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 .
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-13 in the reply filed on 10th August 2026 is acknowledged. The traversal is on the ground(s) that “Yamakawa does not disclose detecting light scattered by particles at a first and a second angle as recited in claim 1… Yamakawa does not disclose detecting light components at different angles; instead, Yamakawa separates light components by wavelength after they travel the same optical path”. This is not found persuasive because the angles being different are not a shared feature, as it is not required by claim 1.
The requirement is still deemed proper and is therefore made FINAL.
Claims 14-23 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 10th June 2026.
Specification
The lengthy specification has not been checked to the extent necessary to determine the presence of all possible minor errors. Applicant' s cooperation is requested in correcting any errors of which applicant may become aware in the specification.
Claim Objections
Claim 8 is objected to because of the following informalities:
Claim 8 ends with improper punctuation, “…at the second angle;” and should be amended, corrected to end with a period instead.
Appropriate correction is required.
Claim Rejections - 35 USC § 101
Claims 1-13 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Each of Claims 1-13 has been analyzed to determine whether it is directed to any judicial exceptions.
Step 2A, Prong 1
Each of Claims 1-13 recites at least one step or instruction for making determinations based on data and performing mathematical concepts, which is grouped as a mental process under the 2019 PEG or a certain method of organizing human activity under the 2019 PEG.
Accordingly, each of Claims 1-13 recites an abstract idea.
Specifically,
Claim 1, A method for determining a substance concentration in a particle-containing liquid, in particular of glucose in blood (Observation, Judgement),
wherein a refractive index of the liquid is dependent on a concentration of the substance dissolved therein, comprising the steps:
- emitting a measuring light beam of at least one wavelength onto a sample containing the liquid;
- detecting a first light component scattered by scattering on the particles contained in the liquid at a first angle, which corresponds in particular to a forward scattering of the light component;
- detecting a second light component scattered at a second angle by the particles contained in the liquid;
- determining a concentration or a proportion of the substance in the liquid from the detected first and second light components, in particular by forming a ratio from the detected first and second light components (Observation, Judgement, Mathematical Concept).
The underlined portions of which are grouped as a mental process under the 2019 PEG, annotated with abstract ideas grouped as a mental process under the 2019 PEG such as observation, judgement, evaluations and opinions. The additional elements used to perform the abstract ideas are seen as generically recited elements conducting extra solution activity and are annotated via bold text: (additional element); (Observation) (Judgement) (Evaluation/Opinion)
Further, dependent Claims 2-13 merely include limitations that either further define the abstract idea (and thus don' t make the abstract idea any less abstract) or amount to no more than generally linking the use of the abstract idea to a particular technological environment or field of use because they' re merely incidental or token additions to the claims that do not alter or affect how the process steps are performed.
Accordingly, as indicated above, each of the above-identified claims recites an abstract idea.
Step 2A, Prong 2
The above-identified abstract idea in each of independent Claims 1 (and their respective dependent Claims 2-13 ) is not integrated into a practical application under 2019 PEG because the additional elements (identified above in independent Claims 1 ), either alone or in combination, generally link the use of the above-identified abstract idea to a particular technological environment or field of use. More specifically, the additional elements of: - emitting a measuring light beam of at least one wavelength onto a sample containing the liquid;
- detecting a first light component scattered by scattering on the particles contained in the liquid at a first angle, which corresponds in particular to a forward scattering of the light component;
- detecting a second light component scattered at a second angle by the particles contained in the liquid;
are generically recited computer elements in independent Claims 1 (and their respective dependent claims) which do not improve the functioning of a computer, or any other technology or technical field. Nor do these above-identified additional elements serve to apply the above-identified abstract idea with, or by use of, a particular machine, effect a transformation or apply or use the above-identified abstract idea in some other meaningful way beyond generally linking the use thereof to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. Furthermore, the above-identified additional elements do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. For at least these reasons, the abstract idea identified above in independent Claims 1 (and their respective dependent claims) is not integrated into a practical application under 2019 PEG.
