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 Arguments
Applicant’s arguments with respect to claim 1, have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
The Examiner agrees the amendments render the claim limitations no longer interpreted under 35 USC 112(f).
Claim Rejections - 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 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.
Claims 1, 3-6, 9, 13, and 15-17 are rejected under 35 U.S.C. 103 as being unpatentable over Ikeda (JP2003035650A), references to English machine translation, hereinafter “Ikeda”, and further in view of Tatarkiewicz et al. (US20170003214A1), hereinafter “Tatarkiewicz”, and Eikelmann et al. (US20110164245A1), hereinafter “Eikelmann”, and Tatarkiewicz (US20200300744A1), hereinafter “Tatarkiewicz II”.
Regarding claim 1, Ikeda teaches a particle size distribution measuring device (abstract, Fig. 1) comprising:
a measurement cell (ref 1, paragraph [0011]) including a sample accommodation space that accommodates a sample (ref S, paragraph [0010]) obtained by dispersing a plurality of particles in a dispersion medium (paragraphs [0010]-[0011]);
a stirring means that stirs the sample by sucking and discharging the sample in the sample accommodation space (Fig. 2, ref 26, paragraphs [0031]-[0032]);
a light source that irradiates the sample in the sample accommodation space with light (Fig. 1, ref 4, paragraph [0014]);
a detector that detects scattered light or fluorescent light generated from the sample irradiated with light (refs 8, 9, paragraph [0015]); and
a hardware processor that measures a particle size distribution of a particle group including the plurality of particles using a detection signal obtained by the detector (ref 24, paragraph [0024]).
Ikeda is silent regarding the detector being an imaging camera; measuring particle size distribution of a particle group including the plurality of particles using a detection signal obtained by the imaging camera; wherein the measurement cell includes a cuvette member including an internal space, and a block body accommodated in the internal space of the cuvette member, the sample accommodation space is formed in the block body, and wherein a suction/discharge port of the stirring means in located in the sample accommodation space.
However, Tatarkiewicz teaches a cuvette for optical microscopy (abstract, Fig. 3) including an imaging camera (paragraph [0035]); wherein the measurement cell includes a cuvette member (ref 25, paragraph [0035]) including an internal space (refs 50, 75, paragraphs [0035]-[0037]), and a block body (ref 28, paragraph [0035], Figs. 12A, 12B) accommodated in the internal space of the cuvette member (refs 50, 75, paragraphs [0035]-[0037]), the sample accommodation space is formed in the block body (refs 50, 75, paragraph [0037]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the device of Ikeda with the teaching of Tatarkiewicz by including an imaging camera; wherein the measurement cell includes a cuvette member including an internal space, and a block body accommodated in the internal space of the cuvette member, the sample accommodation space is formed in the block body in order to have a removable mixing chamber, making cleaning of the device easier, and one would use the imaging camera as a predicable use of a known device for the same particle measurement purpose.
Furthermore, Eikelmann teaches a cuvette for optical examination (abstract) including wherein a suction/discharge port of the stirring means in located in the sample accommodation space (paragraph [0020]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the device of Ikeda with the teaching of Eikelmann by including wherein a suction/discharge port of the stirring means in located in the sample accommodation space in order to allow the suction/discharge opening of Ikeda in the sample chamber of Eikelmann, allowing the suction/discharge stirring to act on the sample in a localized area of the measurement region.
And Furthermore, Tatarkiewicz II teaches optical measurement of size of particles including measuring particle size distribution of a particle group including the plurality of particles using a detection signal obtained by the imaging camera (paragraphs [0013]-[0014], [0077], ref 355, 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 combine the device of Ikeda with the teaching of Tatarkiewicz II by including measuring particle size distribution of a particle group including the plurality of particles using a detection signal obtained by the imaging camera in order to use the imaging camera as a predicable use of a known device for the same particle measurement purpose.
Regarding claim 3, Ikeda teaches wherein stirring of the sample by the stirring means and measurement of the particle size distribution by the analysis unit are repeated a plurality of times (paragraph [0032]).
Regarding claim 4, Ikeda teaches wherein the stirring means is configured using a pipette (ref 27, paragraph [0033]).
Regarding claim 5, Ikeda teaches further comprising an attachment jig that attaches the pipette to the measurement cell, wherein the pipette is held by the attachment jig such that a distal end of a tip of the pipette, which comprises the suction/discharge port, is located in the sample accommodation space (Fig. 2, ref 28, paragraph [0032]).
Regarding claim 6, Ikeda teaches wherein the attachment jig includes a guide mechanism that guides the suction/discharge port of the pipette to suck and discharge the sample toward a predetermined position in the sample accommodation space when the pipette is attached (Fig. 2, ref 38, paragraph [0032]).
