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 .
Specification
Applicant is reminded of the proper content of an abstract of the disclosure.
A patent abstract is a concise statement of the technical disclosure of the patent and should include that which is new in the art to which the invention pertains. The abstract should not refer to purported merits or speculative applications of the invention and should not compare the invention with the prior art.
If the patent is of a basic nature, the entire technical disclosure may be new in the art, and the abstract should be directed to the entire disclosure. If the patent is in the nature of an improvement in an old apparatus, process, product, or composition, the abstract should include the technical disclosure of the improvement. The abstract should also mention by way of example any preferred modifications or alternatives.
Where applicable, the abstract should include the following: (1) if a machine or apparatus, its organization and operation; (2) if an article, its method of making; (3) if a chemical compound, its identity and use; (4) if a mixture, its ingredients; (5) if a process, the steps.
Extensive mechanical and design details of an apparatus should not be included in the abstract. The abstract should be in narrative form and generally limited to a single paragraph within the range of 50 to 150 words in length.
See MPEP § 608.01(b) for guidelines for the preparation of patent abstracts.
The abstract of the disclosure is objected to because the length of the abstract exceeds the limit of 150 words. A corrected abstract of the disclosure is required and must be presented on a separate sheet, apart from any other text. See MPEP § 608.01(b).
Additionally, the title of the invention is not descriptive. A new title is required that is clearly indicative of the invention to which the claims are directed.
The following title is suggested: METHODS AND APPARATUS FOR DIRECT CALIBRATION VIA DIFFUSED ELECTROMAGNETIC ENERGY.
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.
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.
Regarding claims 1 and 24, the claims recite the phrase “thermal mechanism” which uses the generic placeholder “mechanism” 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.
This limitation is interpreted under 35 U.S.C. 112(f) as corresponding to a “Peltier device, [which] may comprise a heatsink, channeled radiators, [and] a thermal transfer plate”, and any equivalents thereof.
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.
Claims 1, 3-4, and 6 are rejected under 35 U.S.C. 103 as being unpatentable over US 2017/0248470 A1 by Ding-Hsiang Pan et al. (herein after “Pan”) in view of US 7,508,503 B2 by Min-Jun Jang (herein after “Jang”).
Regarding claim 1, Pan discloses a calibration device for calibration of a detector (Pan title – device and method for calibrating a wideband instrument [detector]), comprising:
at least a first source configured to produce first electromagnetic energy EMR (Pan fig. 1 and [0015] discloses light source 100/1100, which emits light [produces first EMR]; examiner notes that figs. 1 and 2 are used interchangeably within the rejection below – the only difference between figs. 1 and 2 is a diffuser 160 between integrating sphere and measurement instruments);
a first diffuser connected to the first source, including a second integrating sphere having a second interior surface, and configured to accept the first EMR and provide a first diffused portion of the EMR (Pan fig. 1 and [0013]-[0015] discloses a smaller integrating sphere 10B/110B [second integrating sphere], where the integrating sphere is a hollow sphere where the inner surface is coated with a diffusing material; the light source is within the sphere 10B/110B [second integrating sphere is configured to accept first EMR]; [0017] light passes from the first sphere via entrance port 30/130 [provides a first diffused portion of the EMR]);
a first integrating sphere defining an interior and optically connected to the first diffuser, and configured to accept the first diffused portion from the first diffuser into the interior (Pan fig. 1 and [0013]-[0017] discloses a larger integrating sphere 10A/110A [first integrating sphere], connected to the second integrating sphere 10B via entrance port 30 [connected to first diffuser] and receives light via the entrance port from the second integrating sphere 10B [optically connected to first diffuser to accept first diffused portion from the first diffuser]; as with 10B, 10A is hollow and defines an interior coated with a diffusing material);
at least one exit port connected to the first integrating sphere configured to pass at least a portion of electromagnetic energy (Pan fig. 1/fig. 2 and [0014], [0044] discloses an exit port 40/140; [0044] a spectrum of light rays is provided out of the exit port and is sent to detecting instruments and a data processing unit; the portion emitted out of the exit port is considered “at least a portion of electromagnetic energy”);
wherein the first integrating sphere is configured to pass only a second portion of the first diffused portion of the first EMR from the first diffuser to the exit port for use by the detector for calibration (Pan fig. 1/fig.2 and [0044] discloses the light rays exiting via the exit port provide a spectrum of the light rays, where that spectrum is received by a narrowband 14 and wideband instrument 13, which measure the spectrum and transmit the data to the processing unit [i.e. for calibration]; [0051] discloses a calibration matrix obtained to calibrate the measured output from the wideband instrument [i.e. used by the detector for calibration]; [0049] discloses that light rays are emitted from the sphere 10A/110A only after running multiple reflections within the sphere – therefore, there exists a portion of light of the first diffused portion of the first EMR which is not exiting via the exit port, such that all light exiting the exit port 40/140 is considered “only a second portion of the first diffused portion”).
