carlsonDETAILED 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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 2/23/2026 has been entered.
Response to Arguments
Applicant’s first argument is that the parallel arrangement of nozzles as in claim 1 is not taught by Liu or Giering, however, this argument is moot, as neither Liu nor Giering is relied on to teach that particular limitation.
Applicant’s second and third arguments are that claims 18 and 20 are not obvious over the cited references, however, these arguments are moot, as claims 18 and 20 are drawn to inventions not elected by Applicant’s original presentation, as described below.
Since the elected dependent claims depend, directly or indirectly, on claim 1, which is not allowable, the dependent claims are not automatically allowable.
Election/Restrictions
Restriction to one of the following inventions is required under 35 U.S.C. 121:
I. Claims 1-11 and 13-17, drawn to a method of using a multi-stage particle concentrator, irradiating a particle inside of a detection chamber, and capturing image data, classified in G01N 1/2208.
II. Claims 18-19, drawn to a system comprising a system comprising a generic particle concentrator, and a detection and analysis unit comprising a detection chamber and a processor configured to obtain a frame of grayscale image data, determine particle contours, calculate a dominant wavelength of light, categorize the particle, and generate information about the particle, classified in G01N 15/1433.
III. Claim 20, drawn to a system comprising a broadly claimed particle concentrator and a particle sensor configured to perform fluorescence measurements and identify a particle based on the measured fluorescence, classified in G01N 21/64.
The inventions are independent or distinct, each from the other because:
Inventions I and II are related as process and apparatus for its practice. The inventions are distinct if it can be shown that either: (1) the process as claimed can be practiced by another and materially different apparatus or by hand, or (2) the apparatus as claimed can be used to practice another and materially different process. (MPEP § 806.05(e)). In this case, the process claimed as invention I can be practiced without a processor configured to calculate a dominant wavelength based on a dominant color hue from a grayscale image or to identify species of particle by comparison to a database. Further, the apparatus of invention II can be used to practice a process that does not use a multi-stage particle concentrator with the newly claimed features of claim 1.
Inventions I and III are related as process and apparatus for its practice. The inventions are distinct if it can be shown that either: (1) the process as claimed can be practiced by another and materially different apparatus or by hand, or (2) the apparatus as claimed can be used to practice another and materially different process. (MPEP § 806.05(e)). In this case, the process claimed as invention I can be practiced with an apparatus that measures light of the same wavelength(s) as the light source emits rather than emitting ultraviolet light and detecting fluorescence. Further, the apparatus of invention III can be used to practice fluorescence measurements and identify the species of particles based on wavelengths of fluorescent light emitted by the particles.
Inventions II and III are directed to related apparatus. The related inventions are distinct if: (1) the inventions as claimed are either not capable of use together or can have a materially different design, mode of operation, function, or effect; (2) the inventions do not overlap in scope, i.e., are mutually exclusive; and (3) the inventions as claimed are not obvious variants. See MPEP § 806.05(j). In the instant case, the inventions as claimed have materially different modes of operation (using grayscale image data to calculate a dominant wavelength is materially different from using ultraviolet light to induce fluorescence and determine a dominant wavelength of induced fluorescence). Furthermore, the inventions as claimed do not encompass overlapping subject matter and there is nothing of record to show them to be obvious variants.
Restriction for examination purposes as indicated is proper because all the inventions listed in this action are independent or distinct for the reasons given above and there would be a serious search and/or examination burden if restriction were not required because one or more of the following reasons apply:
Invention II imposes a serious examination burden, with non-prior art issues not relevant to the other inventions. In particular, it is unclear how one would “calculate a dominant wavelength of light emitted by the at least one particle based on a dominant color hue within the located particle area” based on a previously obtained grayscale image or whether the disclosure as originally filed adequately describes or enables such a calculation. Typically, such calculations would be based on some sort of wavelength-filtered image data (as is common in color photography) or wavelength-dispersed image data (as is common in spectrometry).
Invention III imposes a serious search burden, as the field of fluorescence is a different field of search from the other inventions, which may illuminate the particle with the same wavelengths of light as the detector is tuned to detect, so art pertinent to the other inventions is likely not to be pertinent to invention III.
