REISSUE PROCEDURAL REMINDERS
Disclosure of other proceedings. Applicant is reminded of the continuing obligation under 37 CFR 1.178(b), to timely apprise the Office of any prior or concurrent proceed-ing in which the Patent Under Reissue is or was involved. These proceedings would include interferences, reissues, reexaminations, and litigation.
Disclosure of material information. Applicant is further reminded of the continuing obligation under 37 CFR 1.56, to timely apprise the Office of any information which is mate-rial to patentability of the claims under consideration in this reissue appli-cation.
These disclosure obligations rest with each individual associated with the filing and prosecution of this application for reissue. See also MPEP §§ 1404, 1442.01 and 1442.04.
Manner of making amendments. Applicant is reminded that changes to the Instant Application must comply with 37 C.F.R. § 1.173, such that all amendments are made in respect to the Patent Under Reissue as opposed to any prior changes entered in the Instant Application. All added material must be underlined, and all omitted material must be enclosed in brackets, in accordance with Rule 173. Applicant may submit an appendix to any response in which claims are marked up to show changes with respect to a previous set of claims, however, such claims should be clearly denoted as “not for entry.”
Claim Interpretation
During examination, claims are given the broadest reasonable interpretation consistent with the specification and limitations in the specification are not read into the claims. See MPEP § 2111 et seq.
Upon review of the original specification and prosecution history, the examiner has found no instances where applicants have included lexicographic definitions, either express or implied. Therefore, for the purposes of claim interpretation, the examiner concludes that there are no claim terms for which Applicants are acting as their own lexicographer. See MPEP § 2111.01.IV.
Additionally, upon review of the pending claims, the examiner has found instances where the claim terms include functional language which would invoke 35 U.S.C. § 112(f) or pre-AIA 35 U.S.C. § 112, sixth paragraph, see the section below.
35 U.S.C 112(f)
The examiner finds several instances where the claim term includes functional language which would invoke 35 U.S.C. § 112, sixth paragraph.
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.
Use of the word “means” (or “step for”) in a claim with functional language creates a rebuttable presumption that the claim element is to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is invoked is rebutted when the function is recited with sufficient structure, material, or acts within the claim itself to entirely perform the recited function.
Absence of the word “means” (or “step for”) in a claim creates a rebuttable presumption that the claim element is not to be treated in accordance with 35 U.S.C. § 112(f) (pre-AIA 35 U.S.C. 112, sixth paragraph). The presumption that § 112(f) (pre-AIA § 112, sixth paragraph) is not invoked is rebutted when the claim element recites function but fails to recite sufficiently definite structure, material or acts to perform that function.
The following claim limitations present in claims 23 and 43, have been interpreted under 35 U.S.C. § 112(f), because they use a generic placeholder (i.e. LED driver control circuitry) coupled with functional language without reciting sufficient structure to achieve the function. Furthermore, the generic placeholder is not preceded by structural modifier:
“supply a respective operative drive current to each of at least one of the first LED source or the second LED source”
“transition the second LED source to a non-illuminated state for at least a first portion of a first measurement interval within a series of measurement intervals”
“provide a first drive current to the first LED source for at least the first portion of the first measurement interval”
“receiving data representative of a first operating parameter of the first LED source responsive to provision of the first drive current to the first LED source by the LED driver circuitry”
“determining whether the measured first operating parameter of the first LED source falls within an expected range of values for the first LED source”
Since the claim limitations invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, claims 23-62 have been interpreted to cover the corresponding structure described in the specification as illustrated in Figure 21, that achieves the claimed function, and equivalents thereof.
If applicant wishes to provide further explanation or dispute the examiner’s interpretation of the corresponding structure, applicant must identify the corresponding structure with reference to the specification by page and line number, and to the drawing, if any, by reference characters in response to this Office action.
If applicant does not intend to have the claim limitation(s) treated under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112 , sixth paragraph, applicant may amend the claim(s) so that it/they will clearly not invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, or present a sufficient showing that the claim recites/recite sufficient structure, material, or acts for performing the claimed function to preclude application of 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
For more information, see MPEP §§ 2173 and 2181 et seq. and Supplementary Examination Guidelines for Determining Compliance With 35 U.S.C. 112 and for Treatment of Related Issues in Patent Applications, 76 FR 7162, 7167 (Feb. 9, 2011).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 23 and 43 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 23 and 36 of U.S. Patent No. RE50018 (Reissue of the US Patent No. 9,332, 598). Although the claims at issue are not identical, they are not patentably distinct from each other because they are both directed to a method and LED device controller to control an illumination device involving similar steps such as supplying/providing operative current, supplying/providing a non-operative current/non-illuminated, receiving/detecting data/photocurrent and determining received/detected values fall within expected range.