Pan is silent to a first source having a first source temperature, and a thermal mechanism configured to adjust and maintain at least the first source temperature.
However, Jang does address this limitation. Pan and Jan are considered to be analogous to the present invention because they are related to optical systems utilizing integrating spheres.
Jang discloses “a first source having a first source temperature, and a thermal mechanism configured to adjust and maintain at least the first source temperature” (Jang fig. 2 col 5 ll. 13-29 discloses a light source 20 [first source] mounted on light source support 50, where a Peltier element 60 adjusts is used to adjust temperature of the light source [first source has a first source temperature] based on a reading taken by temperature sensor 51 (temperature sensor 51 disclosed in col 4 ll. 65-67); a controller 40 is configured to control the temperature of the light source by adjusting a current to the Peltier element 60 [here, the controller 40 acts as the thermal mechanism, and its relation to the Peltier element 60 satisfies the interpretation under 35 U.S.C. 112(f) for “thermal mechanism” above]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Pan to incorporate a first source having a first source temperature, and a thermal mechanism configured to adjust and maintain at least the first source temperature as suggested by Jang for the advantage of ensuring the light source remains in an acceptable temperature range for an accurate measurement of optical properties according to the temperature of the light source (Jang col 4 ll. 43-45) – as nonuniform temperatures may affect the results of a calibration.
Regarding claim 3, Pan when modified by Jang discloses the calibration device of claim 1, and Pan further teaches the device wherein the second integrating sphere is physically smaller than the first integrating sphere (Pan fig. 1 and [0015] discloses a smaller integrating sphere 10B/110B compared to 10A/110A [second integrating sphere smaller than the first integrating sphere]).
Regarding claim 4, Pan when modified by Jang discloses the calibration device of claim 1, and Pan further teaches the device wherein the second integrating sphere includes a modified reflective coating disposed on the second interior surface (Pan [0013] discloses that the second integrating sphere is coated with a diffusing material which ensures light is reflected such that the flux is uniform; “modified reflective coating” is not defined relative to any other coating, such that the diffusing material disclosed by Pan reads on the limitation as a material coated [coating] on the interior of the sphere intentionally [modified] such that reflections [reflective] occur).
Regarding claim 6, Pan when modified by Jang discloses the calibration device of claim 1. Pan is silent to the calibration device of claim 1 further comprising including a thermal mass having a thermal mass temperature and wherein the thermal mechanism is configured to adjust the thermal mass temperature, and the thermal mass is mounted with the first source.
However, Jang does address this limitation.
Jang discloses the calibration device of claim 1, “further comprising including a thermal mass having a thermal mass temperature and wherein the thermal mechanism is configured to adjust the thermal mass temperature, and the thermal mass is mounted with the first source” (Jang fig. 2 and col 5 ll. 13-29 disclose the light source 20 where the controller 40 is used to control the temperature of the light source [here, the controller acts as the thermal mechanism], as cited in claim 1; the light source 20 is mounted on a light source support on top of a Peltier element 60 [thermal mass is mounted with the first source], where the element is used to adjust the temperature of the light source [Peltier element 60 being the thermal mass]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Pan to incorporate a thermal mass having a thermal mass temperature and wherein the thermal mechanism is configured to adjust the thermal mass temperature, and the thermal mass is mounted with the first source as suggested by Jang for the advantage of ensuring the light source remains in an acceptable temperature range for an accurate measurement of optical properties according to the temperature of the light source (Jang col 4 ll. 43-45) – as nonuniform temperatures may affect the results of a calibration.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Pan in view of Jang, and further in view of US 2021/0140884 A1 by Kenji Imura et al. (herein after “Imura”).
