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 .
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 05/10/2024 and 06/17/2024 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Claim Objections
Claim 2 is objected to because of the following informalities: Line 1 recites “the thermally-sprayed” which Examiner suggests amending to “the thermally-sprayed layer”. Appropriate correction is required.
Claim 5 is objected to because of the following informalities: Line 2 recites “the second matrix” which Examiner suggests amending to “the second matrix of pixels” in order to provide consistency in the claim language. Appropriate correction is required.
Claim 14 is objected to because of the following informalities: Lines 2-3 recite “the intensity value parameters” which Examiner suggests amending to “the plurality of intensity value parameters” in order to provide consistency in the claim language. Appropriate correction is required.
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: “computing device” in claims 1-4, 7, 8, 10-12, 14-18 and 20 and “imaging device” in claim 20.
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 7-15 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 7 recites the limitation "the intersection of a u-axis and a v-axis" in Line 3. There is insufficient antecedent basis for this limitation in the claim as there is no earlier mention of an intersection of a u-axis and a v-axis. Examiner suggests amending the limitations to "an intersection of a u-axis and a v-axis" and has interpreted the limitations as such.
Claim 9 recites the limitation "the v-axis of the second image" in Lines 1-2. There is insufficient antecedent basis for this limitation in the claim as it is unclear as to which v-axis of the second image is being referred to since claim 7 and claim 8 both recite a v-axis of the second image. Examiner believes they are all disclosing the same v-axis and suggests amending Line 3 of claim 8 to “the v-axis of the second image”.
Claim 11 recites the limitation "the porosity" in Line 2. There is insufficient antecedent basis for this limitation in the claim as there is no earlier mention of a porosity. Examiner suggests amending to “a porosity” and has interpreted the limitation as such.
Claims 8, 10, and 12 depend on claim 7 and thus are also rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite.
The term “about one degree” in claim 13 is a relative term which renders the claim indefinite. The term “about one degree” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. It is unclear as to what is considered “about one degree”, if 1.5 degrees is about one degree or if two or three degrees is also considered about one degree. Examiner suggests amending to “one degree” (deleting “about”) and has interpreted the limitation as such.
Claim 14 recites the limitations "the degree of the plurality of line segments relative to the u-axis" in Lines 3-4 and “the porosity of the thermally-sprayed layer” in Lines 8-9. There is insufficient antecedent basis for these limitations in the claim as there is no earlier mention of a degree of the plurality of line segments relative to the u-axis and a porosity of the thermally-sprayed layer. Examiner suggests amending the limitations to "a degree of the plurality of line segments relative to the u-axis" and “a porosity of the thermally-sprayed layer”, respectively, and has interpreted the limitations as such.
Claim 15 recites the limitation "the peak intensity value parameters" in Line 8. There is insufficient antecedent basis for this limitation in the claim as there is no earlier mention of peak intensity value parameters (plural), only a peak intensity value parameter (singular). Examiner suggests amending the limitation to “the peak intensity value parameter” and has interpreted the limitation as such.
Claim 16 recites the limitation "the thermally-sprayed coating" in Line 6. There is insufficient antecedent basis for this limitation in the claim as there is no earlier mention of a thermally-sprayed coating, only a thermally-sprayed layer. Examiner suggests amending the limitation to “the thermally-sprayed layer” and has interpreted the limitation as such.
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 6 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, or for failing to include all the limitations of the claim upon which it depends. The limitation of claim 6 recites the same limitation already in claim 5, which it depends on, and thus does not further limit the subject matter of claim 5. 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 Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 1, 19, and 20 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. The claim(s) recite(s) steps of determining, based on the luminance values of the matrix of pixels, a quantification of a layering of the microstructure of the thermally-sprayed layer which may be performed practically in the human mind as a mental process by mentally observing an image of a cross-section of a thermally-sprayed layer and making a mental determination of a number of layers in the image. This judicial exception is not integrated into a practical application. The additional element of receiving an image indicative of a cross-section of a thermally-sprayed layer, the thermally-sprayed layer comprising a microstructure, wherein the image comprises a matrix of pixels, each pixel in the matrix of pixels defining a respective luminance value amounts to mere data gathering (receiving an image) recited at a high level of generality and thus is insignificant extra-solution activity. The additional elements of a non-transitory computer-readable storage medium and processor (claim 19) and a thermal spray gun, imaging device, and computing device (claim 20) are recited at a high level of generality and amount to no more than mere instructions to apply the exception using a generic computer, camera, and thermal spray gun.
