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 .
Response to Amendments
Entry of Amendments
Claim(s) 2-16 have been amended.
Rejections under 35 USC 102 and 103
Applicant’s amendments filed 04/30/2026 with respect to Claim(s) 1-16 have been fully considered but they are not persuasive.
As to applicant(s) argument of “Applicant's independent claim 1 affirmatively requires two separate measurement events occurring at different times within the same physical waveguide…. In Wang's system, the reference and test materials are measured simultaneously in these parallel branches while the sample flows dynamically through a microfluidic channel …Regarding system claim 10 …describes a static, sealed sample chamber akin to a cuvette, designed to hold a stationary sample…Wang does not teach a sample holder with axial containment elements for static measurement.”, the Examiner respectfully disagrees. Both Applicant’s and Wang’s method/system involves separate measurement events with two samples, however, both claims are silent about the timing of those events regarding whether occurring at the same time or not. Hence, subject to broadest reasonable interpretation, the timing of the events was not considered for comparison. Regarding the same physical waveguide, Wang teaches embodiments of both dedicated waveguides for the reference and test measurement channels (fig. 1a) and shared waveguide for the measurement channels (fig. 1c). Hence, this cannot be considered a differentiating feature. Regarding static fluid vs dynamic fluid argument, Wang does not limit the system to dynamic flow only (see para. 40 - fluidic flow may be optional). Furthermore, In response to applicant' s argument that the references fail to show certain features of applicant' s invention, it is noted that the feature of “static measurement” upon which applicant relies (i.e., applicant' s argument of “sequential measurement” vs “static measurement”) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Based on above, Examiner believes Wang’s system teaches broadest reasonable interpretation of performing Applicant’s claimed 1, 10 method/system.
For further details see the rejections/objections for Claim(s) 1-16 herein.
Claim Objections
Claim(s) 15 are objected to because of the following informalities:
Claim(s) 15 recite a phrase “respective coaxial cables and respective coaxial cable/waveguide adapters”. Examiner suggests amending the phrase to recite “respective coaxial cables and respective waveguide adapters” to restore clarity.
Appropriate correction is required.
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(s) 10-16 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 pre-AIA the applicant regards as the invention. Claim(s) 10-16 claim both a device and the method by reciting “system configured to perform the method …” where dependent device claim(s) 10-16 depend on an independent method claim 1. A single claim which claims both an apparatus and the method steps of using the apparatus is indefinite. Such a claim is directed to neither a “process” nor a “machine,” but rather embraces or overlaps two different statutory classes of invention. See In re Katz Interactive Call Processing Patent Litigation, 639 F.3d 1303, 1318, 97 USPQ2d 1737, 1748-49 (Fed. Cir. 2011). In Katz, a claim directed to "[a] system with an interface means for providing automated voice messages…to certain of said individual callers, wherein said certain of said individual callers digitally enter data" was determined to be indefinite because the italicized claim limitation is not directed to the system, but rather to actions of the individual callers, which creates confusion as to when direct infringement occurs. Katz, 639 F.3d at 1318, 97 USPQ2d at 1749 (citing IPXL Holdings v. Amazon.com, Inc., 430 F.3d 1377, 1384, 77 USPQ2d 1140, 1145 (Fed. Cir. 2005), in which a system claim that recited "an input means" and required a user to use the input means was found to be indefinite because it was unclear "whether infringement … occurs when one creates a system that allows the user [to use the input means], or whether infringement occurs when the user actually uses the input means."); Ex parte Lyell, 17 USPQ2d 1548 (Bd. Pat. App. & Inter. 1990) (claim directed to an automatic transmission workstand and the method of using it held ambiguous and properly rejected under 35 U.S.C. 112, second paragraph).
In contrast, when a claim recites a product and additional limitations which focus on the capabilities of the system, not the specific actions or functions performed by the user, the claim may be definite under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. See Mastermine Software, Inc. v. Microsoft Corp., 874 F.3d 1307, 124 USPQ2d 1618 (Fed. Cir. 2017). (MPEP § 2173.05(p)II).
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Appropriate correction is required.
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 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) 1-7 and 10-12 are rejected under 35 U.S.C. 102(a)(1) and 102(a)(2) as being anticipated by Wang et al. (US 20150035546; hereinafter Wang).