On the other hand, invention I does not appear to impose serious search or examination burden due to its similarity to previously examined claims.
Newly amended claims 18-20 are directed to inventions that are independent or distinct from the invention originally claimed for the following reasons:
Invention II, described in claims 18-19, includes new limitations regarding use of grayscale image data to calculate a dominant wavelength of light from a particle and use that information to identify a species of the particle, which is distinct from previous claims which did not include such limitations and imposes a serious examination burden, as described above.
Invention III, described in claim 20, includes new limitations regarding the use of ultraviolet light to calculate a dominant wavelength of induced fluorescence and categorize the particle as biological based on that wavelength, which is distinct from previous claims which did not include such limitations and imposes a serious search burden, as described above.
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claims 18-20 are withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
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.
Claim(s) 1-5, 7-11, and 17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Liu (US Patent 4972957) in view of Giering (Non-Patent Literature “The Interpretation of Particle Size, Shape, and Carbon Flux of Marine Particle Images Is Strongly Affected by the Choice of Particle Detection Algorithm”), further in view of Marple 1 (US patent 4670135).
Regarding claim 1, Liu teaches a method of suspended particle detection, the method comprising:
receiving, with a multi-stage particle concentrator (FIG. 1, particle concentrating sampler and collector 10), an aerosol comprising particles suspended within a bulk gas, the aerosol having a first concentration indicative of count of particles per unit volume of the bulk gas (abstract, which discusses concentrating particles to obtain a sufficient number of particles measured without sampling too large a volume of air); and
concentrating, with the multi-stage particle concentrator, the aerosol to generate a particle-rich stream of gas comprising at least one particle, the particle-rich stream of gas having a second concentration greater than the first concentration (FIG. 7, minor flow sent to minor flow pump via particle counting instrument 95 which would comprise a detection chamber. Note COL. 2, lines 65-68, which points out that FIG. 7 is a schematic representation of the device of FIG. 1.), wherein concentrating the aerosol comprises:
concentrating the aerosol in a first stage comprising a nozzle to generate an intermediate stream of gas (FIG. 1, receiver tube 27, together with inlet nozzle 17 and outlet orifice 18); and
further concentrating the intermediate stream of gas in a second stage downstream of the first stage to generate the particle-rich stream of gas, the second stage comprising a second set of nozzles arranged in series with the first stage (FIG. 1, using second stage impactor housing 32);
irradiating the at least one particle in the particle-rich stream of gas with a light source of a certain wavelength (FIG. 7, particle counting instrument 95. Also see COL. 5, lines 46-48, the particle counting instrument can be an optical counter. An optical counter will necessarily rely on an optical signal (i.e., light), which will inherently come from a light source and be of at least one wavelength) in a detection chamber, the detection chamber including detection chamber walls (FIG. 7 shows the minor flow passing through the particle counting instrument 95 on its way to the minor flow pump 94. COL. 5, lines 36-48 describe that the minor flow pump draws (i.e., pulls) the minor flow through the particle counting instrument. In order to draw the particle-enriched minor flow through the particle counting instrument 95, as disclosed by Liu, rather than the alternatives contrary to Liu of drawing air from the environment or drawing it around or past rather than through the particle counting instrument 95, the particle counting instrument 95 would need an enclosed space (i.e., a detection chamber) through which the minor flow would flow, enclosed by some type of enclosing structure (i.e., detection chamber walls)).
While Liu does not explicitly state that the materials used to enclose the minor flow as it goes through the particle counting instrument occlude ambient light, going out of one’s way to choose translucent materials would degrade the signal-to-noise ratio of an optical particle counter (is a change in light falling on the detector caused by a particle or by changes in ambient lighting?) or require features not in evidence to mitigate or prevent that degradation.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention for Liu to have used walls that occlude ambient light rather than walls that do not occlude ambient light to gain the predictable benefit of improving signal-to-noise ratio in the optical measurements, with a reasonable expectation of success.
Liu does not explicitly teach capturing image data relating to the at least one particle with an image sensor.