Regarding claim 5, Pan when modified by Jang discloses the calibration device of claim 1. Pan when modified by Jang is silent to the calibration device of claim 1 further including at least a second source having a second source temperature and configured to produce second electromagnetic energy EMR having a different frequency than the first EMR.
However, Imura does address this limitation. Pan, Jang, and Imura are considered to be analogous to the present invention because they are related to optical systems utilizing integrating spheres.
Imura discloses the calibration device of claim 1, “further including at least a second source having a second source temperature and configured to produce second electromagnetic energy EMR having a different frequency than the first EMR” (Imura [0083]; fig. 7 labels 1, 2, 3, 1b, 2b, 3b; light sources 1, 2, and 3 are configured to emit light with different frequencies from each other, so the second source 2 would emit EMR with a different frequency than first source 1; Imura [0111] discloses that light sources may be LEDs, and the power distrubtion of said LEDs depends on the element temperature [i.e. the light sources 1, 2, and 3 have temperatures associated with them, yielding a second source having a second source temperature]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Pan in view of Jang to incorporate at least a second source having a second source temperature and configured to produce second electromagnetic energy EMR having a different frequency than the first EMR as suggested by Imura for the advantage of having multiple light sources of differing wavelengths, enabling a more robust calibration of the detector in multiple wavelengths.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Pan in view of Jang, and further in view of US 2013/0003064 A1 by David W. Allen et al. (herein after “Allen”).
Regarding claim 7, Pan when modified by Jang discloses the calibration device of claim 1. Pan when modified by Jang is silent to the calibration device of claim 1, further including a radiometer optically connected to the exit port and configured to record irradiance emitted from inside the first integrating sphere.
However, Allen does address this limitation. Pan, Jang, and Allen are considered to be analogous to the present invention because they are related to optical systems utilizing integrating spheres.
Allen discloses the calibration device of claim 1 “further including a radiometer optically connected to the exit port” (Allen fig 4 shows a radiance meter in optical connection with an integrating sphere system (ISS), directed at an access port, as specified in paragraph [0009]) “and configured to record irradiance emitted from inside the first integrating sphere” (Allen paragraph [0049], in certain embodiments the system comprises a radiance detector for measuring intensity of light within the integrating sphere).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Pan in view of Jang to incorporate a radiometer optically connected to the exit port and configured to record irradiance emitted from inside the first integrating sphere as suggested by Allen for the advantage of achieving specified uncertainties within calibration measurements utilizing a radiometer, while enabling the use of a desired light source (broadband or a plurality of wavelengths) (Allen [0033]).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Pan in view of Jang, and further in view of US 9,310,298 B2 by Daniel Labrie et al. (“Labrie”).
Regarding claim 8, Pan when modified by Jang discloses the calibration device of claim 1. Pan when modified by Jang is silent to the calibration device of claim 1, wherein the at least one exit port of the first integrating sphere includes a diffusive material.
However, Labrie does address this limitation. Pan, Jang, and Labrie are considered to be analogous to the present invention because they are related to optical systems utilizing integrating spheres.
Labrie discloses the calibration device of claim 1, “wherein the at least one exit port of the first integrating sphere includes a diffusive material” (Labrie col 2 ll. 37-43 and ll. 55-63; a screen covers an aperture, interpreted as the exit port, and the screen may include a Lambertian coating, here a diffusive material; the screen may also include a transparent or translucent material, similar to the embodiment noted in applicant’s specification paragraph [0009]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Pan in view of Jang to incorporate wherein the at least one exit port of the first integrating sphere includes a diffusive material as suggested by Labrie for the advantage of protecting the screen and light detecting element from receiving physical damage (Labrie col 8 ll. 47-51).
Claims 24-25 are rejected under 35 U.S.C. 103 as being unpatentable over Pan in view of Jang, in view of Imura, and further in view of US 6,583,879 B1 by Bernard J. Berg et al. (herein after “Berg”).