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 23-62 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 23 and 43 recite “causing, by LED driver control circuitry, operatively coupled LED driver circuitry to supply a respective operative drive current to each of at least one of the first LED source or the second LED source”. Then in the subsequent step, claim 23 further states “causing, by the LED driver control circuitry, the LED driver circuitry to transition the second LED source to a non-illuminated state for at least a first portion of a first measurement interval“.
Those two steps can contradict each other because as explained in the “first step”, there is an option that operative current can be supplied just to one of the LED sources. Thus, if the current is supplied just to the first LED source, this would mean that the second LED source does not receive any current, hence it does not illuminate. Consequentially, the “second step” could not be performed because how can one transition the second LED source to a non-illuminated state when it is already in one. In other words, there is no transition.
With respect to the dependent claims 24-42 and 44-62, those claims are also rejected by the virtue of their dependency on claims 23 and 43 respectively and further for failing to remedy deficiencies explained above.
In addition, independent claim 43 recites “A light-emitting diode (LED43) illumination”. It is not clear however, what the “LED43” is referring to? Appropriate correction is required.
Furthermore, claims 29-30 and 49-50 recite “wherein causing the LED driver circuitry to provide the first drive current to the first LED source for at least the first portion of the first measurement interval further comprises: causing, by the LED driver control circuitry, the LED driver circuitry to provide a non-operative drive current to the first LED source for at least the first portion of the first measurement interval”. This is in contradiction with what is recited in the independent claims 23 and 43, more specifically “causing, by the LED driver control circuitry, the LED driver circuitry to provide a first drive current to the first LED source for at least the first portion of the first measurement interval”. In effort to advance the prosecution, the Examiner interprets “first drive current” as insufficient current resulting in lack of illumination. In other words, for at least first portion of the first measurement interval, all the LEDs are turned off. Appropriate correction is required.
Claims 30 and 50 are also rejected by the virtue of their dependency on claims 29 and 49, and for failing to remedy the deficiency explained above.
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.
(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.
Claims 23, 29, 31-33, 39, 41-43, 49, 51-53, 59 and 61-62 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Melanson (US Patent No. 8,299,722).
With respect to claims 23 and 43, Melanson discloses a method to control an illumination device that includes at least a first light-emitting diode (LED) source and a second LED source (Figure 4, elements 404, 406 and 408), the method comprising: causing, by LED driver control circuitry (Figure 4, elements 414, 416 and 418), operatively coupled LED driver circuitry to supply a respective operative drive current to each of at least one of the first LED source or the second LED source; causing, by the LED driver control circuitry (Figure 6, wherein operative drive current is supplied to all LEDs (R, G and B) at the time period t1-t2), the LED driver circuitry to transition the second LED source to a non-illuminated state for at least a first portion of a first measurement interval within a series of measurement intervals (8:26-32 and Figure 6, wherein LED_G corresponds to a second LED source. Within time period t2-t3 (i.e. first portion), the drive current supplied to the LED_G is reduced to 0 hence there the LED is in non-illuminated state); causing, by the LED driver control circuitry, the LED driver circuitry to provide a first drive current to the first LED source for at least the first portion of the first measurement interval (8:26-32 and as illustrated in Figure 6, during the first portion (t2-t3) of the first measurement interval (t2-t5), first drive current is supplied to the first LED (i.e. “LED_B”)); receiving, by the LED driver control circuitry, data representative of a first operating parameter of the first LED source responsive to provision of the first drive current to the first LED source by the LED driver circuitry (5:22-40, wherein contribution to brightness corresponds to an “operating parameter”) ; and determining, by the LED driver control circuitry, whether the measured first operating parameter of the first LED source falls within an expected range of values for the first LED source (5:22-40, wherein the expected range corresponds to “target values” and 8:43-64).
With respect to claims 29 and 49, Melanson teaches the method of claim 23, wherein causing the LED driver circuitry to provide the first drive current to the first LED source for at least the first portion of the first measurement interval further comprises: causing, by the LED driver control circuitry, the LED driver circuitry to provide a non-operative drive current to the first LED source for at least the first portion of the first measurement interval (in accord with interpretation explained in section 112(b) above, Melanson teaches that all LEDs can be turned off, see 8:16-21).
