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 listing of references in the specification (see, e.g., paragraph 6) is not a proper information disclosure statement. 37 CFR 1.98(b) requires a list of all patents, publications, or other information submitted for consideration by the Office, and MPEP § 609.04(a) states, "the list may not be incorporated into the specification but must be submitted in a separate paper." Therefore, unless the references have been cited by the examiner on form PTO-892, they have not been considered.
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.
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 1 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.
Claim 1 recites, among other things, “two or more capacitive measuring electrode pairs, each pair consisting of a measuring electrode and a ground electrode that are located in close proximity to a powder layer or material of interest so that the capacitance of each electrode pair is a function of the density, chemical composition, and distance to the powder layer or material of interest but are at different distances from the powder layer or material of interest”. On its face, this language would appear to require that each capacitive measuring electrode pair consists of a measuring electrode and a ground electrode that are separate and distinct from a measuring electrode and a ground electrode of another pair. For example, in the case of two capacitive measuring electrode pairs, this language would appear to require a total of four electrodes (e.g., two measuring electrodes and two ground electrodes). However, this interpretation differs from the manner in which the capacitive measuring electrode pairs are described in the disclosure. For example, with reference to Fig. 4, the specification states at paragraph 26 “measuring electrode 11 and measuring electrode 13 form two electrode pairs with ground electrode 12”. Here, only three electrodes are used to provide two electrode pairs, with the ground electrode 11 being common to each electrode pair. Accordingly, when viewed in light of the disclosure, the meaning of the language “two or more capacitive measuring electrode pairs, each pair consisting of a measuring electrode and a ground electrode that are located in close proximity to a powder layer or material of interest …” is unclear, i.e., does each capacitive measuring electrode pair include a respective ground electrode, or does each capacitive measuring electrode pair include a common ground electrode. Clarification is required so that the scope of the claim is clear. For purposes of the present examination, the examiner interprets the language “two or more capacitive measuring electrode pairs, each pair consisting of a measuring electrode and a ground electrode” as having a scope wherein each capacitive measuring electrode pair consists of a ground electrode and a measuring electrode, with the measuring electrode being separate and distinct from a measuring electrode the other pair(s), but with the ground electrode not necessarily being distinct between each capacitive measuring electrode pairs.
Further regarding the claim 1 language considered above, the examiner notes that “a powder layer or material of interest” is not affirmatively recited as an element of the claimed capacitive sensor. It is therefore unclear whether the language “located in close proximity to a powder layer or material of interest” and “but are at different distances from the powder layer or material of interest” specifies required structural limitations of the claimed capacitive sensor or merely physical relationships arising from the manner in which the claimed capacitive sensor is used. For example, how are the “different distances” brought about – is this due to the structural configuration/arrangement of the two or more capacitive measuring electrode pairs within the capacitive sensor or merely due to the manner in which each of the two or more capacitive measuring electrode pairs are placed during their use? Clarification is required so that the scope of the claim is clear. For purposes of the present examiner, “a powder layer or material of interest” is not interpreted as a required element of the claimed capacitive sensor and, as a result, the language “located in close proximity to a powder layer or material of interest” and “but are at different distances from the powder layer or material of interest” is interpreted as merely setting forth a manner of using the capacitive sensor and, therefore, without patentable weight. See MPEP 2114.II.
Claim 1 recites “two or more capacitive measuring electrode pairs, each pair consisting of a measuring electrode and a ground electrode that are located in close proximity to a powder layer or material of interest … at different distances from the powder layer or material of interest” and “calculate the distance to the powder layer or material of interest independent of the density and chemical composition of the powder layer or material of interest”. It is unclear to which of the distances “the distance” refers – is it the closest or farthest distance, for example? Clarification is required so that the scope of the claim is clear.
Claim 1 recites “a means of measuring the capacitance between the measuring electrode and ground electrode in each capacitance measuring electrode pair so that the capacitance of each capacitance measuring electrode pair can be used together to calculate the distance to the powder layer or material of interest independent of the density and chemical composition of the powder layer or material of interest”. For purposes of the present examination, the language “a means of measuring the capacitance between the measuring electrode and ground electrode in each capacitance measuring electrode pair” is being interpreted under 35 U.S.C. 112(f), with the corresponding structure being capacitive measurement circuits connected to the measuring electrode pairs (see, e.g., paragraph 12 of specification, “The distance to the surface of the powder layer or material of interest is calculated using the signals from capacitive measurement circuits connected to the measuring electrode pairs”). It is unclear from the claim whether the language “so that the capacitance of each capacitance measuring electrode pair can be used together to calculate the distance to the powder layer or material of interest independent of the density and chemical composition of the powder layer or material of interest” is intended to be a part of the “means” (i.e., the “means” performs the measuring function and also performs the calculation function), or whether this language merely sets forth a manner in which the capacitive sensor is to be used. For purposes of the present examination, in view of the “can be used” phrase, the language “so that the capacitance of each capacitance measuring electrode pair can be used together to calculate the distance to the powder layer or material of interest independent of the density and chemical composition of the powder layer or material of interest” is interpreted as merely setting forth the manner in which the measured capacitances are used or intended to be used. Under this interpretation, this language carries no patentable weight. Clarification is required so that the scope of the claim is clear.