Regarding claim 9, Ikeda teaches wherein the sample is a biological sample (the sample does not change the structure of the device; the device of Ikeda functions with a biological sample).
Regarding claim 13, Ikeda teaches a particle size distribution measuring device (abstract, Fig. 1) comprising: a measurement cell (ref 1, paragraph [0011]) including a sample accommodation space that accommodates a sample (ref S, paragraph [0010]) obtained by dispersing a plurality of particles in a dispersion medium (paragraphs [0010]-[0011]); a stirring means that stirs the sample by sucking and discharging the sample in the sample accommodation space (Fig. 2, ref 26, paragraphs [0031]-[0032]); a light source that irradiates the sample in the sample accommodation space with light (Fig. 1, ref 4, paragraph [0014]); a detector that detects scattered light or fluorescent light generated from the sample irradiated with light (refs 8, 9, paragraph [0015]); and a hardware processor that measures a particle size distribution of a particle group including the plurality of particles using a detection signal obtained by the light detection unit (ref 24, paragraph [0024]), an operation of suction and discharge of the sample by the stirring means (Fig. 2, ref 26, paragraphs [0031]-[0032]).
Ikeda is silent regarding a non-transitory computer readable medium storing a program; the program causing a computer to exhibit a function as a stirring operation control unit that controls an operation of suction and discharge, the detector being an imaging camera; measuring particle size distribution of a particle group including the plurality of particles using a detection signal obtained by the imaging camera; wherein the measurement cell includes a cuvette member including an internal space, and a block body accommodated in the internal space of the cuvette member, the sample accommodation space being formed in the block body, and wherein a suction/discharge port of the stirring means in located in the sample accommodation space.
However, it has been held that providing an automatic or mechanical means to replace a manual activity which accomplished the same result is not sufficient to distinguish over the prior art. In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958). Furthermore, the Examiner takes Official Notice that using a computer program to perform the above method is well-known in the art. One would include a non-transitory computer readable medium storing a program; the program causing a computer to exhibit a function as a stirring operation control unit that controls an operation of suction and discharge in order to rapidly perform analysis on samples without user input.
Furthermore, Tatarkiewicz teaches a cuvette for optical microscopy (abstract, Fig. 3) including an imaging camera (paragraph [0035]); wherein the measurement cell includes a cuvette member (ref 25, paragraph [0035]) including an internal space (refs 50, 75, paragraphs [0035]-[0037]), and a block body (ref 28, paragraph [0035], Figs. 12A, 12B) accommodated in the internal space of the cuvette member (refs 50, 75, paragraphs [0035]-[0037]), the sample accommodation space is formed in the block body (refs 50, 75, paragraph [0037]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the device of Ikeda with the teaching of Tatarkiewicz by including an imaging camera; wherein the measurement cell includes a cuvette member including an internal space, and a block body accommodated in the internal space of the cuvette member, the sample accommodation space is formed in the block body in order to have a removable mixing chamber, making cleaning of the device easier, and one would use the imaging camera as a predicable use of a known device for the same particle measurement purpose.
And furthermore, Eikelmann teaches a cuvette for optical examination (abstract) including wherein a suction/discharge port of the stirring means in located in the sample accommodation space (paragraph [0020]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the device of Ikeda with the teaching of Eikelmann by including wherein a suction/discharge port of the stirring means in located in the sample accommodation space in order to allow the suction/discharge opening of Ikeda in the sample chamber of Eikelmann, allowing the suction/discharge stirring to act on the sample in a localized area of the measurement region.
And furthermore, Tatarkiewicz II teaches optical measurement of size of particles including measuring particle size distribution of a particle group including the plurality of particles using a detection signal obtained by the imaging camera (paragraphs [0013]-[0014], [0077], ref 355, Fig. 5).
Regarding claim 15, Ikeda is silent regarding wherein the block body is made of a metal material.
However, Tatarkiewicz teaches wherein the block body is made of a metal material (paragraph [0045]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the device of Ikeda with the teaching of Tatarkiewicz by including wherein the block body is made of a metal material in order to have a reflecting backscatter chamber.
Regarding claim 16, Ikeda is silent regarding wherein an outer peripheral surface of the block body includes an irradiated surface that is irradiated with the light from the light source and a detected surface on which scattered light is detected by the imaging camera.
