DETAILED ACTION
Drawings
Figures 1-2 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 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 1-27 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 lacks written description for the genus “a method of determining operational parameters of a spectrometer”. Specifically, the breath of the claim covers any spectrometer using an electron impact ionization source and standard gas isotope ratio mass spectrometers. However, the instant specification is narrow only to static mass spectrometers. Indeed the instant specification teaches at page 1, lines 11-25, teaches that standard gas isotope ratio mass spectrometers use gas samples that are continuously fed, whereas the instant static mass spectrometers use sample sizes that are too small for this approach. Therefore, since the broadest reasonable interpretation of the claim covers any spectrometer having an electron impact ionization source, and the specification is evidence that any other mass spectrometer would not be sufficient to analyze the disclosed finite sample, claim fails to meet the written description requirement for the entire scope of the claim. MPEP 2163.03 (V) recites: “An original claim may lack written description support when… (2) a broad genus claim is presented but the disclosure only describes a narrow species with no evidence that the genus is contemplated.”
Here, the instant specification is narrow to static mass spectrometers and the sample being an isotope, with no evidence that the broader spectrometer and any sample was envisioned.
As in MPEP 2161.01 (I) “"The purpose of [the written description requirement] is to ensure that the scope of the right to exclude, as set forth in the claims, does not overreach the scope of the inventor’s contribution to the field of art as described in the patent specification"); LizardTech Inc. v. Earth Resource Mapping Inc., 424 F.3d 1336, 1345, 76 USPQ2d 1724, 1732 (Fed. Cir. 2005) ”.
This rejection may be overcome by amending claim 1 to include the limitations of claim 2 and 10.
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.
Claim 14 is 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 14 is vague and indefinite for reciting “a rate of the increase in the signal as a result of gas entering the ion source for.” It appears the claim is not fully drafted, it is unclear what the entire result is after “for”. No unambiguous determination can be made.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1-13 and 15-27 are rejected under 35 U.S.C. 103 as being unpatentable over Schwieters et al. (US pgPub 2017/0352528).
Regarding claim 1, Schwieters et al. teach a method of determining operational parameters of a spectrometer (determination of the equilibration period ([0026] of the mass spectrometer seen in figure 4)), wherein the spectrometer comprises an electron impact ion source (fig. 4, 30) operable in an ON mode in which a first set of operational parameters are applied (abstract t1, note figure 1 shows the ON mode from T0 and figure 6 sows the on mode from t1) and an OFF mode in which a second set of operational parameters are applied (off mode from t0 to t1 in figure 6 or off between multiple measurements (see paragraph [0059])), wherein the first set of operational parameters comprises a first electron energy and wherein the second set of operational parameters comprises a second electron energy (electron energy for ionization see abstract and either low electron energy until equilibration period or off or lower electron energy between measurements), the method comprising:
a) introducing a sample of gas into the ion source, wherein the gas has an ionisation potential below the first electron energy and above the second electron energy (inherent to figure 1, see paragraphs [0025]-[0026] “In some embodiments, the sample gas can be introduced to the ion source and spectrometer with an electron impact ionization energy above the ionisation potential of the gas and the ion (isotope) intensities can be followed with time to ascertain the point in time when the intensities follow a steady fit model with a generally stable negative slope (decreasing intensity). ”);
b) operating the ion source in the ON mode and measuring a signal produced by ionisation of the sample of gas during a first time period (fig. 1, t0 to teq);
c) operating the ion source in the OFF mode during a second time period (period starting after the measurement of figure 1);
d) determining, based on the signal measured during the first time period, an expected signal for ionisation of the sample of gas during a third time period ([0025] teaches intensity reaches maximum before it starts to follow a negative slope with a stable signal decay and a fit to the decay curve, thus decay fit determines the equilibration time (i.e. expected signal teq in figure 1). That is, the intensity at Teq);
e) operating the ion source in the ON mode and measuring a signal produced by ionisation of the sample of gas during the third time period (all time after end of determination of Teq is interpreted as third time, figure 6 operates in on mode at t1).
Scwieters et al. fails to disclose f) calculating a deviation between the measured signal for the third time period and the expected signal for the third time period; and g) based on the deviation, adjusting one or more of the second set of operational parameters.
However, Scwieters teaches the necessity for teq to be reached (see last two sentences of paragraph [0058]). Therefore, after teq is determined by measurement as suggested in paragraphs [0025]-[0026] and the “real sample” measurements are taken ([0025]). If the time teq is not accurate due to some mistake in the experiment or fitting model ([0025] teaches fitting model to determine equilibration time) a portion of fast rise 6 may occur in the real measurement (see annotated figure below). Note this interpretation is evident from paragraph [0059] which teaches a single measurement is prone to error, therefore a single measurement to determine teq is prone is also prone to error.
