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 .
Claim Objections
Claims 11 and 15 are objected to because of the following informalities:
Claim 11 recites “forms the structures with an aspect ratio (height to width ratio) of at least 2”. It is suggested to not have the ratio, height to width ratio, in parenthesis.
Claim 15 recites “device of claim14”. It is suggested to have a space between claim and 14.
Appropriate correction is required.
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.
Claims 42 and 50 are 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 42 recites “an optical analyzer for collecting the transmitted or reflected light through the plasmonic device.” However the specification is silent to what the “optical analyzer” is. As the claim already recites “an optical detector”, the analyzer is not the detector. The examiner assumes it is a processor, but a processor would not collect light, a processor would receive a signal from the detector.
Claim 50 is rejected based upon its dependency on claim 42.
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 device of claim 42, including “a light source; an optical detector for detecting light transmitted or reflected or refracted through the plasmonic device; and an optical analyzer for collecting the transmitted or reflected light through the plasmonic device” 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.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 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, 5-8, and 37 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Zhou et al. (WO 2015/135450 A1), references to English machine translation, hereinafter “Zhou”.
Regarding claim 1, Zhou discloses a method of fabricating a plasmonic device (Fig. 1, abstract) comprising:
fabricating structures that are nanostructures or microstructures having a feature size of from 1 to 1000 nm on a substrate (Example 1, page 8, “Step 2” to “Step 4”);
forming a layer of a plasmonic material on the substrate (page 8, “Step 3”); and
removing the structures to form a pattern having first and second plasmonic material portions spaced apart from each other and having a gap therebetween of less than 100 nm, so as to produce a plasmonic device having a plasmonic hotspot at said gap (page 8, “Step 3” to “Step 4”).
Regarding claim 5, Zhou discloses wherein the metal and gap for a plasmonic hotspot are capable of exhibiting a plasmonic effect when irradiated with electromagnetic radiation (page 6, Sec. 2).
Regarding claim 6, Zhou discloses wherein the metal comprises Au, Ag and/or Cu (page 8, Step 3).
Regarding claim 7, Zhou discloses wherein a supporting layer is deposited on the substrate before and/or after fabricating the structures (page 7, Example 1, Step 1).
Regarding claim 8, Zhou discloses wherein the structures are removed by heat, chemical treatment and/or physical treatment (page 5, “plasma etcher”).
Regarding claim 37, Zhou discloses wherein the substrate comprises a light transmissive material such that the plasmonic device formed is capable of transmitting at least 90% of the light incident thereon in the infrared, visible or UV spectrum (page 7, Example 1, Step 1, quartz wafer is transparent to claimed radiation).
Claims 1, 2, 4, 5, 8, 9, and 41 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kumar, Panangattukara Prabhakaran Praveen, Shimayali Kaushal, and Dong-Kwon Lim. "Recent advances in nano/microfabricated substrate platforms and artificial intelligence for practical surface-enhanced Raman scattering-based bioanalysis." TrAC Trends in Analytical Chemistry 168 (2023): 117341, hereinafter “Kumar”.
Regarding claim 1, Kumar discloses a method of fabricating a plasmonic device (Figs. 3, 5; abstract) comprising:
fabricating structures that are nanostructures or microstructures having a feature size of from 1 to 1000 nm on a substrate (page 3, Sec. 2.1.2; pages 3-5, Sec. 2.1.4);
forming a layer of a plasmonic material on the substrate (page 3, Sec. 2.1.2; pages 3-5, Sec. 2.1.4); and
removing the structures to form a pattern having first and second plasmonic material portions spaced apart from each other and having a gap therebetween of less than 100 nm, so as to produce a plasmonic device having a plasmonic hotspot at said gap (page 3, Sec. 2.1.2; pages 3-5, Sec. 2.1.4).
Regarding claim 2, Kumar discloses wherein the fabricating of the structures comprises printing the structures on the substrate (pages 3-5, Sec. 2.1.4).
Regarding claim 4, Kumar discloses wherein after printing the structures on the substrate, wherein the layer of plasmonic material is substantially all metal that forms a metal layer on the substrate and on the structures, followed by removal of the printed structures (as shown in Fig 3A).
Regarding claim 5, Kumar discloses wherein the metal and gap for a plasmonic hotspot are capable of exhibiting a plasmonic effect when irradiated with electromagnetic radiation (page 1, Sec. 1, paragraph 2).
Regarding claim 8, Kumar discloses wherein the structures are removed by heat, chemical treatment and/or physical treatment (as shown in Fig 3A).
