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.
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 limitation(s) is/are:
“vacuum adjustment mechanism configured to…” in claim 1 (specification, [0049, 0057]), and
“cooling mechanism configured to…” in claim 9 (specification, [0058]).
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.
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 1-17 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 1 recites the phrase “a vacuum adjustment mechanism configured to set a degree of vacuum in the sample chamber” in lines 10-11. The instant phrase invokes 112(f) as set forth above under Claim Interpretation. However, the supporting disclosure fails to clearly link or associate the disclosed structure, material, or acts to the claimed function. While [0049] states the mechanism includes specific items, the citation is merely exemplary. Indeed, [0057] states a different collection of components. One of ordinary skill in the art would not be apprised of the scope of the phrase. See MPEP 2181(III) for further details.
Claim 1 recites the phrase “the vacuum adjustment mechanism sets the degree of vacuum in the sample chamber during the analysis of the sample to be lower than in a case where the sample is solid”. The instant phrase amounts to a method step of using the apparatus. MPEP 2173.05(p)(II) explains that an apparatus claim that recites both the apparatus and the method of using the apparatus is indefinite under 35 USC § 112(b). One of ordinary skill in the art would not be apprised when the claim is infringed upon: when one produces the claimed apparatus or when one uses the apparatus according to the claimed method. To overcome the rejection, the Applicant should remove the method steps, or amend the claim to recite structural features of the apparatus. For the purposes of rejection, the phrase will be interpreted at a device capable of performing according to the claim limitation. The balance of claims are rejected based on dependence. Substantially the same issue arises in claims 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, and 17.
Claim 1 recites “the vacuum adjustment mechanism sets the degree of vacuum in the sample chamber during the analysis of the sample to be lower than in a case where the sample is solid”. The phrase as constructed has an unknown number of possibilities because the claim scope is based on the sample under measurement, which is not defined in the claim. What is the set degree of vacuum when the sample is solid? How is the set degree selected? How is it measured? How does the apparatus know how to set the accurate value? Are the values stored, accessed, compared then set? The claim is not provided with a means for determining and carrying out the implied functions. One of ordinary skill would not be apprised of the scope of the claim. See MPEP 2173.05(b)(II). Substantially the same issue arises in the limitations of claim 2.
Claims 9-15 recite the phrase “cooling mechanism”, which invokes 112(f) as set forth above under Claim Interpretation. However, the supporting disclosure fails to clearly link or associate the disclosed structure, material, or acts to the claimed function. See MPEP 2181(III) for further details.
Claims 10 and 11 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being incomplete for omitting essential elements, such omission amounting to a gap between the elements. See MPEP § 2172.01. The omitted elements are: a moving mechanism. The claim fails to make clear how the controller is capable of moving the sample to the analysis position without a moving mechanism, as the controller is merely a means of electronic control according to the disclosure.
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim(s) 1-3, 5-9, 16, and 17 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by MORISHA (US Pub # 2021/0270757).
Regarding claim 1, MORISHA discloses an energy dispersive X-ray fluorescence analyzer for analyzing a sample (XRF analyzer 10; FIGS 1-2), comprising:
a sample stage configured to place the sample thereon (sample stage 104; 0037);
a first housing mounted on a first face of the sample stage, the sample being placed on the first face, the first housing forming a sample chamber together with the sample stage (housing 102 provided on the upper surface of the stage 104 forming sample chamber 106; 0037);
an X-ray tube (x-ray tube 116 formed in housing 112 below the sample stage; 0039);
a detector configured to detect fluorescent X-rays emitted from the sample when the sample in the sample chamber is irradiated with primary X-rays emitted from the X-ray tube (detector 126 formed in housing 112 configured to detect XRF from the sample; 0039); and,
a vacuum adjustment mechanism configured to set a degree of vacuum in the sample chamber, wherein in a case where the sample is liquid (exhaust pump, on/off valve, pressure control valve, etc.; 0044-0045);
wherein the vacuum adjustment mechanism is capable of setting the degree of vacuum in the sample chamber during the analysis of the sample to be lower than in a case where the sample is solid (vacuum adjustment mechanism is capable of setting a vacuum degree based on the desired conditions; 0044-0047).