In the same field of endeavor of detecting, counting, and characterizing suspended particles and reasonably pertinent to the goal of identifying and analyzing those particles in image data (see FIG. 12 of the present disclosure), Giering does teach a detection region from which ambient light is occluded (page 3, first paragraph, a 658 nm solid state diode laser is used as illumination. Light with wavelengths near 658 nm is occluded by ocean water at depths below a few meters, much shallower than most of Giering’s measurements, though performing measurements deep underwater is far from the only way known to block ambient light) and capturing image data relating to the at least one particle with an image sensor (page 3, first paragraph, holographic image records). By using imaging techniques in an ambient-light-occluded environment, Giering is able to not just count particles, but also characterize their shape and size, yielding more information about the particles suspended in the medium, all while maintaining a reasonable signal-to-noise ratio.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the concentrating virtual compactor and optical particle counter of Liu with the imaging techniques of Giering to better characterize the particles suspended in the aerosol sampled in terms of size, shape, or other identifying information.
Liu does not explicitly teach that the first stage comprises a first set of nozzles arranged in parallel.
In the same field of endeavor of particle concentrators, Marple 1 does teach that the first stage comprises a first set of nozzles arranged in parallel (COL. 2, lines 6-9, which describe using multiple inlet nozzles in a virtual impactor apparatus). By using multiple inlet nozzles, Marple 1 is able to increase the flow rate while keeping the flow through each individual nozzle at a reasonable value (COL. 2, lines 9-12).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the concentrating virtual compactor and optical particle counter of Liu, as modified by Giering, by using multiple inlet nozzles on the device in the manner of Marple 1 to increase the total flow rate that can be handled by the device without increasing the flow of the air through each nozzle too much.
Regarding claim 2, Liu, as modified by Giering and Marple 1, teaches or renders obvious the method of claim 1 (as described above).
Liu does not explicitly teach obtaining a frame of grayscale image data comprising luminance values of image data captured by the image sensor or camera;
analyzing the image data in the frame to identify at least one particle captured in the frame, wherein analyzing the image data comprises:
identifying pixels having luminance values that satisfy a threshold; and
determining particle contours of the at least one particle based on the identified pixels; and
generating at least one of quantitative or qualitative information for the at least one particle based at least partially on the analyzing of the image data.
In the same field of endeavor of detecting, counting and characterizing suspended particles, Giering does teach obtaining a frame of grayscale image data comprising luminance values of image data captured by the image sensor or camera (page 3, first paragraph, final sentence. Note that a monochrome image is the same as a grayscale image in that neither distinguishes between different wavelengths of light.);
analyzing the image data in the frame to identify at least one particle captured in the frame (FIG. 1 as a whole, using Planktonator software to identify particles), wherein analyzing the image data comprises:
identifying pixels having luminance values that satisfy a threshold (FIG. 1 (b), Otsu threshold); and
determining particle contours of the at least one particle based on the identified pixels (FIG. 1 (e), contour calculation); and
generating at least one of quantitative (introduction, second paragraph, particle size) or qualitative information (introduction, second paragraph, particle shape) for the at least one particle based at least partially on the analyzing of the image data (introduction, second paragraph). By processing image data in this way, Giering is able to distinguish particles from one another in images containing suspended particles in order to determine their concentration, shape, and size.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the concentrating aerosol particle counter of Liu, as modified by Giering and Marple 1, with the image processing techniques of Giering in order to gain the benefit of characterizing not just the number of particles, but also discover qualitative and quantitative information about the particles suspended in the fluid under test.
Regarding claim 3, Liu, as modified by Giering and Marple 1, teaches or renders obvious the method of claim 1 (as described above).
Liu further teaches that concentrating the aerosol comprises:
receiving at least a portion of the bulk gas into at least one first stage inlet nozzle of the particle concentrator (FIG. 1, inlet nozzle 17);
outputting a particle-lean stream of gas as a major flow stream from a first outlet of the first stage of the particle concentrator (FIG. 1, conduit or line 78, which is directed to major flow pump 80); and
outputting the particle rich-stream of gas as a minor flow stream from a second outlet of the second stage of the particle concentrator (FIG. 1, line 65, which is directed to minor flow pump 66).
Regarding claim 4, Liu, as modified by Giering and Marple 1, teaches or renders obvious the method of claim 3 (as described above).