Moreover, the above-identified abstract idea is not integrated into a practical application under 2019 PEG because the claimed method and system merely implements the above-identified abstract idea (e.g., mental process and certain method of organizing human activity) using rules (e.g., computer instructions) executed by a computer (e.g., evaluation unit as described in the specification. Note: There is no structure claimed to accomplish the determination steps). In other words, these claims are merely directed to an abstract idea with additional generic computer elements which do not add a meaningful limitation to the abstract idea because they amount to simply implementing the abstract idea on a computer. Additionally, Applicant' s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. That is, like Affinity Labs of Tex. v. DirecTV, LLC, the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution. Thus, for these additional reasons, the abstract idea identified above in independent Claims 1 (and their respective dependent claims) is not integrated into a practical application under the 2019 PEG.
Accordingly, independent Claims 1 (and their respective dependent claims) are each directed to an abstract idea under 2019 PEG.
Step 2B
None of Claims 1-13 include additional elements that are sufficient to amount to significantly more than the abstract idea for at least the following reasons.
These claims require the additional elements of: - emitting a measuring light beam of at least one wavelength onto a sample containing the liquid;
- detecting a first light component scattered by scattering on the particles contained in the liquid at a first angle, which corresponds in particular to a forward scattering of the light component;
- detecting a second light component scattered at a second angle by the particles contained in the liquid;
The above-identified additional elements are generically claimed computer components which enable the above-identified abstract idea(s) to be conducted by performing the basic functions of automating mental tasks. The courts have recognized such computer functions as well understood, routine, and conventional functions when claimed in a merely generic manner (e.g., at a high level of generality) or as insignificant extra-solution activity. See, Versata Dev. Group, Inc. v. SAP Am., Inc. , 793 F.3d 1306, 1334, 115 USPQ2d 1681, 1701 (Fed. Cir. 2015); and OIP Techs., 788 F.3d at 1363, 115 USPQ2d at 1092-93.
Per Applicant' s specification,
- emitting a measuring light beam of at least one wavelength onto a sample containing the liquid (emitter unit according to specification);
- detecting a first light component scattered by scattering on the particles contained in the liquid at a first angle, which corresponds in particular to a forward scattering of the light component (detector/photodetector according to specification);
- detecting a second light component scattered at a second angle by the particles contained in the liquid (detector/photodetector according to specification);
Accordingly, in light of Applicant' s specification, the term ‘evaluation unit’ (from specification) is reasonably construed as a generic computing device. Like SAP America vs Investpic, LLC (Federal Circuit 2018), it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources, just already available computers, with their already available basic functions, to use as tools in executing the claimed process.
Furthermore, Applicant' s specification does not describe any special programming or algorithms required for the ‘evaluation unit’ (from specification). This lack of disclosure is acceptable under 35 U.S.C. §112(a) since this hardware performs non-specialized functions known by those of ordinary skill in the computer arts. By omitting any specialized programming or algorithms, Applicant's specification essentially admits that this hardware is conventional and performs well understood, routine and conventional activities in the computer industry or arts. In other words, Applicant' s specification demonstrates the well-understood, routine, conventional nature of the above-identified additional elements because it describes these additional elements in a manner that indicates that the additional elements are sufficiently well-known that the specification does not need to describe the particulars of such additional elements to satisfy 35 U.S.C. § 112(a) (see Berkheimer memo from April 19, 2018, (III)(A)(1) on page 3). Adding hardware that performs “‘well understood, routine, conventional activit[ies]' previously known to the industry” will not make claims patent-eligible (TLI Communications).
The recitation of the above-identified additional limitations in Claims 1-13 amounts to mere instructions to implement the abstract idea on a computer. Simply using a computer or other machinery in its ordinary capacity for economic or other tasks (e.g., to receive, store, or transmit data) or simply adding a general purpose computer or computer components after the fact to an abstract idea (e.g., a fundamental economic practice or mathematical equation) does not provide significantly more. See Affinity Labs v. DirecTV, 838 F.3d 1253, 1262, 120 USPQ2d 1201, 1207 (Fed. Cir. 2016) (cellular telephone); and TLI Communications LLC v. AV Auto, LLC, 823 F.3d 607, 613, 118 USPQ2d 1744, 1748 (Fed. Cir. 2016) (computer server and telephone unit). Moreover, implementing an abstract idea on a generic computer, does not add significantly more, similar to how the recitation of the computer in the claim in Alice amounted to mere instructions to apply the abstract idea of intermediated settlement on a generic computer.
