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
The drawings are objected to as failing to comply with 37 CFR 1.84(p)(5) because they include the following reference character(s) not mentioned in the description: 201.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). 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.
Specification
The title of the invention is not descriptive. A new title is required that is clearly indicative of the invention to which the claims are directed.
The following title is suggested: AN X-RAY FLUORESCENCE SYSTEM.
The disclosure is objected to because of the following informalities:
Paragraph [0043], line 5, --1000-- should be inserted after “the XRF system”.
Appropriate correction is required.
Please note that paragraph numbers in a U. S. Patent Application Publication do not correspond to paragraph numbers in the originally-filed specification. The paragraph numbers mentioned above refer to the originally-filed specification.
Claim Objections
Claim objected to because of the following informalities:
(Proposed Amendments) An X-ray fluorescence system comprising:
an X-ray source adapted to emit X-ray radiation that is incident on a sample;
a controller associated with the X-ray source, the controller adapted to vary an energy of the X-ray radiation that is incident on the sample between at least a first incident radiation energy and a second incident radiation energy, the second incident radiation energy being higher than the first incident radiation energy; [[and]]
an X-ray fluorescence detector to detect X-ray radiation fluoresced by the sample in response to the X-ray radiation that is incident on the sample and determine at least:
a first fluorescence radiation intensity of X-ray radiation fluoresced by the sample in response to the X-ray radiation incident on the sample at the first incident radiation energy (a previously recited limitation); and
a second fluorescence radiation intensity of X-ray radiation energy (a previously recited limitation); and
a processor to determine a particle size correction factor based on the first fluorescence radiation intensity and the second fluorescence radiation intensity.
Appropriate correction is required.
Claim 2 is objected to because of the following informalities:
2. (Proposed Amendments) The X-ray fluorescence system of claim 1, wherein the processor is adapted to correct the first fluorescent radiation intensity and/or the second fluorescent radiation intensity based on the particle size correction factor [[and]] and, to determine a material composition of the sample based on the corrected first fluorescence radiation intensity and/or the corrected second fluorescence radiation intensity.
Appropriate correction is required.
Claims 3-5 are objected to because of the following informalities:
3. (Proposed Amendments) The X-ray fluorescence system of claim 1, wherein the processor is adapted to determine a particle size correction factor based on [[the]] a difference (a lack of an antecedent basis) between the first fluorescence radiation intensity and the second fluorescence radiation intensity, or a ratio of the first fluorescence radiation intensity to the second fluorescence radiation intensity.
Appropriate correction is required.
Claims 4 and 5 are objected to because of the following informalities:
4. (Proposed Amendments) The X-ray fluorescence system of claim 3. wherein the processor is adapted to determine a material composition of the sample based on a corrected fluorescence radiation intensity of X-ray .
Appropriate correction is required.
Claim 5 is objected to because of the following informalities:
5. (Proposed Amendments) The X-ray fluorescence system of claim 4. wherein the processor is further adapted to determine [[a]] the material composition (a previously recited limitation in claim 4) of the sample based on the first fluorescence radiation intensity as corrected based on the particle size correction factor, or based on the second fluorescence radiation intensity as corrected based on the particle size correction factor.
Appropriate correction is required.
Claims 7-9 and 11 are objected to because of the following informalities:
7. (currently amended) The X-ray fluorescence system of claim 1, further comprising:
one or more filters,
wherein the X-ray source has an X-ray emission [[end]] end, and
the controller is further adapted to selectively position the one or more filters .
Appropriate correction is required.
Claims 8 and 9 are objected to because of the following informalities:
8. (Proposed Amendments) The X-ray fluorescence system of claim 7, wherein the one or more filters comprise a first filter and a second filter, and
the controller is further adapted to selectively position:
the first filter between the X-ray emission end and the sample to cause [[the]] an energy (a lack of an antecedent basis) of the X-ray radiation incident on the sample to be at [[the]] a first incident radiation energy (a lack of an antecedent basis); and
the second filter between the X-ray emission end and the sample to cause [[the]] an energy of the X-ray radiation incident on the sample to be at [[the]] a second incident radiation energy.