Liu further teaches that a ratio of a volumetric flow rate of the particle-lean stream of gas to a volumetric flow rate of the particle-rich stream of gas is in a range of from 10:1 to 1000:1 (Liu teaches various ratios in this range, including 19:1 (95% major flow and 5% minor flow. COL. 1, lines 40-41) and 99:1 or higher (99% major flow and 1% minor flow. COL. 5, lines 32-35)).
Regarding claim 5, Liu, as modified by Giering and Marple 1, teaches or renders obvious the method of claim 1 (as described above).
Liu further teaches that concentrating the aerosol further comprises powering a blower positioned outside of the particle concentrator (FIG. 1, note that both the minor flow pump 66 and the major flow pump 80 are positioned outside of outer housing assembly 11), and wherein the blower causes at least a portion of the bulk gas to be received by an inlet of the particle concentrator and causes the particle-rich stream of gas to be available at an outlet of the particle concentrator (COL. 1, lines 31-41).
Regarding claim 7, Liu, as modified by Giering and Marple 1, teaches or renders obvious the method of claim 1 (as described above).
Liu further teaches that the multi-stage particle concentrator is a concentrating virtual impactor (CVI) device (COL. 1, section “Field of the Invention”) that performs an inertia-based preferential particle separation (COL. 1, lines 34-36).
Regarding claim 8, Liu, as modified by Giering and Marple 1, teaches or renders obvious the method of claim 7 (as described above).
Liu further teaches preferentially separating particles, wherein preferentially separating particles comprises: causing a majority of particles in the aerosol which have a maximum dimension that is above a particle size cut point in the aerosol to enter the particle-rich minor stream of gas (COL. 2, lines 1-5).
Regarding claim 9, Liu, as modified by Giering and Marple 1, teaches or renders obvious the method of claim 8 (as described above).
Liu further teaches that the particle size cut point is 1 (±0.5) micrometer or larger (COL. 2, lines 7-10, which includes 1 micrometer and allows for sizes larger and smaller).
Regarding claim 10, Liu, as modified by Giering and Marple 1, teaches or renders obvious the method of claim 3 (as described above).
Liu further teaches that concentrating the aerosol comprises passing the bulk gas through a first nozzle of the first set of nozzles of the first stage (FIG. 1, inlet nozzle 17), receiving the minor flow stream at a first receiving tube of the first stage (FIG. 1, receiving tube 27), and ejecting the major flow stream at a major flow exit from the first stage (FIG. 1, annular passageway 30, accessed via passageways 28, which are also shown, for example, in FIG. 3), wherein the minor flow stream is the intermediate stream of gas and the major flow stream is the particle-lean stream of gas (COL. 1, lines 50-60).
Regarding claim 11, Liu, as modified by Giering and Marple 1, teaches or renders obvious the method of claim 10 (as described above).
Liu further teaches that the major flow exit surrounds the receiving tube (COL. 3, lines 26-28).
Regarding claim 17, Liu, as modified by Giering and Marple 1, teaches or renders obvious the method of claim 1 (as described above).
While Liu is silent as to the overall size of the device, so does not explicitly teach that the multi-stage particle concentrator has a maximum dimension of less than 150 millimeters, mere changes in size or proportion generally do not patentably distinguish a claimed invention from the prior art. See MPEP 2144.04 IV A.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the concentrating aerosol particle counter of Liu, as modified by Giering and Marple 1, by building the device at a scale such that the particle concentrator has a maximum dimension of less than 150 mm.
Claim(s) 6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Liu (US Patent 4972957) in view of Giering (Non-Patent Literature “The Interpretation of Particle Size, Shape, and Carbon Flux of Marine Particle Images Is Strongly Affected by the Choice of Particle Detection Algorithm”) and Marple 1 (US patent 4670135), further in view of ebm-papst (Non-Patent Literature “Operating instructions R1G190-AC37-52”).
Regarding claim 6, Liu, as modified by Giering and Marple 1, teaches or renders obvious the method of claim 5 (as described above).
Liu is silent as to the amount of power used by the blower.
In the same field of endeavor of moving air using a blower, ebm-papst does teach that powering the blower comprises providing power to the blower in a range of from 10 watts to 300 watts (page 5, table 3.2 lists nominal power of consumption 80 watts, which is in a range of from 10 watts to 300 watts).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have built the concentrating aerosol particle counter of Liu, as modified by Giering and Marple 1, with the 80-watt blower of ebm-papst to provide an off-the-shelf solution to producing the air movement required to operate the aerosol particle concentrator of Liu.