Regarding claim 24, Pan discloses a calibration device for calibration of a detector (Pan title – device and method for calibrating a wideband instrument [detector]), comprising:
a first source configured to produce first electromagnetic energy EMR (Pan fig. 1 and [0015] discloses light source 100/1100, which emits light [produces first EMR]; examiner notes that figs. 1 and 2 are used interchangeably within the rejection below – the only difference between figs. 1 and 2 is a diffuser 160 between integrating sphere and measurement instruments);
a first diffuser connected to the first source, including a second integrating sphere having a second interior surface, and configured to accept the first EMR and provide a first diffused portion of the EMR (Pan fig. 1 and [0013]-[0015] discloses a smaller integrating sphere 10B/110B [second integrating sphere], where the integrating sphere is a hollow sphere where the inner surface is coated with a diffusing material; the light source is within the sphere 10B/110B [second integrating sphere is configured to accept first EMR]; [0017] light passes from the first sphere via entrance port 30/130 [provides a first diffused portion of the EMR]);
a first integrating sphere defining an interior and optically connected to the first diffuser, and configured to accept the first diffused portion from the first diffuser into the interior (Pan fig. 1 and [0013]-[0017] discloses a larger integrating sphere 10A/110A [first integrating sphere], connected to the second integrating sphere 10B via entrance port 30 [connected to first diffuser] and receives light via the entrance port from the second integrating sphere 10B [optically connected to first diffuser to accept first diffused portion from the first diffuser]; as with 10B, 10A is hollow and defines an interior coated with a diffusing material);
at least one exit port connected to the first integrating sphere configured to pass at least a portion of electromagnetic energy (Pan fig. 1/fig. 2 and [0014], [0044] discloses an exit port 40/140; [0044] a spectrum of light rays is provided out of the exit port and is sent to detecting instruments and a data processing unit; the portion emitted out of the exit port is considered “at least a portion of electromagnetic energy”);
wherein the second integrating sphere is physically smaller than the first integrating sphere (Pan fig. 1 and [0015] discloses a smaller integrating sphere 10B/110B compared to 10A/110A [second integrating sphere smaller than the first integrating sphere]);
wherein the first integrating sphere is configured to pass only a second portion of the first diffused portion of the first EMR from the first diffuser to the exit port for use by the detector for calibration (Pan fig. 1/fig.2 and [0044] discloses the light rays exiting via the exit port provide a spectrum of the light rays, where that spectrum is received by a narrowband 14 and wideband instrument 13, which measure the spectrum and transmit the data to the processing unit [i.e. for calibration]; [0051] discloses a calibration matrix obtained to calibrate the measured output from the wideband instrument [i.e. used by the detector for calibration]; [0049] discloses that light rays are emitted from the sphere 10A/110A only after running multiple reflections within the sphere – therefore, there exists a portion of light of the first diffused portion of the first EMR which is not exiting via the exit port, such that all light exiting the exit port 40/140 is considered “only a second portion of the first diffused portion”).
Pan is silent to a first source having a first source temperature, and a thermal mechanism configured to adjust and maintain at least the first source temperature.
However, Jang does address this limitation. Pan and Jan are considered to be analogous to the present invention because they are related to optical systems utilizing integrating spheres.
Jang discloses “a first source having a first source temperature, and a thermal mechanism configured to adjust and maintain at least the first source temperature” (Jang fig. 2 col 5 ll. 13-29 discloses a light source 20 [first source] mounted on light source support 50, where a Peltier element 60 adjusts is used to adjust temperature of the light source [first source has a first source temperature] based on a reading taken by temperature sensor 51 (temperature sensor 51 disclosed in col 4 ll. 65-67); a controller 40 is configured to control the temperature of the light source by adjusting a current to the Peltier element 60 [here, the controller 40 acts as the thermal mechanism, and its relation to the Peltier element 60 satisfies the interpretation under 35 U.S.C. 112(f) for “thermal mechanism” above]).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Pan to incorporate a first source having a first source temperature, and a thermal mechanism configured to adjust and maintain at least the first source temperature as suggested by Jang for the advantage of ensuring the light source remains in an acceptable temperature range for an accurate measurement of optical properties according to the temperature of the light source (Jang col 4 ll. 43-45) – as nonuniform temperatures may affect the results of a calibration.
Pan when modified by Jang is silent to at least a second source having a second source temperature and configured to produce second electromagnetic energy EMR having a different frequency than the first EMR.
