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 .
Response to Arguments
Claim Rejections - 35 U.S.C. § 112
The rejection of claim 1 is withdrawn for the previous limitation directed at a non-limiting compound and the term "essentially."
Regarding claim 4's recitation of "optical sight," Applicant argues Figures 3A and 3B show an optical sight. The Examiner does not find that the disclosure supports Applicant's statement. The disclosure states that Figures 3A show images acquired for an interferometric element. No optical sight is discussed.
The rejection of claim 11 has been changed from 112(b) to 112(d) since Applicant states claim 11 does not require additional structure to the sensing element of claim 1, and thus claim 11 fails to further limit claim 1.
The rejection of claim 19 is withdrawn for the insufficient antecedent basis for the "encapsulation layer."
Claim Rejections - 35 U.S.C. § 103
Applicant argues reference cavity is not "impermeable to the at least one ambient medium compound, has none of the ambient medium compound between the layers, and the ambient medium compound is a gas.
In response, the Examiner submits that:
Martini's reference cavity is impermeable to gas because Martini states the reference cavity may contain a reference gas and does not change over time, meaning that gas cannot pass.
The reference cavity does not contain any ambient medium compound because it contains a reference fluid.
Please note that Martin may not state the ambient medium compound is gas; however, Martin is not relied upon to teach the gas, but rather the principle of using a reference sensor (cavity) to compare against the measuring sensor cavity. he ambient medium compound.
The claim does not require gas to be present or to be an element of the claimed sensing element. The claim does not list the gas as an element nor state that the sensing element comprises the gas. The gas is recited in the claim as an object operated on by the claimed sensing element. See MPEP 2115.
Because of these points, the Examiner submits that the combination of Lin and Martin, the reference contain is a seal that is impermeable to gas (ambient medium compound) that does not contain the gas since it has reference fluid between the reflective layers that does not change.
Claim Objections
Claim 21 is objected to because of the following informalities: It appears the "sending element" is misspelled. 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 4 and 11 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 4 recites that the sensing element comprises an “optical sight defining an orientation and position of said sensing element in an image of said sensing element” and it is unclear what this is and there is insufficient antecedent basis of the image of the sensing element. This optical sight is not shown in any figure and the specification provides no more detail as to what this is than the claim itself. It is not clear where on the sensing element the optical sight is, what it is, and how this optical sight is structured. As such, one of ordinary skill in the art would not know the bounds of what the optical sight is and what is not an optical sight.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 11 is rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends.
Claim 11 depends on claim 1, drawn to the structure of a sensing element. Applicant states claim 11 is directed to an intended use of the claimed sensor and "no additional structure needs to be added to the claim." Because claim 11 does not require any additional structural limitation to the sensing element of claim 1, claim 11 is rejected for failing to further limit claim 1.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
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: ]
"processing unit…configured to recognize an orientation and a position of said sensing element in said image..." in claims 12 and 13.
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 § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-11, 14, 15, 18, and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lin et al. (US 2017/0350813) in view of Martini (US 2009/0156917).
Lin shows an sensing element (See Fig. 4 reproduced below) for a device for detecting at least one ambient medium compound (C) having a resonant absorption over a predetermined spectral region centered on a resonance wavelength λr, said sensing element comprising at least one detection subset (SE) that is optimized for said resonance wavelength λr and comprising:
at least (para. [0044]: "The combination of two DBRs constitutes a Fabry-Perot Interferometer ") having a resonance at said resonance wavelength λr, each cavity comprising a reflecting layer (silicate layer with lower Bragg reflector 340) at said resonance wavelength λr and a partially transparent layer and partially reflecting layer (silicate layer with upper Bragg reflector 120 which has passage holes 490 and 495 for gas. See Figs. 3, 4, and 7) at said resonance wavelength λr, said partially transparent and partially reflecting layer facing the reflecting layer and forming with said reflecting layer the Fabry-Perot cavity with the resonance wavelength λr, (the cavity is not sealed), called sensitive cavity (SNS), and the partially transparent and partially reflective layer of the sensitive cavities being permeable (silicate layer having upper Bragg reflector 20 which has passage holes at the outer edge. In addition silicon is gas permeable) to the at least one ambient medium to be detected (C) such that the at least one ambient medium compound to be detected (C) enter the sensitive cavity through the partially transparent and partially reflecting layer and reach a space between the reflecting layer (CR) and the partially transparent and partially reflecting layer, wherein the ambient medium compound is a gas.