With respect to claims 31 and 51, Melanson discloses the method of claim 23, wherein causing the LED driver circuitry to provide the first drive current to the first LED source for at least the first portion of the first measurement interval further comprises: causing, by the LED driver control circuitry, the LED driver circuitry to provide an operative drive current to the first LED source for at least the first portion of the first measurement interval (8:26-32, wherein LED 408 corresponds to the “first LED”. As illustrated in Figure 6, first LED source “R” has a drive current applied while second LED (i.e. “G” and “B”) do not produce illumination).
With respect to claims 32 and 52, Melanson further teaches the method, wherein receiving the data representative of the measured the first operating parameter of the first LED source responsive to the provision of the operative drive current to the first LED source further comprises: receiving, by the LED driver control circuitry, data representative of a luminous flux produced by the first LED source responsive to the provision of the operative drive current to the first LED source by the LED driver circuitry (8:43-64, wherein measured brightness put out by the first LED corresponds to “luminous flux”) .
With respect to claims 33 and 53, Melanson teaches the method, further comprising: causing, by the LED driver control circuitry, the LED driver circuitry to transition the first LED source to a non-illuminated state for at least a second portion of the first measurement interval (Figure 6, wherein “first measurement interval” corresponds to period t2-t5 and “second portion” correspond to t4-t5. As can be seen, first LED (LED_B) is in non-illuminated state in that time period); causing, by the LED driver control circuitry, the LED driver circuitry to provide a first drive current to the second LED source for at least the second portion of the first measurement interval (Figure 6, during the second portion (t4-t5), first drive current is supplied the second LED source (LED_G)); receiving, by the LED driver control circuitry, data representative of a measured first operating parameter of the second LED source responsive to the provision of the first drive current to the second LED source by the LED driver circuitry (5:22-40, wherein contribution to brightness corresponds to an “operating parameter”); and determining, by the LED driver control circuitry, whether the measured first operating parameter of the second LED source falls within an expected range of values for the second LED source (5:22-40, wherein the expected range corresponds to “target values” and 8:43-64).
With respect to claims 39 and 59, Melanson discloses the LED driver circuitry to provide the first drive current to the second LED source for at least the second portion of the first measurement interval (Figure 6, wherein second LED source (LED_G) is supplied with first drive current during second portion (t4-t5) of the first measurement interval (t2-t5)) further comprises: causing, by the LED driver control circuitry, the LED driver circuitry to provide a non-operative drive current to the second LED source for at least the first portion of the second measurement interval (Figure 6, wherein second LED source (LED_G) is provided with non-operative drive current during the first portion (t5-t7) of the second measurement interval (t5-t7+)).
With respect to claims 41 and 61, Melanson discloses the method, wherein causing the LED driver circuitry to provide the first drive current to the second LED source for at least the second portion of the first measurement interval further comprises: causing, by the LED driver control circuitry, the LED driver circuitry to provide an operative drive current to the second LED source for at least the second portion of the first measurement interval (Figure 6, wherein operative drive current is supplied to the second LED source (LED_G) during the second portion (t4-t5) of the first measurement interval (t2-t5)).
With respect to claims 42 and 62, Melanson discloses the method, wherein receiving the data representative of the measured first operating parameter of the second LED source responsive to the provision of the operative drive current to the second LED source further comprises: receiving, by the LED driver control circuitry, data representative of a measured luminous flux produced by the second LED source responsive to the provision of the operative drive current to the second LED source by the LED driver circuitry (8:43-64, wherein measured brightness put out by the second LED corresponds to “luminous flux”. The measurement of the produced brightness is conducted the same for each LED).
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.
Claims 24 and 44 are rejected under 35 U.S.C. 103 as being unpatentable over Melanson.
With respect to claims 24 and 44, Melanson teaches the method of claim 23, wherein causing the LED driver circuitry to transition the second LED source to the non-illuminated state for at least the first portion of the first measurement interval (Figure 6, wherein LED_G (i.e. second LED source) is transitioned into non-illuminated state in the first portion (t2-t3) of the interval (t2-t5)), however he does not explicitly discloses that the LED driver circuitry transitions the second LED source to the non-illuminated state for at least a first portion of the first measurement interval that commences at a first offset from a timing signal.
However, Melanson teaches that LED_G (i.e. second LED source) commences its illumination at t4 at the first offset (t3-t4) from a timing signal (see Figure 6). Furthermore, Melanson also explicitly discloses that “the timing between each period of power modulation, e.g. between times t1 and t2, t3 and t4, and so on is a matter of design choice” (9:35-40). That being said, adjusting timing for drive current/power modulation lies within skills of one of ordinary skill in the art and just as Melanson states, it is merely a design choice.