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Therefore, it would be obvious to one of ordinary skill in the art to again determine the equilibration time from the data of the real sample (actual teq above) and lengthening the poorly fitted teq by the deviation (i.e. calculating a deviation between measured signal (actual teq) and expected signal (poorly fitted teq)) and adjusting the time period of the t0-t1 for an additional real sample measurement because it would allow for a more accurate result where the entire sample may be measured. This is further evidenced by paragraph [0059] teaches that a single measurement is prone to error and that multiple measurements should be made so that a best fit line through them could be made. Therefore, as readily acknowledged by Scwieters, a single measurement such as discussed in paragraph [0025] may be prone to error resulting in an inaccurate teq. Thus it would have been obvious to one of ordinary skill in the art to calculate the deviation between an additional measurement and the previous one, when the teq was inaccurate and a longer time is necessary in the OFF state (i.e. adjusting the one or more of the set of operational parameters (time in off state)).
Regarding claim 2, Schwieters et al. teach wherein the spectrometer is a static gas mass spectrometer (abstract), wherein introducing the sample of gas into the ion source comprises introducing a fixed volume of the gas into the ion source ([0004]-[0005] teach very small amounts of noble gases and paragraph [0007] for ionization of sample gas).
Regarding claim 3, Schwieters et al. wherein introducing a sample of gas into the ion source comprises operating the ion source in the OFF mode during introduction of the sample of gas (in the actual measurement of real samples seen in figure 6 t0 to t1).
Regarding claim 4, Schwieters et al. wherein introducing a sample of gas into the ion source further comprises operating the ion source in the OFF mode during an initial period immediately following introduction of the sample of gas (fig. 6, t0-t1).
Regarding claim 5, Schwieters et al. wherein the ion source comprises a filament (fig. 5, 40) and a trap (trap electrode 50), wherein a filament current is regulated based on a trap current ([0030] teaches regulating a filament heating current to keep the temperature of the ionization source substantially the same during the first and second period, therefore any change to temperature because of the trap would result in the filament current in part being regulated based on the trap current).
Regarding claim 6, Schwieters teaches wherein the ion source further comprises an ionisation volume (35) and wherein the filament current is regulated based on a source current comprising the trap current and a box current from the ionisation volume (see discussion above, the filament is regulated so has to have a fixed temperature in the ionization source during the first and second time periods, thus any temperature change due to components would regulated by the filament current).
Regarding claim 7, Schwieters teaches wherein the filament current is regulated to maintain a current setpoint for the trap current or the source current, wherein the second set of operational parameters comprise the a current setpoint for the OFF mode ([0030] since the temperature of the ionization source is held constant, the temperature is interpreted to be the current setpoint. Further since claim 1 requires a set of operational parameters, the temperature for the off mode (i.e. t0-t1) is interpreted as one of them ).
Regarding claim 8, Schwieters teaches wherein the filament current is regulated to maintain a current setpoint for the trap current or the source current during the ON mode, wherein the filament current during the OFF mode is regulated to a set value, wherein the second set of operational parameters comprises the set value ([0030]).
Regarding claim 9, Schwieters teaches wherein adjusting one or more of the second set of operational parameters based on the deviation comprises identifying an initial deviation that changes over the course of the third time period towards a final deviation, determining a difference between the initial deviation and the final deviation and adjusting one or more of the second set of operational parameters based on the difference (repeating the obviousness statement in claim 1, when the second measurement does not result in an accurate teq).
Regarding claim 10, Schwieters teaches wherein the signal represents an abundance of an isotope of the ionised sample of gas ([0010] and figures 1 and 6).
Regarding claim 11, Schwieters teaches wherein determining an expected signal for ionisation of the sample of gas during a third time period comprises fitting the signal received during the first time period to an expected form, and time-shifting the fitted signal by the a duration of the second time period ([0025] not fitting to decay curve and time shifting (i.e. waiting time period for the real sample measurements)).
Regarding claim 12, Schwieters teaches wherein the expected form comprises a function that represents a decay of the signal over time, preferably an exponential decay, more preferably an exponential decay of the form f(t) = a exp(b t) ([0025] decay curve, as evidenced from the instant specification, this decay is defined by the claimed invention see page 1, lines 21-25 and page 8, lines 8-9 which teach this equation to define the decay curve).
Regarding claim 13, Schwieters teaches wherein determining an expected signal for ionisation of the sample of gas during a third time period further comprises adding an offset to the expected signal based on the a duration of the second time period to compensate for an increase in the signal as a result of gas entering the ion source during the second time period (repeating the obviousness statement in claim 1, when the second real measurement does not result in an accurate teq).