Appropriate correction is required.
Claim 9 is objected to because of the following informalities:
9. (Proposed Amendments) The X-ray fluorescence system of claim 8, wherein the first filter comprises a first filter material and the second filter comprises a second filter material that is different from the first filter material, or wherein the first filter has a first thickness and the second filter has a second thickness that is different from the first thickness.
Appropriate correction is required.
Claim 11 is objected to because of the following informalities:
11. (Proposed Amendments) The system of claim 7, wherein the one or more filters comprises a first filter, and
the controller is further adapted to selectively position:
the first filter between the X-ray emission end and the sample to cause [[the]] an energy of the X-ray radiation incident on the sample to be at [[the]] a first incident radiation energy; and
no filter or a null filter between the X-ray emission end and the sample to cause [[the]] an energy of the X-ray radiation incident on the sample to be at [[the]] a second incident radiation energy.
Appropriate correction is required.
Claims 12 and 13 are objected to because of the following informalities:
12. (Proposed Amendments) The X-ray fluorescence system of claim [[1]] 1, further comprising:
a mechanism connected to the controller,
the mechanism being for moving and selectively positioning the one or more filters between the X-ray emission end and the sample.
Appropriate correction is required.
Claim 13 is objected to because of the following informalities:
13. (Proposed Amendments) The X-ray fluorescence system of claim 12, wherein the mechanism rotates the one or more filters for selectively positioning the one or more filters between the X-ray emission end and the sample, or wherein the mechanism slides the one or more filters for selective positioning the one or more filters between the X-ray emission end and the sample.
Appropriate correction is required.
Claim 16 is objected to because of the following informalities:
16. (Proposed Amendments) The X-ray fluorescence system of claim 1, wherein the controller is further adapted to control a power supply of the X-ray source to vary the energy of the X-ray radiation between the first incident radiation energy and the second incident radiation energy.
Appropriate correction is required.
Claim 17 is objected to because of the following informalities:
17. (Proposed Amendments) The X-ray fluorescence system of claim 1, wherein the controller is further adapted to control a voltage or a current of the X-ray source to vary the energy of the X-ray radiation between the first incident radiation energy and the second incident radiation energy.
Appropriate correction is required.
Claim 18 is objected to because of the following informalities:
18. (Proposed Amendments) The X-ray fluorescence system of claim 1, wherein the first incident radiation energy and the second incident radiation energy of the X-ray radiation incident on the sample are selected such that the first fluorescence radiation intensity is more susceptible to a variation due to different sizes of [[the]] particles (a lack of an antecedent basis) in the sample than the second fluorescence radiation intensity.
Appropriate correction is required.
Claim 20 is objected to because of the following informalities:
20. (Proposed Amendments) The X-ray fluorescence system of claim 1, wherein the second incident radiation energy is between 2.5 to 3.5 times higher than the first incident radiation energy.
Appropriate correction is required.
Claim 23 is objected to because of the following informalities:
23. (currently amended) The X-ray fluorescence system of claim 1, wherein the X-ray fluorescence system is configured to determine an optimum incident radiation energy based on a ratio of [[the]] a fluorescence radiation mass attenuation coefficient (m(Efluorescence)) to [[the]] an incident radiation energy mass attenuation coefficient (m(Eexciting)), and to use the determined optimum incident radiation energy to determine the first incident radiation energy and/or the second incident radiation energy.
Appropriate correction is required.
