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 .
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 07/22/2024, 02/17/2026 and 04/08/2026 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Election/Restrictions
Applicant’s election without traverse of group II, claims 24-26, 28, 30, 32, 34-36, 40 and 42 in the reply filed on 04/08/2026 is acknowledged.
Claims 1, 5-10, 12-14, 16, 18-20 and 22 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 04/08/2026.
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.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitation(s) are: a temperature measuring device in claims 24-26, 30, 32, 34, 36 and 40.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof. A review of the specification as filed shows that the following appears to be the corresponding structure(s), material(s), or act(s) described in the specification as filed for some of the 35 U.S.C. § 112(f) limitation: temperature measuring device: resistance temperature detector (see applicant’s specification at paragraphs 30 and 127).
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them 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.
Claims 24-26, 28, 30, 32, 34-36, 40 and 42 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.
Claim 24, recites “the instrument is configured to read the temperature recorded by the resistance temperature detector”. It is unclear however, how the instrument can read the temperature recorded by the resistance temperature detector without any structure or elements that are capable of receiving and reading temperature data.
Claims 25-26, 28, 30, 32, 34-36, 40 and 42 are dependent on claim 24 and are therefore, rejected for the same reason.
Claim 26 recites “the receptacle configured to receive a temperature measuring device has the temperature embedded in the light pipe”. It is unclear however, what is actually in embedded in the light pipe.
Claim 28 is dependent on claim 26 and is therefore, rejected for the same reason.
Claim 30 recites “wherein the container-shaped temperature measuring device has a bottle shape and wherein the container-shaped temperature measuring device comprises a plastic material, wherein the plastic material is doped or compounded with or implanted with at least one dye or pigment or compound that has a fluorescent emission spectrum within a first predetermined wavelength range when excited by light of a second predetermined wavelength range”.
It is noted that applicant’s specification defines the temperature measuring device as a resistance temperature detector and as having a bottle shape (see applicant’s specification at paragraph 127). The temperature measuring device is not described as comprising a receptacle 230. Applicant’s disclosure only provides examples of the resistance temperature detector as being immersed within the receptable 230, e.g., see Figs. 12A and 14A; embedded in the light pipe 417, e.g., see Figs. 10 and 11; and as a part of the top/cover of receptacle 230, e.g., see Fig. 13. Further, the instant drawings do not provide a depiction of the resistance temperature detector (RTD 501) as a bottle shape. As such, the temperature measuring device (resistance temperature detector) is interpreted as an element that is separate from receptacle 230. Therefore, it is unclear how the resistance temperature detector can be immersed within itself.
Claims 32, 34-36, 40 and 42 are dependent on claim 30 and are therefore, rejected for the same reason.
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.
Claims 24-25 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Kagayama et al. (hereinafter Kagayama) 2006/0141609.
Regarding claim 24, Kagayama discloses an instrument for blood culture incubation, the instrument comprising: a housing (culture space 202) [0041]; a rack (tray attaching unit 252 and tray receiving unit 254) disposed in the housing the rack comprising a plurality of rack receptacles (sample tray 550/552 and openings 568) for receiving a plurality of blood culture sample containers (containers 512/514) [0044, 0069, 0072-0073 and 0105]; at least one rack receptacle configured to receive a temperature measuring device (temperature sensor 644a/658); and wherein the temperature measuring device comprises a resistance temperature detector (in addition to the structure of the sample tray 550 and the container 512 of the first embodiment, the sample tray 552 and the container 513 of the third embodiment are provided with a temperature-measuring resistor 644a installed in a container main body 514 of the container 513) [0105]; wherein the instrument is configured to read the temperature recorded by the resistance temperature detector and from that temperature infer the temperature of a blood culture in a sample container (a control unit 645 used for controlling the heater 632 based upon information obtained from the temperature-measuring resistor 644a) [0105-0107].
Regarding claim 25, Kagayama discloses rises a controller, wherein the controller (control unit 645/659), when receiving a temperature from the temperature measuring device, compares such temperature to a set temperature, and, based upon the comparison, controls the temperature in the housing [0105-0107].
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.
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.
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 35 is rejected under 35 U.S.C. 103 as being unpatentable over US Kagayama 2006/0141609 as applied to claims 24-25 above.
Regarding claim 35, Kagayama does not expressly state that the resistance temperature detector is coupled to a cable comprising a contact strip, with contacts that are configured to electrically connect to corresponding spring contacts in electrical communication with a microprocessor (a control unit 420 such as a personal computer) [0118].
However, as interpreted by the examiner, the resistance temperature detector of Kagayama is implicitly coupled to a cable comprising a contact strip, with contacts that are configured to electrically connect to corresponding spring contacts in electrical communication with a microprocessor.
Alternatively, absent unexpected results, it would have been obvious to one of ordinary skill in the art, to provide a cable comprising a contact strip, with contacts that are configured to electrically connect to corresponding spring contacts in electrical communication with the microprocessor (control unit 420) of Kagayama, since resistance temperature detectors are well known as contact-type sensor in order to generate heat so that the temperature of the sample tray is positively controlled to an optimal temperature for cultured cells by the temperature sensor and the control unit.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LYDIA EDWARDS whose telephone number is (571)270-3242. The examiner can normally be reached on Monday-Wednesday 08:00-18:00 EST.
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/LYDIA EDWARDS/Primary Examiner, Art Unit 1796
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