PNG
media_image1.png
444
428
media_image1.png
Greyscale
As indicated by the strikeouts, Lin does not show a reference cavity that is encapsulated by an ambient medium seal. Lin also does not show that the one of the DBR mirrors are fully reflective.
Reference cavity
Martini shows a second Fabry-Perot cavity sensor (reference cavities in Figs. 8-14; para. [0037]: "a closed reference container whose contents do not change over time.") used as a reference sensor and is sealed from the compound of interest (Para. [0201]:"the reference container is sealed."). Martini shows:
an ambient medium seal (a closed reference container "whose contents do not change over time") transparent to the wavelength λr and that is impermeable ("whose contents do not change over time") to the at least one ambient medium compound ("analyte") to be detected and encapsulating (a closed reference container) at least one optical cavity, called reference cavity (REF), such that said reference cavity has none of the at least one ambient medium compound to be detected between the reflecting layer (CR) and the partially transparent layer (Para. [0149]: "reference container, such as containing a reference fluid (e.g. water, another liquid, or gas), a reference solid, or vacuum with a well-defined refractive index"); "whose contents do not change over time." Because the reference container may contain a reference gas and does not change over time, it is sealed so that the reference gas does not escape and ambient gas cannot enter),
Before the effective filing date of the claimed invention, it would have been obvious to use a reference cavity in the device of Lin order to isolate the measurement of the measurement cavity from other external causes contributing to the measurement signal.
Reflecting layer
Lin shows the light detector positioned on the opposite side of the cavity the light source and thus showing the sensor being used in a transmissive mode. Lin does not show the sensor being used in a reflective mode and thus the bottom DBR reflector is not fully reflective.
Martini shows Fabry-Perot cavity sensor used in a transmissive mode (e.g. Fig. 6) as well as a reflective mode (e.g. Fig. 17) where the bottom reflector is reflective as is recognized by one of ordinary skill in the art in order for the detection light to be directed to the detector. Before the effective filing date of the claimed invention, it would have been obvious to modify the Fabry-Perot cavity of Lin to be operative in reflection mode for the ability to rearrange the components in desired positions or layouts. Therefore, the skilled artisan would have made the bottom DBR reflector of Lin to be reflective in order to direct the measurement light to the detector.
PNG
media_image2.png
326
394
media_image2.png
Greyscale
PNG
media_image3.png
368
484
media_image3.png
Greyscale
With respect to claim 2, Lin does not show a plurality of sensitive cavities and reference cavities. Martini shows a plurality of sensitive cavities and a plurality of reference cavities, e.g., Fig. 19, wherein the sensitive cavities and the reference cavities are arranged according to a predetermined disposition (paras. [0062], [0197]). Before the effective filing date of the claimed invention, it would have been obvious to use a plurality of cavities in order to sense additional compounds.
With respect to claim 3, the modification as proposed for claim 2 above would have the sensitive cavities and the reference cavities are disposed alternately along a row or a plurality of rows, preferentially parallel (see Figs. 19-21 and step 602 of Fig. 22 of Martini).
With respect to claim 4, Martini shows the cavities are arranged in an optical pattern (Figs. 19-21) adapted so as to be able to determine an orientation and a position of said sensing element by the processing of an image of said sensing element.
