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/Restrictions
Applicant's election with traverse of claims 16-18 in the reply filed on 06/29/26 is acknowledged. The traversal is on the ground(s) that newly added claims 20-28 also read on the elected group. This is found persuasive and claims 16-18 and claims 20-28 will be examined herein.
The requirement is still deemed proper and is therefore made FINAL.
Double Patenting
Claims 16-18 are rejected on the ground of nonstatutory double patenting over claims 12-14 of U.S. Patent No. 12,066,375 since the claims, if allowed, would improperly extend the “right to exclude” already granted in the patent.
The subject matter claimed in the instant application is fully disclosed in the patent and is covered by the patent since the patent and the application are claiming common subject matter, as follows: a housing forming an enclosed and elongated fluid channel arranged along a first axis with an inlet and outlet connecting to the fluid channel, a first and second light guide, measuring an absorption value of the optical flow cell, and generating a compensated light absorption value.
Furthermore, there is no apparent reason why applicant was prevented from presenting claims corresponding to those of the instant application during prosecution of the application which matured into a patent. See In re Schneller, 397 F.2d 350, 158 USPQ 210 (CCPA 1968). See also MPEP § 804.
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).
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.
Claim(s) 16, 17, 18, 21, 26, 27, and 28 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Coombs U.S. Publication 2017/0370826.
With respect to claim 16, Coombs discloses a method for measurement in a flow cell system comprising:
Obtaining environment data indicative of an environment the optical flow cell has been subjected to (P.0084, flow cell is calibrated with a known blank = obtaining environment data indicative of environment)
The optical flow cell comprises a housing forming an enclosed and elongated fluid channel arranged along a first axis (Figure 1, housing 100, Figure 2, fluid channel = flow cell central portion 214)
An inlet arranged to connect a first outer surface of the housing to a first end of the fluid channel and an outlet arranged to connect a second outer surface area to a second end of the fluid channel (Figure 2, inlet = funnel 106, outlet = funnel 108, P.0045)
A first light guide and a second light guide concentrically arranged along a second axis and on opposite side walls of the fluid channel (Figure 1, light guides = light pipes 112)
The first light guide comprises an exit surface where light is emitted and arranged adjacent to the first side wall of the fluid channel (Figure 1 and Figure 2, first light guide exit surface = input face of flow cell, P.0043)
The second light guide comprises an entrance surface, where the emitted light is received and arranged adjacent to a second opposing side wall of the fluid channel (Figure 1, light guide = light pipe 112, P.0043)
Where the exit surface and entrance surface is separated by a distance (Figure 2, distance between input and output faces, P.0052)
Measuring a light absorption value of the optical flow cell indicative of absorption of light emitted from the exit surface of the first light guide to an exist surface of the second light guide (P.0084, light absorption value = OD, P.0080)
Generating a compensated light absorption value based on the light absorption value and a compensation function dependent on the environment data (P.0084, compensated = corrected for residual OD, calibrated, P.0085)
With respect to claims 17, 18, 21, 26, 27, and 28, Coombs discloses all of the limitations as applied to claim 16 above. In addition, Coombs discloses:
17- The compensation function compensates for variations of the distance (P.0058, P.0084, calibration takes into account the distance between faces inherently)
18- The environment data is indicative of one or more flow cell temperature, the optical flow cell being subjected to gamma irradiation, and the optical flow cell being subjected to autoclaving (P.0084, calibration takes into account these characteristics inherently)
21- The housing is a single use or disposable and/or the optical flow cell is made from polymer and or metal (single use or disposable is up to the user and not structural, P.0043 and P.0045 made of plastic = polymer or stainless steel = metal)
26- the first light guide is enclosed in a first connector part and the second light guide is enclosed in a second connector part (Figure 2, first and second connector parts = flow cell 110)
27- a first fastener arranged to fasten or secure the first connector part to the housing and a second fastener arranged to fasten or secure the second connector part to the housing (Figure 3, first fastener = screw 303B, second fastener = screws 303A, P.0045)
28- the fluid channel is open at least on a side generally parallel with the first axis for exposing said light guides, said open fluid channel being closeable by a further part to form the optical flow cell (Figure 2, fluid channel is open = top of flow cell central portion 110 that meets funnel, wherein “being closeable by a further part” is intended use and not part of the method)
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) 20 is rejected under 35 U.S.C. 103 as being unpatentable over Coombs U.S. Publication 2017/0370826.
With respect to claim 20, Coombs discloses all of the limitations as applied to claim 16 above. In addition, Coombs discloses:
20- The distance is 2 mm (P.0049-50, 2 mm)
However, Coombs fails to disclose the distance is in the range of 0.1 mm to 0.5 mm.
It would have been obvious to one of ordinary skill in the art at the time of the invention to select a pathlength between the two inputs commensurate in scope with the fluid being analyzed and the sensitivity of the sensors along with tolerance of noise. The pathlength is a result effective variable and one of ordinary skill in the art would be capable of optimizing the contributing factors (sensitivity, tolerance of noise, size of particles in fluid, amount of sample available, speed of moving sample) to determine an optimum range of sizes for the pathlength without unexpected results.
Claim(s) 22, 23, 24, and 25 is rejected under 35 U.S.C. 103 as being unpatentable over Coombs U.S. Publication 2017/0370826 in view of Brewer U.S. Patent #7,184,141.
With respect to claims 22, 23, 24, 25, Coombs discloses all of the limitations as applied to claim 16 above. In addition, Coombs discloses:
22- the housing comprises at least a first part, a second part and a body located between the first and second part, wherein the first part is configured to form the enclosed and elongated fluid channel arranged along the first axis, the fluid channel having an open side and the corresponding second part is configured to close the open side of the fluid channel (Figure 1 and 2, first part = funnel 106, second part = 108, body = central core 110, P.0045, lengthwise = second axis, funnel 106 has opening along edge of the first part at the top of 214 and the second funnel 108 closes that opening on the other side of the central core 110 into the outlet diameter) – missing seal
23- the first part and/or second part are single unitary pieces (Figure 1 and 2, funnel 106 and funnel 108 are each single unitary pieces)
However, Coombs fails to disclose the body has a seal and that the seal encloses edges of opposing surfaces of the first and second parts and has a saddle shape.
Brewer discloses a releasable optical flow system comprising:
A seal located between a first and second part (Col.6, 13-19, seal = epoxy resin, first part = portion 31, second part = portion 32)
25- the seal encloses edges of opposing surface of the first and second parts (Col.6, l 13-19)
24- the first and second parts further have a saddle shape (Figure 1C, Col.4, l 32-50)
It would have been obvious to one of ordinary skill in the art at the time of the invention to use the sealing saddle shaped first and second parts as in Brewer for the first and second parts of Coombs since as described by Brewer the two piece shell contours allow for close tolerances at an inexpensive cost (Col.4, l 7-15, l 32-38). Using an additional seal (epoxy) between the components allows a stronger bond between components (Col.6, l 13-15) and would have been obvious to one of ordinary skill in the art at the time of the invention to use something flexible between the inflexible sides of the first and second parts to allow for a more reliable seal.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to REBECCA CAROLE BRYANT whose telephone number is (571)272-9787. The examiner can normally be reached M-F, 12-4 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Kara Geisel can be reached at 571-272-2416. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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REBECCA CAROLE. BRYANT
Examiner
Art Unit 2877
/REBECCA C BRYANT/Primary Examiner, Art Unit 2877
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