Claims 25, 26, 30, and 37 are objected to because of the following informalities:
25. (Proposed Amendments) A method comprising:
emitting X-ray radiation from an X-ray source such that [[it]] the X-ray radiation is incident on a sample containing particles of different sizes;
varying an energy of the X-ray radiation that is incident on the sample between at least a first incident radiation energy and a second incident radiation energy, the second incident radiation energy being higher than the first incident radiation energy; [[and]]
detecting at least a first fluorescence radiation intensity of X-ray radiation fluoresced by the sample in response to X-ray radiation incident on the sample at the first incident radiation energy, and a second fluorescence radiation intensity of X-ray
determining a particle size correction factor based on the first fluorescence radiation intensity and the second fluorescence radiation intensity.
Appropriate correction is required.
Claim 26 is objected to because of the following informalities:
26. (Proposed Amendments) The method of claim [[25]] 25, further comprising:
determining a material composition of the sample based on the first fluorescence radiation intensity and the second fluorescence radiation intensity.
Appropriate correction is required.
Claim 30 is objected to because of the following informalities:
30. (Proposed Amendments) The method of claim [[25]] 25, further comprising:
selectively positioning one or more filters between an X-ray emission end of the X- ray source and the sample to vary [[the]] an incident radiation energy (a lack of an antecedent basis) of the X-ray radiation that is incident on the sample.
Appropriate correction is required.
Claim 37 is objected to because of the following informalities:
37. (Proposed Amendments) The method of claim [[25]] 25, further comprising:
selecting the first incident radiation energy and the second incident radiation energy of the X-ray radiation incident on the sample such that the first fluorescence radiation intensity is more susceptible to a variation due to different sizes of [[the]] particles (a lack of an antecedent basis) in the sample than the second fluorescence radiation intensity.
Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 4 and 5 are rejected under 35 U.S.C. 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 4 recites a function limitation “the corrected fluorescence radiation intensity being corrected based on the particle size correction factor” in lines 3-5. Original claims may lack written description when the claims define the invention in functional language specifying a desired result, but the specification does not sufficiently describe how the function is performed or the result is achieved. For software, this can occur when an algorithm or steps/procedure for performing a computer function are not explained at all or are not explained in sufficient detail (simply restating the function recited in the claim is not necessarily sufficient). In other words, the algorithm or steps/procedure taken to perform the function must be described with sufficient detail so that one of ordinary skill in the art would understand how the inventor intended the function to be performed. See MPEP § 2161.01(I) for more information. Furthermore, claim 1 recites a limitation “a processor to determine a particle size correction factor based on the first fluorescence radiation intensity and the second fluorescence radiation intensity” in lines 14-15. The functional limitation follows a circular logic to correct a fluorescence radiation intensity based on the particle size correction factor when the particle size correction factor is determined based on the first fluorescence radiation intensity and the second fluorescence radiation intensity. Therefore, the claims contain subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Claim 5 recites a functional limitation “the processor is adapted to determine the material composition of the sample based on the first fluorescence radiation intensity as corrected based on the particle size correction factor, or based on the second fluorescence radiation intensity as corrected based on the particle size correction factor” in lines 1-4. Claim 1 recites a limitation “a processor to determine a particle size correction factor based on the first fluorescence radiation intensity and the second fluorescence radiation intensity” in lines 14-15. The functional limitation follows a circular logic to correct a first fluorescence radiation intensity or a second fluorescence radiation intensity based on the particle size correction factor when the particle size correction factor is determined based on the first fluorescence radiation intensity and the second fluorescence radiation intensity. Therefore, the claims contain subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
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 pre-AIA 35 U.S.C. 112, 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, 5, 12, 13, 18, and 23 are rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, 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 a limitation “the processor is adapted to determine a material composition of the sample based on a corrected fluorescence radiation intensity of X-ray radiation detected by the X-ray fluorescence detector” in lines 1-3, which renders the claim indefinite. There is a lack of an antecedent basis for the limitation. It is unclear whether the corrected fluorescence radiation intensity of X-ray radiation refers to a corrected first fluorescence radiation intensity of a corrected second fluorescence radiation intensity. See claim 2.
