DETAILED ACTION
Examiner has received and accepted the amended claims and remarks filed on 13 July 2026. These amended claims and remarks are the claims and remarks being referred to in the instant Office Action. Examiner acknowledges Claim 3 has been cancelled.
Response to Arguments
Applicant's arguments have been fully considered but they are not persuasive.
Regarding Claims 1 and 11, Applicant argues Cochran fails to disclose the detector is in an orientation such that the detector senses the refracted infrared light. Examiner respectfully disagrees.
During patent examination, the pending claims must be “given their broadest reasonable interpretation consistent with the specification.” See MPEP 2111.
Merriam-Webster dictionary defines refraction as “deflection from a straight path undergone by a light ray or energy wave in passing obliquely from one medium (such as air) into another (such as glass) in which its velocity is different”. As Cochran’s captured image includes light which has passed through the glass, as well as the liquid, the light has inherently been refracted [0049 – 0051]. For example, light which does not enter the glass at an orthogonal angle is refracted. As such, the instant claim limitations have been taught.
Applicant also argues Cochran fails to disclose identifying a horizontal edge from the obtained image; and determining the height of the solution on the basis of the identified horizontal edge. Examiner respectfully disagrees.
During patent examination, the pending claims must be “given their broadest reasonable interpretation consistent with the specification.” See MPEP 2111.
Cochran discloses utilizing vertical lines through transitional zones i.e. the horizontal edge and based on that horizontal edge, a numerical average of the liquid level is determined i.e. height of the solution [0050], thus meeting the instant claim limitations.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1 – 3 and 9 - 13 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Cochran et al. (US 2007/0107801).
Regarding Claim 1, Cochran discloses a method for determining the height of a solution in a container capable of amplifying and detecting a target nucleic acid [Abstract], the method comprising: emitting infrared light to the container using an illuminator (backlight) [0051], wherein the container (bottle) is a colored container (amber) [0051]; sensing the infrared light passing through and refracted by the container [0049, 0050] using a detector including an optical sensor (camera) [0050], wherein the detector is disposed in an orientation such that the detector senses the refracted infrared light [0049]; obtaining an image using the refracted infrared light sensed [0050]; and determining the height of the solution in the container by analyzing the image obtained [0049, 0051], wherein the analyzing of the obtained image includes: identifying a horizontal edge from the obtained image [0049]; and determining the height of the solution on the basis of the identified horizontal edge [0049, 0050]. Note the intended use of the solution does not result in a manipulative difference between the claimed invention and prior art and therefore does not further limit the claim. See MPEP 2111.02.II.
Regarding Claim 2, Cochran discloses the use of infrared light that is emitted to the container includes infrared light wavelengths selected from a wavelength range of 730 nm to 980 nm (infrared light inherently lies between 780 nm and 1 mm).
Regarding Claim 9, Cochran discloses the detector is a monochrome detector (as it can generate a grey scale image) [0051].
Regarding Claim 10, Cochran discloses the container has higher transmittance for the infrared light than visible light [0051].
Regarding Claim 11, Cochran discloses a system for determining the height of a solution (35) in a container (14) capable of for amplifying and detecting a target nucleic acid, the system comprising: an illuminator (backlight) for emitting infrared light to the container [0051]; a detector (28) for obtaining an image by sensing the infrared light passing through and refracted by the container using the illuminator [0048 – 0051], wherein the detector is disposed in an orientation such that the detector senses the refracted infrared light [0049]; and a controller (34) for determining the height of the solution in the container by analyzing the image obtained by the detector [0050], wherein the analyzing of the obtained image includes: identifying a horizontal edge from the obtained image [0049]; and determining the height of the solution on the basis of the identified horizontal edge [0049, 0050]. Note the intended use of the solution does not result in a structural difference between the claimed invention and prior art and therefore does not further limit the claim. See MPEP 2111.02.II.
Regarding Claim 12, Cochran discloses the controller identifies a horizontal edge from the obtained image and determines the height of the solution on the basis of the identified horizontal edge [0049, 0050].
Regarding Claim 13, Cochran discloses the detector is a monochrome detector (as it can generate a grey scale image) [0051].
Claim Rejections - 35 USC § 102/103
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.
Claim(s) 4 - 8 is/are rejected under 35 U.S.C. 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. 103 as obvious over Cochran et al. (US 2007/0107801).
Regarding Claims 4 – 8, the claims further limit the solely the solution itself. Cochran fails to expressly disclose these limitations; however, Cochran’s method for determining height of a solution in a container does not rely on the specific content of that solution and is therefore capable of measuring the height of any solution, including one containing the constituents of Claims 4 - 8. Furthermore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the applicant’s invention to modify Cochran to determine the height of a solution containing the constituents of Claims 4 – 8 for the benefit of ensuring an appropriate amount of solution is dispensed in the container, as taught by Cochran.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALEXANDER MERCADO whose telephone number is (571)270-7094. The examiner can normally be reached Monday - Thursday 9am - 4pm EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Laura Martin can be reached at (571) 272-2160. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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ALEXANDER A. MERCADO
Primary Examiner
Art Unit 2855
/ALEXANDER A MERCADO/Primary Examiner, Art Unit 2855
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