A claim that purports to improve computer capabilities or to improve an existing technology may provide significantly more. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314-15, 120 USPQ2d 1091, 1101-02 (Fed. Cir. 2016); and Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36, 118 USPQ2d 1684, 1688-89 (Fed. Cir. 2016). However, a technical explanation as to how to implement the invention should be present in the specification for any assertion that the invention improves upon conventional functioning of a computer, or upon conventional technology or technological processes. That is, the disclosure must provide sufficient details such that one of ordinary skill in the art would recognize the claimed invention as providing an improvement. Here, Applicant' s specification does not include any discussion of how the claimed invention provides a technical improvement realized by these claims over the prior art or any explanation of a technical problem having an unconventional technical solution that is expressed in these claims. Instead, as in Affinity Labs of Tex. v. DirecTV, LLC 838 F.3d 1253, 1263-64, 120 USPQ2d 1201, 1207-08 (Fed. Cir. 2016), the specification fails to provide sufficient details regarding the manner in which the claimed invention accomplishes any technical improvement or solution.
For at least the above reasons, the methods of Claims 1-13 are directed to applying an abstract idea as identified above on a general purpose computer without (i) improving the performance of the computer itself, or (ii) providing a technical solution to a problem in a technical field. None of Claims 1-13 provides meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that these claims amount to significantly more than the abstract idea itself.
Taking the additional elements individually and in combination, the additional elements do not provide significantly more. Specifically, when viewed individually, the above-identified additional elements in independent Claims 1 (and their dependent claims) do not add significantly more because they are simply an attempt to limit the abstract idea to a particular technological environment. That is, neither the general computer elements nor any other additional element adds meaningful limitations to the abstract idea because these additional elements represent insignificant extra-solution activity. When viewed as a combination, these above-identified additional elements simply instruct the practitioner to implement the claimed functions with well-understood, routine and conventional activity specified at a high level of generality in a particular technological environment. As such, there is no inventive concept sufficient to transform the claimed subject matter into a patent-eligible application. When viewed as whole, the above-identified additional elements do not provide meaningful limitations to transform the abstract idea into a patent eligible application of the abstract idea such that the claims amount to significantly more than the abstract idea itself. Thus, Claims 1-13 merely apply an abstract idea to a computer and do not (i) improve the performance of the computer itself (as in Bascom and Enfish), or (ii) provide a technical solution to a problem in a technical field (as in DDR).
Therefore, none of the Claims 1-13 amounts to significantly more than the abstract idea itself. Accordingly, Claims 1-13 are not patent eligible and rejected under 35 U.S.C. 101.
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 1-13 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), 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 1 recites ‘determining a concentration or a proportion of the substance in the liquid from the detected first and second light components, in particular by forming a ratio from the detected first and second light components’, this limitation (together with the preamble’s assertion that refractive index depends on substance concentration and that the angular dependence of scattered light can be used to determine that concentration) is not adequately supported by the specification. The specification describes the general principle and states that a ratio of the two detected light components can be used. However, the specification provides no concrete disclosure of how the ratio is actually calculated or calibrated to concentration, examples, quantitative data, or experimental results demonstrating that the ratio maps to concentration, or how to select or compensate for many variables such as effects of skin surface, absorption, size/shape of particle distribution, dependence on wavelength, etc. across the broad spectrum of “particle-containing liquids”. Dependent claims that further limit the angles, wavelengths, etc. inherit the defect of this determination step.
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 1-13 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 1, ‘the liquid’, there is insufficient antecedent basis for this limitation in this claim. Examiner notes ‘the liquid’ should likely read ‘the particle-containing liquid’.
Claim 1, ‘a concentration of the substance’, there is insufficient antecedent basis for this limitation in this claim. Examiner notes the limitation should read ‘the substance concentration’, as previously introduced in the preamble of claim 1.
Claim 1, ‘the particles’, there is insufficient antecedent basis for this limitation in this claim.
Claim 1, ‘the light component’, there is insufficient antecedent basis for this limitation in this claim.
Claim 1, ‘a concentration or a proportion of the substance’, it is unclear whether ‘a concentration’ is referring to ‘a substance concentration’ as previously recited or not, further, there is insufficient antecedent basis for ‘the substance’ in this claim.
