, 0008, 0014, 0019 and 0026),
an imaging device (25) for imaging at least parts of the receptacle (17),
a control unit (20) for controlling the heating device and the imaging device and for evaluating image data from the imaging device (see paragraph 0077 and 0098), wherein the control unit is designed for:
A) activating the imaging device (25) to capture an actual spatial configuration of the particle(s) within the receptacle (17) (see paragraphs 0008, 0012, 0038, 0049, 0076, 0091 and 0098-0100),’
B) determining control signals for the heating device suitable for a specific dynamic localized heating event to be applied to the fluid in dependence of at least one recent spatial configuration of the particle(s) and a previously defined target configuration of the particle(s) (see paragraphs 0052-0054, 0098-0100 and 0103),
C) activating the heating device to apply the specific dynamic localized heating event as determined in step B) (see 0008, 0026, 0052-0054, 0098-0100 and 0103) and
D) repeating step C) (see paragraphs 0056, 0073 and 0084).
Regarding claim 33, Moritz further teaches wherein the receptacle has means for controlling the temperature of the fluid (32) (see paragraph 0097).
Regarding claim 34, Moritz further teaches wherein the heating device (1) has a laser for providing the energy for the dynamic localized heating and optical means including a scanner (8) for relaying heating laser radiation to variable locations in the fluid (see paragraphs 0008, 0085 and 0098).
Regarding claim 35, Moritz further teaches wherein the imaging device (25) is a microscope (see paragraph 0091).
Regarding claim 36, Moritz further teaches wherein the microscope is designed for carrying out at least one of the following techniques: Confocal Microscopy (see paragraph 0036).
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 8, 16, 20-21 and 23 are rejected under 35 U.S.C. 103 as being unpatentable over Moritz in view of Yanhua et al. “Path Planning in automated Manipulation of Biological Cells with Optical tweezers” (hereinafter Yanhua).
Regarding claim 8, Moritz teaches all the limitations of claim 5.
However, Moritz does not explicitly teach wherein the paths along which the laser is scanned is chosen such that the heating radiation does not hit the particle(s) to be manipulated.
Yanhua teaches wherein the paths along which the laser is scanned is chosen such that the heating radiation does not hit the particle(s) to be manipulated (see page 2023, right column, lines 1-8).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the method as taught by Moritz with the paths along which the laser is scanned is chosen such that the heating radiation does not hit the particle(s) to be manipulated as taught by Yanhua. One would be motivated to make this combination in order to provide maximum trapping force without damaging the particle.
Regarding claim 16, Moritz teaches all the limitations of claim 1.
However, Moritz does not explicitly teach wherein a cost function is calculated on the basis of a recent actual spatial configuration of the particles and a target configuration of the particles.
Yanhua teaches wherein a cost function (equation 3) is calculated on the basis of a recent actual spatial configuration (“trapped cell”/origin) of the particles and a target configuration of the particles (“Destination”) (see Abstract and pages 2022-2023; III. Path Planning).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the method as taught by Moritz with a cost function is calculated on the basis of a recent actual spatial configuration of the particles and a target configuration of the particles as taught by Yanhua. One would be motivated to make this combination in order to manipulate biological cells with avoidance of obstacles at the least movement cost, which ensures the efficiency and safety of manipulation.
Regarding claim 20, Moritz as modified by Yanhua teaches all the limitations of claim 16, and further teaches wherein the specific dynamic localized heating event to be determined in step b) is determined in dependence of the cost function (see Yanhua; Abstract and pages 2022-2024; III. Path Planning).
Regarding claim 21, Moritz as modified by Yanhua teaches all the limitations of claim 16, and further teaches wherein after an application or each application of the specific dynamic localized heating event in step c), the actual configuration is captured and the cost function is calculated for the new configuration and, if the cost function has decreased from the most recent value, step c) is repeated with the same specific dynamic localized heating event, and, if the cost function has increased from the most recent value, step b) is carried out (“the optimal path is determined by computing the lowest cost path with every step”; see Yanhua, page 2024, right column , lines 18-22).
Regarding claim 23, Moritz as modified by Yanhua teaches all the limitations of claim 16, wherein the cost function contains the following argument: distance of a specific particle to a specific target location of this particle (“determine the length of each moving step”) (see Yanhua; page 2024, left column).
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Moritz in view of Weinert et al. “Optically driven fluid flow along arbitrary microscale patterns using thermoviscous expansion” (hereinafter Weinert).
Regarding claim 15, Moritz teaches all the limitations of claim 1.
However, Moritz does not explicitly teach wherein the target configuration includes at least one of the following requirements: (a) specified particle(s) be not in a specified location, (a) specified particle(s) be as far away from (a) specified location(s) as possible, (a) specified particle(s) be at least in (a) specified distance(s) from (a) specified location(s), specified particles be as close together as possible, specified particles must not touch each other, or particles of a different kind being treated differently.
Weinert teaches (a) specified particle(s) be not in a specified location (see Figure 5b) (Note: the pattern “nim” requires the specified particles no be outside the pattern).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to provide the methos as taught by Moritz with the target configuration including specified particle(s) be not in a specified location as taught by Weinert. One would be motivated to make this combination in order to provide high resolution patterns.
Claim 26 is rejected under 35 U.S.C. 103 as being unpatentable over Tokonami in view of JP 2020204735A (hereinafter JP).
