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 .
Specification
Applicant is reminded of the proper language and format for an abstract of the disclosure.
The abstract should be in narrative form and generally limited to a single paragraph on a separate sheet within the range of 50 to 150 words in length. The abstract should describe the disclosure sufficiently to assist readers in deciding whether there is a need for consulting the full patent text for details.
The language should be clear and concise and should not repeat information given in the title. It should avoid using phrases which can be implied, such as, “The disclosure concerns,” “The disclosure defined by this invention,” “The disclosure describes,” etc. In addition, the form and legal phraseology often used in patent claims, such as “means” and “said,” should be avoided.
The abstract of the disclosure is objected to because the abstract exceeds the word limit. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “reflection portion” (claims 8-10) must be shown or the feature(s) canceled from the claim(s). The reflection portion is not represented by any reference numeral or labeling in the figures. No new matter should be entered.
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.
Claim Interpretation
Content of Specification
(k) CLAIM OR CLAIMS: See 37 CFR 1.75 and MPEP § 608.01(m). The claim or claims must commence on a separate sheet or electronic page (37 CFR 1.52(b)(3)). Where a claim sets forth a plurality of elements or steps, each element or step of the claim should be separated by a line indentation. There may be plural indentations to further segregate subcombinations or related steps. See 37 CFR 1.75 and MPEP 608.01(i)-(p).
The claimed invention is defined by the positively claimed elements, the structural elements listed on separate indented lines listed in the body of the claim after the transitional phrase, “comprising”.
A claim is only limited by positively claimed elements. Thus, "[i]nclusion of the material or article worked upon by a structure being claimed does not impart patentability to the claims”. MPEP 2115 Material or Article Worked Upon by Apparatus.
It is noted that although the claims mention an external server, the server is not claimed as an element of the apparatus, but is considered as an article intended be, can be used with the apparatus.
It is noted that the phrases “accommodating”; “in which”; and “irregularly arranged in” do not provide for, require any structural connectivity nor any definitive relative location of any structures.
As to the apparatus claims, it is noted that no process steps such as attaching, culturing, photographing, irradiating, recognizing, filling, moving, reflecting, controlling, receiving, determining, displaying, etc. are required to be performed. The apparatus is defined by the positively claimed structural elements not by any process steps. It is presumed that the phrase “attached to and cultured on” is directed to what has already been done to the plurality of cells.
It is noted that the term “or” provides for alternatives. Only one alternative is required.
It is noted that the method claim 16, does not require any culturing step.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-16 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 applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
As to claim 1, it is unclear where the preamble ends and the listing of the elements that define the apparatus begins. It is unclear what the term “comprising” in line 1 is directed to the cells or the apparatus because the claim does not clearly recite such. It is unclear what is the nexus of “a movable image photographing device” recited in lines 1-2 and “an image photographing device” recited in paragraph 2. If such are one in the same, that recited in lines 1-2 appears to be unnecessary.
As to claims 1, 4, and 11-15, it is unclear which/what image photographing device is being referenced by “the image photographing device” because there are two such devices previously mentioned in claim 1 as noted above.
The term “irregularly arranged” in claims 1, 4-10, and 16 is a relative term which renders the claims, indefinite. The term “irregularly arranged” is not defined by the claims, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. There is no indication as to what is required of the plurality of light-transmitting attachment members (not defined as being any specific structure(s) in the claim. It is unclear what is structurally required by the term because the claims do not clearly recite such. What may be considered as “irregularly arranged” to one person may not be considered as such to another and vice versa.
As to claims 1 and 16, it is unclear what is the structural connectivity of the housing, light transmitting culture vessel, plurality of light-transmitting attachment members, image photographing device, and light source because the claim does not clearly recite such. The terms “accomodating”, “irregularly arranged in”, “movable within”, “configured to photograph…”, “to allow…” and similar clauses recited throughout the claims do not provide for nor require any structural connectivity of the positively claimed structural elements to each other. A list of structures that are not required to be structurally connected are not considered as a single apparatus.
As to claim 1, if the cell culture medium is required for the culturing of the plurality of cells as indicated in claim 2, it is unclear how the plurality cells are cultured in claim 1 because the cell culture medium is not claimed as being present in the culture vessel in claim 1.
Claims 2-15 are rejected via dependency upon a rejected claim.
As to claim 2, it is presumed that it is intended for the culture vessel to contain and be filled with a cell culture medium and the plurality of cells are located, submerged within the cell culture medium. If so, then it is suggested that the claim be amended to clearly recite such.
It is unclear what is further structurally required by claims 3-5 because the claims do not provide for any additional structural elements nor further structure of any prior positively claimed structural element.
Claim 3 is directed to a possible use of the housing. However, there is no indication as to what temperature range is required for any culturing of any specific cells to occur. Furthermore, although no culturing is required to be performed, it is noted that there is no cell culture medium positively claim such that the plurality of cells can be cultured. What is possible is not a structural element of the apparatus.
The configured to… clause of claim 4 is directed to what the image photograph device can be used to do.
Claim 5 is directed to a possible process step of using the light source.
As to claim 7, it is unclear how a second light source is present without a first light source being previously claimed as an element.