Regarding claim 1, Wang discloses in figure(s) 1-11 a method for detecting a viral agent (para. 4 – measuring viruses) comprising the steps of:
a) placing a first sample comprising an aqueous solution into a waveguide (para. 28 - Cells or particles to be analyzed are passed through a microfluidic channel across waveguides corresponding to reference branch; reference cell in figs. 1), which is axially delimited by a pair of containment elements that are substantially transparent to the microwaves and define respective interfaces of the sample (para. 40 - lower h.sub.3 layer can be constructed from various materials including, without limitation, glass, quartz and/or silicon. The signal line portion of a coplanar waveguide is illustrated with width W while gaps of width G are provided between the signal line and coplanar ground or reference conductors; fig. 6);
b) transmitting a signal (signal @ port 1) with frequency variable in a predetermined microwave band to the first sample (para. 4 - sensors usually operate at transmission, reflection, or resonance modes. RF sensors that cover a broad frequency range have low sensitivities. Those that have high sensitivities use resonators and operate at single frequencies or limited frequency points);
c) acquiring at least one dielectric parameter of the first sample as the frequency varies by means of transmission and reflection measurements (paras. 9,41 - dielectric spectroscopy (DS) methods for analyzing cells and particles in order to obtain information relating to characteristics of such cells and particles … effective permittivity of the h.sub.2 channel can be computed; reference measurement signal @ port 2; figs. 1,4,7, 9-10);
d) placing a second sample into the waveguide (para. 28 - Cells or particles to be analyzed are passed through a microfluidic channel across waveguides corresponding to test branch; test DUT/MUT in figs. 1);
e) transmitting said signal (signal @ port 1) to the second sample (test cell);
f) acquiring the corresponding dielectric parameter of the second sample as the frequency varies by means of transmission and reflection measurements (paras. 9,41 - dielectric spectroscopy (DS) methods for analyzing cells and particles in order to obtain information relating to characteristics of such cells and particles … effective permittivity of the h.sub.2 channel can be computed; test measurement signal @ port 2; figs. 1,4,7, 9-10); and
g) performing a differential spectroscopic analysis on said parameters (dielectric spectrometers) for assessing the presence of a viral agent (para. 4 – measuring viruses; para. 9 - detect the presence of parasitized cells for diagnosis of, for example, malaria or other illnesses in an individual) in at least one of said first sample and second sample (paras. 4,6 - When a material is introduced into a resonant cavity, the cavity field distribution and resonant frequency are changed).
Regarding claim 2, Wang discloses in figure(s) 1-11 Method as claimed in claim 1, wherein the band range is 26 GHz to 40 GHz (para. 30 - sensors each operating in different bands may be employed, such as from 20 MHz-1 GHz, 1 GHz-18 GHZ, and 18 GHz to 40 GHz).
Regarding claim 3, Wang discloses in figure(s) 1-11 Method as claimed in claim 1, wherein the c) and f) steps comprise measuring transmission and reflection scattering parameters (para. 35 - VNAs have two test ports permitting measurement of four scattering parameters or S-parameters; figs. 3-4).
Regarding claim 4, Wang discloses in figure(s) 1-11 Method as claimed in claim 3, wherein steps b), c), e) and f) are implemented by means of a vector network analyser (2) comprising at least two ports connected to respective ports of the waveguide (vna with 2 ports in figs. 1).
Regarding claim 5, Wang discloses in figure(s) 1-11 Method as claimed in claim 3, wherein step c) and f) comprise calculating said dielectric parameters based on the measured scattering parameters (para. 48 - best |S.sub.21|.sub.min is at approximately 6 GHz with Q.sub.eff approximately 3.times.10.sup.6, which is much higher than that reported for dielectric resonators. such a Q.sub.eff value is also comparable with that of the optical dielectric resonators, which have been developed for single molecule and single nanoparticle measurements; figs. 3-4, 9-10).
Regarding claim 6, Wang discloses in figure(s) 1-11 Method as claimed in claim 5, wherein calculating the dielectric parameters of the first sample and the second sample comprises the step of determining the actual reflection (Sii and Sjj) and transmission (Sij and Sji) scattering parameters at the interfaces of the samples starting from the measured reflection (sii and sjj) and transmission (sij and sji) scattering parameters measured based on a model wherein the containment elements are represented by empty portions of the waveguide (para. 35 - VNAs have two test ports permitting measurement of four scattering parameters or S-parameters (S.sub.11, S.sub.21, S.sub.12, S.sub.22); fig. 2; para. 46 - no cell present (P.sub.A); figs. 3,7).