Claim 1, ‘the detected first and second light components’, there is insufficient antecedent basis for this limitation in this claim. Examiner notes the limitation should likely read ‘the first light component and the second light component’.
Claims 1-6, 9 and 13, the phrases using ‘in particular’, such as ‘in particular of glucose in blood’ and ‘in particular by forming a ratio…’ render the metes and bounds unclear whether the limitation that follows the phrase is required or merely preferred, such as ‘first angle, which corresponds in particular to a forward scattering’, is it required to be forward scattering or is it merely preferred, and the claim only requires detection ‘at a first angle’. Examiner notes that any limitation following ‘in particular’ has been interpreted to be optional, as best understood by the disclosure.
Claim 2, ‘a light beam’, it is unclear whether ‘a light beam’ is referring to ‘a measuring light beam’ or if it is a new distinct light beam, rendering claim 2 indefinite.
Claim 2, ‘a light beam producing this light component’, it is unclear whether ‘this light component’ is meant to refer to the first light component, second light component, or some other light component not previously introduced, rendering claim 2 indefinite.
Claim 4, ‘which angle’, it is unclear whether this angle this is referring to a first angle, a second angle, or a third angle, rendering claim 4 indefinite. Examiner notes this limitation should likely read ‘the third angle’, as best understood by the disclosure.
Claim 5, ‘an angle’, it is unclear whether this is meant to refer to ‘a first angle’ or if this is a new distinct angle. Examiner interprets ‘an angle’ to intend a new distinct angle.
Claim 6, ‘an angle’, it is unclear whether this is meant to refer to ‘a second angle’ or if this is a new distinct angle. Examiner interprets ‘an angle’ to intend a new distinct angle.
Claim 7, ‘a measuring light beam’, it is unclear whether this is meant to refer to ‘a measuring light beam’ as recited in claim 1, or if each iteration of ‘a measuring light beam’ is a new distinct measuring light beam. Examiner notes the limitation should likely read ‘wherein the step of emitting the measuring light beam comprises emitting a first measuring light beam of a first wavelength and emitting a second measuring light beam of a second wavelength’, as best understood by the disclosure.
Claim 8 recites ‘detecting a second light component’ and ‘as a second light component’, it is unclear whether these are referring to ‘a second light component’ as previously recited in claim 1, or if they are meant to be distinct light components, rendering claim 8 indefinite. Examiner notes the limitations should likely read ‘detecting the second light component’ and ‘as the second light component’, as best understood by the disclosure.
Claim 9, ‘which angle’, it is unclear whether this angle this is referring to a first angle, a second angle, or a fourth angle, rendering claim 4 indefinite. Examiner notes this limitation should likely read ‘the fourth angle’, as best understood by the disclosure.
Claims 10-11, ‘the measurement light beam’, there is insufficient antecedent basis for this limitation in these claims. Examiner notes that the limitation should likely read ‘the measuring light beam’, as best understood by the disclosure.
Claim 13, ‘the distance’, there is insufficient antecedent basis for this limitation in this claim.
Claims 2-13 are rejected by virtue of their dependence on a rejected parent claim.
Claim Rejections - 35 USC § 102 / 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 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.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-4, 6 & 12-13 is/are rejected under 35 U.S.C. 102(a)(1) as anticipated by US 7315752 B2 to Kraemer et al. (hereinafter, Kraemer) or, in the alternative, under 35 U.S.C. 103 as obvious over Kraemer in view of US 6420709 B1 to Block et al. (hereinafter, Block).
Regarding Claim 1, Kraemer discloses method for determining a substance concentration in a particle- containing liquid, in particular of glucose in blood (Kraemer: Abstract; Note: limitations following ‘in particular’ are considered optional and thus ‘in particular of glucose in blood’ is not required to be taught by the prior art. Regardless, this limitation is taught by Kraemer.),
wherein a refractive index of the liquid is dependent on a concentration of the substance dissolved therein (Kraemer: Col. 2, lines 19-24), comprising the steps:
- emitting a measuring light beam of at least one wavelength onto a sample containing the liquid (Kraemer: Col. 3, lines 50-59);
- detecting a first light component scattered by scattering on the particles contained in the liquid at a first angle (Kraemer: Col. 3, lines 59-64, Col. 4, lines 4-7; Note: limitations following ‘in particular’ are considered optional and thus ‘corresponding in particular to a forward scattering of the light component’ is not required to be taught by the prior art);
- detecting a second light component scattered at a second angle by the particles contained in the liquid (Kraemer: Col. 3, lines 50-64, Col. 4, lines 4-7; Note: At least three detection measurements);
- determining a concentration or a proportion of the substance in the liquid from the detected first and second light components (Kraemer: Col. 3, line 50-55, line 66-Col. 4, line 1; Note: limitations following ‘in particular’ are considered optional and thus ‘in particular by forming a ratio from the detected first and second light components’ is not required to be taught by the prior art).