However, Imura does address this limitation. Pan, Jang, and Imura are considered to be analogous to the present invention because they are related to optical systems utilizing integrating spheres.
Imura discloses “at least a second source having a second source temperature and configured to produce second electromagnetic energy EMR having a different frequency than the first EMR” (Imura [0083]; fig. 7 labels 1, 2, 3, 1b, 2b, 3b; light sources 1, 2, and 3 are configured to emit light with different frequencies from each other, so the second source 2 would emit EMR with a different frequency than first source 1; Imura [0111] discloses that light sources may be LEDs, and the power distrubtion of said LEDs depends on the element temperature [i.e. the light sources 1, 2, and 3 have temperatures associated with them, yielding a second source having a second source temperature]), “and a thermal mechanism configured to adjust and maintain the second source temperature” (Imura [0111] as above discloses that the LEDs are driven under constant current so as to maintain the power distribution from the LEDs, where the voltage responsible for driving the current is detected at time of measurement; analogous to the controller 40 of Jang which controls the temperature of the light source, a similar control means is disclosed in Imura allowing the adjustment/maintenance of the second source temperature).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Pan in view of Jang to incorporate at least a second source having a second source temperature and configured to produce second electromagnetic energy EMR having a different frequency than the first EMR, and a thermal mechanism configured to adjust and maintain the second source temperature as suggested by Imura for the advantage of having multiple light sources of differing wavelengths, enabling a more robust calibration of the detector in multiple wavelengths compared with a single monochromatic light source.
Pan when modified by Jang and Imura is silent to a second diffuser connected to the second source and configured to accept the second EMR and provide a first diffused portion of the second EMR;
a first integrating sphere optically connected to the second diffuser, configured to accept the first portion from the second diffuser into the interior; and
wherein the first integrating sphere is configured to pass only a second portion of the second diffused portion of the second EMR from the second diffuser to the exit port for use by the detector for calibration.
However, Berg does address this limitation. Pan, Jang, Imura, and Berg are considered to be analogous to the present invention because they are related to optical systems utilizing integrating spheres.
Berg discloses “a second diffuser connected to the second source and configured to accept the second EMR and provide a first diffused portion of the second EMR” (Berg fig. 3 and col 3 ll. 59-67 discloses a second illuminator assembly 84, operated during a measurement [i.e. during a calibration], comprising a pulse xenon lamp 100 [second source generating second EMR]; light from the lamp 100 is passed through diffuser 106 into an integrating sphere 12; light from the second source passes through the diffuser [diffuser configured to accept the second EMR], and provides a diffused portion of the second EMR);
“a first integrating sphere optically connected to the second diffuser, configured to accept the first portion from the second diffuser into the interior” (Berg fig. 3 shows the integrating sphere 12 which is optically connected to the diffuser 106 [since the diffuser lets light from the second illumination assembly 84 into the interior of the integrating sphere – i.e. integrating sphere “accepts the first portion from the second diffuser into the interior”]); and
“wherein the first integrating sphere is configured to pass only a second portion of the second diffused portion of the second EMR from the second diffuser to the exit port for use by the detector for calibration” (Berg fig. 3 and col 4 ll. 22-31 discloses a viewing port 32 which passes light from the interior of the integrating sphere 12 and through an aperture wheel 14 into a spectrograph 20 [analogous to the instrument of Pan]; as with Pan, light rays reflect within the integrating sphere 12, and only some light exits the integrating sphere through the exit port [a portion of light remains inside the integrating sphere]– the light from the second illumination assembly which exists via the viewing port 32 towards the spectrograph 20 is considered a second portion of the second diffused portion of the second EMR).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Pan in view of Jang and Imura to incorporate a second diffuser connected to the second source and configured to accept the second EMR and provide a first diffused portion of the second EMR; a first integrating sphere optically connected to the second diffuser, configured to accept the first portion from the second diffuser into the interior; and wherein the first integrating sphere is configured to pass only a second portion of the second diffused portion of the second EMR from the second diffuser to the exit port for use by the detector for calibration as suggested by Berg for the advantage of enabling the accurate alignment of the optical system, removing guesswork of component positioning, and enabling the technology to be included within portable instrumentation instead of being confined to benchtop (Berg col 6 ll. 62 – col 7 ll. 7).
