FINAL OFFICE ACTION
This application has been assigned or remains assigned to Technology Center 1700, Art Unit 1774 and the following will apply for this application:
Please direct all written correspondence with the correct application serial number for this application to Art Unit 1774.
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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 .
Election/Restriction Requirement
Nonelected claims 4-8 have been cancelled.
Priority
Acknowledgment is made of applicant's claim for domestic priority under 35 U.S.C. § 119(e).
Specification
The substitute abstract is acceptable.
The amended title is acceptable.
Claim Rejections - 35 U.S.C. § 112(b)
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.
The inquiry during examination is patentability of the invention as the inventor or a joint inventor regards such invention. If the claims do not particularly point out and distinctly claim that which the inventor or a joint inventor regards as his or her invention, the appropriate action by the examiner is to reject the claims under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph. In re Zletz, 893 F.2d 319, 13 USPQ2d 1320 (Fed. Cir. 1989).
Claims 1-3 and 9 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor, or for pre-AIA the applicant regards as the invention.
NOTE: Per 37 CFR 1.75(c), dependent claims shall be construed to include all the limitations of the claim incorporated by reference into the dependent claim. Accordingly, by definition, any claims that depend from a claim that is deemed indefinite under 35 USC 112(b) will also be considered indefinite and identified in the list of rejected claims above, even if such claims are themselves free of indefiniteness under § 112(b).
Claim 1, part (b), line 1: “the drum” lacks antecedent basis - note claim 9, part (A).
New claim 9, line 12: “a detected level” of what element or substance is being detected from the obtained impedances?
New claim 9, line 7: A claim may be rendered indefinite by reference to an object that is variable. For example, the Board has held that a limitation in a claim to a bicycle that recited “said front and rear wheels so spaced as to give a wheelbase that is between 58 percent and 75 percent of the height of the rider that the bicycle was designed for” was indefinite because the relationship of parts was not based on any known standard for sizing a bicycle to a rider, but on a rider of unspecified build. Ex parte Brummer, 12 USPQ2d 1653 (Bd. Pat. App. & Inter. 1989).
In claim 9, line 7: “the vicinity” is of indeterminate scope since it is unclear what frequencies are included or excluded by the claim language. Thus, the metes and bounds of this claim is so unclear as to obscure the specific subject matter the claims encompass. This claim is further indefinite as relating the obtained impedance magnitudes to the “vicinity” of the specified frequencies of the electroacoustic transducer, the vicinity being an undetermined/unspecified variable (see MPEP 2173.05(b)).
With specific regard to the term "vicinity" in claim 9, this term is deemed a subjective term not adequately defined in the instant specification. Some objective standard must be provided in order to allow the public to determine the scope of the claim. A claim that requires the exercise of subjective judgment without restriction can render the claim indefinite. In re Musgrave, 431 F.2d 882, 893 (CCPA 1970). Claim scope cannot depend solely on the unrestrained, subjective opinion of a particular individual purported to be practicing the invention. Datamize, LLC v. Plumtree Software, Inc. 417 F.3d 1342, 1350 (Fed. Cir. 2005). Since this claim relies on subjective judgment or opinion to determine what frequencies exist within or outside of the “vicinity” of the resonant and anti-resonant frequencies of the electroacoustic transducer and thus the obtained impedance magnitudes, claim 9 is of indeterminate scope.
Allowable Subject Matter
While the examiner might speculate as to what is meant by the language of new claim 9, the uncertainty provides the examiner with no proper basis for making the comparison between that which is claimed and the prior art (MPEP 2173.06). Rejections under 35 U.S.C. 103 should not be based upon "considerable speculation as to the meaning of terms employed and assumptions as to the scope of the claims." In re Steele, 305 F.2d 859, 134 USPQ 292 (CCPA 1962). When no reasonably definite meaning can be ascribed to certain terms in a claim, the subject matter does not become obvious, but rather the claim becomes indefinite. In re Wilson, 424 F.2d 1382, 165 USPQ 494 (CCPA 1970). As it has been held that it is improper to rely on what are at best speculative assumptions as to the meaning of a claim and then base a rejection under 35 U.S.C. 103 thereon, no such rejections have been made concerning these claims. Ex parte Brummer, 12 USPQ2d 1654. However, the lack of such rejections should not be construed as meaning that the claims as presently drawn would be patentable if corrected. Any response should carefully consider the prior art of record in accordance with 37 CFR 1.111.
Claims 1-3 would be allowable if rewritten or amended to overcome the rejection(s) under 35 U.S.C. § 112(b) for the reasons advanced by Applicant in the response filed 16 OCT 2025.
Conclusion
THIS ACTION IS MADE FINAL. 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 CHARLES COOLEY whose telephone number is (571) 272-1139. The examiner can normally be reached M-F 9:30 AM - 6:00 PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, CLAIRE X. WANG can be reached at 571-272-1700. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CHARLES COOLEY/
Examiner, Art Unit 1774
DATED: 27 FEB 2026