Claim 12 recites a limitation “the one or more filters” in line 3, which renders the claim indefinite. There is insufficient antecedent basis for the limitation in the claim. Claim 7 previously recites a limitation “one or more filters” in line 2.
Claim 12 recites a limitation “the X-ray emission end” in line 3, which renders the claim indefinite. There is insufficient antecedent basis for the limitation in the claim. Claim 7 previously recites a limitation “an X-ray emission end” in line 2.
Claim 18 recites a functional limitation “the first incident radiation energy and the second incident radiation energy of the X-ray radiation incident on the sample are selected such that the first fluorescence radiation intensity is more susceptible to a variation due to different sizes of particles in the sample than the second fluorescence radiation intensity” in lines 2-4, which renders the claim indefinite because the boundaries of the functional language are unclear.
During examination, claims are given their broadest reasonable interpretation (BRI) in light of the specification as it would be interpreted by one of ordinary skill in the art. It is a best practice to make the record clear during prosecution by explaining the BRI of claim terms, as necessary, including explaining the BRI of any functional language. When 35 U.S.C. 112(f) is invoked, the BRI of the “means-plus-function” limitation is restricted to a corresponding structure in the supporting disclosure, and its equivalents (a corresponding specification that identifies and links a structure, material, or act to the function recited in the claim is considered to be part of the claim limitation). When 35 U.S.C. 112(f) is not invoked and an element is recited along with a function, that element is construed as being capable of performing the function – in other words, the BRI of that element is limited by the function.
It should be kept in mind, however, that there is a distinction between reciting a function compared to reciting an intended use or result. A functional limitation can provide a patentable distinction (limit the claim scope) by imposing limits on the function of a structure, material, or action. Typically, no patentable distinction (no limit on the claim scope) is made by an intended use or result unless some structural difference is imposed by the use or result on the structure or material recited in the claim, or some manipulative difference is imposed by the use or result on the action recited in the claim.
While functional limitations may be properly used in claims, the boundaries imposed by a functional limitation must be clearly defined to be definite under 35 U.S.C. 112(b). Claim language that merely states a result to be obtained without providing boundaries on the claim scope (e.g., by not specifying any way to achieve those results) is unclear. Consider the following to determine whether a claim limitation expressed in functional language has clear boundaries: whether one of ordinary skill in the art can determine what structure, material, or act in the claim performs this function; whether the limitation has well defined boundaries or only expresses a problem solved or intended result; and what an anticipatory reference would need to disclose in order to satisfy this claim limitation. These considerations are not all-inclusive or limiting.
When 35 U.S.C. 112(f) is invoked, the specification must adequately disclose a corresponding structure, material, or act that performs the function. For “means”-type claims, an adequate disclosure requires that a corresponding structure or material is: (a) disclosed in a way that one of ordinary skill in the art will understand what specific structure or material the inventor has identified to perform the recited function; (b) sufficient to perform the entire function recited in the claim limitation; and (c) clearly linked to the function in the written description.
When the examiner determines that the boundaries of a claim are not reasonably clear, a rejection under 35 U.S.C. 112(b) should be made. Such a rejection puts the applicant on notice that it must fulfill its statutory duty under 35 U.S.C. 112(b) to ensure that claim language clearly defines the boundaries of the claim scope sought. In making a rejection, the examiner must identify the specific claim language that is indefinite, and explain why that language renders the boundaries of the claim unclear. When possible, the examiner should suggest how the indefiniteness issues may be resolved.
The boundaries of the functional language are unclear because the claim does not provide a discernable boundary on what performs the function. The recited function does not follow from the structure recited in the claim, i.e., an X-ray source, a controller, an X-ray fluorescence detector, and a processor, so it is unclear whether the function requires some other structure or is simply a result of operating the X-ray fluorescence system in a certain manner. Thus, one of ordinary skill in the art would not be able to draw a clear boundary between what is and is not covered by the claim. See MPEP 2173.05(g) for more information.
