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 .
Drawings
Figure 1 should be designated by a legend such as --Prior Art-- because only that which is old is illustrated. See MPEP § 608.02(g). Corrected drawings in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. The replacement sheet(s) should be labeled “Replacement Sheet” in the page header (as per 37 CFR 1.84(c)) so as not to obstruct any portion of the drawing figures. If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 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 8-10, 14 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 8 is vague and unclear reciting “wherein the elastic fixing element is provided in two”, because it is unclear what is being claimed.
The term “soft” in claim 14 is a relative term which renders the claim indefinite. The term “soft” 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.
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.
(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) 1-15 is/are rejected under 35 U.S.C. 102a1/a2 as being anticipated by Loudermilk et al. (US 2023/0356214 A1).
Regarding claim 1, Loudermilk teaches:
1. A collector for a liquid sample, comprising:
an absorption element (e.g., 12A) for absorbing the liquid sample (¶ 0049+); and
a fixed tray (flat element adjacent to 12A in Fig. 6B) for fixing the absorption element, wherein the fixed tray is connected with a rod (e.g., 5A) comprising a channel (e.g., 27),
the channel comprises an outlet, and the outlet is in fluid communication with the fixed tray (see Fig. 6C for example).
With regard to limitations in claims 1-6, 9, 10, 13, 14 (e.g., for absorbing [...]; for fixing [...]; the channel is used for accommodating an indicator strip that indicates presence or absence of a sufficient liquid or a testing element for testing an analyte in the liquid sample, etc.), these claim limitations are considered process or intended use limitations, which do not further delineate the structure of the claimed apparatus from that of the prior art. The cited prior art teaches all of the positively recited structure of the claimed apparatus. The Courts have held that a statement of intended use in an apparatus claim fails to distinguish over a prior art apparatus. See In re Sinex, 309 F.2d 488, 492, 135 USPQ 302, 305 (CCPA 1962). The Courts have held that the manner of operating an apparatus does not differentiate an apparatus claim from the prior art, if the prior art apparatus teaches all of the structural limitations of the claim. See Ex Parte Masham, 2 USPQ2d 1647 (BPAI 1987). The Courts have held that apparatus claims must be structurally distinguishable from the prior art in terms of structure, not function. See In re Danley, 120 USPQ 528, 531 (CCPA 1959); and Hewlett-Packard Co. V. Bausch and Lomb, Inc., 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (see MPEP §§ 2114 and 2173.05(g)). "Expressions relating the apparatus to contents thereof during an intended operation are of no significance in determining patentability of the apparatus claim." Ex parte Thibault, 164 USPQ 666,667 (Bd. App. 1969). Furthermore, "[i]nclusion of material or article worked upon by a structure being claimed does not impart patentability to the claims." See In re Young, 75 F.2d *>996, 25 USPQ 69 (CCPA 1935) (as restated in In re Otto, 312 F.2d 937, 136 USPQ 458, 459 (CCPA 1963)) (see MPEP § 2115).
Regarding claims 2, 3, 5-9, 11, 12, 15, Loudermilk teaches:
2. The collector according to claim 1, wherein an elastic sheet (e.g., 11A) is fixed onto the fixed tray; the elastic sheet is provided with the outlet thereon (see Fig. 6B for example).
3. The collector according to claim 2, wherein an adhesive layer (e.g., adhesive) is provided between a surface of the elastic sheet and the end of the absorption element, and the absorption element and the fixed tray are bonded together by the adhesive layer (see ¶ 0050 for example).
5. The collector according to claim 4, wherein the outlet of the elastic sheet extends outwards (see Fig. 6B for example).
6. The collector according to claim 5, wherein the adhesive is on the elastic sheet (see ¶ 0050 for example).
7. The collector according to claim 1, wherein the fixed tray is provided with a chamber with a bottom and a side wall; an opening of the channel is provided on the bottom of the chamber; one end of the absorption element is located in the chamber; and an elastic fixing element is provided around the absorption element, such that the absorption element is fixed in the chamber through the elastic fixing element (see Fig. 6C & ¶ 0050 for example).
8. The collector according to claim 7, wherein the elastic fixing element is provided in two; and the elastic fixing element is provided around the absorption element, such that the absorption element is fixed in the chamber (see Fig. 6C for example).
9. The collector according to claim 8, wherein the absorption element is a cylinder; the elastic fixing element is made of annular rubber or latex; and the absorption element is fixed in the chamber on the fixed tray (see Fig. 6B & ¶ 0147 for example).
11. The collector according to claim 1, wherein the liquid sample is saliva, urine, sputum, or a nasal secretion liquid (¶ 0049+).
12. The collector according to claim 1, wherein the absorption element comprises polyester, a sponge, cotton, and a filter paper (¶ 0133).
15. The collector according to claim 1, wherein the absorption element consists of a polypropylene sponge (PP), a polyvinyl alcohol sponge (PVA), and a polypropylene or melamine foam (¶ 0133).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEAN KWAK whose telephone number is (571)270-7072. The examiner can normally be reached M-TH, 4:30 am - 2:30 pm EST.
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, CHARLES CAPOZZI can be reached at (571)270-3638. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DEAN KWAK/Primary Examiner, Art Unit 1798
DEAN KWAK
Primary Examiner
Art Unit 1798
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