Regarding claim 7, Wang discloses in figure(s) 1-11 Method as claimed in claim 6, wherein calculating the dielectric parameters comprises the steps of:
determining a reflection coefficient F at the sample interfaces and a propagation factor P of the sample (para. 4 - sensors usually operate at transmission, reflection, or resonance modes; abs. - interferometers can be configured to measure a plurality of scattering parameters; para. 44 - propagation constant .gamma. can be determined);
determining an attenuation constant and a propagation constant of the sample (para. 47 - interferometers may be configured to operate in different frequency ranges and may be "tuned" by respective attenuators and phase shifters in order to obtain significantly more cell information based on harmonic frequencies produced by the multi-frequency EPR sensors; para. 5 - dielectric resonators that operate with whispering-galley-modes have reported high quality factors);
deriving a relative dielectric permittivity (sr) and a loss tangent (tana) of the sample (para. 45 - propagation constant can be used to determine the real and imaginary components of the permittivity of the particle .epsilon..sub.eff=.epsilon.'.sub.eff-j.epsilon.''.sub.eff as well as the real and imaginary components of the permeability of the particle .mu..sub.eff=.mu.'.sub.eff-j.mu.''.sub.eff.; para. 5 - quality factor can be significantly reduced when lossy material-under-test (MUT), such as biochemical liquids, are introduced).
Regarding claim 10, Wang discloses in figure(s) 1-11 a system for the detection of a viral agent according to the method claimed in claim 1, comprising
a vector network analyser (VNA) (2) equipped with at least two ports (P1, P2), a sample holder (3) and two transmission lines (5) connecting the ports (P1, P2) of the VNa (2) to the sample holder (3) (vna with reference and test branch transmission lines in fig. 1b),
wherein the sample holder (3) is provided with a through cavity (8) configured to contain a sample (4) to be tested and defining a waveguide (9), and comprises a pair of containment elements (12) that are substantially transparent and delimit the cavity (8) axially (abs., para. 40 - tunable interferometers, wherein cells or particles to be analyzed are passed through a channel, such as a microfluidic channel, across waveguides corresponding to reference and test branches of the interferometers… measurement channel constructed from various materials including, without limitation, glass, quartz and/or silicon; figs. 1).
Regarding claim 11, Wang discloses in figure(s) 1-11 System as claimed in claim 10, wherein the waveguide (9) has a rectangular cross section. (figs. 1a,6).
Regarding claim 12, Wang discloses in figure(s) 1-11 System as claimed in claim 10, wherein the waveguide (9) is a WR28 type operating in a frequency band ranging from 26 GHz to 40 GHz (para. 30 - sensors each operating in different bands may be employed, such as from 20 MHz-1 GHz, 1 GHz-18 GHZ, and 18 GHz to 40 GHz).
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 of this title, 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) 8 are rejected under 35 U.S.C. 103 as being unpatentable over Wang in view of Facer et al. (US 20030072549).
Regarding claim 8, Wang teaches in figure(s) 1-11 Method as claimed in claims 6,
Wang does not teach explicitly wherein calculating the dielectric parameters comprises the step of calculating a sample impedance assuming a reflection coefficient F at the sample interferences equivalent to the actual reflection scattering parameters.
However, Facer teaches in figure(s) 1-8 wherein calculating the dielectric parameters comprises the step of calculating a sample impedance assuming a reflection coefficient F at the sample interferences equivalent to the actual reflection scattering parameters (para. 14 - network analyzer that determines the sample impedance from transmission and reflectance parameters across the gap in the inner conductor in the frequency range of e.g., 45 MHz to 40 GHz).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the teachings of Wang by having wherein calculating the dielectric parameters comprises the step of calculating a sample impedance assuming a reflection coefficient F at the sample interferences equivalent to the actual reflection scattering parameters as taught by Facer in order to provide derived measurements based on Scattering and dielectric parameters as evidenced by "A coplanar waveguide for use in dielectric spectroscopy of biological solution…the waveguide is coupled to a network or impedance analyzer by means of appropriate connectors and the response of the biological solution to the input signals is recorded…Microwave data at frequencies above 45 MHz are phase sensitive transmission and reflectance coefficients, also known as "S-parameters," that may be obtained using a Hewlett-Packard 8510C vector network analyzer, for example. The S-parameters can then be used to derive impedance data." (abstract, para. 43).
Claim(s) 9 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Wang in view of Link et al. (US 20080014589).