As to claims 8-10, it is unclear what is the structural connectivity of the reflection portion (not defined as being any specific structure(s)) to prior positively claimed elements because the claims do not provide for such. The claims are directed to uses of the reflection portion. The reflection portion is not currently performing any reflecting. It is noted that “an irradiation angle range of the light source” is not structure nor structurally defined in the claim such that only definitively determine what is required to be considered as such. Furthermore, the term “opposite” does not provide for any structural connectivity nor any definitive relative structural location. Any two structures can be considered as being “opposite” of each other.
As to claims 11-15, it is unclear what is the structural connectivity of the controller and display portion (each not defined as being any specific structures) to the prior positively claimed elements of claim 1 because the claims do not provide for such. The configured to clause of claim 11 does not provide for nor require any structural connectivity of the controller to the image photographing device and light source.
As to claim 12, it is unclear if the external server is intended to be claimed as an element of the apparatus. As presently drafted, such external server is not positively claimed as an element of the apparatus because reciting that the prior claimed controller is connected to the external server (not previously claimed as an element of the apparatus) does not require the external server to be an element of the apparatus.
Furthermore, it is unclear what the server is required to be external to because the claim does not clearly recite such. A structure is external to anything it is not located within. It is presumed that the server 190 is external of the apparatus 100. Therefore, such is not an element of the apparatus. Therefore, it is unclear how references to the external server further structurally limits/defines the apparatus. Reciting what the unclaimed server can do does not further structurally define the apparatus.
It is noted that method claim 16 employs the same or similar language as claim 1. Therefore, applicant should see applicable remarks and rejections directed to claim 1.
As to claim 16, it is unclear what includes a moveable image photographing device referenced in in lines 1-2. It is unclear what is the nexus of “a movable image photographing device” recited in lines 1-2 and “an image photographing device” recited in the paragraph beginning with “photographing” if such are the same or different. As presently drafted, such are not required to be the same.
As to claim 16, it is unclear which/what image photographing device is being referenced by “the image photographing device” because there are two such devices previously mentioned in the claim as noted above.
Claim Rejections - 35 USC § 102
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) 1-16 is/are rejected under 35 U.S.C. 102(a)(1),(a)(2) as being anticipated by OLSZOWY; Michael W. et al., US 2022/0318668.
Olszowy discloses an apparatus (400) for observing cells for example as illustrated in Figure 5. The apparatus comprises a housing (410) and a light transmitting culturing vessel (plate 10) in the housing. The module 402 includes LED excitation light sources 450A and 450B (light source, including first and second light sources) which emit light at different wavelengths, such as 453-486 nm and 546-568 nm, respectively. The optics module 402 could be configured with a third LED excitation light source (not shown) which emits light at a third wavelength, such as 648-674 nm, or even a fourth LED excitation source at a fourth different wavelength. The light from the LEDs 450A and 450B passes through narrow bandpass filters 452A and 452B, respectively, which pass light at particular wavelengths that are designed to excite fluorophores in the cell culture and virus medium (culture medium in which cells are submerged, cells attached to virus particles (or other members such as antibodies, labels, markers, etc.)…irregularly arranged attachment members ). The light passing through the filter 452A reflects off a dichroic 454A and reflects off dichroic mirror 454B and is directed to an objective lens 460, e.g., a 20× magnifying lens. Light from LED 450B also passes through the filter 452B and also passes through the dichroic mirror 454B and is directed to the objective lens 460. The excitation light passing through the lens 460 then impinges on the bottom of the plate 10 and passes into the medium 404. In turn, emissions from the fluorophores in the sample pass through the lens 460, reflect off the mirror 454B (reflecting portion, claims 8-10) , pass through the dichroic 454A, and pass through a narrow band emission filter 462 (filtering out non-fluorescence light) and impinge on a digital camera 464 (image photographing device), which may take the form of a charge coupled device (CCD) or other type of camera currently known in the art and used in fluorescence microscopy. A motor system 418 (controller) then operates to move the entire optics module 402 (including the imaging device) in the X, Y and optionally Z directions. (paragraph 0033). The motor system 418 can be configured such that it moves in the X and Y directions below the plate 404 such that the optical path of the fluorescence optics module 402 and the objective lens 460 is placed directly below each of cell cultures in the various wells 10 of the plate 404. (paragraph 0034).
As to claims 11-15, the instrument comprises a processing unit (controller) (paragraph 0010, 90, 114-115) and a workstation 24 (controller that can be connected to a server) including a display (paragraphs 0023, 28, 30, 82).
As to claim 16, the seps are apparent from the teachings of the reference stated above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. HONDA; Shoichi et al.; SAKAMOTO; Masaru et al.; Blanchard; Alan; MATSUMOTO; Junichi et al.; Floto; Timothy A. et al.; KATO; YUMIKO et al.; KINDAICHI; Takeshi; OLSZOWY; Michael W. et al.; NOZAKI; Takayuki et al.; WAGNER; Matthias et al.; Bittner; Martin-Immanuel et al.; SAKAMOTO; Masaru; Wilson; David F. et al.; and Kusuura; Takahisa disclose cell imaging devices and methods of use.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRIAN R GORDON whose telephone number is (571)272-1258. The examiner can normally be reached M-F, 8-5:30pm; off every other Friday..
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Charles Capozzi can be reached at 571-270-3638. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/BRIAN R GORDON/Primary Examiner, Art Unit 1798