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.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by GB 2465248A to Merkel et al. (Merkel).
Regarding claim 1, Merkel discloses a capacitive sensor for measuring the thickness of powder layers or inhomogeneous materials comprising:
a) two or more capacitive measuring electrode pairs, each pair consisting of a measuring electrode and a ground electrode that are located in close proximity to a powder layer or material of interest so that the capacitance of each electrode pair is a function of the density, chemical composition, and distance to the powder layer or material of interest but are at different distances from the powder layer or material of interest (Merkel, e.g., Figs. 2-3 (duplicated below) and page 10, line 18 to page 13, line 17, first capacitive measuring electrode pair in the form of first measuring electrode 202 and counter electrode 203, with the counter electrode being formed from vehicle 301 which also contains first measuring electrode 202; second capacitive measuring electrode pair in the form of second measuring electrode 204 and counter electrode 203, with the counter electrode being formed from vehicle 301 which also contains second measuring electrode 204; the examiner notes that counter electrode 203 in the form of object 206 (a vehicle) is grounded and is therefore the functional equivalent of a ground electrode; note that first capacitive measuring electrode pairs are located in close proximity to a material of interest in the form of object 206; Merkel discloses that capacitance of the measuring capacitor is affected by objects which are in the environment of the electrodes; see, e.g., page 4, lines 11-13, and one of ordinary skill in the art would understand that the capacitance of Merkel’s electrode pairs will necessarily be a function of the material properties of the object, including its density and chemical composition, as well as the distance between the electrode pair and the object; also note that each of Merkel’s electrode pairs (e.g., electrode 202/203 and electrodes 204/203) are arranged at different distances to object 206);
b) a means of measuring the capacitance between the measuring electrode and ground electrode in each capacitance measuring electrode pair so that the capacitance of each capacitance measuring electrode pair can be used together to calculate the distance to the powder layer or material of interest independent of the density and chemical composition of the powder layer or material of interest (the language “a means of measuring the capacitance between the measuring electrode and ground electrode in each capacitance measuring electrode pair” is interpreted under 35 U.S.C. 112(f), with the corresponding structure being capacitive measurement circuits connected to the measuring electrode pairs (see, e.g., paragraph 12 of specification, “The distance to the surface of the powder layer or material of interest is calculated using the signals from capacitive measurement circuits connected to the measuring electrode pairs”); Merkel, e.g., Figs. 2-3 (duplicated below) and page 10, line 18 to page 13, line 17, it is implicit in Merkel’s arrangement that the capacitances are measured/acquired using circuitry because Merkel processes the capacitances in order to calculate distance; see, e.g., page 7, line 23 to page 8, line 4; also see Merkel, claims 6 and 11; also see 35 U.S.C. 112(b) rejection set forth above regarding the language “so that the capacitance of each capacitance measuring electrode pair can be used together to calculate the distance to the powder layer or material of interest independent of the density and chemical composition of the powder layer or material of interest”; this language is interpreted as merely setting forth the manner in which the measured capacitances are used or intended to be used and therefore carries no patentable weight; see, e.g. MPEP 2114.II, a claim containing a “recitation with respect to the manner in which a claimed apparatus is intended to be employed does not differentiate the claimed apparatus from a prior art apparatus” if the prior art apparatus teaches all the structural limitations of the claim (citations omitted)).
The examiner emphasizes that even if the language “so that the capacitance of each capacitance measuring electrode pair can be used together to calculate the distance to the powder layer or material of interest independent of the density and chemical composition of the powder layer or material of interest” could be given patentable weight, Merkel discloses such a feature (Merkel, e.g., page 12, equation for d1 in terms of ∆d, C1 and C2, where d1 corresponds to distance 212 in Fig. 2, ∆d corresponds to d2-d1 (i.e., distance 216 in Fig. 2), d2 corresponds to distance 214 in Fig. 2, C1 corresponds to capacitance between first measuring electrode 202 and counter electrode 203 in Fig. 2, and C2 corresponds to capacitance between second measuring electrode 204 and counter electrode 203 in Fig. 2; the examiner notes that the equation for d1 only depends on the measured capacitances C1, C2 and ∆d and is therefore independent of the density and chemical composition of object 206).
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Merkel, Fig. 2
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Merkel, Fig. 3
Although not presently relied upon for any rejection, the examiner notes that CN111220063A to Sun et al. (cited below) also appears to anticipate claim 1 as interpreted above.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
EP1148315A2 to Picciotto relates to a device for capacitively sensing media thickness; see, e.g., Figs. 3-4.
EP1318376A2 to Saini et al. relates to an apparatus for measuring the thickness of dielectric materials in film, flat or tubular form, see, e.g., Fig. 3.
US 20130207667 to Zibold et al. relates to a measuring device for detecting a dielectric object; see, e.g., Fig. 2b.
CN111220063A to Sun et al. relates to a method for detecting object proximity distance; see, e.g., Fig. 1; also see equation for d1 at paragraph 7 of original patent document.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DANIEL R MILLER whose telephone number is (571) 270-1964. The examiner can normally be reached 10AM-6PM EST M-F.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, CATHERINE T RASTOVSKI can be reached on (571) 270-0349. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DANIEL R MILLER/Primary Examiner, Art Unit 2863