Regarding claim 26, Tokonami teaches all the limitations of claim 25.
However, Tokonami does not explicitly teach after the tracking of the particles a target configuration is reassessed and, if the target configuration is changed to a new target configuration, the particles are then associated, in each case, with at least one of a new target position and a new target orientation.
JP teaches after the tracking of the particles a target configuration is reassessed and, if the target configuration is changed to a new target configuration, the particles are then associated, in each case, with at least one of a new target position and a new target orientation (see Abstract and paragraph 0020).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the method as taught by Tokonami wherein after the tracking of the particles a target configuration is reassessed and, if the target configuration is changed to a new target configuration, the particles are then associated, in each case, with at least one of a new target position and a new target orientation as taught by JP. One would be motivated to make this combination in order to improve trapping accuracy by realigning misaligned particles and guiding them to the desired target position.
Claims 28 is rejected under 35 U.S.C. 103 as being unpatentable over Moritz in view of Sanchez and in further view of Otillar et al. (US 2003/0012693) (hereinafter Otillar).
Regarding claim 28., Moritz as modified by Sanchez teaches all the limitations of claim 1m Moritz further teaches future dynamic localized heating events to be applied to the fluid are calculated using a computer (20) (see paragraphs 0052-0054, 0098-0100 and 0103)
However, Moritz as modified by Sanchez does not explicitly teach machine learning.
Otillar teaches machine learning (see paragraph 0136).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to provide the calculation of future dynamic localized heating events to be applied to the fluid as taught by the prior combination by using machine learning as taught by Otillar. One would be motivated to make this combination because the benefit of machine learning reside in efficient, accurate and faster calculations. Additionally, machine learning allows for fast processing of large data sets.
Claims 39-40 are rejected under 35 U.S.C. 103 as being unpatentable over Moritz et al. (EP 3489732) (hereinafter Moritz) in view of Sanchez et al. (US 2021/0169336) (hereinafter Sanchez).
Regarding claim 39, Moritz further teaches a computer program product comprising instructions stored on a computer-readable medium which, when the program is executed by the control unit, causes the control unit (20) to carry out a method (see Abstract, paragraphs 0001, 0005, 0076 and 0098-0099) with the steps of
A) activating the imaging device (25) to capture an actual spatial configuration of the particle(s) within the receptacle (17) (see paragraphs 0008, 0012, 0038, 0049, 0076, 0091 and 0098-0100),’
B) determining control signals for the heating device suitable for a specific dynamic localized heating event to be applied to the fluid in dependence of at least one recent spatial configuration of the particle(s) and a previously defined target configuration of the particle(s) (see paragraphs 0052-0054, 0098-0100 and 0103),
C) activating the heating device to apply the specific dynamic localized heating event as determined in step B) (see 0008, 0026, 0052-0054, 0098-0100 and 0103) and
D) repeating step C) (see paragraphs 0056, 0073 and 0084).
However, Moritz does not explicitly teaches the computer-readable medium being a non-transitory computer-readable medium.
Sanchez teaches a non-transitory computer-readable medium (see paragraphs 0060 and 0330).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the computer-readable medium as taught by Moritz with a non-transitory computer-readable medium as taught by Sanchez. One would be motivated to make this combination in order to provide a physical storage device that retains data without continuous power.
Regarding claim 40, Moritz teaches a computer-readable storage medium comprising instructions which, when executed by the control unit, cause the control unit (20) to carry out a method (see Abstract, paragraphs 0001, 0005, 0076 and 0098-0099) with the steps of
A) activating the imaging device (25) to capture an actual spatial configuration of the particle(s) within the receptacle (17) (see paragraphs 0008, 0012, 0038, 0049, 0076, 0091 and 0098-0100),
B) determining control signals for the heating device suitable for a specific dynamic localized heating event to be applied to the fluid in dependence of at least one recent spatial configuration of the particle(s) and a previously defined target configuration of the particle(s) (see paragraphs 0052-0054, 0098-0100 and 0103),
C) activating the heating device to apply the specific dynamic localized heating event as determined in step B) (see 0008, 0026, 0052-0054, 0098-0100 and 0103) and
D) repeating step C) (see paragraphs 0056, 0073 and 0084).
However, Moritz does not explicitly teaches the computer-readable medium being a non-transitory computer-readable medium.
Sanchez teaches a non-transitory computer-readable medium (see paragraphs 0060 and 0330).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the computer-readable medium as taught by Moritz with a non-transitory computer-readable medium as taught by Sanchez. One would be motivated to make this combination in order to provide a physical storage device that retains data without continuous power.
There is no prior art rejection for claim 27.
Allowable Subject Matter
Claims 19 and 22 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.
Regarding claim 19, the closest prior art fails to teach or render obvious at least two particles to be manipulated, the particle being manipulated, in each case, in the next step is the particle which is farthest away from at least one of a target position and a target orientation associated with the respective particle.
Regarding claim 22, the closest prior art alone or in combination fails to teach or render obvious the cost function is invariant with regard to exchange of equivalent or identical particles.
Conclusion
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/JANICE M SOTO/ Examiner, Art Unit 2855
/JOHN E BREENE/ Supervisory Patent Examiner, Art Unit 2855
Prosecution Insights