Regarding claim 9, Wang teaches in figure(s) 1-11 Method as claimed in claim 1,
Wang does not teach explicitly wherein the first sample is an isotonic buffer solution, preferably a phosphate-buffered saline.
However, Link teaches in figure(s) 1-37 wherein the first sample is an isotonic buffer solution, preferably a phosphate-buffered saline (para. 118 - droplet forming liquid is typically an aqueous buffer solution, such as phosphate buffer saline PBS).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the teachings of Wang by having wherein the first sample is an isotonic buffer solution, preferably a phosphate-buffered saline as taught by Link in order to provide "Any liquid or buffer that is physiologically compatible, with the population of molecules, cells or particles to be analyzed and/or sorted can be used" (para. 118).
Regarding claim 13, Wang teaches in figure(s) 1-11 System as claimed in claim 10,
Wang does not teach explicitly wherein the containment elements (12) comprise adhesive films.
However, Link teaches in figure(s) 1-37 wherein the containment elements (12) comprise adhesive films (para. 183 - tubes and interconnects can be placed in position by applying a UV-cured adhesive).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the teachings of Wang by having wherein the containment elements (12) comprise adhesive films as taught by Link in order to provide "allow for holding the tubes in place on the silicone wafer" (para. 183).
Claim(s) 14 are rejected under 35 U.S.C. 103 as being unpatentable over Wang in view of Ghasr et al. (US 20150077138).
Regarding claim 14, Wang teaches in figure(s) 1-11 System as claimed in claim 10,
Wang does not teach explicitly wherein the sample holder (3) comprises a perimeter flange (10) for connection to the transmission lines (5).
However, Ghasr teaches in figure(s) 1-9 wherein the sample holder (3) comprises a perimeter flange (10) (106; fig. 1) for connection to the transmission lines (5).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the teachings of Wang by having wherein the sample holder (3) comprises a perimeter flange (10) for connection to the transmission lines (5) as taught by Ghasr in order to provide " an edge of flange 106, is more prominent for a conductor-backed dielectric sheet or layered composites because the combination of the flange and the conductor backing of the sample creates a parallel plate transmission line guiding the electromagnetic wave to the edges of the flange" (para. 42).
Claim(s) 15 are rejected under 35 U.S.C. 103 as being unpatentable over Wang in view of Ghasr and further in view of Obeng et al. (US 20220136967).
Regarding claim 15, Wang in view of Ghasr teaches the system as claimed in claim 14,
Wang does not teach explicitly wherein the transmission lines (5) comprise respective coaxial cables and respective coaxial cable/waveguide adapters (13).
However, Obeng teaches in figure(s) 1-7 wherein the transmission lines (5) comprise respective coaxial cables and respective coaxial cable/waveguide adapters (13) (para. 54 - Probe antennas 504a-b are further coupled via a connector, such as a coaxial cable, to a signal source connected to a first port and signal detector connected to a second port of a microwave frequency response analyzer 508; para. 53 - signal path architecture include coaxial cable, microstrip, stripline, coplanar waveguide, slotline, suspended substrate; fig. 5).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the teachings of Wang by having wherein the transmission lines (5) comprise respective coaxial cables and respective coaxial cable/waveguide adapters (13) as taught by Obeng in order to provide a matter of design choice as evidenced by "coplanar waveguide is coupled to the signal generator and signal analyzer by means of SMA connectors." (para. 14).
Claim(s) 16 are rejected under 35 U.S.C. 103 as being unpatentable over Wang in view of Seyama et al. (US 20230011235).
Regarding claim 16, Wang teaches in figure(s) 1-11 System as claimed in claim 10,
Wang does not teach explicitly wherein the cavity (8) has an axial length ranging from 2 to 5 mm.
However, Seyama teaches in figure(s) 1-7 wherein the cavity (8) has an axial length ranging from 2 to 5 mm (para. 34 - h=2 mm and w=3 mm; figs. 1,4).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to modify the teachings of Wang by having wherein the cavity (8) has an axial length ranging from 2 to 5 mm as taught by Seyama in order to provide a matter of design choice as evidenced by "A dielectric spectrometer includes an apparatus main body including a dielectric and in which a flow channel is formed and a probe including a high frequency line." (abstract).
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to AKM ZAKARIA whose telephone number is (571)270-0664. The examiner can normally be reached on 8-5 PM (PST).
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, JUDY NGUYEN can be reached on 571-272-2258. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/AKM ZAKARIA/
Primary Examiner, Art Unit 2858
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