However, Tatarkiewicz teaches wherein an outer peripheral surface of the block body (Figs. 3, 4, ref 28, paragraph [0037]) includes an irradiated surface that is irradiated with the light (paragraph [0037]) from the light source (ref 20, paragraph [0037]) and a detected surface on which scattered light is detected by the imaging camera (ref 30, paragraphs [0035]-[0037])
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the device of Ikeda with the teaching of Tatarkiewicz by including wherein an outer peripheral surface of the block body includes an irradiated surface that is irradiated with the light from the light source and a detected surface on which scattered light is detected by the imaging camera in order to have a removable mixing chamber, making cleaning of the device easier.
Regarding claim 17, Ikeda is silent regarding wherein the irradiated surface and the detected surface are connected to each other on an intersection line between the irradiated surface and the detected surface.
However, It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to include wherein the irradiated surface and the detected surface are connected to each other on an intersection line between the irradiated surface and the detected surface as it has been held that the particular placement of an element in a measuring device was held to be an obvious matter of design choice. In re Kuhle, 526 F.2d 553, 188 USPQ 7 (CCPA 1975). One would choose the claimed configuration in order to have the light entry and scattered light detection surfaces at a normal corner, minimizing unwanted scattering at surfaces and corners, Tatarkiewicz, paragraph [0042].
Claims 2 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Ikeda, Tatarkiewicz, Eikelmann, and Tatarkiewicz II as applied to claim 1 above.
Regarding claim 2, Ikeda is silent regarding wherein the hardware processor controls a suction operation and a discharge operation by the stirring means.
However, it has been held that providing an automatic or mechanical means to replace a manual activity which accomplished the same result is not sufficient to distinguish over the prior art. In re Venner, 262 F.2d 91, 95, 120 USPQ 193, 194 (CCPA 1958). Furthermore, the Examiner takes Official Notice that using an operation control unit to perform the above method is well-known in the art. One would include wherein the hardware processor controls a suction operation and a discharge operation by the stirring means in order to rapidly perform analysis on samples without user input.
Regarding claim 8, Ikeda is silent regarding wherein a volume of the sample accommodation space is less than or equal to 10 μL.
However, it has been held that, where the only difference between the prior art and the claims was a recitation of relative dimensions of the claimed device and a device having the claimed relative dimensions would not perform differently than the prior art device, the claimed device was not patentably distinct from the prior art device. Gardner v. TEC Syst., Inc., 725 F.2d 1338, 220 USPQ 777 (Fed. Cir. 1984), cert. denied, 469 U.S. 830, 225 USPQ 232 (1984). One would choose the claimed dimensions in order to have smaller samples and not waste any sample. Having a smaller cell allows a smaller sample volume to mix and be analyzed.
Claims 10-12 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Ikeda (JP2003035650A), references to English machine translation, hereinafter “Ikeda”, and further in view of Tatarkiewicz et al. (US20170003214A1), hereinafter “Tatarkiewicz”, and Eikelmann et al. (US20110164245A1).
Regarding claim 10, Ikeda teaches a method of measuring a particle size distribution of a particle group including a plurality of particles in a sample accommodated in a measurement cell (abstract, Fig. 1), the method comprising:
a stirring step of stirring the sample by sucking and discharging the sample in the measurement cell (Fig. 2, ref 26, paragraphs [0031]-[0032]);
a light irradiation step of irradiating the sample in the measurement cell with light (Fig. 1, ref 4, paragraph [0014]);
a light detection step of detecting scattered light or fluorescent light generated from the sample irradiated with light (refs 8, 9, paragraph [0015]); and
an analysis step of measuring a particle size distribution of the particle group using a detection signal obtained by the light detection step (ref 24, paragraph [0024]).
Ikeda is silent regarding the measurement cell includes a cuvette member including an internal space and a block body accommodated in the internal space of the cuvette member, the sample being accommodated in a sample accommodation space is formed in the block body, and using a suction/discharge portion of the stirring means in located in the sample accommodation space.
However, Tatarkiewicz teaches a cuvette for optical microscopy (abstract, Fig. 3) including wherein the measurement cell includes a cuvette member (ref 25, paragraph [0035]) including an internal space (refs 50, 75, paragraphs [0035]-[0037]), and a block body (ref 28, paragraph [0035], Figs. 12A, 12B) accommodated in the internal space of the cuvette member (refs 50, 75, paragraphs [0035]-[0037]), the sample being accommodated in a sample accommodation space is formed in the block body (refs 50, 75, paragraph [0037]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the device of Ikeda with the teaching of Tatarkiewicz by including the measurement cell includes a cuvette member including an internal space and a block body accommodated in the internal space of the cuvette member, the sample being accommodated in a sample accommodation space is formed in the block body in order to have a removable mixing chamber, making cleaning of the device easier.
