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 .
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitations are:
Claim 8:
a measurement data acquisition unit, and
a super resolution execution unit.
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.
NOTE: The Federal Circuit has soundly established that generic placeholders for "means", not modified by structure, and defined by function do indeed invoke 112f. See Richard A. Williamson v. Citrix Online, LLC (Fed. Cir. 2015).
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 8 is rejected under 35 U.S.C. 112 (b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as attempting to define a product (i.e., machine or apparatus) entirely by virtue of its function, in the absence of any recited structure. Products must distinguish over the prior art in terms of their structure (or structure + structure’s function when claimed functionally) rather than function alone (MPEP 2114). Therefore, an “apparatus” not having structural limitations fails to “particularly point out and distinctly claim . . . ” the invention in accordance with 35 U.S.C. 112 (b) or 35 U.S.C. 112 (pre-AIA ), second paragraph. Applicant is advised to define the apparatus by virtue of the individual structural element that serve to perform the individual functions recited in the claim. The examiner suggests amending the claim by deleting the intended use language “capable of” and replacing it with “arranged to or configured to”.
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.
Claims 1 and 8 are 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 claims contain subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. The limitation “. . . measurement data items measured by a measuring apparatus. . .” broadens the measurement data to include all kinds of measurement data. For example, while the specification (printed application publication No. 2024/0346620) says: “ The resolution of spectroscopy spectrum is limited by the number of detectors. Therefore, it has been difficult to obtain high-resolution spectral data over a wide range. The present disclosure addresses this issue, and a purpose is to provide a technology for improving the accuracy of measurement data such as spectral data (See paragraphs 0004-0005); . . . . In the embodiment of the present disclosure, a technology for improving the resolution and SN ratio of measurement data measured by a measuring apparatus such as a spectrometer will be described. In order to analyze the peak shift, half-width, etc. of a spectroscopy spectrum, curve fitting is performed using a model function such as Lorentz distribution, Gaussian distribution, and Vogt distribution. Since the distribution of an actual spectroscopy spectrum does not follow the model function perfectly, however, the difference between the actual distribution and the model function creates a systematic error in an analysis result such as peak position. In the analysis method of this embodiment, the resolution and SN ratio of measurement data are improved by applying a concept of super resolution to measurement data such as spectroscopy spectrum. Thereby, the accuracy of analysis results such as peak position, peak intensity, and half-maximum width is improved (See paragraphs 0020-0022); and description of Figs. 4 and 6-9 (see paragraphs 0013 and 0015-0018”, the specification does not provide support for such a broad genus limitation. For example, the specification does not provide a generic measurement data collected from various sensors/instruments and/or from an aircraft or drone. Thus, a person having ordinary skill in the art would not view the applicant to have been in possession of the generic subject matter claimed based on a single species disclosed in the specification.
Since claims 2-7 depend on claim 1, they are also rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, for the same reasons set forth above for claim 1.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. US Patent No. 10,746,675 (See for example, the Abstract); US Patent Application Publication No. 20170307440 (See for example, paragraphs 0038-0040); and Computer English Translation of Chinese Patent No. CN 109164084 B (See for example, pages 3-5).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL G MARIAM whose telephone number is (571)272-7394. The examiner can normally be reached M-F 7:30-5:00 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, ANDREW MOYER can be reached at (571)272-9523. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DANIEL G MARIAM/Primary Examiner, Art Unit 2675