Regarding claim 2, MORISHA discloses a controller configured to control the vacuum adjustment mechanism, wherein in a case where the sample is liquid, the controller is capable of setting the degree of vacuum in the sample chamber during the analysis of the sample to be lower than in a case where the sample is solid (0044-0047).
Regarding claim 3, MORISHA further discloses a second housing mounted on a second face of the sample stage on a side facing the first face, the second housing forming a measurement chamber together with the sample stage, wherein the X-ray tube and the detector are provided on the measurement chamber (housing 112 is mounted on second face of stage 104 forming a measurement chamber 114; 0038-0039), and wherein the vacuum adjustment mechanism is capable of performing a vacuuming so that a degree of vacuum in the sample chamber and a degree of vacuum in the measurement chamber are equalized during the analysis of the sample (0029, 0044-0047).
Regarding claim 5, MORISHA discloses wherein the controller is capable of setting the degree of vacuum in the sample chamber during the analysis of the sample so as to correspond to a type of solvent of the sample (analyzer 10 detects the nature of the sample and performs a vacuum setting accordingly; 0052; FIG 6).
Regarding claim 6, MORISHA discloses the controller includes an input device capable of inputting a set value for the degree of vacuum in the sample chamber, and wherein the controller is capable of setting the degree of vacuum in the sample chamber during the analysis of the sample based on the set value for the degree of vacuum (input device; 0032).
Regarding claim 7, MORISHA discloses the controller is equipped with an input device capable of inputting the type of solvent, and wherein the controller is capable of setting the degree of vacuum in the sample chamber during the analysis of the sample so as to correspond to the type of solvent input by the input device so that the solvent is liquid (0032).
Regarding claim 8, MORISHA discloses the controller capable of setting the degree of vacuum in the sample chamber during the analysis of the sample to be lower than 611 Pa (0044).
Regarding claim 9, MORISHA discloses further comprising: a cooling mechanism configured to cool the sample (depending of the temperature of the object, the ambient environment is capable of operating as a cooling mechanism; FIG 1).
Regarding claim 16, MORISHA discloses the sample capable of being a liquid sample, and wherein the vacuum adjustment mechanism is capable of setting the degree of vacuum in the sample chamber during the analysis of the sample to a degree of vacuum corresponding to the type of solvent of the sample (0032, 0052).
Regarding claim 17, MORISHA discloses wherein the vacuum adjustment mechanism is capable of setting the degree of vacuum in the sample chamber during the analysis of the sample to be lower than 611 Pa (0044).
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 4 is rejected under 35 U.S.C. 103 as being unpatentable over MORISHA (US Pub # 2021/0270757).
Regarding claim 4, MORISHA discloses the controller is capable of adjusting the degree of vacuum in the sample chamber during the analysis of the sample, but does not specify the adjusting of pressure performed in three or more steps, or steplessly. It is understood in the art that rapid or uncontrolled changes in pressure can cause mechanical failure in a system, and therefore it would have been obvious to one of ordinary skill in the art at the time of the invention to perform the adjustment in a series of three steps or steplessly.
Allowable Subject Matter
Claims 10-15 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.
References Cited
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. NAGOSHI et al. (US Pub # 2024/0361263) discloses an X-ray fluorescence spectrometer including: a vacuum chamber configured to be evacuated including at least a detection chamber in which a detector is disposed; drive units each including a drive source outside the vacuum chamber, and configured to perform a mechanical operation in the vacuum chamber; and a vacuum leakage location identification unit configured to: operate the drive units one at a time while monitoring a degree of vacuum in the vacuum chamber.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CASEY BRYANT whose telephone number is (571)270-7329. The examiner can normally be reached M-F // 7-3P EST.
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CASEY BRYANT
Primary Examiner
Art Unit 2884
/CASEY BRYANT/ Primary Examiner, Art Unit 2884