Regarding claim 15, Schwieters teaches wherein the signal represents an isotope ratio of two isotopes of the ionised ionized sample of gas (abstract).
Regarding claim 16, Schwieters teaches wherein determining an expected signal for ionisation of the sample of gas during a third time period comprises fitting the an isotope ratio over the course of the first time period to an expected form and determining an expected isotope ratio for the third time period, wherein fitting the isotope ratio to an expected form preferably comprises deriving a linear fit, and wherein determining an expected isotope ratio for the third time period preferably comprises determining an expected linear change in isotope ratio ([0025]-[0026]).
Regarding claim 17, Schwieters teaches wherein adjusting one or more of the second set of operational parameters comprises adjusting the one or more operational parameters by an offset determined based on a gradient of the deviation (obviousness statement above, wherein the adjustment of time would be a zero gradient from the incorrect teq to the correct teq).
Regarding claim 18, Schwieters teaches wherein steps "a" to "g" define a first cycle for adjusting one or more of the second set of operational parameters, wherein the method further comprises one or more further cycles for iteratively adjusting one or more of the second set of operational parameters, each further cycle comprising to following steps: d') determining, based on the signal measured during a first time period of the further cycle, an expected signal for ionisation of the sample of gas during a third time period of the further cycle, wherein the first time period of the further cycle is the third time period of an immediately preceding cycle; c') operating the ion source in the OFF mode during a second time period of the further cycle, wherein the adjusted second set of operational parameters are applied during the OFF mode of the further cycle; e) operating the ion source in the ON mode and measuring a signal produced by ionisation of the sample of gas during the third time period of the further cycle; f) calculating a deviation between the measured signal for the third time period of the further cycle and the expected signal for the third time period of the further cycle; and g) based on the deviation, adjusting one or more of the second set of operational parameters (repeating the cycle multiple times would be obvious if the equilibrium time is not accurate and repeating until an accurate time is achieved).
Regarding claim 19, Schwieters teaches wherein adjusting one or more of the second set of operational parameters in step "g" comprises adjusting one or more of the second set of operational parameters according to an adjustment step size, wherein a first adjustment step size is defined during a first round of the an iteration method, wherein the first round comprises the first sample fill cycle for adjusting one or more of the second set of operational parameters and optionally one or more immediately subsequent further cycles, wherein the iteration method further comprises one or more further rounds, wherein each further round comprises a cycle for adjusting one or more of the second set of operational parameters that immediately follows a last of cycle of the previous round and optionally one or more immediately subsequent cycles, and wherein an adjustment step size for each cycle of the further round is defined as a predetermined fraction of the adjustment step size the immediately preceding round (see discussion in claims 18 and 1 above)
Regarding claim 20, while Scheiters does not disclose wherein the predetermined fraction is between 30% and 50%, if the incorrect value was between 30% to 50% of the actual teq, such an adjustment time would have been obvious to correct the single measurement, which is prone to errors (see paragraph [0059]).
Regarding claim 21, Schwieters teaches wherein the iteration is stopped after a predetermined number of cycles (when the correct teq is determined).
Regarding claim 22, Schwieters teaches wherein the iteration is stopped when a difference between an initial deviation and a final deviation for a cycle is below a threshold (it would have been obvious to stop when teq is as seen in figure 1 is reached).
Regarding claim 23, Schwieters teaches wherein, if a signal value below a predetermined threshold is detected during a cycle, an immediately subsequent cycle comprises steps "a" to "g", as defined in claim 1 (as discussed in claim 1 it would be obvious to continue the cycle until the correct teq is reached).
Regarding claim 24, Schwieters teaches comprising determining a background signal caused by contaminants during the OFF mode of the ion source (fig. 6, any signal detected from t0-t1 would be background as the electron energy is set lower than ionization energy, see abstract).
Regarding claim 25, while Schwieters does not disclose operating the ion source in the OFF mode until the background signal falls below a threshold, Schwieters teaches at paragraph [0050] a strong vacuum for removal of undesired gases such as from a previous measurement, therefore it would have been obvious to one of ordinary skill in the art to use the vacuum between measurements (off mode) to exhaust gases from previous measurement before starting the next so as to avoid interferences in the measurement.
Regarding claim 26, Schwieters teaches mass spectrometer configured to perform the method of any preceding claim 1 (fig. 4).
Regarding claim 27, Schwieters teaches a computer-readable storage having stored thereon computer- executable instructions Computer software that, when executed by a processor, causes cause the processor to perform the method of claim 1 (implicit to 160 of figure 4, see paragraph [0052]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL J LOGIE whose telephone number is (571)270-1616. The examiner can normally be reached M-F: 7:00AM-3:00PM.
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/MICHAEL J LOGIE/Primary Examiner, Art Unit 2881
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