With respect to claim 5, Lin does not explicitly indicate what the coefficient of reflections are for the cavities. Please note that the claimed compound is not limited to any particular compound and the claim does not require the compound as an element of the claimed invention. It is an object intended to be worked upon by the claimed invention and thus does not serve to structurally distinguish the sensing element. See MPEP 2114. Furthermore, any selection of a compound by a user, such as a compound that has high light absorption, would produce the claimed reflection relationship.
With respect to claim 6, the combination as proposed has a plurality of detection subsets. The recitation of “optimized” is not found limiting as the claim does not impart any particular structure or standard as to what is considered optimized. Furthermore, it is common to desire components to be optimized and it would have been obvious to optimize the detectors.
With respect to claims 7 and 8, the recitation of the resonance wavelength is not limiting because the wavelength is directed to how the invention is intended to be operated., i.e., used with light of the claimed wavelength. The claimed invention does not recite a light source to support the presence of light at the claimed wavelength, and thus the claims do not impart any structural limitation. The structure encompassed by claims 7 and 8 are the same as that of claim 6 which is shown by Lin and Martini as discussed above.
With respect to claim 9, as interpreted by the Examiner, Lin teaches at para. [0037] the DBRs of the Fabry Perot interferometers comprise dielectric layers, and a person of ordinary skill would understand that the layers would be comprised of varying identical pairs of layers and Martini shows the cavities are of same thickness in the figures.
With respect to claim 10, the claim recites the general relationship of the layers in order for the cavities to be resonate the non-limited wavelength being used, and thus does not serve to structurally distinguish. Furthermore, see the discussion about the light and its wavelength for claim 7.
With respect to claim 11, the sensing element discussed above is disposed in a packaging (the entire device is a package. See Lin Fig. 2) and can be used for detecting an alteration of food.
With respect to claim 14, see the functions corresponding the elements cited for claim 1.
With respect to claim 15, see Martini’s use of the third container (396, 406) in the same manner as the first two containers.
18. The method according to claim 15, wherein the first image and the second image are acquired simultaneously or within a time interval of less than 5 seconds (Martini shows the detection being performed simultaneously since the same light source is used. See also para [0079]).
19. The sensing element according to claim 1, wherein the ambient medium seal comprises openings so that the sensitive cavity is exposed to an ambient medium. (See e.g. Lin's gas flow entry 490 in Fig. 4; Martini's opening 30 in Fig. 1. and filter assembly 410 of Fig. 9).
Claim(s) 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Lin and Martini as applied to claim 1 above and further in view of Kuuliala et al. (submitted in IDS of 4/29/2024. "Spoilage evaluation of raw Atlantic salmon (Salmo salar) stored under modified atmospheres by multivariate statistics and augmented ordinal regression.")
21. The sensing element according to claim 1, wherein the compound is hydrogen sulfide in food packaging (The compound does not serve to structurally distinguish since it is an object intended to be worked upon by the sensing element) and the resonance wavelength is λr= 612 GHz.
Lin and Martini do not show the resonance is set to detect hydrogen sulfide. Kuualiala shows the detection of compounds by spectrometry and in particular, hydrogen sulfide. See Abstract. Before the effective filing date of the claimed invention, it would have been obvious to use the sensor of Lin and Martini to detect hydrogen sulfide of food in order to detect spoilage. Applicant discloses that hydrogen sulfide has a high absorption at 612 GHz. Before the effective filing date of the claimed invention, it would have been obvious to set the resonance of the cavity to 612 GHz in order to detect the hydrogen sulfide.
Allowable Subject Matter
Claims 12, 13, 16, 17, and 20 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), 2nd paragraph, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Hwa Andrew S Lee whose telephone number is (571)272-2419. The examiner can normally be reached Mon-Fri 9am-5:30pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michelle Iacoletti can be reached at (571) 270-5789. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/Hwa Andrew Lee/Primary Examiner, Art Unit 2877
Prosecution Insights