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 .
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Therefore, instant claim 1 (lines 4, 7, 10), claim 3 (lines 3, 6), claim 7 (line 3), claim 9 (lines 6,11, 15) and claim 10 (lines 4, 7) use the word “step” and hence are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
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 10 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.
As to Claim 10, the instant claim recites the limitation "the headspace method" in line 5. There is insufficient antecedent basis for this limitation resulting in unclear scop of the claim.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1 - 12 are rejected under 35 U.S.C. 103 as being unpatentable over U.S. Patent Application Publication No. 2018/0187123 A1 to Clery et al. (hereinafter “Clery”) in view of U.S. Patent No. 7,619,212 B2 to Miyagawa (hereinafter “Miyagawa”).
Regarding Claims 1 and 9, Clery teaches a gas chromatograph analysis method for detecting a component contained in a sample gas by separating the component in a column (see paragraphs [0009], [0016] – [0022] describing the invention which utilizes Kovats retention index which is a measure in gas chromatography, and further describes collecting samples through head space equipment and further analyzing using techniques such as gas chromatography-mass spectrometry), the gas chromatograph analysis method comprising:
a sample collection step of collecting a sample gas from a solution containing an n-alkane, which is a reference compound of a retention index, by using a headspace method (see paragraph [0016] which states “the fraction of patchouli oil having a Kovats Retention Index on a DB-5 column of 1500 or lower can be obtained by trapping the head space above a sample of patchouli oil. Thereafter, the trapped headspace can be analyzed by GC olfactometry and/or GC mass-spectrometry” and see also paragraphs [0021] and [0023] which describe the Kovats Retention Index as a way to measure the retention time with respect to a “homologous series of n-alkane standards” and further states “A linear alkane hydrocarbon standard mix (C8-C22 available from Aldrich Chemical Company or equivalent) is injected and the retention time for each component is recorded”, hence reading on the invention as claimed);
a reference compound analysis step of introducing the sample gas collected in the sample collection step into the column and performing gas chromatograph analysis (see paragraph [0023] stating “A linear alkane hydrocarbon standard mix (C8-C22 available from Aldrich Chemical Company or equivalent) is injected and the retention time for each component is recorded”, hence reading on the invention as claimed); and
a retention time calculation step of obtaining an actually-measured retention time for the n-alkane on a basis of a chromatogram obtained by the gas chromatograph analysis performed in the reference compound analysis step (see paragraph [0023] stating “A linear alkane hydrocarbon standard mix (C8-C22 available from Aldrich Chemical Company or equivalent) is injected and the retention time for each component is recorded), and estimating a retention time of a compound to be analyzed from the actually-measured retention time and a known retention index of the compound to be analyzed (see paragraphs [0021] – [0024] describing the test sample being injected under the same conditions, and the retention time for each component of interest is recorded, and further utilizes Kovats Index calculation for each component of interest in the test sample using an equation having relation between the retention time of a peak substance and the number of carbon atoms in the alkane whose peak is adjacent to the peak of interest, thus reading on the invention as claimed).
Even though Clery teaches retention time calculation step as described above, Clery may be construed as not explicitly stating “estimating a retention time of a compound to be analyzed from the actually-measured retention time and a known retention index of the compound to be analyzed”.
Miyagawa, in the field of chromatographic analyzers, teaches that it is known to estimate a retention time of a compound to be analyzed from the actually-measured retention time and a known retention index of the compound to be analyzed (see Col. 4, lines 17 – 43, Col. 5, line 36 – Col. 6, line 54, describing estimating of a retention time of a peak of the intended component on the basis of an actual measurement value of the retention time of a reference component for correction and a method of estimating the retention time of the peak of an intended component on the basis of the information on the retention index of the intended component and further states “Therefore, when the retention index Ix of the intended component is known, it is possible to estimate the retention time of the peak of the intended component under the separation conditions F2 through the modification of Expression (2), or Expression (3)”, hence reading on the invention as claimed).
Therefore, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to incorporate estimation of retention time of a compound of Miyagawa into Clery, in order to allow correction of temporal parameters included in the data collection conditions and the processing conditions (see also additional advantages at Col. 4, lines 44 – Col. 5, line 2).