Regarding claim 9, Kumar discloses wherein the structures are formed of an organic or hybrid organic-inorganic photoresist material, and the structures are removed with a solvent capable of dissolving the photoresist material (as shown in Fig 3A).
Regarding claim 41, Kumar discloses a plasmonic device made from the method of claim 1 (Figs. 3, 8, etc.).
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
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 3, 10-17, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Kumar in view of Official Notice.
Regarding claim 3, Kumar is silent regarding wherein the printing of the structures comprises formation of a three dimensional object layer by layer using a digital file.
However, the Examiner takes Official Notice that using a digital file in the formation of a three dimensional object layer by layer is well-known in the art for the purposes of automating the production using a pre-programmed design.
Regarding claim 10, Kumar teaches wherein the structures are formed of PMMA (Fig. 3A) but is silent regarding wherein the structures are removed with acetone.
However, the Examiner takes Official Notice that removing PMMA structures with acetone is well-known in the art for the purposes inexpensively fabricating the resist.
Regarding claim 11, Kumar discloses wherein the fabricating of the structures is via 3D printing, nano-imprinting, dip-pen lithography, or laser writing, (pages 3-5, Sec. 2.1.4, Table 1) but is silent regarding forms the structures with an aspect ratio (height to width ratio) of at least 2.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include structures with an aspect ratio (height to width ratio) of at least 2 as it has been held that where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). One would chose the claimed dimensions in order to have sufficient plasmonic enhancement.
Regarding claim 12, Kumar is silent regarding wherein the aspect ratio is at least 7.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include wherein the aspect ratio is at least 7 as it has been held that where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). One would chose the claimed dimensions in order to have sufficient plasmonic enhancement.
Regarding claim 13, Kumar is silent regarding wherein the aspect ratio is at least 15.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include wherein the aspect ratio is at least 15 as it has been held that where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). One would chose the claimed dimensions in order to have sufficient plasmonic enhancement.
Regarding claim 14, Kumar is silent regarding wherein a thickness of the metal layer deposited is less than 80% of the height of the structures.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include wherein a thickness of the metal layer deposited is less than 80% of the height of the structures as it has been held that where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). One would chose the claimed dimensions in order to have sufficient plasmonic enhancement.
Regarding claim 15, Kumar is silent regarding wherein the thickness of the metal layer is less than 60% of the height of the structures.
However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include wherein the thickness of the metal layer is less than 60% of the height of the structures as it has been held that where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). One would chose the claimed dimensions in order to have sufficient plasmonic enhancement.
Regarding claim 16, Kumar is silent regarding wherein the forming of the layer of a plasmonic material on the substrate comprises growing a graphene layer on the substrate.
However, the Examiner takes Official Notice that forming of the layer of a plasmonic material on the substrate comprises growing a graphene layer on the substrate is well-known in the art as Kumar teaches a graphene layer to enhance the Raman signal intensity in the background, page 2, paragraph 1.
Regarding claim 17, Kumar is silent regarding wherein the growing of graphene comprises depositing on the substrate a layer capable of facilitating or catalyzing graphene growth, followed by growing graphene thereon.
However, the Examiner takes Official Notice that growing of graphene comprises depositing on the substrate a layer capable of facilitating or catalyzing graphene growth, followed by growing graphene thereon is well-known in the art as Kumar teaches a graphene layer to enhance the Raman signal intensity in the background, page 2, paragraph 1.
Regarding claim 20, Kumar is silent regarding wherein the substrate is a metal capable of facilitating and/or catalyzing graphene, or a metal layer is formed on the substrate which metal layer is capable of facilitating and/or catalyzing graphene.
However, the Examiner takes Official Notice that using a substrate is a metal capable of facilitating and/or catalyzing graphene, or a metal layer is formed on the substrate which metal layer is capable of facilitating and/or catalyzing graphene is well-known in the art as Kumar teaches a graphene layer to enhance the Raman signal intensity in the background, page 2, paragraph 1.
Claims 18-19 and 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Zhou as applied to claim 1 above, and further in view of Chang et al. (US20200141871A1), hereinafter “Chang”.
Regarding claim 18, Zhou is silent regarding wherein the plasmonic material is a doped metal oxide selected from doped tin oxide, doped zinc oxide, doped cadmium oxide and doped titanium oxide.
However, Chang teaches a plasmonic nanostructure (abstract, Fig 1) including wherein the plasmonic material is a doped metal oxide selected from doped tin oxide, doped zinc oxide, doped cadmium oxide and doped titanium oxide (paragraph [0027]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the method of Zhou with the teaching of Chang by including wherein the plasmonic material is a doped metal oxide selected from doped tin oxide, doped zinc oxide, doped cadmium oxide and doped titanium oxide as these are well-known plasmonic materials that can be substituted.