Furthermore, Eikelmann teaches a cuvette for optical examination (abstract) including using a suction/discharge portion of the stirring means in located in the sample accommodation space (paragraph [0020]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the device of Ikeda with the teaching of Eikelmann by including using a suction/discharge portion of the stirring means in located in the sample accommodation space in order to allow the suction/discharge opening of Ikeda in the sample chamber of Eikelman, allowing the suction/discharge stirring to act on the sample in a localized area of the measurement region.
Regarding claim 11, Ikeda teaches wherein the stirring step, the light detection step, and the analysis step are repeated a plurality of times for the same sample (paragraph [0032]).
Regarding claim 12, Ikeda discloses further comprising: a sample injection step of injecting the sample into the measurement cell using a pipette (paragraph [0031]); and wherein in the stirring step, the sucking and discharging of the sample is performed by pipetting using the pipette (paragraph [0031]), but is silent regarding an installation step of installing the pipette and the measurement cell at a predetermined measurement position.
However, Eikelmann teaches an installation step of installing the pipette and the measurement cell at a predetermined measurement position (paragraphs [0020], [0097]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the method of Ikeda with the teaching of Eikelmann by including an installation step of installing the pipette and the measurement cell at a predetermined measurement position in order to perform the optical analysis on a mixed sample.
Regarding claim 14, Ikeda teaches a kit for a particle size distribution measuring device that measures a particle size distribution of a particle group including a plurality of particles dispersed in a dispersion medium (abstract, Fig. 1), the kit comprising:
a measurement cell (ref 1, paragraph [0011]) including a sample accommodation space that accommodates a sample (ref S, paragraph [0010]) obtained by dispersing the particle group in a dispersion medium (paragraphs [0010]-[0011]); and
an attachment jig that attaches a pipette to the measurement cell such that a distal end of a tip of the pipette is located in the sample accommodation space (Fig. 2, ref 28, paragraph [0032]).
Ikeda is silent regarding the wherein the measurement cell includes a cuvette member including an internal space, and a block body accommodated in the internal space of the cuvette member, the sample accommodation space being formed in the block body, and wherein a distal end of the pipette is a suction/discharge port of the pipette configured for suction and discharge of the sample is located in the sample accommodation space.
However, Tatarkiewicz teaches a cuvette for optical microscopy (abstract, Fig. 3) wherein the measurement cell includes a cuvette member (ref 25, paragraph [0035]) including an internal space (refs 50, 75, paragraphs [0035]-[0037]), and a block body (ref 28, paragraph [0035], Figs. 12A, 12B) accommodated in the internal space of the cuvette member (refs 50, 75, paragraphs [0035]-[0037]), , the sample accommodation space being formed in the block body (refs 50, 75, paragraph [0037]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the device of Ikeda with the teaching of Tatarkiewicz by including wherein the measurement cell includes a cuvette member including an internal space, and a block body accommodated in the internal space of the cuvette member, the sample accommodation space being formed in the block body in order to have a removable mixing chamber, making cleaning of the device easier.
Furthermore, Eikelmann teaches a cuvette for optical examination (abstract, Figs. 4-5) including wherein a distal end of the pipette is a suction/discharge port of the pipette configured for suction and discharge of the sample is located in the sample accommodation space (paragraph [0020]).
It would have been obvious to one having ordinary skill in the art before the effective filing date of the claimed invention to combine the device of Ikeda with the teaching of Eikelmann by including wherein a distal end of the pipette is a suction/discharge port of the pipette configured for suction and discharge of the sample is located in the sample accommodation space in order to allow the suction/discharge opening of Ikeda in the sample chamber of Eikelman, allowing the suction/discharge stirring to act on the sample in a localized area of the measurement region.
Allowable Subject Matter
Claim 18 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Regarding claim 18, the prior art of record, taken either alone or in combination, fails to disclose or render obvious a particle size distribution measuring device, the device comprising, among other essential elements, wherein an irradiated opening is formed in the irradiated surface of the block body and a detected opening in the detected surface of the block body are covered by an inner peripheral surface of the cuvette., in combination with the rest of the limitations of claims 1, 16 and the above claim.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Harnack (US20110170094A1) teaches a similar pipette cuvette configuration and could be combined with prior art or record to render at least the independent claims obvious.
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 nonprovisional extension fee (37 CFR 1.17(a)) 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 mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DOMINIC J BOLOGNA whose telephone number is (571)272-9282. The examiner can normally be reached Monday - Friday 7:30am-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kara E Geisel can be reached at (571) 272-2416. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DOMINIC J BOLOGNA/Primary Examiner, Art Unit 2877