In addition, Clery in view of Miyagawa teach the additional limitations of Claim 9, in particular to the non-transitory computer-readable recording medium, the program causing a computer to execute the steps as recited in claim 9 (see Col. 7, lines 25 – 39 which states “The operation of the respective blocks that constitute the GC section 10 and the MS section 20 is fully controlled by a control section 33. The control section 33 and the data processing section 31 execute a given control/processing program on a personal computer 35 that is equipped with an operation section 36 and a display section 37, to thereby achieve the respective functions”, see also arrangement at Fig. 1 which includes the GC section 10, MS section 20 and control section 33, thus teaching on the invention as claimed). Furthermore, the limitation of “adjusting a retention time of the compound in a compound table which describes information on the compound to be analyzed” is thought by Clery in view of Miyagawa (see modification above, see abstract and Col. 3, lines 3 – 15 of Miyagawa describing “That is, a retention time of the peak of the unknown component is corrected on the basis of an actual measurement retention time of the peak of the known component, and the corrected retention time is subjected to a peak identification with reference to qualitative database, or the retention time that is recorded in the qualitative database is corrected, and the corrected value is used to perform the peak identification. In other words, after the chromatogram data has been acquired, a variation of the chromatogram in the time axial direction with respect to the acquired data is corrected, or a variation of the chromatogram in the time axial direction is corrected with respect to an analysis parameter for identifying the data”, see also Col. 4, lines 17 – 43, Col. 5, line 36 – Col. 6, line 54 of Miyagawa, hence reading on the invention as claimed).
Regarding Claim 2, Clery in view of Miyagawa as modified above teaches wherein in the retention time calculation step, a retention time in a compound table which describes information on the compound to be analyzed is adjusted using the estimated retention time of the compound to be analyzed (see modification above, see abstract and Col. 3, lines 3 – 15 of Miyagawa describing “That is, a retention time of the peak of the unknown component is corrected on the basis of an actual measurement retention time of the peak of the known component, and the corrected retention time is subjected to a peak identification with reference to qualitative database, or the retention time that is recorded in the qualitative database is corrected, and the corrected value is used to perform the peak identification. In other words, after the chromatogram data has been acquired, a variation of the chromatogram in the time axial direction with respect to the acquired data is corrected, or a variation of the chromatogram in the time axial direction is corrected with respect to an analysis parameter for identifying the data”, see also Col. 4, lines 17 – 43, Col. 5, line 36 – Col. 6, line 54 of Miyagawa, hence reading on the invention as claimed).
Regarding Claims 3 and 10, Clery in view of Miyagawa as modified above teaches further comprising: a component to be analyzed analysis step of performing gas chromatograph analysis on a sample gas collected from a target sample by using the headspace method (see paragraph [0016] which states “the fraction of patchouli oil having a Kovats Retention Index on a DB-5 column of 1500 or lower can be obtained by trapping the head space above a sample of patchouli oil. Thereafter, the trapped headspace can be analyzed by GC olfactometry and/or GC mass-spectrometry” of Clery); and
a peak identification step of identifying a peak detected in a chromatogram obtained by the component to be analyzed analysis step by using the retention time estimated or adjusted in the retention time calculation step (see paragraphs [0021] - [0024] of Clery and/or see also Col. 4, lines 17 – 43, Col. 5, line 36 – Col. 6, line 54 of Miyagawa, hence reading on the invention as claimed).
Regarding Claim 4, Clery in view of Miyagawa as modified above teaches wherein in the sample collection step, a container containing a solution obtained by dissolving the n-alkane in water is heated (see paragraphs [0021] - [0023] of Clery describing using a linear alkane hydrocarbon standard mix being injected and the chromatographic conditions having “a temperature program of 50° C. to 300° C. at 4° C. min., detector temperature 350° C., split injection at 300° C”, thus comprising an n-alkane solution that is heated).
Even though Clery teaches an n-alkane solution as described above, Clery does not explicitly teach dissolving the n-alkane in water. However, it would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to use water to dissolve the n-alkane as claimed, since it has been held to be within the general skill of a worker in the art to select a known material on the basis of its suitability for the intended use as a matter of obvious design choice. In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960).
In addition, Clery does not explicitly teach the solution heated to a temperature in a range of 10 to 99 0C. However, it would have been obvious to one having ordinary skill in the art to heat to a temperature range as claimed, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233 (CCPA 1955).
Regarding Claims 5 and 11, Clery in view of Miyagawa as modified above teaches wherein in the sample collection step, a container containing a trace amount of the n-alkane is heated (see paragraphs [0021] - [0023] of Clery describing using a linear alkane hydrocarbon standard mix being injected and the chromatographic conditions having “a temperature program of 50° C. to 300° C. at 4° C. min., detector temperature 350° C., split injection at 300° C”, thus comprising an n-alkane solution that is heated).