Regarding claim 19, Zhou is silent regarding wherein the plasmonic material is a copper deficient chalcogenide or an oxygen deficient transition metal oxide.
However, Chang teaches a plasmonic nanostructure (abstract, Fig 1) including wherein the plasmonic material is a copper deficient chalcogenide or an oxygen deficient transition metal oxide (paragraph [0027]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the method of Zhou with the teaching of Chang by including wherein the plasmonic material is a copper deficient chalcogenide or an oxygen deficient transition metal oxide as these are well-known plasmonic materials that can be substituted.
Regarding claim 21, Zhou is silent regarding wherein a supporting layer is formed on the substrate prior to forming the structures, followed by removal of the structures and removal of the substrate.
However, Chang teaches a plasmonic nanostructure (abstract, Fig 1) including wherein a supporting layer is formed on the substrate (paragraph [0006]) but is silent regarding the formation prior to forming the structures, followed by removal of the structures and removal of the substrate.
However, the Examiner takes Official Notice that forming supporting layer on the substrate prior to forming the structures, followed by removal of the structures and removal of the substrate well-known in the art and one would formed a supporting layer on the substrate prior to forming the structures in order to not damage the structures and provide an effective base.
Regarding claim 22, Kumar is silent regarding wherein the structures and substrate are removed at the same time with the same chemical, physical or thermal removal process.
However, the Examiner takes Official Notice that wherein the structures and substrate are removed at the same time with the same chemical, physical or thermal removal process is well-known in the art in order to rapidly produce the device, using fewer steps.
Claims 42 and 50 are rejected under 35 U.S.C. 103 as being unpatentable over Zhou as applied to claim 1 and 41 above, and further in view of Koder et al. (US 20180003705 A1), hereinafter “Koder”.
Regarding claim 42, Zhou teaches the plasmonic device of claim 41 (supra), but is silent regarding a device for testing toxins, comprising:
a light source;
an optical detector for detecting light transmitted or reflected or refracted through the plasmonic device; and
an optical analyzer for collecting the transmitted or reflected light through the plasmonic device.
However, Koder teaches a device for testing toxins (abstract, Fig 1, paragraph [0032]), comprising:
a plasmonic device (Figs 1, 2, 9, paragraph [0032]);
a light source (ref 206, paragraph [0032]);
an optical detector for detecting light transmitted or reflected or refracted through the plasmonic device (ref 210, paragraph [0032]); and
an optical analyzer for collecting the transmitted or reflected light through the plasmonic device (circuitry, paragraph [0032]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the device of Zhou with the teaching of Koder by including a device for testing toxins, comprising: a light source; an optical detector for detecting light transmitted or reflected or refracted through the plasmonic device; and an optical analyzer for collecting the transmitted or reflected light through the plasmonic device in order to allow for multiple and repeated testing for different toxins in the field, paragraph [0031].
Regarding claim 50, Zhou teaches providing the plasmonic device of claim 41, but is silent regarding a method for testing a sample for the presence of toxins, comprising:
providing a sample or analyte of interest on the plasmonic device;
directing a light beam onto the plasmonic device;
detecting the light beam after passing through the plasmonic device;
analyzing the light beam for changes; and
determining whether a toxin is present in the sample based on any changes detected.
However, Koder teaches a method for testing a sample for the presence of toxins (abstract, Figs. 1, 2, 9), comprising:
providing a sample or analyte of interest on the plasmonic device (paragraph [0032]);
directing a light beam onto the plasmonic device (paragraph [0032]);
detecting the light beam after passing through the plasmonic device (paragraph [0032]);
analyzing the light beam for changes (paragraph [0032]); and
determining whether a toxin is present in the sample based on any changes detected (paragraph [0032]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the device of Zhou with the teaching of Koder by including method for testing a sample for the presence of toxins, comprising: providing a sample or analyte of interest on the plasmonic device; directing a light beam onto the plasmonic device; detecting the light beam after passing through the plasmonic device; analyzing the light beam for changes; and determining whether a toxin is present in the sample based on any changes detected in order to allow for multiple and repeated testing for different toxins in the field, paragraph [0031].
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Yang (US 2017/0192351), Dhawan (US 2011/0166045), and Najiminaini (US 2020/0223206) teach a conventional processes for forming plasmonic device.
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/DOMINIC J BOLOGNA/Primary Examiner, Art Unit 2877