Claims 25, 35, 45 and 55 are rejected under 35 U.S.C. 103 as being unpatentable over Melanson in view of Seiki et al (US Publication No. 2004/0263802), hereinafter referred to as Seiki.
With respect to claims 25 and 45, Melanson teaches the limitation disclosed in claims 23 and 43 respectively, however he does not explicitly teach determining, by the LED driver control circuitry, the expected range of values for the first LED source using at least one of a plurality of previously measured first operating parameters of the first LED source.
On the other hand, Seiki teaches optical device determining, by the LED driver control circuitry, the expected range of values for the first LED source using at least one of a plurality of previously measured first operating parameters of the first LED source ([0043], “ the initial values of the light intensity of the LEDs are stored in a memory (not shown) and a feedback control is performed using the initial value as target values, so that the luminance of the light from the light source 101 can be maintained stably in the initial values. Thus, the light intensity of the LEDs 102R, 102G, and 102B can be maintained uniform”).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to use previously gathered data and include it in a target data, as taught by Seiko, in Melanson’s LED circuit, in order to maintain uniform light output based on the individual characteristics of respective LEDs.
With respect to claims 35 and 55, Melanson teaches the limitation disclosed in claims 33 and 53 respectively, however he does not explicitly teach determining, by the LED driver control circuitry, the expected range of values for the second LED source using at least one of a plurality of previously measured first operating parameters of the second LED source.
On the other hand, Seiki teaches optical device determining, by the LED driver control circuitry, the expected range of values for the second LED source using at least one of a plurality of previously measured first operating parameters of the second LED source ([0043], “ the initial values of the light intensity of the LEDs are stored in a memory (not shown) and a feedback control is performed using the initial value as target values, so that the luminance of the light from the light source 101 can be maintained stably in the initial values. Thus, the light intensity of the LEDs 102R, 102G, and 102B can be maintained uniform”).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to use previously gathered data and include it in a target data, as taught by Seiko, in Melanson’s LED circuit, in order to maintain uniform light output based on the individual characteristics of respective LEDs.
Claims 26, 28, 36, 38, 46, 48, 56 and 58 are rejected under 35 U.S.C. 103 as being unpatentable over Melanson in view of MacKinnon et al (US Publication No. 2002/0012461), hereinafter referred to as MacKinnon.
With respect to claims 26, 36, 46 and 56, Melanson teaches receiving measurements and comparing them against target values, however he does not explicitly disclose that if the measured first operating parameter of the first LED source falls outside the expected range of values for the first LED source: discarding, by the LED driver control circuitry, the received data representative of the measured first operating parameter of the first LED source.
On the other hand, MacKinnon teaches an apparatus and method for processing measurements wherein if the measured data is not in the acceptable range (i.e. acceptable quality), the measured data is not stored (i.e. is discarded) ([0079]).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to incorporate MacKinnon’s teaching about analyzing data into Melanson’s LED calibration system, in order improve quality and accuracy of the persisted data and therefore producing more precise light control.
With respect to claims 28, 38, 48 and 58, Melanson teaches receiving measurements and comparing them against target values, however he does not explicitly disclose the method of, further comprising, responsive to the determination that the measured first operating parameter of the first LED source is within the expected range of values for the first LED source:
causing, by the LED driver control circuitry, a storage in operatively coupled memory circuitry of the data representative of the measured first operating parameter of the first LED source.
On the other hand, MacKinnon teaches an apparatus and method for processing measurements wherein if the measured data is in the acceptable range (i.e. acceptable quality), the measured data is stored (i.e. is discarded) ([0079]).
It would have been obvious to one of ordinary skill in the art at the time the invention was made to incorporate MacKinnon’s teaching about analyzing data into Melanson’s LED calibration system, in order improve quality and accuracy of the persisted data and therefore producing more precise light control.
Allowable Subject Matter
Claims 27, 30, 34, 37, 40, 47, 50, 54, 57, 60 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 and further contingent upon overcoming other rejections as stated above.
Inquiry
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANGELA M LIE whose telephone number is (571)272-8445. The examiner can normally be reached on M-F, 6:30 am - 3:00 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Andrew Fischer can be reached on 571-272-6779.
/ANGELA M LIE/Primary Examiner, Art Unit 3992
Conferees:
/LUKE S WASSUM/ Primary Examiner, Art Unit 3992
/ANDREW J. FISCHER/ Supervisory Patent Examiner, Art Unit 3992