Clery does not explicitly teach the trace amount of the n-alkane heated to a temperature in a range of 150 to 220 0C. However, it would have been obvious to one having ordinary skill in the art to heat to a temperature range as claimed, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233 (CCPA 1955).
Regarding Claim 6, Clery in view of Miyagawa as modified above teaches wherein in the sample collection step, the container containing the trace amount of n-alkane is heated (see paragraphs [0021] - [0023] of Clery describing using a linear alkane hydrocarbon standard mix being injected and the chromatographic conditions having “a temperature program of 50° C. to 300° C. at 4° C. min., detector temperature 350° C., split injection at 300° C”, thus comprising an n-alkane solution that is heated).
Clery does not explicitly teach the trace amount of the n-alkane heated to a temperature in a range of 190 to 210 0C. However, it would have been obvious to one having ordinary skill in the art to heat to a temperature range as claimed, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233 (CCPA 1955).
Regarding Claims 7 and 11, Clery in view of Miyagawa as modified above teaches further comprising: a component to be analyzed analysis step of performing gas chromatograph analysis on a sample gas collected from a target sample by using the headspace method (see paragraph [0016] which states “the fraction of patchouli oil having a Kovats Retention Index on a DB-5 column of 1500 or lower can be obtained by trapping the head space above a sample of patchouli oil. Thereafter, the trapped headspace can be analyzed by GC olfactometry and/or GC mass-spectrometry” of Clery); and
a peak identification step of identifying a peak detected in a chromatogram obtained by the component to be analyzed analysis step by using the retention time estimated or adjusted in the retention time calculation step (see paragraphs [0021] - [0024] of Clery and/or see also Col. 4, lines 17 – 43, Col. 5, line 36 – Col. 6, line 54 of Miyagawa, hence reading on the invention as claimed).
Clery in view of Miyagawa teaches the claimed invention except for the headspace method at a temperature in arrange of 10 to 99 0C. However, it would have been obvious to one having ordinary skill in the art to use a headspace method at the temperature range as claimed, since it has been held that where the general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 105 USPQ 233 (CCPA 1955).
Regarding Claims 8 and 12, Clery in view of Miyagawa as modified above teaches wherein the compound to be analyzed is a compound related to a smell (see abstract and paragraphs[0001], [0009] - [0018] of Clery describing head space analysis of scents recreated by perfumes, hence reading on the invention as claimed).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. See PTO-892 form accompanying this office action which includes the following relevant art:
Mondello et al. (U.S. 2020/0264143 A1) teaches identification of unknown compounds by using retention index system in liquid chromatography. The invention further describes retention index system proposed by Kovats who suggested the use of a homologous series of standard compounds (i.e. n-alkanes) to fix the gas-chromatographic (GC) retention behavior of analytes eluting in the same region of the chromatogram.
Maeda et al. (U.S. 10,605,671 B2) teaches a gas chromatograph data processing device and the like that can estimate and calculate, from known retention indices measured by programmed-temperature analysis, a retention index or a retention time that would be measured by performing programmed-temperature analysis with any desired rate of temperature increase.
Kono et al. (U.S. 2014/0309946 A1) teaches a data processing device for gas chromatograph which includes an actually measured retention time storage part configured to store an actually measured retention time actually measured on a compound by isothermal analysis or temperature rising analysis in the state where a predetermined setting temperature condition is set to an oven, a predicted retention time storage part configured to store a predicted retention time calculated based on known data by the isothermal analysis on the compound and an assumed temperature condition assumed on a temperature condition in a column, and an actual temperature condition estimation part configured to estimate an actual temperature condition in the column on the basis of the actually measured retention time and the predicted retention time.
Kawana (U.S. 2010/0064770 A1) teaches gas chromatography apparatus capable of detecting abnormality, in which a reference retention index is obtained from a result obtained by analyzing a given substance and a retention-index reference substance under adequate analysis conditions using a normal column, and stored in a storage section. Further, under a condition that the apparatus can perform normal analysis, the given substance is subjected to GC analysis to obtain a reference retention time, and the obtained reference retention time is stored in the storage section.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MARRIT EYASSU whose telephone number is (571)270-1403. The examiner can normally be reached M - F: 9:00AM - 6:00PM.
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/MARRIT EYASSU/Primary Examiner, Art Unit 2855
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