The limitation is unclear because it merely states a function (“the first incident radiation energy and the second incident radiation energy of the X-ray radiation incident on the sample are selected such that the first fluorescence radiation intensity is more susceptible to a variation due to different sizes of particles in the sample than the second fluorescence radiation intensity”) without providing any indication about how the function is performed. The recited function does not follow from the structure recited in the claim, i.e., an X-ray source, a controller, an X-ray fluorescence detector, and a processor, so it is unclear whether the function requires some other structure or is simply a result of operating the X-ray fluorescence system in a certain manner.
With respect to claim 23, the recitation “the X-ray fluorescence system” is not limiting because the body of the claim describes a complete invention and the language recited solely in the preamble does not provide any distinct definition of any of the claimed invention’s limitations. Thus, the preamble of the claim is not considered a limitation and is of no significance to claim construction. See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305, 51 USPQ2d 1161, 1165 (Fed. Cir. 1999). See MPEP § 2111.02.
Allowable Subject Matter
The following is a statement of reasons for the indication of allowable subject matter:
With respect to claims 1-3, 7-9, 11, 16, 17, and 20, the prior art failed to disclose or fairly suggested an X-ray fluorescence system as claimed.
With respect to claims 25, 26, 30, and 37, the prior art failed to disclose or fairly suggested a method as claimed.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Yun et al. (U. S. Patent No. 12,360,067 B2) disclosed an X-ray fluorescence system comprising an X-ray source with an electrically-insulative target material.
Koskinen et al. (U. S. Patent No. 11,815,480 B2) disclosed an X-ray fluorescence analyzer and a method for performing an X-ray fluorescence analysis.
Sipilä et al. (U. S. Patent No. 11,680,913 B2) disclosed an X-ray fluorescence analyzer system and a method for performing an X-ray fluorescence analysis of an element of interest in a slurry.
Koskinen et al. (U. S. Patent No. 11,360,036 B2) disclosed an X-ray fluorescence analyzer and a method for performing an X-ray fluorescence analysis.
Koskinen et al. (U. S. Patent No. 11,199,513 B2) disclosed an X-ray fluorescence analyzer comprising a plurality of measurement channels, and a method for performing an X-ray fluorescence analysis.
Kasper et al. (U. S. Patent No. 10,634,628 B2) disclosed an X-ray fluorescence apparatus for monitoring a contamination.
Yamada et al. (U. S. Patent No. 9,746,433 B2) disclosed an X-ray fluorescence spectrometer and an X-ray fluorescence analyzing method.
Dugas et al. (U. S. Patent No. 8,693,625 B2) disclosed a modification of a dynamic shaping time in X-ray detectors.
Gendreau et al. (U. S. Patent No. 7,796,726 B1) disclosed an instrument and a method for X-ray diffraction, X-ray fluorescence, and an analysis of a crystal texture without a preparation of a sample.
Yokhin et al. (U. S. Patent No. 7,680,243 B2) disclosed an X-ray measurement of properties of nano-particles.
Laurila et al. (U. S. Patent No. 7,200,200 B2) disclosed an X-ray fluorescence measuring system and methods for trace elements.
Grodzins et al. (U. S. Patent No. 6,765,986 B2) disclosed an X-ray fluorescence analyzer.
Kaiser et al. (U. S. Patent No. 6,501,825 B2) disclosed methods for an identification and a verification.
Sommer, Jr. et al. (U. S. Patent No. 6,266,390 B1) disclosed high-speed sorting of materials using X-ray fluorescence.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Allen C. Ho, whose telephone number is (571) 272-2491. The examiner can normally be reached Monday - Friday 10AM - 6PM.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David J. Makiya, can be reached at (571) 272-2273. The fax phone number for the organization where this application or proceeding is assigned is (571) 273-8300.
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Allen C. Ho, Ph.D.
Primary Examiner
Art Unit 2884
/Allen C. Ho/Primary Examiner, Art Unit 2884 Allen.Ho@uspto.gov