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 .
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) is/are:
“an illumination device” in claims 1-8 and 11
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.
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 § 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 (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 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.
Claim(s) 1 2, 6-8 and 11-13 are is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Small et al. (US 2018/0329194 A1).[claim 1]
Regarding claim 1, Small discloses an observation system comprising: an illumination device that illuminates an observation object with illumination light from a plurality of different directions (Figure 1, 100; different illumination angles 118 and 120); an imaging device that includes an objective that condenses light from the observation object and images the observation object with the light condensed by the objective (Figure 1, 102; Paragraph 0032); and a control unit (Figure 1, 106), wherein the control unit calculates a focus position of the imaging device based on a plurality of image groups acquired by the imaging device at observation positions different from each other in an optical axis direction of the objective, each of the plurality of image groups including a plurality of images of the observation object illuminated from directions different from each other by the illumination device (Figure 4; illuminating sample from multiple different directions in 40 and 406, capturing images in 404 and 408, determining a focus position and changing a distance between the sample and the focal plane based on the determination in 410-412; Paragraphs 0054-0060).[claim 2]
Regarding claim 2, Small discloses the observation system according to claim 1, wherein the control unit performs: shift amount calculation processing of calculating a shift amount between the plurality of images in a direction orthogonal to the optical axis of the objective based on the plurality of images (Figure 4, 410); and focus position calculation processing of calculating the focus position based on a plurality of shift amounts calculated in the shift amount calculation processing and corresponding to observation positions different from each other in the optical axis direction (Figure 4, 410 and moving the sample in 412).[claim 6]
Regarding claim 6, Small discloses the observation system according to claim 2, wherein the focus position calculation processing includes: processing of estimating an observation position where the shift amount is zero and processing of identifying the focus position based on the estimated observation position where the shift amount is zero (Paragraphs 0057-0059).[claim 7]
Regarding claim 7, Small discloses the observation system according to claim 1, wherein the control unit further performs image acquisition processing of controlling the illumination device and the imaging device to acquire the plurality of images by switching an illumination direction at each observation position (Figure 4, 402-408 and repeat if needed to control the illumination device to cause a plurality of different illumination conditions and capture images for each illumination condition).[claim 8]
Regarding claim 8, Small discloses the observation system according to claim 1, wherein the control unit further performs focus image acquisition processing of controlling the illumination device and the imaging device to acquire an image at the focus position (Paragraph 0059; capturing in-focus images).[claim 11]
Regarding claim 11, Small discloses the observation system according to claim 1, further comprising: a storage unit that stores information on a container that houses the observation object, wherein the control unit determines a range of the observation position in the optical axis direction based on the information on the container stored in the storage unit (Figure 1, 108; Paragraph 0035; note that the stored software in memory 108 controls operation of the controller 106, thus the calculation would be performed based on information stored in the memory, additionally note that the claim as written does not define the type or content of the stored information or limit how the determination is performed based on the stored information).[claim 12]
Claim 12 is a method claim corresponding to apparatus claim 1. Therefore, claim 12 is analyzed and rejected as previously discussed with respect to claim 1.[claim 13]
Regarding claim 13, see the rejection of claims 1 and 12 above and note that Small discloses implementing the claimed system/method using a non-transitory computer-readable medium storing a program as claimed (Paragraphs 0035, 0080-0081).
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.
Claim(s) 3 is/are rejected under 35 U.S.C. 103 as being unpatentable over Small et al. (US 2018/0329194 A1) in view of Official Notice.[claim 3]
Regarding claim 3, Small discloses an image shift amount calculation processing (see rejection of claim 2 above), but does not explicitly disclose processing of calculating a correlation between a plurality of regions, each of which is a portion of one of the plurality of images and processing of calculating the shift amount from a positional relationship between the plurality of regions where the correlation indicates a peak.
Official Notice is taken that it is well known in the art to determine image shifts by processing of calculating a correlation between a plurality of regions, each of which is a portion of one of the plurality of images; and processing of calculating the shift amount from a positional relationship between the plurality of regions where the correlation indicates a peak, e.g. normalized image cross-correlation. The use of a normalized image cross-correlation algorithm is a fundamental technique in image processing which provides robust and efficient determination of a shift amount between images.
Therefore, it would have been obvious to use a normalized image cross-correlation algorithm which calculates correlation between a plurality of regions and calculates a shift amount from a positional relationship between the plurality of regions where the correlation indicates a peak so that the shift amount may be determined using a standard, well understood image processing algorithm which robustly and efficiently determines the shift amount.
Allowable Subject Matter
Claims 4, 5, 9 and 10 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.[claims 4 and 5]
Regarding claims 4 and 5, the prior art does not teach or reasonably suggest the observation system according to claim 3, wherein the shift amount calculation processing further includes processing of calculating a correlation value at the peak, and the focus position calculation processing includes processing of calculating the focus position based on the plurality of shift amounts and a plurality of correlation values calculated in the shift amount calculation processing and corresponding to observation positions different from each other in the optical axis direction.
While Small in view of Official Notice teaches determining a correlation value and finding a peak to determine a shift amount, the combined system does not teach or reasonably suggest processing of calculating a correlation value at the peak, and the focus position calculation processing includes processing of calculating the focus position based on the plurality of shift amounts and a plurality of correlation values calculated in the shift amount calculation processing and corresponding to observation positions different from each other in the optical axis direction as claimed.
Specifically, while Small determines a shift amount to calculate a focus position, the focus position is not calculated based on the plurality of shift amounts and a plurality of correlation values calculated in the shift amount calculation processing and corresponding to observation positions different from each other in the optical axis direction as claimed.[claims 9 and 10]
Regarding claims 9 and 10, the prior art does not teach or reasonably suggest the observation system according to claim 2, wherein the illumination device includes a plurality of light sources provided at symmetrical positions with respect to the optical axis of the objective, and selectively causes the plurality of light sources to emit light to illuminate the observation object with the illumination light from the two symmetrical directions.
While Small discloses an illumination device including a plurality of light sources which cause illumination from a plurality of directions (Paragraphs 0036-0037), the prior art does not teach or reasonably suggest wherein the illumination device includes a plurality of light sources provided at symmetrical positions with respect to the optical axis of the objective, and selectively causes the plurality of light sources to emit light to illuminate the observation object with the illumination light from the two symmetrical directions as claimed.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. The following show additional observation systems comprising illumination devices and calculation of focus positions according to illumination from different directions:
Zheng US 10,477,097 B2
Lesham et al. US 2021/0149169 A1
Stoppe et al. US 2019/0302440 A1
Wadman US 2010/0208050 A1
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/Timothy J Henn/ Primary Examiner, Art Unit 2639