The claim(s) do not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the judicial exception into a practical application, the additional elements of the non-transitory computer-readable storage medium and processor (claim 19) and the thermal spray gun, imaging device, and computing device (claim 20) are at best mere instructions to apply the exception using a generic computer component, camera component, and thermal spray gun. The additional elements of receiving an image are recited at a high level of generality that amounts to obtaining and receiving data over a network and are well-understood, routine, conventional activity. Even when considered in combination, these additional elements represent mere instructions to implement an abstract idea or other exception on a computer and insignificant extra-solution activity, which do not provide an inventive concept. Thus, claims 1, 19, and 20 are not patent eligible.
The dependent claims 2-18 also do not include elements that amount to significantly more than just the abstract idea or integrate the abstract idea into a practical application. Accordingly, claims 2-18 are also not patent eligible.
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, 19, and 20 are rejected under pre-AIA 35 U.S.C. 102(g) as being anticipated by Montavon et al. (Microstructural Index to Quantify Thermal Spray Deposit Microstructures Using Image Analysis).
With regards to claim 1, Montavon et al. discloses a method comprising:
receiving, by a computing device (2.2 Image Analysis: Para. 5 lines 1-7, "computer"), an image indicative of a cross-section of a thermally-sprayed layer, the thermally-sprayed layer comprising a microstructure, wherein the image comprises a matrix of pixels, each pixel in the matrix of pixels defining a respective luminance value (2.1 Specimens and Metallographic Preparations: Para. 1 lines 1-4, 2.2 Image Analysis: Para. 1 lines 1-3 and 7-8, "sprayed" "cross sections" "image" "gray level");
determining, by the computing device and based on the luminance values of the matrix of pixels, a quantification of a layering of the microstructure of the thermally-sprayed layer (2.2 Image Analysis: Para. 1 lines 1-14, 3. Definition of the Metallographic Index: Para. 1 lines 1-18, 4.1 Deposit Average Thickness: Para. 1 lines 12-15, Para. 2 lines 1-3 and 18-20, 6. Conclusions: Para. 1 lines 1-7, Para. 2 lines 1-6, "quantitative description").
With regards to claim 19, Montavon et al. discloses a non-transitory computer-readable storage medium having stored thereon instructions that, when executed, configure a processor (2.2 Image Analysis: Para. 5 lines 1-7, "computer" "floppy disk") to:
receive an image indicative of a cross-section of a thermally-sprayed layer, the thermally-sprayed layer comprising a microstructure, wherein the image comprises a matrix of pixels, each pixel in the matrix of pixels defining a respective luminance value (2.1 Specimens and Metallographic Preparations: Para. 1 lines 1-4, 2.2 Image Analysis: Para. 1 lines 1-3 and 7-8, "sprayed" "cross sections" "image" "gray level");
determine, based on the luminance values of the matrix of pixels, a quantification of a layering of the microstructure of the thermally-sprayed layer (2.2 Image Analysis: Para. 1 lines 1-14, 3. Definition of the Metallographic Index: Para. 1 lines 1-18, 4.1 Deposit Average Thickness: Para. 1 lines 12-15, Para. 2 lines 1-3 and 18-20, 6. Conclusions: Para. 1 lines 1-7, Para. 2 lines 1-6, "quantitative description").