Kraemer is silent on the first light component scattering corresponding to a forward-scattering of the light component, and forming a ratio from the detected first and second light components.
However, Block teaches detection of a discrete forward-scattering component at a defined first angle (Block: Col. 12, lines 13-31),
formation of a ratio from the detected first and second light components (Block: Col. 12, lines 13-38; Fig. 1; Note: “Comparing” encompasses forming a ratio (or difference) of the two portions to obtain concentration. Kraemer teaches measurement intensity of scattered light at two or more different geometric conditions and evaluation of those intensities to obtain a concentration-linked scattering parameter. Block teaches a preference of forward-scattering direction via scatter comparison, thus the combination teaches this limitation).
One of ordinary skill at the time the invention was filed would have found it obvious to modify the multi-path multiply scattered light method of Kraemer by adopting the forward-scatter preferential detection and comparison of first and second portions having different average path lengths as taught by Block to take advantage of broad and shallow wavelength variations of the major absorbers and the scattering characteristics of the tissue to facilitate accurate determination of the reference intensities, and to do so dynamically on each individual measurement to adjust automatically for inevitable physiological changes on the sample site (Block: Col. 15, lines 29-35).
Regarding Claim 2, Kraemer in view of Block discloses the method according to claim 1, Kraemer further discloses in which an angle between the first light component and the measuring light beam is at least 60° and in particular at least 90° greater than an angle between the second light component and a light beam producing this light component on the sample (Kraemer: Col. 4, lines 4-7, lines 20-30; Note: limitations following ‘in particular’ are considered optional and thus ‘in particular at least 90° greater than an angle between the second light component and a light beam producing this light component on the sample’ is not required to be taught by the prior art).
Regarding Claim 3, Kraemer in view of Block discloses the method according to claim 1, Kraemer further discloses in which the first angle relative to a normal to a surface of the sample is greater than 45° and in particular greater than 55°; and/or in which the second angle relative to a normal to a surface of the sample is less than 35° and in particular less than 20° (Kraemer: Col. 4, lines 4-7, lines 20-30; Note: limitations following ‘in particular’ are considered optional and thus ‘in particular greater than 50°’ and ‘in particular less than 20°’ are not required to be taught by the prior art).
Regarding Claim 4, Kraemer in view of Block discloses the method according to claim 1, Kraemer further discloses in which the measuring light beam is irradiated at a third angle with respect to a normal to a surface of the sample, which angle is greater than 45° and in particular greater than 60° (Kraemer: Col. 4, lines 20-30, lines 4-7; Note: limitations following ‘in particular’ are considered optional and thus ‘in particular greater than 60°’ is not required to be taught by the prior art).
Regarding Claim 6, Kraemer in view of Block discloses the method according to claim 1, Kraemer further discloses in which an angle between the measuring light beam and the scattered second light component is less than 60° and in particular less than 30° (Kraemer: Col. 4, lines 4-7, lines 20-30; Note: limitations following ‘in particular’ are considered optional and thus ‘in particular less than 30°’ is not required to be taught by the prior art).
Regarding Claim 12, Kraemer in view of Block discloses the method according to claim 1, Kraemer further discloses in which a point of incidence of the measuring light beam on the sample is spaced apart from a point from which the first and/or second light beam is detected (Kraemer: Col. 4, lines 7-11, Col. 4, line 66-Col. 5, line 10).
Regarding Claim 13, Kraemer in view of Block discloses the method according to claim 12, Kraemer further discloses in which the distance is in the range from 1 mm to 8 mm and in particular between 2 mm and 4 mm (Kraemer: Col. 4, lines 7-11, Col. 4, line 66-Col. 5, line 10; Note: limitations following ‘in particular’ are considered optional and thus ‘in particular between 2 mm and 4 mm’ is not required to be taught by the prior art).