Claims 13-15 are rejected under 35 U.S.C. 103 as being unpatentable over Liu (US Patent 4972957) in view of Giering (Non-Patent Literature “The Interpretation of Particle Size, Shape, and Carbon Flux of Marine Particle Images Is Strongly Affected by the Choice of Particle Detection Algorithm”) and Marple 1 (US patent 4670135), further in view of Marple 2 (Non-Patent Literature “Diesel Exhaust/Mine Dust Virtual Impactor Personal Aerosol Sampler: Design, Calibration and Field Evaluation).
Regarding claim 13, Liu, as modified by Giering and Marple 1, teaches or renders obvious the method of claim 1 (as described above).
Liu does not explicitly teach performing a first-pass preseparation to remove a majority of particles which have a maximum dimension above a second particle size cut point desired for concentration enhancement.
In the same field of endeavor of virtual impactors for separating particles by size for air sampling, Marple 2 teaches performing a first-pass preseparation to remove a majority of particles which have a maximum dimension above a second particle size cut point desired for concentration enhancement (FIG. 2, respirable cut classifier). By using a preseparation, Marple 2 is able to remove nonrespirable particles that are not of interest before further separating the particles by size using a virtual impactor.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the concentrating aerosol particle counter of Liu, as modified by Giering and Marple 1, with the preseparation of Marple 2 in order to remove large particles that are not of interest before passing the remaining sample, including particles of interest into the concentrating aerosol particle counter to make the analysis of the particles of interest easier.
Regarding claim 14, Liu, as modified by Giering, Marple 1, and Marple 2, teaches or renders obvious the method of claim 13 (as described above).
While Marple 2 does not explicitly define the size of particles removed by the preseparation, Liu does list a particle size cut point of 10 micrometers or larger as an option for separating particles by size (COL. 2, lines 7-10).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the concentrating aerosol particle counter of Liu, as modified by Giering, Marple 1, and Marple 2, through routine optimization to choose a particle size cut point listed by Liu for the preseparation in order to separate particles of interest from particles not of interest, with predictable results and a reasonable expectation of success.
Regarding claim 15, Liu, as modified by Giering, Marple 1, and Marple 2, teaches or renders obvious the method of claim 13 (as described above).
Marple 2 teaches that performing the first-pass preseparation comprises performing an inertia-based separation in the multi-stage particle concentrator (the cyclone separator used to remove nonrespirable particles is a type of inertia-based separation. See paragraph 3 of the introduction).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have modified the concentrating aerosol particle counter of Liu, as modified by Giering, Marple 1, and Marple 2, to use generally the same type of preseparation as Marple 2, an inertia-based cyclone separator.
Claim(s) 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Liu (US Patent 4972957) in view of Giering (Non-Patent Literature “The Interpretation of Particle Size, Shape, and Carbon Flux of Marine Particle Images Is Strongly Affected by the Choice of Particle Detection Algorithm”) and Marple 1 (US patent 4670135), further in view of Linke (Non-Patent Literature “Additive manufacturing, explained”).
Regarding claim 16, Liu, as modified by Giering and Marple 1, teaches or renders obvious the method of claim 1 (as described above).
Liu does not teach that the multi-stage particle concentrator is formed by an additive manufacturing process.
In the same field of endeavor of producing mechanical devices, Linke teaches using additive manufacturing to form functional objects (section “What is additive manufacturing?”, paragraph 3, penultimate sentence). Linke teaches that additive manufacturing can reduce costs (page 1, section “Why It Matters”).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to have formed the concentrating virtual compactor of Liu, as modified by Giering and Marple 1, using additive manufacturing as taught by Linke, motivated by a desire to reduce costs.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PAUL D SCHNASE whose telephone number is (703)756-1691. The examiner can normally be reached Monday - Friday 8:30 AM - 5:00 PM ET.
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/PAUL SCHNASE/Examiner, Art Unit 2877
/TARIFUR R CHOWDHURY/Supervisory Patent Examiner, Art Unit 2877
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