With regards to claim 20, Montavon et al. discloses a system comprising:
a thermal spray gun configured to apply a thermally-sprayed layer to a substrate (2.1 Specimens and Metallographic Preparations: Para. 1 lines 1-10, "sprayed" "torch");
an imaging device configured to capture an image indicative of a cross-section of the thermally-sprayed layer, the thermally-sprayed layer comprising a microstructure, wherein the image comprises a matrix of pixels, each pixel in the matrix of pixels defining a respective luminance value (2.2 Image Analysis: Para. 1 lines 1-3 and 7-8, "CCD" "cross sections" "image" "gray level"); and
a computing device (2.2 Image Analysis: Para. 5 lines 1-7, "computer") configured to:
receive an image indicative of a cross-section of the thermally-sprayed layer (2.1 Specimens and Metallographic Preparations: Para. 1 lines 1-4, 2.2 Image Analysis: Para. 1 lines 1-3 and 7-8, "sprayed" "cross sections"); and
determine, based on the luminance values of the matrix of pixels, a quantification of a layering of the microstructure of the thermally-sprayed layer (2.2 Image Analysis: Para. 1 lines 1-14, 3. Definition of the Metallographic Index: Para. 1 lines 1-18, 4.1 Deposit Average Thickness: Para. 1 lines 12-15, Para. 2 lines 1-3 and 18-20, 6. Conclusions: Para. 1 lines 1-7, Para. 2 lines 1-6, "quantitative description").
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) 17 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Montavon et al. (Microstructural Index to Quantify Thermal Spray Deposit Microstructures Using Image Analysis) in view of Weissleder et al. (WO 2015/024020).
With regards to claim 17, Montavon et al. discloses the method of claim 1.
Montavon et al. does not explicitly teach further comprising normalizing, by the computing device, the image by adjusting a luminance value of at least one pixel of the matrix of pixels.
However, Weissleder et al. discloses the concept of normalizing an image by adjusting a luminance value of a pixel of the matrix of pixels in order to correct for non-uniform illumination (Page 32 lines 8-13, "normalization" "reduces").
It would have been obvious for one of ordinary skill in the art before the effective filing date of the claimed invention to include the concept of normalizing an image by adjusting a luminance value of a pixel of the matrix of pixels as taught by Weissleder et al. into the method of Montavon et al. The motivation for this would be to correct for non-uniform illumination in the image.
With regards to claim 18, the combination of Montavon et al. and Weissleder et al. discloses the method of claim 17, wherein normalizing, by the computing device, the image comprises correcting for non-uniform illumination of the cross-section of the thermally-sprayed layer by reducing or eliminating brightness gradients within the image (Weissleder et al.: Page 32 lines 8-13, "normalization" "reduces intensity variations").
Allowable Subject Matter
Claims 2-5 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 101, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
With regards to claim 2, Montavon et al. (Microstructural Index to Quantify Thermal Spray Deposit Microstructures Using Image Analysis) discloses the microstructure of the thermally-sprayed layer comprising phases and particles, however, there is no mention of determining a pattern in a distribution of the plurality of phase particles to determine the quantification of the layering of the microstructure of the thermally-sprayed layer. Sato et al. (US 2015/0159020) discloses determining a quantification of a layering of a microstructure of a thermally-sprayed layer including particles, however, there is no mention of where the layering is indicative of alignment of a plurality of phase particles with each other in layers and determining a pattern in a distribution of the plurality of phase particles to determine the quantification of the layering of the microstructure of the thermally-sprayed layer. Thus, while different prior arts disclose parts of the claim, none of the prior arts disclose or have reasonable motivation to combine to disclose all of the limitations of the claim as a whole.
With regards to claims 3-5, they are dependent on claim 2.
Claim 6 would be allowable if rewritten to overcome the rejection(s) under 35 U.S.C. 112(d) or 35 U.S.C. 112 (pre-AIA ), 4th paragraph, and 35 U.S.C. 101, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
With regards to claim 6, it is dependent on claim 5.
Claims 7-15 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, and 35 U.S.C. 101, set forth in this Office action and to include all of the limitations of the base claim and any intervening claims.
With regards to claims 7-15, they are dependent on claim 4.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Applicants are directed to consider additional pertinent prior art included on the Notice of References Cited (PTOL 892) attached herewith.
Contact Information
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CAROL W CHAN whose telephone number is (571)272-5766. The examiner can normally be reached 9:30-3:30 M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sumati Lefkowitz can be reached at (571) 272-3638. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CAROL W CHAN/Primary Examiner, Art Unit 2672