Regarding claim 25, Pan when modified by Jang, Imura, and Berg discloses the calibration device of claim 24, and Pan further teaches the calibration device wherein the second integrating sphere includes a modified reflective coating disposed on the second interior surface (Pan [0013] discloses that the second integrating sphere is coated with a diffusing material which ensures light is reflected such that the flux is uniform; “modified reflective coating” is not defined relative to any other coating, such that the diffusing material disclosed by Pan reads on the limitation as a material coated [coating] on the interior of the sphere intentionally [modified] such that reflections [reflective] occur).
Claims 26-27 are rejected under 35 U.S.C. 103 as being unpatentable over Pan in view of Jang, in view of Imura, in view of Berg, and further in view of US 10,048,121 B2 by Andrew J. Zimmerman et al. (herein after “Zimmerman”).
Regarding claim 26, Pan when modified by Jang, Imura, and Berg discloses the calibration device of claim 24. Pan when modified by Jang, Imura, and Berg is silent to the calibration device of claim 24, wherein the calibration device is configured to survive physically a rocket launch into space.
However, Zimmerman does address this limitation. Pan, Jang, Imura, Berg, and Zimmerman are considered to be analogous to the present invention because they are related to optical systems utilizing integrating spheres.
Zimmerman discloses the calibration device of claim 24 “wherein the calibration device is configured to survive physically a rocket launch into space” (Zimmerman col 4 ll. 43-47; calibration system of Zimmerman is useful in space-based applications, i.e. onboard of a spacecraft for calibration of sensors therein; the calibration device therefore must physically survive a rocket launch into space in order to be useful for calibrating sensors on a spacecraft or satellite).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Pan in view of Jang, Imura, and Berg to incorporate wherein the calibration device is configured to survive physically a rocket launch into space as suggested by Zimmerman for the advantage of ensuring the safety of the components of the calibration device suggested by Berg in view of Pickering, Imura, and Jang, during the application of the calibration device into a space setting onboard a satellite.
Regarding claim 27, Pan when modified by Jang, Imura, and Berg discloses the calibration device of claim 26. Pan when modified by Jang, Imura, and Berg is silent to the calibration device of claim 26, wherein the calibration device is configured to operate in a satellite after insertion into orbit.
However, Zimmerman does address this limitation.
Zimmerman discloses the calibration device of claim 27, “wherein the calibration device is configured to operate in a satellite after insertion into orbit” (Zimmerman col 4 ll. 43.47; calibration system of Zimmerman is useful in space-based applications onboard a spacecraft for calibration of sensors therein; examiner interprets the spacecraft of Zimmerman as being equivalent to a satellite. The spacecraft must therefore have been inserted into an orbit, so therefore the calibration device is configured to operate in a satellite (spacecraft) after insertion into orbit).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify Pan in view of Jang, Imura, and Berg to incorporate wherein the calibration device is configured to operate in a satellite after insertion into orbit as suggested by Zimmerman for the advantage of utilizing the calibration device integrating sphere components in a space-based environment, allowing for sensors on a satellite to be calibrated locally.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1, 3-5, and 24 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 2 of U.S. Patent No. 12,055,641 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because:
Regarding claims 1 and 3-5, all of the limitations of claims 1 and 3-5 are taught by claim 1 of the ‘641 patent.
Regarding claim 24, all of the limitations of claim 24 are taught by claim 2 of the ‘641 patent.
While claims 25-27 of the instant application contain similar subject matter to claims 3-5 of the ‘641 patent, the subject matter in claims 3-5 of the ‘641 patent are not dependent on claim 2 (which teaches the instant claim 24). Therefore, no nonstatutory double patenting rejection is made for claims 25-27 of the application.
Documents Considered but not Relied Upon
The following document(s) were considered but not relied up on for the rejection set forth in this action:
CN 106840198 A by Yong-Qiang Li et al.
US 2018/0058927 A1 by Hisashi Shiraiwa et al.
Conclusion
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/JOSHUA M CARLSON/Examiner, Art Unit 2877
/TARIFUR R CHOWDHURY/Supervisory Patent Examiner, Art Unit 2877