Claim(s) 5 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kraemer in view of Block in further view of US 20160334332 A1 to Magnussen et al. (hereinafter, Magnussen).
Regarding Claim 5, Kraemer in view of Block discloses the method according to claim 1, Kraemer is silent on an angle being more than 90°.
However, Magnussen teaches in which an angle between the measuring light beam and the first light component generated by scattering on the particles contained in the liquid is more than 90° and in particular more than 120° (Magnussen: Para. [0391]; Note: limitations following ‘in particular’ are considered optional and thus ‘in particular more than 120°’ is not required to be taught by the prior art).
One of ordinary skill in the art at the time the invention was filed would have found it obvious to modify the emission angle range of Kraemer to include angles greater than 90° as taught by Magnussen to account for different geometries with different preferred angle regions (Magnussen: Para. [0391]).
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kraemer in view of Block.
Regarding Claim 7, Kraemer in view of Block discloses the method according to claim 1, Kraemer is silent on a first and second wavelength.
However, Block wherein the step of emitting a measuring light beam comprises emitting a measuring light beam of a first wavelength and emitting a measuring light beam of a second wavelength (Block: Col. 9, lines 38-39).
One of ordinary skill in the art at the time the invention was filed would have found it obvious to modify the emission steps of Kraemer to specify the working range of wavelengths such as 700 to about 2500 nm as taught by Block because this range covers the absorbance of some of the most preferred substances, including glucose (Block: Col. 9, lines 39-41).
Claim(s) 8-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kraemer in view of Block in further view of US 5551422 A to Simonsen et al. (hereinafter, Simonsen).
Regarding Claim 8, Kraemer in view of Block discloses the method according to claim 1, Kraemer is silent on a reference light beam.
However, Simonsen teaches wherein the step of detecting a second light component scattered by the particles contained in the liquid comprises:
- emitting a reference light beam of at least one wavelength onto the sample (Simonsen: Col. 2, lines 43-48; Col. 7, lines 20-31);
- detecting of light scattered by the reference light beam as a second light component at the second angle (Simonsen: Col. 2, lines 43-48; Col. 7, lines 20-31);
One of ordinary skill in the art at the time the invention was filed would have found it obvious to modify the emission steps of Kraemer to include a reference light beam as taught by Simonsen so that the absorption is as constant as possible at different glucose concentrations (Simonsen: Col. 2, lines 43-48).
Regarding Claim 9, Kraemer in view of Block in view of Simonsen discloses the method according to claim 8, Kraemer further discloses in which the reference light beam is irradiated at a fourth angle with respect to a normal to a surface of the sample, which angle is less than 45° and in particular less than 30° (Kraemer: Col. 4, lines 4-7, lines 20-30; Col. 4, line 66-Col. 5, line 4; Note: limitations following ‘in particular’ are considered optional and thus ‘in particular less than 30°’ is not required to be taught by the prior art).
Regarding Claim 10, Kraemer in view of Block in view of Simonsen discloses the method according to claim 8, Kraemer is silent on emitting at separate times.
However, Simonsen teaches wherein the measurement light beam and the reference light beam are emitted at different times (Simonsen: Col. 13, lines 45-48).
One of ordinary skill in the art at the time the invention was filed would have found it obvious to modify the emission of Kraemer to include emitting at different times as taught by Simonsen to account for secondary light resulting from two irradiation fields requiring separation (Simonsen: Col. 13, lines 45-48).
Regarding Claim 11, Kraemer in view of Block in view of Simonsen discloses the method according to claim 8, Kraemer further discloses wherein the reference light beam and the measurement light beam comprise the same wavelengths or different wavelengths (Simonsen: Col. 2, lines 43-48; Col. 7, lines 20-31).
One of ordinary skill in the art at the time the invention was filed would have found it obvious to modify the emission steps of Kraemer to include a reference light beam as taught by Simonsen so that the absorption is as constant as possible at different glucose concentrations (Simonsen: Col. 2, lines 43-48).
Conclusion
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/SHAWN CURTIS BROUGHTON/Examiner, Art Unit 3791
/PATRICK FERNANDES/Primary Examiner, Art Unit 3791
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